State v. Baysinger , 28 N.C. App. 300 ( 1976 )

MORRIS, Judge.

Defendant contends that the trial court erred by denying his motion to dismiss for alleged denial of a speedy trial and for his presentation in court while dressed in his prison uniform. We disagree. There is no question that every defendant confronted by the prospect of penal sanction is entitled to an expeditious disposition of the matter. “The fundamental law of this State secures to every defendant the right to a speedy trial.” State v. Hollars, 266 N.C. 45, 50, 145 S.E. 2d 309 (1965). Yet, the actual timetable within which the case must be tried and disposed of is not subject to any fixed standard of time. Our Supreme Court has noted that “\s\peedy 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.” Id. at 51. However, the determination of whether a speedy trial has been afforded to the defendant has not been left to wide-open discretion. Standards have been established and can be reduced to four interrelated factors: “(1) The length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice resulting to defendant from the delay.” State v. Hill, 287 N.C. 207, 211, 214 S.E. 2d 67 (1975).

Slightly over one year transpired between this defendant’s recapture and his trial and conviction, and this period standing by itself' “ ... is not insubstantial.However, we elect to view this factor merely as the ‘triggering mechanism’ that precipitates the speedy trial issue. Viewed as such, its significance in the balance is not great.” Id. at 211. Here, defendant waited for trial on the felonious escape charge while serving a sentence for different' unrelated charges. There is no question that waiting for resolution of the escape charge would be a troublesome cloud in the defendant’s future and could arguably vitiate rehabilitation processes within the penal system. Yet, when a “ ‘ . . . man is in prison [for another offense], a trial might be longer delayed than when the man is held in jail an unreasonable length of time to await trial because an acquittal in the case where the question is raised would not necessarily terminate the imprisonment when the man is in the penitentiary.’ ” (Citation omitted.) State v. Hollars, supra, at 51. This underlying consideration, however, does not excuse the State for delay because “ . . . release from imprisonment is only one of the purposes of a speedy trial, and the danger that long delay may result in impaired memories and the loss of witnesses is as real to a convict as to any other person charged with crime. Presumably, his anxiety with reference to the pending trial is as great as, if not greater than, that of one who has been admitted to bail.” Id. at 51. In this case, defendant never alleged that the delay would or could result in impaired memories or the loss of witnesses. The more important question, therefore, becomes the reason for the delay.

Our Supreme Court, quoting from Barker v. Wingo, 407 U.S. 514, 531, 33 L.Ed. 2d 101, 92 S.Ct. 2182, has stated that “ ‘ [a] deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government.’ However . . . ‘[a] more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.’ ... In this State the burden of showing neglect or wilful delay is on the defendant.” State v. Hill, siopra at 212. Here, defendant has failed to meet this burden.

We do not believe there is any doubt that defendant made a timely request for a speedy trial and we are left to consider the last crucial factor of prejudice to defendant resulting from the delay. Defendant contends that

“ ... in this case his right to move the trial court for a continuance on this ground was substantially prejudiced by the fact of the long delay on the part of the state in bringing him to trial in that he was unfairly confronted with the choice of having to further delay his trial by such a motion to continue or run the risk of having his cause prejudiced in the eyes of the jury by its having observed him in prison clothing. . . .”

We find no merit in this contention. Here defendant was tried in “civilian” garb and even if some of the potential jurors may have seen him in prison clothes we can see no prejudice to defendant in light of all the particular facts of this case.

We have considered the other contentions raised by defendant and find them also to be without merit.

No error.

Judges Parker and Martin concur.