State v. Swann
| Decision Date | 28 July 1988 |
| Docket Number | No. 181A86,181A86 |
| Citation | 322 N.C. 666,370 S.E.2d 533 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. John Robert SWANN, III. |
Lacy H. Thornburg, Atty. Gen. by Philip A. Telfer, Asst. Atty. Gen., for the State.
Stephen P. Lindsay, P.A. by Stephen P. Lindsay, for defendant-appellant.
The defendant first assigns error to the trial court's denial of his motion to dismiss for impermissible pretrial delay. The defendant argues that this delay violated the speedy trial requirement of the Sixth Amendment to the United States Constitution, the due process requirements of the Fifth and Fourteenth Amendments to the United States Constitution, and the North Carolina Speedy Trial Act, N.C.G.S. § 15A-701. The defendant also claims that there is a separate speedy trial requirement in Article I, Section 19 of the North Carolina Constitution, and this requirement was also violated.
We first note that in his motion to dismiss at trial, the defendant only invoked the North Carolina Speedy Trial Act; defendant raises the constitutional issues for the first time on appeal. This Court will not ordinarily consider a constitutional question raised for the first time on appeal. State v. Dorsett, 272 N.C. 227, 158 S.E.2d 15 (1967). Nevertheless, we may do so in the exercise of our supervisory jurisdiction. Rice v. Rigsby, 259 N.C. 506, 131 S.E.2d 469 (1963).
It would not help the defendant if we considered the constitutional questions he has raised pursuant to the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 19 of the Constitution of North Carolina. Although the defendant says in his assignment of error that his right to a speedy trial is based on the Constitution of North Carolina as well as the Constitution of the United States, he argues only the question of whether the United States Constitution applies. The Sixth Amendment to the United States Constitution commands that "[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial." The United States Supreme Court has held in U.S. v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), that the speedy trial provision of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused. We applied this rule in State v. McCoy, 303 N.C. 1, 277 S.E.2d 515 (1981).
The defendant argues that the rationale of Marion is that there was no need for the application of the speedy trial provision in that case because the defendant was protected by a statute of limitations. There is not a statute of limitations for the crimes with which the defendant was charged in this case and the defendant contends the speedy trial provision of the Sixth Amendment should apply to the pre-accusatory period. We do not believe the Court's holding in Marion was based on the fact that there was a statute of limitations. Nevertheless in U.S. v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), there was no statute of limitations and the Court held the speedy trial clause does not apply to the pre-accusatory period. The defendant was arrested on 22 August 1985 and his trial began on 5 February 1986. The period before his arrest is not applicable in determining the defendant's Sixth Amendment rights. The defendant's trial commenced 167 days after he was arrested. He was not deprived of a speedy trial under the Sixth Amendment to the Constitution of the United States.
The defendant is not helped by the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution. The United States Supreme Court dealt with the requirements for establishing a due process violation based on pre-accusation delay in U.S. v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). This Court summarized the Lovasco holding in State v. McCoy, 303 N.C. 1, 277 S.E.2d 515:
Essentially a pre-accusation delay violates due process only if the defendant can show that the delay actually prejudiced the conduct of his defense and that it was engaged in by the prosecution deliberately and unnecessarily in order to gain tactical advantage over the defendant.
Id. at 7-8, 277 S.E.2d at 522. The defendant does not argue, nor does the record indicate, that the prosecution deliberately delayed the defendant's indictment. The delay was largely due to the fact that the victim never mentioned the incidents to anyone until April 1985, six months after the incidents occurred. There was no due process violation because of pretrial delay.
The defendant also contends it was error to deny his motion to dismiss for failure to comply with the Speedy Trial Act, N.C.G.S. § 15A-701.
The defendant at trial moved to dismiss for failure to comply with the Speedy Trial Act, N.C.G.S. § 15A-701. Under that statute, a defendant's trial must begin "[w]ithin 120 days from the date the defendant is arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last." N.C.G.S. § 15A-701(a1)(1) (1983). The statute provides that certain time periods are excluded from the computation of this 120-day period. Two are relevant to the present case:
(1) Any period of delay resulting from other proceedings concerning the defendant, including, but not limited to, delays resulting from:
* * *
(d) Hearings on any pretrial motions or the granting or denial of such motions;
(7) Any period of delay resulting from a continuance granted by any judge if the judge granting the continuance finds that the ends of justice served by granting the continuance outweigh the best interests of the public and the defendant in a speedy trial and sets forth in writing in the record of the case the reasons for so finding....
N.C.G.S. § 15A-701(b) (1987 Cumm.Supp.).
In the present case, the last of the four events specified in the statute was the defendant's indictment on 3 September 1985. The defendant's trial began on 5 February 1986, 155 days later. Within this time, the trial court granted the defendant's motion of 9 September 1985 to continue through 23 September 1985, and his motion of 23 September 1985 to continue through 7 October 1985. The time to be excluded due to these continuances is 28 days, under the rule enunciated in State v. Harren, 302 N.C. 142, 273 S.E.2d 694 (1981), that in calculating a time period, the first day is excluded and the last day is included.
On 7 October 1986, the defendant waived arraignment and requested a one-week extension to file motions otherwise required upon arraignment. This seven-day period was properly excluded under N.C.G.S. § 15A-701(b)(1)d. Thus, a total of 35 days is excludable from the 155 days between indictment and trial. The remaining 120 days meets the statutory requirement.
The defendant contends that the seven day period from 7 October 1985 should not be excluded because he was to be arraigned on 7 October 1985 and he could not have been tried that week if his motion had not been granted. The plain words of N.C.G.S. § 15A-701(b)(1)d require the exclusion of any period of delay which results from the granting of a pretrial motion. This seven day period was properly excluded. The defendant's first assignment of error is overruled.
The defendant next assigns error to the denial of his motion to dismiss on the ground there was not sufficient evidence to convict him. He argues that this motion should have been granted for three reasons. He says (1) the victim was incompetent to testify, (2) the victim did not testify as to the dates of the offenses charged, and (3) based on these first two assertions, the defendant was "more appropriately" guilty of a sex offense against a mental defective.
In passing on a motion to dismiss the court must consider all evidence, whether competent or incompetent, in the light most favorable to the State. State v. Allen, 279 N.C. 406, 183 S.E.2d 680 (1971). In another part of this opinion we hold that the victim was competent to testify, but assuming he was not, his testimony was admitted by the court and it was properly considered on the motion to dismiss.
As to his contention that the victim did not testify as to the dates of the offenses the defendant argues that the ages of both the defendant and the victim were essential in proving the charges. If the date of the offenses was not proved, says the defendant, essential elements of the offenses were not proved. The victim did not testify to the exact dates of the incidents but he did testify the first incident occurred shortly after his brother was born. He testified the second incident took place approximately one week later. The victim's mother testified that her youngest son was born 20 September 1984 and the first incident took place three to four weeks later. We hold this is sufficient evidence for the jury to find the dates of the offenses. In light of the fact that we hold the evidence was sufficient to be submitted to the jury for both the charges for which the defendant was tried, we do not discuss his third contention.
The defendant next contends the trial court erred in sentencing him to prison terms in excess of the presumptive term for the indecent liberties convictions, based on the aggravating factor of prior convictions. The defendant complains that (1) it was not clear whether the prior convictions the court relied on to aggravate the sentence were punishable by more than 60 days' confinement, (2) the court did not determine whether at the time of his earlier convictions the defendant had been represented by or had waived counsel, and (3) that the nature of his prior convictions did not merit the aggravation of the sentence.
The defendant's complaints have no merit. The defendant admitted during direct examination that he had four prior convictions, including one for damage to property and one for driving without a license. These two offenses are punishable by up to six...
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