Opinion
No. COA11–1207.
2012-05-15
STATE of North Carolina v. Marcus Isaiah CURRY.
Attorney General Roy Cooper, by Assistant Attorney General Kimberley A. D'Arruda, for the State. Edward Eldred, for defendant-appellant.
Appeal by defendant from judgment entered 20 June 2011 by Judge Robert C. Ervin in Gaston County Superior Court. Heard in the Court of Appeals 25 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Kimberley A. D'Arruda, for the State. Edward Eldred, for defendant-appellant.
CALABRIA, Judge.
Marcus Isaiah Curry (“defendant”) appeals from a judgment entered upon jury verdicts finding him guilty of reckless driving, speeding, felony operation of a motor vehicle to elude arrest, and obstructing a public officer. We find no error.
On 26 June 2008, J.R. Marr (“Officer Marr”), a patrol officer with the Cramerton Police Department, stopped a vehicle because he suspected the driver was intoxicated. Officer Marr approached the driver's side of the vehicle, and observed a driver and a passenger. The driver was later identified by one of the passengers as defendant. As Officer Marr returned to his vehicle, the driver drove away. Officer Marr pursued the vehicle as it traveled at a speed in excess of 100 miles per hour. Subsequently, the driver lost control and crashed into someone's yard, causing damage to their shrubs and fence. Officer Marr did not see anyone exit the vehicle, but Melbeyanica Burris (“Burris”) and John McGill (“McGill”) were discovered hiding in the bushes. Defendant was not located, but Officer Marr prepared a property report that indicated defendant's driver's license was obtained where the wreck occurred.
The next day, defendant was charged with resisting arrest by “speeding off in his automobile and refusing to obey [the officer's] commands to present his driver's license and registration card[,]” speeding, fleeing to elude arrest and reckless driving to endanger. On 30 June 2008, defendant waived his right to assigned counsel and was later indicted for these charges.
On 10 February 2010, defendant was arrested for failing to appear in court, placed in custody and was assigned a public defender on 6 August 2010 for multiple charges. Defendant remained in custody until his bond hearing on 1 March 2011. Defendant's bond was reduced from $1,005,000.00 to $75,000.00 on these charges as well as other pending matters. On 5 March 2011, defendant was released on bond after spending 388 days in custody.
Defendant's case was set for trial beginning 9 May 2011, approximately two months after his release. On the same day the trial was scheduled to begin, the State provided defendant with additional discovery which included photographs of the wrecked vehicle, dispatch reports and a statement taken that same morning from Burris, a State's witness. Defendant made a motion to exclude the additional evidence. On 16 May 2011, defendant was arraigned.
Defendant's trial was rescheduled and began on 15 June 2011. A jury returned guilty verdicts for reckless driving, speeding, felony operation of a motor vehicle to elude arrest, and obstructing a public officer. The jury also found the aggravating factor that “defendant knowingly create[d] a great risk of death to more than one person by means of a weapon which would normally be hazardous to the lives of more than one person.” The trial court found no mitigating factors, that the aggravating factors outweighed the mitigating factors and that an aggravated sentence was justified. The trial court arrested judgment for reckless driving and speeding, consolidated the remaining convictions for judgment, and sentenced defendant to a minimum of 12 months and a maximum of 15 months in the North Carolina Department of Correction. Defendant was given credit for 388 days for the time he had already served. Defendant appeals.
Defendant's sole argument on appeal is that the State violated his state and federal constitutional rights to a speedy trial because the State did not schedule his trial until 1,084 days after his initial arrest. We disagree.
Every individual charged in North Carolina has a right to a speedy trial. State v. Pippin, 72 N.C.App. 387, 390, 324 S.E.2d 900, 903 (1985). The four factors the Court should consider to determine whether a defendant was denied his constitutional right to a speedy trial are: “(1) length of delay; (2) reason for delay; (3) defendant's assertion of the right to a speedy trial; and (4) prejudice to defendant resulting from the delay.” Id. at 391, 324 S.E.2d at 903. However, none of the factors are “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Id. (citation omitted). “The United States Supreme Court has noted that lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.” State v. Spivey, 357 N.C. 114, 119, 579 S.E.2d 251, 255 (2003) (citation and internal quotations omitted). “[P]resumptive prejudice ... marks the point at which courts deem the delay unreasonable enough to trigger” inquiry into the speedy trial factors. Id. (citation omitted).
“A defendant's right to a speedy trial attaches upon being formally accused of criminal activity, by arrest or indictment. Pippin, 72 N.C.App. at 391, 324 S.E.2d at 904. Some amount of delay is inherent in a criminal trial, and the trial court has discretion regarding the appropriate length of time for the delay. Id. at 391–92, 324 S.E.2d at 904. In the instant case, there is no dispute that the delay of 1,084 days after arrest could be considered prejudicial. Therefore, the first factor regarding the length of the delay triggers an inquiry into the other speedy trial factors. See Spivey, 357 N.C. at 119, 579 S.E.2d at 255.
In examining the second factor our Courts have held that good-faith delays are permissible and “[n]either a defendant nor the State can be protected from prejudice which is an incident of ordinary or reasonably necessary delay.” State v. Hammonds, 141 N.C.App. 152, 160, 541 S.E.2d 166, 173 (2000) (citation omitted). Defendant has the burden “to show that the delay was due to the neglect or willfulness of the prosecution.” Id. (citation omitted).
In the instant case, defendant has cited no reason for the delay and has not met his burden of showing that the delay was due to “neglect or willfulness of the prosecution.” See id. Defendant admits in his brief that the record does not reveal the reason for delay “and any guess into the reason for the delay would be mere speculation on this record.” Furthermore, the only cause for delay that is apparent from the record was a result of defendant's actions. The first delay was caused by defendant's failure to appear in court. Defendant was charged on 27 June 2008, but failed to appear in court and was subsequently taken into custody on 10 February 2010 and could only be released upon posting a $1,005,000.00 bond. Defendant was not incarcerated during the entire delay and he had failed to appear for a scheduled court date.
The third factor of the speedy trial analysis is whether defendant asserted his right to a speedy trial. While a defendant is not required to assert the right to a speedy trial, “ failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Hammonds, 141 N.C.App. at 158, 162, 541 S.E.2d at 172, 174 (citations omitted). Furthermore, when a defendant waits to assert the right, the delay weighs “against his contention that he has been denied his constitutional right to a speedy trial.” Id. at 162, 541 S.E.2d at 174 (citations omitted).
In the instant case, defendant's “Motion to Exclude Evidence,” asserted violations of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. Defendant's attorney included the claim that defendant's case was never calendared for trial while he was in custody. Although defendant never filed a motion designated as a “Motion for a Speedy Trial”, we find the statements in defendant's Motion to Exclude Evidence sufficient to assert his claim of a right to a speedy trial. However, we also note that defendant was charged on 27 June 2008 and never claimed his right to a speedy trial prior to trial on 9 May 2011. After defendant's trial in June 2011, he was sentenced and given credit for the 388 days he was incarcerated. The delay in asserting his right to a speedy trial weighs “against his contention that he has been denied his constitutional right to a speedy trial.” Id.
Finally, we must determine whether the delay prejudiced defendant. The United States Supreme Court and North Carolina Supreme Court have recognized “objectives of the right to speedy trial: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. See also Spivey, 357 N.C. at 122, 579 S.E.2d at 256. Defendant has the burden to prove he was prejudiced by the delay. Hammonds, 141 N.C.App. at 163, 541 S.E.2d at 175.
In the instant case, defendant alleges that he was prejudiced by all three factors. Defendant contends that the 388 days spent incarcerated was an oppressive punishment and the time spent incarcerated caused him anxiety and concern. This argument is unpersuasive. While any time that one is incarcerated could be considered oppressive, the trial court sentenced defendant and gave him credit for the 388 days. Furthermore, defendant was only placed in custody because he failed to appear in court.
Defendant also contends the delay caused loss of evidence and diminished the credibility of his witnesses. However, lost witnesses and impaired memory exist in most criminal cases. Id. In the instant case, Officer Marr's “detail report” was lost and the report used at trial was a “pursuit report.” The “pursuit report” was much more generalized than Officer Marr's testimony in court that included important details missing from the “pursuit report.” Furthermore, the “pursuit report” and Officer Marr's testimony differed and defendant contends if the trial had occurred earlier, the “detail report” could have been available and would have provided beneficial information for defendant. For example, the written documentation indicated that the vehicle sped off as Officer Marr approached the vehicle. Officer Marr testified that defendant was the driver of the vehicle, that he approached the car, and asked defendant for his driver's license, but when he returned to his car the driver left. While we agree that the “detail report” would have provided additional information regarding defendant's case, the absence of the report is not sufficient to create prejudice. Here, defendant's attorney was able to cross-examine Officer Marr regarding the differences between his testimony in court and the information in the “pursuit report.” In addition, defendant's attorney made it clear during cross-examination that the reports completed by Officer Marr after the accident indicated that defendant's license was recovered at the scene of the accident, not at the initial stop.
Defendant also contends that his witnesses, McGill and Lashika Burris (“Lashika”) lost credibility with the passage of time. From the time of the accident to the time of defendant's trial, McGill was convicted of first-degree murder. Defendant contends this information made McGill's testimony, that defendant was not in the car at the time of the incident, less credible. Had the trial occurred before McGill's conviction, defendant contends he would have been a more credible witness. In addition, Lashika testified at trial that defendant was not with McGill and Burris on the night in question because he went home with her after leaving the club. Defendant contends that the jury was less likely to believe Lashika's testimony because so much time had passed.
While the delay between the charges and the trial may have affected the credibility of defendant's witnesses it also may have affected the credibility of the State's witnesses. The jury was instructed as follows:
... you are the sole judges of the credibility or the believability of the testimony of each witness. You must decide for yourselves whether to believe the testimony of any witness. You may believe all or part or none of what a particular witness has testified to on the witness stand. In determining whether you will believe the testimony of any witness, you should rely upon the same tests of truthfulness that you use in your everyday lives. These tests may include the opportunity of the witness to see, to hear, to know or to remember the facts and occurrences about which the witness has testified, the manner and appearance of the witness, any interest, bias or prejudice the witness may have, the apparent understanding and fairness of the witness, whether the witness' testimony is reasonable and whether the witness' testimony is consistent with other believable evidence in the case.
... you are also the sole judges of the weight to be given to any evidence. By this I mean if you decide that certain evidence is believable you must then determine the importance of that evidence in light of all the other believable evidence in the case.
Burris and McGill were both found near the vehicle the night of the accident and both testified in court. Burris testified that defendant was driving and McGill testified that he was not. It was within the jury's purview to determine the credibility and truthfulness of the witnesses. See State v. Castaneda, ––– N.C.App. ––––, ––––, 715 S.E.2d 290, 294 (2011), appeal dismissed, review denied,365 N.C. 354, 718 S.E.2d 148 (2011) (citation omitted) (“[i]t is fundamental to a fair trial that the credibility of the witnesses be determined by the jury”).
Although we find that defendant's claim for his right to a speedy trial was implied in his Motion to Exclude Evidence and the delay could be considered presumptively prejudicial, defendant has failed to meet his burden of showing that the reason for the delay was unjust and that the delay prejudiced him. Balancing the four factors described in Pippin we do not find that defendant was denied his constitutional right to a speedy trial. We find that defendant was not prejudiced by the delay in his trial. Accordingly, we find no error.
No error. Judge BEASLEY concurs.
Judge STEELMAN concurs in the result by separate opinion.
Report per Rule 30(e). STEELMAN, Judge, concurring in the result.
I fully concur in the result reached by the majority that there was no error in defendant's trial and that there was not a speedy trial violation. I write separately because I disagree with the majority's conclusion that defendant's “Motion to Exclude Evidence” filed on 9 May 2011 constituted a motion for a speedy trial pursuant to N.C. Gen.Stat. § 15A–954 (a)(3) (2011). The motion sought to exclude additional discovery delivered by the State to defendant's counsel on 9 May 2011. The motion complains about the delay in providing the discovery and notes that the charges have been pending for “nearly 3 years.” (R. p. 13). However, nowhere in the motion does defendant invoke his right to a speedy trial under the Constitution of the United States, or the Constitution of the State of North Carolina as required by N.C. Gen.Stat. § 15A–954(a)(3).