State v. Ambriz

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-711
No. COA21-674
Filed 1 November 2022
Guilford County, Nos. 16CRS67908; 16CRS67909
STATE OF NORTH CAROLINA
v.
GERARDO AMBRIZ, Defendant.
Appeal by defendant from judgment entered 28 May 2021 by Judge Alyson A.
Grine in Superior Court, Guilford County. Heard in the Court of Appeals 22 March
2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Caden
William Hayes, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L.
VandenBerg, for defendant.
STROUD, Chief Judge.
¶1 Gerardo Ambriz (“Defendant”) appeals from a judgment entered upon jury
verdicts finding him guilty of one count of trafficking in methamphetamine by
possession, one count of trafficking in methamphetamine by transportation, and one
count of conspiracy to traffic in methamphetamine by possession. Defendant argues
the State’s evidence was insufficient to support his convictions and that he was denied
the speedy trial as guaranteed under our state and federal Constitutions. Because
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the State presented sufficient evidence to submit Defendant’s charges to the jury, and
because the trial court did not err by denying Defendant’s speedy trial motions, we
conclude the trial court committed no error.
I. Background
¶2 The State presented evidence from two law enforcement officers and one of
Defendant’s co-defendants, who pled guilty and agreed to testify in exchange for a
possibly reduced sentence. The State’s evidence tended to show that on 6 February
2016, a drug deal involving a trafficking quantity of methamphetamine was
scheduled to take place in Greensboro, North Carolina. This deal was prearranged
between Mr. Gomez, a police informant, and Mr. Gomez-Macedo, whose street name
was “Paco.” Paco was connected “to the Atlanta, Georgia, area, [and] knew people in
that area that could bring drugs” to Greensboro; he was to provide nearly five
kilograms of methamphetamine. On 6 February 2016, the informant and Paco met
at a La Fiesta Restaurant in Greensboro. At the restaurant, the informant contacted
his handlers with the Greensboro Police Department and worked with Detective
Monge, who posed as the buyer, to show Paco $150,000 in “flash cash” to facilitate the
deal. “Flash cash” is money managed by individual police departments for the
purposes of facilitating these types of transactions, because sellers in transactions of
this magnitude often want to observe the money before providing drugs. Detective
Monge drove the money to the La Fiesta Restaurant, where the informant and Paco
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observed the money. Shortly afterward, the informant and Paco learned the narcotics
had been delayed in Alabama. The evidence indicated the vehicle transporting the
narcotics was “broken down” or was experiencing “mechanical issues[,]” but also that
the driver was stopping to rest. After it became apparent the deal would not occur
that day, the informant and Paco left the La Fiesta Restaurant.
¶3 Detective Williams with the Greensboro Police Department testified at trial
regarding communications between Defendant and Mr. Reyes, another participant in
this deal with connections to the driver, the informant, and Paco. Detective Williams
also testified regarding the circumstances of the deal. On 6 February, Mr. Reyes sent
Defendant a file with the driver’s contact information. Defendant responded and told
Mr. Reyes, “cousin, tell them they’re going to call him on behalf of Pitufo.”12 Later
that evening, Mr. Reyes asked Defendant “Are you coming here, cousin?” He then
sent a text message to Defendant at 2:17 a.m. the morning of 7 February and told
Defendant “he is here in Alabama, cousin. He’s going to stop there and rest.”
Defendant responded to this message: “It is good, cousin.” Defendant then sent Mr.
Reyes a Georgia address later in the morning, and Detective Williams did not testify
1 The text messages the State’s witnesses testified about were originally in Spanish.
The text messages were translated as part of the State’s investigation. We discuss the text
messages as translated and testified to by the State’s witnesses.
2 The Greensboro Police Department did not identify anyone as “Pitufo” during their
investigation.
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about any other text messages of note.
¶4 Later on 7 February, when officers began arriving at the La Fiesta in
Greensboro, they noted the informant had already arrived. Shortly after arriving,
Detective Williams “observed [the] informant, along with [Paco] and two other
unidentified Hispanic males” exit the La Fiesta Restaurant. These two individuals
were later identified as Mr. Reyes and Defendant. The group left La Fiesta and
shortly afterward the driver arrived in a “gray Toyota Prius” registered in Georgia.
When the Prius arrived, Defendant and Mr. Reyes got into the Prius while the
informant and Paco got into the informant’s rental vehicle, a “gold or tan Chevrolet
Suburban.” These two vehicles then “traveled in tandem or one behind the other, the
Suburban leading the way[,]” until they arrived at a “public storage facility”
approximately five minutes from the La Fiesta Restaurant where the informant had
rented a unit.
¶5 The driver testified about the events inside the storage facility. Upon arriving
at the storage unit, the driver “backed up the car inside so the cameras wouldn’t see,
and Leo [Reyes] told the young man, ‘Get out and get the drugs out.’” The driver
identified the “young man” as Defendant. But Defendant was unable to exit the Prius
because the driver “had activated the child locks, and because [Defendant] couldn’t
get out and [the driver] wanted it to be fast, [the driver] was the one that took the
drugs out.” After dropping the drugs off at the storage unit, the driver, Reyes, and
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Defendant left and drove to a nearby gas station.
¶6 Reyes and Defendant rode to the gas station with the driver inside the Prius.
The driver of the Suburban waited at the storage facility for “approximately ten
minutes” then drove to the gas station where Reyes and Defendant got into the
Suburban. Both vehicles then left the gas station separately, and officers followed
the Suburban to another nearby restaurant. While at that restaurant, the informant
called the officers, pretending to arrange delivery of the money. Eventually, the
driver of the Suburban returned to the storage unit where Defendant and the other
participants in the drug deal were arrested.
¶7 Defendant was indicted for one count of trafficking in methamphetamine by
possession, one count of trafficking in methamphetamine by transport, and one count
of conspiracy to traffic in methamphetamine by possession. Defendant was tried
three times for these offenses. The first two trials from 3 April 2018 to 6 April 2018
and 19 August 2019 to 26 August 2019 ended in deadlocked juries. Defendant’s third
trial began on 24 May 2021 and a jury found Defendant guilty on all charges on 28
May 2021. Defendant gave notice of appeal in open court, and a judgment was
entered the same day.
¶8 The procedural history of this case for purposes of Defendant’s speedy trial
claim is laid out separately below.
II. Analysis
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¶9 Defendant makes two arguments on appeal. First, he contends the trial court
erred by denying his motion to dismiss because there was insufficient evidence to
support his convictions. Next, he argues the trial court erred by denying his motions
to dismiss based upon violations of his right to a speedy trial.
A. Sufficiency of the Evidence
¶ 10 Defendant first argues the State presented insufficient evidence to show he
participated in the methamphetamine deal. Defendant made a general motion to
dismiss at the close of State’s evidence, and therefore we address each of defendant’s
convictions. See State v. Glisson, 251 N.C. App. 844, 847, 796 S.E.2d 124, 127 (2017)
(This Court has “precedent holding that a general motion to dismiss for insufficiency
of the evidence preserves all issues regarding the insufficiency of the evidence, even
those issues not specifically argued before the trial court[,]” and a general “motion to
dismiss require[s] the trial court to consider whether the evidence was sufficient to
support each element of each charged offense.”).
¶ 11 In ruling on a motion to dismiss:
the trial court must determine whether the State has
presented substantial evidence of each essential element of
the offense charged and substantial evidence that the
defendant is the perpetrator. If substantial evidence of
each element is presented, the motion for dismissal is
properly denied. Substantial evidence is relevant evidence
that a reasonable mind might accept as adequate to
support a conclusion. It is immaterial whether the
substantial evidence is circumstantial or direct, or both.
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Circumstantial evidence may withstand a motion to
dismiss and support a conviction even when the evidence
does not rule out every hypothesis of innocence. The
evidence need only give rise to a reasonable inference of
guilt in order for it to be properly submitted to the jury.
State v. Shelman, 159 N.C. App. 300, 304-05, 584 S.E.2d 88, 92 (2003) (quotations,
citations, and alterations omitted).
¶ 12 “In determining whether the State has presented sufficient evidence to support
a conviction, ‘the trial court is required to view the evidence in the light most
favorable to the State, making all reasonable inferences from the evidence in favor of
the State.’” Id. at 305, 584 S.E.2d at 92 (quoting State v. Kemmerlin, 356 N.C. 446,
473, 573 S.E.2d 870, 889 (2002)). Any “[c]ontradictions and discrepancies must be
resolved in favor of the State . . . .” Id. (alteration in original) (quoting State v.
Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984)). “However, ‘[i]f the evidence
is sufficient only to raise a suspicion or conjecture as to either the commission of the
offense or the identity of the defendant as the perpetrator of it, the motion should be
allowed.’” State v. Loftis, 185 N.C. App. 190, 196, 649 S.E.2d 1, 6 (2007) (alteration
in original) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). On
appeal, “[w]hether the State presented substantial evidence of each essential element
of the offense is a question of law; therefore, we review the denial of a motion to
dismiss de novo.” State v. Crockett, 368 N.C. 717, 720, 782 S.E.2d 878, 881 (2016)
(italics added).
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1. Trafficking by Possession
¶ 13 Defendant moved to dismiss the offense of trafficking in methamphetamine by
possession of 400 grams or more of methamphetamine. Defendant argues “[t]he State
did not present substantial evidence that [Defendant] possessed the drugs.” He also
argues the State conceded Defendant never actually possessed the drugs, and “[t]he
State failed to establish [Defendant] had constructive possession” of the drugs. The
State argues theories of constructive possession and acting in concert for this offense.
The State contends Defendant’s proximity to the drugs combined with his attempted
exit from the car to put the drugs in the storage locker constituted constructive
possession of the drugs. The State also argues Defendant, the driver, and various
middlemen in this case “all acted in concert to transport, possess, and sell the
methamphetamine.” Because there was substantial evidence to show that Defendant
was acting in concert with the other participants of this methamphetamine deal, the
trial court did not err by denying Defendant’s motion to dismiss.
¶ 14 The State was required to present “substantial evidence of each essential
element” of trafficking in methamphetamine by possession. Shelman, 159 N.C. App.
at 304, 584 S.E.2d at 92. “To convict a defendant of [trafficking in methamphetamine
by possession], the State must prove the [D]efendant (1) knowingly possessed . . .
methamphetamine, and (2) that the amount possessed was greater than 28 grams.”
Id. at 305, 584 S.E.2d at 93; see N.C. Gen. Stat. § 90-95(h)(3b) (2016). “The ‘knowing
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possession’ element of the offense of trafficking by possession may be established by
a showing that . . . (2) the defendant had constructive possession, or (3) the defendant
acted in concert with another to commit the crime.” See State v. Reid, 151 N.C. App.
420, 428, 566 S.E.2d 186, 192 (2002) (quotation omitted) (applying North Carolina
General Statute § 90-95(h)(3) in a cocaine trafficking case). “Constructive possession
[of a controlled substance] occurs when a person lacks actual physical possession, but
nonetheless has the intent and power to maintain control over the disposition and
use of the [controlled] substance.” State v. Alston, 193 N.C. App. 712, 715, 668 S.E.2d
383, 386 (2008) (alteration in original) (quoting State v. Wilder, 124 N.C. App. 136,
139-40, 476 S.E.2d 394, 397 (1996)). “As to the [State’s acting in concert theory], [a]
defendant acts in concert with another to commit a crime when he acts in harmony
or in conjunction . . . with another pursuant to a common criminal plan or purpose.”
Reid, 151 N.C. App. at 429, 566 S.E.2d at 192 (second alteration and ellipsis in
original) (internal quotations omitted).
¶ 15 Because the State presented “relevant evidence that a reasonable mind might
accept as adequate to support [the] conclusion” that Defendant knowingly possessed
the methamphetamine under an acting in concert theory, Shelman, 159 N.C. App. at
304, 584 S.E.2d at 92, we do not need to address Defendant’s constructive possession
argument. Viewed “in the light most favorable to the State,” id. at 305, 584 S.E.2d
at 92, the State’s evidence tended to show Defendant was acting in concert with the
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other methamphetamine deal participants. State’s evidence showed the following
sequence of events: (1) Reyes, an apparent middleman, notified Defendant early in
the morning on 7 February, the day of the deal, that the driver bringing the drugs
was stopping to rest in Alabama; (2) as testified to by Detective Williams this message
was consistent with the 6 February meeting between the informant, and the Atlanta
connection, Paco; (3) later that day Defendant met with Reyes and the driver at the
La Fiesta Restaurant in Greensboro; (4) Defendant rode together with Reyes and the
driver to the storage unit to drop off the methamphetamine; (5) Reyes instructed
Defendant to transfer the methamphetamine from the car to the storage unit but
Defendant was stopped by the child locks on the driver’s vehicle; (6) Defendant left
the storage unit with Reyes and the driver for a nearby gas station where Defendant
and Reyes transferred to another vehicle, a Suburban driven by the informant, in
which they travelled to a nearby restaurant with the informant and Paco to wait for
the money; and (7) then Defendant travelled with the group back to the storage unit
where they were apprehended by police. Viewed “in the light most favorable to the
State,” a “reasonable inference[]” drawn from this evidence is that the group,
including Defendant, was working together to sell the methamphetamine. Shelman,
159 N.C. App. at 305, 584 S.E.2d at 92. Defendant, the driver, and the various
middlemen were working together “pursuant to a common criminal plan or purpose”
to sell nearly five kilograms, well over 28 grams, of methamphetamine. Reid, 151
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N.C. App. at 429, 566 S.E.2d at 192. There was substantial evidence to show, as
argued by the State, “that Defendant was an active participant in the drug trafficking
and sale.” Both the “knowing possession” and possession amount elements of
trafficking by possession are supported by substantial evidence.
¶ 16 Because there was substantial evidence of each essential element of the
trafficking by possession offense, the trial court committed no error in denying
Defendant’s motion to dismiss as to this offense.
2. Trafficking by Transport
¶ 17 Defendant was also tried for and moved to dismiss the offense of trafficking in
methamphetamine by transport of 400 grams or more of methamphetamine.
Defendant’s argument here is similar to his argument as to the trafficking by
possession offense. Defendant argues “[t]he State did not present substantial
evidence that [Defendant] acted together with others with a common purpose to
transport the drugs” and the State argues there was substantial evidence to support
an acting in concert theory for trafficking by transportation. Defendant also argues
the State “relied on speculation and ambiguous facts” to show Defendant was merely
present at the transaction and nothing more than a “passive observer” of the
methamphetamine deal. Because the same substantial evidence supporting the
trafficking by possession offense also supports this trafficking by transport offense,
the trial court did not err in denying Defendant’s motion to dismiss.
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¶ 18 The elements of this offense are similar to trafficking by possession. “To convict
a defendant of [trafficking in methamphetamine by transportation], the State must
prove the [D]efendant (1) knowingly . . . transported methamphetamine, and (2) that
the amount possessed was greater than 28 grams.” Shelman, 159 N.C. App. at 305,
584 S.E.2d at 93; see N.C. Gen. Stat. § 90-95(h)(3b). The “knowing possession element
of” trafficking by transport can be proved by an acting in concert theory, and “[a]
defendant acts in concert with another to commit a crime when he acts ‘in harmony
or in conjunction . . . with another pursuant to a common criminal plan or purpose.’”
Reid, 151 N.C. App. at 428-29, 566 S.E.2d at 192 (citation omitted).
¶ 19 The same evidence above, considered “in the light most favorable to the State,”
constitutes “evidence that a reasonable mind might accept as adequate to support
[the] conclusion” that Defendant knowingly transported methamphetamine in
connection with this drug deal. Shelman, 159 N.C. App. at 304-05, 584 S.E.2d at 92.
The evidence indicated Defendant was engaged in regular communication with one
of the middlemen while the driver was on his way to North Carolina with the
methamphetamine, and Defendant was present with the driver and middlemen while
the methamphetamine was being exchanged for the $150,000. If not for the child
locks on the driver’s vehicle, Defendant, instead of the driver, would have taken the
methamphetamine from the trunk and placed it in the storage unit. A “reasonable
inference[]” drawn from all the State’s evidence is that the group, including
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Defendant, was working together to transport and sell the methamphetamine.
Shelman, 159 N.C. App. at 305, 584 S.E.2d at 92.
¶ 20 For the same reasons as above, the trial court committed no error in denying
Defendant’s motion to dismiss as to this offense.
3. Conspiracy to Traffic by Possession
¶ 21 The third offense Defendant was tried for and moved to dismiss was conspiracy
to traffic in methamphetamine by possession. Defendant argues the State’s
circumstantial evidence, and any related inferences, are insufficient to support a
conviction. The State argues the sum of the evidence “point[s] unerringly to the
existence of a conspiracy.” We again disagree with Defendant. The trial court did
not err in denying Defendant’s motion to dismiss.
¶ 22 This Court in State v. Glisson summarized the State’s burden to show a
criminal conspiracy well:
“A criminal conspiracy is an agreement between two or
more people to do an unlawful act or to do a lawful act in
an unlawful way.” State v. Bell, 311 N.C. 131, 141, 316
S.E.2d 611, 617 (1984) (citation omitted). To prove the
crime of conspiracy, “the State need not prove an express
agreement;” rather, “evidence tending to show a mutual,
implied understanding will suffice.” State v. Morgan, 329
N.C. 654, 658, 406 S.E.2d 833, 835 (1991) (citation
omitted). “The existence of a conspiracy may be
established by direct or circumstantial evidence, although
it is generally established by a number of indefinite acts,
each of which, standing alone, might have little weight,
but, taken collectively, they point unerringly to the
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existence of a conspiracy.” State v. Worthington, 84 N.C.
App. 150, 162, 352 S.E.2d 695, 703 (1987) (internal
quotation marks and citations omitted). “In ‘borderline’ or
close cases, our courts have consistently expressed a
preference for submitting issues to the jury, both in
reliance on the common sense and fairness of the twelve
and to avoid unnecessary appeals.” State v. Hamilton, 77
N.C. App. 506, 512, 335 S.E.2d 506, 510 (1985) (citations
omitted).
Glisson, 251 N.C. App. at 848, 796 S.E.2d at 128 (addressing the sufficiency of
evidence to support a conviction for felonious conspiracy to traffic opium).
¶ 23 Here, as in Glisson, “the State presented evidence of indefinite acts amounting
to substantial evidence that Defendant conspired with” the other participants of this
deal to traffic methamphetamine. Id. The State’s evidence showed Defendant and
Reyes, a middleman, were texting each other the morning of the methamphetamine
deal and these texts refer to the delivery being delayed in Alabama. Defendant then
met Reyes and the driver at the La Fiesta in Greensboro before travelling together to
the public storage facility. At the public storage facility, Defendant attempted to take
part in dropping off the methamphetamine but was unable to do so because he was
locked in the back seat. Defendant continued to travel with Reyes to a nearby gas
station where he transferred to another vehicle in which he rode together with the
informant, Reyes, and Paco to a nearby restaurant to wait for the money to arrive.
Defendant ultimately returned to the storage unit with the group before being
apprehended by the police.
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¶ 24 Defendant argues his “presence alone does not support a conspiracy,” and the
text messages are too “unrelated to this deal” to evidence an agreement between him
and any other participant in the methamphetamine deal. “[T]he trial court is
required to view the evidence in the light most favorable to the State, making all
reasonable inferences from the evidence in favor of the State.” Shelman, 159 N.C.
App. at 305, 584 S.E.2d at 92 (quoting Kemmerlin, 356 N.C. at 473, 573 S.E.2d at
889). Each of these acts “might have little weight, but, taken collectively, they point
unerringly to the existence of a conspiracy.” Glisson, 251 N.C. App. at 848, 796 S.E.2d
at 128 (quoting Worthington, 84 N.C. App. at 162, 352 S.E.2d at 703). The State
presented sufficient “relevant evidence that a reasonable mind might accept as
adequate to support [the] conclusion” that the drug deal participants, including
Defendant, had “a mutual, implied understanding” to traffic the methamphetamine.
Shelman, 159 N.C. App. at 304, 584 S.E.2d at 92 (first quote); Glisson, 251 N.C. App.
at 848, 796 S.E.2d at 128 (second quote). The State’s evidence “[gave] rise to a
reasonable inference of guilt” and was “properly submitted to the jury[.]” Shelman,
159 N.C. App. at 305, 584 S.E.2d at 92 (second alteration in original) (quotation
omitted).
¶ 25 The State presented substantial evidence to show Defendant was part of a
criminal conspiracy to traffic methamphetamine. The trial court did not err in
denying Defendant’s motion to dismiss.
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B. Speedy Trial Motions
¶ 26 Defendant argues both his federal and state constitutional rights to a speedy
trial were violated. He argues “the trial court committed constitutional error in
failing to dismiss” his case based upon each of his four speedy trial motions.
(Capitalization altered). The State argues no speedy trial violation occurred and
proposes a novel rule for measuring the time periods of delays to determine whether
a violation has occurred.
We review an alleged violation of a defendant’s Sixth
Amendment right to a speedy trial de novo. State v.
Wilkerson, 257 N.C. App. 927, 929, 810 S.E.2d 389, 391
(2018). In reviewing the denial of a motion to dismiss for a
speedy-trial violation, “[w]e review the superior court’s
order to determine whether the trial judge’s underlying
findings of fact are supported by competent evidence and
whether those factual findings in turn support the judge’s
ultimate conclusions of law.” Id. (citation and internal
quotation marks omitted). In reviewing the conclusions of
law, we “consider the matter anew and substitute our
judgment for that of the trial court.” State v. Johnson, 251
N.C. App. 260, 265, 795 S.E.2d 126, 131 (2016) (citation
omitted).
State v. Spinks, 277 N.C. App. 554, 561, 2021-NCCOA-218, ¶ 20. “Competent
evidence is evidence that a reasonable mind might accept as adequate to support the
finding[s].” State v. Newborn, 279 N.C. App. 42, 49, 2021-NCCOA-426, ¶ 24
(quotation omitted).
¶ 27 The timeline for this case is complex, with several distinct periods of time for
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consideration based upon Defendant’s arrest, his speedy trial motions, the two
declared mistrials, and the ultimate trial in which Defendant was convicted. The
State’s arguments rely on these separate time periods. The dates of note for purposes
of this analysis are as follows:
 7 February 2016: Defendant was arrested in connection with the
methamphetamine deal. He was later indicted on 2 May 2016.
 6 July 2017: The trial court held Defendant’s first “status hearing.”
Defendant rejected the State’s first plea offer and asserted his right to a
jury trial at this hearing.
 13 November 2017: The trial court held Defendant’s second “status
hearing.” Defendant rejected a second plea offer and reasserted his right
to a jury trial at this hearing.
 30 January 2018: Defendant was represented by counsel but filed a pro
se motion asserting his right to a speedy trial.
 12 February 2018: Defendant filed his first speedy trial motion
through counsel asserting violations of his right to a speedy trial under
both our state and federal Constitutions. This motion was heard before
the trial court 6 March 2018. The trial court entered an order without
findings of fact on or about the same day denying Defendant’s motion.
 3 April 2018 through 6 April 2018: On 3 April 2018 Defendant’s
counsel filed another written motion “renew[ing] and maintain[ing]” his
first speedy trial motion. Our record and transcripts do not show if or
when the renewed motion was heard by the trial court. Defendant’s first
trial was held. Defendant’s first trial ended in a mistrial on 6 April 2018
due to a hung jury. The trial court entered an order 27 April 2018
declaring the mistrial.
 October 2018: Defendant, again acting pro se, sent an undated letter
to the court and reasserted his right to a speedy trial. The court
responded 31 October 2018 and informed Defendant as to the proper
procedure for filing motions.
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 Approximately 23 April 2019:3 Defendant filed his second speedy trial
motion through counsel. This motion was heard 6 May 2019. The court
then entered a written order denying the motion without findings on 7
May 2019.
 7 August 2019: Defendant filed a third speedy trial motion through
counsel. The trial court denied the third motion by an order entered 23
August 2019. This order included findings of fact.
 19 August 2019 through 26 August 2019: Defendant’s second trial
started on 19 August 2019 and ended in a mistrial due to a hung jury on
26 August 2019. The court entered an order the same day declaring the
mistrial.
 March 2020 through Fall 2020: The Covid-19 pandemic shut down
many court proceedings, including jury trials, and caused significant
delays in trial court proceedings.4
 8 January 2021: Defendant filed his fourth and final speedy trial
motion through counsel. This motion was denied by a written order
entered 16 February 2021. The order did not include findings of fact.
 24 May 2021: Defendant’s third and final trial begins.
 28 May 2021: Defendant was convicted during his third jury trial and a
judgment was entered as addressed above.
¶ 28 The parties agree on the framework for a speedy trial analysis and the
3 The file stamp on Defendant’s second speedy trial motion is illegible.
4 The Chief Justice of the Supreme Court of North Carolina first issued emergency
directives postponing proceedings and limiting district and superior court proceedings to
remote proceedings on 13 March 2020. Order of the Chief Justice Emergency Directives 1
to 2 (13 March 2020). Proceedings were repeatedly postponed through 2020. See, e.g.,
Order of the Chief Justice Emergency Directives 1 to 7 Postponing Court Proceedings until
June 1 (2 April 2020); Order of the Chief Justice Emergency Directives 9 to 16 (21 May
2020); Order of the Chief Justice Extending Emergency Directives 9-15, 20-22 (15 August
2020). Several of the emergency directives were extended well into 2021. See, e.g., Order of
the Chief Justice Extending Emergency Directives 3, 5 (4 June 2021).
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standard of review but dispute how to weigh the factors in the analysis.
[T]he United States Supreme Court identified four factors
“which courts should assess in determining whether a
particular defendant has been deprived of his right” to a
speedy trial under the federal Constitution. These factors
are: (1) the length of the delay, (2) the reason for the delay,
(3) the defendant’s assertion of his right to a speedy trial,
and (4) whether the defendant has suffered prejudice as a
result of the delay.
State v. Flowers, 347 N.C. 1, 27, 489 S.E.2d 391, 406 (1997) (quoting Barker v. Wingo,
407 U.S. 514, 530, 33 L. Ed. 2d 101, 117 (1972)). Our appellate courts follow the
Supreme Court of the United States’s analysis in Barker v. Wingo when reviewing
speedy trial claims under both our state and federal Constitutions. See id. (citing
State v. Webster, 337 N.C. 674, 678, 447 S.E.2d 349, 351 (1994) (“We follow the same
analysis when reviewing such claims under Article I, Section 18 of the North Carolina
Constitution.”)).
The right to a speedy trial is different from other
constitutional rights in that, among other things,
deprivation of a speedy trial does not per se prejudice the
ability of the accused to defend himself; it is impossible to
determine precisely when the right has been denied; it
cannot be said precisely how long a delay is too long; there
is no fixed point when the accused is put to a choice of
either exercising or waiving his right to a speedy trial; and
dismissal of the charges is the only possible remedy for
denial of the right to a speedy trial.
State v. McKoy, 294 N.C. 134, 140, 240 S.E.2d 383, 388 (1978) (citing Barker, 407 U.S.
514, 33 L. Ed. 2d 101).
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Opinion of the Court
No single factor is regarded as either a necessary or
sufficient condition to the finding of a deprivation of the
right to a speedy trial. “Rather, they are related factors and
must be considered together with such other circumstances
as may be relevant. In sum, these factors have no
talismanic qualities; courts must still engage in a difficult
and sensitive balancing process. But, because we are
dealing with a fundamental right of the accused, this
process must be carried out with full recognition that the
accused’s interest in a speedy trial is specifically affirmed
in [both] Constitution[s].”
Id. (quoting Barker, 407 U.S. 514, 33 L. Ed. 2d 101).
¶ 29 Here, Defendant filed two pro se motions and four motions through counsel to
dismiss based upon a violation of his right to a speedy trial. The first two orders
denied his first and second motions without findings of fact, the third order denied
his third motion with findings of fact, and the fourth order denied his fourth motion
without findings of fact. Defendant argues “[t]he failure of the trial courts in both
the first and second speedy trial hearings to make any findings or conduct any
analysis would normally require remand.” But Defendant also argues no remand is
needed because “the State has already had ample opportunity to explain the delays
at multiple hearings . . . [and] asks this Court to find his right to [a] speedy trial was
violated without resorting to remand.” The State argues remand is unnecessary
because we “review[] speedy trial motions de novo, substituting [our] judgment for
the trial court[,]” and all four Barker factors “clearly favor the State.”
1. Appellate Review
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Opinion of the Court
¶ 30 Because three of the four orders denying Defendant’s motions were made
without findings of fact, we first must determine whether we may review all four of
Defendant’s motions or if we are required to remand for additional findings. See State
v. Sheridan, 263 N.C. App. 697, 705, 824 S.E.2d 146, 152 (2019) (remanding for “a
proper Barker v. Wingo analysis and appropriate findings” where the “record on
appeal [was] insufficiently developed” for review by this Court); State v. Wilkerson,
257 N.C. App. 927, 937, 810 S.E.2d 389, 396 (2018) (“A full evidentiary hearing is
required in order for the superior court to hear and make an appropriate assessment
of Defendant’s arguments.”); State v. Howell, 211 N.C. App. 613, 711 S.E.2d 445(2011) (remanding because the trial court “reached its Sixth Amendment ruling
under a misapprehension of the law and without conducting a complete analysis,
including consideration of all the relevant facts and law in [the] case”).
¶ 31 Trial courts are not always required to enter written findings when analyzing
speedy trial motions:
In ruling on a motion for a speedy trial the trial court is not
always required to conduct an evidentiary hearing and
make findings of facts and conclusions of law. See State v.
Dietz, 289 N.C. 488, 495, 223 S.E.2d 357, 362 (1976). In
those instances, however, when the motion to dismiss for
denial of a speedy trial is based on allegations not
“conjectural and conclusory [in] nature,” an evidentiary
hearing is required and the trial court must enter findings
to resolve any factual disputes and make conclusions in
support of its order. Id. When there is no objection,
evidence at the hearing may consist of oral statements by
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Opinion of the Court
the attorneys in open court in support and in opposition to
the motion to dismiss. See State v. Pippin, 72 N.C. App.
387, 397–98, 324 S.E.2d 900, 907 (findings properly based
on oral arguments of attorney where opposing party did not
object to procedure), disc. rev. denied, 313 N.C. 609, 330
S.E.2d 615 (1985).
State v. Chaplin, 122 N.C. App. 659, 663, 471 S.E.2d 653, 656 (1996).
¶ 32 Here, Defendant only challenges the lack of findings in the orders from the
first speedy trial hearing on 6 March 2018 and second speedy trial hearing on 6 May
2019. He challenges findings and conclusions in the trial court’s written order
addressing his third speedy trial motion, and he simply describes the trial court’s 16
February 2021 order denying his fourth motion.
a. First Speedy Trial Motion
¶ 33 Defendant’s first motion was filed on 30 January 2018. Although he was
represented by counsel, he filed a handwritten, pro se motion asserting his right to a
speedy trial. He filed his first speedy trial motion by counsel on 12 February 2018,
which was appropriately filed and served upon the State. The trial court heard the
motion filed by counsel on 6 March 2018 and entered an order denying the motion on
or about the same day. We first note that a defendant is not permitted to proceed
both pro se and by counsel, so defendant’s initial pro se motion was subject to
dismissal for this reason alone. But even if we consider the initial pro se motion as a
properly filed motion, these motions simply recount the fact that Defendant had been
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Opinion of the Court
arrested, was incarcerated, and “his lengthy pretrial confinement is oppressive and
prejudicial in that he has been deprived of his freedom for approximately two years
without trial.” In his first motion filed by counsel, Defendant then quotes State v.
Johnson, 3 N.C. App. 420 (1969), and State v. Chaplin, 122 N.C. App. 659 (1996), yet
fails to articulate why these cases apply to the circumstances surrounding his
incarceration at the time either motion was made. He fails to allege “factual
allegations necessary to support his contentions of unnecessary and deliberate delay
on the part of the prosecution, or of actual prejudice[,]” State v. Goldman, 311 N.C.
338, 346, 317 S.E.2d 361, 366 (1984), and his motion is “conjectural and conclusory
[in] nature[.]” Chaplin, 122 N.C. App. at 663, 471 S.E.2d at 656. Thus, the trial court
did not err by denying the first speedy trial motions without making findings of fact.
¶ 34 Defendant then renewed his first speedy trial motion filed through counsel by
another written motion filed the first day of his first trial, 3 April 2018. The record
is unclear if, when, and how this motion was denied. Defendant’s trial proceeded and
ended in a mistrial due to a hung jury 6 April 2018. The trial court entered an order
27 April 2018 declaring the mistrial.
b. Second Speedy Trial Motion
¶ 35 After his first mistrial, in October 2018 Defendant sent an undated letter
addressed to Judge Lindsay Davis Jr. to the Guildford County Courthouse and
reasserted his right to a speedy trial. The court responded 31 October 2018 by letter
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Opinion of the Court
informing Defendant that the addressee of his letter, Judge Davis, had retired and
that “[f]uture communications with the Court must be in the form of motions or other
appropriate pleadings filed with the Clerk of Court and served on the District
Attorney.” The court also informed Defendant, “[i]t is inappropriate to write ex parte
letters to any individual presiding judge. No judge is allowed to speak with you about
your case except in open court.” The letter also gave Defendant information on how
to dismiss his court-appointed attorney and information on how to file a motion.
¶ 36 Defendant then filed his second speedy trial motion through counsel on or
about 23 April 2019. This motion again asserted his right to a speedy trial, quoted
Johnson and Chaplin, and failed to allege “factual allegations necessary to support
his contentions of unnecessary and deliberate delay on the part of the prosecution, or
of actual prejudice.” Goldman, 311 N.C. at 346, 317 S.E.2d at 366. Defendant’s
motion simply stated he had been arrested and imprisoned, that he had filed speedy
trial motions, that he had been tried, and that he continued to maintain his
innocence. He again quoted Johnson and Chaplin, asserted his “lengthy pretrial
confinement is oppressive and prejudicial in that he has been deprived of his freedom
for three years and two months without resolution[,]” but failed to allege any
deliberate delay by the prosecution or actual prejudice as required by Johnson or
Chaplin.
¶ 37 The trial court held an evidentiary hearing and then entered an order on 7 May
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Opinion of the Court
2019 denying Defendant’s motion “without prejudice at this time.” This order did not
include findings of fact, but it stated that “the Defense may refile the Motion after
August 15, 2019.” The trial court also continued trial to 22 July 2019.
¶ 38 Upon a review of the record, disregarding Defendant’s pro se motions, we find
Defendant’s second speedy trial motion filed by counsel was “conjectural and
conclusory [in] nature,” and the trial court was not required to make findings of fact.
Chaplin, 122 N.C. App. at 663, 471 S.E.2d at 656 (quoting Dietz, 289 N.C. at 495, 223
S.E.2d at 362); Goldman, 311 N.C. at 346, 317 S.E.2d at 366. The motions filed by
counsel recounted a simple history of Defendant’s arrest and imprisonment, made a
bare assertion of his right to a speedy trial, and lacked factual allegations sufficient
to show a violation of his speedy trial right. Even so, for each motion the trial court
held evidentiary hearings and Defendant received the opportunity to present
arguments and provide evidence in the form of oral statements by his attorney. We
find no error by the trial court in failing to enter findings of fact and conclusions of
law as to the first and second speedy trial motions.
c. Third Speedy Trial Motion
¶ 39 After hearing Defendant’s third speedy trial motion, the trial court entered an
order with findings of fact and conclusions of law. The initial four findings addressed
the dates of Defendant’s arrest and the charges against him, as addressed above. The
trial court then found and concluded:
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Opinion of the Court
4. Defendant was one of four co-defendants.
5. Up through May, 2017, the state was preparing for
the trial of one of the co-defendants, which included
a lengthy process by the North Carolina
Administrative Office of the Courts of transcribing
recorded contact between certain of the co-
defendants and an informant, with the process of
transcription taking, as it was described to the State
at the hearing on this motion, taking up to one hour
for every minute of the recording transcribed.
6. The co-defendant’s case came on for trial on May 8,
2017, and the co-defendant pled guilty during the
trial.
7. The Defendant rejected a plea offer on or about July
6, 2017, and the State began efforts to schedule a
trial, which required coordination of witnesses from
numerous jurisdictions and several law enforcement
agencies. These witnesses included a witness from
the Drug Enforcement Administration and an
expert witness from the DEA forensic lab in Miami,
Florida.
8. Defendant was presented with a second plea offer,
which he rejected on or about November 13, 2017.
9. Defendant filed his first speedy trial motion on
February 12, 2018.
10. Defendant’s trial commenced on April 3, 2018, and
ended in a mistrial on April 6, 2018.
11. Transcripts of the trial proceedings were requested,
and, through no delay attributable to the District
[A]ttorney’s [O]ffice, these transcripts took eight
months to prepare, and were obtained at the end of
2018.
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Opinion of the Court
12. Defendant filed his second speedy trial motion on or
about April 23, 2019, which was heard and denied,
without prejudice to refile at a later time, by the
Honorable William Wood.
13. During the intervening time period, the State was
awaiting the resolution of a motion for appropriate
relief filed in a co-defendant’s matter, to determine
whether a trial proceeding against defendant should
be joined with those matters in the event the motion
for appropriate relief was granted.
14. The State is now indicating that it is ready to
proceed with trial during this session of Court.
15. The delays in these matters being reached for trial
are not purposeful or oppressive, are not owing to
any neglect of the District Attorney, and are not
intended to hamper the defense or gain a tactical
advantage in these matters.
The trial court then made conclusions of law, addressing each of the Barker factors,
and denied Defendant’s motion.
¶ 40 “In reviewing the denial of a motion to dismiss for a speedy-trial violation, ‘[w]e
review the superior court’s order to determine whether the trial judge’s underlying
findings of fact are supported by competent evidence and whether those factual
findings in turn support the judge’s ultimate conclusions of law.’” Spinks, ¶ 20
(quoting Wilkerson, 257 N.C. App. at 929, 810 S.E.2d at 391). “Competent evidence
is evidence that a reasonable mind might accept as adequate to support the
finding[s].” Newborn, ¶ 24. Competent evidence for purposes of a speedy trial motion
“may consist of oral statements by the attorneys in open court in support and in
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Opinion of the Court
opposition to the motion to dismiss.” Chaplin, 122 N.C. App. at 663, 471 S.E.2d at
656 (citing Pippin, 72 N.C. App. at 397–98, 324 S.E.2d at 907 (summarizing
discussion from Pippin as “findings properly based on oral arguments of attorney
where opposing party did not object to procedure”)).
¶ 41 Although Defendant’s brief states he challenges some of the trial court’s
findings of fact as unsupported by the evidence, his entire argument challenging the
findings is that Findings 5 through 7 are “partially unsupported and incomplete;”
Finding 11 is “unsupported and inapposite;” Finding 13 is “incorrect and based on
misstatements of the prosecutor;” and Finding 15 is “unsupported and incorrect.”
Defendant does not address how the trial court’s findings were incomplete,
unsupported, or incorrect. Since he has made no substantive argument regarding
these findings, he has waived any challenge to these findings and we will consider
them as binding on appeal. N.C. R. App. P. 28(b)(6) (“An appellant’s brief shall
contain . . . An argument, to contain the contentions of the appellant with respect to
each issue presented. Issues not presented in a party’s brief, or in support of which
no reason or argument is stated, will be taken as abandoned.”) See Yeun-Hee Juhnn
v. Do-Bum Juhnn, 242 N.C. App. 58, 62-63, 775 S.E.2d 310, 313-14 (2015) (“However,
defendant fails to set forth any specific challenges to the findings of fact and instead
presents a broad argument which merely contends that ‘the evidence at trial [did] not
support a finding that [defendant] acted in bad faith, warranting the imputation of
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Opinion of the Court
income to [defendant.]’ It is well established by this Court that where a trial court’s
findings of fact are not challenged on appeal, they are deemed to be supported by
competent evidence and are binding on appeal. . . . As defendant has failed to
articulate challenges to these specific findings of fact, we find these findings to be not
only binding on appeal, but also supported by competent evidence demonstrating that
defendant did indeed act in bad faith regarding his income.” (internal citation
omitted)).
¶ 42 Defendant also contends that the trial court’s conclusions of law do not
properly address the Barker factors and the trial court erred by denying his motion.
We will discuss the trial court’s conclusions of law in our de novo review of the trial
court’s order ruling on the third speedy trial motion below.
d. Fourth Speedy Trial Motion
¶ 43 As discussed above, the trial court had entered an order addressing
Defendant’s third speedy trial motion in August 2019; Defendant filed his fourth
motion on 8 January 2021. This motion recites the history of the case, including the
prior motions to dismiss and the trial court’s rulings upon those motions, and alleges
that “a transcript of the witness testimony from the second trial [in August 2019] has
been ordered by Judge Stuart Albright.” This motion alleged additional delay since
the mistrial in August 2019; that his motion to unsecure his bond “so that he may
begin his federal sentence while the third trial is pending” was denied in October
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Opinion of the Court
2019; and repeated general allegations of prejudice and anxiety from the continued
pretrial confinement. We also note Defendant did not make any allegations as to any
delay in 2020 based upon the suspension of some trial court proceedings, including
jury trials, due to the emergency directives from the Covid-19 pandemic.
¶ 44 The trial court held a hearing on 16 February 2021 and entered an order
denying Defendant’s fourth motion without making findings of fact. In his brief
Defendant simply notes “[t]here were no written findings[,]” before again arguing the
Barker factors cut in his favor. Additionally, there were no disputed facts at the
fourth speedy trial hearing and the court did not need to “resolve any factual disputes
and make conclusions in support of its order.” Chaplin, 122 N.C. App. at 663, 471
S.E.2d at 656. At the hearing, Defendant’s counsel introduced his motion and the
Barker analysis, then State’s counsel recounted the procedural history of this case
and the cases of the co-defendants. Defendant did not object to the procedure used
by the trial court, nor did he argue that the State’s proffered reasons for delay were
incorrect or false. Even when the prosecutor stated, as to State’s preferential order
of prosecuting the four co-defendants, that “[Defendant’s Counsel] and his client,
[Defendant,] certainly tacitly consented to the approach on the State’s part[,]”
Defense counsel did not object. The trial court did not err in failing to enter findings
of fact or conclusions of law as to Defendant’s fourth motion.
¶ 45 Because the trial court did not err by holding four hearings to consider
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Opinion of the Court
Defendant’s motions, or by failing to make written findings after the first, second,
and fourth hearings, we find no error as to the procedures used by the trial court to
hear Defendant’s speedy trial motions. Findings were not required in the first,
second, and fourth orders, and the order entered upon the third motion adequately
addressed any disputed facts. We will now address Defendant’s challenges to the
trial court’s conclusions of law in the order entered after hearing of the third speedy
trial motion as well as the trial court’s denial of Defendant’s fourth and last speedy
trial motion.
2. Substantive Review of Denial of Defendant’s Speedy Trial Motions
¶ 46 Because Defendant’s motions were “conjectural and conclusory [in] nature,”
and because “[t]he information before the trial court is not in dispute” as to the first,
second, and fourth hearings, “the failure of the trial court to making findings of fact
does not prevent review by this Court” and we now turn to the Barker factors.
Chaplin, 122 N.C. App. at 663-64, 471 S.E.2d at 656 (citing Harris v. North Carolina
Farm Bureau Mut. Ins. Co., 91 N.C. App. 147, 150, 370 S.E.2d 700, 702 (1988));
Harris, 91 N.C. App. at 150, 370 S.E.2d at 702 (“[R]emand to the trial court is not
necessary if the facts are not in dispute and if only one inference can be drawn from
the undisputed facts.”). Defendant argues throughout his brief that all four Barker
factors weighed in his favor at the time each motion was made, and these factors
weighed progressively more heavily in his favor as time passed.
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Opinion of the Court
a. Length of the Delay
¶ 47 “The United States Supreme Court has found post-accusation delay
‘presumptively prejudicial’ as it approaches one year.” Flowers, 347 N.C. at 27, 489
S.E.2d at 406 (quoting Doggett v. United States, 505 U.S. 647, 652 n. 1, 120 L. Ed. 2d
520, 528 n. 1 (1992)). “However, presumptive prejudice ‘does not necessarily indicate
a statistical probability of prejudice; it simply marks the point at which courts deem
the delay unreasonable enough to trigger the Barker enquiry.’” Id.; Barker, 407 U.S.
at 530, 33 L. Ed. 2d 117 (“The length of the delay is to some extent a triggering
mechanism. Until there is some delay which is presumptively prejudicial, there is no
necessity for inquiry into the other factors that go into the balance.”).
¶ 48 In the trial court’s order denying Defendant’s third motion, the conclusions of
law begin by noting the Barker factors. The trial court did not make a specific
conclusion of law as to the first factor, the length of the delay, but clearly the trial
court concluded that the length of the delay was sufficient to trigger the Barker
inquiry, as the trial court made findings of fact and conclusions of law specifically
addressing the second, third, and fourth Barker factors.
¶ 49 In most cases, the length of the delay is the most straightforward factor and it
is generally not in dispute. Here, the situation is different because of the various
motions and the two trials ending in mistrial. The parties’ interpretations of our case
law diverge as to how we should consider the length of the delay. Defendant contends
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Opinion of the Court
the clock continues to run from his initial arrest until his final trial; the State
contends the speedy trial clock should “reset” upon each mistrial. The State argues
the protection afforded a criminal defendant by his right to a speedy trial “is for a
speedy trial not a speedy adjudication.” (Emphasis in original.) In the State’s
interpretation of this factor, the lengths of delay are then: (1) 24 months between
Defendant’s arrest in February 2016 and his first speedy trial motion in February
2018; (2) 12 months between Defendant’s first mistrial in April 2018 and his second
speedy trial motion in April 2019; (3) 16 months between Defendant’s first mistrial
in April 2018 and third speedy trial motion in August 2019; and (4) 17 months
between his second mistrial in August 2019 and final speedy trial motion in January
2021.
¶ 50 In response to State’s proposed “reset upon mistrial” rule Defendant “contends
the most fair approach is to calculate the length of delay from arrest to final
judgment, and to consider mistrials or other similar interruptions under the ‘reason
for delay’ factor.” He argues such an approach “prevents the absurd result of a person
being retried to mistrial every eleven months, never reaching a final verdict, and
never qualifying for a presumptive speedy trial violation.” He also argues, “[e]ven
using the State’s approach . . . the time period before each of the three trials was
presumptively prejudicial[.]” Under Defendant’s interpretation of this factor, the
total delay from his arrest in February 2016 until the final adjudication of his case in
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Opinion of the Court
May 2021 was 63 months (five years, three months), during which he filed four speedy
trial motions and his first two trials were declared mistrials.
b. State v. Carvalho
¶ 51 Both parties cite our decision in State v. Carvalho. 243 N.C. App. 394, 777
S.E.2d 78 (2015) cert. denied sub nom. Carvalho v. North Carolina, — U.S. —, 199 L.
Ed. 2d 19 (2017). Defendant argues that “[a] mistrial does not reset the speedy trial
clock.”5 The State argues “the Carvalho [C]ourt’s implicit decision to not reset the
timer upon both mistrials was, at most, dicta, and does not preclude this Court from
fully addressing the issue now.” (Original emphasis.)
¶ 52 The facts of the underlying offenses in Carvalho are not pertinent to this
appeal, but the procedural history of that case is. In Carvalho, the defendant was
arrested on 16 November 2004 and indicted for two separate murders on 3 January
2005. Carvalho, 243 N.C. App. at 395, 777 S.E.2d at 80-81. The defendant was tried
for the second of these murders in 2009, and the trial court declared a mistrial due to
a deadlocked jury. Id. at 395, 777 S.E.2d at 81. The defendant was retried in 2010
and a second mistrial was declared due to a deadlocked jury. Id. The defendant then
5 At this point, it is important to note that Defendant introduces this Carvalho-based
argument in a footnote. The State argues Defendant’s argument should therefore be
considered abandoned pursuant to Rule 28. Because Defendant addressed Carvalho both in
this footnote in his primary brief and again at oral argument, and because we find Carvalho
useful to our discussion regarding the case at bar and to State’s proposed rule regarding the
resetting of “the speedy trial clock,” we will address Defendant’s argument.
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Opinion of the Court
“filed a motion to dismiss the charges based upon a speedy trial violation on 3
December 2012 . . . .” Id. at 397, 777 S.E.2d at 82. Similar to the case at bar,
“Defendant asserted he was denied his constitutional right to a speedy trial due to
the overall length of his imprisonment, as well as a lack of evidence sufficient to
obtain a conviction due to [a State witness]’s unwillingness to testify.” Id. “On 6 June
2013, the trial court held a hearing on Defendant’s motion to dismiss and entered an
order denying Defendant’s motion on 2 January 2014.” Id. at 398, 777 S.E.2d at 82.
¶ 53 The defendant was then tried for the first of the two murders and robbery with
a firearm on 7 October 2013. Id. at 399, 777 S.E.2d at 83. “The trial court declared
a mistrial after the jury deadlocked. Six months later, Defendant was tried a second
time for the murder . . . and robbery with a firearm on 1 April 2014.” Id. “Defendant
moved to dismiss the charges at the close of the State’s evidence, and again at the
close of all of the evidence. The trial court denied Defendant’s motions.” Id. The
defendant was ultimately found guilty of both offenses 7 April 2014. Id. “[A]lmost
nine years elapsed between the time the State indicted Defendant in 2004 and the
time of the June 2013 hearing on his motion to dismiss [based upon a speedy trial
violation.]” Id. at 401, 777 S.E.2d at 84.
¶ 54 The State asserts the Court in Carvalho did not discuss in great detail how the
issue of this nine-year delay impacts the Barker analysis. In Carvalho, this Court
noted the one-year “presumptively prejudicial” rule as to post-accusation delay and
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Opinion of the Court
then determined the nine-year “delay clearly passes the demarcation into
presumptively prejudicial territory and triggers the Barker analysis.” Id. at 401, 777
S.E.2d at 84 (citing Flowers, 347 N.C. at 27, 489 S.E.2d at 406). The Court then
immediately concluded its analysis of this factor with: “The almost nine-year delay .
. . ‘is not per se determinative of whether a speedy trial violation has occurred,’ and
requires careful analysis of the remaining factors.” Id. (quoting Webster, 337 N.C. at
678-79, 447 S.E.2d at 351). As argued by the State, “the Carvalho [C]ourt’s implicit
decision to not reset the timer upon both mistrials . . . does not preclude this Court
from fully addressing the issue now.” (Original emphasis.)
¶ 55 Additionally, the 9-year timeline in Carvalho as to speedy trial motions and
mistrials is distinguishable from the timeline in the present case. In the present case,
Defendant was arrested on 7 February 2016 and filed a speedy trial motion 24 months
later. Defendant renewed this motion on 3 April 2018 and the first mistrial was
declared on 27 April 2018 after a jury deadlock. After the first mistrial Defendant
filed two more speedy trial motions; his second motion was filed on or about 23 April
2019, his third motion on 7 August 2019. Then, Defendant’s second trial ended in a
mistrial because “the jury is hopelessly deadlocked . . . .” Defendant’s fourth and final
“Motion to Dismiss for Violation of Speedy Trial Right” was filed 8 January 2021
before he was ultimately convicted in his third jury trial and a judgment was entered
28 May 2021. (Capitalization altered.)
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Opinion of the Court
¶ 56 In Carvalho, the defendant did not file his “motion to dismiss the charges based
upon a speedy trial violation [until] 3 December 2012[.]” Id. at 397, 777 S.E.2d at 82.
The defendant did not file his motion to dismiss until after both mistrials were
declared as to the second murder, and before his trial for the first murder and robbery
had even began. See id. at 395-99, 777 S.E.2d at 81-83. The defendant did not assert
his right until 2012, over eight years after his initial arrest in connection with the
first murder and over two years after the two mistrials in connection with the second
murder. See id. at 402-403, 777 S.E.2d at 85. Defendant notes the Court in Carvalho
“count[ed the] full nine-year interval between indictment and final trial, which
included two mistrials, when analyzing [the] speedy trial claim.” But Defendant does
not note, as discussed above, that most of this delay was due to the fact the defendant
waited years to assert his right to a speedy trial.
¶ 57 Whether we use the State’s “reset” rule or not, the delay was sufficient to
trigger a speedy trial inquiry. As Defendant noted, and as in Carvalho, “the time
period before each of the three trials was presumptively prejudicial[.]” We decline to
adopt State’s proposed “reset” rule. Whether we consider the delay as 12, 16, 17, 24,
or even 63 months, the “post-accusation delay [is] ‘presumptively prejudicial’”
because each of these time periods is at least one year. See Carvalho, 243 N.C. App.
at 401, 777 S.E.2d at 84 (citing Doggett, 505 U.S. at 652 n. 1, 120 L. Ed. 2d at 528 n.
1).
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Opinion of the Court
¶ 58 As discussed below, the reasons for each delay are more significant than merely
the fact that a mistrial occurred, so we will consider the substance of the State’s
contentions under the second Barker factor. Regardless of whether we follow the
State’s or Defendant’s approach to measuring time for the purpose of a Barker
analysis, the analysis was triggered, and the prejudicial effect of the delay(s) is
addressed in more detail below. See id. at 400-401, 777 S.E.2d at 84.
c. Reason for the Delay
¶ 59 The trial court concluded “As to the second Barker factor, the reasons for the
passage of time in this case between indictment and trial is not due to any negligence
or willfulness of the State. The defendant does not allege in his motion nor provide
any evidence of any willfulness or intentional delay by the State.”
¶ 60 The trial court’s conclusion as to the reasons for the delay is supported by the
evidence and findings of fact. On de novo review, we agree the second Barker factor
does not particularly favor either party. At best, it slightly favors the defendant, but
there was also no showing of any deliberate delay by the State.
Generally, the defendant “bears the burden of showing the
delay was the result of neglect or willfulness of the
prosecution.” Wilkerson, 257 N.C. App. at 930, 810 S.E.2d
at 392 (citation and internal quotation marks omitted).
However, a “particularly lengthy” delay “creates a prima
facie showing that the delay was caused by the negligence
of the prosecutor.” State v. Strickland, 153 N.C. App. 581,
586, 570 S.E.2d 898, 902 (2002), cert. denied, 357 N.C. 65,
578 S.E.2d 594 (2003).
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Spinks, ¶ 26 (emphasis in original). “Upon a prima facie showing of prosecutorial
neglect by a lengthy delay, ‘the burden shifts to the State to rebut and offer
explanations for the delay.’” Id. ¶ 27 (quoting Wilkerson, 257 N.C. App. at 930, 810
S.E.2d at 392). “Once the State offers a valid reason ‘for the lengthy delay of [the]
defendant’s trial, the burden of proof shifts back to the defendant to show neglect or
willfulness by the prosecutor.’” Id. (alteration in original) (quoting Strickland, 153
N.C. App. at 586, 570 S.E.2d at 902). “The State is allowed good-faith delays which
are reasonably necessary for the State to prepare and present its case, but is
proscribed from purposeful or oppressive delays and those which the prosecution
could have avoided by reasonable effort.” Id. ¶ 28 (quoting Wilkerson, 257 N.C. App.
at 930-31, 810 S.E.2d at 393).
¶ 61 Defendant argues that this factor cuts in his favor at the time he made each
motion. As addressed above, if we take Defendant’s measure of 63 months for a
speedy trial delay then Defendant undoubtably shows a “particularly lengthy delay.”
Id. ¶ 26. Even taking the more State-friendly measurement of 24 months between
arrest and Defendant’s first speedy trial motion we find a “prima facie showing that
the delay was caused by the negligence of the prosecutor.” Id. ¶ 26 (quoting
Strickland, 153 N.C. App. at 583, 570 S.E.2d at 902). The State does not make
arguments specifically rebutting whether the initial delay “create[d] a prima facie
showing that the delay was caused by the negligence of the prosecutor[,]” id., and
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instead cites State v. Spivey, 357 N.C. 114, 119, 579 S.E.2d 251, 255 (2003), to argue
“[o]nly after the defendant has carried [t]his burden of proof . . . must the State offer
evidence fully explaining the reasons for the delay and sufficient to rebut the prima
facie evidence.” The trial court’s uncontested findings of fact address the reasons for
each delay, and none indicated negligence or willful delay by the State.
¶ 62 The trial court’s findings establish Defendant was arrested and charged on 7
February 2016 and was later indicted on 2 May 2016. “Defendant was one of four co-
defendants[,]” and through May 2017 “the state was preparing for the trial of one of
the co-defendants, which included a lengthy process . . . of transcribing recorded
contact between certain of the co-defendants and an informant,” and this
transcription took approximately “one hour for every minute of the recording
transcribed.” On 8 May 2017 the co-defendant pled guilty during his trial, and on 6
July 2017 Defendant rejected his first plea offer. The State began scheduling
Defendant’s trial, “which required coordination of witnesses from numerous
jurisdictions and several law enforcement agencies . . . includ[ing] a witness from the
Drug Enforcement Administration and an expert witness from the DEA forensic lab
in Miami, Florida.” Defendant rejected a second plea offer around 13 November 2017,
then filed his first speedy trial motion on 12 February 2018.
¶ 63 “Neither a defendant nor the State can be protected from prejudice which is
an incident of ordinary or reasonably necessary delay[,]” State v. Armistead, 256 N.C.
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App. 233, 239, 807 S.E.2d 664, 669 (2017) (quoting Johnson, 275 N.C. at 273, 167
S.E.2d at 280), and Defendant waited 24 months after his arrest before filing his
speedy trial motion. Some amount of this delay was “incident of ordinary” trial
preparation, because it simply takes time for a case to progress from indictment to
trial. As the State notes, and as the trial court’s unchallenged findings of fact in its
third order establish, Defendant’s charges arose out of a complex investigation
involving several law enforcement agencies which resulted in prosecution of several
defendants. Defendant was also offered two plea deals, and over half of the delay was
caused by the prosecution of the co-defendant and the transcription of recorded
contact between the participants of the drug deal.
¶ 64 While the 24-month period between Defendant’s arrest and first motion may
be “presumptively prejudicial,” the State made a sufficient showing to rebut the
Defendant’s initial showing. The burden then shifted back to Defendant “to show
neglect or willfulness by the prosecutor.” Strickland, 153 N.C. App. at 586, 570
S.E.2d at 902-03 (emphasis added). As to the delay between Defendant’s arrest and
first speedy trial motion, he has failed to make this showing.6 Spinks, ¶ 26 (quoting
6 Defendant also argues that prosecutorial preference in the order in which
coconspirators are tried is not a legitimate and valid reason for the delay between his arrest
and trial and fault can be attributed to the prosecutor. But, “[t]his court has also
recognized that there may be selectivity in prosecutions and that the exercise of this
prosecutorial prerogative does not reach constitutional proportion unless there be a
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Opinion of the Court
Wilkerson, 257 N.C. App. at 930, 810 S.E.2d at 392); Spivey, 357 N.C. at 117, 579
S.E.2d at 254 (quotation omitted) (“[I]n assessing defendant’s speedy trial claim, we
see no indication that court resources were either negligently or purposefully
underutilized.”). There is no evidence the State intentionally delayed Defendant’s
trial; there is ample evidence the State was preparing to prosecute Defendant. The
State has “fully explain[ed] the reason for the delay.” Farmer, 376 N.C. at 415, 852
S.E.2d at 341.
¶ 65 The delay between Defendant’s first mistrial and second speedy trial motion is
also “an incident of ordinary or reasonably necessary delay.” Armistead, 256 N.C.
App. at 239, 807 S.E.2d at 669. The trial court’s unchallenged findings establish,
after Defendant’s first trial, “[t]ranscripts of the trial proceedings were requested,
and, through no delay attributable to the District [A]ttorney’s [O]ffice, these
transcripts took eight months to prepare, and were obtained at the end of 2018.”
Defendant then filed his second speedy trial motion in April 2019. Between his
second and third speedy trial motion in August 2019, “the State was awaiting the
resolution of a motion for appropriate relief filed in a co-defendant’s matter, to
determine whether a trial proceeding against defendant should be joined with those
showing that the selection was deliberately based upon an unjustifiable standard such as
race, religion, or other arbitrary classification.” Spivey, 357 N.C. at 121, 579 S.E.2d at 256(discussing prosecutorial preference in trying a backlog of murder cases in the speedy trial
context) (quotations omitted).
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matters in the event the motion for appropriate relief was granted.” Ultimately, the
trial court found “[t]he delays in these matters being reached for trial are not
purposeful or oppressive, are not owing to any neglect of the District Attorney, and
are not intended to hamper the defense or gain a tactical advantage in these matters.”
The record also indicates the case was continued from February to April 2019 at the
agreement of both parties.
¶ 66 For 10 of the 12 months between Defendant’s first trial and second speedy trial
motion, and 10 of the 16 months between Defendant’s first trial and third speedy trial
motion, the State could not calendar Defendant’s case. If we were to follow
Defendant’s rule for calculating speedy trial delays, the delay between his arrest and
second motion is 38 months and the delay between his arrest and third motion is 42
months. We have already determined the delay leading to the first trial did not
violate Defendant’s speedy trial rights, and during the delay leading to the second
trial 8 months were occupied waiting on transcripts, “through no delay attributable
to the District attorney’s office”; the proceedings were continued for two months; and
between Defendant’s second and third motion the State “was awaiting the resolution
of a motion for appropriate relief . . . to determine whether a trial proceeding against
defendant should be joined” with a co-defendant’s matter. Defendant again fails to
show “the delay was the result of neglect or willfulness of the prosecution.” Spinks,
¶ 26 (emphasis omitted) (quotation omitted). Defendant was then tried again at the
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Opinion of the Court
42-month mark of his incarceration, resulting in the second mistrial.
¶ 67 The delay between the second and third trials is justified largely by truly
neutral factors. The delays prior to the first and second trial may still be considered
here. But the second trial took place in August 2019. The third trial occurred in May
2021. During a large portion of 2020, most of the time period between these two trial
dates, the Covid-19 pandemic caused significant shutdowns and backlogs in our
judicial system. These shutdowns were required by Executive Orders issued by the
Governor of North Carolina and by Emergency Directives issued by the Chief Justice
of the Supreme Court of North Carolina.7
¶ 68 A lengthy delay alone will not weigh against the State, but Defendant is
required to show “purposeful” delays or “those which the prosecution could have
avoided by reasonable effort.” Spinks, ¶ 28; Spivey, 357 N.C. at 121, 579 S.E.2d at
7 The Chief Justice of the Supreme Court of North Carolina issued multiple orders
postponing proceedings, including jury trials, by thirty days in response to the Governor’s
declaration of a state of emergency due to Covid-19. See Order of the Chief Justice
Emergency Directives 1 to 2 (13 March 2020); Order of the Chief Justice Emergency
Directives 9 to 16 (21 May 2020); Order of the Chief Justice Extending Emergency
Directives 9 to 16 (20 June 2020); Order of the Chief Justice Extending Emergency
Directives 9-15, 20 (20 July 2020); Order of the Chief Justice Extending Emergency
Directives 9-15, 20-22 (15 August 2020); Order of the Chief Justice Extending Emergency
Directives 2-6, 8-15, 18, and 20-22 (15 September 2020); Order of the Chief Justice
Extending Emergency Directives 2-5, 8-15, 18, and 20-22 (14 December 2020). These orders
may be found on the North Carolina Judicial Branch’s website at:
https://www.nccourts.gov/covid-19. In early 2021 the Chief Justice allowed proceedings to
resume on a county-by-county basis depending upon the current state of Covid-19 cases in
that county. See Order of the Chief Justice Extending Emergency Directives 2, 3, 5, 8, 11,
12, 14, 15, 21 (14 January 2021).
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256 (“Indeed, defendant relies solely on the length of delay and ignores the balancing
of other factors. In light of these reasons, we conclude that the delay was caused by
neutral factors and that defendant failed to carry his burden to show delay caused by
the State’s neglect or willfulness.”). Defendant did not make any allegations of delay
based upon Covid-19 shutdowns and did not demonstrate the prosecutor here could
have avoided any delay caused by the pandemic, and this delay will not weigh against
the State. Cf. Farmer, 376 N.C. at 416, 852 S.E.2d at 341-42 (discussing how some
neutral factors, like crowded criminal case dockets, weigh against the State because
the State has a “more authoritative role in the delay”). Additionally, the record
indicates approximately two months of the final delay between Defendant’s second
and third trials was due in part due to a medical issue suffered by Defendant’s own
counsel.
¶ 69 While the time periods between Defendant’s arrest and trials is lengthy enough
to shift the burden to the State, “the State offers a valid reason ‘for the lengthy delay
of [the] defendant’s trial, [and] the burden of proof shift[ed] back to the defendant to
show neglect or willfulness by the prosecutor.’” Spinks, ¶ 27 (quotation omitted).
With respect to each motion, Defendant has not shown any actual neglect or
willfulness by the prosecutor in any of the delays between his arrest, trials, and
motions. Although there are some reasons for the delay that weigh slightly against
the State, the State offered valid reasons for the delay, including delays incident to
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Opinion of the Court
normal trial procedure and delays due to the effect of the Covid-19 pandemic on our
court system in 2020. This factor does not particularly favor either party, and at best
it might slightly favor Defendant, at least prior to 2020.
d. Defendant’s Assertion of the Right
¶ 70 As to the third Barker factor, the trial court concluded, “The defendant has
first asserted the right to a speedy trial by motion on February 12, 2018, after the
matter had been pending for two years, and after acquiescing to the State’s approach
during the prior two years of addressing the matters of the other co-defendants prior
to trying the defendant’s cases.”
¶ 71 The third Barker factor favors Defendant. As the trial court noted, Defendant
waited about two years to assert his right to a speedy trial, but at that point, he
asserted his right to a speedy trial repeatedly. The State concedes as much.
“A criminal defendant who vigorously asserts his right to a
speedy trial will be considered in a more favorable light
than a defendant who does not.” Strickland, 153 N.C. App.
at 587, 570 S.E.2d at 903. A failure to assert the right, or
a failure to assert the right early in the process, weighs
against a defendant’s contention that his right has been
violated. [State v.] Grooms, 353 N.C. [50,] 63, 540 S.E.2d
[713,] 722 [(2000)].
Spinks, ¶ 33.
¶ 72 Defendant first asserted his right to a speedy trial by a pro se motion and letter
filed 30 January 2018. His first motion filed through counsel was filed 12 February
2018. Defendant filed three additional speedy trial motions: the second motion on or
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Opinion of the Court
about 23 April 2019, after his first mistrial; the third motion on 7 August 2019; and
the fourth and final motion on 8 January 2021, between the second mistrial in August
2019 and his third trial in March 2021. Defendant also sent an undated letter to a
retired judge, presumably at some point in October 2018, as we can estimate by the
trial court’s response. Even accepting the State’s argument, citing Spivey, 357 N.C.
at 121, 579 S.E.2d at 256, that “a represented defendant ‘cannot also file motions on
his own behalf or attempt to represent himself[,]’” Defendant’s four motions filed
through counsel unequivocally establish he “vigorously assert[ed] his right to a
speedy trial . . . .” Id.e. Prejudice to the Defendant Resulting from the Delay
¶ 73 “As to the fourth Barker factor,” the trial court concluded, “the alleged delay
has not caused any significant prejudice to defendant, and the defendant has not
alleged specific prejudice, such as any alleged unavailability of witnesses given the
passage of time, in his motion.”
¶ 74 We agree that the final factor favors the State:
Prejudice “should be assessed in the light of the interests
of defendants which the speedy trial right was designed to
protect.” Barker, 407 U.S. at 532, 92 S. Ct. at 2193, 33
L.Ed.2d at 118. The identified interests the constitutional
right to a speedy trial protects are: (1) avoiding prolonged
imprisonment; (2) reducing anxiety of the accused; and (3)
creating the opportunity for the accused to assert and
exercise their presumption of innocence. See id. The last
of these interests is the most important aspect to the
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speedy trial right, “because the inability of a defendant
adequately to prepare his case skews the fairness of the
entire system.” Id.Carvalho, 243 N.C. App. at 403, 777 S.E.2d at 85. “A defendant must show actual,
substantial prejudice.” Spivey, 357 N.C. at 122, 579 S.E.2d at 257.
¶ 75 Defendant has not shown “actual, substantial prejudice.” Id. The first two
interests protected by the right to a speedy trial are evident in nearly all
incarcerations. Defendant was imprisoned for several years awaiting trial for the
offenses he was ultimately convicted upon, and this imprisonment undoubtably
caused significant “anxiety of the accused.” Carvalho, 243 N.C. App. at 403, 777
S.E.2d at 85. But from arrest through conviction Defendant received three
opportunities “to assert and exercise [his] presumption of innocence.” Id.
¶ 76 Defendant admits his defense was not prejudiced by any delay, “because he did
not call witnesses; he instead relied on the fact that the State had no evidence of his
participation.” Defendant argues he “should not be punished due to the arbitrary
factor that his defense was not damaged by the passage of time.” Additionally,
Defendant argues he was prejudiced because he was “unjustly locked away, unable
to work and see and support his family.” The State cites Farmer and argues
“Defendant only cite[s] generalized concerns surrounding detention” and “[t]hese are
the exact arguments our Supreme Court already said were not sufficient.”
¶ 77 As to Defendant’s argument that his incarceration was prejudicial because he
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was “unjustly locked away, unable to work and see and support his family[,]”
Defendant is required to allege more than simple separation from his family, or the
type of separation inherent to pretrial detention. See Spinks, ¶ 38 (discussing State
v. Washington, 192 N.C. App. 277, 292, 665 S.E.2d 799, 809 (2008)). Defendant has
not alleged any reason why separation from his family was particularly prejudicial
as a result of the delays before his trial. He has not argued how that separation
affects any of the interests protected by the right to a speedy trial above the prejudice
inherent in every pretrial incarceration. Defendant instead makes a bare assertion
that separation from his family was “unjust . . . given the weakness of the State’s case
. . . .” This argument falls short of “actual, substantial prejudice.” Spivey, 357 N.C.
at 122, 579 S.E.2d at 257.
¶ 78 Defendant also argues that he is prejudiced because none of his time spent in
State jail will count against his future federal sentence. Defendant does not expand
upon this argument. We find this argument unpersuasive. It is not uncommon for a
criminal defendant to serve consecutive sentences for multiple offenses or for a
defendant to be prosecuted by both State and Federal authorities. And, as we
discussed above, the State’s evidence was sufficient to convict Defendant on all three
charges. Although “[t]he fact a defendant is already incarcerated while awaiting trial
‘does not mitigate against his right to a speedy and impartial trial[,]’” Wilkerson, 257
N.C. App. at 934, 810 S.E.2d at 395 (quotation omitted), Defendant does not explain
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Opinion of the Court
how this future sentence constitutes prejudice protected against by his right to a
speedy trial. He does not allege the possibility of a concurrent sentence being lost, or
an increase in his present imprisonment, or any worsening of the conditions of his
imprisonment due to the “pendency of another criminal charge outstanding against
him.” Id. (quoting Smith v. Hooey, 393 U.S. 374, 378, 21 L. Ed. 2d 607, 611 (1969)).
The fact that Defendant will have to serve a federal sentence in addition to his state
sentence does not constitute “actual, substantial prejudice” as Defendant presents it
to us. Spivey, 357 N.C. at 122, 579 S.E.2d at 257.
¶ 79 As to Defendant’s argument that he “should not be punished due to the
arbitrary factor that his defense was not damaged by the passage of time[,]” we do
not find that Defendant is being punished because this case took several years and
multiple trials to resolve or because he did not present evidence in his defense.
Defendant has failed to show any prejudice that is not inherent to all pretrial
detentions, and ultimately the only showing of prejudice is Defendant’s lengthy
incarceration alone. While we acknowledge the oppressive and anxiety-inducing
nature of pretrial incarceration, it is not enough by itself to show “actual, substantial
prejudice.” This factor weighs in favor of the State.
f. Weighing the Factors
¶ 80 The reasons for the delay were not solely the fault of the State. Defendant has
not presented evidence to show the delay was due to “neglect or willfulness by the
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prosecutor.” Spinks, ¶ 27 (quotation omitted). While Farmer indicates the State
bears some burden for the exercise of prosecutorial preference in the order Defendant
and co-defendants were tried, see Farmer, 376 N.C. at 416, 852 S.E.2d at 342, “[t]his
Court has also recognized that there may be selectivity in prosecutions and that the
exercise of this prosecutorial prerogative does not reach constitutional proportion
unless there be a showing that the selection was deliberately based upon an
unjustifiable standard such as race, religion, or other arbitrary classification.”
Spivey, 357 N.C. at 121, 579 S.E.2d at 256 (quotations omitted) (discussing the effect
of prosecutorial preference in trying capital versus noncapital murder cases).
¶ 81 “No one factor is determinative of a speedy-trial violation; ‘they must all be
weighed and considered together[.]’” Spinks, ¶ 41 (alteration in original) (quotation
omitted). Here, the balance of the factors weighs in favor of the State. Defendant
has failed to show purposeful, neglectful, or willful delay by the prosecutor.
Defendant has also failed to show “actual, substantial prejudice” as a result of any
delay. Spivey, 357 N.C. at 122, 579 S.E.2d at 257. Upon de novo review, we hold the
trial court did not err in balancing the Barker factors as to any of Defendant’s motions
and denying his motions to dismiss based upon denial of his right to a speedy trial.
III. Conclusion
¶ 82 We conclude the State presented sufficient evidence to convict Defendant on
each charge and the trial court did not err in denying Defendant’s motions to dismiss
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based upon his assertion of a denial of his right to a speedy trial. The trial court
committed no error.
NO ERROR.
Judges TYSON and HAMPSON concur.