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    "judges": [
      "Judges Webb and Martin (Harry C.) concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIAM EDWARD MOORE"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\n[1 ] Defendant first contends the trial court erred in failing to dismiss the charges against him with prejudice for the State\u2019s failure to bring him to trial within the time limits sets forth in the Speedy Trial Act, G.S. 15A-701 et seq. Defendant was indicted on 27 August 1979. A new indictment for the same offenses was issued 7 January 1980. He filed a \u201cmotion for speedy trial dismissal\u201d on 8 February 1980. A hearing was held on the motion before Judge James D. Llewellyn on 11 February 1980, at which Judge Llewellyn allowed the motion without prejudice. A new warrant for the same offense was then issued and executed by the arrest of defendant on 11 February 1980, the same date on which his motion to dismiss for failure to comply with the Speedy Trial Act was allowed without prejudice. A new indictment for the offense was issued on 10 March 1980. Defendant\u2019s trial commenced 10 April 1980, and judgment was entered 11 April 1980.\nWe do not reach the question of whether Judge Llewellyn erred in failing to grant defendant\u2019s motion with prejudice, for we find that defendant was not entitled to have the motion granted, with or without prejudice. The initial indictment against defendant, issued on 27 August 1979, charged that the alleged offenses occurred on or about 3 November 1978. A new indictment was issued on 7 January 1980 which charged that these offenses occurred \u201con or about the 29th or 30th day of November, 1978.\u201d All of the evidence was to the effect that the offenses commenced on the night of 29 November and perhaps continued into the early morning of 30 November.\nG.S. 15A-646, in pertinent part, provides:\nIf at any time before entry of a plea of guilty to an indictment or information, or commencement of a trial thereof, another indictment or information is filed in the same court charging the defendant with an offense charged or attempted to be charged in the first instrument, the first one is, with respect to the offense, superseded by the second and, upon the defendant\u2019s arraignment upon the second indictment or information, the count of the first instrument charging the offense must be dismissed by the superior court judge.\nDefendant here had pled not guilty at his arraignment on the 27 August 1979 indictment. He had not been brought to trial for the offenses charged. Thus, the new indictment on 7 January 1980 was issued \u201cbefore entry of a plea of guilty ... or commencement of a trial.\u201d By virtue of G.S. 15A-646, then, the original indictment of 27 August 1979 was superseded by the indictment of 7 January 1980 which charged the defendant with the same offenses \u201ccharged or attempted to be charged in the first instrument.\u201d Thus, both when defendant\u2019s motion was heard on 11 February 1980 and when his trial commenced on 10 April 1980, the 120 day limit imposed for commencement of trial by G.S. 15A-701(al)(l) had not expired.\nThe State had valid reason to obtain a new indictment to allege correctly the date(s) on which the offenses charged occurred. The date(s) could have been critical to the State\u2019s capacity to prove its case if, for example, defendant had offered evidence tending to establish an alibi defense. The obtaining of a new indictment thus appears to have been both appropriate and in good faith. We recognize that the opportunity afforded the State by G.S. 15A-646 to obtain a new indictment which supersedes one previously issued could be exercised for the purpose of defeating the time limitations for commencement of trial imposed by the Speedy Trial Act. Concern regarding that possibility is, however, appropriately addressed to the General Assembly.\nOur conclusion that defendant\u2019s motion should not have been granted in any event renders unnecessary consideration of his contention that the motion should have been granted with, rather than without, prejudice. We nevertheless offer the following observations for the guidance of bench and bar. G.S. 15A-703 provides that if a defendant is not brought to trial within the time limits imposed by G.S. 15A-701, \u201cthe charge shall be dismissed on motion of the defendant.\u201d It further provides:\nIn determining whether to order the charge\u2019s dismissal with or without prejudice, the Court shall consider, among other matters, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; the impact of a re-prosecution on the administration of this Article and on the administration of justice.\nG.S. 15A-703 (1978). The statute thus leaves in the discretion of the trial court the determination of whether dismissal should be with or without prejudice. It mandates, however, that the court consider each of the factors set forth in making that determination. Thus, failure to establish in the record that the court has considered each of these factors, and to establish its conclusions with regard to each, may leave the reviewing court no choice but to find an abuse of discretion. In State v. Rogers, 49 N.C. App. 337, 341, 271 S.E. 2d 535, 538 (1980), this Court suggested \u201cthat trial courts hereafter in determining exclusionary periods under the Speedy Trial Act detail for the record findings of fact and conclusions of law .... \u201d We also suggest that trial courts detail for the record findings of fact and conclusions therefrom demonstrating compliance with the mandate of G.S. 15A-703 that the factors set forth therein be considered in determining whether motions to dismiss for non-compliance with the Speedy Trial Act should be granted with or without prejudice.\nDefendant also contends the court erred in failing to dismiss the charges for failure to grant him a speedy trial in violation of his constitutional rights. He acknowledges in his brief that the \u201ccriteria for determining whether the right to a speedy trial has been denied and the approach to be followed were set out by the United States Supreme Court\u201d in Barker v. Wingo, 407 U.S. 514, 33 L.Ed. 2d 101, 92 S.Ct. 2182 (1972). The Court there identified four factors to be assessed: (1) length of delay; (2) the reason for the delay; (3) the defendant\u2019s assertion of his right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530, 33 L.Ed 2d at 117, 92 S.Ct. at 2192. It also stated:\nWe regard none of the four factors ... 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.\nBarker, 407 U.S. at 533, 33 L.Ed. 2d at 118, 92 S.Ct. at 2193.\nHere, as to the length of delay, defendant\u2019s trial commenced 30 days from the date of the 10 March 1980 indictment. Even if the time is calculated from the original 27 August 1979 indictment, however, only 226 days elapsed from the date of indictment to the date trial commenced. In State v. Hartman, 49 N.C. App. 83, 86, 270 S.E. 2d 609, 612 (1980) this Court found that \u201c319 days is not a sufficient time, standing alone, to constitute unreasonable or prejudicial delay.\u201d A fortiori, a delay of 226 days, standing alone, does not constitute unreasonable or prejudicial delay. See also State v. Setzer, 21 N.C. App. 511, 204 S.E. 2d 921 (1974) (13 months held not unreasonable delay).\nAs to the reason for the delay, \u201c[t]he burden is on an accused who asserts the denial of his right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution.\u201d State v. Johnson, 275 N.C. 264, 269, 167 S.E. 2d 274, 278 (1969). Defendant here neither alleged nor offered evidence tending to prove that significant periods of delay were caused by \u201cneglect or willfulness\u201d on the part of the State. A portion of the delay was due to the granting of a motion for continuance filed by defendant. On one occasion defendant failed to appear due to confusion as to whether his case was on the trial calendar. We find that defendant has failed to sustain the burden of establishing that the delay in commencement of his trial was due to \u201cneglect or willfulness\u201d on the part of the State.\nAs to defendant\u2019s assertion of his right, his motion to dismiss for violation of his constitutional right to a speedy trial was filed 9 April 1980, one day before his trial commenced. His 8 February 1980 motion to dismiss related solely to the State\u2019s failure to comply with the North Carolina Speedy Trial Act. It did not assert his constitutional right to a speedy trial. The United States Supreme Court noted in Barker that \u201cfailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.\u201d Barker, 407 U.S. at 532, 33 L.Ed. 2d at 118, 92 S.Ct. at 2193. Defendant\u2019s failure to assert the constitutional right here until the day before his trial commenced thus makes it difficult for him to prove that he was denied a speedy trial.\nAs to prejudice to the defendant, while his motion asserts prejudice in the preparation of his defense in that he \u201ccannot locate witnesses\u201d and \u201ccannot remember his exact whereabouts at the time of the crime,\u201d defendant offered no evidence in support of the assertion. His attorney argued to the court the same assertions set forth in the motion. There was no evidence whatsoever, though, as to who the unlocateable witnesses were or what testimony they could offer on defendant\u2019s behalf. There was no evidence tending to establish what matters defendant could have produced in his defense but for the delay of which he complains. Defendant has thus failed to demonstrate prejudice resulting from the delay. He has failed to demonstrate that his \u201cdefense will be impaired.\u201d Barker, 407 U.S. at 532, 33 L.Ed. 2d at 118, 92 S.Ct. at 2193.\nIn summary, we find no basis for concluding that defendant was denied his constitutional right to a speedy trial.\nDefendant finally contends the court committed prejudicial error \u201cin allowing the introduction of evidence regarding other crimes for which the defendant was not charged and for which he was not on trial.\u201d It has long been the general rule in this jurisdiction that \u201cin a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense.\u201d State v. McClain, 240 N.C. 171, 173, 81 S.E. 2d 364, 365 (1954). Justice Ervin set forth in McClain the following reasons for the rule:\n(1) \u201cLogically, the commission of an independent offense is not proof in itself of the commission of another crime.\u201d [Citations ommitted.] (2) Evidence of the commission by the accused of crimes unconnected with that for which he is being tried, when offered by the State in chief, violates the rule which forbids the State initially to attack the character of the accused, and also the rule that bad character may not be proved by particular acts, and is, therefore, inadmissible for that purpose. [Citations omitted.] (3) \u201cProof 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. Its effect is to predispose the mind of the juror to believe the prisoner guilty, and thus effectually to strip him of the presumption of innocence.\u201d [Citations omitted.] (4) \u201cFurthermore, it is clear that evidence of other crimes compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the jury from the charge immediately before it. The rule may be said to be an application of the principle that the evidence must be confined to the point in issue in the case on trial.\u201d\nMcClain, 240 N.C. at 173-174, 81 S.E. 2d at 365-366. See also, 1 Stansbury\u2019s North Carolina Evidence \u00a7 111 at 339-340 (Brandis revision 1973), and cases cited.\nThe incriminating evidence against the defendant here consisted entirely of the testimony of three \u201ccanary bird\u201d witnesses who admittedly had participated with defendant in the offenses alleged. Each of these witnesses testified to his own extensive criminal conduct. The witness Ronald Gene Britt testified:\nI basically work as a criminal. I engage in safecracking. It would be hard to say how many places I have broken into trying to find a safe. I don\u2019t know the approximate number but it would be quite a few.\n... I have been convicted of other crimes\n... I am one of the most professional safecrackers in Eastern North Carolina. I don\u2019t have any idea about how many safes that I have cracked open. In all my life it would be a bunch, a whole lot.\nRobert Britt testified:\nI have been convicted of two breaking and entering charges in Kinston, Lenoir County. I have been convicted of receiving stolen goods and breaking and entering and larceny in Duplin County and Little Washington. ... I have several more charges that are pending here in Pitt County and Craven County now. ... I would suppose that I have committed in this spree of crimes, before I was caught, a hundred or so, give or take a few. ... I know a good part of where all the crimes are or places that I have broken into. I don\u2019t know all of them. This is because there are too many to remember.\nA.B. Aldridge III testified that he and the other two witnesses \u201cused to ride all day looking places that we thought the safe was in to go in and get \u2014 peel the safe off for what we could get.\u201d\nEach of these witnesses was allowed to testify, over objection, to defendant\u2019s involvement with crimes other than the one for which he was on trial. The witnesses Britt both testified that defendant was involved with them in other breaking and enterings in Rocky Mount and Kinston. The witness Aldridge also testified to defendant\u2019s involvement in a breaking and entering in Rocky Mount. The witness Robert Britt testified that defendant \u201cmay have been or may not have been\u201d involved in still other breaking and entering offenses.\nThis testimony clearly violated the rule prohibiting introduction of evidence tending to show that a defendant has committed other distinct, independent or separate offenses. It did not fall within any of the \u201cwell recognized exceptions\u201d to the rule. See McClain, 240 N.C. at 174-176, 81 S.E. 2d at 366. Further, defendant\u2019s credibility with the jury was the foundation of his defense. The outcome of his trial hinged entirely on whether the jury believed his testimony denying commission of the offenses or whether it believed the testimony to the contrary offered by three witnesses who admittedly possessed extensive criminal records and admittedly testified against defendant for the purpose of minimizing their own periods of incarceration. The effect of the improperly admitted evidence was to diminish defendant\u2019s credibility with the jury. In view of the extensive criminal records and the admitted motivation of the witnesses for the State, the diminution of defendant\u2019s credibility with the jury was inevitably prejudicial. Under these circumstances we find that defendant has sustained the burden of showing prejudice imposed on him by G.S. 15A-1443.\nBecause of the admission over defendant\u2019s objection of improper evidence relating to his commission of other distinct, independent, or separate offenses, defendant is entitled to a\nNew trial.\nJudges Webb and Martin (Harry C.) concur.\nG.S. 15A-701(al)(l) provides as follows:\nNotwithstanding the provisions of G.S. 15A-701(a) the trial of a defendant charged with a criminal offense who is arrested, served with criminal process, waives an indictment or is indicted, on or after October 1,1978, and before October 1,1980, shall begin within the time limits specified below:\n(1) Within 120 days from the date the defendant is arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last ....\nBoth indictments against defendant here came within the dates set forth in this provision.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney General Lisa Shepherd for the State.",
      "Donald C. Hicks III, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM EDWARD MOORE\nNo. 803SC876\n(Filed 3 March 1981)\n1. Criminal Law \u00a7 91- speedy trial not denied\nDefendant was not entitled to have his motion for a speedy trial granted where defendant was indicted on 27 August 1979; a new indictment for the same offenses was issued 7 January 1980; defendant filed a \u201cmotion for speedy trial dismissal\u201d on 8 February 1980; defendant\u2019s trial commenced 10 April 1980; defendant had pled not guilty at his arraignment on the 27 August 1979 indictment and had not been brought to trial for the offenses charged so that the new indictment on 7 January 1980 was issued before entry of a plea of guilty or commencement of a trial; the original indictment was therefore superseded by the subsequent indictment charging defendant with the same offenses; and thus when defendant\u2019s dismissal motion was heard on 11 February 1980 and when his trial commenced on 10 April 1980, the 120 day limit imposed for commencement of trial by G.S. 15A-701(al)(l) had not expired.\n2. Constitutional Law \u00a7 50- speedy trial - no denial of constitutional right\nThe trial court did not err in failing to dismiss charges against defendant for failure to grant him a speedy trial in violation of his constitutional rights, since defendant\u2019s trial commenced 30 days from the date of his indictment; even if the time was calculated from the original indictment against defendant, only 226 days elapsed from the date of indictment to the date trial commenced; defendant neither alleged nor offered evidence tending to prove that significant periods of delay were caused by neglect or willfulness on the part of the State; defendant failed to assert his constitutional right to a speedy trial until the day before his trial commenced; and defendant failed to demonstrate prejudice resulting from the delay.\n3. Criminal Law \u00a7 34- other offenses - evidence improperly admitted\nThe trial court erred in admitting over defendant\u2019s objection evidence relating to his commission of other distinct, independent, or separate offenses, since the incriminating evidence against defendant consisted entirely of the testimony of three witnesses who admittedly participated with defendant in the offenses alleged; each witness testified to his extensive criminal record and admittedly testified against defendant for the purpose of minimizing his own period of incarceration; and the effect of the improperly admitted evidence was to diminish defendant\u2019s credibility with the jury.\nAppeal by defendant from Rouse, Judge. Judgment entered 11 April 1980 in Superior Court, Pitt County. Heard in the Court of Appeals 4 February 1981.\nDefendant was convicted of felonious breaking or entering and felonious larceny. He appeals from a judgment of imprisonment.\nAttorney General Edmisten, by Associate Attorney General Lisa Shepherd for the State.\nDonald C. Hicks III, for defendant appellant."
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