State v. Robinson

• Decision Date: 03 May 1999
• Docket Number: No. 2988.,2988.
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. William P. ROBINSON, Appellant.

335 S.C. 620

518 S.E.2d 269

The STATE, Respondent, v. William P. ROBINSON, Appellant.

No. 2988.

Court of Appeals of South Carolina.

Heard February 9, 1999.

Decided May 3, 1999.

Assistant Appellate Defender M. Anne Pearce, of S.C. Office of Appellate Defense, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Senior Assistant Attorney General Norman Mark Rapoport, of Office of the Attorney General; and Solicitor Warren B. Giese, all of Columbia, for respondent.

CONNOR, Judge:

A jury convicted William P. Robinson of second degree computer crime. The trial judge sentenced him to three years imprisonment and payment of a $50,000 fine, suspended on service of thirty months and $10,000. Robinson appeals. We affirm.

I. SPEEDY TRIAL

A. Factual Background

Robinson was arrested in April 1991 and indicted for first degree computer crime in September 1991. In December 1995, the Chief Administrative Judge for Richland County held the last of several status conferences in the case and verbally ordered the State to try Robinson by January 1996 or he would dismiss the case. The State called the case for trial on January 30, 1996. Robinson made a pre-trial motion to dismiss based on the State's violation of his right to a speedy trial and due process rights. Defense counsel conceded Robinson never made a formal motion for a speedy trial, but argued he sent letters as early as September 1994 to the solicitor and the Chief Administrative Judge indicating Robinson's willingness to proceed to trial. Robinson first filed a motion to dismiss for failure to prosecute on May 10, 1995. This eventually lead to the January trial date.

In response to the pre-trial motion to dismiss, the State contended gathering evidence of the conspiracy and locating co-conspirators took substantial time. Specifically, the State maintained the case involved a complicated criminal conspiracy which required a thorough investigation. Furthermore, the State argued it had difficulty locating one co-defendant whose testimony was essential, and had been negotiating with another co-defendant who had finally cooperated and was available to testify. The trial judge denied Robinson's motion to dismiss.

At the conclusion of the pre-trial evidentiary matters, Robinson noted the indictment was defective because the solicitor had been the only witness to appear before the grand jury. On defense counsel's motion, the trial judge quashed the indictment.

On February 20, 1996, the trial judge held a hearing on Robinson's motion to dismiss because the State had failed to prosecute the case by January 1996 as mandated by the Chief Administrative Judge's verbal order. Although the State initially complied with the order by calling the case on January 30, Robinson argued the State violated the order when the case was continued because of the defective indictment. The State contended the error in the indictment was a mere oversight, not an intent to delay the trial. The trial judge denied Robinson's motion to dismiss finding the Chief Administrative Judge never signed a written order, the State complied with the order by calling the case in January, the judge quashed the indictment on defense counsel's own motion, and Robinson was not prejudiced by the delay. Robinson was re-indicted on February 28, 1996, and tried on March 4, 1996. Robinson renewed his motion to dismiss which was denied by the trial judge.

B. Discussion

Robinson maintains the trial judge erred in denying his motion to dismiss because the five-year delay between his arrest and trial resulted in a violation of his due process rights and his right to a speedy trial. Alternatively, Robinson argues the case should have been dismissed because it was not tried by January 1996 as mandated by the Chief Administrative Judge's verbal order.

The Sixth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, guarantees an accused the right to a speedy trial. See State v. Chapman, 289 S.C. 42, 344 S.E.2d 611 (1986)

; Wheeler v. State, 247 S.C. 393, 147 S.E.2d 627 (1966). This right is also provided by Article 1, Section 14, of the South Carolina Constitution. See State v. Brazell, 325 S.C. 65, 480 S.E.2d 64 (1997); Chapman, 289 S.C. at 44,

344 S.E.2d at 612. The determination of whether or not an accused has been denied his constitutional right to a speedy trial depends on the circumstances of each case. Brazell, 325 S.C. at 75,

480 S.E.2d at 70. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court adopted a four part balancing test to determine when a defendant has been denied the right to a speedy trial. The factors of the test include: 1) the length of the delay; 2) the reason the State asserts to justify the delay; 3) when and how the defendant asserted his right to a speedy trial; and 4) the prejudice to the defendant. Id. at 530, 92 S.Ct. 2182. South Carolina has also adopted this approach to the speedy trial analysis. See Brazell, 325 S.C. at 75,

480 S.E.2d at 70; State v. Smith, 307 S.C. 376, 415 S.E.2d 409 (Ct.App.1992).

In this case, the five-year delay is troubling. Although delay alone is not dispositive in the speedy trial analysis, this substantial delay by the State in prosecuting the case is sufficient to trigger review of the remaining three factors. See Brazell, 325 S.C. at 75-76,

480 S.E.2d at 70 (a three-year and five-month delay was sufficient to trigger review); State v. Waites, 270 S.C. 104, 240 S.E.2d 651 (1978) (two-year and four-month delay in prosecution was sufficient to trigger speedy trial analysis); Smith, 307 S.C. at 380,

415 S.E.2d at 411 (three-year delay sufficient to trigger speedy trial review).

Robinson claims the State caused the delay by not calling the case earlier. However, the burden is on Robinson to show the delay resulted from the neglect and wilfulness of the State. See State v. Dukes, 256 S.C. 218, 182 S.E.2d 286 (1971)

. Robinson did not satisfy this burden. There is no evidence the delay was wilful or intentional.

Furthermore, Robinson maintains he first asserted his right to a speedy trial in 1994 by writing letters to the solicitor and Chief Administrative Judge indicating he was ready for trial.¹ However, we conclude Robinson first asserted his right to a speedy trial in May 1995 when he filed the formal motion to dismiss. Robinson's trial began only ten months after his first motion was filed. "[F]ailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker, 407 U.S. at 532, 92 S.Ct. 2182.

Additionally, there is no evidence actual prejudice resulted from the delay. Robinson states he "suffered actual prejudice in the loss of witnesses and documents that would have been available had the case been tried in a timely manner." However, this general assertion of prejudice alone is insufficient to establish actual prejudice. Robinson cites no specific witness or document that was unavailable because of the delay. Furthermore, lost witnesses and documents are also disadvantages that hamper the State. See also Chapman, 289 S.C. at 45,

344 S.E.2d at 613 (no prejudice found where the inability to locate witnesses also hampered the State); Smith, 307 S.C. at 381,

415 S.E.2d at 412 (no prejudice found where faded memories of witnesses also hampered the State).

Although the five-year delay in this case was substantial, upon our review and balancing of the Barker factors, we find Robinson was not denied his constitutional right to a speedy trial. The case was tried within one year of Robinson's first formal motion to dismiss. The State also presented adequate justification for the delay. Finally, Robinson presented no evidence of actual prejudice.

Moreover, we conclude the State complied with the Chief Administrative Judge's order by calling the case on January 30, 1996. Although the case was not tried until March of 1996 because of the defective indictment, it appears the defect was not a result of wilful neglect on the State's part. In fact, it was defense counsel's own motion to quash the indictment that caused the case to be continued to the March term of court. Accordingly, the trial judge did not err in denying Robinson's motion to dismiss for failure to prosecute.

II. SEARCH WARRANTS

A. Factual Background

This case involved a complicated forgery/credit card conspiracy between Robinson, Dome Coleman, Michael Gibbs, and Eric Brooker. The co-conspirators took customer invoices from a local car dealership and gleaned information from the invoices to pull credit reports on various individuals. The co-conspirators were looking for victims with excellent credit histories. They then utilized information from the credit reports, such as addresses and social security numbers, to make false birth certificates, drivers licenses, and W-2 forms. Using these false identifications, the co-conspirators filled out instant credit applications in various victims' names and purchased goods.

The police first learned of the conspiracy when one of the victims, David Brooker, contacted the authorities about the unauthorized use of his credit to obtain merchandise at Circuit City. On March 29, 1991, the police obtained and executed a search warrant for a storage unit rented in the name of "David Brooker." The police then learned that Gibbs had been arrested in Georgia for using "David Brooker's" credit information to buy goods, and that the receipt for the storage unit was found in Gibbs's possession. The authorities tried to interview Gibbs, but he was uncooperative.

The investigation also revealed that a "David Brooker" was registered at the Budgetel hotel across the street from the storage unit. The police obtained a search warrant for the hotel room which revealed paperwork, credit reports, drivers licenses,...