State v. Thompson
| Decision Date | 16 January 1979 |
| Docket Number | No. 7826SC771,7826SC771 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. James THOMPSON. |
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Nonnie F. Midgette, Raleigh, for the State.
Tate K. Sterrett, Charlotte, for defendant-appellant.
Defendant first assigns error to the denial of his motion to dismiss made on the ground that he had been denied his right to a speedy trial. "Factors to be considered in deciding whether a defendant has been denied his 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." State v. Hudson, 295 N.C. 427, 432, 245 S.E.2d 686, 690 (1978). The length of the delay is not in itself determinative, but all four factors must be weighed and balanced against each other to determine whether there has been a denial of the constitutional right to a speedy trial. An undue delay which is arbitrary, oppressive, or due to the prosecution's deliberate effort to hamper the defense violates the constitutional guarantee of a speedy trial. State v. Hudson,supra.
"The question whether a defendant has been denied a speedy trial must be answered in light of the facts in the particular case." State v. Smith,289 N.C. 143, 148, 221 S.E.2d 247, 250 (1976). In the present case, defendant was arrested on 27 October 1976. During October and November 1976 he was also arrested on several other armed robbery charges, including three concerning robberies alleged to have been committed at the Central Square Apartments in Charlotte. On 28 October 1976 counsel was appointed to represent the defendant in this and in the other cases pending against him. On 6 December 1976 the grand jury returned the indictment in the present case as a true bill against the defendant. On 12 January 1977 defendant waived arraignment and entered pleas of not guilty to this and the other charges pending against him. In discussions between defendant's counsel and the prosecuting attorney, defendant's counsel indicated that he had an extremely busy trial schedule through the month of February and until the middle of March, 1977, and that he could not be prepared to try defendant's cases during that period. The prosecuting attorney advised defendant's counsel that he would not call these cases until defendant's counsel was ready for trial. Defendant's counsel also requested that only one of the cases against defendant be called for trial, and the prosecuting attorney indicated it was his intention to call the Central Square Apartment cases for trial first. When all of the cases against the defendant were placed on the calendar for trial on 15 March 1977, defendant's counsel reminded the prosecuting attorney of their prior understanding. On being thus reminded, the prosecuting attorney requested the presiding judge to remove the cases from the trial calendar at that time, and the trial judge acceded to this request. The prosecuting attorney later indicated his intention to recalendar the cases against defendant for the middle of April, 1977. About 30 March 1977 defendant's counsel wrote to the prosecuting attorney indicating he would be out of town from 18 to 20 April and requesting that the cases not be called at that time. The defendant then requested a polygraph examination which could not be scheduled until 7 July 1977. (Defendant did not pass the polygraph examination.) Thereafter, defendant's counsel requested that the cases not be calendared in August 1977 because of his vacation plans. The cases were placed on the calendar for 29 August 1977, but prior thereto defendant's counsel advised the prosecuting attorney that he had problems with witnesses and needed a continuance in order to get these witnesses. Defendant's counsel prepared a letter, which defendant signed, requesting a continuance for two or three weeks.
On 19 September 1977 defendant was brought to trial on the armed robbery charges which arose out of robberies which had occurred at the Central Square Apartments. He was found guilty and was sentenced to prison for a term of forty years. .
During the fall of 1977, following the trial of the Central Square Apartments cases, defendant's counsel and the prosecuting attorney engaged in extensive plea bargaining negotiations in connection with the present case. No agreement could be reached, and the present case was placed on the calendar for trial on 20 February 1978, but defendant's illness forced a continuance.
On 28 March 1978 defendant filed a motion to dismiss the present case on the ground that he had been denied his constitutional right to a speedy trial. In this motion, and in an affidavit filed to support thereof, defendant alleged that certain witnesses who had accompanied him on his trip to Florida and who could testify as to his whereabouts on 17 September 1976 were no longer in North Carolina and that the defendant did not know where they were, so that these witnesses had become unavailable to testify in defendant's behalf. A hearing was held on defendant's motion, following which the trial court entered an order making detailed findings of fact which, in substance, are as hereinabove set forth. In addition, the court found that there was no showing that the witnesses referred to in defendant's motion would have been available at any time after the end of 1976. On these findings, the court denied defendant's motion to dismiss made on the ground that his constitutional right to a speedy trial had been violated. In this ruling we find no error.
"(T)he burden is on an accused who asserts denial of a speedy trial to show that the delay was due to the neglect or wilfulness of the prosecution," and "(a)n accused who has caused or acquiesced in the delay will not be allowed to use it as a vehicle in which to escape justice." State v. McKoy, 294 N.C. 134, 141, 240 S.E.2d 383, 388 (1978). The present case was calendared to be tried no less than four times prior to the trial. In March, April, and August, 1977, the trial was postponed at the defendant's request. In February 1978 it was postponed because of defendant's illness. There was no showing that the trial was ever arbitrarily delayed by the prosecution or that the prosecution engaged in any deliberate effort to hamper the defense. On the contrary, the record reveals that the prosecution cooperated with defendant's counsel in an effort to assure that the trial of this case should take place at a time which would be fair both to the State and to the defendant. At no time did defendant ever request a speedy trial, his first and only motion relating to a speedy trial being his motion to dismiss the charges against him based on his contention that he had already been denied his constitutional right to a speedy trial. This motion was made on 28 March 1978, and the trial of this case occurred within thirty days thereafter. Finally, there was no showing that defendant was prejudiced by delay in his trial, at least as to such delay as occurred after 1976. The record supports the trial court's finding that there was no showing that the witnesses referred to in defendant's motion would have been available at any time after the end of 1976. Certainly any failure to bring defendant to trial between the time of his arrest on 27 October 1976 and the end of 1976 could not reasonably be considered of such duration as to amount to a denial of defendant's constitutional right to a speedy trial, and defendant does not so contend. When the four factors to be considered in deciding whether defendant in this case has been denied his constitutional right to a speedy trial are weighed and balanced, we agree with the trial court's conclusion that there was no such denial in this case. Defendant's first assignment of error is overruled.
Defendant next assigns error to the denial of his motion to suppress evidence concerning his oral and written statements made to the police following his arrest. In these statements defendant denied committing the robbery but admitted he had been to the office of Associates Financial Services, Inc., stating he had been there for the purpose of inquiring about the possibility of purchasing a repossessed automobile. Defendant contends that evidence concerning his statements should have been suppressed because his statements were not voluntary. Prior to ruling on defendant's motion the trial court held a voir dire hearing at which both the State and the defendant presented evidence concerning the circumstances under which defendant's statements were made. Following this hearing the court entered an order making detailed findings of fact, including findings that prior to making any statements defendant had been fully advised of his constitutional rights and had signed a written waiver of those rights. Based on its detailed findings of fact, the court found that defendant's statements had been voluntarily made.
A trial judge's finding that an accused freely and voluntarily made an inculpatory statement will not be disturbed on appeal when the finding is supported by competent evidence. State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976). Here, there was ample evidence to support the trial judge's findings that defendant's inculpatory statements to the police were voluntarily made. Defendant's testimony at the voir dire hearing that he made his statements because he "felt like (he) had to clear (himself)" after the police officer had told him that he had three statements from three different people saying that they had seen defendant leaving the scene shortly after the robbery, does not compel the conclusion that his statements were involuntary. State v. Anderson, 208...
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...that issue during the course of the robbery in order to determine the true character of the weapon. See, State v. Thompson, 39 N.C.App. 375, 250 S.E.2d 710 (1977) (Erwin, J. dissenting). Thus, the following rule, which we today emphatically reaffirm, was stated as "(W)hen the State offers e......