State v. Brown , 19 N.C. App. 480 ( 1973 )

199 S.E.2d 134 (1973) 19 N.C. App. 480

STATE of North Carolina
v.
Robert Lewis BROWN.

No. 7322SC627.

Court of Appeals of North Carolina.

September 26, 1973. Appeal Dismissed November 21, 1973.

Atty. Gen. Robert Morgan by Donald A. Davis, Asst. Atty. Gen., Raleigh, for the State.

Alston, Pell, Pell & Weston by E. L. Alston, Jr., Greensboro, for defendant appellant.

Appeal Dismissed by Supreme Court November 21, 1973.

VAUGHN, Judge.

Defendant contends that since he was arrested in November 1971 and his case was not heard until February 1973, his right to a speedy trial has been impermissibly abridged. We disagree. Like many other constitutional rights, that of a speedy trial is not absolute with the result that not every delay is improper. "The essential ingredient [of justice] is orderly expedition and not mere speed." Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 3 L.Ed.2d 1041, 1048, quoted in United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 459, 30 L.Ed.2d 468, 474. Indeed the very nature of the criminal process makes a certain amount of delay between arrest and trial inevitable. For this reason, the right to speedy trial has been described as "necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the right of public justice." Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950, 954.

The North Carolina Supreme Court has recently reiterated the view that the appropriateness of a given delay must be evaluated "in light of the circumstances of each case," State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972), and in light of the purpose of the right which is to prevent "purposeful or oppressive delays which the State could have avoided by reasonable effort." State v. Neas, 278 N.C. 506, 180 S.E.2d 12 (1971), quoting State v. Johnson, 275 N.C. 264, 167 S.E.2d 274. The record discloses that Elmore, the victim of the assault which caused paralysis of his legs, was "in the Baptist Hospital, Winston-Salem, North Carolina, from November 11, 1971, until April 27, 1972, except for a one-day trip to Catawba County for a preliminary hearing, when he testified from a stretcher; and that from April 27, 1972, until the latter part of July, 1972, he was in the Craig Rehabilitation Hospital in Colorado; and that upon his return in July, 1972, he was ordered to remain confined to bed for about a month after that date." The unavailability of this witness constituted an obviously acceptable reason for delaying trial. See State v. Brown, 282 N.C. 117, 191 S.E.2d 659. In September 1972, defendant's removal petition was granted. Crowded court calendars in the new forum precluded trial until February 1973, although the State and the defense were ready for trial as of October 24, 1972. Defendant requested removal and should not be allowed undue benefit from any reasonable delay resulting therefrom. State v. Johnson, supra. We do not find that the 4-month delay after removal resulting from a crowded docket was either unreasonable or oppressive or that defendant has shown prejudice by reason of the delay. State v. Brown, supra; State v. Powell, 18 N.C.App. 732, 198 S.E.2d 70.

Defendant asserts that his removal from the courtroom during trial deprived him of his constitutional right to be informed of the accusations against him and to confront his accusers. The court had warned defendant about interrupting the proceedings in a contemptuous manner and defendant was finally given the option of behaving or of being removed from the courtroom. Included among the other disruptions by defendant was the following incident. During the testimony of Officer Elmore defendant interrupted the witness by saying, "you're a liar. You're a goddamn liar. I am not going to be framed." To the court's request that he be quiet, defendant responded, "I am not going to be framed. I don't dig no railroading. The man is lying." At this point, the jury was taken from the courtroom. When the court reprimanded defendant for using vile language, he replied, "I didn't use vile language." Shortly thereafter, defendant asserted, "I said I don't want nobody lying on me, period. If somebody lies, I am going to speak." Defendant also told the court, "What you're saying don't intone with my ears." Upon his refusal to respond to the judge's question of whether he wished to remain in court or not, defendant was removed to an adjoining room where he could hear the proceedings over an intercom system and communicate with counsel by telephone. Defendant was informed he could return to the courtroom if and when he promised to behave. When trial resumed the following day, defendant was seated beside counsel at the counsel table.

It is clear that the court has inherent power "to take whatever legitimate steps are necessary to maintain proper decorum and appropriate atmosphere in the courtroom during a trial." State v. Dickerson, 9 N.C.App. 387, 176 S.E.2d 376. It is equally clear that removing an unruly defendant qualifies as such a legitimate step. As the United States Supreme Court has observed in Illinois v. Allen, 397 U.S. 337, 343-344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353, 359:

"We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly."

Despite the patience of the trial judge and his repeated warnings, the defendant contemptuously persisted in disorderly and disruptive conduct. After his removal from the courtroom, reasonable steps were taken to insure that defendant, if so inclined, could follow the trial and communicate with his attorney. Later, defendant's apparent attempt to thwart the progress of the trial having failed, he was allowed to return to the courtroom. There is no merit in defendant's assignment of error based on his removal from the courtroom.

In other assignments of error defendant contends that the court should have dismissed, before trial, the charge of assault with a deadly weapon with intent to kill inflicting serious injury. Defendant argues that since duplicate charges are impermissible, dismissal was mandated by the pendency of the charge of secret assault arising out of the same incident. In related challenges, petitioner maintains that the court erred in denying a motion to require the State at the close of the evidence to elect between the charge of felonious secret assault and felonious assault with a deadly weapon with intent to kill and to instruct the jury so as to allow it to return a verdict of guilty of both charges. For present purposes it is sufficient to say that since no judgment was entered on the charge of felonious assault inflicting serious injury (G.S. § 14-32(a)), defendant has not been harmed by reason of the verdict on that charge.

Defendant's remaining assignments of error have been considered and found to be without merit. In the trial from which defendant appealed we find no prejudicial error.

No error.

BRITT and HEDRICK, JJ., concur.