State v. Branch

254 S.E.2d 255 (1979)

41 N.C. App. 80

STATE of North Carolina v. Wendell Ronnie BRANCH.

No. 7816SC1148.

Court of Appeals of North Carolina.

May 1, 1979.

Appeal Allowed July 12, 1979.

*258 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Donald W. Stephens, Raleigh, for the State.

James R. Nance, Jr., Fayetteville and John W. Campbell, Lumberton, for defendant appellant.

Appeal Allowed by Supreme Court July 12, 1979.

*259 HEDRICK, Judge.

Defendant first assigns as error the trial court's denial of his motion to dismiss for failure of the State to grant him a speedy trial. The right of every person formally accused of a crime to a speedy and impartial trial is secured by the fundamental law of this State, State v. Hollars, 266 N.C. 45, 145 S.E.2d 309 (1965), and guaranteed by the Sixth Amendment to the federal constitution, made applicable to the states by the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967); State v. McKoy, 294 N.C. 134, 240 S.E.2d 383 (1978). In determining whether an accused has been denied his right to a speedy trial, the courts have weighed four factors: (1) the length of the delay, (2) the cause of the delay, (3) waiver by the defendant, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. McKoy, supra; State v. Wright, 290 N.C. 45, 224 S.E.2d 624 (1976). Whether a speedy trial has been afforded depends on the circumstances of each particular case, and the burden is on the defendant who asserts denial of a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution. State v. McKoy, supra; State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969).

With regard to the length of the delay, the evidence in the present case discloses a delay of fourteen months from the time of defendant's arrest on 25 August 1976 to the time of his indictment on 10 October 1977. Eight days after defendant's motion to dismiss for lack of a speedy trial was denied, he filed a motion for a special prosecutor, and three days after his motion was filed it was granted. The record discloses that defendant's case was not called for trial until 31 July 1978, approximately nine months after his motion for a special prosecutor was granted. The length of the delay between defendant's arrest and trial, twenty three months, is unusual.

With regard to the second factor, the reason for the delay, the record contains little evidence of explanation. Ordinarily, the burden is on the defendant to show that the delay "was due to the wilful neglect of the prosecution and could have been avoided by reasonable effort." State v. McKoy, 294 N.C. at 141-42, 240 S.E.2d at 389. The courts of this State, however, have recognized an exception to this general rule where the defendant shows a long period of delay. Thus, in the present case, once the defendant showed a seventeen month delay after his request for a speedy trial, the State should have presented evidence fully explaining the reasons for the delay. See State v. Wright, 290 N.C. at 51, 224 S.E.2d at 628. In the present case, the State has failed to offer any explanation for the delay.

The record is also largely silent with regard to the third factor: waiver on the part of the defendant. The defendant made a motion for a speedy trial on 25 January 1977, some five months after his arrest and seven months prior to his indictment. The first hearing on defendant's motion for a speedy trial was on 7 November 1977, and resulted in its denial. Shortly thereafter defendant made a motion for a special prosecutor that was granted. There is no evidence that the defendant made any efforts to have his case called for trial during the nine months after his motion for a special prosecutor was granted. Nevertheless, we are of the opinion that the defendant did not at any time waive his right to a speedy trial.

The final counterbalancing factor is the fourth: prejudice to the defendant. At the first hearing on his motion to dismiss, the defendant presented evidence tending to show that he had lost his job as a result of the publicity surrounding his arrest. He did not present any evidence tending to show that he was prejudiced in his ability to prepare or present his defense. The record discloses that the defendant was free on a substantial bond during this period of time and was engaged in the business of farming. At a second hearing on his motion to dismiss, the only evidence presented of any prejudice was the unavailability of defendant's father to testify at *260 trial due to a stroke suffered approximately two weeks earlier. The defendant testified at the second hearing that his father was with him on 19 August 1976, the night that the tractor-trailer was driven onto the farm the defendant leased. Presumably, defendant's father would have offered testimony to corroborate the testimony defendant gave at trial. There is nothing in the record, however, to indicate what testimony the witness would have given, or how the testimony would have related to his defense to the conspiracy charge. The burden is on an accused who asserts denial of a speedy trial to show that the delay has prejudiced him in his ability to defend himself, and prejudice will not be presumed merely upon a showing of a long period of delay. See State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978). Balancing the above four factors, we think the defendant has failed to show that the prosecution's unexplained delay in bringing him to trial prejudiced him in his ability to present his defense so as to require dismissal of the charges against him.

Defendant next contends that the trial court erred by allowing various witnesses to give hearsay evidence. Hearsay has been defined as testimony of an out-of-court statement offered to prove the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. McCormick on Evidence § 246, at 584 (2d ed. 1972). See also 1 Stansbury's N.C. Evidence § 138 (Brandis rev. 1973). A careful examination of the numerous exceptions relied upon by the defendant reveals that none of the challenged testimony was excludable on the basis of hearsay since it either was not offered to prove the truth of the matters asserted therein, involved out-of-court statements made by the witness himself, or was offered for purposes of corroboration. No useful purpose would be served by further elaboration on these exceptions.

Defendant's final contention is that the trial court erred in allowing various statements of defendant's co-conspirators into evidence against him without the prosecution first offering evidence to show that he was also involved in the conspiracy. In State v. Conrad, 275 N.C. 342, 348, 168 S.E.2d 39, 43 (1969), the Court stated:

The general rule is that when evidence of a prima facie case of conspiracy has been introduced, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members. Consideration of the acts or declarations of one as evidence against the co-conspirators should be conditioned upon a finding: (1) a conspiracy existed; (2) the acts or declarations were made by a party to it and in pursuance of its objectives; and (3) [they were made] while it was active, that is, after it was formed and before it ended. [Citations omitted]

See also State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521 (1975).

In the present case, the trial judge did not allow into evidence statements of co-conspirators against the defendant Branch until two persons had given testimony concerning the existence of the conspiracy, and the State had shown the involvement of the witness, whose statements tended to incriminate the defendant, in the conspiracy. It has been held that the testimony of a single co-conspirator is competent to establish the conspiracy, since it is seldom possible to show the existence of a conspiracy by direct proof. State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974); State v. Bindyke, supra. Once the State has established a prima facie showing of a conspiracy, then the acts or declarations of co-conspirators made in the course of and in furtherance of the conspiracy are admissible to identify others participating in the conspiracy. Such was the situation in the present case.

We hold defendant had a fair trial free from prejudicial error.

No error.

PARKER and CARLTON, JJ., concur.