{ "id": 8521695, "name": "STATE OF NORTH CAROLINA v. ALTON GORDON SMITH", "name_abbreviation": "State v. Smith", "decision_date": "1984-09-04", "docket_number": "No. 8316SC1175", "first_page": "293", "last_page": "298", "citations": [ { "type": "official", "cite": "70 N.C. App. 293" } ], "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": "273 S.E. 2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563873 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0089-01" ] }, { "cite": "275 S.E. 2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "51 N.C. App. 26", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2643307 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/51/0026-01" ] }, { "cite": "297 S.E. 2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "quoting from State v. Moore, 51 N.C. App. 26, 275 S.E. 2d 257 (1981)" } ], "opinion_index": 0 }, { "cite": "59 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526770 ], "year": 1982, "pin_cites": [ { "parenthetical": "quoting from State v. Moore, 51 N.C. App. 26, 275 S.E. 2d 257 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/59/0490-01" ] }, { "cite": "157 S.E. 2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "parenthetical": "where offenses occurred with two hour time span" } ], "opinion_index": 0 }, { "cite": "272 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570351 ], "year": 1967, "pin_cites": [ { "parenthetical": "where offenses occurred with two hour time span" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0042-01" ] }, { "cite": "241 S.E. 2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "where the offenses occurred within a three hour time span" } ], "opinion_index": 0 }, { "cite": "294 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573313 ], "year": 1978, "pin_cites": [ { "parenthetical": "where the offenses occurred within a three hour time span" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0418-01" ] }, { "cite": "270 S.E. 2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "where the joined offenses occurred during the same afternoon" } ], "opinion_index": 0 }, { "cite": "301 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564563 ], "year": 1980, "pin_cites": [ { "parenthetical": "where the joined offenses occurred during the same afternoon" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0176-01" ] }, { "cite": "294 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572971, 8572907, 8572945, 8572892, 8572925 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0563-05", "/nc/306/0563-02", "/nc/306/0563-04", "/nc/306/0563-01", "/nc/306/0563-03" ] }, { "cite": "291 S.E. 2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "57 N.C. App. 444", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524795 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/57/0444-01" ] }, { "cite": "276 S.E. 2d 699", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567676 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0517-01" ] } ], "analysis": { "cardinality": 569, "char_count": 11709, "ocr_confidence": 0.823, "pagerank": { "raw": 8.02114797974916e-08, "percentile": 0.4649645597098518 }, "sha256": "b283d70891395adb86f516dbca6ddd141d6c229e2dfc0dff34e89ecec330dad8", "simhash": "1:a1fa4070f42e3f22", "word_count": 1920 }, "last_updated": "2023-07-14T18:14:59.534868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge VAUGHN and Judge Hedrick concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ALTON GORDON SMITH" ], "opinions": [ { "text": "WELLS, Judge.\nDefendant first contends that the trial court erred by denying his motion to consolidate for trial the charges filed against him in Robeson County with the Scotland County charges. N.C. Gen. Stat. \u00a7 15A-926 (1975) in pertinent part provides:\n(a) Joinder of Offenses. \u2014 Two or more offenses may be joined in one pleading or for trial when the offenses . . . are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan. . . .\n(c) Failure to Join Related Offenses.\n(1) When a defendant has been charged with two or more offenses joinable under subsection (a) his timely motion to join them for trial must be granted unless the court determines ... for some other reason, the ends of justice would be defeated if the motion were granted. . . .\nG.S. \u00a7 15A-926 requires a \u201ctransactional occurrence\u201d between offenses sought to be joined for trial. State v. Avery, 302 N.C. 517, 276 S.E. 2d 699 (1981). The statute does not require joinder based merely upon the fact that offenses are of the same class or crime or have common characteristics. See State v. Wilson, 57 N.C. App. 444, 291 S.E. 2d 830, disc. rev. denied, 306 N.C. 563, 294 S.E. 2d 375 (1982). Our research has revealed no cases which have required joinder based upon a common modus operandi. In cases where joinder has been found to be proper the common denominator has been the short time interval during which the crimes were committed. See State v. Clark, 301 N.C. 176, 270 S.E. 2d 425 (1980) (where the joined offenses occurred during the same afternoon); State v. Greene, 294 N.C. 418, 241 S.E. 2d 662 (1978) (where the offenses occurred within a three hour time span); and State v. Old, 272 N.C. 42, 157 S.E. 2d 651 (1967) (where offenses occurred with two hour time span).\nThe defendant relies upon a statement by the District Attorney that the break-ins were conducted according to a \u201ccommon scheme or common design\u201d to support his right to joinder. By this statement the prosecutor was apparently referring to the fact that all the crimes had common characteristics or a similar modus operandi. The crucial element of time is missing from the equation. The crimes were committed over the period of a month\u2019s time and, therefore, lack the transactional connection to require that they be joined for trial under the theory that they were all parts of a single scheme or plan. The trial court properly denied defendant\u2019s motion to join the Robeson County and Scotland County cases for trial. The assignments of error are overruled. Next defendant argues that he was entitled to have the charges against him dismissed with prejudice because of a denial of his statutory and constitutional rights to a speedy trial. Defendant was indicted for these offenses on 19 April 1982. The indictments were dismissed without prejudice on 9 February 1983 because of the state\u2019s violation of the speedy trial statutes. On 11 April 1983 defendant was again indicted on these offenses. Defendant now argues the court erred by failing to dismiss the original cases with prejudice.\nWhether a case should be dismissed with or without prejudice because of a violation of the speedy trial statutes is governed by N.C. Gen. Stat. \u00a7 15A-703 (1983). The factors to be considered are: (1) the seriousness of the offenses; (2) the facts and circumstances that led to dismissal; (3) the impact of re-prosecution on the administration of the Article; and (4) the impact of re-prosecution on the administration of justice. This court has interpreted G.S. \u00a7 15A-703 as follows:\nThe Statute . . . 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 .... We . . . suggest that trial courts detail for the record findings of fact and conclusions therefrom demonstrating compliance with the mandate of [the Statute] .... [Emphasis in original.]\nState v. Washington, 59 N.C. App. 490, 297 S.E. 2d 170 (1982) (quoting from State v. Moore, 51 N.C. App. 26, 275 S.E. 2d 257 (1981)).\nThe trial court\u2019s order does not contain findings of facts and conclusions from which we can determine that the statutory mandate has been followed. The mere statement that the court has considered \u201cthe matters alleged in the bills of indictment and the provisions of the General Statutes \u00a7 15A-703, Paragraph (a)\u201d falls far short of the requirement established in State v. Moore, supra and re-emphasized in State v. Washington, supra. Defendant\u2019s rights in this case were further compromised by the trial court\u2019s refusal to allow defendant to make a record as to prejudice. Immediately upon the trial court\u2019s ruling of \u201cwithout prejudice,\u201d defendant moved that he be allowed to show the court how he had been prejudiced by the delays in his trial. That motion was denied. We are now left with a record bereft of findings or evidence as to prejudice to defendant\u2019s rights. Under these circumstances, we hold that the trial court\u2019s failure to make the findings consistent with the requirements of G.S. \u00a7 15A-703 requires a new trial. Prior to retrial the trial court must reconsider defendant\u2019s motion and make findings of fact and conclusions consistent with G.S. \u00a7 15A-703 and our decisions in State v. Moore, supra and State v. Washington, supra.\nNext we consider whether defendant\u2019s constitutional right to a speedy trial was violated. In State v. Tann, 302 N.C. 89, 273 S.E. 2d 720 (1981), our supreme court set forth four factors to be considered when determining whether a defendant\u2019s constitutional right to a speedy trial had been violated. The factors were (1) the length of the delay; (2) the reason for the delay; (3) any waiver of the right by the defendant; and (4) any prejudice to the defendant. While defendant\u2019s trial was delayed for a longer period of time than is desirable, there appears to be several valid reasons for the delay including the unavailability of the defendant while he was in the custody of the federal marshals, the unavailability of a key state\u2019s witness while he was recuperating from an injury, and the pendency of motions filed by the defendant. This, coupled with defendant\u2019s failure to show that any prejudice resulted from the delay, convinces us that defendant\u2019s constitutional right to a speedy trial has not been violated. Defendant\u2019s argument regarding a violation of his constitutional right to a speedy trial is overruled.\nSince we have awarded defendant a new trial, we deem it inappropriate to discuss or decide defendant\u2019s other assignments of error as they are unlikely to occur on retrial.\nNew trial.\nChief Judge VAUGHN and Judge Hedrick concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Assistant Attorney General William R. Shenton, for the State.", "Appellate Defender Adam Stein, by James R. Glover of the Appellate Defender Clinic of the University of North Carolina School of Law, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALTON GORDON SMITH\nNo. 8316SC1175\n(Filed 4 September 1984)\n1. Criminal Law \u00a7 92.3\u2014 refusal to consolidate charges \u2014no transactional connection\nThe trial court properly refused to consolidate breaking or entering and larceny charges filed against defendant in Robeson County with breaking or entering and larceny charges filed against him in Scotland County where the crimes lacked a transactional connection, there being no requirement of joinder based upon a common modus operandi.\n2. Criminal Law \u00a7 91\u2014 speedy trial violation \u2014 dismissal of charges \u201cwithout prejudice\u201d \u2014 insufficient findings\nThe court erred in dismissing indictments against defendant \u201cwithout prejudice\u201d for the State\u2019s violation of the speedy trial statutes where the court\u2019s order did not contain findings of fact relating to each of the factors set forth in 6.S. 15A-703.\n3. Constitutional Law 8 50\u2014 constitutional right to speedy trial \u2014 delay between original indictment and trial\nDefendant\u2019s constitutional right to a speedy trial was not violated by a year\u2019s delay between the original indictments and his trial where the delay was caused by the unavailability of defendant while he was in custody of federal marshals, the unavailability of a key State\u2019s witness while he was recuperating from an injury, and the pendency of motions filed by defendant, and where defendant failed to show any prejudice resulting from the delay.\nAppeal by defendant from Herring, Judge. Judgments entered 22 April 1983 in SCOTLAND County Superior Court. Heard in the Court of Appeals 22 August 1984.\nOn 19 April 1982, defendant was indicted on five counts of felonious breaking or entering and five counts of felonious larceny. Defendant was charged with two similar offenses in Robeson County. On 5 May 1982, defendant filed a motion to join the Robeson County and Scotland County cases for trial. On 28 September the motion was denied and on 30 September defendant was convicted of felonious breaking or entering and felonious larceny in Robeson County. On 2 February 1983 defendant filed a motion to dismiss the Scotland County cases for a violation of his right to a speedy trial. This motion was allowed without prejudice. On 11 April 1983, the grand jury returned a second set of indictments charging defendant with the same offenses.\nAs a result of a plea bargain, Timothy Cox, who was arrested on 30 December 1981 for these offenses, became the principal witness against defendant. Cox\u2019s testimony tended to show that in November 1981 defendant talked with him about committing some burglaries. He testified that defendant told him how to gain entry by crushing the doorknob with pliers and prying the door open. On 27 November 1981 defendant took him to the residence of Tony Davis, where he broke in and took various items of value. After the break-in defendant picked him up a short distance from the Davis residence. Later that same afternoon defendant dropped Cox off about a hundred yards from the Strickland residence. Cox broke in and took various items of jewelry and cash. Defendant picked Cox up a short distance from the house and he and Cox divided the money and buried the jewelry in defendant\u2019s backyard.\nCox also testified that defendant told him that Joyce Howell\u2019s residence contained valuable diamonds. Defendant then dropped Cox off a short distance from the Howell residence. Cox entered the residence and stole a pistol and some jewelry. This jewelry was also buried in defendant\u2019s backyard. Cox\u2019s testimony also implicated defendant in a break-in which occurred at the Elmer Kottyan residence which resulted in the theft of several items including jewelry.\nCox also connected defendant to some burglaries which occurred in Robeson County. The state offered evidence from two other witnesses. One witness testified that defendant had earlier solicited him to break into the Howell residence and had talked with him about the items taken from the house. The other witness testified that defendant had bought jewelry from her knowing the same to be stolen and had encouraged her to steal certain items from her best friend. Defendant offered no evidence.\nThe jury convicted defendant of four counts of breaking or entering and four counts of larceny. Defendant was sentenced to ten years imprisonment for the breaking or entering convictions and to a consecutive ten-year term for the larcenies. From these judgments defendant appealed.\nAttorney General Rufus L. Edmisten, by Assistant Attorney General William R. Shenton, for the State.\nAppellate Defender Adam Stein, by James R. Glover of the Appellate Defender Clinic of the University of North Carolina School of Law, for defendant." }, "file_name": "0293-01", "first_page_order": 325, "last_page_order": 330 }