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
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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
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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
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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
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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. ___,
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___, 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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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.