Opinion
No. COA12–511.
2012-12-4
STATE of North Carolina v. Geoffrey Kevin ROBESON, Jr.
Attorney General Roy Cooper, by Special Deputy Attorney General J. Allen Jernigan, for the State. Irving Joyner, for defendant-appellant.
Appeal by defendant from judgment entered 27 October 2011 by Judge H. William Constangy in Cabarrus County Superior Court. Heard in the Court of Appeals 23 October 2012. Attorney General Roy Cooper, by Special Deputy Attorney General J. Allen Jernigan, for the State. Irving Joyner, for defendant-appellant.
BRYANT, Judge.
Where defendant failed to properly preserve his arguments regarding the admission of 404(b) evidence, we dismiss his arguments. Where defendant's constitutional right to a speedy trial was not violated, we hold the trial court did not err in denying defendant's motion to dismiss.
Facts and Procedural History
On 20 September 2010, defendant Geoffrey Kevin Robeson, Jr. was charged with multiple offenses that occurred on 31 August 2010. At trial, Jeremy Page, a detective with the Kannapolis Police Department in the vice narcotics unit, testified that on 31 August 2010 he was travelling eastbound on Lane Street approaching Wright Avenue. Detective Page saw defendant driving a vehicle, approaching westbound towards Wright Avenue. While Detective Page was preparing to make a right turn onto Wright Avenue, defendant put on his left turn signal to turn onto Wright Avenue. As Detective Page was preparing to make his right turn, he testified that defendant's car made a “sudden and erratic right-hand turn, traveled left of center down Wright Avenue at a high rate of speed, [and] finally crossed back on to the right side of the roadway.” Detective Page pulled defendant's vehicle over and “immediately smelled a strong odor of marijuana emanating from the vehicle.” After checking defendant's driver's license status, Detective Page learned that defendant had nineteen active warrants entered by the Salisbury Police Department and called on Officer David Drake of the Kannapolis Police Department for assistance in getting defendant out of his vehicle and placing him under arrest.
After placing defendant under arrest, Detective Page testified that he and Officer Drake conducted a search of defendant's vehicle based on the strong odor of marijuana. Located in the trunk of defendant's vehicle was the following: a “bread-bag-type” bag containing thirty-two (32) individually wrapped ounce-size bags of marijuana; eight loose bags of marijuana; a backpack which contained a laptop computer with marijuana residue on it and sandwich bags; a box of 32–caliber ammunition; two boxes of 22–caliber ammunition; five loose 9–millimeter bullets; pill bottle with 22 Amoxicillan pills; two blue pills with no markings; and, a Xanax bar.
Elizabeth Reagan, a special agent and forensic chemist with the North Carolina State crime lab at the Western Regional Lab, testified that the substance recovered at the scene was marijuana at a weight of 1,070.2 grams, or 37.7 ounces.
Defendant was charged with the following: felony possession of marijuana; simple possession of Alprazolam (Xanax); possession with intent to sell and deliver marijuana; possession of drug paraphernalia; driving left of center; and, maintaining a vehicle to keep controlled substances.
On 27 October 2011, a jury convicted defendant of felony possession of marijuana, felony possession with intent to sell and deliver marijuana, possession of drug paraphernalia, and knowingly maintaining a vehicle to keep controlled substances. Defendant was sentenced to a term of six to eight months with credit for 422 days served. From this judgment, defendant appeals.
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Defendant presents the following issues on appeal: whether the trial court erred (I) by allowing the state's witnesses to testify regarding defendant's prior acts of misconduct pursuant to Rule 404(b); and (II) by denying defendant's motion to dismiss the charges as the result of a speedy trial violation.
I
In his first argument, defendant contends that the trial court erred by admitting evidence of defendant's prior acts of misconduct under Rule 404(b). Defendant argues that the evidence of his prior acts had no probative value as to whether he was in possession of marijuana and/or whether he intended to sell or deliver this marijuana on 31 August 2010. He also argues that the prior acts were dissimilar to his acts on 31 August 2010 and that the 1 April 2004 prior act lacked temporal proximity to his present charges.
A voir dire hearing was held by the trial court to consider the State's 404(b) evidence. Defendant's objection to the 404(b) evidence was overruled. Thereafter, during the trial, six witnesses testified to Rule 404(b) evidence without objection from defendant. Deputy Steve Stoner of the Rowan County Sheriff's Department and Charles Beeker of the Concord Police Department testified to their contact with defendant on 1 April 2004 where defendant fled from a checkpoint and where Deputy Stoner found drug paraphernalia in the trunk of defendant's vehicle. Deputy Stoner also testified to his contact with defendant on 7 May 2004 where defendant was pulled over due to his outstanding warrants and defendant attempted to flee. Mike Brady, a lieutenant with the Rowan County Sheriff's Department, testified to events that occurred on 7 May 2004 where he was dispatched to assist in a car chase involving defendant and where Officer Stoner was injured. During that arrest of defendant, 43 grams of marijuana packaged in eighteen (18) plastic baggies were found near defendant. Mark Shue, an officer with the Salisbury Police Department, testified that on 7 May 2004, he assisted Brady in arresting defendant and searching for marijuana. Mark Hunter, a patrol sergeant with the Salisbury Police Department, testified that on 26 June 2010, he came in contact with defendant who attempted to flee from a vehicle stop. Once defendant was captured and arrested, 60 grams of marijuana packaged in plastic baggies were found after having been thrown from defendant's person. Jeremy Cable of the Salisbury Police Department testified that on 26 June 2010, he pursued defendant after defendant attempted to flee from a vehicle stop and witnessed defendant pull something out of his pocket and throw it behind him.
First, we note that “[d]ue to defendant's failure to object at trial, we must review this objection under the plain error rule.” State v. Harding, 110 N.C.App. 155, 161, 429 S.E.2d 416, 420 (1993). However, because defendant did not “specifically and distinctly” contend that the admission of the 404(b) evidence amounted to plain error as required by the North Carolina Rules of Appellate Procedure 10(a)(4) in his brief, defendant is not entitled to plain error review of this argument. N.C. R.App. P. 10(a)(4) (2012); See State v. Dennison, 359 N.C. 312, 608 S.E.2d 756 (2005). Accordingly, defendant's argument is dismissed.
II
Next, defendant argues the trial court erred by denying defendant's motion to dismiss his charges as a result of a speedy trial violation.
The right to a speedy trial is guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section 18 of the North Carolina Constitution. See State v. Hammonds, 141 N.C.App. 152, 158, 541 S.E.2d 166, 172 (2000).
In Barker v. Wingo ... the United States Supreme Court established a balancing test involving four interrelated factors for courts to conduct on a case by case basis in determining whether a defendant's constitutional right to a speedy trial has been violated. These factors include: (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 defendant resulting from the delay.
Hammonds, 141 N.C.App. at 158, 541 S.E.2d at 172 (citation omitted). None of the four Barker factors are 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 .” Id.
Here, defendant was arrested on 31 August 2010 on charges of felony possession of marijuana, possession with the intent to sell marijuana, and maintaining a vehicle that was used for keeping and selling marijuana. On 28 February 2011, defendant completed an inmate request form, indicating that he requested a speedy trial for all of his pending charges in Cabarrus County. The Clerk of Superior Court of Cabarrus County forwarded this request to the District Attorney's office on 1 March 2011. On 16 September 2011, defendant filed a motion for a speedy trial. The Clerk of Superior Court of Cabarrus County forwarded the motion to the District Attorney's Office on 21 September 2011.
Thereafter, defendant's trial commenced on 25 October 2011. At trial, although the State argued that defendant's motion be stricken because it was not served properly, the trial court heard the merits of defendant's motion. The trial court denied defendant's motion, stating the following:
In accord with the State vs. Hammonds case and factors set forth in that case, the Court will find that there has not been any neglect or willful delay on the part of the State, that there was a good-faith delay reasonably necessary for the State to prepare and present its case. There's been no—the defendant has not borne its burden of proof to show that this was anything other than a good-faith delay.
We will now analyze the four Barker factors.
Length of Delay
“The length of time that is appropriate between formal accusation and trial in each case is initially within the discretion of the trial court.... [S]ome delay is inherent and must be tolerated in any criminal trial; for example, the state is entitled to an adequate period in which to prepare its case for trial.” Id. at 159, 541 S.E.2d at 172 (citations and quotations omitted).
The Hammonds court noted that the United States Supreme Court has generally found post-accusation delay “presumptively prejudicial” when it approaches one year. Id. at 159, 541 S.E.2d 173 (citation omitted). Here, defendant was arrested on 31 August 2010 and tried on 25 October 2011, a delay of approximately one year and two months. Although defendant's post-accusation delay is presumptively prejudicial, it “does not necessarily indicate a statistical probability of prejudice[.]” Id.
Reason for Delay
The constitutional guarantee does not outlaw good-faith delays which are reasonably necessary for the State to prepare and present its case.... Neither a defendant nor the State can be protected from prejudice which is an incident of ordinary or reasonably necessary delay. The proscription is against purposeful or oppressive delays and those which the prosecution could have avoided by reasonable effort. The burden is on an accused who asserts the denial of his right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution.
Id. at 160, 541 S.E.2d at 173 (quoting State v. Johnson, 275 N.C. 264, 273, 167 S.E.2d 274, 280 (1969)).
Here, defendant argues that his delay “resulted from the Prosecutor's deliberate and intentional policy and practice to try the oldest cases first. This calendar setting practice was purposeful and, for this [defendant], resulted in an oppressive failure to try the case in a constitutional and timely manner.” We disagree.
Defendant argues that the prosecutor failed to provide an adequate justification for why defendant's case was not scheduled earlier. However, it is defendant who bears the burden of showing that the delay was based on the neglect or willfulness of the prosecution. State v. Webster, 337 N.C. 674, 679, 447 S.E.2d 349, 351 (1994). At trial, the State indicated that although Cabarrus County had a “backup,” it was trying cases from “oldest to most recent.” The trial court found that the delay had not been due to neglect or willfulness by the State and that defendant had failed to show “this was anything other than a good-faith delay.” A review of the record and defendant's arguments reveal that defendant failed to demonstrate how the delay was due to neglect or willfulness of the prosecution.
Assertion of Right
Regarding the third factor, “[t]he more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Hammonds, 141 N.C.App. at 162, 541 S.E .2d at 174 (citation omitted).
Here, defendant asserted his right to a speedy trial on 28 February 2011 through an inmate request form, indicating that he requested a speedy trial for all of his pending charges in Cabarrus County. The Clerk of Superior Court of Cabarrus County forwarded this request to the District Attorney's office on 1 March 2011. On 16 September 2011, defendant filed a motion for a speedy trial. The Clerk of Superior Court of Cabarrus County forwarded the motion to the District Attorney's Office on 21 September 2011. Although defendant's motion failed to comply with N.C. Gen.Stat. § 15A–951(c) (2011), as it was not served on the State and did not have a certificate of service, the trial court heard the merits of his motion.
Prejudice to Defendant
In considering this last factor, “the United States Supreme Court has recognized three objectives of the right to a 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. (citation omitted). “The defendant has the burden of proving the fourth factor.” State v. Hughes, 54 N.C.App. 117, 120, 282 S.E.2d 504, 506 (1981).
Here, defendant argues that “spending 13 months in jail awaiting a trial for an offense which carries a presumptive sentence of four to six months or a maximum exposure of eight to ten months is oppressive and maximizes a defendant's anxiety and concerns that his case is being handled in a fair and just manner.”
Even though “[d]efendant is not removed from the constitutional guarantee of a speedy trial because he was incarcerated for an unrelated offense at the time he made his motion to dismiss[,]” a review of the record reveals that defense counsel conceded that although defendant had served almost 14 months in custody, defendant would still be in custody based on other pending charges after being sentenced in the present case. Id. Further, defendant has failed to indicate in any way how his defense would be impaired.
Upon balancing the four Barker factors and considering the circumstances of defendant's case, we conclude that defendant has failed to demonstrate a violation of his constitutional right to a speedy trial. Therefore the trial court did not err by denying defendant's motion to dismiss his charges.
No error. Judges McGEE and THIGPEN concur.
Report per Rule 30(e).