State v. Roberts

22 N.C. App. 579 | N.C. Ct. App. | 1974

CARSON, Judge.

There is, of course, no hard and fast rule to determine when a delay is unreasonable. The leading case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.ed. 2d 101 (1972), sets forth four factors to be considered in determining whether the sixth amendment right to a speedy trial has been denied. These tests are (1) the length of the delay (2) the reason for the delay (3) the extent to which the defendant has asserted his right to a speedy trial, and (4) the prejudicial effect of the delay to the defendant. The delay in the Barker case was in excess of five years and the U. S. Supreme Court did not hold that that was unreasonable per se. While our solicitors must strive to docket cases as soon as possible to insure swift application of justice, we cannot ignore the increasing case load in many districts, especially those which are predominantly urban. Neither can we ignore the natural and commendable inclination to prosecute or dispose of the jail cases as soon as possible. A thirteen month delay, nothing else appearing, is not unduly long as a matter of law. State v. Rawlings, 18 N.C. App. 476, 197 S.E. 2d 47 (1973) ; State v. Wrenn, 12 N.C. App. 146, 182 S.E. 2d 600 (1971).

The next factor to be considered is the reason for the delay. The crowded dockets and the number of prisoners in jail awaiting trial are certainly reasons for the delay. State v. Brown, 282 N.C. 117, 191 S.E. 2d 659 (1972) ; State v. George, 271 N.C. 438, 156 S.E. 2d 845 (1967). The dockets introduced into evidence show that Durham County Superior Court was kept quite busy during the period of time in question. The defendant points out that during several weeks the docket broke down on Thursday, or even Wednesday afternoon on one occasion, and the court was adjourned for the week at that time. The solicitor stated that the week the court ended on Wednesday was the week of the solicitors’ conference and it was necessary for him and his staff to attend. While we consistently urge the solicitors to carefully prepare their dockets and to utilize the court’s time in the best possible fashion, we must also recognize that there are occasions when dockets will break down and some amount of time will not be best utilized. The record before us shows that the Durham County solicitor has indeed been diligent in preparing his dockets during this year’s period of time, and has utilized a very high degree of efficiency of the court’s time.

The third factor to consider is the extent to which the defendant has asserted his right to a speedy trial. The defendant here has been represented by the same attorney from 30 August 1971, until this appeal was heard. Although the defendant maintained that he requested his attorney on numerous occasions to obtain a trial for him, the record does not show that any such request was communicated to the solicitor until 25 August 1972. Obviously, the State cannot be charged with knowledge of communication between the attorney and his client. When the matter for a speedy trial was filed on 25 August, the matter was already set for the week beginning 28 August 1972. It was continued one more time at the defendant’s request until the term of 20 September 1972, at which time it was disposed of. No significant delay was encountered from the time the motion for the speedy trial was filed until the matter was docketed and heard.

The fourth matter to be considered is the prejudicial effect, if any, to the defendant. The defendant contended that two witnesses would have been available to him had the matter been docketed earlier. One witness and his expected testimony were never identified. The only other witness is the Chief of Police of Durham. Chief Seagroves was not called upon to testify at the trial and we may only guess at what his testimony may have been. The statement of the defendant that the Chief had told his attorney, and the attorney had told the defendant, that the Chief could not recall the events which transpired a year ago, does not seem compelling to us to show that any prejudicial effect resulted to the defendant, especially considering the defendant offered no evidence whatsover at the trial.

We hold that the trial court properly denied the defendant’s motion to dismiss, and that the defendant did not suffer an unreasonable delay in violation of his rights guaranteed by the sixth amendment to the United States Constitution. State v. Spencer, 281 N.C. 121, 187 S.E. 2d 779 (1972) ; State v. Hollars, 266 N.C. 45, 145 S.E. 2d 309 (1965).

The order entered on 3 December 1973 directed that commitment issue in accordance with the judgment entered at the 18 September 1972 Session of that court. It then provided that he receive credit on his sentence for the period from the date of the original judgment and commitment, 22 September 1972 until 3 December 1973, and no other credit. The defendant was previously sentenced and credit was given under the provisions of G.S. 15-176.2. The pre-trial custody statute in effect at the time the latter order was entered was G.S. 15-196.1, effective 1 March 1973. The defendant should have been committed in accordance with the previous sentence pronounced 22 September 1972. Under its provisions, the defendant would have been given credit for all pre-trial time spent in custody from 17 August 1971 to 22 September 1972, and the judgment must be modified to this effect.

Modified and affirmed.

Judges Britt and Hedrick concur.