              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-323

                               Filed: 7 November 2017

Pitt County, No. 11 CRS 057539

STATE OF NORTH CAROLINA,

             v.

JAMES GREGORY ARMISTEAD, Defendant.


      Appeal by Defendant from judgment entered 25 May 2016 by Judge Marvin K.

Blount, III, in Pitt County Superior Court.       Heard in the Court of Appeals 19

September 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Michelle D.
      Denning, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas
      C. Woomer-Deters, for Defendant-Appellant.


      INMAN, Judge.


      James Gregory Armistead (“Defendant”) appeals his conviction following a jury

verdict finding him guilty of impaired driving with a finding of one aggravating factor.

Defendant argues that he was denied his constitutional right to a speedy trial and

that the trial court erred by denying his motion to dismiss pursuant to N.C. Gen. Stat.

§ 15A-711. After careful review, we hold that Defendant has failed to establish error.

                         Factual and Procedural History

      The evidence at trial tended to show the following:
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                                 Opinion of the Court



      At around 1:30 a.m. on 3 September 2011, Defendant was arrested and cited

for driving while impaired in Pitt County, North Carolina.      At the Pitt County

Detention Center, Defendant submitted a breath sample, which reported a blood

alcohol concentration of 0.15. Defendant was released on bail at approximately 12:30

p.m. the same day.

      On 19 January 2012, Defendant appeared in Pitt County District Court, was

appointed counsel, and his case was continued to 22 March 2012. The case was

continued again to 3 May 2012 to allow additional time for discovery.

      On 1 May 2012, in an unrelated matter in Beaufort County, Defendant was

sentenced to an active prison term of 108 to 139 months in the custody of the North

Carolina Department of Adult Correction. Defendant began serving that sentence on

the same day.

      As a result of his incarceration, Defendant did not appear in Pitt County

Superior Court on 3 May 2012. Neither Defendant’s appointed counsel nor the

prosecutor was aware that Defendant was incarcerated.      The trial court issued an

order for Defendant’s arrest.

      On or about 26 June 2012, Defendant contacted his prison case manager

requesting a list of the case numbers for any pending charges against him as well as

addresses for the Pitt County, Washington County, and Lenoir County Clerks of




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Court.     Defendant’s case manager responded with the case numbers and the

addresses for the clerks of court in all three counties.

         On 22 July 2012, Defendant sent letters to the Washington and Lenoir County

Clerks of Court requesting resolution of the charges pending against him in those

counties. The letter sent to Washington County, which referenced the case numbers

of the pending charges, was file stamped with the clerk’s office on 26 July 2012. The

Lenoir County charges were dismissed on 23 August 2012 and the Washington

County charge was dismissed on 1 October 2012.

         On 21 September 2012, the prosecutor in Pitt County filed a dismissal of the

driving while impaired charge with leave to prosecute the case later, citing

Defendant’s failure to appear for the 3 May 2012 hearing and the prosecutor’s belief

that Defendant could not readily be found.

         On 15 October 2012 and 14 November 2012, respectively, Defendant sent mail

to “CSC Greenville” and “Admin Off Cts,” but prison records do not indicate the

substance of the correspondence. On 29 November 2012, Defendant drafted, and had

notarized, a letter captioned “Motion and Request for Dismissal.”         The letter,

addressed to the presiding or resident judge of the Pitt County Superior Court, stated

Defendant’s case number as “11 CRS 57539” and requested dismissal of the case




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pursuant to N.C. Gen. Stat. § 15A-711.1 Prison records indicate that Defendant sent

another letter to “Admin Off Cts.” on 30 November 2012, but again do not disclose

the substance of the correspondence. There is no court record indicating that the

clerk of court or district attorney in Pitt County received any of these letters.

        On 13 August 2015, Defendant’s prison case manager contacted the Pitt

County District Attorney’s Office to inquire about the driving while impaired charge

and was informed that the charge remained pending and that Defendant would

receive notice when the case was next set for a hearing.

        On 10 November 2015, Defendant wrote another letter to the Pitt County Clerk

of Court indicating that he had yet to receive a response regarding his motion to

dismiss the pending charge, which Defendant correctly identified as case number

“11CR57539.” It was through this letter that Defendant’s counsel learned of his

incarceration and contacted the District Attorney’s Office to re-calendar Defendant’s

case.

        Defendant’s case proceeded to trial on 28 January 2016 in Pitt County District

Court. Defendant was convicted and sentenced as a Level 3 offender to an active term

of six months in prison. Defendant appealed to the Pitt County Superior Court on

the same day and was released on $1.00 secured bond.



        1
        Defendant has included a copy of the letter in the record on appeal. The letter “S” in the case
number inaccurately designated a charge pending in Superior Court; however, on the date of the letter,
Defendant’s charge was pending in Pitt County District Court.

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      Defendant moved to dismiss the case pursuant to N.C. Gen. Stat. § 15A-711 on

25 April 2016. A pre-trial hearing was set on 23 May 2016 to address Defendant’s

motion. The trial court denied Defendant’s motion and the case proceeded to trial

before a jury.

      At trial, the State presented evidence of Defendant’s impairment through the

testimony of the arresting officer and the results of the Intoxalyzer test administered

on the night of his arrest. The jury convicted Defendant on 25 May 2016 for driving

while impaired and found one aggravating factor—that Defendant had an alcohol

concentration of 0.15 or more at the time of the offense, or within a relevant time

after the driving involved in the offense. Defendant gave timely notice of appeal.

                                      Analysis

      Defendant argues that the four-year delay between his indictment and trial

violated his Sixth Amendment right to a speedy trial and that the trial court erred by

denying his motion to dismiss pursuant to N.C. Gen. Stat. § 15A-711. We disagree.

      I. Standard of Review

      When the facts at issue are undisputed, whether a defendant’s right to a speedy

trial has been violated is a question of law reviewed de novo. State v. Chaplin, 122

N.C. App. 659, 664, 471 S.E.2d 653, 656 (1996). The denial of a defendant’s motion

and request to dismiss pursuant to N.C. Gen. Stat. § 15A-711 is also reviewed de

novo. State v. Williamson, 212 N.C. App. 393, 396, 711 S.E.2d 765, 768 (2011).



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      II. Speedy Trial Motion

      The right to a speedy trial is guaranteed to every person formally accused of a

crime by the Sixth and Fourteenth Amendments to the United States Constitution

and Article I, § 18 of the North Carolina Constitution. See State v. Spivey, 357 N.C.

114, 118, 579 S.E.2d 251, 254 (2003). This right, however,

             is different from other constitutional rights in that, among
             other things, deprivation of a speedy trial does not per se
             prejudice the ability of the accused to defend himself; it is
             impossible to determine precisely when the right has been
             denied; it cannot be said precisely how long a delay is too
             long; there is no fixed point when the accused is put to a
             choice of either exercising or waiving his right to a speedy
             trial; and dismissal of the charges is the only possible
             remedy for denial of the right to a speedy trial.

State v. McKoy, 294 N.C. 134, 140, 240 S.E.2d 383, 388 (1978) (citing Barker v. Wingo,

407 U.S. 514, 33 L.Ed.2d 101 (1972)).

      In Barker, the United States Supreme Court established a balancing test to

determine, on a case-by-case basis, whether a defendant’s constitutional right to a

speedy trial has been violated. Barker, 407 U.S. at 530, 33 L.Ed.2d at 116-17. Barker

identified the following factors for courts to consider: (1) the length of delay, (2) the

reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the

defendant. Id. at 530, 33 L.Ed.2d at 116-117.

      North Carolina courts, in applying the Barker balancing test, have noted that

“[n]o single factor is regarded as either a necessary or sufficient condition to the



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finding of a deprivation of the right to a speedy trial.” McKoy, 294 N.C. at 140, 240

S.E.2d at 388. Rather, these factors “must be considered together with such other

circumstances as may be relevant[,]” and courts must “engage in a difficult and

sensitive balancing process . . . with full recognition that the accused’s interest in a

speedy trial is specifically affirmed in the Constitution.” Id. at 140, 240 S.E.2d at 388

(internal quotation marks and citations omitted).

      With these principles in mind, we turn our consideration to the circumstances

before us in this case.

      A. Length of Delay

      Our Court has recognized that “some delay is inherent and must be tolerated

in any criminal trial[.]” State v. Pippin, 72 N.C. App. 387, 391-92, 324 S.E.2d 900,

904 (1985) (citation omitted).    However, concurrent with this recognition is the

principle that “the delay that can be tolerated for an ordinary street crime is

considerably less than for a serious, complex conspiracy charge.” Barker, 407 U.S. at

531, 33 L.Ed.2d at 117.

      The United States Supreme Court in Barker explained that “[t]he length of the

delay is to some extent a triggering mechanism[,]” and that “[u]ntil there is some

delay which is presumptively prejudicial, there is no necessity for inquiry into the

other factors that go into the balance.” Id. at 530, 33 L.Ed.2d at 116-17. The United




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States Supreme Court and our Courts have yet to define a period of time for which a

delay will be deemed presumptively prejudicial, but

             [d]epending on the nature of the charges, the lower courts
             have generally found postaccusation delay “presumptively
             prejudicial” at least as it approaches one year. We note
             that, as the term is used in this threshold context,
             “presumptive prejudice” does not necessarily indicate a
             statistical probability of prejudice; it simply marks the
             point at which courts deem the delay unreasonable enough
             to trigger the Barker enquiry.

Doggett v. United States, 505 U.S. 647, 652 n. 1, 120 L.Ed.2d 520, 528 n. 1 (1992)

(internal citations omitted); see also State v. Hammonds, 141 N.C. App. 152, 159, 541

S.E.2d 166, 173 (2000).

      Here, Defendant was arrested and cited for driving while impaired on 3

September 2011; his trial did not commence until 1608 days—over four years—later.

While this delay does not constitute a per se violation of Defendant’s right to a speedy

trial, it is sufficiently unreasonable to trigger a Barker inquiry. We therefore consider

the remaining factors.

      B. Reason for Delay

      Under this second factor, a “defendant has the burden of showing that the

delay was caused by the neglect or willfulness of the prosecution.” Spivey, 357 N.C.

at 119, 579 S.E.2d at 255 (emphasis in original) (citation omitted). Only once a

defendant has met his burden by making a prima facie showing that the delay was

caused by negligence or willfulness “must the State offer evidence fully explaining


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the reasons for the delay and sufficient to rebut the prima facie evidence.” Id. at 119,

579 S.E.2d at 255 (citation omitted).       The North Carolina Supreme Court has

explained:

             [t]he constitutional guarantee does not outlaw good-faith
             delays which are reasonably necessary for the State to
             prepare and present its case. . . . Neither a defendant nor
             the State can be protected from prejudice which is an
             incident of ordinary or reasonably necessary delay. The
             proscription is against purposeful or oppressive delays and
             those which the prosecution could have avoided by
             reasonable effort.

State v. Johnson, 275 N.C. 264, 273, 167 S.E.2d 274, 280 (1969) (emphasis added)

(internal citations omitted); see also Spivey, 357 N.C. at 119, 579 S.E.2d at 255.

      The delay in bringing Defendant to trial in this case could have been avoided

by reasonable effort. It is undisputed that on the date Defendant failed to appear in

court and on the date four months later when the prosecutor removed the case from

the docket, Defendant’s location was readily ascertainable through a search of the

Department of Public Safety’s Offender Public Information website and through other

online databases routinely used by prosecutors. We are persuaded that the State’s

failure to discover Defendant’s whereabouts—in the State’s own custody—resulted

from the prosecutor’s negligence by not checking readily available information. We

therefore weigh the second Barker factor in favor of Defendant.

      C. Assertion of Right




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      A defendant’s assertion of his speedy trial right “is entitled to strong

evidentiary weight in determining whether the defendant is being deprived of the

right[,]” and “failure to assert the right will make it difficult for a defendant to prove

that he was denied a speedy trial.” Barker, 407 U.S. at 531-32, 33 L.Ed.2d at 117.

This Court has given weight to both formal and informal assertions of a defendant’s

right to a speedy trial. See, e.g., Washington, 192 N.C. App. at 291, 655 S.E.2d at 808

(“[W]hile [the] defendant’s formal assertion of his right was not immediate, he did

assert this right almost two years prior to the start of his trial. Further, [the]

defendant began informally asserting his right” even earlier, and, “when considered

together, these actions weigh in favor of [the] defendant.”). However, an “assertion

of the right, by itself, d[oes] not entitle [a defendant] to relief.” Spivey, 357 N.C. at

121, 579 S.E.2d at 256 (citing Barker, 407 U.S. at 533, 33 L.Ed.2d at 118).

      An affidavit filed by Defendant’s trial counsel acknowledges that there was no

record of receipt by the clerk’s office of any communication from Defendant prior to

10 November 2015, more than three years after Defendant’s case was removed from

the court docket.

      Defendant argues, however, that he asserted his right to a speedy trial four

times, beginning with a letter he wrote to the Pitt County Clerk of Court on 11 June

2012, even before the State removed his case from the docket. Although Defendant




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testified about the letter in a hearing before the trial court, he was unable to produce

a copy of this letter, and no such letter was found in the Clerk’s file.

      Defendant contends that he next asserted his speedy trial right on 29

November 2012 in a notarized letter, including a certificate of service, indicating that

a copy of the letter was mailed to the District Attorney’s Office in Pitt County.

Although Defendant introduced a copy of the letter in evidence before the trial court,

the document is not file stamped, contains no notary stamp, and no letter was found

in the Clerk’s file or in the District Attorney’s Office. The letter was addressed to the

presiding or resident superior court judge in Pitt County, was labeled as a “Motion

and Request for Dismissal,” and misidentifies Defendant’s case number as “11-CRS-

57539.” On the date stated on the letter, Defendant’s case was pending in district

court and was numbered as “11-CR-57539.” Defendant’s addressing the letter to the

superior court rather than the district court and identifying his case as CRS rather

than CR could have contributed to the letter not reaching the court file.

      Defendant’s third contended assertion of his speedy trial right occurred when

Defendant contacted his prison case manager on 13 August 2015, and as a result, the

State received notice that Defendant was incarcerated. The State, however, argues

that Defendant’s inquiry to his case manager should not be considered as a prior

assertion of his speedy trial right.




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                                   Opinion of the Court



      Defendant’s final assertion—which the State argues was his only meaningful

assertion—was a letter Defendant sent to the Pitt County Clerk of Court on 10

November 2015.      This letter properly identified the case as 11-CR-57539 and

requested an update regarding Defendant’s previously mailed motion to dismiss. The

State argues that even if this letter was an assertion, it was an improper pro se motion

because Defendant was represented by counsel at the time and it should not be given

the weight of a formal assertion of Defendant’s right.

      We conclude that Defendant’s attempts to assert his speedy trial right through

informal methods—absent any evidence that his assertions reached the proper court

officials or the prosecutor until three years after Defendant first failed to appear in

court—are neutral to our determination.

      D. Prejudice to Defendant

      In considering whether a defendant has been prejudiced by a delay, the United

States Supreme Court has explained that “we generally have to recognize that

excessive delay presumptively compromises the reliability of a trial in ways that

neither party can prove or, for that matter, identify[,]” and that “[w]hile such

presumptive prejudice cannot alone carry a Sixth Amendment claim without regard

to the other Barker criteria, it is part of the mix of relevant facts, and its importance

increases with the length of delay.” Doggett, 505 U.S. at 655-56, 120 L.Ed.2d at 250

(internal citations omitted).



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                                   Opinion of the Court



      The North Carolina Supreme Court, following Doggett, adopted the reasoning

in Barker that

             [t]he right to a speedy trial is designated: “(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. Of these, the most serious
             is the last, because the inability of a defendant adequately
             to prepare his case skews the fairness of the entire system.”

State v. Webster, 337 N.C. 674, 680-81, 447 S.E.2d 349, 352 (1994) (emphasis in

original) (quoting Barker, 407 U.S. at 532, 33 L.Ed.2d at 118). The North Carolina

Supreme Court has held further that, when weighed against a legitimate reason for

the State’s delayed prosecution, a defendant must show “actual or substantial

prejudice resulting from the delay” to establish a violation of his constitutional right

to a speedy trial. State v. Goldman, 311 N.C. 338, 345, 317 S.E.2d 361, 365 (1984);

see also Spivey, 357 N.C. at 122, 579 S.E.2d at 257 (“A defendant must show actual,

substantial prejudice.”) (citation omitted). General allegations of faded memory are

insufficient to carry a defendant’s burden of showing prejudice; rather, “[t]he

defendant must show that the resulting lost evidence or testimony was significant

and would have been beneficial to his defense.” State v. Marlow, 310 N.C. 507, 521-

22, 313 S.E.2d 532, 541 (1984).

      Defendant argues that the pending charges prevented him from advancing in

custody classification in prison, and as a result limited his accumulation of good time

or gained time and access to prison programing options. The record, however, reveals


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that Defendant was released on bond on the same day he was charged with this

impaired driving violation. Defendant was subsequently arrested and convicted for

charges unrelated to the case at hand. The record indicates that during the time in

which this case was pending and while he was serving time for the unrelated

convictions, Defendant received several infractions which could have similarly

hindered his participation in certain prison programs. Defendant has presented no

other evidence of unlawful or excessive pretrial incarceration related to this charge.

While we take into consideration the pending charge’s effect on Defendant’s inability

to advance in classification and the resulting limitations to activities during

incarceration for a separate conviction, such an assertion without evidence of

precisely how the pending charges affected Defendant’s classification is insufficient

alone to show actual, substantial prejudice.

      Defendant also argues that his brother could have been an exculpatory witness

had the case been tried earlier, but that the delay resulted in his brother’s inability

to remember the specific events of 3 September 2011. As discussed above, a mere

faded memory—without more—is insufficient to establish a showing of prejudice.

Here, Defendant has not presented any evidence or argument as to how the resulting

lost testimony was significant to his defense. At trial, the State’s evidence was in the

form of testimony by the arresting officer and the results of the Intoxalyzer test.

Defendant has not shown, nor can we imagine, how the faded memory of Defendant’s



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brother deprived him of an available defense. Accordingly, we weigh this factor in

favor of the State.

      After balancing the four factors set forth above, we hold that Defendant’s

constitutional right to a speedy trial has not been violated. While the length of delay

was unreasonable and the State acted negligently in its prosecution of Defendant,

Defendant has failed to adequately demonstrate a clear assertion of his right and has

not presented evidence establishing actual, substantial prejudice. Accordingly, we

overrule Defendant’s argument.

      III. Motion to Dismiss

      N.C. Gen. Stat. § 15A-711 “has sometimes been characterized as a ‘speedy trial’

statute.”   State v. Doisey, 162 N.C. App. 447, 450, 590 S.E.2d 886, 889 (2004).

However, such a categorization misconstrues the statute’s intended purpose, which

is not to guarantee that an incarcerated defendant receive a trial within a specific

time frame, but rather to require a prosecutor to make a written request for the

“temporary release of the defendant to the custody of an appropriate law-enforcement

officer who must produce him at the trial” within six months of the defendant’s

written request.      N.C. Gen. Stat. § 15A-711 (2015). N.C. Gen. Stat. § 15A-711

provides in pertinent part:

             (a) When a criminal defendant is confined in a penal or
             other institution under the control of the State . . . and his
             presence is required for trial, the prosecutor may make
             written request to the custodian of the institution for


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             temporary release of the defendant to the custody of an
             appropriate law-enforcement officer who must produce him
             at the trial. The period of the temporary release may not
             exceed 60 days. The request of the prosecutor is sufficient
             authorization for the release, and must be honored, except
             as otherwise provided in this section.

             ...

             (c) A defendant who is confined in an institution in this
             State pursuant to a criminal proceeding and who has other
             criminal charges pending against him may, by written
             request filed with the clerk of the court where the other
             charges are pending, require the prosecutor prosecuting
             such charges to proceed pursuant to this section. A copy of
             the request must be served upon the prosecutor in the
             manner provided by the Rules of Civil Procedure, G.S. 1A-
             1, Rule 5(b). If the prosecutor does not proceed pursuant to
             subsection (a) within six months from the date the request
             is filed with the clerk, the charges must be dismissed.

(emphasis added). The North Carolina Supreme Court has held that “failure to serve

a section 15A-711(c) motion on the prosecutor as required by the statute bars relief

for a defendant.” State v. Pickens, 346 N.C. 628, 648, 488 S.E.2d 162, 173 (1997)

(citation omitted).

      Defendant argues that his letters sent on 11 June 2012 and 29 November 2012

were properly filed written requests sufficient to satisfy the requirements under N.C.

Gen. Stat. § 15A-711(c). In criminal cases a defendant may present evidence other

than a file stamp to establish if a motion has been properly filed. See N.C. Gen. Stat.

§ 15A-101.1(7)(a) (2015) (“Filing is complete when the original document is received

in the office where the document is to be filed”); see also State v. Moore, 148 N.C. App.


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568, 570, 559 S.E.2d 565, 566 (2002) (“In the absence of a file stamped motion or any

other evidence of the motion’s timely filing . . . .”) (emphasis added) (citation omitted).

      Here, Defendant presented no evidence of a properly filed motion. The Pitt

County Clerk’s file for Defendant’s DWI charge does not contain any file stamped

motion or letters from Defendant. A review of the 29 November 2012 letter reveals

that the letter was addressed to the superior court judges and that Defendant placed

the incorrect file number on the motion—Defendant placed a superior court file

number when, at the time, the charge was pending before the district court. Apart

from Defendant’s own testimony, there is no other evidence in the record supporting

the conclusion that Defendant properly filed a written request with the Pitt County

Clerk of Court. The record reveals that if Defendant filed anything, he did so with

the wrong court. We are bound by precedent and must affirm the trial court’s denial

of Defendant’s motion.

                                      Conclusion

       For the foregoing reasons, we hold that Defendant’s right to a speedy trial was

not violated despite the lengthy delay, and that the trial court did not err in denying

his motion to dismiss pursuant to N.C. Gen. Stat. § 15A-711.

      AFFIRMED.

      Judges BRYANT and DAVIS concur.




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