State v. Strickland

• Decision Date: 05 November 2002
• Docket Number: No. COA01-1449.,COA01-1449.
• Citation: 570 S.E.2d 898,153 NC App. 581
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Eugene Pavin STRICKLAND.

570 S.E.2d 898

153 NC App. 581

STATE of North Carolina v. Eugene Pavin STRICKLAND.

No. COA01-1449.

Court of Appeals of North Carolina.

November 5, 2002.

Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State.

William L. Davis, III, Lumberton, for defendant-appellant.

EAGLES, Chief Judge.

Eugene Pavin Strickland ("defendant") appeals from the trial court's judgment entered on a jury verdict finding him guilty of second-degree rape and misdemeanor breaking and entering. Defendant asserts seven assignments of error: (1) that defendant's right to a speedy trial was denied; (2) defendant was denied his right to present a defense; (3) the trial court admitted improper evidence of past crimes; (4) the trial court failed to issue a curative jury instruction; (5) defendant's motion for mistrial should have been granted; (6) the evidence against defendant was insufficient to support a conviction; and (7) that the trial court allowed improper testimony from an officer of the court. After reviewing the record and briefs, we find no error.

The evidence tends to show the following. Serena Blanks ("victim") was married to defendant for six years until their divorce in May 1997. Defendant and victim had two daughters. Defendant was violent towards victim throughout the marriage and physically abused victim at least ten times. On at least one occasion, victim assaulted defendant in return. Victim left the marital home in February 1996. Defendant testified that he and victim continued to have a sexual relationship after the separation and saw each other on a regular basis. The victim denied any sexual intercourse with defendant after their separation. She testified that she had taken her children to visit with defendant and that she had cut defendant's hair for him once while they were separated.

On 27 June 1998, victim fell asleep at approximately 10:00 p.m. in her living room. She woke up at approximately midnight and checked to make sure both of her doors were locked. She then went to her bedroom and laid down on the bed. Defendant appeared in victim's bedroom and grabbed her arms. Defendant told victim that he was miserable without her and wanted to resume their relationship. Defendant went to the restroom and walked outside for a cigarette during the course of his conversation with victim. Victim did not use the telephone or lock the door while defendant was outside her home because she wanted to keep him calm. When defendant came back inside the trailer, he began rubbing victim's breasts and pulling at her shirt and shorts. Victim pushed defendant's hands away and struggled with him. Defendant pulled victim to the floor and forced her to have intercourse. After the attack, defendant asked victim to follow him outside, where he showed her a loose window pane in her trailer. Defendant informed victim that he entered the trailer through the broken window.

Defendant was arrested on 27 June 1998. A true bill of indictment was returned against defendant on 14 December 1998. Defendant filed three motions for reduction of his bond, on 6 August 1999, 4 May 2000 and 7 December 2000. On 4 May 2000 and 7 December 2000, defendant also moved to dismiss the charges against him because he had been denied a speedy trial. All of defendant's motions were denied. Defendant's trial began on 23 January 2001, approximately 940 days after he had been arrested.

At trial, defendant testified that he had a continuing sexual relationship with victim after their separation and divorce. Defendant testified that victim had picked him up and had driven him to victim's trailer, where they argued on 26 June 1998. Defendant further testified that victim drove him back to his mother's house that evening and that he did not return to victim's trailer later that night. At the close of evidence, the jury found defendant guilty of misdemeanor breaking and entering and guilty of second-degree rape. Defendant appeals.

I

On appeal, defendant first argues that he was denied the right to a speedy trial. Defendant was incarcerated awaiting trial for 940 days. Although his pretrial incarceration was exceptionally lengthy, we hold that his right to a speedy trial was not violated.

The right to have a speedy trial is protected by both the United States and North Carolina Constitutions. U.S. Const. amend. VI, N.C. Const. art. I, § 18. The right to a speedy trial attaches when a defendant is formally charged with a crime, which is usually upon arrest. See Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975), cert. denied, 434 U.S. 1018, 98 S.Ct. 738, 54 L.Ed.2d 764 (1978); State v. McCoy, 303 N.C. 1, 277 S.E.2d 515 (1981). When determining whether an accused's right to a speedy trial has been violated, the court should consider four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant. Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Of the four factors to be considered, no single factor is determinative of the issue of whether a trial was sufficiently speedy. State v. Webster, 337 N.C. 674, 678, 447 S.E.2d 349, 351 (1994); State v. Johnson, 124 N.C.App. 462, 466, 478 S.E.2d 16, 19 (1996).

Once a defendant shows that his trial has been delayed for an exceptional amount of time, the delay triggers the court's consideration of the remaining Barker factors. See Webster, 337 N.C. at 679,447 S.E.2d at 351; Johnson, 124 N.C.App. at 466,478 S.E.2d at 19. In North Carolina, a delay of sixteen months was deemed lengthy enough to trigger the trial court's examination of the other three Barker factors. See Webster, 337 N.C. at 679,447 S.E.2d at 351. If a defendant proves that a delay was particularly lengthy, the defendant creates a prima facie showing that the delay was caused by the negligence of the prosecutor. State v. Chaplin, 122 N.C.App. 659, 664, 471 S.E.2d 653, 655-56 (1996) (1055 day delay); State v. Pippin, 72 N.C.App. 387, 392, 324 S.E.2d 900, 904,disc. rev. denied, 313 N.C. 609, 330 S.E.2d 615 (1985) (14 month delay). The prosecutor may rebut the prima facie case by showing a valid reason for the delay. State v. Avery, 95 N.C.App. 572, 577, 383 S.E.2d 224, 226 (1989),disc. rev. denied, 326 N.C. 51, 389 S.E.2d 96 (1990). Once the prosecutor offers a reason for the lengthy delay of defendant's trial, the burden of proof shifts back to the defendant to show neglect or willfulness by the prosecutor. Avery, 95 N.C.App. at 577, 383 S.E.2d at 226. If the delay is not proven to be purposeful or oppressive, this factor weighs in favor of the State. See State v. Hammonds, 141 N.C.App. 152, 541 S.E.2d 166 (2000),aff'd,354 N.C. 353, 554 S.E.2d 645 (2001),cert. denied, — U.S. —, 122 S.Ct. 2363, 153 L.Ed.2d 184 (2002).

Here, defendant was imprisoned for 940 days between his arrest and his trial. This exceptional length of pretrial incarceration supports defendant's claim that his right to a speedy trial was denied and triggers consideration of the remaining Barker factors.

The second factor in Barker concerns the reason for the delay. Here, defendant's trial was delayed for such a great amount of time that it creates the prima facie showing that the delay was created by prosecutorial negligence. See Chaplin, 122 N.C.App. at 664, 471 S.E.2d at 655-56; Pippin, 72 N.C.App. at 392, 324 S.E.2d at 904. However, the prosecutor offered evidence to rebut this presumption by showing that the long period of defendant's pretrial incarceration was the result of a prosecutorial backlog of other serious felony cases. See State v. Spivey, 150 N.C.App. 189, 563 S.E.2d 12 (2002). Although case backlogs should not be encouraged, the defendant did not present any evidence of neglect or willfulness by the prosecutor. The defendant did not prove that the delay of his trial was purposeful or oppressive to him. As a result, the second Barker factor weighs in favor of the State.

The third Barker factor examines whether defendant has asserted his right to a speedy trial. A criminal defendant who vigorously asserts his right to a speedy trial will be considered in a more favorable light than a defendant who does not. See Barker, 407 U.S. at 528-29, 92 S.Ct. at 2191, 33 L.Ed.2d at 115-16. Here, defendant's attorney filed two motions to dismiss based on the lack of a speedy trial. The first of these motions was filed on 4 May 2000, when defendant had been incarcerated for nearly two years. The second motion, filed 7 December 2000, led to the defendant's trial in January 2001. Because defendant asserted his right to a speedy trial, the third Barker factor weighs in favor of the defendant.

The fourth factor in the Barker test hinges on the defendant's ability to show prejudice to his defense caused by the delay in trial. In Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 2692, 120 L.Ed.2d 520, 531 (1992), the Supreme Court stated that a delay of eight and one-half years before trial "presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify." A specific showing of prejudice to the defendant is difficult, because "time's erosion of exculpatory evidence and testimony can rarely be shown." Doggett, 505 U.S. at 655, 112 S.Ct. at 2692-93, 120 L.Ed.2d at 530-31. Here, defendant did not allege any prejudice created by the two and one-half year delay before his trial, other than "prolonged anxiety and concern." Although proving the loss of evidence or testimony is a nearly impossible feat, defendant did not even allege that any witnesses had disappeared, died or were otherwise unavailable. See Chaplin, 122 N.C.App. 659, 665, 471 S.E.2d 653, 657 (1996) (where defendant could show prejudice from delay because a key exculpatory defense witness had been released from prison and...