Defendant's sole argument on appeal is that the trial court
erred by denying his motion to dismiss, asserting that a fifteen
and a third of a month delay between indictment and the trial
violated his right to a speedy trial. Defendant argues that the
State's reason for the delay, inability to locate witnesses, could
have been prevented had the State maintained contact with the
witnesses. At a minimum, defendant contends that the State should
have known that the witnesses were missing and could have begun a
good faith effort to find them much sooner. Defendant notes that
he made a
pro se claim for a speedy trial in December 1999. His
trial did not begin until April 2000. Defendant concedes that he
is unable to show any specific prejudice from the delay, but argues
that the “excessive delay presumptively compromises the reliability
of a trial in ways that neither party can prove or, for that
matter, identify.”
Doggett v. United States, 505 U.S. 647, 655,
120 L. Ed. 2d 520, 531 (1992). Accordingly, defendant argues that
the trial court erred and the judgment should be vacated and the
charges dismissed. After careful review of the record, briefs and
contentions of the parties, we find no error.
In considering whether a defendant's constitutional right to
a speedy trial has been violated, the Court must balance four
factors: (1) the length of the delay, (2) the reason
for the delay, (3) the defendant's assertion
of the right to a speedy trial, and (4)
whether the defendant has been prejudiced by
the delay.
State v. Lundy, 135 N.C. App. 13, 19, 519 S.E.2d 73, 79
(1999)(citing
Barker v. Wingo, 407 U.S. 514, 530-32, 33 L. Ed. 2d
101, 116-18 (1972)),
disc. review denied, 351 N.C. 365, 542 S.E.2d
651 (2000). The issue of whether defendant's right to a speedy
trial has been violated is not resolved by any one factor.
Instead, “the factors must be examined as a whole.”
Id.
“The first factor, the length of the delay, is essentially a
triggering device, as it does not determine whether a
constitutional violation has occurred, but may, if the delay is
substantial, trigger the
Barker inquiry.”
Lundy, 135 N.C. App. at
19, 519 S.E.2d at 79 (citing
Barker, 407 U.S. at 530, 33 L. Ed. 2d
at 117). “'Viewed as such, its significance in the balance is not
great.'”
State v. Avery, 95 N.C. App. 572, 577, 383 S.E.2d 224,
226 (1989)(quoting
State v. Hill, 287 N.C. 207, 211, 214 S.E.2d 67,
71 (1975),
disc. review denied, 326 N.C. 51, 389 S.E.2d 96 (1990).
In the case
sub judice, the delay was fifteen months from the date
of indictment to the date of trial. This Court has found longer
delays not to be clearly inordinate.
See id.
Even assuming
arguendo that the delay was inordinate, the
remaining factors do not weigh in defendant's favor. First,
“defendant bears the burden of proving that the delay was brought
about by neglect or willfulness on the part of the prosecution.”
Lundy, 135 N.C. App. at 20, 519 S.E.2d at 79. Defendant has presented no evidence to meet his burden. In
fact, the trial court noted that some of the delay was due in part
to counsel change by defendant. Initially represented by the
public defender, defendant later retained his own counsel, who
withdrew in August 1999. The public defender was reappointed to
represent defendant following counsel's withdrawal. The record
further reveals that the State wished to proceed in November 1999,
however, the State was unable to locate certain witnesses until two
weeks prior to trial. There is no evidence of any neglect upon the
part of the State in locating these witnesses. Second, defendant
attempted to assert his right to a speedy trial in a
pro se motion
filed in December 1999. However, the
pro se motion was improper
because defendant was already represented by counsel.
See Hamlin
v. Hamlin, 302 N.C. 478, 482, 276 S.E.2d 381, 384-85 (1981)(“[A]
party has no right to 'appear' both by himself and by counsel.”).
Defendant's counsel brought forward the speedy trial claim in March
2000, and the trial was held but a few weeks later. “While,
'[d]efendant's failure to assert his right to a speedy trial sooner
in the process does not foreclose his speedy trial claim, [it] does
weigh against his contention that he has been denied his
constitutional right to a speedy trial.'"
Lundy, 135 N.C. App. at
20, 519 S.E.2d at 80 (quoting
State v. Flowers, 347 N.C. 1, 28, 489
S.E.2d 391, 407 (1997),
cert. denied, 522 U.S. 1135, 140 L. Ed. 2d
150 (1998)).
With regard to the issue of prejudice, the objectives of the
right to a speedy trial are: “'(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.'” The most serious of these aims is
the last, “because the inability of a
defendant to adequately prepare his case skews
the fairness of the entire system.”
Lundy, 135 N.C. App. at 21, 519 S.E.2d at 80 (citations omitted).
Here, defendant has shown no specific prejudice from the delay,
making only general allegations that the “excessive delay”
presumptively compromised his trial. Balancing the
Barker factors,
we conclude that defendant was not denied his constitutional right
to a speedy trial, and the trial court did not err in denying his
motion to dismiss. Accordingly, we find no error.
No error.
Chief Judge EAGLES and Judge MCCULLOUGH concur.
Report per Rule 30(e).
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