State v. Sutton

238 S.E.2d 305 (1977) 34 N.C. App. 371

STATE of North Carolina
v.
William Earl SUTTON.

No. 778SC417.

Court of Appeals of North Carolina.

November 2, 1977.

Atty. Gen. Rufus L. Edmisten, by Associate Atty. Patricia B. Hodulik, Raleigh, for the State.

Gerrans & Spence, by William D. Spence, Kinston, for defendant appellant.

VAUGHN, Judge.

Defendant moved to quash the indictments and dismiss the cases because the case was not ". . . placed upon docket for trial at the first ensuing criminal session of the court after the receipt . ." of certification of an order from the appellate division ordering a new trial, as required by G.S. 15-186. The opinion of the court ordering a new trial was certified to the Superior Court on 4 January 1977. In 1977, there were criminal sessions of Superior Court in Lenoir County on 10 January, 31 January, 7 February and 28 February. The case was not placed on the docket for trial until 7 March.

Our Supreme Court has held that the statute, G.S. 15-186, gives a defendant on retrial no right to "a more speedy trial than that guaranteed to all by the Constitution of the United States and the Constitution of North Carolina." State v. Jackson, 287 N.C. 470, 473, 215 S.E.2d 123, 125 (1975). Whether a defendant has been deprived of his constitutional right to an expeditious trial must be determined by considering a number of interrelated facts such as the length and cause of the delay, waiver by the defendant, and prejudice to him. State v. Brown, 282 N.C. 117, 123, 191 S.E.2d 659, 663 (1972).

In the case before us the Court, in determining that there had been no undue delay, considered the following reasons advanced by the District Attorney:

"(1) that some of the witnesses who were in the State's case were from Baltimore, Maryland, and were not available for trial on the dates above mentioned; (2) that there were numerous jail cases in Lenoir County during this period of time which the State felt should be given priority; and (3) that there were some murder cases also that the State felt it had to give priority to."

Defendant, on the other hand, offered nothing to show that the delay was caused by any neglect on the part of the State. The burden is on the defendant who asserts the denial of his right to a prompt trial to show that the delay is due to the neglect or wilfulness of the State. State v. Brown, supra.

Defendant also assigns as error the denial of his motion to sever the offense that occurred on 21 October 1975, from trial with the offenses that took place 16 October 1975. The motion to sever was renewed before the close of the evidence, as required by G.S. 15A-927(a)(2). Defendant's motion, however, failed to state any grounds or facts for consideration by the trial judge as to why the motion should have been allowed. On appeal, defendant's only assertion of possible prejudice is that he might have elected to testify in one of the cases and not in the others. This unsupported statement of possible prejudice is not sufficient to show abuse of discretion on the part of the trial judge in denying defendant's motion to sever the cases for trial. State v. Davis, 289 N.C. 500, 223 S.E.2d 296 (1976); State v. Hyatt, 32 N.C.App. 623, 233 S.E.2d 649 (1977).

During cross-examination of the federal officer who bought the heroin from defendant, the officer was asked to state the name of the police informant who accompanied him. The State objected but, after a recess, withdrew the objection and the officer named the informant. The officer did not know the present whereabouts of the informant but stated that about two weeks prior to trial, he was in Florida. Defendant moved for a continuance so that he could subpoena the informant as a witness. We conclude that defendant has failed to show that the judge abused his discretion in failing to order a continuance. We further conclude that defendant was not thereby deprived of any of his constitutional rights to due process under the Federal Constitution or the Constitution of the State of North Carolina. The assignment of error is overruled. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974).

Defendant contends that the contraband seized on 21 October 1975, when the officers went to defendant's apartment to serve orders of arrest, should not have been admitted into evidence. Defendant cites quotes and argues G.S. 15A-249 and G.S. 15A-251, which relate to service of search warrants. The officers in the present case were armed with arrest warrants, and the relevant statute is G.S. 15A-401. Defendant argues that the evidence should have been excluded because the officers, as he contends, did not give notice of their authority and purpose before making the entry. The argument is without merit. The evidence discloses that the officers knocked on the door, identified themselves as police officers, and demanded entry. They received no response from the occupants of the premises. Instead, they immediately heard sounds that would justify them in concluding that admittance would be unreasonably delayed so that the occupants could escape. Moreover, mere failure to comply with the letter of G.S. 15A-401 in making the arrest does not require that evidence discovered as a result of the arrest be excluded. State v. Eubanks, 283 N.C. 556, 196 S.E.2d 706 (1973). See also G.S. 15A-974.

Defendant has brought forward several other assignments of error. We conclude that they fail to disclose prejudicial error.

No error.

MORRIS and CLARK, JJ., concur.