State v. Spivey

579 S.E.2d 251, 357 N.C. 114, 2003 N.C. LEXIS 422

Opinions

WAINWRIGHT, Justice.

On 18 October 1994, Henry Bernard Spivey, Jr. (defendant), was arrested for the murder of Jermaine Morris. The record reveals that on 17 October 1994, the previous day, officers were dispatched to a housing project in Lumberton, North Carolina, where they found Morris dead from numerous gunshot wounds. An autopsy showed Morris had been shot eleven times, mostly in the chest and stomach. It appears that defendant turned himself in and told authorities that he shot Morris.

On the day of the murder, defendant and Morris had a conflict over a woman named Samantha Fields, and defendant began shooting Morris when Morris struck him. Nathaniel Spivey, defendant’s thirteen-year-old brother, also joined in shooting Morris. Nathaniel was charged as a juvenile but was bound over to superior court for trial as an adult. He pled guilty to second-degree murder and received a minimum sentence of 135 months’ to a maximum sentence of 171 months’ imprisonment.

On 27 November 1995, while represented by counsel, defendant filed a handwritten, pro se “Motion Requesting a Prompt and Speedy Trial.” In his pro se motion, defendant stated: “[t]hat as of this date and on, defendant objects to any and all (including those acquiescued [sic] to by the Court Appointed Counsel) continuance’s [sic].” Nearly twenty-one months later, on 8 August 1997, defendant’s court-appointed attorneys filed a motion to dismiss for lack of a speedy trial.

Defendant’s motion to dismiss for lack of a speedy trial was initially heard before the Honorable Gregory Weeks on 29 April 1998. The trial court heard arguments from counsel and then instructed the parties that it needed further briefs and documentation from the court records and continued the hearing to a later date.

A second hearing was held on defendant’s motion to dismiss for lack of a speedy trial before the Honorable Jack Thompson on 26 April 1999. At this hearing, the State stipulated that defendant had been in jail since 18 October 1994 (approximately four and one-half years). The State further stipulated to statements made by two potential witnesses. The State informed the trial court that one of the witnesses, Fred Smith, was incarcerated in the Department of Correction. The State informed the trial court that the other witness, Samantha Fields, had changed addresses two or three times but that the State was in the process of trying to find her. In addition, pursuant to Judge Weeks’ order, the State presented to the court documentation of murder cases tried between defendant’s indictment and 19 April 1999. The State then provided defendant with a copy of this list and copies of the judgments. Following the hearings before the Honorable Gregory Weeks and the Honorable Jack Thompson, Judge Thompson announced in open court on 26 April 1999 that he was denying defendant’s motion to dismiss for lack of a speedy trial on the grounds that there was not a sufficient showing by the defendant that his rights to a speedy trial were denied. Judge Thompson’s decision is later reflected in a written order filed on 24 June 1999.

Defendant’s case was subsequently called for trial on 3 May 1999. Defendant tendered a plea of guilty to second-degree murder. During a plea colloquy with the trial court, defendant acknowledged understanding that, by pleading guilty, he was giving up his constitutional rights relating to trial by jury. The plea was pursuant to a plea arrangement providing that defendant would be sentenced to a prison term of a minimum of 135 months’ to a maximum of 171 months’ imprisonment and that defendant was “reserving] the right to appeal the denial of his motion to dismiss for lack of a speedy trial.”

On 6 May 1999, defendant filed notice of appeal to the Court of Appeals. In an opinion filed 7 May 2002, the Court of Appeals granted certiorari to review the trial court’s denial of defendant’s motion to dismiss for lack of a speedy trial. State v. Spivey, 150 N.C. App. 189, 189-90, 563 S.E.2d 12, 12 (2002). Upon review, the majority in the Court of Appeals concluded that State v. Hammonds, 141 N.C. App. , 541 S.E.2d 166 (2000), aff’d per curiam, 354 N.C. 353, 554 S.E.2d 645 (2001), cert. denied, 536 U.S. 907, 153 L. Ed. 2d 184 (2002) was controlling. Spivey, 150 N.C. App. at 190, 563 S.E.2d at 12. Hammonds and the present case originated in Robeson County. Id. at 191, 563 S.E.2d at 13. The Court of Appeals noted that “[i]n Hammonds, the defendant argued that the trial court erred by denying his motion to dismiss where there was a pretrial delay of four and one-half years.” Id. at 190, 563 S.E.2d at 12. In the present case, the Court of Appeals further quoted the following language from Hammonds:

“Defendant argues that the delay between his arrest and trial was caused in part by the State’s ‘laggard performance.’ The record, however, reveals that the local docket was congested with capital cases. The trial court described it as ‘chopped the block [sic] with capital cases. They’re trying two at a time and just one right after the other, and there are only so many that can be tried.’ ‘Our courts have consistently recognized congestion of criminal court dockets as a valid justification for delay.’ State v. Hughes, 54 N.C. App. 117, 119, 282 S.E.2d 504, 506 (1981) (citations omitted) (finding defendant failed to meet his burden where delay was result of backlog of cases). Indeed, ‘[b]oth crowded dockets and lack of judges or lawyers, and other factors, make some delays inevitable.’ State v. Brown, 282 N.C. 117, 124, 191 S.E.2d 659, 664 (1972) (citation omitted). Accordingly, in assessing defendant’s speedy trial claim, we see no indication that court resources were either negligently or purposefully underutilized.”

Spivey, 150 N.C. App. at 190, 563 S.E.2d at 12-13 (quoting Hammonds, 141 N.C. App. at 160-61, 541 S.E.2d at 173) (alterations in original).

The Court of Appeals held that “[t]he State in this case made a showing[,] as it did in Hammonds, that the dockets were clogged with murder cases and this caused an unavoidable backlog of cases.” Id. at 191, 563 S.E.2d at 13. The dissenting judge concluded that the trial court abused its discretion in denying defendant’s motion to dismiss for lack of a speedy trial. Id. (Timmons-Goodson, J., dissenting). For the reasons discussed herein, we affirm the majority decision of the Court of Appeals.

The sole issue in this case is whether the Court of Appeals correctly affirmed the trial court’s denial of defendant’s motion to dis miss for lack of a speedy trial. Defendant argues that, because over four and one-half years elapsed between his arrest and trial, he was denied his constitutional right to a speedy trial.

This Court has stated:

The right to a speedy trial is different from other constitutional rights in that, among other things, deprivation of a speedy trial does not per se prejudice the ability of the accused to defend himself; it is impossible to determine precisely when the right has been denied; it cannot be said precisely how long a delay is too long; there is no fixed point when the accused is put to a choice of either exercising or waiving his right to a speedy trial; and dismissal of the charges is the only possible remedy for denial of the right to a speedy trial.

State v. McKoy, 294 N.C. 134, 140, 240 S.E.2d 383, 388 (1978).

In Barker v. Wingo, the United States Supreme Court identified four factors that “courts should assess in determining whether a particular defendant has been deprived of his right” to a speedy trial under the federal Constitution. 407 U.S. 514, 530, 33 L. Ed. 2d 101, 117 (1972). These factors are: (i) the length of delay, (ii) the reason for delay, (iii) the defendant’s assertion of his right to a speedy trial, and (iv) whether the defendant suffered prejudice as a result of the delay. Id.; see also State v. Flowers, 347 N.C. 1, 27, 489 S.E.2d 391, 406 (1997), cert. denied, 522 U.S. 1135, 140 L. Ed. 2d 150 (1998). “We follow the same analysis when reviewing such claims under Article I, Section 18 of the North Carolina Constitution.” State v. Grooms, 353 N.C. 50, 62, 540 S.E.2d 713, 721 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001).

This Court must consider the factors in light of the balancing test set out by the United States Supreme Court as follows:

We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the constitution.

Barker, 407 U.S. at 533, 33 L. Ed. 2d at 118-19. With these principles in mind, we now balance the four factors based on the evidence in this case.

First, the length of the delay is not per se determinative of whether defendant has been deprived of his right to a speedy trial. See State v. Webster, 337 N.C. 674, 678, 447 S.E.2d 349, 351 (1994). The United States Supreme Court has noted that “lower 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, 120 L. Ed. 2d 520, 528 n.1 (1992). However, “ ‘presumptive prejudice’ does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker inquiry.” Id. In this case, the length of delay was approximately four and one-half years, which is clearly enough to trigger examination of the other factors.

Second, defendant has the burden of showing that the delay was caused by the neglect or willfulness of the prosecution. See Webster, 337 N.C. at 679, 447 S.E.2d at 351. Only after the defendant has carried his burden of proof by offering prima facie evidence showing that the delay was caused by the neglect or willfulness of the prosecution must the State offer evidence fully explaining the reasons for the delay and sufficient to rebut the prima facie evidence. McKoy, 294 N.C. at 143, 240 S.E.2d at 390. This Court has stated:

The constitutional guarantee does not outlaw good-faith delays which are reasonably necessary for the State to prepare and present its case.... Neither a defendant nor the State can be protected from prejudice which is an incident of ordinary or reasonably necessary delay. The proscription is against purposeful or oppressive delays and those which the prosecution could have avoided by reasonable effort.

State v. Johnson, 275 N.C. 264, 273, 167 S.E.2d 274, 280 (1969) (citations omitted).

In the present case, the record does not reveal that the delay resulted from willful misconduct by the State. To the contrary, the record shows numerous causes for the delay. This case, like Hammonds, originated in Robeson County during a substantially similar time frame. The State made a showing in this case, as it did in Hammonds, that the dockets were clogged with murder cases. In fact, Hammonds was one of the cases tried in Robeson County during defendant’s pretrial incarceration.

The State, in explaining the delay in the present case, made the following showing: Seventy-three first-degree murder cases were pending in Robeson County when defendant was indicted. These seventy-three first-degree murder cases were also pending when the district attorney took office on 1 November 1994. Of these seventy-three first-degree murder cases, only five, including defendant’s case, had not been disposed of by 29 April 1998. Four of these five remaining cases predate defendant’s case. The district attorney has dealt with the cases in chronological order, beginning with the oldest. Defendant’s case was tried based on this policy. In 1995, the double homicide trial of defendant John Clark, Jr. was held, and the sentencing phase of that trial lasted for thirteen to seventeen weeks. During the pendency of defendant’s case, numerous capital murder trials were held in Robeson County including the trial of Daniel Andre Greene, who was the defendant in the highly publicized capital murder case involving the death of Michael Jordan’s father, and which case was designated “exceptional.” During one point in defendant’s pretrial incarceration, there were only two courtrooms available in Robeson County because of courthouse renovation, and the Clark and Greene cases were held in these courtrooms. Greene’s trial began in November 1995, and the sentencing proceeding in that case concluded approximately nine weeks into 1996. In 1996, the Robeson County district attorney’s office tried fifteen first-degree murder cases, thirteen of which were tried capitally and all fifteen of which went to juries for a verdict. In 1997, the district attorney’s office prosecuted twelve first-degree murder cases, and all twelve went to juries for a verdict. In 1997, the district attorney’s office tried sixty-seven felony jury trials and twenty-three or twenty-four misdemeanor jury trials. From 1 July 1997 through 31 March 1998, a total of twenty-nine homicide cases were disposed of by the district attorney’s office. Defendant’s counsel was involved during the pendency of defendant’s case in a number of murder cases that predated defendant’s. Ninety-three murder cases in Robeson County were disposed of while defendant’s case was pending. Accordingly, the delay in the present case is not particularly a matter of court congestion. The delay resulted from a combination of the circumstances cited above. See Brown, 282 N.C. at 124, 191 S.E.2d at 664 (holding that “crowded dockets and lack of judges or lawyers, and other factors, make some delays inevitable”).

This Court has also recognized “that there may be selectivity in prosecutions and that the exercise of this prosecutorial prerogative does not reach constitutional proportion unless there be a showing that the selection was deliberately based upon ‘an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” State v. Cherry, 298 N.C. 86, 103, 257 S.E.2d 551, 562 (1979) (quoting Oyler v. Boles, 368 U.S. 448, 456, 7 L. Ed. 2d 446, 453 (1962)), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 796 (1980). In the present case, defendant has failed to show that the State, by trying some murder cases that may have postdated defendant’s, made these selections based on some unjustifiable standard. The complexities of a capital trial versus the disposal of noncapital trials and pleas justify the disposition of some noncapital cases before capital cases. Defendant has failed to present any evidence that the delay was caused by the State’s neglect or willfulness, and we see no indication that court resources were either negligently or purposefully underutilized. Indeed, defendant relies solely on the length of delay and ignores the balancing of other factors. In light of these reasons, we conclude that the delay was caused by neutral factors and that defendant failed to carry his burden to show delay caused by the State’s neglect or willfulness.

Third, defendant’s pro se assertion of his right to a speedy trial is not determinative of whether he was denied the right. When defendant filed his pro se motion for a speedy trial on 27 November 1995, he was represented by counsel. Although defendant’s pro se motion was filed more than a year after his arrest, his assertion of the right to a speedy trial was made in violation of the rule that a defendant does not have the right to be represented by counsel and to also appear pro se. State v. Thomas, 346 N.C. 135, 138, 484 S.E.2d 368, 370 (1997). Defendant’s counsel filed a motion for a speedy trial on behalf of defendant on 8 August 1997, almost three years after defendant’s arrest. This Court has recently held that “[hjaving elected for representation by appointed defense counsel, defendant cannot also file motions on his own behalf or attempt to represent himself.” Grooms, 353 N.C. at 61, 540 S.E.2d at 721. Defendant does not have the right to appear both by himself and by counsel. Id.; see also N.C.G.S. § 1-11 (2001). Assuming arguendo that defendant properly asserted his rights through his pro se motion, this assertion of the right, by itself, did not entitle him to relief. See Barker, 407 U.S. at 533, 33 L. Ed. 2d at 118 (holding that none of the factors alone is sufficient to establish a violation and that all must be considered together).

Fourth, in considering whether a defendant has been prejudiced because of a delay, this Court has noted that a speedy trial serves “ ‘(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.’ ” Webster, 337 N.C. at 680-81, 447 S.E.2d at 352 (quoting Barker, 407 U.S. at 532, 33 L. Ed. 2d at 118).

A defendant must show actual, substantial prejudice. State v. Goldman, 311 N.C. 338, 346, 317 S.E.2d 361, 366 (1984) (holding that “in the absence of a showing of actual prejudice, . . . our courts should consider dismissal in cases of serious crimes with extreme caution”). Defendant has failed to show that he suffered significant prejudice as a result of the delay. Defendant contends that two material witnesses, Fred Smith and Samantha Fields, could not be located. These witnesses were either available or could have been located with diligent effort at the time the case was called for trial.

At the 26 April 1999 hearing, the State informed defendant that Fred Smith was incarcerated and available. As for Samantha Fields, it is apparent that the State had not been able to find her at the time of the 26 April 1999 hearing. However, a subpoena included in the appendix to defendant’s brief shows that it was served on Fields on 30 April 1999. The record shows that, pursuant to the subpoena, Fields was interviewed by defendant and was present when defendant’s case was called for trial on 3 May 1999. Therefore, defendant could have proceeded to trial and presented the witnesses if he had chosen to do so. It was the State that sought Smith and Fields as primary witnesses. Defendant has failed to show that his defense was impaired in any way by the delay.

When the case was called for trial on 3 May 1999, defendant tendered a plea of guilty to second-degree murder. After the trial court engaged in a plea colloquy with defendant and the State offered a factual basis, one of defendant’s attorneys expressed disagreement with the factual basis, told the trial court that Samantha Fields was present, and explained that Fields was giving a version of the offense that might raise self-defense as an option for defendant. The attorney then explained why defendant had nevertheless decided to plead guilty to second-degree murder: “[T]here is the possibility, even with the contention there may be a viable self-defense, there is a chance that the jury may reject that. So, that’s why we feel it’s in our best interest to take the plea that has been offered.” Defendant chose to plead guilty to second-degree murder rather than be tried before a jury that might find him guilty of first-degree murder, an offense for which the State was seeking the death penalty. Defendant chose to avoid that possibility by pleading guilty to a lesser included offense.

After balancing the four factors set forth above, we hold that defendant’s constitutional right to a speedy trial has not been violated. Accordingly, we affirm the decision of the Court of Appeals.

AFFIRMED.