State v. Smith

• Decision Date: 29 January 1976
• Docket Number: No. 6,6
• Citation: 221 S.E.2d 247,289 N.C. 143
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. David Benjamin SMITH, alias David Benjamin McCullough and Bobby Orlando Foster.

Page 247

221 S.E.2d 247

289 N.C. 143

STATE of North Carolina v. David Benjamin SMITH, alias David Benjamin McCullough and Bobby Orlando Foster.

No. 6.

Supreme Court of North Carolina.

Jan. 29, 1976.

Shelley Blum and Bart William Shuster, Charlotte, for defendant appellants.

Rufus L. Edmisten, Atty. Gen. and Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State.

HUSKINS, Justice:

Defendant Smith moved to dismiss the murder charges against him on the ground that his constitutional right to a speedy trial had been denied. Denial of the motion constitutes his first assignment of error.

In support of his motion Smith filed an affidavit asserting that the trial delay was due to the efforts by the State to strengthen its case; that this delay prejudiced his defense in that his incarceration without privilege of bond made it impossible for him to contact witnesses; that it compounded the already difficult task of maintaining contact with elusive, unnamed out-of-state witnesses; and that the passage of time dimmed the memories of his unidentified witnesses, including a possible alibi witness.

In opposition to Smith's motion the State on voir dire offered the testimony of Thomas F. Moore, Jr., District Attorney for the Twenty-sixth Judicial District. Mr. Moore testified that determining when a case is 'ripe' for trial involves such factors as the complexity of the case, the availability of witnesses, and the pending case load; that the primary reason for the delay in scheduling this case for trial was the State's desire to try defendants Smith, Foster and Harris together, and the State had great difficulty in obtaining custody of Smith's codefendants who had to be extradited from New York and South Carolina. The district attorney further testified that the criminal case backlog in Mecklenburg County numbered between seven and eight hundred during the time defendant Smith was in custody.

The State also offered the testimony of the Assistant District Attorney, Peter S. Gilchrist. He enumerated other factors bearing upon the delay, to wit: The impossibility, in light of overcrowded calendars, of trying more than one 'major crime' at any one term of court; the necessity for continued investigation of the case; and the difficulty in locating important State's witnesses, one of whom was a fugitive from justice and unavailable until one week before trial.

It was stipulated that defendant was arrested on October 9 or 10, 1973, and has been in custody without bond since that date; that defendant was indicted on 7 January 1974, defendant Harris was extradited from South Carolina on 13 August 1974, and defendant Foster from New York on 12 July 1974; that defendant Smith requested a speedy trial orally in early May and in writing on 24 May 1974; that defendant's motion for a speedy trial was filed on 12 July 1974 and an affidavit in support of the motion was filed on 30 July 1974; that Smith's counsel informed the district attorney's office on numerous occasions that the defense might consist of an alibi and that the passage of time would tend to injure Smith's ability to defend himself due to loss of memory. It was further stipulated that there were approximately seventy weeks of criminal trials in Mecklenburg Superior Court between 7 January and 30 September 1974.

On the basis of the evidence produced on voir dire the trial court ruled that the State's reasons for the delay were reasonable and denied defendant's motion. We think this ruling was correct.

Interrelated factors to be considered in determining whether a defendant has been denied his constitutional right to a speedy trial are: (1) The length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Hill, 287 N.C. 207, 214 S.E.2d 67 (1975); State v. Gordon, 287 N.C. 118, 213 S.E.2d 708 (1975); State v. O'Kelly, 285 N.C. 368, 204 S.E.2d 672 (1974); State v. Frank, 284 N.C. 137, 200 S.E.2d 169 (1973); State v. Brown, 282 N.C. 117, 191 S.E.2d 659 (1972); State v. Harrell, 281 N.C. 111, 187 S.E.2d 789 (1972); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969).

The question whether a defendant has been denied a speedy trial must be answered in light of the facts in the particular case. The instant case involves a delay of eleven months from time of defendant's arrest to commencement of his trial. The length of the delay itself is not Per se determinative, and there is no showing that the delay was purposeful or oppressive or by reasonable effort could have been avoided by the State. The right to a speedy trial is necessarily relative, for inherent in every criminal prosecution is the probability of delay. State v. Neas, 278 N.C. 506, 180 S.E.2d 12 (1971). Undue delay which is arbitrary and oppressive or the result of deliberate prosecution efforts 'to hamper the defense' violates the constitutional right to a speedy trial. Barker v. Wingo, supra; State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972).

The burden is on an accused who asserts the denial of his right to a speedy trial to show that the delay was due to the neglect or wilfulness of the prosecution. State v. Hill, supra; State v. Gordon, supra; State v. Johnson, supra. In the instant case defendant has failed to carry the burden. To the contrary, the record indicates that the delay in the prosecution of this case was due to congested criminal dockets, goodfaith efforts to obtain custody of absent codefendants, and understandable difficulty in locating out-of-state witnesses, one of whom was a fugitive from justice. Such reasons have been recognized consistently as valid justification for delay. See Barker v. Wingo, supra; State v. Hill, supra; State v. Gordon, supra; State v. Brown, supra. We conclude that the length of the delay was not unreasonable and the delay itself was not prejudicial to defendant Smith in preparing and presenting his defense. The first assignment of error is overruled.

The next assignment requiring brief discussion concerns the admission of State's Exhibit 3, a 7-shot .32 caliber Burgo revolver. Defendants contend this weapon was the fruit of an illegal search and seizure which renders it inadmissible under the Fourth and Fourteenth Amendments. We now examine the validity of this contention.

At the request of defendants the court conducted a voir dire regarding the admissibility of the challenged evidence. Trooper Douglas D. Sinopoli of the New Jersey State Police testified that on 30 August 1973, while on patrol on the New Jersey Turnpike, he observed an automobile being driven in a reckless and careless manner. He stopped the vehicle by reason of this violation. Defendant Foster was driving the car and defendant Smith was seated in the front right passenger's seat. Trooper Sinopoli glanced through the window on the driver's side of the vehicle and 'immediately observed the butt of a weapon under the center arm rest. . . . The white handle of what I believed to be a weapon . . . under the arm rest.' The officer then asked both defendants to step out of the vehicle. They complied with his request and, at the officer's direction, stood in front of their car. Frisking defendants and finding no weapons, the officer ordered them to remain standing in front of their vehicle. He then returned to the car, reached inside, lifted the front center arm rest, and seized a fully loaded .32 caliber pistol. The officer testified: 'When I found the revolver I placed both subjects under arrest and advised them of their rights and asked if either had a permit to carry the weapon. Both denied knowledge of the weapon and I arrested both of them.' On cross-examination Officer Sinopoli said: 'I arrested them for carrying a concealed weapon without a permit, sir. I charged them under the careless driving statute. I also charged them with a narcotics charge. Those cases are still pending.'

Defendants offered no evidence on the voir dire hearing.

The trial court made findings of fact substantially in accord with the officer's testimony and, on the basis of those findings, concluded as a matter of law that the revolver was admissible in evidence as the product of a proper search of defendants' vehicle 'incidental to the arrest of defendant Foster for reckless driving.' Defendants' objections and exceptions which form the basis of this assignment question the propriety of this ruling.

We find it unnecessary to determine whether the facts and circumstances of this case warrant the legal conclusion that State's Exhibit 3 was admissible as the fruit of a proper search Incident to a valid arrest. Pertinent to that question, which we do not reach, see United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970); State v. Shedd, 274 N.C. 95, 161 S.E.2d 477 (1968). See generally Comment, 'Warrantless Searches and Seizures of Automobiles and the Supreme Court from Carroll to Cardwell: Inconsistently through the Seamless Web,' 53 N.C.L.Rev. 722, 747-53 (1975).

For the reasons which follow, we hold that the .32 caliber Burgo revolver, State's Exhibit 3, was properly admissible in evidence as the fruit of a lawful warrantless 'plain view' seizure under circumstances requiring no search.

The Fourth Amendment does not prohibit all searches and seizures but only those which are unreasonable. Carroll v....