136.2Speedy Trial Issues
- The defendant may file a motion to request a speedy trial hearing at any time.
- If the defendant make a prima facie showing of delay, then the court conducts a multi-factor balancing test to determine whether a violation has occurred.
- If the defendant’s speedy trial rights were violated, the case is dismissed with prejudice.
Procedure for Resolving an Alleged Speedy Trial (6th Amendment) or Due Process (5th/14th Amendment) Violation
- Defendant’s Motion
A motion to dismiss for a speedy trial violation or untimely prosecution may be brought under G.S. 15A-954(a)(3) and (4), which provides that the court must dismiss the charges in a criminal pleading if the defendant has been denied a speedy trial, or if another violation of the defendant’s constitutional rights has caused him irreparable prejudice. See State v. Parker, 66 N.C. App. 293, 294 (1984) (court cites this statutory provision as well as G.S. 15A-954(a)(3), dismissal for denial of speedy trial).
G.S. 15A-954(c) states that a defendant may make a motion to dismiss for lack of a speedy trial “at any time;” however, to avoid the risk of waiver, the motion is typically made before trial. See State v. Joyce, 104 N.C. App. 558, 568-69 (1991) (making motion for speedy trial at trial rendered the issue a mere formality); see also State v. Thompson, 15 N.C. App. 416, 418 (1972) (speedy trial claim cannot be raised for first time on appeal).
When there are contested issues of fact regarding a motion to dismiss, the defendant is entitled to an evidentiary hearing, State v. Goldman, 311 N.C. 338, 346-47 (1984), but a defendant must specifically request a hearing. See State v. Dietz, 289 N.C. 488, 495 (1976) (failure to hold hearing not error absent defense request). If there is no objection, the evidence may consist of statements of counsel; however, the North Carolina courts have expressed that the better practice is to present evidence and develop the record through affidavits or testimony. See State v. Pippin, 72 N.C. App. 387, 397-98 (1985).
- Judge’s Ruling
If a hearing on the motion was required, then the court is also required to make findings of fact and conclusions of law when issuing a ruling granting or denying the motion. See State v. Dietz, 289 N.C. 488, 495 (1976); State v. Chaplin, 122 N.C. App. 659, 663 (1996); State v. Clark, 201 N.C. App. 319, 328-29 (2009) (when evidentiary hearing is required for a motion to dismiss for lack of a speedy trial, the trial court must make findings of fact and conclusions of law to support its order – likely applies to due process challenges as well).
Balancing Test to Determine a Speedy Trial (6th Amendment) Violation
In determining whether a defendant has been deprived of a speedy trial, the burden of proof is initially with the defendant to show a prima facie case that substantial delay was caused by the “neglect or willfulness of the prosecution” – if the defendant makes that showing, then the burden shifts to the state to justify the reason for the delay. See Barker v. Wingo, 407 U.S. 514 (1992) (based on facts in this case, delay of five years did not violate right to speedy trial); Doggett v. United States, 505 U.S. 647 (1992) (based on facts in this case, delay of eight and one-half years between defendant’s indictment and his arrest violated his right to a speedy trial); State v. McKoy, 294 N.C. 134 (1977); State v. Johnson, 275 N.C. 264 (1969). The court weighs the following four factors in comparing the conduct of the prosecution and defense:
- Length of the Delay
This factor is not determinative on its own, but the court will not go on to consider the other three factors listed below unless the length of the delay itself is “presumptively prejudicial.” Barker v. Wingo, 407 U.S. 514 (1972); State v. McCoy, 303 N.C. 1 (1981). There is not a clear rule on precisely what length of delay is “presumed” to be prejudicial; for example, one prior case has found 14 months was a presumptively prejudicial delay, while another case has found that 11 months was not. See State v. Pippin, 72 N.C. App. 387 (1985) (delay of fourteen months between arrest and murder trial was prima facie unreasonable requiring state to justify delay); State v. McCoy, 303 N.C. 1 (1981) (delay of eleven months between issuance of arrest warrant and murder trial was not presumptively prejudicial); see also State v. Avery, 302 N.C. 517 (1981) (delay of six months between arrest and murder trial was not presumptively prejudicial); but see State v. McKoy, 294 N.C. 134 (1977) (twenty-two month delay between arrest and trial was “unusual,” necessitating consideration of the three remaining factors).
If such a delay exists, it serves as one factor in the analysis. The longer the delay, the more heavily it will factor against the state. Yet courts have frequently found no speedy trial violation in cases with long delays if the other factors in the analysis weighed against finding a violation. See State v. Farmer, 262 N.C. App. 619 (2018) (no violation in case where defendant was indicted on May 7, 2012, but trial did not begin until July 17, 2017); State v. Carvalho, 243 N.C. App. 394 (2015), aff’d per curiam, 369 N.C. 309 (2016) (no violation despite total delay of over nine years from offense date to hearing on motion); State v. Goins, 232 N.C. App. 451 (2014) (no violation despite twenty-seven month delay between indictment and trial); State v. Lee, 218 N.C. App. 42 (2012) (no violation despite twenty-two month delay from arrest to trial); State v. McBride, 187 N.C. App. 496 (2009) (delay of three years and seven months from arrest to trial did not violate defendant’s constitutional right to a speedy trial); State v. Doisey, 162 N.C. App. 447 (2004) (no speedy trial violation for approximately two-year delay); State v. Spivey, 357 N.C. 114 (2003) (four-and-one-half year delay; no speedy trial violation); State v. Strickland, 153 N.C. App. 581 (2002) (no speedy trial violation when delay of 940 days from arrest to trial while defendant remained incarcerated); State v. Hammond, 141 N.C. App. 152 (2000), aff'd per curiam, 354 N.C. 353 (2001) (four-and-one-half year delay; no speedy trial violation).
Time that passes between a good-faith dismissal of criminal charges and the filing of new charges is not to be considered in determining a violation of the right to a speedy trial. United States v. MacDonald, 456 U.S. 1 (1982); see also State v. Friend, 219 N.C. App. 338 (2012) (calculating period of delay when case was appealed for trial de novo).
- Reason for the Delay
The weight allocated to any delay caused by the state depends on the reason for the delay. A deliberate attempt by the state to “hamper the defense” or to gain “tactical advantage” over the defendant will factor heavily against the state, while more neutral reasons such as an ongoing investigation, overcrowded courts, or simple negligence in addressing the case will weigh less heavily, but still be considered. See United States v. Lovasco, 431 U.S. 783 (1977); Barker v. Wingo, 407 U.S. 514 (1972); State v. McKoy, 294 N.C. 134 (1977); State v. Pippin, 72 N.C. App. 387 (1985); State v. Bare, 77 N.C. App. 516 (1985); State v. Brooks, 136 N.C. App. 124 (1999) (part of delay attributed to defendant’s firing his court-appointed lawyers).
In general, North Carolina courts have held that the defendant has the burden of showing that the delay was due to willfulness or negligence by the state; however, when the delay is ‘exceptionally long,’ that fact may be sufficient to make a prima facie showing which the state must then rebut. See State v. Branch, 41 N.C. App. 80, 85-6 (1979); State v. Washington, 192 N.C. App. 277, 283 (2008). Reasons such as congested court dockets, difficulty locating witnesses, and the complexity of the case may rebut the showing and justify the delay. See State v. Pippin, 72 N.C. App. 387 (1985); State v. Smith, 289 N.C. 143 (1976); State v. Hughes, 54 N.C. App. 117 (1981).
Delay caused by appointed defense counsel or a public defender is not attributable to the state in determining whether a defendant’s speedy trial right was violated, unless the delay resulted from a systemic breakdown in the public defender system. Vermont v. Brillon, 556 U.S. 81 (2009). A defendant who causes the delay is unlikely to succeed in claiming a speedy trial violation. State v. Groves, 324 N.C. 360 (1989); State v. Tindall, 294 N.C. 689 (1978); State v. Leyshon, 211 N.C. App. 511 (2011).
- Prejudice to the Defendant
The third factor which the court will consider is whether the defendant was prejudiced as a result of the delay, and the nature and degree of that prejudice. See, e.g., State v. Lundy, 135 N.C. App. 13 (1999) (defendant failed to show how delay negatively impacted testimony of defense witnesses). Barker identified three main types of prejudice that may result from a delayed trial: (i) oppressive pretrial incarceration; (ii) social, financial, and emotional strain of living under a pending prosecution; and (iii) impairment of ability to present a defense. Of the three, impairment of the defense is considered to be the strongest claim. See State v. Armistead, 256 N.C. App. 233 (2017) (finding no speedy trial violation where defendant showed no prejudice from delay, despite other factors weighing in defendant’s favor); State v. Washington, 192 N.C. App. 277 (2008); State v. Chaplin, 122 N.C. App. 659 (1996).
- Defendant’s Assertion of Right to Speedy Trial
Finally, the court considers the defendant’s assertion of his right to a speedy trial. Barker rejected an explicit “demand-waiver” rule for speedy trial claims, so the fact that a defendant failed to demand a speedy trial does not necessarily mean the right was waived, but the presence or absence of a demand is still considered as a factor. See State v. Chaplin, 122 N.C. App. 659 (1996) (court dismissed charge even though defendant did not assert right to speedy trial until 30 days before case was tried). If the defendant made a speedy trial demand and opposed state continuances, that weighs in favor of finding a violation. If the defendant failed to demand a speedy trial, or acquiesced in the delay, it weighs against finding a violation. See State v. Webster, 337 N.C. 674 (1994); State v. McCollum, 334 N.C. 208 (1993); State v. Spinks, 136 N.C. App. 153 (1999); State v. Raynor, 45 N.C. App. 181 (1980).
Balancing Test to Determine a Due Process (5th/14th Amendment) Violation
Due process standards apply to periods of delay between the occurrence of a crime and when a defendant is formally accused of committing that crime. See United States v. Lovasco, 431 U.S. 783, 788-89 (1977); United States v. Marion, 404 U.S. 307, 325 (1971). Two factors, discussed below, are considered in determining whether a pre-accusation delay violated defendant’s due process rights.
- Prejudice to the Defendant
First, the defendant must demonstrate that he or she was actually prejudiced by the delay – that is, the delay actually impaired the defendant’s ability to defend against the charge. See Lovasco, 431 U.S. at 790; Marion, 404 U.S. at 324-25; State v. McCoy, 303 N.C. 1, 7 (1981). Vague or general allegations that the passage of time has caused memories to fade are insufficient to establish prejudice. See State v. Goldman, 311 N.C. 338, 345 (1984) (prejudice was not established by showing that defendant did not recall the date in question or could not account for his whereabouts on that date). Instead, the defendant must establish that pre-accusation delay caused the loss of significant and helpful testimony or evidence. See State v. Dietz, 289 N.C. 488, 493-94 (1976) (so stating; contrasting case at hand against federal case where prejudice existed because the defendant showed that he was precluded from offering testimony of specific alibi witness because of the witness's uncertainty about the events); State v. Jones, 98 N.C. App. 342, 344 (1990) (the defendant failed to show that significant evidence or testimony that would have been helpful to defense was lost due to the delay). Additionally, defense counsel may have an obligation to try to ameliorate any prejudice, if possible. See State v. Hackett, 26 N.C. App. 239, 243 (1975) (defense motion denied in part because the defendant who alleged pre-accusation delay had not tried to remedy memory loss regarding underlying incident by moving for a bill of particulars or moving for discovery of the information).
- Reasonableness of the Delay
Second, the court will evaluate whether the delay was “unreasonable, unjustified, and engaged in by the prosecution deliberately and unnecessarily in order to gain tactical advantage over the defendant.” State v. McCoy, 303 N.C. 1, 7-8 (1981). See also State v. Goldman, 311 N.C. 338 (1984); State v. Stanford, 169 N.C. App. 214 (2005); State v. Martin, 195 N.C. App. 43 (2009).
Remedy for a Violation
If the court holds a hearing, conducts the appropriate balancing test, and finds that a speedy trial violation has occurred, then the remedy is dismissal of the charge with prejudice (which means the charge cannot be tried again). See Barker, 407 U.S. at 522; G.S. 15A-954(a)(3) (court must dismiss charges if defendant has been denied constitutional right to speedy trial); see also Strunk v. United States, 412 U.S. 434, 438-40 (1973) (court cannot remedy violation of right to speedy trial by reducing the defendant’s sentence); State v. Wilburn, 21 N.C. App. 140, 142 (1974) (recognizing that dismissal is the only remedy after a determination that constitutional right to speedy trial has been violated).