State v. Letterlough

281 S.E.2d 749, 53 N.C. App. 693, 1981 N.C. App. LEXIS 2746
Court of Appeals of North Carolina·Decided September 15, 1981·No. No. 8119SC198·Published

Opinion

MARTIN (Harry C.), Judge.

Defendant in his brief presents three assignments of error for our consideration.

First, he assigns as error the trial court’s denial of his motion to dismiss the indictment for failure to grant a speedy trial pursuant to N.C.G.S. 15A-701 and 15A-703.

[695] The pertinent dates are as follows:

5 March 1980 — Indictment

28 April 1980 — State moved for a continuance pursuant to N.C.G.S. 15A-701(b)(7). Motion granted. Continuance set to end 19 May 1980, next regularly scheduled session of Randolph County Criminal Superior Court.

14 May 1980 —Defendant moved for commitment to a state mental health facility for a mental exam. Motion granted 15 May 1980.

21 May 1980 — Defendant was returned from Dorothea Dix Hospital.

2 June 1980 — Next regularly scheduled session of Randolph County Criminal Superior Court.

2 July 1980 — Defendant’s privately retained counsel moved to withdraw. Request granted 3 July 1980.

14 July 1980 — Attorney appointed for defendant. Defense counsel agreed that 8 September or 29 September 1980 would be a satisfactory trial date, allowing both, parties time for trial preparation.

29 September 1980 — Trial began.

In his order on defendant’s motion to dismiss pursuant to N.C.G.S. 15A-701 and 15A-703, Judge Albright found, as a matter of law, that the running of time for purposes of the statute began 5 March 1980 and concluded on 28 September 1980. The total time between indictment and trial was thus 207 days, well outside the 120 days mandated in the statute.

Judge Albright excluded from computation the period between 28 April and 2 June 1980. Defendant assigns as error the exclusion of the period between 28 April and 19 May 1980, the [696] time allowed on the state’s motion for a continuance. Defendant does not argue against the exclusion of time from 14 May to 21 May 1980 while he was undergoing mental examination. At the outset, then, the 19 May date is of no relevance. Defendant was confined at Dorothea Dix hospital on that date and could not be present for trial. We will, however, discuss the appropriateness of Judge Albright’s excluding the full period between 28 April and 2 June 1980.

N.C.G.S. 15A-701(b)(7) provides that the time granted for a continuance is to be excluded where the judge finds that the ends of justice served by the continuance outweigh the best interests of the public and the defendant in a speedy trial. It is not the purpose of the Speedy Trial Act to force the state to trial absent essential witnesses or proper preparation. “Section 15A-701(b)(7) should be given a liberal and commonsense construction to avoid injustice either to the defendant or to the public. The safeguard in the Act requiring that the judge set forth in the written record his reasons for granting the continuance will prevent abuse of judicial discretion.” Price, The North Carolina Speedy Trial Act, 17 Wake Forest L. Rev. 173, 203 (1981).

Judge Lupton, in granting the continuance, found that a twenty-one day extension of time was both reasonable and necessary for trial preparation. We agree.

Under N.C.G.S. 15A-701(b)(l)(a), any period of delay resulting from a mental examination is excluded in computing the time within which trial must begin. In State v. Harren, 302 N.C. 142, 273 S.E. 2d 694 (1981), the Court held that for purposes of allowing a defendant to undergo mental examination, the time ex-cludable from computation runs from the date of entry of the order of commitment to the date the mental examination report becomes available to both the defendant and the state. The record does not indicate when the report became available. However, Judge Albright was clearly correct in holding that the period of exclusion should run until 2 June 1980, the date of the next regularly scheduled session of criminal superior court after defendant’s release on 21 May. In fact, had the report not been available on 2 June, a further exclusion of time would have been warranted. State v. McCoy, 303 N.C. 1, 277 S.E. 2d 515 (1981). To do otherwise would deprive the defendant of the benefit of the results of the medical examination he requested.

[697] Defendant would allow for the exclusion of some period of time for new counsel to be appointed and to prepare his defense. Defendant objects specifically to the exclusion of time between 8 and 29 September.

In State v. Bradsher, 49 N.C. App. 507, 271 S.E. 2d 915 (1980), this Court held that the trial court correctly excluded from computation the time during which withdrawal of counsel and appointment of new counsel took place. In State v. Rogers, 49 N.C. App. 337, 271 S.E. 2d 535 (1980), this Court held that the time necessary for acquiring and preparing new counsel was appropriately omitted under N.C.G.S. 15A-701(b)(1).

Defendant is entitled to competent and effective representation of counsel. State v. Hensley, 294 N.C. 231, 240 S.E. 2d 332 (1978). Between 3 July (withdrawal of counsel) and 14 July (appointment of new counsel) defendant was not represented by counsel. Judge Albright could have but did not exclude this period of time in his order.

Two trial dates were suggested as being convenient for both parties, 8 September and 29 September. By stipulation the state and newly appointed defense counsel agreed to a trial date of 29 September. Had defendant been concerned that his right to a speedy trial was being violated, he should have then insisted on trial being set for 8 September. After agreeing to 29 September, he may not now complain of delay resulting from his own reticence while trial dates were being discussed. Moreover, Judge Albright found that seventy-six days represented a reasonable period of time for defense counsel to prepare for trial. We agree.

Thus, from the total of 207 days, Judge Albright excluded from computation a period of thirty-four days (28 April to 2 June 1980) and seventy-six days (14 July to 28 September 1980) for a total of 110 days. He concluded that pursuant to N.C.G.S. 15A-701 and 15A-703, defendant had been awaiting trial for ninety-seven days, well within the 120-day limit specified in the statute for indictments returned before 1 October 1980.

We hold that there is no merit to defendant’s contention that Judge Albright erred in denying the motion to dismiss on the ground that a speedy trial was not afforded him.

[698] Defendant next assigns as error the trial court’s limiting defendant’s cross-examination of David Ledwell. Testimony was as follows:

Q. Mr. Ledwell, have you ever been charged with anything in this crime?
Mr. Kastner: Objection, Your Honor.
The Court: Sustained.

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State v. Letterlough, 281 S.E.2d 749, 53 N.C. App. 693, 1981 N.C. App. LEXIS 2746 (N.C. Ct. App. 1981).

281 S.E.2d 749 (State v. Letterlough) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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