                                      NO. COA13-998

                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 18 February 2014


STATE OF NORTH CAROLINA

    v.                                          New Hanover County
                                                Nos. 10 CRS 57633, 10 CRS
                                                57604-05, 11 CRS 2152
HAROLD GOINS, JR.


    Appeal by Defendant from judgments entered 11 April 2013 by

Judge Arnold O. Jones, II in Superior Court, New Hanover County.

Heard in the Court of Appeals 21 January 2014.


    Attorney General Roy Cooper, by Special                     Deputy     Attorney
    General K.D. Sturgis, for the State.

    Ryan McKaig for Defendant.


    McGEE, Judge.


    Harold        Goins,        Jr.    (“Defendant”)       appeals       from   his

convictions       for    first-degree      rape,    first-degree      kidnapping,

three    counts    of   first-degree      sexual   offense,     assault     with   a

deadly     weapon,      communicating      threats,    and    being   a     violent

habitual    felon.         At    trial,   the    State’s     witnesses    included

Johnathan Stevens (“Mr. Stevens”), who testified that he drove

Defendant to the apartment of Jacquelyn Goins (“Ms. Goins”) on

21 July 2010.        Ms. Goins testified that Defendant is her cousin
                                      -2-
and that Defendant came to her apartment with his brother, Mr.

Stevens.      She testified that Mr.          Stevens left the apartment

after about twenty minutes, and Defendant subsequently attacked

her.    The facts relevant to the issues on appeal are discussed

in greater detail in the analysis section of this opinion.

                              I. Speedy Trial

       Defendant   first    argues     the    trial       court   “abused    its

discretion when it denied [Defendant’s] motion to dismiss for

lack of a speedy trial.”            To determine whether a defendant’s

right to a speedy trial has been infringed, we consider four

factors: “(1) the length of delay, (2) the reason for the delay,

(3) the defendant's assertion of his right to a speedy trial,

and (4) prejudice to the defendant resulting from the delay.”

State v. McBride, 187 N.C. App. 496, 498, 653 S.E.2d 218, 220

(2007); see also Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed.

2d 101, 117 (1972).

                            A. Length of Delay

       For speedy trial analysis, the relevant period of delay

begins at indictment.       State v. Friend, ___ N.C. App. ___, ___,

724 S.E.2d 85, 90, disc. review denied, 366 N.C. 402, 735 S.E.2d

188 (2012).     In the present case, the relevant period began 18

January 2011 and ended upon Defendant’s trial, on 1 April 2013.

Thus,   the   relevant     period    for    the   first    Barker   factor    is
                                        -3-
approximately twenty-seven months, from 18 January 2011 to 1

April 2013.

                           B. Reason for the Delay

      As to the reason for the delay, Defendant bears the burden

of “offering prima facie evidence showing that the delay was

caused    by   the   neglect     or   willfulness    of    the    prosecution[.]”

State v. Washington, 192 N.C. App. 277, 283, 665 S.E.2d 799, 804

(2008).    Only after the defendant has carried his burden “must

the State offer evidence fully explaining the reasons for the

delay and sufficient to rebut the prima facie evidence.”                        Id.

The “constitutional guarantee does not outlaw good-faith delays

which are reasonably necessary for the State to prepare and

present its case.”         Id.

      Defendant failed to carry this burden.                     In his brief to

this Court, Defendant concedes there is no “deliberate delay in

an attempt to hamper the defense” by the State.                    In his motion

for a speedy trial, Defendant offered no evidence showing that

the State’s neglect or willfulness caused a delay.                   Furthermore,

in   arguing    to   the    trial     court   that   the   charges     should   be

dismissed for speedy trial violations, defense counsel alleged

merely that “the defense has never, to my knowledge, made a

motion to continue, joined in any motion to continue, asked for

any continuance or delay for this trial.”                   Defendant made no
                                           -4-
allegations as to neglect or willfulness of the State.

      Nevertheless,          the   State       offered     reasons       to    explain      the

delay.       Defendant contends the State’s reasons — a backlog at

the State Bureau of Investigation (“SBI”) crime lab, the SBI’s

failure      to    fully    analyze      the    rape      kit,    other       cases    on   the

docket, the need to have an out-of-county judge, and Defendant’s

motion for a change of venue — “were entirely caused by or under

the control of the [S]tate to rectify.”

      In State v. Tann, 302 N.C. 89, 93, 273 S.E.2d 720, 723

(1981),      a    speedy     trial    case,         the   defendant       moved       for    an

examination        to     determine   competency.           Further       delay       resulted

when defense counsel withdrew.                      The case was calendared for

trial “one or more times” but not reached due to the length of

the calendar.           Id. at 95, 273 S.E.2d at 724.                Our Supreme Court

held that “[a]ll such reasons have been recognized consistently

as valid justification for delay.”                        Id.      “Inherent in every

criminal prosecution is the probability of some delay . . . and

for   that       reason    the   right    to    a    speedy      trial    is    necessarily

relative.”        Id. at 94, 273 S.E.2d at 724.

      As in Tann, there is no indication in the present case that

the State either negligently or purposefully underutilized court

resources.         Accordingly, we conclude the delay was caused by

neutral factors.            Defendant failed to carry his burden to show
                                             -5-
that delay was caused by the State’s neglect or willfulness.

This factor weighs against Defendant’s speedy trial claim.

                C. Assertion of the Right to a Speedy Trial

       Defendant asserted his right to a speedy trial in November

2011.      “Defendant’s failure to assert his right to a speedy

trial, or his failure to assert his right sooner in the process,

does    not    foreclose       his       speedy    trial    claim,     but    does     weigh

against his contention[.]”                  State v. Grooms, 353 N.C. 50, 63,

540     S.E.2d      713,     722    (2000).         In     Grooms,    the     defendant’s

assertion came three years after indictment.                          Id.         This Court

held that his delay in asserting the speedy trial right weighed

against    his      claim.         Id.      In    the    present     case,    Defendant’s

assertion came nearly a year after the indictments, which are

dated 18 January 2011.               Given the relative speed with which he

asserted      the    right,    this       factor    tends    to    weigh     in    favor   of

Defendant’s claim.

                                         D. Prejudice

       The “defendant must show actual, substantial prejudice.”

State v. Spivey, 357 N.C. 114, 122, 579 S.E.2d 251, 257 (2003).

“The    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.”                   State v. Lee, ___ N.C. App. ___,
                                        -6-
___, 720 S.E.2d 884, 893, disc. review improvidently allowed,

366 N.C. 329, 734 S.E.2d 371 (2012) (quoting State v. Webster,

337 N.C. 674, 680-81, 447 S.E.2d 349, 352 (1994)).

    In      the   present       case,    Defendant         argues    he     suffered

“oppressive” pre-trial incarceration in federal prison because

he was “labeled a sex offender by the United States Bureau of

Prisons,”    causing      him    anxiety      and     concern.       However,      as

Defendant acknowledges, he was a federal inmate before the trial

at issue in this case.

    Defendant      next    argues   his       appointed     attorney      “left   the

case,” and Defendant “had an attorney who was forced to play

catch-up.”     However, Defendant does not indicate how his second

attorney was deficient and how that deficiency prejudiced him.

Similarly, in Webster, the defendant “appears to concede that

there has been no actual impairment of her ability to defend

caused by the delay in trial.”                Webster, 337 N.C. at 681, 447

S.E.2d at 352.

    Defendant      also     contends     there      were      “potential    defense

witnesses who were originally ready and willing to testify” who

“became reticent.”        In Lee, the defendant argued his defense was

impaired     because      an    eyewitness       to     the      incident    became

unavailable.      Lee, ___ N.C. App. at ___, 720 S.E.2d at 893.                   The

defendant did not state what evidence he might have obtained.
                                      -7-
Id.   This Court held the defendant failed to show “any actual or

substantial prejudice resulting from the delay.”                       Lee, ___ N.C.

App. at ___, 720 S.E.2d at 893.

      In the present case, Defendant does not explain how the

delay caused reticence or what evidence Defendant would have

elicited had the witnesses testified.                Finally, Defendant notes

that “the victim’s story kept changing between the accusation,

indictment and trial.”       Defendant does not explain how the delay

caused the victim’s story to change or how a changing story

impaired Defendant’s defense.           Because Defendant has not shown

actual, substantial prejudice, this factor weighs against his

claim.

                  E. Balancing of the Barker Factors

      Our   Courts    have   described      a   one-year          trial     delay    as

“presumptively    prejudicial.”        Webster,           337   N.C.   at   678,     447

S.E.2d at 351 (quoting Doggett v. United States, 505 U.S. 647,

652, 120 L. Ed. 2d 520, 528 (1992)).                 However, where the other

factors weigh against a defendant’s claim, our Courts have found

no violation of the right to a speedy trial in a delay of three

years and seven months.        McBride, 187 N.C. App. at 498-99, 653

S.E.2d at 220.       The four Barker factors must be balanced against

one   another.       “No   single    factor     is    regarded         as   either    a

necessary    or   sufficient        condition        to     the    finding     of     a
                                       -8-
deprivation of the right to a speedy trial.”                Id. at 498, 653

S.E.2d at 220.

      In the present case, balancing the Barker factors reveals

Defendant’s right to a speedy trial was not violated.                 Although

the   length   of   delay    was    greater   than   one   year,   Defendant’s

failure to show neglect or willfulness of the State and failure

to argue how his defense was prejudiced weigh heavily against

his claim.     We conclude Defendant’s right to a speedy trial was

not violated.

         II. Allowing the State to Impeach Its Own Witness

      Defendant next argues the trial court erred “by allowing

the State to impeach the credibility of its own witness[,]” Mr.

Stevens, because the trial court allowed the State to “mask

impermissible hearsay as impeachment evidence.”             We disagree.

                            A. Standard of Review

      “Rulings by the trial court concerning whether a party may

attack the credibility of its own witness are reviewed for an

abuse of discretion.”        State v. Banks, 210 N.C. App. 30, 37, 706

S.E.2d 807, 814 (2011).            “Abuse of discretion occurs where the

court’s ruling is manifestly unsupported by reason or is so

arbitrary that it could not have been the result of a reasoned

decision.”     Id. at 38, 706 S.E.2d at 814.
                                      -9-
                                  B. Analysis

      “The credibility of a witness may be attacked by any party,

including the party calling him.”                N.C. Gen. Stat. § 8C-1, Rule

607 (2013).     “[W]hile North Carolina Rule of Evidence 607 allows

a party to impeach its own witness on a material matter with a

prior inconsistent statement, impeachment is impermissible where

it is used as a mere subterfuge to get evidence before the jury

which is otherwise inadmissible.”                 State v. Riccard, 142 N.C.

App. 298, 304, 542 S.E.2d 320, 324 (2001) (citing State v. Hunt,

324 N.C. 343, 349, 378 S.E.2d 754, 757 (1989)).

      “Although unsworn prior statements are not hearsay when not

offered   for   their    truth,     the    difficulty         with   which   a    jury

distinguishes between impeachment and substantive evidence and

the   danger    of      confusion    that        results       has    been    widely

recognized.”    Hunt, 324 N.C. at 349, 378 S.E.2d at 757.

           Circumstances indicating good faith and the
           absence of subterfuge . . . have included
           the facts that the witness’s testimony was
           extensive and vital to the government’s
           case . . . ; that the party calling the
           witness was genuinely surprised by his
           reversal . . . ; or that the trial court
           followed the introduction of the statement
           with       an       effective       limiting
           instruction. . . .

Riccard, 142 N.C. App. at 304, 542 S.E.2d at 324 (alterations in

original).      Our   Supreme     Court     in    Hunt    analyzed     the   State’s

introduction    of    impeachment         evidence       to    determine     if    the
                                             -10-
witness’s testimony either “was critical to the state’s case or

that it was introduced altogether in good faith and followed by

effective limiting instructions.”                       Hunt, 324 N.C. at 351, 378

S.E.2d at 758.

         In   the    case    before    us,       the    State         asked   Mr.   Stevens    on

direct examination about his interview with detectives.                                       Mr.

Stevens testified that he remembered the interview, but that

looking       at    the     video    recording         of       the    interview     would    not

refresh his recollection of what he told the detectives.                                      The

State asked the trial court for permission to treat Mr. Stevens

as   a    hostile      witness      and     to   play       a    video    recording     of    the

interview.           The    State     had    a    video         recording     that    had    been

redacted       to    remove       information      regarding           Defendant     “being    in

prison, the amount of time he spent in prison[,]” and various

rumors.

         Defendant objected to the introduction of the recording,

citing Hunt, supra.                The prosecutor contended that he met with

Mr. Stevens before trial and asked him if he remembered speaking

with      detectives         in     2010    and        that      Mr.     Stevens     responded

affirmatively.             The prosecutor also said that he read portions

of the interview to Mr. Stevens and that Mr. Stevens had no

questions.          The prosecutor then stated:

               [Mr. Stevens] didn’t express to me that he
               was going to refuse to testify.  He didn’t
                                       -11-
            express any interest to me that he was not
            going to cooperate. There was no indication
            of anything -- what he said on the stand
            today, that he wanted to take the Fifth,
            that he didn’t want to testify, that he
            didn’t want to answer questions, that he
            didn’t remember talking to the cops, he
            didn’t remember the specific questions, or
            that he was so intoxicated. . . . None of
            that came up in the short conversation that
            I had with him.

       We need not decide whether the record shows the State was

genuinely    surprised    by    Mr.     Stevens’        reversal       because    the

testimony    was    critical    to    the     State’s    case.         Mr.    Stevens

testified that Defendant is his brother; that he met Ms. Goins

when   he   drove   Defendant    and    dropped    him     off    at    Ms.    Goins’

apartment; that he went into her apartment, observed her there

alone, and stayed for about five minutes before returning home;

that he left Defendant and Ms. Goins alone at her apartment; and

that he returned “[a]bout two or three hours” later to pick up

Defendant because he got a phone call from Ms. Goins.                             Mr.

Stevens’ testimony was critical to the State’s case because Mr.

Stevens had the best opportunity to observe Defendant’s demeanor

and hear his statements just before and just after the alleged

offenses.

       By contrast, in Hunt, the witness’s testimony “consisted

entirely    of   responding    to    challenges    to     her    credibility      and

bias[,]” except for “brief testimony about the color of her
                                        -12-
bicycle, which another of the state’s witnesses thought he had

seen [the] defendant riding[.]”                  Hunt, 324 N.C. at 351, 378

S.E.2d    at   758.       In   the   present     case,       the   record     indicates

impeachment was permissible because Mr. Stevens’ testimony was

vital to the State’s case.

       Furthermore, the trial court both preceded and followed the

introduction of the recording with a limiting instruction.                            As

discussed in Hunt, the use of an effective limiting instruction

weighs    against     the      claim     that        the    State’s    witness        was

impermissibly impeached.             Hunt, 324 N.C. at 349, 378 S.E.2d at

758.     Because the record indicates that Mr. Stevens’ testimony

was    vital   to   the   State’s      case    and    the    trial    court    gave    an

effective limiting instruction, the trial court did not err in

allowing the State to impeach its own witness.

          III. Evidence of Defendant’s Recent Incarceration

       Defendant next argues the trial court erred in admitting

evidence that Defendant “had very recently been incarcerated[.]”

Defendant contends that the admission of evidence of Defendant’s

recent    incarceration        violated       N.C.    Gen.    Stat.    § 8C-1,    Rule

404(b) (2013).

       Although Defendant alleges that the “transcript is replete

with references to [Defendant’s] recent incarceration,” the only

reference Defendant pinpoints in his brief is page 447 of the
                                   -13-
trial transcript.       The testimony relevant to this issue is as

follows:

           [The State]. [W]hy did you -- why did you
           start writing [Defendant] letters at the age
           of 18?

           [Ms. Goins]. My brother,          the     one   that’s
           incarcerated, asked me to.

           [The State]. And       if you know, where was
           [D]efendant  when       you  wrote him   these
           letters?

           [Ms. Goins]. Incarcerated.

                   [Defense   Counsel]. Your Honor, I’m
                   sorry.   At this point I would renew my
                   prior objections that we argued based
                   on   due   process,   under   Article   1,
                   Section   23   of   the   North   Carolina
                   Constitution.

                   The Court: Overruled.

           [The State]. Where was [D]efendant?              Where
           did you send these letters to?

           [Ms. Goins]. To the incarceration where he
           was.

           Q. Was he in jail, prison?

           A. In prison.

                   [Defense Counsel]. I’m sorry, Your
                   Honor, I would note that, that is a
                   standing objection to this line of
                   questioning.

                   The Court: Okay,       standing    objection.
                   It’s overruled.

The   subsequent    examination   reveals   no   details    identifying   or
                                      -14-
describing the conviction or convictions that led to Defendant’s

incarceration.

      Rule 404(b) governs the admission of evidence “of other

crimes,   wrongs,     or   acts[.]”      N.C.G.S.      § 8C-1,    Rule    404(b).

Defendant cites State v. McClain, 240 N.C. 171, 81 S.E.2d 364

(1954), for support of his argument.              In McClain, our Supreme

Court noted that “[p]roof that a defendant has been guilty of

another crime equally heinous prompts to a ready acceptance of

and belief in the prosecution’s theory that he is guilty of the

crime charged.”       Id. at 174, 81 S.E.2d at 366.

      However,   in    the    present   case,    the   State     introduced     no

evidence of other crimes, wrongs, or acts.                Rather, the State

elicited testimony from Ms. Goins regarding why she corresponded

via   postal   mail    with   Defendant.        Defendant   offers       no   case

holding that discussing merely the fact of recent incarceration

amounts   to     evidence     of     other   crimes,     wrongs,     or       acts.

Furthermore, our research reveals no case holding that recent

incarceration, in and of itself, amounts to evidence of other

crimes, wrongs, or acts.           Defendant therefore has not shown that

the trial court erred on the basis of violation of N.C.G.S.

§ 8C-1, Rule 404(b).

                       IV. State’s Closing Remarks

      Defendant next argues the trial court erred in allowing the
                                        -15-
State to “comment on [Defendant’s] invocation of his right to

remain silent[.]”      We disagree.

      “A criminal defendant cannot be compelled to testify, and

any   reference   by   the      State   regarding    his   failure      to    do   so

violates an accused’s constitutional right to remain silent.”

State v. Reid, 334 N.C. 551, 554, 434 S.E.2d 193, 196 (1993).

However,   in   the    present     case,    the    State   did   not    refer      to

Defendant’s     failure    to    testify.      The    relevant    part       of    the

State’s closing is as follows:

            [The State]. And again, [D]efendant doesn’t
            have to testify. He has the right to remain
            silent, you can’t hold that against him, and
            the judge is going to instruct you on that,
            and you know that already. But again, kind
            of like earlier this week when I got up and
            told you, if their defense was these two
            judgments don’t belong to [D]efendant, they
            could have presented --

                 [Defense         Counsel].       Objection,     your
            Honor.

                   The Court: Overruled.

            [The State]. You have heard no evidence
            contrary   to   the   fact  that   this   is
            [D]efendant, and both of these judgments are
            [D]efendant.

      “The prosecution may comment on a defendant’s failure to

produce    witnesses      or    exculpatory    evidence    to    contradict        or

refute evidence presented by the State.”              Id. at 555, 434 S.E.2d

at 196.     As shown above, the State actually noted Defendant’s
                                       -16-
right   to    remain   silent,   rather       than    highlighting       Defendant’s

failure to testify.         Furthermore, the State commented on the

failure      to   present   evidence    that         the   two   prior    judgments

relevant to Defendant’s violent habitual felon status did not

belong to Defendant, which is permissible under Reid.                     The trial

court did not err in allowing the State’s comment.

    No error.

    Judges HUNTER, Robert C. and ELMORE concur.
