{ "id": 6778199, "name": "STATE OF NORTH CAROLINA v. HAROLD GOINS, JR.", "name_abbreviation": "State v. Goins", "decision_date": "2014-02-18", "docket_number": "No. COA13-998", "first_page": "451", "last_page": "460", "citations": [ { "type": "official", "cite": "232 N.C. App. 451" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "opinion_index": -1, "case_paths": [ "/us/407/0514-01" ] }, { "cite": "665 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641797 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "804" } ], "opinion_index": 0, "case_paths": [ "/se2d/665/0799-01" ] }, { "cite": "653 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639905 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "220" }, { "page": "220" }, { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0218-01" ] }, { "cite": "434 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "196" }, { "page": "196" } ], "opinion_index": 0 }, { "cite": "334 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530846 ], "year": 1993, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0551-01" ] }, { "cite": "81 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1954, "pin_cites": [ { "page": "366" } ], "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] }, { "cite": "378 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1989, "pin_cites": [ { "page": "757" }, { "page": "757" }, { "page": "758" }, { "page": "758" }, { "page": "758" } ], "opinion_index": 0 }, { "cite": "324 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487826 ], "weight": 5, "year": 1989, "pin_cites": [ { "page": "349" }, { "page": "349" }, { "page": "351" }, { "page": "351" }, { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0343-01" ] }, { "cite": "542 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "324", "parenthetical": "citing State v. Hunt, 324 N.C. 343, 349, 378 S.E.2d 754, 757 (1989)" }, { "page": "324", "parenthetical": "alterations in original" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440769 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "304", "parenthetical": "citing State v. Hunt, 324 N.C. 343, 349, 378 S.E.2d 754, 757 (1989)" }, { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0298-01" ] }, { "cite": "706 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "814" }, { "page": "814" } ], "opinion_index": 0 }, { "cite": "210 N.C. App. 30", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3822244 ], "year": 2011, "pin_cites": [ { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/nc-app/210/0030-01" ] }, { "cite": "505 U.S. 647", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1480837 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "652" }, { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/us/505/0647-01" ] }, { "cite": "447 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "352" }, { "page": "352" }, { "page": "351" } ], "opinion_index": 0 }, { "cite": "337 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552733 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "680-81" }, { "page": "681" }, { "page": "678" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0674-01" ] }, { "cite": "734 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "parenthetical": "quoting State v. Webster, 337 N.C. 674, 680-81, 447 S.E.2d 349, 352 (1994)" } ], "opinion_index": 0 }, { "cite": "366 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4352304 ], "year": 2012, "pin_cites": [ { "parenthetical": "quoting State v. Webster, 337 N.C. 674, 680-81, 447 S.E.2d 349, 352 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc/366/0329-01" ] }, { "cite": "720 S.E.2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2012, "pin_cites": [ { "page": "893", "parenthetical": "quoting State v. Webster, 337 N.C. 674, 680-81, 447 S.E.2d 349, 352 (1994)" }, { "page": "893" }, { "page": "893" } ], "opinion_index": 0 }, { "cite": "579 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "257" } ], "opinion_index": 0 }, { "cite": "357 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491870 ], "year": 2003, "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0114-01" ] }, { "cite": "540 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "722" } ], "opinion_index": 0 }, { "cite": "353 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135728 ], "year": 2000, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0050-01" ] }, { "cite": "273 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1981, "pin_cites": [ { "page": "723" }, { "page": "724" }, { "page": "724" } ], "opinion_index": 0 }, { "cite": "302 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563873 ], "year": 1981, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0089-01" ] }, { "cite": "192 N.C. App. 277", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160283 ], "year": 2008, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0277-01" ] }, { "cite": "735 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "366 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4353891, 4358628, 4348326, 4361616, 4346871, 4345945, 4352795 ], "year": 2012, "opinion_index": 0, "case_paths": [ "/nc/366/0402-05", "/nc/366/0402-04", "/nc/366/0402-06", "/nc/366/0402-02", "/nc/366/0402-07", "/nc/366/0402-03", "/nc/366/0402-01" ] }, { "cite": "724 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "90" } ], "opinion_index": 0 }, { "cite": "187 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "weight": 2, "year": 2007, "pin_cites": [ { "page": "498-99" } ], "opinion_index": 0 }, { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "weight": 2, "pin_cites": [ { "page": "530" }, { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/us/407/0514-01" ] } ], "analysis": { "cardinality": 914, "char_count": 20995, "ocr_confidence": 0.711, "pagerank": { "raw": 7.063884962999277e-08, "percentile": 0.42572173126695806 }, "sha256": "2a3c65e213da49304f0acbb1ee259c7f10c9f4da29eeadeda1248804e5d111ad", "simhash": "1:953bc56276370c76", "word_count": 3430 }, "last_updated": "2023-07-14T19:34:41.441392+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C. and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. HAROLD GOINS, JR." ], "opinions": [ { "text": "McGEE, Judge.\nHarold Goins, Jr. (\u201cDefendant\u201d) appeals from his convictions for first-degree rape, first-degree kidnapping, three counts of first-degree sexual offense, assault with a deadly weapon, communicating threats, and being a violent habitual felon. At trial, the State\u2019s witnesses included Johnathan Stevens (\u201cMr. Stevens\u201d), who testified that he drove Defendant to the apartment of Jacquelyn Goins (\u201cMs. Goins\u201d) on 21 July 2010. Ms. Goins testified that Defendant is her cousin and that Defendant came to her apartment with his brother, Mr. Stevens. She testified that Mr. Stevens left the apartment after about twenty minutes, and Defendant subsequently attacked her. The facts relevant to the issues on appeal are discussed in greater detail in the analysis section of this opinion.\nI. Sneedv Trial\nDefendant first argues the trial court \u201cabused its discretion when it denied [Defendant\u2019s] motion to dismiss for lack of a speedy trial.\u201d To determine whether a defendant\u2019s right to a speedy trial has been infringed, we consider four factors: \u201c(1) the length of delay, (2) the reason for the delay, (3) the defendant\u2019s assertion of his right to a speedy trial, and (4) prejudice to the defendant resulting from the delay.\u201d State v. McBride, 187 N.C. App. 48;96, 498, 653 S.E.2d 218, 220 (2007); see also Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 117 (1972).\nA. Length of Delay\nFor speedy trial analysis, the relevant period of delay begins at indictment. State v. Friend, _N.C. App. _,_, 724 S.E.2d 85, 90, disc. review denied, 366 N.C. 402, 735 S.E.2d 188 (2012). In the present case, the relevant period began 18 January 2011 and ended upon Defendant\u2019s trial, on 1 April 2013. Thus, the relevant period for the first Barker factor is approximately twenty-seven months, from 18 January 2011 to 1 April 2013.\nB. Reason for the Delay\nAs to the reason for the delay, Defendant bears the burden of \u201coffering prima facie evidence showing that the delay was caused by the neglect or willfulness of the prosecution[.]\u201d State v. Washington, 192 N.C. App. 277, 283, 665 S.E.2d 799, 804 (2008). Only after the defendant has carried his burden \u201cmust the State offer evidence fully explaining the reasons for the delay and sufficient to rebut the prima facie evidence.\u201d Id. The \u201cconstitutional guarantee does not outlaw good-faith delays which are reasonably necessary for the State to prepare and present its case.\u201d Id.\nDefendant failed to carry this burden. In his brief to this Court, Defendant concedes there is no \u201cdeliberate delay in an attempt to hamper the defense\u201d by the State. In his motion for a speedy trial, Defendant offered no evidence showing that the State\u2019s neglect or willfulness caused a delay. Furthermore, in arguing to the trial court that the charges should be dismissed for speedy trial violations, defense counsel alleged merely that \u201cthe defense has never, to my knowledge, made a motion to continue, joined in any motion to continue, asked for any continuance or delay for this trial.\u201d Defendant made no allegations as to neglect or willfulness of the State.\nNevertheless, the State offered reasons to explain the delay. Defendant contends the State\u2019s reasons \u2014 a backlog at the State Bureau of Investigation (\u201cSBI\u201d) crime lab, the SBI\u2019s failure to fully analyze the rape kit, other cases on the docket, the need to have an out-of-county judge, and Defendant\u2019s motion for a change of venue \u2014 \u201cwere entirely caused by or under the control of the [S]tate to rectify.\u201d\nIn State v. Tann, 302 N.C. 89, 93, 273 S.E.2d 720, 723 (1981), a speedy trial case, the defendant moved for an examination to determine competency. Further delay resulted when defense counsel withdrew. The case was calendared for trial \u201cone or more times\u201d but not reached due to the length of the calendar. Id. at 95, 273 S.E.2d at 724. Our Supreme Court held that \u201c[a]ll such reasons have been recognized consistently as valid justification for delay.\u201d Id. \u201cInherent in every criminal prosecution is the probability of some delay . . . and for that reason the right to a speedy trial is necessarily relative.\u201d Id. at 94, 273 S.E.2d at 724.\nAs in Tann, there is no indication in the present case that the State either negligently or puiposefully underutilized court resources. Accordingly we conclude the delay was caused by neutral factors. Defendant failed to carry his burden to show that delay was caused by the State\u2019s neglect or willfulness. This factor weighs against Defendant\u2019s speedy trial claim.\nC. Assertion of the Right to a Speedy Trial\nDefendant asserted his right to a speedy trial in November 2011. \u201cDefendant\u2019s failure to assert his right to a speedy trial, or his failure to assert his right sooner in the process, does not foreclose his speedy trial claim, but does weigh against his contention].]\u201d State v. Grooms, 353 N.C. 50, 63, 540 S.E.2d 713, 722 (2000). In Grooms, the defendant\u2019s assertion came three years after indictment. Id. This Court held that his delay in asserting the speedy trial right weighed against his claim. Id. In the present case, Defendant\u2019s assertion came nearly a year after the indictments, which are dated 18 January 2011. Given the relative speed with which he asserted the right, this factor tends to weigh in favor of Defendant\u2019s claim.\nD. Prejudice\nThe \u201cdefendant must show actual, substantial prejudice.\u201d State v. Spivey, 357 N.C. 114, 122, 579 S.E.2d 251, 257 (2003). \u201cThe 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.\u201d State v. Lee, _N.C. App. _,_, 720 S.E.2d 884, 893, disc. review improvidently allowed, 366 N.C. 329, 734 S.E.2d 371 (2012) (quoting State v. Webster, 337 N.C. 674, 680-81, 447 S.E.2d 349, 352 (1994)).\nIn the present case, Defendant argues he suffered \u201coppressive\u201d pre-trial incarceration in federal prison because he was \u201clabeled a sex offender by the United States Bureau of Prisons,\u201d causing him anxiety and concern. However, as Defendant acknowledges, he was a federal inmate before the trial at issue in this case.\nDefendant next argues his appointed attorney \u201cleft the case,\u201d and Defendant \u201chad an attorney who was forced to play catch-up.\u201d However, Defendant does not indicate how his second attorney was deficient and how that deficiency prejudiced him. Similarly, in Webster, the defendant \u201cappears to concede that there has been no actual impairment of her ability to defend caused by the delay in trial.\u201d Webster, 337 N.C. at 681, 447 S.E.2d at 352.\nDefendant also contends there were \u201cpotential defense witnesses who were originally ready and willing to testify\u201d who \u201cbecame reticent.\u201d In Lee, the defendant argued his defense was impaired because an eyewitness to the incident became unavailable. Lee,_N.C. App. at_., 720 S.E.2d at 893. The defendant did not state what evidence he might have obtained. Id. This Court held the defendant failed to show \u201cany actual or substantial prejudice resulting from the delay.\u201d Lee,_N.C. App. at_, 720 S.E.2d at 893.\nIn the present case, Defendant does not explain how the delay caused reticence or what evidence Defendant would have elicited had the witnesses testified. Finally, Defendant notes that \u201cthe victim\u2019s story kept changing between the accusation, indictment and trial.\u201d Defendant does not explain how the delay caused the victim\u2019s story to change or how a changing story impaired Defendant\u2019s defense. Because Defendant has not shown actual, substantial prejudice, this factor weighs against his claim.\nE. Balancing of the Barker Factors\nOur Courts have described a one-year trial delay as \u201cpresumptively prejudicial.\u201d Webster, 337 N.C. at 678, 447 S.E.2d at 351 (quoting Doggett v. United States, 505 U.S. 647, 652, 120 L. Ed. 2d 520, 528 (1992)). However, where the other factors weigh against a defendant\u2019s claim, our Courts have found no violation of the right to a speedy trial in a delay of three years and seven months. McBride, 187 N.C. App. at 498-99, 653 S.E.2d at 220. The four Barker factors must be balanced against one another. \u201cNo single factor is regarded as either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial.\u201d Id. at 498, 653 S.E.2d at 220.\nIn the present case, balancing the Barker factors reveals Defendant\u2019s right to a speedy trial was not violated. Although the length of delay was greater than one year, Defendant\u2019s failure to show neglect or willfulness of the State and failure to argue how his defense was prejudiced weigh heavily against his claim. We conclude Defendant\u2019s right to a speedy trial was not violated.\nII. Allowing the State to Impeach Its Own Witness\nDefendant next argues the trial court erred \u201cby allowing the State to impeach the credibility of its own witness[,]\u201d Mr. Stevens, because the trial court allowed the State to \u201cmask impermissible hearsay as impeachment evidence.\u201d We disagree.\nA. Standard of Review\n\u201cRulings by the trial court concerning whether a party may attack the credibility of its own witness are reviewed for an abuse of discretion.\u201d State v. Banks, 210 N.C. App. 30, 37, 706 S.E.2d 807, 814 (2011). \u201cAbuse of discretion occurs where the court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u201d Id. at 38, 706 S.E.2d at 814.\nB. Analysis\n\u201cThe credibility of a witness may be attacked by any party, including the party calling him.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 607 (2013). \u201c[W]hile North Carolina Rule of Evidence 607 allows a party to impeach its own witness on a material matter with a prior inconsistent statement, impeachment is impermissible where it is used as a mere subterfuge to get evidence before the jury which is otherwise inadmissible.\u201d State v. Riccard, 142 N.C. App. 298, 304, 542 S.E.2d 320, 324 (2001) (citing State v. Hunt, 324 N.C. 343, 349, 378 S.E.2d 754, 757 (1989)).\n\u201cAlthough unsworn prior statements are not hearsay when not offered for their truth, the difficulty with which a jury distinguishes between impeachment and substantive evidence and the danger of confusion that results has been widely recognized.\u201d Hunt, 324 N.C. at 349, 378 S.E.2d at 757.\nCircumstances indicating good faith and the absence of subterfuge . . . have included the facts that the witness\u2019s testimony was extensive and vital to the government\u2019s case ...; that the party calling the witness was genuinely surprised by his reversal. . . ; or that the trial court followed the introduction of the statement with an effective limiting instruction....\nRiccard, 142 N.C. App. at 304, 542 S.E.2d at 324 (alterations in original). Our Supreme Court in Hunt analyzed the State\u2019s introduction of impeachment evidence to determine if the witness\u2019s testimony either \u201cwas critical to the state\u2019s case or that it was introduced altogether in good faith and followed by effective limiting instructions.\u201d Hunt, 324 N.C. at 351, 378 S.E.2d at 758.\nIn the case before us, the State asked Mr. Stevens on direct examination about his interview with detectives. Mr. Stevens testified that he remembered the interview, but that looking at the video recording of the interview would not refresh his recollection of what he told the detectives. The State asked the trial court for permission to treat Mr. Stevens as a hostile witness and to play a video recording of the interview. The State had a video recording that had been redacted to remove information regarding Defendant \u201cbeing in prison, the amount of time he spent inprisonf,]\u201d and various rumors.\nDefendant objected to the introduction of the recording, citing Hunt, supra. The prosecutor contended that he met with Mr. Stevens before trial and asked him if he remembered speaking with detectives in 2010 and that Mr. Stevens responded affirmatively. The prosecutor also said that he read portions of the interview to Mr. Stevens and that Mr. Stevens had no questions. The prosecutor then stated:\n[Mr. Stevens] didn\u2019t express to me that he was going to refuse to testify. He didn\u2019t express any interest to me that he was not going to cooperate. There was no indication of anything - what he said on the stand today, that he wanted to take the Fifth, that he didn\u2019t want to testify, that he didn\u2019t want to answer questions, that he didn\u2019t remember talking to the cops, he didn\u2019t remember the specific questions, or that he was so intoxicated.... None of that came up in the short conversation that I had with him.\nWe need not decide whether the record shows the State was genuinely surprised by Mr. Stevens\u2019 reversal because the testimony was critical to the State\u2019s case. Mr. Stevens testified that Defendant is his brother; that he met Ms. Goins when he drove Defendant and dropped him off at Ms. Goins\u2019 apartment; that he went into her apartment, observed her there alone, and stayed for about five minutes before returning home; that he left Defendant and Ms. Goins alone at her apartment; and that he returned \u201c[a]bout two or three hours\u201d later to pick up Defendant because he got a phone call from Ms. Goins. Mr. Stevens\u2019 testimony was critical to the State\u2019s case because Mr. Stevens had the best opportunity to observe Defendant\u2019s demeanor and hear his statements just before and just after the alleged offenses.\nBy contrast, in Hunt, the witness\u2019s testimony \u201cconsisted entirely of responding to challenges to her credibility and bias[,]\u201d except for \u201cbrief testimony about the color of her bicycle, which another of the state\u2019s witnesses thought he had seen [the] defendant riding[.]\u201d Hunt, 324 N.C. at 351, 378 S.E.2d at 758. In the present case, the record indicates impeachment was permissible because Mr. Stevens\u2019 testimony was vital to the State\u2019s case.\nFurthermore, the trial court both preceded and followed the introduction of the recording with a limiting instruction. As discussed in Hunt, the use of an effective limiting instruction weighs against the claim that the State\u2019s witness was impermissibly impeached. Hunt, 324 N.C. at 349, 378 S.E.2d at 758. Because the record indicates that Mr. Stevens\u2019 testimony was vital to the State\u2019s case and the trial court gave an effective limiting instruction, the trial court did not err in allowing the State to impeach its own witness.\nTTT- Evidence of Defendant\u2019s Recent Incarceration\nDefendant next argues the trial court erred in admitting evidence that Defendant \u201chad very recently been incarcerated!)]\u201d Defendant contends that the admission of evidence of Defendant\u2019s recent incarceration violated N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2013).\nAlthough Defendant alleges that the \u201ctranscript is replete with references to [Defendant\u2019s] recent incarceration,\u201d the only reference Defendant pinpoints in his brief is page 447 of the trial transcript. The testimony relevant to this issue is as follows:\n[The State]. [W]hy did you - why did you start writing\n[Defendant] letters at the age of 18?\n[Ms. Goins]. My brother, the one that\u2019s incarcerated, asked meto.\n[The State]. And if you know, where was [Defendant when you wrote him these letters?\n[Ms. Goins]. Incarcerated.\n[Defense Counsel]. Your Honor, I\u2019m sorry. At this point I would renew my prior objections that we argued based on due process, under Article 1, Section 23 of the North Carolina Constitution.\nThe Court: Overruled.\n[The State]. Where was [Defendant? Where did you send these letters to?\n[Ms. Goins]. To the incarceration where he was.\nQ. Was he in jail, prison?\nA. In prison.\n[Defense Counsel], I\u2019m sorry, Your Honor, I would note that, that is a standing objection to this line of questioning.\nThe Court: Okay, standing objection. It\u2019s overruled.\nThe subsequent examination reveals no details identifying or describing the conviction or convictions that led to Defendant\u2019s incarceration.\nRule 404(b) governs the admission of evidence \u201cof other crimes, wrongs, or acts[.]\u201d N.C.G.S. \u00a7 8C-1, Rule 404(b). Defendant cites State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954), for support of his argument. In McClain, our Supreme Court noted that \u201c[p]roof that a defendant has been guilty of another crime equally heinous prompts to a ready acceptance of and belief in the prosecution\u2019s theory that he is guilty of the crime charged.\u201d Id. at 174, 81 S.E.2d at 366.\nHowever, in the present case, the State introduced no evidence of other crimes, wrongs, or acts. Rather, the State elicited testimony from Ms. Goins regarding why she corresponded via postal mail with Defendant. Defendant offers no case holding that discussing merely the fact of recent incarceration amounts to evidence of other crimes, wrongs, or acts. Furthermore, our research reveals no case holding that recent incarceration, in and of itself, amounts to evidence of other crimes, wrongs, or acts. Defendant therefore has not shown that the trial court erred on the basis of violation of N.C.G.S. \u00a7 8C-1, Rule 404(b).\nIV. State\u2019s Closing Remarks\nDefendant next argues the trial court erred in allowing the State to \u201ccomment on [Defendant\u2019s] invocation of his right to remain silent[.]\u201d We disagree.\n\u201cA criminal defendant cannot be compelled to testify, and any reference by the State regarding his failure to do so violates an accused\u2019s constitutional right to remain silent.\u201d State v. Reid, 334 N.C. 551, 554, 434 S.E.2d 193, 196 (1993). However, in the present case, the State did not refer to Defendant\u2019s failure to testify. The relevant part of the State\u2019s closing is as follows:\n[The State], And again, [Defendant doesn\u2019t have to testify. He has the right to remain silent, you can\u2019t hold that against him, and the judge is going to instruct you on that, and you know that already. But again, land of like earlier this week when I got up and told you, if their defense was these two judgments don\u2019t belong to [Defendant, they could have presented -\n[Defense Counsel]. Objection, your Honor.\nThe Court: Overruled.\n[The State]. You have heard no evidence contrary to the fact that this is [Defendant, and both of these judgments are [Defendant.\n\u201cThe prosecution may comment on a defendant\u2019s failure to produce witnesses or exculpatory evidence to contradict or refute evidence presented by the State.\u201d Id. at 656, 434 S.E.2d at 196. As shown above, the State actually noted Defendant\u2019s right to remain silent, rather than highlighting Defendant\u2019s failure to testify. Furthermore, the State commented on the failure to present evidence that the two prior judgments relevant to Defendant\u2019s violent habitual felon status did not belong to Defendant, which is permissible under Reid. The trial court did not err in allowing the State\u2019s comment.\nNo error.\nJudges HUNTER, Robert C. and ELMORE concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General K.D. Sturgis, for the State.", "Ryan McKaig for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. HAROLD GOINS, JR.\nNo. COA13-998\nFiled 18 February 2014\n1. Constitutional Law \u2014 speedy trial \u2014 balancing factors\u2014 no violation\nDefendant\u2019s right to a speedy trial was not violated, balancing all of the factors in Barker v. Wingo, 407 U.S. 514. Although the length of delay was greater than one year, defendant\u2019s failure to show neglect or willfulness by the State and his failure to argue how his defense was prejudiced weighed heavily against his claim.\n2. Witnesses \u2014 impeachment of own witness \u2014 testimony vital\u2014 limiting instruction\nThe trial court did not abuse its discretion by allowing the State to impeach the credibility of its own witness with a recording where the witness was unable to remember an interview with a detective. The record indicates impeachment was permissible because the witness\u2019s testimony was vital to the State\u2019s case and the trial court both preceded and followed the recording with a limiting instruction.\n3. Evidence \u2014 prior crimes or bad acts \u2014 defendant\u2019s recent incarceration \u2014 admissible\nThe trial court did not err by admitting evidence that defendant had very recently been incarcerated where the State elicited testimony from a witness regarding why she corresponded via postal mail with defendant. Defendant offers no case holding that discussing the mere fact of recent incarceration amounts to evidence of other crimes, wrongs, or acts.\n4. Criminal Law \u2014 prosecutor\u2019s closing argument \u2014 defendant\u2019s failure to produce evidence\nThere was no error in a prosecution for rape and other offenses where defendant argued that the State was allowed to comment on his invocation of his right to remain silent. The prosecution may comment on a defendant\u2019s failure to produce witnesses or exculpatory evidence to contradict or refute evidence presented by the State. Moreover, in this case the State actually noted defendant\u2019s right to remain silent rather than highlighting his failure to testify.\nAppeal by Defendant from judgments entered 11 April 2013 by Judge Arnold O. Jones, II in Superior Court, New Hanover County. Heard in the Court of Appeals 21 January 2014.\nAttorney General Roy Cooper, by Special Deputy Attorney General K.D. Sturgis, for the State.\nRyan McKaig for Defendant." }, "file_name": "0451-01", "first_page_order": 461, "last_page_order": 470 }