State v. Johnson , 3 N.C. App. 420 ( 1969 )

165 S.E.2d 27 (1969) 3 N.C. App. 420

STATE of North Carolina
v.
Charles E. JOHNSON, alias Charles E. Jones, and Herman Nathaniel McCoy.

No. 687SC236.

Court of Appeals of North Carolina.

January 15, 1969.

Atty. Gen. T. W. Bruton by Deputy Atty. Gen. Ralph Moody for the State.

Cleveland P. Cherry, Rocky Mount, for defendant Charles E. Johnson, alias Charles E. Jones, appellant.

R. C. Boddie, Rocky Mount, for defendant Herman Nathaniel McCoy, appellant.

MORRIS, Judge.

Defendants contend that the trial court erred in admitting over their objection, evidence with respect to statements made by defendants to the Nash County officers when they talked with defendants in the Wilson County jail on 1 November 1963. At that time, defendants were not advised that they had a right to have an attorney present during the interrogation and that they had a right to an appointed attorney if they were indigent. This, defendants argue, violates the guidelines of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, and that since this interrogation took place prior to Miranda and the trial began subsequent to Miranda, the statements are inadmissible. The North Carolina Supreme Court, in State v. Jessie B. Lewis, 274 N.C. 438, 164 S.E.2d 177, North Carolina Supreme Court, filed 20 November 1968, in an opinion written by Justice Bobbitt, said:

"In our view, Miranda should not and does not apply to confessions obtained prior to that decision, when offered at trials or retrials beginning thereafter, where law enforcement officers relied upon and complied with constitutional standards applicable at the time the confessions were made."

There is no contention that the law enforcement officers in any way failed to comply with constitutional standards applicable at that time. On the contrary, the evidence is plenary that they did. The court did not err in admitting the statements complained of.

Defendants further contend that the court committed error in denying their motions to dismiss for that the constitutional guaranty of a speedy trial had been denied them.

The fundamental law of this State grants to every accused the right to a speedy trial. In State v. Lowry and State v. Mallory, 263 N.C. 536, 542, 139 S.E.2d 870, 894, the Court quoted the following from State v. Patton, 260 N.C. 359, 132 S.E.2d 891:

"The right of a person formally accused of crime to a speedy and impartial trial has been guaranteed to Englishmen since Magna Carta, and the principle is embodied in the Sixth Amendment to the Federal Constitution, and in some form is contained in our State Constitution and in that of most, if not all, of our sister states, or, if not, in statutory provisions. State v. Webb, 155 N.C. 426, 70 S.E. 1064 * * *.

G.S. 15-10, entitled ``Speedy trial or discharge on commitment for felony,' requires simply that under certain circumstances ``the prisoner be discharged from custody and not that he go quit of further prosecution.' State v. Webb, supra.

The Court said in Beavers v. Haubert, 198 U.S. 77, 25 S. Ct. 573, 576, 49 L. Ed. 950, 954: ``The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.'

The constitutional right to a speedy trial is designed to prohibit arbitrary and oppressive delays which might be caused by the fault of the prosecution. Pollard v. United States, 352 U.S. 354, 77 S. Ct. 481, 1 L. Ed. 2d 393; State v. Hadley, Mo., 249 S.W.2d 857. The right to a speedy trial on the merits is not designed as a sword for defendant's escape, but a shield for his protection."

There is no statutory formula dictating the time within which trial must be had. There are, however, two statutes, G.S. § 15-10 and G.S. § 15-10.2, neither of which is applicable here, relating to the time within which a trial must be had. G.S. § 15-10 entitled "Speedy trial or discharge on commitment for felony" is for the protection of persons held without bail. G.S. § 15-10.2 entitled, inter alia, "Mandatory disposition of detainers—request for final disposition of charges" requires the solicitor to try a prisoner who has a detainer lodged against him and who is serving a sentence in the State prison within eight months after the prisoner shall have requested a trial as provided therein. In this case the detainer was lodged against the defendants on 29 September 1967, the defendants did not request a trial as provided in G.S. § 15-10.2, and were tried at 25 March 1968 Session of Superior Court of Nash County.

Whether an accused has been' granted or denied a speedy trial is to be determined in the light of the facts and circumstances of each particular case, and, absent a statutory standard, what is a fair and reasonable time is within the discretion of the court. State v. Lowry, supra, 22A C.J.S. Criminal Law § 467(4). The fact that the accused is in prison serving time for another offense does not militate against his right to a speedy trial. State v. Hollars, 266 N.C. 45, 145 S.E.2d 309.

In State v. Hollars, supra, Justice Sharp reiterated the four generally accepted interrelated factors to be considered together in reaching a determination of whether the denial of a speedy trial assumes due process proportions. They are the length of the delay, the reason for the delay, the prejudice to the defendant, and waiver by defendant.

Applying these factors to the facts of this case, we are constrained to say that there has been no denial of constitutional protections.

The time elapsing here from the time the warrant was issued to time of trial was 4 years and 4 months. At first blush this appears to be too long. However, we think there are other factors to be considered. From the record, the warrant was not served on the defendants, although it was read to each of them, and there can be no doubt but that they knew of the real probability of being required to answer to charges in Nash County. Neither of the defendants ever requested that he be brought to trial in Nash County. North Carolina stands with the majority of the states in holding that an accused waives his right to a speedy trial unless he demands it. State v. Hollars, supra. See also 57 Columbia Law Review, p. 846, where it is pointed out that both the State and the accused should desire a speedy trial. Both want to preserve the means of proof of the case. From the standpoint of the State, an old case is more vulnerable to cross-examination and less easily persuades the jury. The accused is anxious to escape the public suspicion created by the accusation and the mental strain of standing accused. The right to a speedy trial, however, is the personal right of the accused, and it is not designed as a sword for his escape, "but rather as a shield for his protection." 57 Col.L.Rev., supra, at page 853.

It appears abundantly clear that to hold that these defendants are entitled to dismissal of this charge for lack of a speedy trial would be allowing the principle of their right to a speedy trial to be used as a sword for their escape.

On 1 November 1963, defendants confessed to the crime for which they were tried and convicted by a jury. They were afforded all the constitutional guaranties. There is not a scintilla of evidence of coercion or threat or abuse. There is no evidence in this record that any witness in their behalf could not be located for their trial. There is not even any evidence that they requested any witness to testify for them. Defendants suggest that they are prejudiced by reason of a possibility that the trial court might have allowed their sentence for this offense to run concurrently with sentences for other offenses to which they pled guilty. That is a matter in the sound discretion of the trial court.

The Nash County Sheriff testified that he could have gotten an indictment against these defendants at December 1963 Session, but did not because he wanted to find, if possible, a third person who he thought was implicated in the crime. He was not able to find that person and presented the charge to the grand jury at November 1967 Session when a true bill was returned. Defendants were not tried at the next session of court because of a request for continuance, for good cause, by defendants' court-appointed counsel. They were tried at the March Session, which was the next session of court at which they could be tried.

We do not condone the practice of long delays between the time of commission of a crime and service of the warrant or obtaining an indictment. We recognize that under some circumstances delaying the indictment and the trial on one offense after another, until time is served on each consecutively can be a denial of speedy trial. No particular intellectual gymnastics are required to see that if such a procedure is intentionally designed to extend indefinitely the punishment of an accused and postpone his liberty, his constitutional rights may be violated. Neither do we condone the filing of a detainer prior to the service of a warrant or obtaining of a true bill in violation of G.S. § 15-10.

We are here concerned only with the question of whether these defendants have been deprived of a constitutional guaranty. We find that under the circumstances of this case, they have not been.

Affirmed.

MALLARD, C. J., and CAMPBELL, J., concur.