State v. Wright

• Decision Date: 14 May 1976
• Docket Number: No. 81,81
• Citation: 224 S.E.2d 624,290 N.C. 45
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Franklin WRIGHT.

Page 624

224 S.E.2d 624

290 N.C. 45

STATE of North Carolina v. Franklin WRIGHT.

No. 81.

Supreme Court of North Carolina.

May 14, 1976.

Atty. Gen. Rufus L. Edmisten and Associate Attorney Noel Lee Allen, Raleigh, for the State.

Robert H. West, Boone, for defendant appellant.

MOORE, Justice.

Defendant's case was called and he was arraigned in open court, entered a plea of not guilty, and twelve jurors were called to the jury box but not empaneled. Defense counsel then moved to dismiss the entire jury 'for the reason that there are no blacks.' Defendant offered no evidence in support of this motion and the court overruled it. Defendant argues that the court erred in summarily denying his motion without giving him an opportunity to offer evidence on the motion and without requiring the State to show affirmatively the absence of systematic exclusion. This is the first assignment discussed in defendant's brief.

Defendant's counsel was appointed on 3 April 1974, and during the some thirteen months which elapsed prior to trial, counsel could have investigated all aspects of the selection or exclusion of blacks from the jury box of Watauga County. Yet, he did not offer any evidence that no Negroes had been summoned as jurors for that particular term, nor that Negroes had been systematically excluded from jury service on the basis of race. Neither did he request additional time in which to procure such evidence. To the contrary, when the motion was denied, defendant excepted and stated: 'We pass on the Jury.' The trial judge then excused the jurors and, in their absence, asked defense counsel, 'Do you have any evidence in support of the motion which appears of record . . .?' To that this request referred to another 'No, sir.' Although defense counsel contends that the request referred to another motion pending at the time, the record clearly indicates that if defendant had testimony concerning the jury's selection, the judge would have heard it at that time. In fact, defendant was immediately thereafter placed on the stand and testified on Voir dire concerning his motion for a speedy trial. He made no statement and was not asked anything concerning the composition or the selection of the jury.

In State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970), Justice Huskins, speaking for the Court, said:

'Both state and federal courts have long approved the following propositions:

'1. If the conviction of a Negro is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race, the conviction cannot stand. (Citations omitted.)

'2. If the motion to quash alleges racial discrimination in the composition of the jury, the burden is upon the defendant to establish it. (Citations omitted.) But once he establishes a Prima facie case of racial discrimination, the burden of going forward with rebuttal evidence is upon the State. (Citations omitted.)

'3. A defendant is not entitled to demand a proportionate number of his race on the jury which tries him nor on the venire from which petit jurors are drawn. (Citations omitted.)

'4. A defendant must be allowed a reasonable time and opportunity to inquire into and present evidence regarding the alleged intentional exclusion of Negroes because of their race from serving on the grand or petit jury in his case. (Citations omitted.) 'Whether a defendant has been given by the court a reasonable time and opportunity to investigate and produce evidence, if he can, of racial discrimination in the drawing and selection of a . . . jury panel must be determined from the facts in each particular case.' State v. Perry, supra (248 N.C. 334, 103 S.E.2d 404 (1958)).'

See also State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

In present case, defendant offered no evidence that Negroes were excluded by reason of their race, although he had ample time to do so. Hence, he failed to carry the burden of establishing discrimination and also failed to establish a Prima facie case of racial discrimination. Therefore, the State had nothing to rebut and the trial judge correctly denied defendant's motion challenging the array.

Defendant next contends the Court of Appeals erred in affirming the trial court's refusal to dismiss the charges against defendant on the ground that his Sixth Amendment right to a speedy trial had been violated.

The law concerning a defendant's right to a speedy trial is well established in North Carolina. In State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969), Justice Sharp (now Chief Justice) set out the basic precepts established by decisions of this Court.

'1. The fundamental law of the State secures to every person Formally accused of crime the right to a speedy and impartial trial, as does the Sixth Amendment to the Federal Constitution (made applicable to the State by the Fourteenth Amendment, Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967)).

'2. A convict, confined in the penitentiary for an unrelated crime, is not excepted from the constitutional guarantee of a speedy trial of any other charges pending against him.

'3. Undue delay cannot be categorically defined in terms of days, months, or even years; the circumstances of each particular case determine whether a speedy trial has been afforded. Four interrelated factors bear upon the question: the length of the delay, the cause of the delay, waiver by the defendant, and prejudice to the defendant.

'4. The guarantee of a speedy trial is designed to protect a defendant from the dangers inherent in a prosecution which has been negligently or arbitrarily delayed by the State; prolonged imprisonment, anxiety and public distrust engendered by untried accusations of crime, lost evidence and witnesses, and impaired memories.

'5. The burden is on an accused who asserts the denial of his right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution. A defendant who has himself caused the delay, or acquiesced in it, will not be allowed to convert the guarantee, designed for his protection, into a vehicle in which to escape justice. State v. Hollars, 266 N.C. 45, 145 S.E.2d 309; State v. Lowry, 263 N.C. 536, 139 S.E.2d 870, Appeal dismissed, 382 U.S. 22, 86 S.Ct. 227, 15 L.Ed.2d 16 (1965); State v. Patton, 260 N.C. 359, 132 S.E.2d 891, Cert. denied, 376 U.S. 956, 84 S.Ct. 977, 11 L.Ed.2d 974 (1964); State v. Webb, 155 N.C. 426, 70 S.E. 1064.'

With these principles in mind, we now consider the four factors enunciated in State v. Johnson, supra, and followed in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), as they apply to the case before us.

Defendant was arrested on an unrelated charge on 7 September 1973 and served with a warrant for the breaking and entering of the Villa Maria, and larceny therefrom, while in jail on 5 October 1973. An indictment was returned on these charges in January 1974 and defendant was tried in May 1975. Therefore, some nineteen months elapsed between the date the warrant was served and the date of defendant's trial. Although we do not approve of such a long delay, we do not determine the right to a speedy trial by the calendar alone, but must weigh the length of the delay in relation to the three remaining factors. Barker v. Wingo, supra.

The second factor, the reason for the nineteen-month delay, does not clearly appear in the record. It Is clear that defendant was indicted in January 1974, the first session of court after he was arrested, and that at the next session of court in April 1974 an attorney was appointed to represent him. Thereafter, defendant's case was calendared at each succeeding session of court--September 1974, January 1975, March 1975--but not reached. Finally, a special session of court was scheduled for the weeks of 12 May and 19 May 1975 for the trial of the backlog of felony cases. Defendant's case was tried during the week of May 19.

The Court of Appeals took judicial notice of the infrequent sessions of court in Watauga County and found that it was common knowledge that the district attorney first disposes of the cases involving defendants incarcerated in the county jail. From September 1973 through the time of trial, defendant was either in jail in Wake County awaiting trial there on an unrelated charge, or serving time in the State's prison system based on his Wake County conviction; hence, he was not deprived of his liberty due to the charges in this case. The Court of Appeals reasoned that the district attorney was unable to reach defendant's case before each one-week session of court expired, due to the number of defendants in the county jail.

While the conclusions of the Court of Appeals as to the reasons for the delay are undoubtedly correct and would provide sufficient justification for the delay on the part of the State, the State should have presented evidence, preferably through the district attorney, fully explaining the reasons for the delay. In the present case, however, we take judicial notice of the statistics on the operation of the superior courts as compiled by our own Administrative Office of the Courts. G.S. § 7A--340 through G.S. § 7A--346; 1 Stansbury, N.C. Evidence § 13 (Brandis Rev.1973), and cases therein cited. The 1974 Annual Report of that office shows that on 1 January 1974, 72 criminal cases were pending in Watauga Superior Court. During 1974, 142 additional criminal cases were filed, 97 of these being felonies. During 1974, 98 cases were disposed of by jury trial, plea or other disposition, leaving 116 cases remaining on 1 January 1975, or an increase of 44 cases from 1 January 1974. These figures further show that during 1974, Watauga County had only 20 days of superior court scheduled for the trial of criminal cases, and used all 20 days. This 100% Utilization of such scheduled court days was achieved by only two other counties in the State during 1974. Despite utilizing...