State v. Williams , 40 N.C. App. 178 ( 1979 )

ARNOLD, Judge.

Defendant makes two arguments in support of his assertion that he was denied his constitutional right to a speedy trial. He first contends that the five and one-half year delay was both wilful and prejudicial.

The trial court found that defendant was in North Carolina on parole from New York at the time of Feaster’s killing; that defendant was questioned and released on the day of the killing and left a week later for New York; that a warrant for defendant’s arrest was issued on 20 July 1972, six days after the killing, and numerous unsuccessful attempts were made to locate the defendant and serve the warrant on him; that subsequent to march 1974 the North Carolina police learned that defendant was in the New York State Prison System and requested that he be returned to North Carolina for trial; that about 4 August 1975 defendant was indicted for Feaster’s murder; that despite repeated requests from North Carolina the New York authorities were unable to find defendant in their prison system; that when he was found defendant fought extradition; that on 12 November 1977 a warrant was served on defendant in New York and he was returned to North Carolina for trial; and that defendant never made any demand for a speedy trial. From these findings the court concluded that defendant was not denied his right to a speedy trial.

The trial court ruled correctly. While the delay was long, the defendant has not met his burden of showing that the delay was due to the State’s wilfulness or neglect. State v. Spencer, 281 N.C. 121, 187 S.E. 2d 779 (1972). Indeed, defendant made no showing that the facts were otherwise than those found. Nor did the defendant make a written request for final disposition of the indictment under G.S. 15A-761, Art. 111(a).

The standards for determining whether a defendant has been deprived of his constitutional right to a speedy trial are set out in Barker v. Wingo, 407 U.S. 514, 33 L.Ed. 2d 101, 92 S.Ct. 2182 (1972). We have applied the required balancing test and have determined that defendant was not denied his right to a speedy trial. The delay was a long one, but this factor is essentially a triggering mechanism which requires consideration of the other factors. There is no showing that the delay was due to either negligence or wilfulness on the part of the State. It appears that a concerted effort was made to locate defendant and, when he was found, to have him returned to North Carolina for trial. Defendant made no demand to be brought to trial, and in fact resisted extradition. The trial court found some prejudice to defendant in the unavailability of two alibi witnesses, but noted that there was no showing as to when the witnesses became unavailable, or that they were available at any earlier time.

Defendant also argues that he was denied his right to a speedy trial by the court’s refusal to allow him to limit his testimony at the hearing on the motion to dismiss to his knowledge of the detainer that had been filed against him. Defendant cites no authority for this proposition, and we find the contention without merit. The court correctly ruled that defendant could take the stand “to testify to anything relating to this particular motion,” but could not limit his testimony to just one point.

Defendant next argues that Roseborough’s identification of him as the man in the poolroom who threatened to kill Bobby Blue should have been excluded. It appears from the record that a voir dire hearing was held on the motion to suppress, but the substance of the hearing does not appear. Since the record is bare concerning the hearing there is no basis for this Court to conclude that the trial court’s ruling on the motion was error. Defendant’s counsel in preparing the record on appeal has failed to include the “evidence . . . necessary for understanding of all errors assigned.” Rules of Appellate Procedure, Rule 18(c)(v). This assignment of error is unavailing.

Defendant contends that hearsay evidence was admitted, to his prejudice. Some of the statements to which he refers us were not hearsay. Others were hearsay, but their admission was cured by the immediate sustaining of an objection and motion to strike and an instruction to the jury to disregard the testimony. Thus, there was no prejudice to defendant.

Error is also assigned to the trial court’s comment in the charge to the jury on defendant’s failure to testify. It is not the content of the instruction which he contests, but the fact that it was given in the absence of a special request by defendant. Though our courts have emphasized that it is better practice not to give such an instruction in the absence of a request, the giving of the instruction has not been found to be reversible error. See State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976); State v. Barbour, 278 N.C. 449, 180 S.E. 2d 115, cert. denied 404 U.S. 1023 (1971).

We have considered defendant’s remaining assignments of error and conclude that defendant received a fair trial, free from prejudicial error.

No error.

Judges PARKER and WEBB concur.