State v. O'KELLY

204 S.E.2d 672 (1974)

285 N.C. 368

STATE of North Carolina v. James Franklin O'KELLY, III.

No. 71.

Supreme Court of North Carolina.

May 15, 1974.

*674 Robert Morgan, Atty. Gen. by R. Bruce White, Jr., Deputy Atty. Gen., and Guy A. Hamlin, Asst. Atty. Gen., Raleigh, for the State.

L. Stanley Brown, Charlotte, for defendant-appellant.

HIGGINS, Justice.

By the present appeal, the defendant challenges the refusal of the court to grant his motion to dismiss the charges on the ground his constitutional rights to a speedy trial had been denied. At the hearing on the motion to dismiss, the record shows conclusively that the defendant was in no way responsible for the delay, but was insisting on a speedy trial for fear delay would rob him of witnesses material to his defense.

The State did not see fit to offer explanation or excuse for the delay. If witnesses die or disappear during a delay, the prejudice is obvious. Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969); United States v. Ewell, 383 U.S. 116, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966). "A convict, confined in the penitentiary for an unrelated crime, is not excepted from the constitutional guarantee of a speedy trial of any other charges pending against him.... A defendant who has been indicted is in a position to demand a speedy trial." State v. Johnson, 275 N.C. 264, 167 S.E.2d 274.

The determination whether the constitutional right of a speedy trial has been violated involves four main factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right to speedy trial; and (4) prejudice resulting to the defendant from the delay. State v. Brown, 282 N.C. 117, 191 S.E.2d 659 (citing nine cases in support). See also Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).

The court's findings of fact Numbers 7, 8 and 11, in the light of the authorities cited, offer ample support for and require the conclusion that the defendant's rights to a speedy trial were denied him. The trial court's conclusions of law Numbers 2 and 4 are without support either in the evidence or in the findings.

In State v. Wheeler, 249 N.C. 187, 105 S.E.2d 615, this Court disposed of a problem similar to that now before us.

"We have admiration and respect for the able and painstaking judge who conducted the post conviction hearing in this case. However, on the record as it comes to us we are unable to join in the view that the petitioners' constitutional rights have been afforded them. We think the records and his own findings require decision to the contrary."

We now hold the decision of the Court of Appeals finding no error in the trial was erroneous and must be reversed. The cause will be remanded to the Superior Court of Union County with direction that the judgments against the defendant be vacated, the verdicts set aside and the charges be dismissed.

Reversed.