Opinion
No. COA14–1085.
04-07-2015
STATE of North Carolina v. Walter Timothy GAUSE.
Roy Cooper, Attorney General, by Robert D. Croom, Assistant Attorney General, for the State. Kimberly P. Hoppin for defendant-appellant.
Roy Cooper, Attorney General, by Robert D. Croom, Assistant Attorney General, for the State.
Kimberly P. Hoppin for defendant-appellant.
STEELMAN, Judge.
Where the long delay in bringing defendant's cases to trial was due to defendant being incompetent to stand trial, and defendant having four different trial counsel, the trial court did not err in denying defendant's motion to dismiss for an alleged speedy trial violation. Defendant failed to show that the trial court committed plain error in admitting a video surveillance tape and testimony concerning subsequent conduct of defendant. Where there was insufficient evidence presented at trial and the sentencing hearing to support the trial court's order of restitution, that order is vacated and remanded for further proceedings.
I. Factual and Procedural Background
On 12 March 2007, the Red Ball Grocery in Charlotte was robbed. During the robbery, the robber grappled with the store owner over a gun, which discharged, injuring the owner and causing injury to the robber's hand. Following the robbery and shooting, police found a trail of blood droplets leading from the store to railroad tracks at the rear of the store. Along the trail of blood droplets, police found money with blood on it. At the end of the trail, officers found discarded clothing. The DNA extracted from the blood found inside of the store, in the parking lot, and on the money found in the parking lot, matched defendant's DNA profile.
The next day, police officers saw Walter Gause (defendant) nearby, matching the description of the robber, with an injured hand and in possession of a crack pipe. Defendant was taken to a hospital to have his hand treated. On 21 March 2007, defendant was arrested. On 9 April 2007, he was indicted for robbery with a dangerous weapon, assault with a deadly weapon inflicting serious injury, and conspiracy to commit robbery with a dangerous weapon.
In October of 2008, he was found incapable of proceeding to trial, and was committed to Broughton State Hospital from December of 2008 to January of 2009, at which time he was returned to the Mecklenburg County jail to await trial. On 25 September 2009, defendant was again found incapable of proceeding to trial. An evaluation of defendant's competency was attempted in February of 2011, but the examiner found that, because of defendant's behavior, an evaluation was impossible.
On 28 March 2012, nearly five years after his indictment, defendant, through counsel, filed a motion for a speedy trial. On 17 February 2014, the first day of trial, defendant filed a motion to dismiss the indictments based upon the trial court's failure to preserve evidence and upon a violation of defendant's right to a speedy trial.
That same day, the trial court ordered an examination of defendant to determine whether he was competent to stand trial. It also conducted a pre-trial hearing concerning the destruction of blood swabs and the clothing found by the railroad tracks. At that hearing, the lead detective for the case explained that he had spoken with someone in the District Attorney's office, and had been informed that, based upon defendant's lack of competence to stand trial, the case was “likely never going to trial[.]” The detective then submitted the clothing and blood to be destroyed. The trial court denied defendant's motion to dismiss based upon the destruction of the evidence and alleged speedy trial violation, and denied defendant's motion to suppress evidence.
The trial court then conducted a hearing on defendant's capacity to stand trial. Melissa Zhiss, a psychologist, evaluated defendant prior to trial. She noted that defendant was schizophrenic, but concluded that he was competent to stand trial. Based upon this testimony, the trial court also concluded that defendant was competent to stand trial.
On 20 February 2014, the jury found defendant guilty of all three charges. On 21 February 2014, the trial court sentenced defendant to consecutive active sentences of 146–185 months imprisonment for robbery with a dangerous weapon and conspiracy, and 59–80 months for assault with a deadly weapon inflicting serious injury. The trial court also filed a written order on 6 March 2014, denying defendant's motion to dismiss based upon violation of his right to a speedy trial.
Defendant appeals.
II. Motion to Dismiss
In his first argument, defendant contends that the trial court erred in denying his motion to dismiss based upon a violation of his right to a speedy trial. We disagree.
A. Standard of Review
“This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith,186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “Whether the undisputed evidence supports the implied conclusion of the trial court that defendant's constitutional rights to a speedy trial were not violated requires application of legal principles and thus is reviewable de novo.” State v. Chaplin, 122 N.C.App. 659, 664, 471 S.E.2d 653, 656 (1996) (citing Coble v. Coble, 300 N.C. 708, 713, 268 S .E.2d 185, 189 (1980) ).
B. Analysis
In Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101 (1972), the Supreme Court of the United States established a balancing test involving four factors to consider when a violation of the constitutional right to a speedy trial is alleged. Those factors are: (1) the length of the delay; (2) the reason for the delay; (3) defendant's assertion of his right to a speedy trial; and (4) prejudice to the defendant resulting from the delay. None of these factors is outcome determinative; rather, they must be balanced against one another. Id.at 530–33, 33 L.Ed.2d at 117–19. Our courts have adopted these standards in analyzing alleged speedy trial violations. See State v. Bare, 77 N.C.App. 516, 519, 335 S.E.2d 748, 750 (1985).
With respect to the first factor, we note that there was a delay of almost seven years between defendant's indictment and the commencement of the trial. This is in excess of the one year threshold necessary to begin a Barkerinquiry. See Doggett v. United States, 505 U.S. 647, 652 n. 1, 120 L.Ed.2d 520, 528 n. 1 (1992). We hold that this delay was “presumptively prejudicial” under Barker.
With respect to the second factor, the reason for the delay, North Carolina courts have held generally that the defendant bears the burden of showing that the delay is due either to neglect or willfulness on the part of the prosecution. See State v. McKoy, 294 N.C. 134, 141, 240 S.E.2d 383, 388 (1978). The proscription against delays does not outlaw those delays made in good faith, but rather “is against purposeful or oppressive delays and those which the prosecution could have avoided by reasonable effort.” State v. Washington,192 N.C.App. 277, 283, 665 S.E.2d 799, 804 (2008) (citations and quotations omitted). In the instant case, the delay was due to the fact that defendant was found incompetent to stand trial. In fact, defendant was only found competent to stand trial the day that proceedings commenced, on 17 February 2014. We hold that the primary reason for the delay, defendant's incompetence to stand trial, was not the fault of the prosecution.
With respect to the third factor, defendant's assertion of his right to speedy trial, the first motion for speedy trial in the record is dated 28 March 2012, nearly five years after defendant's indictment. Despite defendant's contentions that he had contacted his attorneys, as well as the offices of the trial court, Clerk of Court, and Assistant District Attorney, that motion is the earliest motion in the record, and thus the first that we may consider.
At the time that defendant's first motion was filed, he was represented by Mr. Hoel. Subsequently, Mr. Hoel withdrew from his representation of defendant, and was replaced by Norman Butler. All of this was in March of 2012. On 21 March 2012, defendant's cases were set for trial, but were not reached. Over the next several months, Mr. Butler filed pre-trial motions on defendant's behalf and requested plea offers, and the case was calendared but “not reached .” This continued throughout 2013. On 7 October 2013, the matter was once more calendared, but not reached, this time because Mr. Butler was unavailable. Defendant subsequently moved to have Mr. Butler removed as his attorney. This motion was heard and granted on 20 November 2013. On 25 November 2013, Kimberly Saxton was appointed as defendant's counsel. On 12 December 2013, Ms. Saxton moved to withdraw, based upon defendant's threats to sue her. On 13 December 2013, Denzil Forrester was appointed to represent defendant. The matter was ultimately calendared for 17 February 2014, on which date Mr. Forrester filed the motion to dismiss for speedy trial violation and the destruction of evidence.
It is clear from the record that much of the delay in the time between defendant's initial motion for a speedy trial and the actual trial itself stems from defendant's repeated issues with legal counsel. The record indicates that defendant's cases were scheduled for trial on 21 March 2012. From that point in time until the trial in February of 2014, defendant went through four lawyers (Hoel, Butler, Saxton and Forrester). We hold that none of this delay was attributable to the State.
As to the total delay of seven years, defendant argues that since he was incompetent, the State must therefore be responsible for the delay. We note that throughout this period, defendant was represented by counsel, and that these counsel made more than one motion to have defendant evaluated for his competency to stand trial. While N.C. Gen.Stat. § 15A–1002 does permit the prosecutor, the defendant, defense counsel, or the trial court to seek a hearing on defendant's competence to stand trial, “the burden is on the defendant to request a hearing, and failure to do so constitutes a waiver.” State v. Leyshon, 211 N.C.App. 511, 521, 710 S.E.2d 282, 290 (2011).
We hold that the third Barkerfactor cuts against defendant for failure to file a speedy trial motion for five years, for going through four attorneys in the subsequent two years, and for not making additional motions for a hearing on defendant's competency.
Lastly, with respect to prejudice resulting from the delay, defendant contends that the delay resulted in prejudice to his defense, specifically the destruction of evidence, including blood samples and a piece of clothing. Defendant contends that the destroyed evidence might have contained DNA evidence which could have exonerated him. We have previously held that the defendant carries the burden of establishing that DNA testing of evidence would be material to his case, and that he must do so with more than mere conclusory arguments as to the materiality of the evidence. State v. Gardner,–––N.C.App. ––––, ––––, 742 S.E.2d 352, 356, disc. review denied,––– N.C. ––––,749 S.E.2d 860 (2013). In the instant case, defendant offers mere hypotheticals: hadDNA on a jacket been tested and found to match someone else, defendant mighthave been exonerated; haddefendant been able to test the blood evidence himself, there mighthave been a different result on the DNA from that found by the Charlotte–Mecklenburg Crime Laboratory, and he mighthave been exonerated. These mere conjectures are at best conclusory, and do not meet defendant's burden of showing that the evidence was material, and that defendant was prejudiced by its destruction.
As previously noted, the delay of defendant's trial was primarily due to his incompetence to stand trial. Prior to 17 February 2014, defendant had not been found competent to stand trial, and to hold a trial prior to that time would have been futile. We cannot hold that defendant was prejudiced by not being tried at an earlier date.
We acknowledge that seven years is an exceptionally long time between indictment and trial. Because of this lengthy delay, this is a very close case on the issue of whether defendant's right to a speedy trial was violated. However, in weighing the Barkerfactors, we look not only to the number of factors, but also to their quality. What was the real reason for the delay, and was it attributable to the State? We hold that the delay in getting to trial was due to defendant's incompetence to stand trial, and his consistent changing of appointed counsel for the final two years of the delay. In addition, defendant did not make a motion for a speedy trial for five years, and cannot show prejudice by the delay.
Carefully weighing all of these factors, we hold that defendant's right to a speedy trial was not violated, and that the trial court properly denied defendant's motion to dismiss based upon that alleged violation.
This argument is without merit.
III. Admission of Evidence
In his second and third arguments, defendant contends that the trial court committed plain error in the admission of certain evidence. We disagree.
A. Standard of Review
“In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N .C. R.App. P. 10(a)(4) ; see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied,555 U.S. 835, 172 L.Ed.2d 58 (2008).
[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “fundamentalerror, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “ ‘resulted in a miscarriage of justice or in the denial to appellant of a fair trial’ “ or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”
State v. Lawrence, 365 N.C. 506, 516–17, 723 S.E.2d 326, 333 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) ).
B. Surveillance Video
Defendant contends that the trial court committed plain error in admitting a surveillance video of the alleged robbery. Defendant contends that this video was not sufficiently authenticated.
At trial, Patrick Diantete (Diantete), who was working in the store at the time of the robbery, was asked about the video surveillance system in the store. He testified that there were four cameras. His father, the owner of the store, testified that the system was recording properly at the time of the robbery, that he had reviewed the video the evening of the robbery and, to his knowledge, it had not been tampered with. His father also verified his signature and the date on the video, as well as the store's name. The video was admitted into evidence without objection, both for substantive and illustrative purposes. Because defendant offered no objection at trial, we review the admission of this video only for plain error.
Defendant contends that the admission of this surveillance video lacked sufficient foundation, specifically that there was insufficient evidence that the surveillance system was operating properly and insufficient evidence of the chain of custody. Defendant contends that prejudice resulted from the fact that neither Diantete nor his father were able to identify defendant as the robber, and the jury relied upon the video footage; defendant contends that, absent the video, he would not have been convicted.
We note, however, that Diantete's father testified that the system was operating properly. The identification of the video with the signature, the date, and the store name verified the chain of custody. At the crime scene, Officer Adam Planty watched the video with Diantete's sister, who copied it onto a VHS tape. The tape was signed and dated. A copy of the tape was offered and received into evidence. We have previously held that:
A detailed chain of custody has to be established “only if the evidence offered is not readily identifiable or is susceptible to alteration and such alteration has been alleged.” State v. Brown, 101 N.C.App. 71, 75, 398 S.E.2d 905, 907 (1990). If there are weak links in the chain of custody, as Defendant contends, these links relate to the weight of the evidence, not its admissibility. Id.
State v. Greenlee, 146 N.C.App. 729, 732, 553 S.E.2d 916, 918 (2001). In the instant case, Diantete's father identified the video based on his signature, the date, and the store name. Defendant does not contend that the tape had been altered or falsified. Even assuming arguendothat there were weak links in the chain of custody, those go to the weight of the evidence, which is a matter for the jury to consider. The evidence was admitted without objection. We hold that defendant has not shown that the admission of this evidence constituted error, much less plain error.
This argument is without merit.
C. Subsequent Conduct
Defendant contends that the trial court erred in admitting testimony that he was arrested the day after the robbery for possession of a crack pipe.
At trial, the prosecutor asked Sergeant Eubanks if he had contact with defendant on the day following the robbery. Sgt. Eubanks testified that defendant was found with a bloody hand, and was taken to a hospital, because he would not have been admitted to jail with a wound on his hand. Upon further questioning, Sgt. Eubanks explained that defendant was arrested that day for possession of drug paraphernalia, specifically a crack pipe. Defendant did not object to this testimony.
On appeal, defendant contends that the admission of this testimony, stating that defendant had a hand injury matching that of the robber and that he was arrested for possession of a crack pipe, unfairly prejudiced his case. Defendant cites to Rule 404(b) of the North Carolina Rules of Evidence, which holds that evidence of other crimes or bad acts of a defendant is not admissible to show that he acted in conformity therewith. N.C. R. Evid. 404(b). Aside from this rule, defendant cites no other authority to suggest that the admission of this testimony prejudiced his case.
Rule 404(b) provides that evidence of “other crimes, wrongs, or acts” of a defendant is not admissible to show that he acted in conformity therewith. However, evidence of other bad acts may be admissible to show a relevant chain of events. State v. Ratliff, 341 N.C. 610, 618, 461 S.E.2d 325, 330 (1995) (citing State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990) ). Our Supreme Court has held that:
Evidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and setup of the crime, is properly admitted if linked in time and circumstances with the charged crime, or [if it] forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.
Agee, 326 N.C. at 548, 391 S.E.2d at 174 (citation omitted).
In the instant case, the challenged evidence was not admitted under Rule 404(b). Sgt. Eubanks' testimony was not introduced to show defendant's conformity with a particular act. Defendant was charged with robbery and assault. Defendant's possession of drug paraphernalia was unrelated to the robbery. The testimony simply explained why the police took defendant to the hospital, which they would not ordinarily do in the absence of an arrest. Pursuant to State v. Agee,it was not plain error for the trial court to admit this testimony for the purpose of “complet[ing] the story of the crime for the jury.” Further, we hold that the charge of possession of drug paraphernalia would not have prejudiced defendant to the extent that it would have had a probable impact upon the jury's verdict.
This argument is without merit.
IV. Restitution Award
In his fourth argument, defendant contends that the trial court erred in ordering him to pay $4,498.40 in restitution. We agree.
A. Standard of Review
Whether a trial court's award of restitution is supported by competent evidence presented at trial or sentencing is reviewed by an appellate court de novo. See State v. Wilson, 340 N.C. 720, 726–27, 459 S.E.2d 192, 196 (1995). “[E]ven where a defendant does not ‘specifically object to the trial court's entry of an award of restitution, this issue is deemed preserved for appellate review under N.C. Gen.Stat. § 15A–1446(d)(18).” ’ State v. Replogle, 181 N.C.App. 579, 584, 640 S.E.2d 757, 761 (2007) (citation omitted).
B. Analysis
At trial, Diantete's father, who grappled with the robber during the robbery, described an injury he sustained. He explained that he had two surgeries and remained in a cast for three months. He stated that he had stopped attending physical therapy because he was being charged $50 per session, but he did not testify how many sessions he attended. Based upon this testimony, the State requested $7,158.40 in restitution, constituting damages of $2,660.00 for the business, and $4,498.40 to Diantete's father for his injuries.
Defendant contends, and the State concedes, that there was no evidence presented at trial or the sentencing hearing to support the restitution award for Diantete's father's injuries. We agree. The trial court's order for restitution is vacated. Upon remand, the trial court will conduct a hearing on restitution, and upon review of competent evidence, shall determine whether to enter an award of restitution, and if so in what amount.
V. Conclusion
We vacate the trial court's order on restitution, and remand that issue to the trial court for further hearings. With respect to the remainder of defendant's arguments on appeal, we find no error.
NO ERROR IN PART, VACATED AND REMANDED IN PART.
Chief Judge McGEE and Judge BRYANT concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgment entered 21 February 2014 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 2 March 2015.