              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-800

                               Filed: 6 February 2018

Durham County, No. 10 CRS 56344

STATE OF NORTH CAROLINA

             v.

ROBERT E. WILKERSON


      Appeal by defendant from order entered 1 February 2017 by Judge W. Osmond

Smith, III in Durham County Superior Court. Heard in the Court of Appeals 8

January 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Marc X.
      Sneed, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
      Zimmer, for defendant-appellant.


      TYSON, Judge.


      Robert Earl Wilkerson (“Defendant”) appeals from the denial of his motion to

dismiss for violation of his right to a speedy trial. The superior court failed to

adequately weigh and apply the factors in Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d

103 (1972), after our previous remand, and failed to fully consider the prima facie

evidence of prosecutorial neglect. We vacate the superior court’s order and again

remand this matter to the superior court for a full evidentiary hearing and to make

proper findings and analysis of the relevant factors.
                                STATE V. WILKERSON

                                  Opinion of the Court



                                    I. Background

      On 2 July 2010, Defendant was arrested for offenses allegedly occurring on 7

April 2010. Defendant was subsequently indicted for robbery with a dangerous

weapon, conspiracy to commit robbery with a dangerous weapon, and first-degree

murder.

      On 7 May 2012, Defendant filed a pro se motion for a speedy trial, which was

adopted by his attorney and argued at a hearing on 23 August 2012. This motion was

denied. Defendant filed a pro se motion to dismiss for violation of his right to speedy

trial on 21 April 2014. This motion was also adopted and argued by his counsel, and

also denied.

      Defendant was tried 21 April 2014 through 2 May 2014. The jury returned a

verdict of guilty for robbery and conspiracy to commit robbery, but found Defendant

not guilty of murder. Defendant was sentenced to 97-126 months for robbery and a

consecutive 38-55 months for conspiracy. Defendant appealed.

      Defendant’s first appeal was heard on 7 July 2015. State v. Wilkerson, 242 N.C.

App. 253, 775 S.E.2d 925, 2015 N.C. App. LEXIS 560 (unpublished). This Court

concluded Defendant had failed “to show that the trial court committed prejudicial

error at his trial” and affirmed the Defendant’s convictions. Wilkerson, 2015 N.C.

App. LEXIS 560 at *40. However, this Court also concluded “[t]he trial court erred

by summarily denying Defendant’s motion without considering all of the Barker



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factors and making appropriate findings.” Id. at *39. This Court concluded that the

trial court had “simply stat[ed] that Defendant had ‘made an insufficient showing to

justify a dismissal under speedy trial grounds[,]’” instead of weighing the factors

identified by the Supreme Court of the United States and the Supreme Court of North

Carolina Id.   This Court remanded the proceedings to the trial court to make

appropriate findings. Id. at *40.

      Upon remand, the superior court denied Defendant’s motion to dismiss.

During what was calendared as a status hearing on the issues remanded, the superior

court proceeded to “take action in response to the Court of Appeals remand.” Finding

“[b]oth parties at the hearing had the full opportunity to present any evidence [they]

desired[,]” the superior court did not allow for any further argument or any additional

evidence to be presented. Defendant objected to the lack of a full evidentiary hearing.

The superior court stated it had considered the Barker factors when it made its first

ruling, and recorded these past considerations in a written order denying Defendant’s

motion to dismiss on 1 February 2017. Defendant appeals.

                                      II. Jurisdiction

      This Court possesses jurisdiction pursuant to N.C. Gen. Stat. §§ 7A-27(b) and

15A-1444(a) (2017).

                               III. Standard of Review




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       “The standard of review for alleged violations of constitutional rights is de

novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009) (citation

omitted). We review the superior court’s order to determine “whether the trial judge’s

underlying findings of fact are supported by competent evidence . . . and whether

those factual findings in turn support the judge’s ultimate conclusions of law.” State

v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citation omitted).

                               IV. Right to a Speedy Trial

       Defendant argues the superior court relied upon unsupported factual findings

and improperly analyzed the Barker factors to conclude his right to a speedy trial was

not violated. Defendant asserts a proper application of the Barker factors could

support the conclusion that his right to a speedy trial was violated. After review of

the arguments and evidence in the record, following the new evidentiary hearing on

remand, the superior court should consider all the evidence, and decide how each

factor, separately and together, weighs for and against the State and Defendant to

reach a final ruling.

       The Supreme Court of the United States laid out a four-factor balancing test

to determine whether a defendant’s Sixth Amendment right to a speedy trial has been

violated. Barker, 407 U.S. at 530, 33 L. Ed. 2d at 116-17. “These factors are: (1) the

‘[l]ength of delay;’ (2) ‘the reason for the delay[;]’ (3) ‘the defendant’s assertion of his

right[;]’ and, (4) ‘prejudice to the defendant.’” State v. Carvalho, 243 N.C. App. 394,



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400, 777 S.E.2d 78, 83 (2015) (quoting Barker, 407 U.S. at 530, 33 L. Ed. 2d at 117),

aff’d per curiam 369 N.C. 309, 794 S.E.2d 497, 497 (2016), cert. denied __ U.S. __, 199

L. Ed. 2d 19 (2017). None of these factors are determinative; they must all be weighed

and considered together:

                We regard none of the four factors identified above 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. But,
                because we are dealing with a fundamental right of the
                accused, this process must be carried out with full
                recognition that the accused’s interest in a speedy trial is
                specifically affirmed in the constitution.

Barker, 407 U.S. at 533, 33 L. Ed. 2d at 118-19.

                                     A. Length of Delay

      “[T]he length of the delay is not per se determinative of whether defendant has

been deprived of his right to a speedy trial.” State v. Spivey, 357 N.C. 114, 119, 579

S.E.2d 251, 255 (2003); see Carvalho, 243 N.C. App. at 401, 777 S.E.2d at 84. No

bright line exists to signify how much of a delay or wait is prejudicial, but as wait

times approach a year, a presumption of prejudice arises. Doggett v. United States,

505 U.S. 647, 652 n.1, 120 L. Ed. 2d 520, 528 n.1 (1992). This “‘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

inquiry.” Id.

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       Here, over three years and nine months elapsed from Defendant’s arrest until

his trial began. This Court had previously remanded this matter to the trial court for

a full review and application of the Barker factors, indicating the length of delay was

sufficient to trigger such a review. Wilkerson, 2015 N.C. App. LEXIS 560 at *38-*39.

       Upon remand, the trial court acknowledged this “amount of time [was]

noteworthy” but was “not per se prejudicial” because of “all the matters necessarily

involved in the preparation by the prosecution and the defense of this case involving

a first degree murder charge with co-defendants, including pretrial discovery,

investigation and analysis of crime scene and crime laboratory analysis[.]”             No

specified length of time is “per se prejudicial,” but as one of four factors to be reviewed,

this factor weighs in favor of Defendant and triggers the need for analysis of the

remaining three Barker factors. See Carvalho, 243 N.C. App. at 401, 777 S.E.2d at

84.

                                   B. Reason for Delay

       Defendant bears the burden of showing the delay was the result of “neglect or

willfulness of the prosecution.” Spivey, 357 N.C. at 119, 579 S.E.2d at 255 (emphasis

original). “If a defendant proves that a delay was particularly lengthy, the defendant

creates a prima facie showing that the delay was caused by the negligence of the

prosecutor.” State v. Strickland, 153 N.C. App. 581, 586, 570 S.E.2d 898, 902 (2002)




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                                   Opinion of the Court



(citing State v. Chaplin, 122 N.C. App. 659, 664, 471 S.E.2d 653, 655-56 (1996)), cert.

denied, 357 N.C. 65, 578 S.E.2d 594 (2013).

      Once the defendant has made a prima facie showing of neglect or willfulness,

the burden shifts to the State to rebut and offer explanations for the delay. Spivey,

357 N.C. at 119, 579 S.E.2d at 255. The State is allowed “good-faith delays which are

reasonably necessary for the State to prepare and present its case[,]” but is proscribed

from “purposeful or oppressive delays and those which the prosecution could

have avoided by reasonable effort.” State v. Washington, 192 N.C. App. 277, 283,

665 S.E.2d 799, 804 (2008) (citation omitted) (emphasis original). Different reasons

for delay are assigned different weights, but only “valid reason[s]” are weighed in

favor of the State. Barker, 407 U.S. at 531, 33 L. Ed. 2d at 117.

      This Court in Chaplin found a pre-trial delay of 1,055 days, with the case being

calendared thirty-one times before being called, constituted a prima facie showing of

prosecutorial negligence or willfulness. Chaplin, 122 N.C. App. at 664, 471 S.E.2d at

656. The State was unable to offer any reasonable explanation for the excessive delay

and continuances, and that factor weighed in favor of the defendant. Id.

      This Court in Strickland concluded a delay of 940 days was enough to

constitute a prima facie showing of prosecutorial negligence. Strickland, 153 N.C.

App. at 586, 570 S.E.2d at 903.       However, the State rebutted this showing by

providing evidence of prosecutorial backlog. Id. at 587, 570 S.E.2d at 903. Because



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                                   Opinion of the Court



the defendant was unable to produce any evidence of neglect or willfulness by the

prosecutor, this factor weighed in favor of the State. Id.

      Here, Defendant’s trial was delayed 1,390 days, nearly four years and at least

a year longer than either Chaplin or Strickland. In addition, in the previous appeal

this Court recognized:

             Defendant’s trial counsel argued that (1) the State had
             made a material misrepresentation in responding to
             Defendant’s earlier motion that it was still waiting on the
             SBI laboratory’s analysis of evidence; (2) the State had
             improperly used the delay for the strategic purpose of
             working out a plea agreement with [co-defendant] between
             the 23 August 2012 hearing and the date of trial[.]

Wilkerson, 2015 N.C. App. LEXIS 560 at *39.

      At the speedy trial motion hearing on 23 August 2012, the prosecutor

represented to the superior court that the State was still waiting on the State Bureau

of Investigation (“SBI”) to provide some DNA analysis on hair samples. This SBI

report had been completed on 24 February 2012, almost six full months before the

date of the hearing.     At the hearing, the prosecutor repeatedly stated the hair

evidence was collected in April 2012, when in fact it had been collected in October

2011. The prosecutor explained he had been assigned to Defendant’s trial in April

2011, and began requesting additional analysis from the SBI and FBI at that time.

No explanation was provided of why, if the prosecutor’s hair collection date was

accurate, the prosecutor had waited a year to request the hair samples from



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                                   Opinion of the Court



Defendant. Further, at the April to May 2014 trial, an FBI agent testified that an

analysis of records dated 7 April 2010 was requested of him “a year or so” before trial.

      While agreeing “in spirit” with Defendant’s motion for a speedy trial, the

prosecutor argued he could not move forward without the completion of the hair

analysis.   Despite the State’s assertion at the speedy trial hearing that it was

otherwise prepared to go to trial, the State moved for at least two continuances after

the trial was initially set for September 2013. The first continuance was granted

after the State alleged that necessary witnesses were unavailable. The second was

granted after the State alleged additional discovery had been provided and witnesses

listed in this additional discovery had not been subpoenaed.

      The misrepresentation concerning the hair samples was brought up at

Defendant’s pretrial motion to dismiss for violation of his right to speedy trial. His

pro se motion, which was adopted and argued by his counsel, included an affidavit on

this matter, as well as supporting documentation of the addition of the co-defendant’s

plea deal. The trial court heard these arguments, and summarily denied Defendant’s

motion. On remand from Defendant’s previous appeal, the superior court found:

             6. The defendant, in his motion to dismiss, contended that
             the State delayed his trial by intentionally misrepresenting
             to the Court that SBI Crime Lab analysis results had not
             been received, that the intentional delay by the State was
             for an improper purpose in allowing the State to obtain a
             statement from a co-defendant implicating the defendant
             in the alleged crimes[.]
             ...


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                                  Opinion of the Court




             8. Reason for delay. Not withstanding [sic] the defendant’s
             assertion that the former prosecutor handling this case
             willfully and intentionally misrepresented to the Court
             that laboratory results had not been received, the
             defendant has failed to show that the trial delay was due
             to willfulness or neglect on the part of the prosecution.

      These findings are not supported by the evidence. The prosecutor purports to

place the entire blame for the delays upon the SBI, indicating there was “no part of

our negligence in no part.”        The prosecutor may not have been willfully

misrepresenting the status of the SBI report to the trial court at the hearing, but at

a minimum he most certainly was negligent in not knowing the status of this

completed report he expressly used as a reason to delay the trial, regardless of what

he asserted at the hearing.

      The State argues crowded dockets and anticipated laboratory results are

“neutral factors” and are “valid justifications for the delay.” Nowhere in the record

are crowded dockets alleged by the State or found by the trial court to be a reason for

the delays in Defendant’s trial. The State’s misrepresentation, whether negligent or

willful, at the speedy trial motion could have been avoided by reasonable efforts. See

Washington, 192 N.C. App. at 283, 665 S.E.2d at 804.

      The State acknowledges it misrepresented the status of the SBI report, but

now asserts it was a “mistake.” The superior court’s finding that Defendant did not

provide evidence of negligence by the State regarding the delay is unsupported by the

record evidence. Defendant’s evidence, if true, would tend to show this second Barker

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                                    Opinion of the Court



factor weighs in his favor. Upon remand, the superior court must consider the

evidence which would support a prima facie showing of neglect or willfulness of the

prosecutor, and then, if a prima facie showing is established, allow the State the

opportunity to rebut it.

                      C. Defendant Asserted Right to Speedy Trial

         “A criminal defendant who vigorously asserts his right to a speedy trial will be

considered in a more favorable light than a defendant who does not.” Strickland, 153

N.C. App. at 587, 570 S.E.2d at 903.

         Defendant filed a pro se motion for speedy trial on 7 May 2012, which was

adopted and argued by his counsel. Prior to his motion for speedy trial, Defendant

contacted prison officials as early as 30 January 2012 and sought action on the

detainer on the pending charges filed from Durham County. On 21 February 2012,

Defendant filed a motion for final disposition of the detainer, requesting resolution of

the charges. Defendant objected to the case being continued at least one of the two

times.

         The superior court acknowledged Defendant’s motion for speedy trial in its

findings of fact, though it fails to credit or resolve the other instances of Defendant

“vigorously assert[ing] his right to speedy trial.” See id. Considering the record

evidence, this Barker factor tends to weigh in favor of Defendant.

                                       D. Prejudice



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                                  Opinion of the Court



      Following Barker, this Court has repeatedly held:

             [t]he 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. 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) (quoting Barker,

407 U.S. at 532, 33 L.Ed.2d at 118) (quotation marks omitted) (emphasis in Webster).

      In its findings of fact, the superior court noted Defendant was “currently

serving an active sentence for the unrelated drug trafficking conviction that began on

August 2, 2011.” Defendant was arrested for this current charge on 2 July 2010. The

superior court found that as a result of this incarceration “any anxiety or concern by

the defendant . . . is thereby somewhat reduced or minimized.”

      The fact a defendant is already incarcerated while awaiting trial “does not

mitigate against his right to a speedy and impartial trial.” State v. Frank, 284 N.C.

137, 141, 200 S.E.2d 169, 172 (1973) (citations omitted).

             At first blush it might appear that a man already in prison
             under a lawful sentence is hardly in a position to suffer
             from undue and oppressive incarceration prior to trial. But
             the fact is that delay in bringing such a person to trial on a
             pending charge may ultimately result in as much
             oppression as is suffered by one who is jailed without bail
             upon an untried charge. First, the possibility that the
             defendant already in prison might receive a sentence at
             least partially concurrent with the one he is serving may
             be forever lost if trial of the pending charge is postponed.
             Secondly, under procedures now widely practiced, the
             duration of his present imprisonment may be increased,

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                                  Opinion of the Court



             and the conditions under which he must serve his sentence
             greatly worsened, by the pendency of another criminal
             charge outstanding against him.

Smith v. Hooey, 393 U.S. 374, 378, 21 L. Ed. 2d 607, 611 (1969) (citation and quotation

marks omitted).

       During his hearing on his motion for speedy trial, Defendant asserted the

Durham County detainer for first-degree murder was impacting his current

incarceration on the drug trafficking charge. Due to the nature of the first-degree

murder charge, Defendant was held in higher security custody, which limited where

he could be housed.     While not determinative of prejudice, the superior court’s

conclusion that because Defendant was incarcerated on other charges it was not

prejudicial to delay his pending trial, is unsupported by the evidence presented.

       The fact that Defendant was incarcerated on other charges does not indicate

he would have reduced anxiety or concern over the pending charge. Beyond the

additional anxiety Defendant faced while being housed in allegedly “extremely

violent” quarters, “there is reason to believe that an outstanding untried charge (of

which even a convict may, of course, be innocent) can have fully as depressive an

effect upon a prisoner as upon a person who is at large.” Id. at 379, 21 L. Ed. 2d at

612.

       Defendant argued the delay allowed for the State to secure a plea deal with

Leryan Scarlett, a co-defendant. Scarlett initially denied any involvement in the

robbery. After being charged with additional offenses while out on bond, Scarlett

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                                   Opinion of the Court



negotiated with the State to testify against Defendant in exchange for the additional

charges being dropped.

      Defendant presented evidence this agreement with Scarlett was reached after

his motion for speedy trial had been denied. The superior court’s conclusion that this

argument was “unsubstantiated and not supported by any evidence” is not supported

by the evidence presented. The superior court should allow and consider additional

evidence in order to properly consider this issue.

      During the delay, Defendant’s brother, who was listed to be an alibi witness

for Defendant, died. Defendant’s brother proposed to testify that Defendant was at

work during the time of the robbery. The superior court found there were copies of

time cards from work and possibly other employees who could serve as alibi witnesses

for Defendant, but excluded or ignored statements of defense counsel concerning the

other alibi witnesses:

             There were other employees, Your Honor, yes. I can tell the
             Court, unfortunately, several of the family members are
             not available at this time. In particular, one individual who
             you’ve already heard referenced, that’s Mr. Rico Wilkerson,
             I believe he is in federal custody at this time. I know there
             are other individuals who I have not been able to establish
             contact with since 2012, individuals who I had contact with
             prior to that date, however.

The superior court’s findings are not supported by the record, and its conclusion

“there [was] no actual, substantial prejudice to the defendant as a result of the delay”

is not supported by the facts.


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                                   Opinion of the Court



      “Barker explicitly recognized that impairment of one’s defense is the most

difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory

evidence and testimony ‘can rarely be shown.’” Doggett, 505 U.S. at 655, 120 L. Ed.

2d at 530-31 (quoting Barker, 407 U.S. at 532, 33 L. Ed. 2d at 118). “If witnesses die

or disappear during a delay, the prejudice is obvious.” Barker, 407 U.S. at 532, 33 L.

Ed. 2d at 118.

      The State argues Defendant was unable to show he was substantially

prejudiced, and cites State v. Goldman, 311 N.C. 338, 346, 317 S.E.2d 361, 366 (1984),

for the proposition a defendant must prove actual and substantial prejudice. Our

Supreme Court in Goldman rejected the defendant’s claims of faded memories and

lost witnesses as prejudice. Id.     Unlike the defendant in Goldman, Defendant

presents more than “general averments” regarding the prejudice he suffered. See id.

at 345, 317 S.E.2d at 366. Defendant indicated two specific instances where evidence

essential to his defense was prejudiced because of the delays in bringing his charges

to trial. This factor, above all others, requires a careful and thoughtful analysis

before deciding whether or not Defendant was prejudiced by delays to his right to a

speedy trial.

                                    V. Conclusion

      Trial courts “must” engage in a “difficult and sensitive balancing process” to

ascertain whether a violation of a defendant’s right to a speedy trial has occurred. See



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Barker, 407 U.S. at 533, 33 L.Ed.2d at 118-19; see also Spivey, 357 N.C. at 118-19,

579 S.E.2d at 255. This balancing process is difficult because

             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, 407 U.S.

514, 33 L. Ed. 2d 101).

      Upon review of the four Barker factors, with the limited record before us,

Defendant tends to show his Sixth Amendment right to a speedy trial may have been

violated. The length of the delay and the lack of appropriate reason for the delay

tends to weigh in his favor. Defendant’s evidence regarding the prejudice he suffered

in his pretrial incarceration and the prejudice to his ability to defend against his

charges, if true, would tend to weigh in his favor, but requires a more nuanced

consideration.

      The superior court concluded it had “weighed” and “balanced” the factors, but

provided no findings to support this assertion. The written order produced upon this

Court’s earlier remand was changed little from the order on the previously summarily

denied motion.   The superior court’s findings of fact were not supported by the

evidence.




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      A full evidentiary hearing is required in order for the superior court to hear

and make an appropriate assessment of Defendant’s arguments. If the superior court

ultimately concludes Defendant’s right to a speedy trial was violated, the only remedy

is dismissing the indictment and vacating those convictions. See Barker, 407 U.S. at

522, 33 L.Ed.2d at 112.

      The trial court’s prior speedy trial ruling upon the previous remand is vacated.

Defendant’s motion for a speedy trial is again remanded for a full evidentiary hearing

on all Barker factors. It is so ordered.

      VACATED AND REMANDED.

      Chief Judge MCGEE and Judge DAVIS concur.




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