State v. Farook ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-444
Filed: 20 October 2020
Rowan County, Nos. 12CRS053790; 17CRS001726-28
STATE OF NORTH CAROLINA
v.
KHALIL ABDUL FAROOK
Appeal by defendant from judgments entered on or about 10 October 2018 by
Judge Anna M. Wagoner in Superior Court, Rowan County. Heard in the Court of
Appeals 4 December 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General John W.
Congleton, for the State.
Sarah Holladay, for defendant-appellant.
STROUD, Judge.
Defendant appeals the trial court’s denial of his motions to dismiss his case for
violation of his Sixth Amendment right to a speedy trial.
Because the State failed to carry its burden of proof as to the reason for delay in
defendant’s trial and as defendant has demonstrated prejudice from this delay,
defendant’s right to a speedy trial was violated, and thus we reverse the order
denying defendant’s motion to dismiss and vacate defendant’s judgment.
I. Background
STATE V. FAROOK
Opinion of the Court
The State’s evidence showed that on 17 June 2012, defendant was driving
when his vehicle collided with Mr. and Mrs. Jones, who were riding a motorcycle;
both died from the collision. A blood sample was taken from defendant and submitted
to the North Carolina State Crime Laboratory (“Crime Lab”) for analysis on 28 June
2012. On 18 June 2012, warrants were issued for defendant’s arrest on charges of
felony hit and run resulting in death, driving while impaired, and resisting a public
officer. On 19 June 2012, all three of the 18 June 2012 warrants were served and
additional warrants were issued and served for two counts of felony death by vehicle.
On 25 June 2012, pursuant to a search warrant seeking evidence for purposes of
“D.N.A. collection, latent prints, trace evidence, document in the vehicle to show
ownership” and evidence to assist in the “identification of the occupants[,]” law
enforcement seized various items of evidence from defendant’s vehicle, including
swabs from various locations, the driver seat cushion, and a broken watch face. The
samples were placed into “Temporary Evidence[.]”
On 2 July 2012, defendant was indicted for driving while impaired, resisting
public officer, and two counts of felony death by vehicle. On 30 July 2012, defendant
was indicted for reckless driving to endanger, driving left of center, driving while
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STATE V. FAROOK
Opinion of the Court
license revoked, and felony hit and run resulting in two deaths. Defendant remained
in jail awaiting trial from the date he was arrested, 19 June 2012.1
On 11 July 2012, Mr. James Randolph was appointed as defendant’s counsel.
On 10 December 2014, Mr. James Davis was assigned to defendant’s case replacing
Mr. Randolph. According to the trial court’s findings of fact, on 25 March 2015,
“[b]lood alcohol results [were] sent from State Crime Lab to District Attorney’s
Office.” The blood sample was analyzed “to determine the alcohol concentration or
presence of an impairing substance therein[;]” on 1 June 2015, the Crime Lab
prepared the report, which did not state a blood alcohol level and was negative for all
other substance tests. On 26 March 2015-- nearly three years after defendant’s arrest
-- a “[r]ush request [was] sent from Brandy Cook for expedited testing of DNA[,]” and
on 17 April 2015, the “DNA analysis [was] completed.”2
On 30 June 2017, Mr. Davis moved to withdraw from defendant’s case. In the
motion to withdraw, Mr. Davis alleged that “[a]fter extensive review and numerous
conferences with Defendant, he had elected this month to proceed to trial.” Mr. Davis
further alleged that he “has a large criminal and civil trial practice, both in and out
of county and in state and federal court[,]” including “a civil marital tort jury trial
1On defendant’s judgment for second degree murder and attaining the status of violent habitual felon
he was “given credit for 2304 days spent in confinement prior to the date of this Judgment[,]”
approximately six and one-third years.
2 District Attorney Brandy Cook was handling defendant’s case in 2015.
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STATE V. FAROOK
Opinion of the Court
currently set the week of September 25, 2017, in Stanly County, NC[;]” a “civil
wrongful death jury trial tentatively set for October 23, 2017, in Davie County[;]”
“four pending custody trials, a DWI trial, and many other district court trials[;]” “a
capital murder trial on January 8, 2018 . . . anticipated to last four to five months[,]”
along with eight mediations and one deposition in the next two months. Mr. Davis
noted that under the “scheduling order” defendant had a deadline of 6 October 2017
to file motions and notices and that “the Special Prosecutor intends to calendar the
trial of Defendant’s cases during the latter part of 2017 or early 2018.”
On 5 July 2017, Mr. Aaron Berlin and Ms. Sarah Garner, “Special Prosecutors
from the North Carolina Conference of District Attorneys” eventually became the
State’s attorneys on this case. On 5 July 2017, defendant rejected a plea offer by the
State for “RECKLESS DRIVING TO ENDANGER, FEL HIT/RUN SER INJ/DEATH,
DWI, FELONY DEATH BY VHIECLE X 2, DWLR, DRIVE LEFT OF CENTER[.]”
This same day, Mr. Davis’s motion to withdraw as defendant’s counsel was granted
and Mr. David Bingham was appointed in his stead, and defendant’s cases were
calendared for an “administrative hearing” on 7 August 2017.
On 17 July 2017, defendant was indicted for two counts of second-degree
murder and attaining the status of violent habitual felon. On 2 August 2017,
defendant wrote to his attorney, Mr. Bingham, and requested he withdraw from the
case. Defendant stated that his understanding was that “you are my brother-in-
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STATE V. FAROOK
Opinion of the Court
law[’s] attorney, and have been for years. . . . This will be a conflict of interest.”
Defendant requested that Mr. Bingham “ask one of these attorney[s] to take my
case[,]” and listed three names. Defendant wrote, “My reason I ask this is because,
Mrs. Anna Mills Wagoner the Resident Judge. She ask Mr. James Davis why didn[’]t
he ask other attorney before he put in his withdraw from my case.” On 7 September
2017, defendant sent a note to the clerk of court noting he had mailed a motion to
dismiss his court-appointed attorney, Mr. David Bingham; on 11 September 2017, the
letter requesting Mr. David Bingham be dismissed was filed. On 13 September 2017,
Mr. David Bingham filed a motion to be removed from the case. On 14 September
2017, Mr. Bingham filed a motion for appointment of expert and asking for
appointment of an investigator to interview witnesses to the incident and to “help
him locate and establish alibi witnesses.” On 25 September 2017, the trial court
appointed Mr. Chris Sease as defendant’s counsel. On 28 September 2017, Special
Prosecutor Garner filed and served upon defendant’s counsel a “Motion for Reciprocal
Discovery and Defenses[,]” (original in all caps), pursuant to North Carolina General
Statute § 15A-905 and a “Discovery Disclosure Certificate, 15A-957 Notice, Request
for and Consent to Reciprocal Discovery[.]”
On 2 October 2017, the trial court entered an order establishing dates for filing
and hearing motions; all defense motions were to be filed by 4 December 2017 and
motions were to be heard on 27 January 2018. On 22 January 2018, Mr. Sease and
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STATE V. FAROOK
Opinion of the Court
Special Prosecutor Garner entered a consent agreement noting that defendant had
“no pre-trial motions” and no reciprocal discovery to provide, while the State had
“provided full discovery to the defendant” and afforded defendant’s attorney “the
opportunity to review in person the State’s complete file[.]” The defendant also
stipulated that “defendant uses the name Khalil Farook and was previously known
as Donald Miller[.]”
On 19 March 2018, defendant sent the clerk of court a request for
“information[] (motions) concerning my tr[ia]l delay for the years of 2013, 2014, 2015,
2016, 2017. That the District Attorney office file to delay my tr[ia]l. I need cop[ies] of
each year.” (Original in all caps.) A notation in different handwriting, apparently as
the response from the Clerk’s office, appears at the bottom: “There are no written
motions in any of your files.”3 On 7 August 2018, the State filed a notice of expert
witness, identifying Trooper D.H. Deal as an expert in “Crash/Accident
Reconstruction” and noting the trial was set for the week of 24 September 2018. On
9 August 2018, the State dismissed the charges for reckless driving to endanger,
driving left of center, DWI, resisting a public officer, and both counts of felony death.
On 6 September 2018, defendant filed a pro se motion requesting his case be
dismissed “on the grounds that the defendant, . . . was deprived of effective assistance
3According to the record, the notation was correct, as no written motions had been filed regarding
defendant’s trial delay.
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STATE V. FAROOK
Opinion of the Court
of counsel, and on flagrant violation of the Constitution of the United States and
North Carolina, Amendment VI, VIII.” (Original in all caps.) Defendant alleged that
his appointed attorney, Mr. James Davis, did not speak to him until 57 months after
he was appointed.4 Defendant also alleged he never agreed to any delays in his trial
and that he had been prejudiced both by his ineffective counsel and the delay. On 13
September 2018, defendant filed another pro se motion similar to his motion a week
earlier but also added that his former counsel, Mr. David Bingham had also been
ineffective.
On 18 September 2018, defendant’s attorney, Mr. Chris Sease, filed a motion
to dismiss defendant’s case due to the violation of his constitutional rights to a speedy
trial.5 The motion to dismiss alleged, although the incident was on 17 June 2012,
defendant was not charged or served with indictments for second degree murder,
violent habitual felon, and habitual felon until 5 July 2017. Mr. Sease alleged that
4 It is not clear how defendant calculated 57 months. Mr. Randolph, defendant’s attorney, was
appointed in July of 2012 and replaced by Mr. Davis in August of 2012, according to defendant’s
motion. Mr. Davis withdrew in July of 2017, approximately 59 months after his appointment. Mr.
Davis’ testimony indicates he did not have much interaction with defendant but had sent staff or other
attorneys from his office to visit defendant. In any event, the general import of defendant’s motion is
clear.
5 In defendant’s motion to dismiss he based his argument on North Carolina General Statute § 15A-
954(a)(3), “the Sixth Amendment to the Constitution of the United States of America, and Section
Eighteen of Article I of the North Carolina Constitution.” But on appeal defendant does not address
his statutory argument; in fact, according to defendant’s brief’s table of contents, he does not even cite
N.C. Gen. Stat. § 15A-954. Therefore, we address defendant’s argument only as constitutional
violations.
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STATE V. FAROOK
Opinion of the Court
since defendant was incarcerated in the Rowan County Detention Center, he was
easily accessible to the charging officer and District Attorney’s Office and any failure
to serve warrants on defendant was “through no fault of [defendant’s] own.” The
motion also alleged defendant believed the warrants were “purposely held until after
[]he had rejected the State’s plea officer and after his original counsel of record had
withdrawn from this case, in an attempt to oppress, harass and punish him further.”
The motion to dismiss also noted when events occurred which we summarize in a
timeline:
31 July, 2012 Indictment.
6 August 2012[6] Case was calendared for this week but Mr. Randolph, counsel,
withdrew.
8 August 2012 Mr. Davis appointed as counsel.
13 August 2012 Defendant entered not guilty plea.
18 February 2013 Defendant’s case was calendared but not reached.
19 March 2013 Defendant’s case was calendared but not reached.
16 April 2013 Defendant’s case was calendared. New assistant district attorney
was assigned to the case.
6 6 August 2012 is the date alleged in defendant’s motion but the “ORDER OF ASSIGNMENT OR
DENIAL OF COUNSEL” signed by the trial judge is dated 10 December 2014. There are discrepancies
in the record, which may be clerical errors, regarding dates of appointment of defendant’s attorneys.
The dates shown by the actual orders appointing the attorneys are: by order signed 11 July 2012 – Mr.
James Randolph was appointed; by order signed 10 December 2014, Mr. James Davis was appointed
explicitly to replace Mr. Randolph; by order signed 5 July 2017, Mr. David Bingham was appointed;
and by order dated 25 September 2017, Mr. Chris Sease was appointed. However, the “Case Events
Inquiry” shows a “defense attorney name/type” change from James Randolph to James Davis on 8
August 2012. (Original in all caps.) It seems most likely Mr. Davis began representing defendant in
2012, despite the December 2014 order of appointment.
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STATE V. FAROOK
Opinion of the Court
15 July 2015 Defendant’s case was calendared but not reached.
13 February 2017 Defendant’s case was calendared but not reached. Assistant
District Attorney was released from the case, and it was assigned
to the Conference of District Attorneys.
5 July 2017 Defendant was indicted for second degree murder, habitual felon,
and violent habitual felon. Defendant’s case was calendared for
the week and not reached. Mr. Bingham was appointed as
defendant’s counsel and Mr. Sease was appointed to aid Mr.
Bingham in going through discovery.
29 August 2017 Defendant’s case was calendared but not reached.
26 September 2017 Defendant’s case was calendared and not reached. Mr. Bingham
withdrew and Mr. Sease became defendant’s attorney.
8 January 2018 Defendant’s case was calendared but not reached. A tentative
trial date was set for September 2018.
The speedy trial motion alleged due to the extensive delay defendant was “prejudiced
by an inability to adequately assist his defense attorney” in preparing for trial and
by the second degree murder charges brought by the State long after the offense date:
“Had his case been resolved in the years of 2012 through 2017 it is arguable that he
would have never been charged with Second Degree Murder.”
The State filed a brief with the trial court opposing the motion. Because the
State’s brief in opposition to the motion and the trial court’s order are essentially
identical, we will not separately address the State’s contentions in its trial brief. A
hearing was held regarding the alleged speedy trial violation on 24 September 2018,
and on 8 October 2018, the trial court entered an order denying defendant’s motion
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STATE V. FAROOK
Opinion of the Court
to dismiss. The order on appeal is almost entirely a verbatim copy of the State’s “Brief
in Opposition to Defendant’s Motion to Dismiss.” (Original in all caps.) The only
obvious differences between the State’s brief and the order are the headings,
transitions between the various sections, and the closing and signatures. In addition,
much of the State’s brief was not based on the court file or calendars but instead upon
information provided by Mr. Davis, defendant’s second attorney. For example, the
State’s brief, and thus the order, notes 13 March 2014 as a date when “Attorney from
Davis office met with defendant” and that “James Davis retained our original court
dockets from that session and does not have record of Defendant on any calendars[;]”
this information is not in the documents from the court file in our record, and
information regarding a defense attorney’s visits with his client and office records
would not be in the court file so it appears Mr. Davis must have provided this
information to the State prior to the hearing for use in its brief which would
ultimately become the order.
The next section of the State’s Brief is entitled “ARGUMENT[;];” the
corresponding section of the Order is entitled “FINDINGS[.]” The only difference
between the “argument” and the “findings” is that the order omits the first sentence
of the State’s brief which states, “For the foregoing reasons, the State respectfully
moves this Court to deny Defendant’s motion to dismiss based on a speedy trial
violation.” We also note that despite the title, this portion of the order includes some
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STATE V. FAROOK
Opinion of the Court
findings of fact but also extensively quotes cases addressing Sixth Amendment law;
since the “findings” portion of the order is actually the “argument” portion of the
State’s brief, it naturally presents the State’s legal argument and citation of cases.
The actual findings of fact regarding the timeline of events are stated in the
“TIMELINE” portion of the order.
Two sentences of the findings address “exhibit 1” regarding the State’s
“extensive backlog of . . . cases.”7 In the transcript, only two exhibits are noted on the
“EXHIBITS” page as identified for the hearing regarding defendant’s speedy trial
motion: For the State, Exhibit “A,” described in the transcript as “State’s brief” and
for defendant, Exhibit “1” described in the transcript as defendant’s “ACIS printout,
court dates[.]” In the body of the transcript, the State introduced ““Exhibit A”8 and
states,
I would also introduce Exhibit A . . .
....
I filed a brief in response to this involvement, which I’ve
attached all -- Exhibit A, all of the cases that I’ve -- that are
discussed in my brief as well as the timeline of -- of what
7 The “FINDINGS” are not numbered but are paragraphs of text, just as in the State’s brief. These
sentences are: “In the instant case, the State had an extensive backlog in Superior Court cases. From
the week of July 2nd, 2012 through June 27th, 2016 the State tried mostly cases older than Defendant’s
case (see attached exhibit 1.).” Exhibit 1 was not attached to the order in our record.
8 According to the text of the brief, the State’s brief included an
“attached exhibit 1” regarding the State’s “extensive backlog in Superior Court cases.” However, no
exhibit was attached to the State’s brief which appears in our record. At the hearing, it appears that
the “exhibit 1” from the State’s brief was identified as State’s Exhibit A. We will refer to this exhibit
as State’s Exhibit A, as identified before the trial court.
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STATE V. FAROOK
Opinion of the Court
Mr. Davis has discussed. I would also just ask the Court to
take judicial notice of all of the motions and dates that were
indicated in the Court file as well, which I’ll discuss later.
(State’s Exhibit No. A was admitted.)
Before the trial court, the State’s argument regarding Exhibit A was:
I had introduced Exhibit A to talk about the backlog
-- which shows the backlog that was in Superior Court at
that time, but also to show how efficient and effective the
State was at the time of making sure trials were being
scheduled and heard. Mr. Davis also corroborated that
during his testimony as well.
In response to the State’s Exhibit A, defendant’s counsel asked the trial court
to take judicial notice of “Defendant’s Exhibit No. 1[,]” which he described:
This is the ACIS printout –
....
that was given to me by the clerk’s office in preparation for
this motion. And it -- it details every court date that has
entered into ACIS by the clerk’s office.[9] So as a matter of
an attempt to -- I call like, the term “save face,” as to why
these dates are a little bit in dispute.
The dates that I’m using in my motion are from that
instead of the other dates. I mean, obviously, Mr. Davis
kept meticulous notes in docketing to verify when it was
9As noted, this exhibit, the “CASE EVENTS INQUIRY” printout, shows one of the discrepancies in
dates regarding defendant’s counsel. It provides:
08/08/12 . . . DEFENSE ATTORNEY NAME/TYPE CHANGE
FROM: RANDOLPH, JAMES DKF
TO: DAVIS, JAMES
However, the actual “Order of Assignment or Denial of Counsel” in our record states “James Davis to
replace James Randolph” and was signed on 10 December 2014. Mr. Randolph was originally
appointed by order signed on 11 July 2012.
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STATE V. FAROOK
Opinion of the Court
actually calendared, so that’s I thought -- I wanted to make
sure I substantiated what dates I’m using.
(Defendant’s Exhibit No. 1 was identified.)
THE COURT: Okay. So you[] are referring not
-- not placed on the actual calendars, but on the --
MR. SEASE: Correct.
THE COURT: -- print out from the clerk’s
office?
MR. SEASE: From experience, if I went to the extent
of going through each and every calendar to prepare this
motion, I would not, for one, be compensated in time by
IDS; two, I didn’t have the time in my regular practice to
do that at this time.
The State’s brief on appeal does not address a single time defendant’s case was
actually calendared nor does it mention State’s Exhibit A or attempt to explain how
it would support its argument.10 State’s Exhibit A is not a copy of court dockets or
calendars showing cases scheduled and heard but simply a listing of weeks of court
noting one or more cases tried that week. There is no indication of how long any
individual case took to be tried or how many other cases were on the calendar for the
week which were not reached. For example, these are the entries for two weeks:
SUPERIOR COURT WEEK OF MARCH 31, 2014
Jury trials: Tia Livengood (2010 felony embezzlement) and William Kennedy
(2012 felony habitual DWI).
10 The State’s brief failed to address either State’s Exhibit A or defendant’s Exhibit 1.
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STATE V. FAROOK
Opinion of the Court
SUPERIOR COURT WEEK OF APRIL 7, 2014
Jury trials: Curtis Parrigden (2009 felony possession stolen goods) and Darryl
Wright (2008 misdemeanor).
State’s Exhibit A lists dates from 2 July 2012 to 27 June 2016 and notes jury
trials, administrative weeks, and some days when no judge was available. Some of
the weeks omitted are presumably holidays, such as the last week or two of December.
For many months, only two weeks of the month are addressed. State’s Exhibit A does
not explain why some other weeks are omitted, and the weeks listed end about two
years prior to Defendant’s 2018 trial. Thus, even if State’s Exhibit A includes some
information regarding the “backlog” of cases, it does not address the last two years of
the alleged delay.
In its “findings[,]” the trial court acknowledges the length of delay before
defendant’s trial, but determines that the State’s backlog and defendant’s failure to
assert his right sooner indicate there was no violation. The trial court actually
determined that the State was “significantly prejudiced” by the delay caused by its
own backlog. The last sections of the brief and the order are entitled
“CONCLUSION.” The brief concludes with the State’s two-sentence request to deny
defendant’s motion to dismiss. The order concludes with its two-sentence conclusion
of law and is the entirety of the trial court’s conclusions “of law” section. The trial
court concluded, “For the foregoing reasons, this Court finds Defendant’s right to a
speedy trial was not violated.”
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STATE V. FAROOK
Opinion of the Court
Finally, on 8 October 2018, defendant’s trial began, and after a trial by jury,
the jury found defendant guilty of felony hit and run resulting in serious injury or
death, and two counts of second-degree murder. Defendant entered plea agreements
for the charges driving while license revoked and attaining the status of violent
habitual felon; the trial court entered judgment ultimately sentencing defendant to
life without parole. Defendant appeals.11
II. Right to a Speedy Trial
In June and July of 2012, defendant was indicted for driving while impaired,
resisting a public officer, two counts of felony death by vehicle, reckless driving to
endanger, driving left of center, driving while license revoked, and felony hit and run
resulting in two deaths. Defendant’s trial did not begin until 8 October 2018, over six
years after defendant was indicted and arrested. Defendant first contends his Sixth
Amendment right to a speedy trial under the United States Constitution and his
Article I right to a speedy trial under the North Carolina Constitution has been
violated, and thus the trial court erred in denying his motion to dismiss.
A. Standard of Review
11 Defendant provided oral notice of appeal from his judgments but did not file a written notice of
appeal from the written order denying his motion to dismiss; neither the State nor defendant
addressed this issue. Upon our own initiative we exercise our discretion to invoke Rule 2 of our Rules
of Appellate Procedure to consider defendant’s appeal regarding the order denying his motion to
dismiss for a speedy trial violation in order “[t]o prevent manifest injustice to” him. N.C. R. App. P. 2
(“To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of
the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the
requirements or provisions of any of these rules in a case pending before it upon application of a party
or upon its own initiative, and may order proceedings in accordance with its directions.”).
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STATE V. FAROOK
Opinion of the Court
“When reviewing speedy trial claims, we employ the same analysis under both
the Sixth Amendment and Article I.” State v. Washington, 192 N.C. App. 277, 282,
665 S.E.2d 799, 803 (2008). “The standard of review for alleged violations of
constitutional rights is de novo.” State v. Wilkerson, ___ N. C. App. ___, ___, 810
S.E.2d 389, 391 (2018) (citation and quotation marks omitted).
B. Barker Factors
We consider defendant’s allegation of a speedy trial violation under the
balancing test set forth in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101 (1972).
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, 92 S.Ct. at 2191–
92, 33 L. Ed. 2d at 116–17. These factors are: (1) the length
of delay; (2) the reason for the delay; (3) the defendant’s
assertion of his right; and, (4) prejudice to the defendant.
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.
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Opinion of the Court
Barker, 407 U.S. at 533, 92 S.Ct. 2182, 33 L. Ed. 2d at 118–19.
Wilkerson at ___, 810 S.E.2d at 392 (citations, quotation marks, and brackets
omitted). We thus turn to the Baker factors. See id.
1. Length of Delay
The delay in this case was over six years, clearly sufficient to create a
presumption of prejudice to the defendant and to “trigger the Barker inquiry:”
The length of the delay is not per se determinative of
whether defendant has been deprived of his right to a
speedy trial. 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, 112 S. Ct. 2686, 2690–91 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. at ___, 810 S.E.2d at 392 (emphasis added) (citation, quotation marks, and
brackets omitted). The trial court’s order acknowledges the length of time of the delay
and the law regarding the presumption of prejudice but did not recognize the
presumption of prejudice to defendant but instead turned to the other factors. The
trial court also determined “the State has been significantly prejudiced by the length
of the delay.” We have been unable to find any prior case considering potential
prejudice to the State from its own delay. The Sixth Amendment right to a speedy
trial is a right granted to the defendant, not the State. See U.S. Const. amend. VI
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Opinion of the Court
(“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial[.]” (emphasis added)).
Six years is certainly a lengthy enough delay to create the “prima facie showing
that the delay was caused by the negligence of the prosecutor.” Wilkerson at ___, 810
S.E.2d at 393 (“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. . . . 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.”). Here, defendant’s delay was over six years – over
2190 days -- and thus “a presumption of prejudice arises[,]” and this triggers the rest
of the Barker inquiry. Id. at ___, 810 S.E.2d at 392.
2. Reason for Delay
Based upon the six-year delay, the burden of proof “to rebut and offer
explanations for the delay” shifted to the State. See id. at ___, 810 S.E.2d at 392.
a. Burden of Proof of Reason for Delay
As noted above, the defendant carried his burden of showing that the “delay
was particularly lengthy,” as it was over six years. Id. at ___, 810 S.E.2d at 392.
This delay creates a “prima facie” case that “the delay was caused by the negligence
of the prosecutor[:]”
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Opinion of the Court
Defendant bears the burden of showing the delay
was the result of neglect or willfulness of the prosecution.
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.
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. 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. Different reasons for delay are assigned different
weights, but only valid reasons are weighed in favor of the
State. Barker, 407 U.S. at 531, 92 S.Ct. at 2192–93, 33
L. Ed. 2d at 117.
Id. at ___, 810 S.E.2d at 392–93 (emphasis added and omitted) (citations, quotation
marks, and brackets omitted).
We first note the trial court’s order did not properly assign the shifted burden
to the State. Instead, the trial court concluded defendant had the burden entirely
and did not recognize that the six-year delay alone triggered “the burden shift[] to the
State to rebut and offer explanations for the delay.” Id. at ___, 810 S.E.2d at 392.
Despite the trial court’s order – which, as noted above, was a copy of the State’s brief
-- at the hearing, counsel for both defendant and the State recognized that the burden
did shift to the State to present evidence regarding the reasons for the delay, and the
State offered that evidence in the form of Mr. Davis’s testimony. This brings us to
one of defendant’s other issues appeal, since the State presented evidence from only
one witness regarding the reason for the delay: defendant’s former attorney on this
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Opinion of the Court
very case, Mr. Davis.
b. Testimony by Defendant’s Former Counsel
Defendant argues that “WHERE THE DEFENDANT’S PRIOR ATTORNEY
TESTIFIED AGAINST HIM AT THE HEARING ON THE SPEEDY TRIAL
MOTION, THE TRIAL COURT PLAINLY ERRED IN ADMITTING
PRIVILEGED[12] AND CONFIDENTIAL TESTIMONY[.]” The order states it was
“based on the Court file and the sworn testimony of attorney James Davis on
September 24, 2018 in open court[.]” Indeed, instead of presenting testimony from
the clerk of court or an assistant district attorney regarding the court dockets and
calendaring of defendant’s case and other cases, the State relied upon testimony from
defendant’s former counsel. Mr. Davis testified generally about the court dockets but
most of his testimony addressed his representation of defendant and his trial
strategy; both of these subjects raise important questions of attorney-client
privilege.13
12“A privilege exists if (1) the relation of attorney and client existed at the time the communication
was made, (2) the communication was made in confidence, (3) the communication relates to a matter
about which the attorney is being professionally consulted, (4) the communication was made in the
course of giving or seeking legal advice for a proper purpose although litigation need not be
contemplated and (5) the client has not waived the privilege.” Berens v. Berens, 247 N.C. App 12, 19,
785 S.E.2d 733, 739 (2016).
13Mr. Davis never mentioned the specific word “backlog.” Instead, the State relied on its Exhibit A.
Before the trial court, the State noted: “I had introduced Exhibit A to talk about the backlog . . . . Mr.
Davis also corroborated that during his testimony as well.”
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Opinion of the Court
We first note that according the order appointing him as counsel, Mr. Davis
was not appointed until 10 December 2014, over two years after defendant’s arrest.
But Mr. Davis testified that throughout 2013 part of his strategy was to give things
time to “cool down.”14 Mr. Davis noted that Assistant District Attorney Seth Banks
had told him if defendant did not plead guilty to the initial charges, he would charge
defendant as “violent habitual felon[,]” which the State later did. Mr. Davis also
testified that the second-degree murder indictments were filed only after plea
negotiations had failed. During cross examination, Mr. Davis also noted while he was
defendant’s counsel “at no time” had the case been on a trial calendar, only
administrative calendars. No actual calendars, administrative or trial, were offered
as evidence.
At the hearing, defendant was represented by a new court-appointed attorney,
who did not object to Mr. Davis’s testimony, and thus we review this issue for plain
error. See State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012) (“[T]he
North Carolina plain error standard of review applies only when the alleged error is
unpreserved, and it requires the defendant to bear the heavier burden of showing
that the error rises to the level of plain error.”).
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
14 Again, as noted above, there is some uncertainty as to when Mr. Davis began representing
defendant. Mr. Davis did not say anything about defendant’s first attorney, other than noting he
replaced him. Regardless of whether Mr. Davis was appointed in 2012 or 2014, our analysis would not
change.
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Opinion of the Court
show that an error was fundamental, a defendant must
establish prejudice—that, after examination of the entire
record, the error had a probable impact on the jury’s
finding that the defendant was guilty. Moreover, because
plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously
affects the fairness, integrity or public reputation of
judicial proceedings[.]
Id. at 518, 723 S.E.2d at 334 (citations and quotations marks).
This is an exceptional case and the issue of a violation of attorney-client
privilege in this context is a fundamental error which “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. The attorney-client
privilege is one of the most important and well-established protections our legal
system affords a criminal defendant:
The public’s interest in protecting the attorney-
client privilege is no trivial consideration, as this protection
for confidential communications is one of the oldest and
most revered in law. The privilege has its foundation in
the common law and can be traced back to the sixteenth
century. The attorney-client privilege is well-grounded in
the jurisprudence of this State. When the relationship of
attorney and client exists, all confidential communications
made by the client to his attorney on the faith of such
relationship are privileged and may not be disclosed.
There are exceptions to this general rule of
application to all communications between a client and his
attorney . . . .
The rationale for having the attorney-client
privilege is based upon the belief that only full and frank
communications between attorney and client allow the
attorney to provide the best counsel to his client. The
privilege rests on the theory that encouraging clients to
make the fullest disclosure to their attorneys enables the
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Opinion of the Court
latter to act more effectively, justly and expeditiously—
benefits out-weighing the risks of truth-finding posed by
barring full disclosure in court.
In considering whether an attorney can be compelled
to disclose confidential attorney-client communications, it
is noteworthy that unlike other profession-related,
privileged communications, the attorney-client privilege
has not been statutorily codified. In article 7 of chapter 8
of our General Statutes, relating to competency of
witnesses, the General Assembly has specifically
addressed a method for disclosure of privileged
communications. In N.C.G.S. § 8–53, the General
Assembly has established the privilege for confidential
communications between physician and patient, providing
that confidential information obtained in such a
relationship shall be furnished only on the authorization of
the patient or, if deceased, the executor, administrator or
next of kin of the patient. This statute further provides
that any resident or presiding judge in the district, either
at the trial or prior thereto, or the Industrial Commission
pursuant to law may, subject to N.C.G.S. § 8–53.6, compel
disclosure if in his opinion disclosure is necessary to a
proper administration of justice. Our General Assembly
has also provided this same disclosure procedure and basis
in its creation of the privilege for communications between
psychologist and patient (N.C.G.S. § 8–53.3 (2001)), in the
school counselor privilege (N.C.G.S. § 8–53.4 (2001)), in the
marital and family therapy privilege (N.C.G.S. § 8–53.5
(1999)), in the social worker privilege (N.C.G.S. § 8–53.7
(1999)), in the professional counselor privilege (N.C.G.S. §
8–53.8 (2001)), and in the optometrist-patient privilege
(N.C.G.S. § 8–53.9 (2001)).
With respect to statutorily established privileges, we
also find it notable that with other types of privileged
communications, such as the clergyman privilege, the
General Assembly has made these in essence absolute by
not including any provision for a judge to compel disclosure
if in his opinion disclosure is necessary to a proper
administration of justice. Significantly, our General
Assembly has not seen fit to enact such statutory
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Opinion of the Court
provisions for the attorney-client privilege, and we must
look solely to the common law for its proper application.
In re Miller, 357 N.C. 316, 328–30, 584 S.E.2d 772, 782–83 (2003) (citations, quotation
marks, and brackets omitted).
Both attorney-client privilege and work-product privilege apply to criminal
prosecutions:
Attorney-client communications are privileged
under proper circumstances. A similar qualified privilege
protects criminal defendants from disclosure of the work of
attorneys produced on behalf of such defendants in
connection with the investigation, preparation or defense
of their cases. Both the attorney-client privilege and the
work product privilege, however, are privileges belonging to
the defendant and may be waived by him.
State v. Taylor, 327 N.C. 147, 152, 393 S.E.2d 801, 805 (1990) (emphasis added)
(citations omitted).
Although there are exceptions to both the attorney-client privilege and work-
product privilege, the State has not identified or argued that any particular exception
to attorney-client privilege would apply to this case. Instead, the State responds to
defendant’s argument regarding violation of his attorney-client privilege by arguing
that “defendant waived attorney client privilege and work . . . privilege with regard
to trial strategy when he acquiesced to the strategic delay in trial.” (Emphasis added.)
(Original in all caps.) The State continues,
[I]n the context of defendant’s argument regarding a
speedy trial violation, the material issue is not whether
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Opinion of the Court
defendant and his counsel communicated about strategy.
Rather, the material issue is whether or not defendant
acquiesced in the delay. There is no evidence that this
strategic decision was an attorney-client privileged
communication. The actual employment of a trial strategy
of delay does not itself constitute a communication from
defendant such that it is afforded the protections of the
attorney-client privilege. Rather, if anything, such
strategy should be protected by the work product doctrine.
But the State has not argued any of the established exceptions or methods of
waiver of the privilege.15 The State cites no legal authority in support of its theory of
Defendant’s tacit waiver of attorney-client privilege by acquiescence to a “strategic
delay in trial.” The State’s argument first assumes that defendant did in fact
knowingly and intentionally acquiesce in Mr. Davis’s “strategic decision” to delay
trial, but it is the State’s burden to prove this fact. The State’s entire explanation of
the six-year trial delay is that defendant had agreed to the delay. Since Mr. Davis
did not personally meet with or talk to defendant until more than three years had
passed since he was appointed, based upon the unrefuted facts, Mr. Davis could not
have obtained Defendant’s consent to a trial strategy of delay, nor could he have
testified based upon any particular statement by defendant to him during that time
15 A defendant waives attorney-client privilege for purposes of a motion for ineffective assistance of
counsel. See generally State v. Taylor, 327 N.C. 147, 152, 393 S.E.2d 801, 805 (1990) (“By alleging in
his amended motion for appropriate relief that his court-appointed attorney, the Public Defender,
rendered ineffective assistance of counsel during the trial and direct appeal of these cases, the
defendant waived the benefits of both the attorney-client privilege and the work product privilege, but
only with respect to matters relevant to his allegations of ineffective assistance of counsel.”).
Defendant filed a pro se motion alleging ineffective assistance of counsel, but his counsel did not file a
motion for ineffective assistance of counsel, and the trial court did not consider defendant’s pro se
motions.
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STATE V. FAROOK
Opinion of the Court
period, although others from his office could have discussed these matters with
defendant and communicated this to Mr. Davis. But this does not eliminate the issue
of attorney-client privilege, which also extends to an attorney’s agents. See generally
State v. Murvin, 304 N.C. 523, 531, 284 S.E.2d 289, 294 (1981) (“Communications
between attorney and client generally are not privileged when made in the presence
of a third person who is not an agent of either party.” (emphasis added)).
And even if we assume arguendo that Mr. Davis’s testimony regarding his
“strategic decision” to let things “cool down” when he began representing defendant
was not protected by attorney-client privilege, this would explain perhaps a year or
two of the six-year delay; it does not address the majority of the delay. The State
also has the burden to explain the additional four or five years.
The State also argues that Mr. Davis’s “trial strategy” was not a protected
communication but rather “work product.” Although the work-product privilege
normally applies to documents or other materials, the essence of the privilege is
protection of “an attorney’s impressions, opinions, and conclusions or his legal
theories and strategies[:]”
The work product doctrine applies in criminal as well as
civil cases. It is a qualified privilege for certain materials
prepared by an attorney acting on behalf of his client in
anticipation of litigation. The doctrine has been extended
to protect materials prepared for the attorney by his agents
as well as those prepared by the attorney himself.
The doctrine was designed to protect the mental
processes of the attorney from outside interference and
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Opinion of the Court
provide a privileged area in which he can analyze and
prepare his client’s case. Only roughly and broadly
speaking can a statement of a witness that is reduced
verbatim to a writing or a recording by an attorney be
considered work product, if at all. It is work product only
in the sense that it was prepared by the attorney or his
agent in anticipation of trial (in this case, by the police for
the district attorney). Such a statement is not work
product in the same sense that an attorney’s impressions,
opinions, and conclusions or his legal theories and
strategies are work product.
As pointed out in United States v. Nobles, supra, the
work product privilege, like any other qualified privilege,
can be waived. The privilege is certainly waived when the
defendant or the State seeks at trial to make a testimonial
use of the work product. By electing to use Fragiacomo as
a witness the State waived any privilege it might have had
with respect to matters covered in his testimony.
State v. Hardy, 293 N.C. 105, 126, 235 S.E.2d 828, 840–41 (1977) (citations omitted).
Even if we were to assume that defendant’s former counsel’s “impressions,
conclusions, opinions and legal theories” regarding his defense of defendant could be
considered “work product,” those are privileged just as a document setting forth those
processes in writing would be. See North Carolina State Bar v. Harris, 139 N.C. App.
822, 824–25, 535 S.E.2d 74, 76 (2000) (“[T]he attorney-work product rule, which is a
qualified privilege for witness statements prepared at the request of the attorney and
an almost absolute privilege for attorney notes taken during a witness interview.
Also, under the attorney-work product rule, the mental impressions, conclusions,
opinions and legal theories of an attorney are absolutely protected from discovery
regardless of any showing of need. North Carolina recognizes the attorney-work
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Opinion of the Court
product rule under N.C. Gen. Stat. § 1A–1, Rule 26(b)(3) (1990). Under that statute,
attorney-work product is defined in relevant part to include, among other things,
materials prepared in anticipation of litigation or for trial by or for another party or
by or for that other party’s agent. Such evidence may be obtained by a party “only
upon a showing that the party seeking discovery has substantial need of the materials
in the preparation of his case and that he is unable without undue hardship to obtain
the substantial equivalent of the materials by other means.” (emphasis added)
(citations, quotation marks, and ellipses omitted)).
Mr. Davis’s communications with defendant and his trial strategy were
protected by attorney-client privilege. See generally in re Miller, 357 N.C. at 328–30,
584 S.E.2d at 782–83. Even if portions of Mr. Davis’s testimony regarding the court
calendars in Rowan County or his other cases did not reveal privileged information,
neither the State nor the trial court made any attempt to limit his testimony to this
sort of public information. If the strategic trial decisions that the State contends
defendant agreed to in consultation with his attorney are not protected, then it is
difficult to fathom the communication or work product which could be protected. And
even if Mr. Davis did have a trial strategy of delay, if he failed to communicate that
strategy to defendant, defendant could not agree to it. To show defendant’s knowing
acquiescence to Mr. Davis’s trial strategy – which is the basis of the State’s waiver
argument -- the State would have to show that defendant’s counsel communicated his
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Opinion of the Court
strategy to defendant, and he did actually agree.
The trial court thus erred in allowing Mr. Davis to testify against defendant
where defendant had not waived his attorney-client privilege. To demonstrate plain
error, defendant must also “establish prejudice—that, after examination of the entire
record, the error had a probable impact on the jury’s finding that the defendant was
guilty.” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.
The State’s only evidence to rebut the prima facie showing of a violation of
defendant’s right to a speedy trial was erroneously admitted in violation of his
attorney-client privilege, and without this evidence, the State could not carry its
burden of attempting to explain the trial delay and defendant’s motion should have
been allowed. We conclude the erroneous admission of the State’s evidence had “a
probable impact” on a jury finding defendant guilty as there would have been no trial
without it, since defendant’s case would have been dismissed for the speedy trial
violation. We therefore conclude the trial court plainly erred in allowing Mr. Davis
to testify against his former client. We will thus disregard the entirety of Mr. Davis’s
testimony regarding his “trial strategy” of delay and any findings of fact based upon
that testimony.
c. Evidence of Reasons for Delay
Turning back now to the State’s asserted reasons for the delay, without Mr.
Davis’s testimony, the State has given no explanation or excuse for the delay. The
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Opinion of the Court
State could have presented testimony regarding some of the information in Mr.
Davis’s testimony from the assistant district attorneys who dealt with the case and
who discussed the case with Mr. Davis.16 Even if we consider the evidence and
information in the court file, this simply establishes the basic timeline of events and
these facts were not in dispute. Defendant’s case was not scheduled for trial by the
State, and it was on an administrative calendar only a few times during the six years
preceding trial. The State did not even request analysis of the DNA evidence until
approximately three years after defendant was arrested. Otherwise, the State did
not present any evidence regarding the reasons for the delay other than from
defendant’s former counsel. The State failed to meet its burden “to rebut and offer
explanations for the delay.” Wilkerson, ___ N.C. App. at ___, 810 S.E.2d at 392.
It is important at this point that we not speculate or move beyond the evidence
we have before us. The burden here was on the State, and since we must disregard
Mr. Davis’s testimony given in violation of defendant’s attorney-client privilege, the
State failed to provide any explanation for years of the delay. This Court can only
conclude that prong two, the reason for the delay, weighs against the State. It was
the State’s burden to explain the delay or produce admissible evidence the delay was
due to defendant’s own actions or caused by some other valid reason, but the State
16The State’s brief and trial court’s order also includes findings in the “timeline” regarding some dates
of conversations or communications between Mr. Davis and several assistant district attorneys,
although the State did not present any witnesses other than Mr. Davis.
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STATE V. FAROOK
Opinion of the Court
presented no such competent evidence and the court file does not show this occurred.
Even on appeal, apparently recognizing the absence of evidence in the record,
the State discussed no details of its case backlog as a justification for the delay of
defendant’s case but instead argues in a footnote of its brief:
[t]his Court has previously noted the existence of a
backlog of cases and lack of available prosecutorial staff
in Rowan County during this same time period in its
recent published opinion in State v. Farmer, ___ N.C. App.
___, ___, 822 S.E.2d 556, 560 (2018). In Farmer, this court
found no speedy trial violation despite a delay of
approximately five and a half years between the institution
of charges and the trial.
This Court cannot rely upon factual findings in Farmer to review the trial
court’s order in this case; the State cannot carry its burden of production of factual
evidence regarding the reasons for delay in this case only by citation to other cases,
even from the same judicial district and during the same general time period. One
obvious reason is the difference in the facts of each case. In Farmer, the trial court
found, and this Court also determined, that although the backlog was a “primary
cause” of the delay, the defendant had also contributed to the delay by requesting
funds to obtain an expert witness, and he agreed to continue the case:
Specifically, defendant contends that the State allowed his
case to be idle while there were 77 administrative sessions
and 78 trial sessions between 2012 and 2017. The State
acknowledged that there was a considerable delay in
calendaring defendant’s case. However, the State
presented evidence of crowded dockets and earlier pending
cases given priority as a valid justification for the delay.
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Opinion of the Court
According to the record, it is undisputed that the
primary cause for defendant’s delayed trial was due to a
backlog of pending cases in Rowan County and a shortage
of staff of assistant district attorneys to try cases. The
State asserts that, at minimum, defendant also played a
role in the delay as the record shows defendant was still
preparing his trial defense as of late 2014 when he
requested funds to obtain expert witnesses. Significantly,
defendant filed his motion for a speedy trial after he agreed
to continue his case to the next trial session in 2017. Thus,
defendant himself acquiesced in the delay by waiting
almost five years after indictment to assert a right to
speedy trial.
State v. Farmer, ___ N.C. App. ___, 822 S.E.2d 556, 560 (2018) (emphasis added).
Here, the State failed to present any meaningful evidence regarding the
“crowded dockets and earlier pending cases given priority as a valid justification for
the delay” and defendant did not agree to any continuances. Contrast id. Here, there
is no evidence in the record supporting the backlog of cases, other than a general use
in argument of the word “backlog” and the listing of cases tried during some weeks of
court in State’s Exhibit A. As noted above, State’s Exhibit A fails to address the final
two years of the delay, so even if it explained some of the delay, the State failed to
address a large portion of the delay. As in Farmer, the State must do more than
assert a general “backlog” of cases. See id. This factor weighs against the State
heavily. We thus turn to the third prong.
3. Defendant’s Assertion of His Right to a Speedy Trial
During the pendency of his case, defendant filed two pro se motions to dismiss
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Opinion of the Court
his case due to speedy trial violations, and his attorney filed one, all in September of
2018. The trial court’s order “weighs heavily” against defendant that he “merely filed
a motion to dismiss for speedy trial” rather than “a demand for speedy trial[.]” Since,
as discussed above, we must disregard the trial court’s findings regarding defendant’s
acquiescence in any delay as well as Mr. Davis’s testimony this factor carries little
weight. We also note defendant sent earlier pro se communications to the trial court,
and although they did not use the words “speedy trial,” they do express defendant’s
desire for information regarding why his case was not proceeding. We turn to the
final prong.
4. Prejudice
Last, as to prejudice, defendant argued in his motions to dismiss that he has
been unable to adequately prepare for trial or garner witnesses in his defense.
Defendant was arrested in 2012, but the State waited until 2017 to file two charges
of murder -- far more serious charges than the State initially filed. We need not
speculate what the prejudice of the delay might have been as the delayed murder
charges resulted in life imprisonment without parole. If defendant had been tried
and convicted on the charges initially filed, he could not have been subjected to life
imprisonment without possibility of parole. Defendant was not charged with murder
for over five years after the date of his arrest, and defendant was in jail for the entire
time. Defendant’s imprisonment and the State’s delay in imposing far more serious
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Opinion of the Court
charges support his claim of prejudice, as he was unable to assist in his trial
preparation and attempt to find potential witnesses and other evidence which would
have been more readily available six years earlier. Further, the delay of six years is
so substantial, the delay alone indicates prejudice, particularly given that fact that
the State presented no competent evidence justifying the delay.
Because the Sixth Amendment right to a speedy trial protects only the
defendant and not the State, the trial court erred in considering alleged prejudice to
the State by the delay. In addition, we note the State was ultimately not
“significantly prejudiced” or even slightly prejudiced by the delay as it obtained
convictions for second-degree murder and attaining the status of violent habitual
felon, charges it elected to bring five years after the incident. This factor weighs
heavily against the State.
C. Summary
In conducting the analysis directed by Barker, we find that every factor weighs
either in favor of defendant, against the State, or not clearly in favor of either party.
The State did not meet its burden of explaining valid reasons for the six-year delay
of trial. Even if we were to assume that Mr. Davis’s initial trial strategy of letting
things “cool down” was proper for our consideration, this alleged strategy would
explain less than half of the delay. Finally, the delay at issue here is so substantial
that its duration alone speaks to prejudice, a reality only underlined by the State’s
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Opinion of the Court
failure to justify or explain it. We must therefore vacate defendant’s judgments due
to a violation of his constitutional rights to a speedy trial. Accordingly, we need not
address defendant’s other issues on appeal.
III. Conclusion
Based upon the delay of over six years from defendant’s arrest until his trial,
because the State failed to carry its burden of presenting valid reasons for the delay,
we reverse the trial court’s order denying defendant’s motion to dismiss and vacate
defendant’s judgment.
REVERSED and VACATED.
Judges ARROWOOD and BROOK concur.
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