State v. George

156 S.E.2d 845 (1967)

271 N.C. 438

STATE v. John Edward GEORGE.

No. 168.

Supreme Court of North Carolina.

September 27, 1967.

*847 T. O. Stennett, Charlotte, for defendant appellant.

T. W. Bruton, Atty. Gen., and James F. Bullock, Deputy Atty. Gen., for the State.

PLESS, Justice.

Upon cross examination, the Solicitor asked the defendant about his neck brace when he was arrested in California in the early part of December 1963 and charged with armed robbery. It appears that the Solicitor's object was to show that at that time he was not using the neck brace, but the defendant contends that to permit the Solicitor to ask questions which related to the California charge was prejudicial error. We cannot so hold. In the first place, the defendant had testified earlier that he was guilty of armed robbery and that he had plead guilty in the California courts. Also, in two motions he had filed he referred to his imprisonment in California on this charge; therefore, information about it was already before the jury, and no prejudice could result from the questions asked. Further, the questions were competent for the purpose of impeachment. The California charge was the same kind as the one for which the defendant was then being tried, and the questions were competent for the purpose of impeaching him. State v. Broom, 222 N.C. 324, 22 S.E.2d 926. There it is said that the solicitor may ask the defendant, when on the stand as a witness, questions about collateral matters, including charges of other criminal offenses and degrading actions, for the purpose of impeaching his credibility. There is no merit in these exceptions, and they are overruled.

The defendant's principal contention is and the State did not comply with G.S. § 148-89, Article III (a) which provides:

"Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: *848 provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance."

It is to be noted that the statute requires that the defendant be brought to trial within one hundred eighty (180) days after he has given the appropriate notice to the solicitor. He was actually brought to trial twice within less than four months. The first trial occurred the week of 15 August 1966 and resulted in a mistrial. The State, of course, cannot control the fact that a jury is unable to agree upon a verdict and is not chargeable with responsibility under these conditions. In 22A C.J.S. Criminal Law § 472(3), p. 60, it is said: "If accused is tried within the statutory time * * * and such trial results in a mistrial, as when the jury failed to agree, accused cannot ignore the mistrial and claim a discharge or dismissal upon the ground that he was not tried within the time fixed by the statute providing for that relief. * * * (W)hile accused is entitled to a speedy retrial by virtue of the constitutional or statutory guaranty of a speedy trial, the statute providing for a discharge or dismissal if accused is not tried within a stated time does not govern the time within which a retrial must be had, and the time for retrial is a matter of judicial discretion."

On 3 October 1966, the State commenced the second trial of the defendant, this being less than three months after his return to the State. The trial was not had because at that time the defendant moved for a change of venue from Mecklenburg to Gaston County. His motion was allowed. Had he not made it, or had it been denied, the case would probably have been determined at that time; and the defendant cannot complain of delay in his trial when caused by his own motion.

The next day, upon the writ of Superior Court Judge Henry L. Stevens, Jr., the Mecklenburg officers surrendered the defendant to the authorities of New Hanover County; he was taken to Wilmington and remained there for some two months without being tried, at the end of which time he was returned to Mecklenburg County. The record does not reveal the nature or seriousness of the charges in New Hanover County, nor why he was not tried there, but Judge Stevens' order had to be obeyed by the Mecklenburg authorities, and the solicitor was powerless to start another trial in Gaston County until the defendant's return in December.

Some sixty days later the defendant was placed on trial in Gaston County after the defendant had sought his release because of the delay in trying him. This later period could not be held to be an unreasonable delay for several reasons. First, it is generally known that the courts are usually closed for two weeks or more in December on account of Christmas; and we must also recognize that in both Mecklenburg and Gaston Counties the criminal dockets are congested, and that regardless of the efforts of the judge and the solicitor, it is impossible to grant every defendant an immediate trial. The following quotations, omitting citations, from the well-written opinion of Sharp, J., in State v. Hollars, 266 N.C. 45, 145 S.E.2d 309, are pertinent:

"Speedy is a word of indefinite meaning * * * Neither the constitution nor the legislature has attempted to fix the exact time within which a trial must be had. `Whether a speedy trial is afforded must be determined in the light of the circumstances of each particular case. * * * "Four factors are relevant to a consideration of whether denial of a speedy trial assumes due process proportions: the length of the delay, the reason for the delay, the prejudice to defendant, and waiver by the defendant. * * * These factors are to be considered together because they are interrelated. * * *"' "The burden is on the accused who asserts the denial of his right to a speedy *849 trial to show that the delay was due to the neglect or wilfulness of the State's prosecution. The right to a speedy trial is not violated by unavoidable delays nor by delays caused or requested by defendants. * * * (T)he right to a speedy trial `is not designed as a sword for defendant's escape but rather as a shield for his protection.' "We must note * * * that the ever-increasing number of criminal cases is putting a heavy strain upon speedy trial. The flood of post-conviction petitions * * * and the retrials which some of the petitions * * * have necessitated, have further burdened courts which were even then struggling to keep abreast of congested dockets."

Also, in 21 Am.Jur.2d, Criminal Law, § 251, et seq., we find the following excerpts:

"The burden is on the accused who asserts denial of the constitutional right to speedy trial to show that the delay was the fault of the state. * * * (T)he presumption is that any continuance was for a lawful cause. * * * A delay made necessary by the usual and ordinary procedure provided by law in criminal cases is of course permissible. And the right to speedy trial is not violated by unavoidable delays. * * * Docket congestion has been held a sufficient ground for delay. "A defendant's rights * * * are not violated by a delay caused by his own condition or conduct. * * * An accused cannot take advantage of a delay for which he was responsible, whether caused by action or inaction on his part. "In many jurisdictions, the right to speedy trial is waived unless defendant demands trial, * * * or makes some effort to secure a speedier trial than the State accorded him."

The statute under which the defendant makes his claim provides "that for good cause shown * * * the court having jurisdiction of the matter may grant any necessary or reasonable continuance." The record does not show that the defendant moved for a trial at any time. His motion for release was the first time the court had occasion to rule upon the delay; and upon Judge McLean's finding "that the State has used due diligence in the trial, or attempted trial," together with the other facts found, which are stated in this opinion, we hold that to be the equivalent of granting a reasonable continuance.

The defendant also invokes the failure of the Solicitor to try him within one hundred twenty (120) days after his arrival in North Carolina as is required in G.S. § 148-89, Article IV. However, this statute is not applicable here, since it can be invoked only when the prisoner has been returned to the State at the request of the solicitor. The defendant does not make the latter contention, and the record clearly shows that the defendant was brought back to North Carolina upon his own request and not that of the solicitor.

There was ample evidence to submit to the jury and to sustain a verdict of guilty. The defendant brings forth no exceptions to the sufficiency of the evidence nor to the charge of the Court. For the reasons stated, we are of the opinion that Judge McLean was correct in denying defendant's motion to dismiss, and that in his trial there was

No error.