State v. Davis , 46 N.C. App. 778 ( 1980 )

266 S.E.2d 20 (1980)

STATE of North Carolina
v.
Anderson DAVIS.

No. 7926SC1153.

Court of Appeals of North Carolina.

May 20, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. J. Michael Carpenter, Raleigh, for the State.

Asst. Public Defender, 26th Judicial District, David A. Graham, Charlotte, for defendant.

HARRY C. MARTIN, Judge.

Defendant asserts only the contention that his motion to dismiss the charges for unreasonable preindictment delay should have been allowed. Defendant failed to file objections or exceptions to any of the findings of fact or conclusions of law made by the trial judge. He only excepted to the entry of the order denying his motion. Therefore, the findings of fact are deemed to be supported by the evidence and are conclusive upon appeal. There remains only the question whether the findings support the order entered and whether error appears in the order as a matter of law. State v. Raynor, 235 N.C. 184, 69 S.E.2d 155 (1952); State v. Melson, 15 N.C.App. 586, 190 S.E.2d 296 (1972).

Defendant contends he suffered actual and substantial prejudice from the preindictment delay, relying upon State v. Dietz, 289 N.C. 488, 223 S.E.2d 357 (1976), and State v. Herring, 33 N.C.App. 382, 235 S.E.2d 88 (1977). He concedes that the state did not intentionally delay the indictment in order to impair defendant's ability to defend himself.

There appears to be some dissonance over whether the defendant must carry a dual or single burden in order to sustain his motion to dismiss. Defendant contends that North Carolina has adopted a single-burden test; if defendant proves either intentional delay on the part of the state in order to impair defendant's ability to defend himself or actual and substantial prejudice from the preindictment delay, he is entitled to a dismissal of the charges. Defendant argues that Dietz and Herring are authority for the single-burden test. The state insists defendant must carry both burdens in order to secure a dismissal of the charges, relying upon United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752, rehearing denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977).

We hold that the Supreme Court of the United States has answered this issue in Lovasco. This case involved a preindictment delay of eighteen months. The Court held the Speedy Trial Clause of the Sixth Amendment was not applicable, as it applied only to delay following indictment, information or arrest. Defendant's remedy is pursuant to the due process clause of the Fifth and Fourteenth Amendments. Defendant argued that due process bars prosecution whenever a defendant suffers prejudice as a result of preindictment delay, the same position defendant Davis insists upon. The Supreme Court held:

Thus Marion [United States v. Marion, supra] makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.

431 U.S. at 790, 97 S.Ct. at 2048-2049, 52 L.Ed.2d at 759. In Lovasco, the preindictment delay was the result of investigation by the government before seeking indictments. The Court held that "investigative delay is fundamentally unlike delay undertaken by the Government solely ``to gain tactical advantage over the accused.'" 431 U.S. at 795, 97 S.Ct. at 2051, 52 L.Ed.2d at 762. Further, the Court held that "to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time." 431 U.S. at 796, 97 S.Ct. at 2052, 52 L.Ed.2d at 763.

We note that both Dietz and Herring were decided prior to Lovasco: Dietz on 6 April 1976, Herring on 1 June 1977, and Lovasco on 9 June 1977. Nor does Dietz or Herring contain the definitive holding suggested by defendant Davis.

The reason for the delay of Mississippi Slim's arrest and indictment was to allow the continued use of the undercover informant in the narcotics investigation and to assure the safety of the officers and others engaged in the work. North Carolina had experienced a serious incident involving the safety of undercover agents in a similar narcotics investigation. The Court in Lovasco, footnote 19, quotes from Professor Amsterdam, Speedy Criminal Trial: Rights and Remedies, 27 Stan.L.Rev. 525, 527 (1975), as reason for noninvestigative delay the following: "``[P]roof of the offense may depend upon the testimony of an undercover informer who maintains his "cover" for a period of time before surfacing to file charges against one or more persons with whom he has dealt while disguised.'" This reasoning is equally true where the witness is a state agent working undercover, rather than an informant.

We hold that for defendant to carry the burden on his motion to dismiss for preindictment delay violating his due process rights pursuant to the Fifth and Fourteenth Amendments, he must show both actual and substantial prejudice from the preindictment delay and that the delay was intentional on the part of the state in order to impair defendant's ability to defend himself or to gain tactical advantage over the defendant. Lovasco, supra.

Here, defendant Davis admittedly relies solely upon the claim that he suffered actual and substantial prejudice from the delay and does not attempt to show the nature or reason for the preindictment delay. It necessarily follows that defendant's motion must fail and the trial court correctly ruled in denying defendant's motion to dismiss. The order is supported by the court's findings and no error of law appears.

No error.

VAUGHN and CLARK, JJ., concur.