Opinion
No. COA11–1346.
2012-05-15
STATE of North Carolina v. Lance Adam GOLDMAN.
Attorney General Roy Cooper, by Assistant Attorney General LaShawn S. Piquant, for the State. W. Michael Spivey for defendant-appellant.
Appeal by defendant from judgment entered 21 April 2011 by Judge Wayland J. Sermons, Jr., in Dare County Superior Court. Heard in the Court of Appeals 1 May 2012. Attorney General Roy Cooper, by Assistant Attorney General LaShawn S. Piquant, for the State. W. Michael Spivey for defendant-appellant.
STEELMAN, Judge.
The trial court properly denied defendant's motion to dismiss based upon alleged speedy trial violations.
On 27 June 2009, Lance Adam Goldman (“defendant”) was charged with possession of counterfeit currency and destruction of evidence and was arrested. On 30 June 2009, defendant was found to be indigent in District Court and the public defender was appointed to represent him. On 5 July 2009, defendant was released on bond. The public defender assigned an attorney to represent defendant on 7 July 2009. On 10 July 2009, the case was continued at defendant's request. Defendant was indicted on 8 September 2009 for two counts of possession of a counterfeit instrument, destruction of evidence, and resisting, delaying and obstructing an officer in the discharge of his duty. A superseding indictment was handed down on 19 April 2010.
On 15 February 2010, defendant was surrendered by his surety and returned to custody. On 7 April 2010, defendant filed a motion to discharge his appointed counsel, as well as a pro se motion to dismiss the charges. His counsel filed a motion to withdraw a short time later. On 3 May 2010, the public defender was again appointed to represent defendant. On 10 May 2010, defendant filed another motion to continue. The cases were continued until 7 June 2010. At defendant's request, the case was once again continued to 2 August 2010.
On 24 June 2010, Judge Jerry R. Tillet denied defendant's motion to discharge the public defender and appoint alternate counsel. On 6 July 2010, defendant filed a motion for leave to act as co-counsel, which was denied by Judge Tillet. On 25 October 2010, Judge Tillet entered an order recusing himself from the case, in part based on defendant's repeated pro se motions.
On 4 March 2011, defendant filed a pro se motion to suppress evidence and dismiss the charges, and on 17 March 2011, he filed a pro se motion to dismiss the charges based on a violation of his right to a speedy trial. On 18 April 2011, Judge Sermons entered an order denying the speedy trial motion. Judge Sermons denied defendant's motion to suppress in an order entered on 21 April 2011.
On 21 April 2011, the jury found defendant guilty of altering, destroying, or stealing evidence relating to a criminal offense. Defendant was found not guilty of resist, delay, or obstructing a law enforcement officer. A mistrial was declared on the charge of possession of a counterfeit instrument. The trial court found defendant to be a prior felony record level IV and sentenced him to 8 to 10 months imprisonment.
Defendant appeals.
II. Denial of Speedy Trial Motion
In his only argument on appeal, 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.
“Both the fundamental law of this state and the Sixth Amendment to the United States Constitution guarantee those persons formally accused of crime the right to a speedy trial.” State v. Avery, 302 N.C. 517, 521, 276 S.E.2d 699, 702 (1981) (citations omitted). The “factors to be considered in determining whether a defendant's constitutional right to a speedy trial has been violated 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) prejudice to defendant resulting from the delay.” Id. at 521–22, 276 S.E.2d at 702 (citing Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101 (1972)). “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.” State v. McKoy, 294 N.C. 134, 140, 240 S.E.2d 383, 388 (1978). “Thus the circumstances of each particular case must determine whether a speedy trial has been afforded or denied, and the burden is on an accused who asserts denial of a speedy trial to show that the delay was due to the neglect or wilfulness of the prosecution.” Id. at 141,140 S.E .2d at 388.
Although a substantial period of time elapsed between defendant's arrest and the trial in this case, we hold that defendant has failed to demonstrate that the delay was the result of the prosecutor's neglect or willful acts. To the contrary, the record supports the trial court's conclusion that the delay was the result of defendant's own requests for continuances as well as his motions and complaints about various officials involved in the case. “An accused who has caused or acquiesced in the delay will not be allowed to use it as a vehicle in which to escape justice.” Id. Furthermore, defendant did not file a written motion asserting his right to a speedy trial until March of 2011, shortly before his case was to be tried before a jury. Defendant's late assertion of the right further weighs against his claim. See State v. Flowers, 347 N.C. 1, 28, 489 S.E.2d 391, 407 (1997) (citation omitted). Finally, defendant has failed to articulate any prejudice suffered as a result of the delay in bringing his case to trial. Accordingly, we hold that defendant's claim lacks merit and affirm the order of the trial court.
NO ERROR. Chief Judge MARTIN and Judge THIGPEN concur.
Report per Rule 30(e).