State v. Roberts ( 1973 )

197 S.E.2d 54 (1973) 18 N.C. App. 388

STATE of North Carolina
v.
James C. ROBERTS.

No. 7314SC133.

Court of Appeals of North Carolina.

June 13, 1973. Certiorari Denied and Appeal Dismissed August 31, 1973.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Rafford E. Jones, Raleigh, for the State.

Loflin, Anderson, Loflin & Goldsmith by Thomas F. Loflin, III, Durham, for defendant.

Certiorari Denied and Appeal Dismissed by Supreme Court August 31, 1973.

BROCK, Judge.

Defendant's motion for a preliminary hearing was properly denied.

Defendant excepts to the court's denial of his motion to dismiss the indictment for lack of a speedy trial. Before entering a plea on the bill of indictment, defendant moved to dismiss the indictment on the grounds that defendant was not afforded a speedy trial in derogation of his Sixth Amendment rights under the United States Constitution. Prior to the case being placed on the calendar, defendant had made this motion in written form and filed it with the court. The court denied the motion without affording defendant an opportunity to make an evidentiary showing. Defendant's counsel then specifically requested the court to make findings of fact. The court refused to make any findings of fact in regard to the motion.

Whether defendant has been denied the right to a speedy trial is a matter to be determined by the trial judge in light of the circumstances of each case. State v. Spencer, 281 N.C. 121, 187 S.E.2d 779. A claim that a defendant has been denied his right to a speedy trial is subject to a balancing test, in which the conduct of both the prosecutor and defendant are weighed. Some of the factors which should be assessed in determining whether a particular defendant has been deprived of his right to a speedy trial are (1) length of the delay, (2) the reason for the delay, (3) the defendant's assertion or nonassertion of his right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).

From the record before us, it is impossible to tell whether the State caused the delay of a year in getting defendant's case to trial; and, if so, whether such delay was justified. It is likewise impossible to tell whether the delay was caused by defendant's conduct. Also, it is impossible to determine whether prejudice has resulted to defendant from the delay.

We do not propose that the trial judge must hold an evidentiary hearing each time a defendant contends that he has been denied a speedy trial. Nor are we suggesting that defendant was denied a speedy trial in this case. However, where the record shows a substantial delay and does not show the cause therefor, the trial judge should hold a sufficient hearing to allow him to determine the facts and balance the equities in accordance with Barker v. Wingo, supra.

Defendant assigns as error that the trial judge permitted Kathy Sue Cates, the eight-year-old victim of the alleged assault and kidnapping, to testify. Defendant argues that the court should have heard testimony of others with relation to the child's competency. There are, no doubt, situations in which the testimony of parents, teachers, and others might prove helpful to the trial judge in making his determination. However, the competency of a child to testify as a witness in a case is a matter resting in the sound discretion of the trial judge. State v. Bowden, 272 N. C. 481, 158 S.E.2d 493. An accurate determination of the moral and religious sensitivity of the child can be made by the trial judge through his personal observation while the child is being questioned. Absent a showing of abuse of discretion, the ruling of the trial judge will not ordinarily be disturbed. This assignment of error is overruled.

Defendant assigns as error that the trial judge denied his motion for nonsuit on the kidnapping charge. Defendant relies heavily upon State v. Dix, 282 N.C. 490, 193 S.E.2d 897. In Dix the "asportation" of the jailer from one section of the jail to another was only incidental to defendant's purpose of aiding the escape of prisoners. As pointed out in the opinion in Dix: "It had no other significance and created no risks to Crowder which were not inherent in the escape defendant engineered."

In the case before us now the child was being dragged by an adult from the playground to a building. The inference is strong that if defendant had not been stopped by the child's father, defendant would have dragged the child into the building and out of the sight and sound of her friends and family. The mere fact that defendant was frustrated by an alert and outraged father does not change the nature of the offense he was committing. It surely cannot reasonably be said that the dragging of the child from the playground was an incident of some lesser crime. The decision in Dix must be read in the light of the facts of that case.

We have carefully considered defendant's remaining assignments of error and find them to be without merit.

We find the trial to be free from prejudicial error.

Although we feel that the trial judge committed error in failing to hear evidence and find facts upon defendant's motion to dismiss the indictment for failure to grant a speedy trial, this error did not infect the guilt finding process of the trial. Therefore, we do not order a new trial but remand the case to the Superior Court with directions as follows:

The presiding judge at the 9 July 1973 Session of Superior Court to be held in Durham County shall cause the defendant and his counsel to be brought before him at that Session or as soon thereafter as possible, and shall permit defendant and the State to offer evidence upon the question of the delay between defendant's indictment and trial. If the presiding judge determines that defendant's constitutional right to a speedy trial has been denied, he shall find the facts and enter an order vacating judgment, setting aside the verdict, and dismissing the indictment. If the presiding judge determines that defendant's constitutional right to a speedy trial has not been denied, he shall find the facts and enter an order denying the defendant's motion to dismiss, and order commitment to issue in accordance with the judgment entered at the 18 September 1972 Session of Superior Court held in Durham County. See State v. Tart, 199 N.C. 699, 155 S.E. 609.

No error in the trial.

Remanded with instructions.

MORRIS and PARKER, JJ., concur.