State v. Tindall

• Decision Date: 17 April 1978
• Docket Number: No. 32,32
• Citation: 242 S.E.2d 806,294 N.C. 689
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Lamont TINDALL.

Page 806

242 S.E.2d 806

294 N.C. 689

STATE of North Carolina v. Lamont TINDALL.

No. 32.

Supreme Court of North Carolina.

April 17, 1978.

Rufus L. Edmisten, Atty. Gen., by Jane Rankin Thompson, Associate Atty., Raleigh, for the State.

E. Hilton Newman, Wilmington, for defendant-appellant.

HUSKINS, Justice:

On 24 June 1977 defendant moved to dismiss the murder charge against him on the ground that he had been denied a speedy trial in violation of his Sixth Amendment constitutional rights. Following a hearing before Rouse, J., at which defendant and the State offered evidence, the motion was denied. This constitutes defendant's first assignment of error.

Every person formally accused of crime is guaranteed a speedy and impartial trial by Article I, section 18 of the Constitution of this State and the Sixth and Fourteenth Amendments of the Federal Constitution. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); State v. Patton, 260 N.C. 359, 132 S.E.2d 891 (1963). Prisoners confined for unrelated crimes are entitled to the benefits of this constitutional guaranty. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); State v. Hollars, 266 N.C. 45, 145 S.E.2d 309 (1965). See also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973). No simple test has been developed for determining whether a criminal defendant has been denied a speedy trial. Accordingly, unless some fixed time limit is prescribed by statute (see e. g., G.S. 15-10.2; G.S. 15A-761, Arts. III(a) and V(c)), speedy trial questions must be resolved on a case-by-case basis. While all relevant circumstances must be considered, four interrelated factors are of primary significance: (1) the length of delay, (2) the reason for the delay, (3) the extent to which defendant has asserted his right and (4) the extent to which defendant has been prejudiced. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Wright, 290 N.C. 45, 224 S.E.2d 624 (1976); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969).

In the present case the following chronology is relevant to the question of speedy trial.

1. Around 4 p. m. on 11 July 1973 Donnie Dent was shot and killed on 8th Street near Dawson in the City of Wilmington, North Carolina. Numerous eyewitnesses testified that defendant was the murderer.

2. On 12 July 1973 a warrant was obtained by Officer McLaurin charging defendant with the first degree murder of Donnie Dent. The murder warrant was not served upon defendant because he had fled the State and could not be found.

3. In October 1975 Detective W. C. Brown of the Wilmington Police Department, having received information from the FBI that defendant was in federal custody on drug charges, went to Philadelphia and identified defendant who was using the alias "Lamont Boney" at that time. Officer Brown informed defendant of the murder charge, and a detainer was duly filed against him.

4. On 12 July 1976 Vernell DeVane, an employee in the Office of Clerk Superior Court, New Hanover County, signed a receipt for an article of certified mail (certified No. 593029) but never opened the package and had no knowledge of its contents. She delivered it to Mrs. Romblad, the mail clerk. The record does not disclose what Mrs. Romblad did with it. At the hearing on defendant's motion to dismiss, defendant produced a document (Defendant's Exhibit 1) entitled "Motion to Quash and Dismiss Detainer Warrant No. 26104" and testified that three copies thereof were sent by certified mail to the Office of Clerk Superior Court, New Hanover County, Wilmington, North Carolina. He further stated: "I did not send any notation with the three copies specifying who the three copies were to go to." These documents have never been located, and there is nothing of record to show that a copy ever came to the attention of the District Attorney's Office or the Police Department of the City of Wilmington.

5. On 31 March 1977, pursuant to the Interstate Agreement on Detainers, as the same appears in G.S. 15A-761, defendant requested a final disposition of the murder charge by causing to be delivered to the prosecuting officer of the Fifth Solicitorial District and to the New Hanover Superior Court a written notice of his place of imprisonment and a request for a final disposition of the murder charge pending against him, accompanied by a certificate of the federal warden who had defendant in custody. The notice, request and certificate fully complied with the requirements of G.S. 15-761, Art. III.

6. On 23 May 1977 a true bill of indictment charging defendant with the first degree murder of Donnie Dent was returned by the Grand Jury of New Hanover County.

7. On 24 June 1977, pursuant to G.S. 15A-954(3), defendant filed written motion to dismiss the charges against him on the ground that he had been denied a speedy trial. This motion was heard and denied on 27 June 1977.

8. The case was initially calendared for trial on 12 July 1977 but continued on defendant's motion until 25 July 1977, without objection by the State, to enable defendant to secure the attendance of out-of-state witnesses.

Under these facts we hold defendant has not been deprived of his right to a speedy trial. Our holding is grounded on the following considerations:

First, much of the delay was caused by defendant, who fled the State of North Carolina and lived under an assumed name in New York and Pennsylvania until apprehended for violation of federal narcotics laws. A criminal defendant who has caused or acquiesced in a delay will not be permitted to use it as a vehicle in which to escape justice. Barker v. Wingo, supra, 407 U.S. at 529, 92 S.Ct. at 2191, 33 L.Ed.2d at 116; State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969). Even the delay which occurred after defendant was taken into federal custody is, in slight part, chargeable to him, for it was his action in fleeing to New York and Pennsylvania and committing violations of federal law which complicated and obstructed the process of bringing him to trial in North Carolina. While the State must share responsibility for this delay, there is absolutely no evidence suggesting that the State acted purposefully or wilfully. Compare State v. McKoy, 294 N.C. 134, 240 S.E.2d 383 (1978).

Second, defendant made no demand for a final disposition of the murder charge against him until 31 March 1977. The "Motion to Quash and Dismiss Detainer Warrant" which defendant apparently sent to the New Hanover County Clerk of Court in July 1976, made no request for a prompt trial on the murder charge. Further, this motion was not addressed or directed to the district attorney, and there is no evidence suggesting it ever came to his attention or to the attention of his staff. When, in March of 1977, defendant did request a final disposition of the charges against him, the district attorney moved promptly to secure an indictment and defendant was brought to trial within four months. The minimal delay which occurred after defendant's request is entirely lawful for "(t)he constitutional guarantee does not outlaw good-faith delays which are reasonably necessary for the State to prepare and present its case." State v. Johnson, 275 N.C. 264, 273, 167 S.E.2d 274, 280 (1969).

In State v. McKoy, 294 N.C. 134, 240 S.E.2d 383 (1978), defendant McKoy's murder conviction was vacated and the charge dismissed for lack of a speedy trial when during a ten-month period defendant made eight or nine requests for a trial of the charges against him and these requests were ignored. The present case stands in strong contrast to McKoy. While the United States Supreme Court has not held that a defendant's failure to demand a speedy trial results in a waiver of his Sixth Amendment rights, that Court has stressed defendant's responsibility to assert his right to a prompt trial. "We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker v. Wingo, supra, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 117-18.

Third, the evidence suggests that defendant suffered no significant prejudice as a result of the delay. He did testify that one prospective alibi witness "died in the last of 1974 or 1975," but, as previously noted, defendant is solely responsible for the delay which occurred prior to October 1975, and at that time his witness was already dead. Until that date defendant was avoiding trial. His whereabouts were unknown to North Carolina authorities, he having fled this jurisdiction and assumed a new name.

We are not unmindful of the possibility that defendant may have suffered other kinds of prejudice as a result of the delay. See Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); State v. Wright, 290 N.C. 45, 224 S.E.2d 624 (1976). However, his failure to insist upon a prompt trial of the murder charge against him is strong circumstantial evidence that no great prejudice resulted.

"Whether and how a defendant asserts his right (to a speedy trial) is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Barker v. Wingo, supra, 407 U.S. at 531-32, 92 S.Ct. at 2192-93, 33 L.Ed.2d at 117.

None of the foregoing considerations is conclusive. Speedy trial claims must be decided on a case-by-case basis and all relevant factors taken into account. After considering all facts of the present case, we hold defendant has not been deprived of his constitutional right to...