State v. Pippin

• Decision Date: 05 February 1985
• Docket Number: No. 8410SC215,8410SC215
• Citation: 72 N.C.App. 387,324 S.E.2d 900
• Parties: STATE of North Carolina v. Alfred Allan PIPPIN, IV.
• Court: North Carolina Court of Appeals

Page 900

324 S.E.2d 900

72 N.C.App. 387

STATE of North Carolina v. Alfred Allan PIPPIN, IV.

No. 8410SC215.

Court of Appeals of North Carolina.

Feb. 5, 1985.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Ann Reed, Raleigh, for the State.

Harrell, Titus & Hassell, by Robert A. Hassell, Raleigh, for defendant.

WELLS, Judge.

The state contends that the trial court erred in dismissing charges with prejudice against defendant because (1) it made findings of fact totally unsubstantiated by any evidence in the record as no evidence was presented at the hearing, and (2) it erred in concluding that defendant's constitutional right to a speedy trial had been violated. We affirm the trial court's order.

The fundamental law of this state provides every individual charged with a crime has the right to a speedy trial, e.g., State v. Webb, 155 N.C. 426, 70 S.E. 1064 (1911). This right is also protected by the Sixth Amendment to the Constitution of the United States as applied to the states through the Fourteenth Amendment, Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). This right, perhaps the most amorphous of constitutional protections afforded criminal defendants, protects an accused from undue and oppressive pretrial incarceration, prolonged anxiety attendant to criminal accusation, and the potential that undue delays will impair an accused's defense. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). Recognizing the obvious interests that society has in the prompt punishment of criminal activity and given the reality that undue delay may hinder the prosecution of an accused, as well as prejudice a defendant, the right to a speedy trial also protects a "societal interest ... which exists separate from, and at times in opposition to, the interests of the accused." Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The balancing of these interests has been aptly described as not affording the defendant a "sword for defendant's escape, but rather ... a shield for his protection." Note, 57 Colum.L.Rev. 846 (1957).

The determination of whether the right to a speedy trial has been abridged requires a case by case balancing of four interrelated factors: (1) length of delay; (2) reason for delay; (3) defendant's assertion of the right to a speedy trial; and (4) prejudice to defendant resulting from the delay. Yet, "none of the four factors ... [are] either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.... In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." Barker v. Wingo, supra; see also e.g., State v. McKoy, 294 N.C. 134, 240 S.E.2d 383 (1978); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969). Defendant has the initial burden of showing, prima facie, that the delay was caused by the wilful acts or neglect of the prosecuting authority, and, if this burden is met, the state must "offer evidence fully explaining the reasons for the delay and sufficient to rebut the prima facie showing or risk dismissal." State v. McKoy, supra (emphasis in original); see also State v. Marlow, 310 N.C. 507, 313 S.E.2d 532 (1984); State v. Jones, 310 N.C. 716, 314 S.E.2d 529 (1984); State v. Wright, 290 N.C. 45, 224 S.E.2d 624 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977).

We first address the length of the delay in this case of some fourteen months (437 days) from arrest until defendant's speedy trial motion was granted. It is well established that a defendant's right to a speedy trial attaches upon being formally accused of criminal activity, by arrest or indictment. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975) (per curiam); State v. McCoy, 303 N.C. 1, 277 S.E.2d 515 (1981). This factor:

[I]s to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.

Barker v. Wingo, supra; see also State v. McKoy, supra; State v. Wright, supra (Exum, J., dissenting). We recognize that some delay is inherent and must be tolerated in any criminal trial, State v. McKoy, supra; for example, the state is entitled to an adequate period in which to prepare its case for trial, Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); see also e.g., State v. Johnson, supra; State v. Norman, 8 N.C.App. 239, 174 S.E.2d 41 (1970). What length of time is appropriate in each case is initially within the sound discretion of the trial court. State v. Hollars, 266 N.C. 45, 145 S.E.2d 309 (1965); State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S.E.2d 870, cert. denied (1965); State v. Watson, 13 N.C.App. 54, 185 S.E.2d 252 (1971), cert. denied, 409 U.S. 1043, 93 S.Ct. 537, 34 L.Ed.2d 493 (1972).

The offense for which defendant was indicted occurred on 12 July 1982. Defendant voluntarily surrendered himself to the authorities on the same day, admitting his act. Under these facts, and allowing for a reasonable period in which the district attorney needed to prepare for trial, we agree with the implicit finding of the trial court that a delay of fourteen months in bringing defendant to trial was prima facie unreasonable and required the district attorney to fully justify the delay. Compare State v. McKoy, supra (defendant indicted for first degree murder, found guilty of voluntary manslaughter; approximately twenty-two month delay "unusual"); State v. Brown, 282 N.C. 117, 191 S.E.2d 659 (1972) (defendant charged with first degree murder, found guilty of manslaughter; seventeen month delay "could contravene the right to a speedy trial under some circumstances, and such delay should be avoided if possible"); with State v. McCoy, supra ("We doubt that for a murder case such as this one this delay [eleven months] ... is enough to be 'presumptively prejudicial,' so as to require us to inquire 'into the other factors that go into the balance.' "); State v. Sidey Brown, 287 N.C. 523, 215 S.E.2d 150 (1975) (three and one-half month delay held not showing any denial of right to speedy trial). The period of delay "in absolute terms is never per se determinative," see also State v. Eugne Brown, supra; State v. Wright, supra, and as a "triggering" mechanism, "its significance in the balance is not great." State v. Hill, 287 N.C. 207, 214 S.E.2d 67 (1975).

We next review the reasons for the delay. This factor is closely associated with length of delay as the right to a speedy trial protects wilful, oppressive, or neglectful delays by the state. E.g., United States v. Ewell, supra; Barker v. Wingo, supra; State v. Hill, supra; State v. Crowe, 25 N.C.App. 420, 213 S.E.2d 360, cert. denied, 287 N.C. 665, 216 S.E.2d 908 (1975). In balancing the reasons for delay in bringing an accused to trial:

[D]ifferent weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.

Barker v. Wingo, supra. It is axiomatic that the state will not, under most circumstances, be held responsible for delays requested or caused by defendant. E.g., State v. McKoy, supra.

Between defendant's arrest on 12 July 1982 and the first unsuccessful attempt at indictment for first degree murder on 25 March 1983 and the initial indictment for second degree murder on 11 April 1983, there was a lapse of some 273 days. The assistant district attorney, at the motion hearing before the trial court, represented that he had not sought an indictment prior to March, 1983 because defendant's counsel had requested that no indictment be brought against defendant while plea negotiations were held with the assistant district attorney. The assistant district attorney stated that plea bargaining involved extensive discussions with defense counsel and some correspondence between the parties. Defendant's attorney agreed that he had requested the district attorney not to indict defendant for first degree murder. In its order, the trial court found as facts:

....

5. ... no indictment was issued, although there were negotiations between the State and counsel for the defendant....

6. ... this Court has heard the argument of counsel for the State as to the cause of the delay and cannot find that this lengthy delay [437 days] was justified by any reasonable necessity....

The state, in its brief, appears to argue that by entering into plea bargaining with the assistant district attorney defendant acquiesced in the full 273 days delay between arrest and indictment thereby waiving his right to assert a denial of a speedy trial. We disagree with the state's argument that the entire period is excludable.

We hold that any time periods actually attributable to defense counsel's requested plea negotiations is a waiver by defendant of predicating a speedy trial claim on that period. Plea bargaining is a universal and necessary practice in the courts of this state. The practice is mutually beneficial to the state and defendants. Permitting defendants to avail themselves of this beneficial process and then to subsequently base speedy trial claims on delays expended in plea negotiations would be grossly prejudicial to the state. The...