State v. Wilkerson , 257 N.C. App. 927 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-800
Filed: 6 February 2018
Durham County, No. 10 CRS 56344
STATE OF NORTH CAROLINA
v.
ROBERT E. WILKERSON
Appeal by defendant from order entered 1 February 2017 by Judge W. Osmond
Smith, III in Durham County Superior Court. Heard in the Court of Appeals 8
January 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Marc X.
Sneed, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
Zimmer, for defendant-appellant.
TYSON, Judge.
Robert Earl Wilkerson (“Defendant”) appeals from the denial of his motion to
dismiss for violation of his right to a speedy trial. The superior court failed to
adequately weigh and apply the factors in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d
103 (1972), after our previous remand, and failed to fully consider the prima facie
evidence of prosecutorial neglect. We vacate the superior court’s order and again
remand this matter to the superior court for a full evidentiary hearing and to make
proper findings and analysis of the relevant factors.
STATE V. WILKERSON
Opinion of the Court
I. Background
On 2 July 2010, Defendant was arrested for offenses allegedly occurring on 7
April 2010. Defendant was subsequently indicted for robbery with a dangerous
weapon, conspiracy to commit robbery with a dangerous weapon, and first-degree
murder.
On 7 May 2012, Defendant filed a pro se motion for a speedy trial, which was
adopted by his attorney and argued at a hearing on 23 August 2012. This motion was
denied. Defendant filed a pro se motion to dismiss for violation of his right to speedy
trial on 21 April 2014. This motion was also adopted and argued by his counsel, and
also denied.
Defendant was tried 21 April 2014 through 2 May 2014. The jury returned a
verdict of guilty for robbery and conspiracy to commit robbery, but found Defendant
not guilty of murder. Defendant was sentenced to 97-126 months for robbery and a
consecutive 38-55 months for conspiracy. Defendant appealed.
Defendant’s first appeal was heard on 7 July 2015. State v. Wilkerson, 242 N.C.
App. 253, 775 S.E.2d 925, 2015 N.C. App. LEXIS 560 (unpublished). This Court
concluded Defendant had failed “to show that the trial court committed prejudicial
error at his trial” and affirmed the Defendant’s convictions. Wilkerson, 2015 N.C.
App. LEXIS 560 at *40. However, this Court also concluded “[t]he trial court erred
by summarily denying Defendant’s motion without considering all of the Barker
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factors and making appropriate findings.” Id. at *39. This Court concluded that the
trial court had “simply stat[ed] that Defendant had ‘made an insufficient showing to
justify a dismissal under speedy trial grounds[,]’” instead of weighing the factors
identified by the Supreme Court of the United States and the Supreme Court of North
Carolina Id. This Court remanded the proceedings to the trial court to make
appropriate findings. Id. at *40.
Upon remand, the superior court denied Defendant’s motion to dismiss.
During what was calendared as a status hearing on the issues remanded, the superior
court proceeded to “take action in response to the Court of Appeals remand.” Finding
“[b]oth parties at the hearing had the full opportunity to present any evidence [they]
desired[,]” the superior court did not allow for any further argument or any additional
evidence to be presented. Defendant objected to the lack of a full evidentiary hearing.
The superior court stated it had considered the Barker factors when it made its first
ruling, and recorded these past considerations in a written order denying Defendant’s
motion to dismiss on 1 February 2017. Defendant appeals.
II. Jurisdiction
This Court possesses jurisdiction pursuant to N.C. Gen. Stat. §§ 7A-27(b) and
15A-1444(a) (2017).
III. Standard of Review
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Opinion of the Court
“The standard of review for alleged violations of constitutional rights is de
novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009) (citation
omitted). We review the superior court’s order to determine “whether the trial judge’s
underlying findings of fact are supported by competent evidence . . . and whether
those factual findings in turn support the judge’s ultimate conclusions of law.” State
v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citation omitted).
IV. Right to a Speedy Trial
Defendant argues the superior court relied upon unsupported factual findings
and improperly analyzed the Barker factors to conclude his right to a speedy trial was
not violated. Defendant asserts a proper application of the Barker factors could
support the conclusion that his right to a speedy trial was violated. After review of
the arguments and evidence in the record, following the new evidentiary hearing on
remand, the superior court should consider all the evidence, and decide how each
factor, separately and together, weighs for and against the State and Defendant to
reach a final ruling.
The Supreme Court of the United States laid out a four-factor balancing test
to determine whether a defendant’s Sixth Amendment right to a speedy trial has been
violated. Barker, 407 U.S. at 530, 33 L. Ed. 2d at 116-17. “These factors are: (1) the
‘[l]ength of delay;’ (2) ‘the reason for the delay[;]’ (3) ‘the defendant’s assertion of his
right[;]’ and, (4) ‘prejudice to the defendant.’” State v. Carvalho, 243 N.C. App. 394,
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400, 777 S.E.2d 78, 83 (2015) (quoting Barker, 407 U.S. at 530, 33 L. Ed. 2d at 117),
aff’d per curiam 369 N.C. 309, 794 S.E.2d 497, 497 (2016), cert. denied __ U.S. __, 199
L. Ed. 2d 19 (2017). None of these factors are determinative; they must all be weighed
and considered together:
We regard none of the four factors identified above as
either a necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial. Rather, they are
related factors and must be considered together with such
other circumstances as may be relevant. In sum, these
factors have no talismanic qualities; courts must still
engage in a difficult and sensitive balancing process. But,
because we are dealing with a fundamental right of the
accused, this process must be carried out with full
recognition that the accused’s interest in a speedy trial is
specifically affirmed in the constitution.
Barker, 407 U.S. at 533, 33 L. Ed. 2d at 118-19.
A. Length of Delay
“[T]he length of the delay is not per se determinative of whether defendant has
been deprived of his right to a speedy trial.” State v. Spivey, 357 N.C. 114, 119, 579
S.E.2d 251, 255 (2003); see Carvalho, 243 N.C. App. at 401, 777 S.E.2d at 84. No
bright line exists to signify how much of a delay or wait is prejudicial, but as wait
times approach a year, a presumption of prejudice arises. Doggett v. United States,
505 U.S. 647, 652 n.1, 120 L. Ed. 2d 520, 528 n.1 (1992). This “‘presumptive prejudice’
does not necessarily indicate a statistical probability of prejudice; it simply marks the
point at which courts deem the delay unreasonable enough to trigger the Barker
inquiry.” Id.
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Opinion of the Court
Here, over three years and nine months elapsed from Defendant’s arrest until
his trial began. This Court had previously remanded this matter to the trial court for
a full review and application of the Barker factors, indicating the length of delay was
sufficient to trigger such a review. Wilkerson, 2015 N.C. App. LEXIS 560 at *38-*39.
Upon remand, the trial court acknowledged this “amount of time [was]
noteworthy” but was “not per se prejudicial” because of “all the matters necessarily
involved in the preparation by the prosecution and the defense of this case involving
a first degree murder charge with co-defendants, including pretrial discovery,
investigation and analysis of crime scene and crime laboratory analysis[.]” No
specified length of time is “per se prejudicial,” but as one of four factors to be reviewed,
this factor weighs in favor of Defendant and triggers the need for analysis of the
remaining three Barker factors. See Carvalho, 243 N.C. App. at 401, 777 S.E.2d at
84.
B. Reason for Delay
Defendant bears the burden of showing the delay was the result of “neglect or
willfulness of the prosecution.” Spivey, 357 N.C. at 119, 579 S.E.2d at 255 (emphasis
original). “If a defendant proves that a delay was particularly lengthy, the defendant
creates a prima facie showing that the delay was caused by the negligence of the
prosecutor.” State v. Strickland, 153 N.C. App. 581, 586, 570 S.E.2d 898, 902 (2002)
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(citing State v. Chaplin, 122 N.C. App. 659, 664, 471 S.E.2d 653, 655-56 (1996)), cert.
denied, 357 N.C. 65, 578 S.E.2d 594 (2013).
Once the defendant has made a prima facie showing of neglect or willfulness,
the burden shifts to the State to rebut and offer explanations for the delay. Spivey,
357 N.C. at 119, 579 S.E.2d at 255. The State is allowed “good-faith delays which are
reasonably necessary for the State to prepare and present its case[,]” but is proscribed
from “purposeful or oppressive delays and those which the prosecution could
have avoided by reasonable effort.” State v. Washington, 192 N.C. App. 277, 283,
665 S.E.2d 799, 804 (2008) (citation omitted) (emphasis original). Different reasons
for delay are assigned different weights, but only “valid reason[s]” are weighed in
favor of the State. Barker, 407 U.S. at 531, 33 L. Ed. 2d at 117.
This Court in Chaplin found a pre-trial delay of 1,055 days, with the case being
calendared thirty-one times before being called, constituted a prima facie showing of
prosecutorial negligence or willfulness. Chaplin, 122 N.C. App. at 664, 471 S.E.2d at
656. The State was unable to offer any reasonable explanation for the excessive delay
and continuances, and that factor weighed in favor of the defendant. Id.
This Court in Strickland concluded a delay of 940 days was enough to
constitute a prima facie showing of prosecutorial negligence. Strickland, 153 N.C.
App. at 586, 570 S.E.2d at 903. However, the State rebutted this showing by
providing evidence of prosecutorial backlog. Id. at 587, 570 S.E.2d at 903. Because
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STATE V. WILKERSON
Opinion of the Court
the defendant was unable to produce any evidence of neglect or willfulness by the
prosecutor, this factor weighed in favor of the State. Id.
Here, Defendant’s trial was delayed 1,390 days, nearly four years and at least
a year longer than either Chaplin or Strickland. In addition, in the previous appeal
this Court recognized:
Defendant’s trial counsel argued that (1) the State had
made a material misrepresentation in responding to
Defendant’s earlier motion that it was still waiting on the
SBI laboratory’s analysis of evidence; (2) the State had
improperly used the delay for the strategic purpose of
working out a plea agreement with [co-defendant] between
the 23 August 2012 hearing and the date of trial[.]
Wilkerson, 2015 N.C. App. LEXIS 560 at *39.
At the speedy trial motion hearing on 23 August 2012, the prosecutor
represented to the superior court that the State was still waiting on the State Bureau
of Investigation (“SBI”) to provide some DNA analysis on hair samples. This SBI
report had been completed on 24 February 2012, almost six full months before the
date of the hearing. At the hearing, the prosecutor repeatedly stated the hair
evidence was collected in April 2012, when in fact it had been collected in October
2011. The prosecutor explained he had been assigned to Defendant’s trial in April
2011, and began requesting additional analysis from the SBI and FBI at that time.
No explanation was provided of why, if the prosecutor’s hair collection date was
accurate, the prosecutor had waited a year to request the hair samples from
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STATE V. WILKERSON
Opinion of the Court
Defendant. Further, at the April to May 2014 trial, an FBI agent testified that an
analysis of records dated 7 April 2010 was requested of him “a year or so” before trial.
While agreeing “in spirit” with Defendant’s motion for a speedy trial, the
prosecutor argued he could not move forward without the completion of the hair
analysis. Despite the State’s assertion at the speedy trial hearing that it was
otherwise prepared to go to trial, the State moved for at least two continuances after
the trial was initially set for September 2013. The first continuance was granted
after the State alleged that necessary witnesses were unavailable. The second was
granted after the State alleged additional discovery had been provided and witnesses
listed in this additional discovery had not been subpoenaed.
The misrepresentation concerning the hair samples was brought up at
Defendant’s pretrial motion to dismiss for violation of his right to speedy trial. His
pro se motion, which was adopted and argued by his counsel, included an affidavit on
this matter, as well as supporting documentation of the addition of the co-defendant’s
plea deal. The trial court heard these arguments, and summarily denied Defendant’s
motion. On remand from Defendant’s previous appeal, the superior court found:
6. The defendant, in his motion to dismiss, contended that
the State delayed his trial by intentionally misrepresenting
to the Court that SBI Crime Lab analysis results had not
been received, that the intentional delay by the State was
for an improper purpose in allowing the State to obtain a
statement from a co-defendant implicating the defendant
in the alleged crimes[.]
...
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STATE V. WILKERSON
Opinion of the Court
8. Reason for delay. Not withstanding [sic] the defendant’s
assertion that the former prosecutor handling this case
willfully and intentionally misrepresented to the Court
that laboratory results had not been received, the
defendant has failed to show that the trial delay was due
to willfulness or neglect on the part of the prosecution.
These findings are not supported by the evidence. The prosecutor purports to
place the entire blame for the delays upon the SBI, indicating there was “no part of
our negligence in no part.” The prosecutor may not have been willfully
misrepresenting the status of the SBI report to the trial court at the hearing, but at
a minimum he most certainly was negligent in not knowing the status of this
completed report he expressly used as a reason to delay the trial, regardless of what
he asserted at the hearing.
The State argues crowded dockets and anticipated laboratory results are
“neutral factors” and are “valid justifications for the delay.” Nowhere in the record
are crowded dockets alleged by the State or found by the trial court to be a reason for
the delays in Defendant’s trial. The State’s misrepresentation, whether negligent or
willful, at the speedy trial motion could have been avoided by reasonable efforts. See
Washington, 192 N.C. App. at 283, 665 S.E.2d at 804.
The State acknowledges it misrepresented the status of the SBI report, but
now asserts it was a “mistake.” The superior court’s finding that Defendant did not
provide evidence of negligence by the State regarding the delay is unsupported by the
record evidence. Defendant’s evidence, if true, would tend to show this second Barker
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Opinion of the Court
factor weighs in his favor. Upon remand, the superior court must consider the
evidence which would support a prima facie showing of neglect or willfulness of the
prosecutor, and then, if a prima facie showing is established, allow the State the
opportunity to rebut it.
C. Defendant Asserted Right to Speedy Trial
“A criminal defendant who vigorously asserts his right to a speedy trial will be
considered in a more favorable light than a defendant who does not.” Strickland, 153
N.C. App. at 587, 570 S.E.2d at 903.
Defendant filed a pro se motion for speedy trial on 7 May 2012, which was
adopted and argued by his counsel. Prior to his motion for speedy trial, Defendant
contacted prison officials as early as 30 January 2012 and sought action on the
detainer on the pending charges filed from Durham County. On 21 February 2012,
Defendant filed a motion for final disposition of the detainer, requesting resolution of
the charges. Defendant objected to the case being continued at least one of the two
times.
The superior court acknowledged Defendant’s motion for speedy trial in its
findings of fact, though it fails to credit or resolve the other instances of Defendant
“vigorously assert[ing] his right to speedy trial.” See id. Considering the record
evidence, this Barker factor tends to weigh in favor of Defendant.
D. Prejudice
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STATE V. WILKERSON
Opinion of the Court
Following Barker, this Court has repeatedly held:
[t]he right to a speedy trial is designed: (i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety
and concern of the accused; and (iii) to limit the possibility
that the defense will be impaired. Of these, the most serious
is the last, because the inability of a defendant adequately
to prepare his case skews the fairness of the entire system.
State v. Webster, 337 N.C. 674, 680-81, 447 S.E.2d 349, 352 (1994) (quoting Barker,
407 U.S. at 532, 33 L.Ed.2d at 118) (quotation marks omitted) (emphasis in Webster).
In its findings of fact, the superior court noted Defendant was “currently
serving an active sentence for the unrelated drug trafficking conviction that began on
August 2, 2011.” Defendant was arrested for this current charge on 2 July 2010. The
superior court found that as a result of this incarceration “any anxiety or concern by
the defendant . . . is thereby somewhat reduced or minimized.”
The fact a defendant is already incarcerated while awaiting trial “does not
mitigate against his right to a speedy and impartial trial.” State v. Frank, 284 N.C.
137, 141, 200 S.E.2d 169, 172 (1973) (citations omitted).
At first blush it might appear that a man already in prison
under a lawful sentence is hardly in a position to suffer
from undue and oppressive incarceration prior to trial. But
the fact is that delay in bringing such a person to trial on a
pending charge may ultimately result in as much
oppression as is suffered by one who is jailed without bail
upon an untried charge. First, the possibility that the
defendant already in prison might receive a sentence at
least partially concurrent with the one he is serving may
be forever lost if trial of the pending charge is postponed.
Secondly, under procedures now widely practiced, the
duration of his present imprisonment may be increased,
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Opinion of the Court
and the conditions under which he must serve his sentence
greatly worsened, by the pendency of another criminal
charge outstanding against him.
Smith v. Hooey, 393 U.S. 374, 378, 21 L. Ed. 2d 607, 611 (1969) (citation and quotation
marks omitted).
During his hearing on his motion for speedy trial, Defendant asserted the
Durham County detainer for first-degree murder was impacting his current
incarceration on the drug trafficking charge. Due to the nature of the first-degree
murder charge, Defendant was held in higher security custody, which limited where
he could be housed. While not determinative of prejudice, the superior court’s
conclusion that because Defendant was incarcerated on other charges it was not
prejudicial to delay his pending trial, is unsupported by the evidence presented.
The fact that Defendant was incarcerated on other charges does not indicate
he would have reduced anxiety or concern over the pending charge. Beyond the
additional anxiety Defendant faced while being housed in allegedly “extremely
violent” quarters, “there is reason to believe that an outstanding untried charge (of
which even a convict may, of course, be innocent) can have fully as depressive an
effect upon a prisoner as upon a person who is at large.” Id. at 379, 21 L. Ed. 2d at
612.
Defendant argued the delay allowed for the State to secure a plea deal with
Leryan Scarlett, a co-defendant. Scarlett initially denied any involvement in the
robbery. After being charged with additional offenses while out on bond, Scarlett
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Opinion of the Court
negotiated with the State to testify against Defendant in exchange for the additional
charges being dropped.
Defendant presented evidence this agreement with Scarlett was reached after
his motion for speedy trial had been denied. The superior court’s conclusion that this
argument was “unsubstantiated and not supported by any evidence” is not supported
by the evidence presented. The superior court should allow and consider additional
evidence in order to properly consider this issue.
During the delay, Defendant’s brother, who was listed to be an alibi witness
for Defendant, died. Defendant’s brother proposed to testify that Defendant was at
work during the time of the robbery. The superior court found there were copies of
time cards from work and possibly other employees who could serve as alibi witnesses
for Defendant, but excluded or ignored statements of defense counsel concerning the
other alibi witnesses:
There were other employees, Your Honor, yes. I can tell the
Court, unfortunately, several of the family members are
not available at this time. In particular, one individual who
you’ve already heard referenced, that’s Mr. Rico Wilkerson,
I believe he is in federal custody at this time. I know there
are other individuals who I have not been able to establish
contact with since 2012, individuals who I had contact with
prior to that date, however.
The superior court’s findings are not supported by the record, and its conclusion
“there [was] no actual, substantial prejudice to the defendant as a result of the delay”
is not supported by the facts.
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STATE V. WILKERSON
Opinion of the Court
“Barker explicitly recognized that impairment of one’s defense is the most
difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory
evidence and testimony ‘can rarely be shown.’” Doggett, 505 U.S. at 655, 120 L. Ed.
2d at 530-31 (quoting Barker, 407 U.S. at 532, 33 L. Ed. 2d at 118). “If witnesses die
or disappear during a delay, the prejudice is obvious.” Barker, 407 U.S. at 532, 33 L.
Ed. 2d at 118.
The State argues Defendant was unable to show he was substantially
prejudiced, and cites State v. Goldman, 311 N.C. 338, 346, 317 S.E.2d 361, 366 (1984),
for the proposition a defendant must prove actual and substantial prejudice. Our
Supreme Court in Goldman rejected the defendant’s claims of faded memories and
lost witnesses as prejudice. Id. Unlike the defendant in Goldman, Defendant
presents more than “general averments” regarding the prejudice he suffered. See id.
at 345, 317 S.E.2d at 366. Defendant indicated two specific instances where evidence
essential to his defense was prejudiced because of the delays in bringing his charges
to trial. This factor, above all others, requires a careful and thoughtful analysis
before deciding whether or not Defendant was prejudiced by delays to his right to a
speedy trial.
V. Conclusion
Trial courts “must” engage in a “difficult and sensitive balancing process” to
ascertain whether a violation of a defendant’s right to a speedy trial has occurred. See
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Opinion of the Court
Barker, 407 U.S. at 533, 33 L.Ed.2d at 118-19; see also Spivey, 357 N.C. at 118-19,
579 S.E.2d at 255. This balancing process is difficult because
it is impossible to determine precisely when the right has
been denied; it cannot be said precisely how long a delay is
too long; there is no fixed point when the accused is put to
a choice of either exercising or waiving his right to a speedy
trial; and dismissal of the charges is the only possible
remedy for denial of the right to a speedy trial.
State v. McKoy, 294 N.C. 134, 140, 240 S.E.2d 383, 388 (1978) (citing Barker, 407 U.S.
514, 33 L. Ed. 2d 101).
Upon review of the four Barker factors, with the limited record before us,
Defendant tends to show his Sixth Amendment right to a speedy trial may have been
violated. The length of the delay and the lack of appropriate reason for the delay
tends to weigh in his favor. Defendant’s evidence regarding the prejudice he suffered
in his pretrial incarceration and the prejudice to his ability to defend against his
charges, if true, would tend to weigh in his favor, but requires a more nuanced
consideration.
The superior court concluded it had “weighed” and “balanced” the factors, but
provided no findings to support this assertion. The written order produced upon this
Court’s earlier remand was changed little from the order on the previously summarily
denied motion. The superior court’s findings of fact were not supported by the
evidence.
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Opinion of the Court
A full evidentiary hearing is required in order for the superior court to hear
and make an appropriate assessment of Defendant’s arguments. If the superior court
ultimately concludes Defendant’s right to a speedy trial was violated, the only remedy
is dismissing the indictment and vacating those convictions. See Barker, 407 U.S. at
522, 33 L.Ed.2d at 112.
The trial court’s prior speedy trial ruling upon the previous remand is vacated.
Defendant’s motion for a speedy trial is again remanded for a full evidentiary hearing
on all Barker factors. It is so ordered.
VACATED AND REMANDED.
Chief Judge MCGEE and Judge DAVIS concur.
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