IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-565
No. COA20-915
Filed 19 October 2021
Alamance County, Nos. 17CRS052988, 19CRS001073, 19CRS050810
STATE OF NORTH CAROLINA
v.
CHRISTOPHER NEAL
Appeal by Defendant from judgments entered 26 June 2019 by Judge David T.
Lambeth Jr. in Alamance County Superior Court. Heard in the Court of Appeals 24
August 2021.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Mary Carla Babb, for the State-Appellee.
Meghan Adelle Jones for Defendant-Appellant.
COLLINS, Judge.
¶1 Defendant Christopher Neal appeals from judgments entered upon jury
verdicts of guilty of discharging a weapon into an occupied moving vehicle, assault
with a deadly weapon with intent to kill, attempted first-degree murder, and
possession of a firearm by a felon. Defendant argues that the trial court erred in its
instructions on constructive possession and attempted first-degree murder, and that
his due process rights were violated by a year-long delay in processing his appeal. STATE V. NEAL
Opinion of the Court
We discern no error, much less plain error, in the constructive possession instruction;
no plain error in the attempted first-degree murder instruction; and no violation of
Defendant’s due process rights.
I. Factual and Procedural Background
¶2 Defendant was indicted for discharging a weapon into a moving vehicle,
assault with a deadly weapon with intent to kill, attempted first-degree murder, and
possession of a firearm by a felon. The case came on for trial on 10 June 2019.
¶3 The evidence at trial tended to show the following: Carliethia Glover, a social
worker for Rockingham County Department of Social Services (“DSS”), received a
report from Child Protective Services (“CPS”) on 12 June 2017 that a premature
infant, whose umbilical cord had tested positive for the presence of marijuana, had
recently been born at a hospital in Greensboro. The infant is the child of Defendant
and Latonya Whetsell. Glover and her colleague Emily Pulliam visited the infant on
13 June 2017 at the hospital. Glover and Pulliam then travelled to Reidsville to the
parents’ address listed on the CPS report. At the listed address, Glover and Pulliam
encountered Wilbert Neal (“Wilbert”), Defendant’s father. Wilbert told Glover that
Defendant and Whetsell sometimes lived at his home, but were not living there at
that time. Wilbert directed them “around the corner” to a mobile home, which he
owned and in which he allowed the couple to stay with their children. Unable to
locate the mobile home, Glover called the telephone number listed on the CPS report STATE V. NEAL
for Whetsell. When Whetsell answered, Glover told Whetsell that Glover would need
to see Whetsell’s two other children that day.1 Whetsell was angry and said, “get this
phone before I have to cuss her out.” Defendant got on the phone and told Glover
that she would not be seeing his children. Glover then gave Pulliam the phone.
Defendant yelled at Pulliam, “I’m going to see your M[other] F[***ing] punk A[**].”
¶4 As Glover and Pulliam continued driving through the neighborhood, Pulliam
spotted a man, whom they later determined was Defendant, outside on the phone.
Shortly thereafter, Glover and Pulliam noticed a blue BMW SUV following them. The
BMW chased them down a highway, into a parking lot, and down a street. Pulliam
saw a black male, whom she recognized as the same man who had been outside on
the phone, “holding something up towards the car,” but could not tell “at that point
in time what was being pointed at us.” Eventually they lost the BMW in traffic, and
Glover stopped to telephone law enforcement.
¶5 After the chase had ended, Defendant appeared at DSS and confronted social
worker Jan Odum about the agency’s involvement with his children. Odum had
previously been involved with Whetsell when Odum was the foster care social worker
for Whetsell’s three oldest children. At trial, Odum characterized Defendant’s
1 Whetsell has three children with Defendant, including two who lived with Whetsell
and the premature infant. Whetsell also has three children who were not fathered by Defendant and who had previously been taken into custody by DSS. Whetsell had not been cooperative in the agency’s efforts to return them to her. STATE V. NEAL
demeanor that day as “angry,” “loud,” “menacing,” and “threatening.” A detective
who worked at DSS was able to calm Defendant down, and Melissa Kaneko, Glover’s
supervisor at DSS, explained DSS’s involvement to Defendant. Defendant told DSS
that he and Whetsell were no longer a couple and suggested that she had previously
made false allegations against him.
¶6 According to Whetsell’s testimony, her relationship with Defendant had been
tumultuous. During one argument, Defendant pistol-whipped her in the head with a
nine-millimeter handgun that belonged to her. She received staples in her head as a
result. She testified at trial that it was Defendant who had hit her and that she had
refused to tell police who had hit her because she did not want him to get into trouble.
During another argument, Defendant chased her on a highway in his car and pointed
the handgun at her.
¶7 After the chasing incident, Whetsell sought a Chapter 50B domestic violence
protective order against Defendant. In her 50B complaint, Whetsell detailed the
above altercations. Additionally, she took out a warrant for Defendant’s arrest for
assault by pointing a gun. Whetsell did not pursue the 50B order because she “really
didn’t want him in trouble,” and the assault charge was dismissed when she failed to
appear in court.
¶8 The same afternoon that Glover and Pulliam had attempted to visit Defendant
and Whetsell at the mobile home, Glover and Pulliam returned to DSS and discussed STATE V. NEAL
with staff members what to do about Whetsell’s two children who remained in her
care. Because there had been a previous 50B complaint filed against Defendant, it
was decided that Glover needed to speak to Whetsell and see the children that same
day, and, if Whetsell confirmed the allegations against Defendant were true, that the
children should not remain in the home that night. Accompanied by law enforcement
officers, Glover and Pulliam drove a county car to the mobile home.
¶9 Glover asked Whetsell about her drug use and any incidents between her and
Defendant that might make the home dangerous. Whetsell claimed there had been
“some kind of misunderstandings” between Defendant and her, and confirmed that
someone did pistol-whip her, but claimed it was not Defendant and that she was just
confused. Whetsell testified at trial, however, that the allegations in her 50B
complaint about him were true, but that she had lied to Glover to “protect” Defendant
and keep DSS from taking her children.
¶ 10 Glover asked Whetsell if there was a relative or friend with whom the children
could stay temporarily. Whetsell replied that her children were not going anywhere.
Glover telephoned Kaneko, who asked the DSS attorney to move for temporary
custody of the children. Upon this motion, a judge issued an order for nonsecure
custody.
¶ 11 While Glover and Pulliam were still at the mobile home, Defendant arrived.
Pulliam testified that she recognized Defendant as the same man who had chased STATE V. NEAL
her and Glover earlier that day. Defendant cursed and shouted at Glover and the
law enforcement officers as Glover put the children into the car. Video from a body
camera worn by one of the officers captured Defendant saying while facing Glover,
“You might die tonight.” Defendant asked Glover where she was taking the children,
and Glover replied that she could not disclose that information. Glover drove to the
Rockingham County Sherriff’s Department to retrieve the non-secure custody order.
Defendant and Whetsell also drove to the Sheriff’s Department in his BMW. Glover
and Pulliam, now accompanied by Sheriff’s Deputy Carter, then drove to a foster
home agency in Guilford County to drop off the children.
¶ 12 Around 10:30 p.m., Glover and Pulliam returned to DSS to retrieve their
personal vehicles. Soon thereafter, Defendant and Whetsell arrived in Defendant’s
BMW. Deputy Carter told them to leave. After they left, Glover and Pulliam began
driving to their respective homes, each with a law enforcement escort. Pulliam made
it safely home. The officer escorting Glover home to Burlington followed her to the
Rockingham County line, where he turned around.
¶ 13 At some point, Defendant and Whetsell returned to the mobile home and
retrieved Whetsell’s nine-millimeter loaded handgun. Whetsell put the gun in her
purse. Whetsell testified that she assumed Defendant knew she had the handgun in
her purse because she usually kept it with her. STATE V. NEAL
¶ 14 Defendant and Whetsell left the mobile home and began driving on Highway
87 toward Burlington, the same direction Glover was driving. Whetsell testified that
they were not initially following Glover but were on their way to Raleigh to hire a
lawyer. Whetsell recognized Glover’s car and directed Defendant, who was driving,
to follow Glover. Whetsell testified that Defendant followed Glover because he knew
that Whetsell was angry and “wanted to get at” one of the DSS social workers. As
Defendant and Whetsell neared Glover’s car, Whetsell took her handgun out of her
purse and set it on her lap.
¶ 15 Defendant followed Glover into a parking lot. While Defendant was chasing
Glover around the parking lot, Whetsell fired her handgun at Glover, shattering the
driver’s side rear window of Glover’s car. Whetsell testified that when shooting at
Glover, she wanted to hit her. Whetsell did not hit Glover, however, and Glover was
physically uninjured. Glover called 911 and drove to the Burlington police station.
Glover identified Defendant by name to the police as the person who had shot at her.
¶ 16 After the shooting, Defendant dropped Whetsell off in a nearby neighborhood.
Whetsell took her purse, with the handgun inside, with her. Whetsell told Defendant
to return to Reidsville and switch out his car for hers. Defendant drove to Reidsville
where he switched his BMW with a car that Whetsell did not recognize and returned
to Burlington to pick up Whetsell. The couple then drove to Reidsville, intending to
switch the car with Whetsell’s car, but their house was surrounded by law STATE V. NEAL
enforcement. They retrieved Defendant’s BMW instead. Whetsell testified that
Defendant disposed of the handgun “somewhere in Reidsville.” Law enforcement
never recovered it.
¶ 17 Defendant and Whetsell drove to Myrtle Beach, South Carolina. On or about
15 June, South Carolina law enforcement arrested them and they were brought back
to North Carolina.
¶ 18 Defendant testified and maintained throughout trial that he was not in the car
when Whetsell shot at Glover. According to Defendant, he was in Reidsville at the
time caring for his great aunt. Defendant’s cousin Alexis Slade testified that she was
with Defendant at their great aunt’s house on the night of the shooting and was there
with Defendant around 10:00 p.m. when they put their aunt to bed and when she
went to bed herself. Defendant’s cousin Monique Barnett testified that Whetsell told
Barnett she was solely responsible for the shooting.
¶ 19 Whetsell pled guilty to assault with a deadly weapon with intent to kill and
discharging a firearm into an occupied moving vehicle, and agreed to testify truthfully
against Defendant.2 In exchange, the State dropped the attempted first-degree
murder charge against her. During trial, the State introduced a certified copy of
Defendant’s federal court records showing felony convictions for distributing cocaine.
2 While awaiting trial, Whetsell signed an unsworn statement wherein she claimed she acted
alone when she shot at Glover. Whetsell later testified the statement was false. STATE V. NEAL
¶ 20 The jury returned guilty verdicts on all charges.
¶ 21 The trial court entered judgments upon the jury’s verdicts, sentencing
Defendant to consecutive prison terms of 180 to 228 months for attempted first-
degree murder, 73 to 100 months for discharging a weapon into an occupied moving
vehicle, 29 to 47 months for assault with a deadly weapon with intent to kill, and 14
to 26 months for possession of a firearm by a felon. Defendant appealed.
II. Discussion
¶ 22 Defendant contends the trial court erred in its instruction on constructive
possession, the trial court erred in its instruction on attempted first-degree murder,
and that his due process rights were violated by a year-long delay in processing his
appeal.
A. Constructive Possession Instruction
¶ 23 Defendant first argues that “[t]he trial court erred or plainly erred by
instructing on constructive possession of a firearm by a felon, when that theory was
not supported by the evidence.” Defendant mischaracterizes the instruction he
challenges, and his argument is without merit. STATE V. NEAL
1. Preservation
¶ 24 As a threshold matter, we address the State’s contention that Defendant
argued a different ground for his objection at trial than he does on appeal and thus,
the argument he makes on appeal is unpreserved. We agree.
¶ 25 During the charge conference, the court engaged the parties in a lengthy
discussion about the constructive possession instruction. Defendant, through
standby counsel,3 objected to the instruction, stating, “For the offense of possession
of a firearm by a felon has to be actual physical possession. . . . So we object to a
constructive possession charge in toto, since the actual possession is covered in the
offense of possession of a firearm by a felon.” Defendant now argues that because no
firearm was found in this case, the constructive possession instruction was
unsupported by the evidence.
¶ 26 Our courts have long held that where a theory argued on appeal was not raised
before the trial court, “the law does not permit parties to swap horses between courts
in order to get a better mount . . . .” Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838
(1934). Defendant’s argument that the constructive possession instruction was
unsupported by the evidence, made for the first time on appeal, is not preserved for
our review. However, as Defendant “specifically and distinctly” contends the
3 Defendant represented himself at trial with an attorney as standby counsel. With the consent of Defendant, standby counsel acted as counsel during the charge conference. STATE V. NEAL
instruction amounted to plain error, we review for plain error. N.C. R. App. P.
10(a)(4).
¶ 27 To show plain error, Defendant must demonstrate that a fundamental error
occurred at trial. State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).
“To show that an error was fundamental, a defendant must establish prejudice—
that, after examination of the entire record, the error had a probable impact on the
jury’s finding that the defendant was guilty.” Id.
2. Analysis
¶ 28 The trial court instructed the jury on constructive possession in conformity
with N.C.P.I. Crim–104.41 as follows:
If you find beyond a reasonable doubt that an article was found in close proximity to the defendant, that would be a circumstance from which, together with other circumstances, you may infer that the defendant was aware of the presence of the article and had the power and intent to control its disposition or use.
¶ 29 Defendant first erroneously argues that this instruction was given “[a]s part of
the instruction on possession of a firearm by a felon[.]” It was not. This instruction
was given as part of the introductory general instructions–which included, among
others, instructions on the presumption of innocence, the definition of reasonable
doubt, and the jury members as the sole judges of credibility–preceding specific
instructions on the specific charges Defendant faced. Defendant also erroneously STATE V. NEAL
argues that “[t]he trial court erred by instructing the jury that Mr. Neal’s possession
of the firearm could be inferred from its being found in close proximity to the
defendant’s person.” The trial court did not so instruct. The above general
instruction on constructive possession does not reference a firearm; it is a correct
statement of the law of constructive possession and refers generally to “an article.”
See State v. Bradshaw, 366 N.C. 90, 93-94, 728 S.E.2d 345, 348 (2012) (“It is well
established that possession may be actual or constructive. . . . A defendant
constructively possesses contraband when he or she has the intent and capability to
maintain control and dominion over it.” (quotation marks and citations omitted)).
¶ 30 The entirety of the trial court’s specific instruction on possession of a firearm
by a felon, which appears more than seven transcript pages after the general
constructive possession instruction, is as follows:
The defendant has been charged with possessing, having within defendant’s custody, care, control a firearm after having been convicted of a felony. For you to find the defendant guilty of this offense, the State must prove two things beyond a reasonable doubt.
That on December 9, 2009 in United States District Court for the Middle District of North Carolina, the defendant was convicted of the felony of conspiracy to distribute crack cocaine and distribution of crack cocaine that was committed between 1988 up to and including December 19, 1994 in violation of the laws of the United States. STATE V. NEAL
And second, that after December 9, 2009, the defendant possessed, had within defendant’s custody, care, control a firearm.
This instruction conforms with N.C.P.I.–Crim 254A.11, possession of a firearm by a
felon, is an accurate statement of the law, and is supported by the evidence. See
Bradshaw, 366 N.C. at 93, 728 S.E.2d at 347-48 (“To convict defendant of possession
of a firearm by a felon the state must prove that (1) defendant was previously
convicted of a felony and (2) subsequently possessed a firearm.”) (citing N.C. Gen.
Stat. § 14-415.1(a)). The trial court did not err, much less plainly err, in its
instruction on constructive possession or its instruction on possession of a firearm by
a felon.
¶ 31 Moreover, even if the inclusion of a general constructive possession instruction
was given in error, after a review of the entire record, we cannot say that the
challenged jury instruction “had a probable impact on the jury’s finding that the
defendant was guilty.” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. Defendant’s
argument is overruled.
B. Attempted First-Degree Murder Instruction
¶ 32 Defendant next argues that the trial court erred when it instructed the jury on
attempted first-degree murder, in conformity with N.C.P.I.–Crim 206.17A, that it STATE V. NEAL
could infer that the defendant acted unlawfully and with malice if it found that “the
defendant intentionally inflicted a wound upon the victim with a deadly weapon.”
¶ 33 The State argues Defendant invited any error and waived appellate review by
affirmatively approving of the contents of the instruction he now challenges.
Defendant argues he sufficiently objected at trial to the instruction, or, in the
alternative, he specifically and distinctly contends on appeal that the instruction
amounted to plain error.
¶ 34 With regard to invited error, “[a] criminal defendant will not be heard to
complain of a jury instruction given in response to his own request.” State v. McPhail,
329 N.C. 636, 643, 406 S.E.2d 591, 596 (1991). In State v. Wilkinson, 344 N.C. 198,
474 S.E.2d 375 (1996), defendant submitted a proposed jury instruction in writing to
the trial court. The trial court changed one word in the instruction, and defendant
stated that he had no objection to this change. Id. at 213, 474 S.E.2d at 383. On
appeal, defendant argued that the instruction was erroneous. Explaining that the
Supreme Court “has consistently denied appellate review to defendants who have
attempted to assign error to the granting of their own requests[,]” the Court
concluded that defendant had invited the error by actively requesting the court to
include an instruction that he later claimed prejudiced him. Id. STATE V. NEAL
¶ 35 In this case, Defendant did not request the jury instruction he now challenges
on appeal. Accordingly, Defendant did not invite error or waive appellate review of
this issue. Defendant did, however, fail to properly object to the instruction, raising
only a vague question as to its contents during the charge conference. A short time
later, the court asked if Defendant was satisfied with the substantive law provided
in the instruction; Defendant, through standby counsel, responded, “[I]t’s a pattern
jury instruction, and I’m sure it’s been looked at by people much smarter than me.”
Defendant did not object further. Accordingly, Defendant has failed to preserve the
issue for appellate review. As Defendant “specifically and distinctly” contends the
instruction amounted to plain error, we review for plain error. N.C. R. App. P.
¶ 36 The trial court included the following instruction on attempted first-degree
murder in conformity with N.C.P.I.–Crim 206.17A:
The defendant has been charged with attempted first degree murder. For you to find the defendant guilty of this offense, the State must prove two things beyond a reasonable doubt.
First, that the defendant intended to commit first degree murder.
And second, that at the time the defendant had this intent, he performed an act which was calculated and designed to accomplish the crime, but which fell short of the completed STATE V. NEAL
crime. Mere preparation or mere planning is not enough to constitute such an act, but the act need not be the last act required to complete the crime.
First degree murder is the unlawful killing of a human being with malice, with premeditation[,] and with deliberation. Malice means not only ill will or spite, as it is ordinarily understood, to be sure that is malice. But it also means the condition of mind which prompts a person to take the life of another intentionally or to intentionally inflict serious bodily harm which proximately results in her death without just cause, excuse or justification.
If the state proves beyond a reasonable doubt that the defendant intentionally inflicted a wound upon the victim with a deadly weapon, you may infer first, that the defendant acted unlawfully and second, that it was done with malice, but you are not compelled to do so. You may consider this along with all other facts and circumstances in determining whether the defendant acted unlawfully and with malice.
(Emphasis added).
¶ 37 Defendant contends that the instruction was erroneous because no evidence at
trial supported that Glover was physically wounded during the shooting. Defendant
further argues that the instruction rises to the level of plain error in that it allowed
the jury to infer malice, an essential element of first-degree murder, from
circumstances not supported by the evidence. Even if the instruction introduced an
extraneous matter and was thus given in error, Defendant has failed to show that the
error had a probable impact on the jury’s finding that the defendant was guilty. STATE V. NEAL
¶ 38 The instruction placed the burden on the State to “prove[] beyond a reasonable
doubt” that Defendant intentionally inflicted a wound upon Glover with a deadly
weapon before the jury was permitted to infer that Defendant acted unlawfully and
with malice. As Defendant points out, there was no evidence before the jury that
Glover was wounded during the shooting. As the State could not meet its burden of
proving that Defendant intentionally inflicted a wound upon Glover, the jury was not
permitted to infer that Defendant acted unlawfully and with malice. We assume the
jury followed the court’s instructions. See State v. White, 343 N.C. 378, 389, 471
S.E.2d 593, 599 (1996).
¶ 39 After examination of the entire record, we cannot say that challenged jury
instruction “had a probable impact on the jury’s finding that the defendant was
guilty.” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334. Accordingly, the trial court’s
instruction on attempted first-degree murder was not plainly erroneous.
C. Due Process Right to a Speedy Appeal
¶ 40 Finally, Defendant argues that he was deprived of his constitutional due
process right to a speedy appeal when the court reporter requested ten extensions of
time to produce the trial transcript. STATE V. NEAL
1. Standard of Review
¶ 41 We review alleged violations of constitutional rights de novo. State v. Graham,
200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009).
¶ 42 For speedy appeal claims, “undue delay in processing an appeal may rise to the
level of a due process violation.” State v. China, 150 N.C. App. 469, 473, 564 S.E.2d
64, 68 (2002) (quotation marks and citation omitted). In determining whether a
defendant’s constitutional due process rights have been violated by a delay in
processing an appeal, we consider the following factors as set out in Barker v. Wingo,
407 U.S. 514, 530-32 (1972): “(1) the length of the delay; (2) the reason for the delay;
(3) defendant’s assertion of his right to a speedy appeal; and (4) any prejudice to
defendant.” China, 150 N.C. App. at 473, 564 S.E.2d at 68 (citing State v. Hammonds,
141 N.C. App. 152, 158, 541 S.E.2d 166, 172 (2000)). No one factor is dispositive; the
factors are related and are considered with other relevant circumstances. Id.
a. Length of Delay
¶ 43 “[L]ower courts have generally found postaccusation delay ‘presumptively
prejudicial’ at least as it approaches one year.” Doggett v. United States, 505 U.S.
647, 652, n. 1 (1992). The one-year delay in processing Defendant’s appeal is thus STATE V. NEAL
sufficient to trigger review of the remaining Barker factors. Hammonds, 141 N.C.
App. at 164, 541 S.E.2d at 175.
b. Reason for Delay
¶ 44 “[T]he burden is on the defendant to show the delay resulted from intentional
conduct or neglect by the State.” State v. Berryman, 360 N.C. 209, 220, 624 S.E.2d
350, 358 (2006). Even if none of the delay is attributable to defendant, that does not
necessarily make the delay attributable to the State. See Hammonds, 141 N.C. App.
at 164, 541 S.E.2d at 176. In Hammonds, as here, defendant argued that he had been
denied a timely appeal due to the court reporter’s delay in finishing the transcript.
Id. at 164, 541 S.E.2d at 175. This Court stated, “Although none of the delay is
attributable to defendant, in light of the fact that this Court consistently approved
the reporter’s requests for extensions of time, we are equally unable to find that the
delay is attributable to the prosecution.” Id. at 164, 541 S.E.2d at 176. As in
Hammonds, the delay in this case was due to neutral factors, and Defendant failed
to carry his burden to show delay due to neglect or willfulness of the State. See id. at
161, 541 S.E.2d at 174. Accordingly, the court reporter’s delay in the instant case
does not weigh in Defendant’s favor with respect to the second Barker factor.
c. Defendant’s Assertion of the Right
A defendant’s assertion of his speedy appeal right “is entitled to strong
evidentiary weight in determining whether the defendant is being deprived of the STATE V. NEAL
right.” Id. at 162, 541 S.E.2d at 174 (quoting Barker, 407 U.S. at 531-32). Conversely,
a defendant’s failure to assert a violation of his due process rights will not foreclose
his claim, but does weigh against him. Id. (citing State v. Flowers, 347 N.C. 1, 28,
489 S.E.2d 391, 407 (1997)). Nothing in the record before us indicates that Defendant
asserted his right to a speedy appeal prior to his brief on appeal. Defendant states in
his brief that he “has frequently communicated with undersigned counsel and has
repeatedly expressed his desire that his appeal be pursued.” However, his failure to
formally and affirmatively assert his speedy appeal right weighs against his
contention that he has been unconstitutionally denied a speedy appeal. See State v.
Webster, 337 N.C. 674, 680, 447 S.E.2d 349, 352 (1994).
d. Prejudice to Defendant
¶ 45 Finally, we consider Defendant’s allegations of prejudice in light of the
interests protected by the right to a speedy appeal: “(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit
the possibility that the defense will be impaired.” China, 150 N.C. App. at 475, 564
S.E.2d at 69 (citation omitted). “Courts will not presume that a delay in prosecution
has prejudiced the accused. The defendant has the burden of proving the fourth STATE V. NEAL
factor.” State v. Hughes, 54 N.C. App. 117, 120, 282 S.E.2d 504, 506 (1981) (citations
omitted).
¶ 46 Concerning the first two interests, Defendant asserts that his incarceration
during the Covid-19 pandemic was “uniquely stressful and oppressive.” Concerning
the third interest, Defendant argues that the delay diminished his memory of the
events and hindered his ability to correct mistakes in the transcript, thereby
prejudicing his appeal.
¶ 47 Defendant’s “[g]eneral allegations of faded memory are not sufficient to show
prejudice resulting from delay[.]” State v. Heath, 77 N.C. App. 264, 269, 335 S.E.2d
350, 353 (1985), rev’d on other grounds, 316 N.C. 337, 341 S.E.2d 565 (1986).
Defendant has failed to show that evidence lost by delay was significant and would
have been beneficial. See State v. Jones, 98 N.C. App. 342, 344, 391 S.E.2d 52, 54-55
(1990) (“[T]he test for prejudice is whether significant evidence or testimony that
would have been helpful to the defense was lost due to delay[.]”). Further, “the
transcript eventually prepared and made available to the parties was adequate to
allow full development of appeal issues.” Hammonds, 141 N.C. App. at 165, 541
S.E.2d at 176. Acknowledging Defendant’s allegation of stress caused by
incarceration during the pandemic, Defendant has failed to show prejudice resulting
from the delay. STATE V. NEAL
¶ 48 After balancing the four factors set out above, we hold that the delay in
processing Defendant’s appeal did not rise to the level of a due process violation.
III. Conclusion
The trial court did not err or plainly err in its instruction on constructive
possession, and did not plainly err in its instruction on attempted first-degree
murder. Further, Defendant’s Constitutional due process rights were not violated by
the court reporter’s delay in producing the trial transcript.
NO ERROR; NO PLAIN ERROR.
Chief Judge STROUD and Judge DIETZ concur.