State v. Waites

• Citation: 270 S.C. 104,240 S.E.2d 651
• Decision Date: 17 January 1978
• Docket Number: No. 20583,20583
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Appellant, v. Millard E. WAITES, Respondent.

Page 651

240 S.E.2d 651

270 S.C. 104

The STATE, Appellant, v. Millard E. WAITES, Respondent.

No. 20583.

Supreme Court of South Carolina.

Jan. 17, 1978.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Brian P. Gibbes, and Sol. James C. Anders, Columbia, for appellant.

John A. Mason, Columbia, for respondent.

NESS, Justice:

The sole question before us is whether respondent, Millard E. Waites, was denied his constitutional right to a speedy trial. The lower court found the two year four month delay between arrest and preliminary hearing to warrant dismissal of charges against respondent. We disagree and reverse.

Respondent was arrested on two warrants issued by Magistrate J. F. Stephens on August 21st and August 26th, 1974, charging him with two counts of assault and battery of a high and aggravated nature and with pointing and presenting a firearm. On August 26, 1974, appellant's attorney requested in writing a preliminary hearing.

The hearing was scheduled for September 25, 1974, but prior thereto Magistrate Stephens disqualified himself after being contacted by both sides, and transferred the matter to Magistrate Ray Durham. Stephens testified that Mr. Truluck, one of the prosecuting witnesses and father of a college student injured in the altercation with respondent, contacted him at least twice. Although respondent never approached Stephens personally, "some telephone calls did come in on behalf of Mr. Waites." (Tr. p. 6).

Magistrate Durham held the warrants for several months and scheduled a preliminary hearing. Durham testified he sent the matter to Magistrate Halloran after disqualifying himself because Mr. Truluck talked to him about the case.

A preliminary hearing was finally held by Magistrate Halloran on December 29, 1976, approximately two years and four months after issuance and service of the arrest warrants. Respondent was then bound over for grand jury action on both warrants.

Respondent subsequently petitioned the lower court requesting dismissal of the warrants on the ground the delay in prosecution had denied him his constitutional right to a speedy trial. The lower court issued an order dismissing all charges against respondent arising out of the incident.

The right to a speedy trial is guaranteed by the Sixth Amendment to the U.S. Constitution and has been applied to the States in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The right is also guaranteed by Article 1 Section 14 of the S.C. Constitution. Among the goals of the Sixth Amendment right to speedy trial is prevention of undue incarceration, minimization of the anxiety accompanying public accusation, and limitation of the possibility that long delay will impair the accused's ability to defend himself. There is no universal test to determine whether a defendant's Sixth Amendment right has been violated.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court laid down controlling considerations when dealing with speedy trial questions. Inasmuch as a balancing test is to be applied wherein the conduct of both the prosecution and the defendant are weighed, such cases necessarily must be approached on an ad hoc basis. The factors identified by the Barker Court to be utilized in resolving speedy trial issues are: (1) the length of the delay; (2) the reason the government assigns to justify the delay; (3) when and how the defendant asserted his right to speedy trial; (4) prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. at 2192. The factors identified in Barker v. Wingo have been recognized by this Court. State v. Foster, 260 S.C. 511, 197 S.E.2d 280 (1973); State v. Monroe, 262 S.C. 346, 204 S.E.2d 433 (1974).

The two year four month delay between arrest and preliminary hearing is disturbing. While length of delay alone is not dispositive, U. S. v. Roberts, 515 F.2d 642, 645 (2nd Cir. 1975), this delay is sufficient to trigger our review of the other three factors enumerated in Barker v. Wingo, and our consideration of "such other circumstances as may be relevant." Id. at 533, 92 S.Ct. at 2193.

In order to establish the denial of a speedy trial, it must be demonstrated the delay was attributable to the State. State v. Dukes, 256 S.C. 218, 182 S.E.2d 286 (1971). The constitutional guarantee of a speedy trial is protection only against delay which is arbitrary or unreasonable. People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840 (1970). We now consider the reasons for the instant delay.

The lower court's finding that the delay was either caused by the State or resulted from its neglect is not supported by the record. There was testimony by Magistrate Stephens that he received phone calls not only from the prosecuting witness but also from someone speaking on respondent's behalf. Moreover, respondent's attorney agreed to a continuance and stated he did not want the case to come to trial. This evidence is sufficient to warrant our conclusion that respondent contributed to the delay. ¹ See Wheeler v. State, 247 S.C. 393, ...