{ "id": 8526405, "name": "STATE OF NORTH CAROLINA v. HAMMIE LEE WASHINGTON", "name_abbreviation": "State v. Washington", "decision_date": "1984-12-18", "docket_number": "No. 8426SC228", "first_page": "767", "last_page": "771", "citations": [ { "type": "official", "cite": "71 N.C. App. 767" } ], "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": "243 S.E. 2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "295 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561038 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "79-80" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0075-01" ] }, { "cite": "284 S.E. 2d 312", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "318-19" } ], "opinion_index": 0 }, { "cite": "304 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569335 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0511-01" ] }, { "cite": "281 S.E. 2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "382" } ], "opinion_index": 0 }, { "cite": "303 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575150 ], "year": 1981, "pin_cites": [ { "page": "686-87" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0680-01" ] }, { "cite": "313 S.E. 2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "560" } ], "opinion_index": 0 }, { "cite": "310 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2396898 ], "year": 1984, "pin_cites": [ { "page": "600-01" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0596-01" ] }, { "cite": "168 S.E. 2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "711" } ], "opinion_index": 0 }, { "cite": "5 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550916 ], "year": 1969, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc-app/5/0469-01" ] }, { "cite": "64 S.E. 2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "658" } ], "opinion_index": 0 }, { "cite": "233 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612548 ], "year": 1951, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0542-01" ] }, { "cite": "271 S.E. 2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 426", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521752 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0426-01" ] }, { "cite": "281 S.E. 2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "440-41" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 567", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522403 ], "year": 1981, "pin_cites": [ { "page": "569-71" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0567-01" ] }, { "cite": "308 S.E. 2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "445" } ], "opinion_index": 0 }, { "cite": "309 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4765014 ], "year": 1983, "pin_cites": [ { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0601-01" ] } ], "analysis": { "cardinality": 493, "char_count": 9746, "ocr_confidence": 0.817, "pagerank": { "raw": 2.091489473597207e-07, "percentile": 0.7604501266290042 }, "sha256": "46200c69026f4acb0bf58452c1a167107d3ce2fe83c2f7215008c637ee82d5b4", "simhash": "1:cb7568a162930dea", "word_count": 1647 }, "last_updated": "2023-07-14T17:51:06.115640+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Eagles concur." ], "parties": [ "STATE OF NORTH CAROLINA v. HAMMIE LEE WASHINGTON" ], "opinions": [ { "text": "WHICHARD, Judge.\nDefendant contends the court erred in denying his motion to dismiss for violation of the Speedy Trial Act, G.S. 15A-701 et seq. We find no error.\nG.S. 15A-701(al)(l) provides that the trial of a defendant charged with a criminal offense shall begin \u201c[w]ithin 120 days from the date the defendant is arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last.\u201d The event occurring \u201clast in fact\u201d triggers the running of the 120 day period within which the defendant must be brought to trial. State v. Koberlein, 309 N.C. 601, 605, 308 S.E. 2d 442, 445 (1983); see also State v. Charles, 53 N.C. App. 567, 569-71, 281 S.E. 2d 438, 440-41 (1981).\nThe relevant event which occurred last here was service upon defendant of the order for arrest on 17 February 1983. The time limitation for commencement of trial thus began to run on that date. Trial commenced on 29 August 1983, 193 days later. The State thus had \u201cthe burden of going forward with evidence\u201d meriting exclusion of at least seventy-three days from computation of the limitation period so as to bring the commencement of trial within the requisite 120 days. G.S. 15A-703; State v. Edwards, 49 N.C. App. 426, 271 S.E. 2d 533 (1980).\nUpon defendant\u2019s motions, the court granted two continuances for a total period of fifty-seven days. Defendant concedes that this period should be excluded. With this exclusion, trial commenced 136 days after service of the order for arrest, or sixteen days beyond the requisite 120 day period.\nUpon the State\u2019s motions, the court granted three continuances for a total period of fifty-five days. In each instance it found that \u201c[t]he trial of other cases prevented the trial of this case during this session.\u201d It further found that, considering the factors set forth in G.S. 15A-701(b)(7), \u201cthe ends of justice served by granting the continuance outweigh[ed] the best interests of the public and defendant in a speedy trial,\u201d and granted the continuance for that reason. It ordered the period of these continuances excluded.\nG.S. 15A-701(b)(7) provides for exclusion of\n[a]ny period of delay resulting from a continuance granted by any judge if the judge . . . finds that the ends of justice served by granting the continuance outweigh the best interests of the public and the defendant in a speedy trial and sets forth in writing in the record . . . the reasons for so finding.\nThe court must not grant the motion for continuance unless it is in writing and the court has made written findings; when the court grants a continuance pursuant to this provision, it may specify the period of time to be excluded from the period within which trial must begin. G.S. 15A-70l(b)(7).\nThe State\u2019s continuance motions were in writing. In granting each motion the court made the requisite finding that the ends of justice would be served, made a written finding as to the reason for its action, and specified that the total period of the continuance be excluded. The requirements for exclusion of the periods resulting from the continuances granted to the State thus were fully met. G.S. 15A-701(b)(7).\nDefendant argues that the record is devoid of any factual circumstances regarding the continuances granted the State, and that there is \u201cno evidence which indicates the nature or magnitude of the \u2018other cases\u2019 being tried during the session\u201d or \u201cthat any of these \u2018other cases faced a speedy trial problem.\u2019 \u201d Defendant did not except to the findings in the continuance orders, however, or to the orders themselves. Further, a silent record supports the presumption that the procedure in the trial court was regular and free of error. State v. Mullis, 233 N.C. 542, 545, 64 S.E. 2d 656, 658 (1951). Unless the contrary appears, it is presumed that judicial acts and duties have been duly and regularly performed. State v. Johnson, 5 N.C. App. 469, 471, 168 S.E. 2d 709, 711 (1969). Since the record here contains no evidence indicating the contrary, it is thus presumed that the court properly found in each instance that the trial of other cases prevented the trial of this one.\nWe hold that the court properly excluded the periods resulting from continuances granted to defendant and to the State, and that with these exclusions defendant\u2019s trial commenced within the 120 day limitation established by G.S. 15A-701(al)(l). This assignment of error is therefore overruled.\nDefendant contends the court erred in failing to instruct on common law robbery as a lesser included offense of armed robbery. He failed to object to this omission before the jury retired, however, and he thus cannot now assign it as error. N.C. R. App. P. 10(b)(2); State v. Pnce, 310 N.C. 596, 600-01, 313 S.E. 2d 556, 560 (1984). Further, the court \u201cis not required to instruct on common law robbery when the defendant is indicted for armed robbery if the uncontradicted evidence indicates that the robbery was perpetrated by the use or threatened use of what appeared to be a dangerous weapon.\u201d State v. Porter, 303 N.C. 680, 686-87, 281 S.E. 2d 377, 382 (1981). The uncontradicted evidence showed that the robberies were committed with a dangerous weapon. The State\u2019s evidence established that defendant choked and hit the first victim with a pipe and cut her with a knife, and that he hit the second victim with a pipe. Defendant testified that he used the weapons in self-defense, but he did not deny their use. All the evidence, then, showed that the incidents involved the use of deadly weapons; an instruction on common law robbery thus was not required. These assignments of error are overruled.\nDefendant contends the court erred in denying his request for an instruction on his voluntary intoxication to an extent that raised reasonable doubt as to his capacity to form the specific intent required for conviction of the crimes charged. See N.C.P.I. -Crim. 305.10.\nTo make the defense of voluntary intoxication available . . ., the evidence must show that at the time of the [offenses] the defendant\u2019s mind and reason were so completely intoxicated and overthrown that he could not form a specific intent to [commit them]. [Citations omitted.] In the absence of evidence of intoxication to a degree precluding the ability to form a specific intent to [commit the offenses], the court is not required to charge the jury thereon.\nState v. Gerald, 304 N.C. 511, 521, 284 S.E. 2d 312, 318-19 (1981); see also State v. Medley, 295 N.C. 75, 79-80, 243 S.E. 2d 374, 377 (1978).\nThe evidence showed that the offenses were committed at a liquor house where everyone was drinking. Defendant had bought some drinks for himself, and one of the victims had bought some for him. Defendant testified that he was \u201cpretty high.\u201d He did not know how many drinks he had consumed, however, and neither did a witness on his behalf.\nThis evidence does not support a finding that intoxication precluded defendant from having the ability to form the specific intent to commit the offenses charged. See State v. Gerald, 304 N.C. 511, 284 S.E. 2d 312; State v. Medley, 295 N.C. 75, 243 S.E. 2d 374. This assignment of error is thus overruled.\nNo error.\nJudges Hedrick and Eagles concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Steven F. Bryant, for the State.", "James A. Wynn, Jr., Assistant Appellate Defender, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. HAMMIE LEE WASHINGTON\nNo. 8426SC228\n(Filed 18 December 1984)\n1. Criminal Law \u00a7 91\u2014 speedy trial \u2014 State\u2019s continuances properly excluded\nThere was no error in the denial of defendant\u2019s motion to dismiss for violation of the Speedy Trial Act where continuances were granted to the State because \u201cthe trial of other cases prevented the trial of this case during this session\u201d where the State\u2019s motions were in writing, the court found that the ends of justice would be served, the court made a written finding as to the reason for its action and specified that the total period of the continuances be excluded, defendant did not object to the findings, and there is no evidence in the record that the court improperly found in any instance that the trial of other cases prevented the trial of this one. G.S. 15A-701(al)(l), G.S. 15A-701(b)(7).\n2. Robbery \u00a7 5.4\u2014 failure to instruct on common law robbery as lesser included offense of armed robbery \u2014 no error\nIn a prosecution for armed robbery, there was no error in the court\u2019s failure to instruct on common law robbery where defendant did not object to the omission before the jury retired and where the uncontradicted evidence showed that the robberies were committed with a dangerous weapon. N.C. Rule of App. Procedure 10(b)(2).\n3. Criminal Law 8 6\u2014 failure to instruct on voluntary intoxication \u2014 no error\nThere was no error in the court\u2019s failure to instruct on voluntary intoxication where the evidence showed that the offenses were committed at a liquor house where everyone was drinking, that defendant had bought some drinks for himself, that one of the victims had bought drinks for defendant, that defendant was by his own testimony \u201cpretty high,\u201d and that neither defendant nor a witness on his behalf knew how many drinks he had consumed. The evidence did not support a finding that intoxication precluded defendant from having the ability to form the specific intent to commit the offenses charged.\nAppeal by defendant from Kirby, Judge. Judgment entered 2 September 1983 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 4 December 1984.\nDefendant appeals from a judgment of imprisonment entered upon convictions on two counts of armed robbery, one count of assault with a deadly weapon with intent to kill inflicting serious injury, and one count of assault with a deadly weapon.\nAttorney General Edmisten, by Assistant Attorney General Steven F. Bryant, for the State.\nJames A. Wynn, Jr., Assistant Appellate Defender, for defendant appellant." }, "file_name": "0767-01", "first_page_order": 801, "last_page_order": 805 }