An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-339
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
STATE OF NORTH CAROLINA
v. Davie County
No. 11 CRS 050117
LARRY THOMAS MCGEE
Appeal by defendant from order entered 11 October 2013 by
Judge J. Lynn Gullet and judgment entered 11 October 2013 by
Judge Theodore S. Royster, Jr. in Davie County Superior Court.
Heard in the Court of Appeals 10 September 2014.
Attorney General Roy Cooper, by Special Deputy Assistant
Attorney General Neil Dalton, for the State.
Kevin P. Bradley, for defendant.
ELMORE, Judge.
Larry Thomas McGee (defendant) appeals from an order
denying his pre-trial motion to suppress all evidence obtained
as the result of an unlawful seizure. Defendant preserved the
denial of his pre-trial motion for appellate review by timely
objecting to the admission of such evidence at trial. Defendant
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also appeals from judgment entered following his conviction for
driving while impaired (DWI), which ordered that he serve twelve
months of imprisonment, suspended, and be placed on eighteen
months of supervised probation. After careful consideration, we
affirm the pre-trial order and hold that defendant received a
trial free from prejudicial error.
I. Facts
On 30 January 2011, defendant was charged with DWI by
Trooper Whitener of the North Carolina State Highway Patrol.
The case proceeded to trial in Davie County District Court
(District Court), and defendant was found guilty after a bench
trial. Defendant appealed his conviction to Davie County
Superior Court (Superior Court) and filed a motion to suppress
evidence as a result of an unreasonable seizure and asserted his
right to a speedy trial by filing a motion to dismiss based on a
denial of his constitutional right to a speedy trial.
During the suppression hearing, defendant’s sister, Dana
Conrad, testified that she had previously recorded Trooper
Whitener’s entire testimony during the District Court trial on a
smartphone. Defendant offered the recording into evidence for
the purpose of refreshing Trooper Whitener’s recollection and to
impeach his testimony, but the State objected. Judge J. Lynn
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Gullet sustained the State’s objection, ruling that defendant
failed to sufficiently authenticate the recording.
Conrad also testified that on the night of defendant’s
arrest, she recorded a video of Trooper Whitener conducting
field sobriety tests on defendant. Defendant attempted to offer
the video into evidence, over the State’s objection, to impeach
Trooper Whitener’s testimony. Judge Gullet again sustained the
State’s objection and refused to admit the video. After all of
the evidence was presented on the motion to suppress, Judge
Gullet denied defendant’s motion. She also denied defendant’s
motion to dismiss for lack of a speedy trial.
II. Analysis
a.) Constitutional Violation
Defendant first contends that he was denied a fair
suppression hearing because Judge Gullet’s refusal to admit the
audio and video recordings into evidence violated his sixth
amendment constitutional right to confront his accuser and
adverse witnesses. We dismiss this argument on appeal.
N.C. Appellate Procedure Rule 10(a)(1) mandates that “[i]n
order to preserve an issue for appellate review, a party must
have presented to the trial court a timely request, objection,
or motion, stating the specific grounds for the ruling the party
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desired the court to make if the specific grounds were not
apparent from the context.” N.C. R. App. P. 10(a)(1).
Accordingly, “where a theory argued on appeal was not raised
before the trial court, the law does not permit parties to swap
horses between courts in order to get a better mount in the
reviewing court.” State v. Ellis, 205 N.C. App. 650, 654, 696
S.E.2d 536, 539 (2010) (citations and quotation marks omitted).
This general rule applies to constitutional questions, as
constitutional issues not raised before the trial court “will
not be considered for the first time on appeal.” Id. (citation
omitted).
During the pre-trial motion to suppress, defendant argued
that the recordings should be admitted because they were
sufficiently authenticated. At no point did defendant contend
that his constitutional rights would be violated as a result of
Judge Gullet’s refusal to consider the recordings. Thus,
defendant has not preserved this issue on appeal, and we dismiss
this argument. See id. (dismissing the defendant’s argument on
appeal that his constitutional rights were violated by the trial
court’s denial of his motion to continue because the
“[d]efendant’s argument to the trial court was limited to the
issue of obtaining an expert witness on identification”).
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b.) Audio Recording
Next, defendant argues that Judge Gullet committed
prejudicial error in ruling that the audio recording of Trooper
Whitener’s trial testimony in District Court was inadmissible
during the motion to suppress in Superior Court. We disagree.
We review this issue de novo because Judge Gullet refused
to admit the audio recording into evidence on the basis that it
was not properly authenticated. See State v. Crawley, 217 N.C.
App. 509, 515, 719 S.E.2d 632, 637 (2011) (“A trial court’s
determination as to whether a document has been sufficiently
authenticated is reviewed de novo on appeal as a question of
law.”).
Pursuant to North Carolina Rule of Evidence 901, “[t]he
requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient
to support a finding that the matter in question is what its
proponent claims.” N.C. Gen. Stat. § 8C-1, Rule 901(a) (2013).
All that is required to authenticate an audio tape recording is
“[a] witness’ testimony as to the identity of the declarant
based on personal knowledge[.]” State v. Mobley, 206 N.C. App.
285, 289, 696 S.E.2d 862, 865 (2010) (citations and quotation
marks omitted).
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Here, it was established that Conrad had a smartphone
capable of making an audio and video recording. Thereafter, the
following colloquy occurred between defendant’s attorney and
Conrad in an attempt to authenticate the audio recording.
Q. DID YOU HAVE OCCASION TO ATTEND YOUR
BROTHER’S DISTRICT COURT TRIAL IN THIS
MATTER?
A. YES, SIR.
Q. AND WHEN YOU ATTENDED YOUR YOUNGER
BROTHER’S DISTRICT COURT TRIAL IN THIS
MATTER, DID YOU HAVE AN AUDIO RECORDING
DEVICE IN YOUR POSSESSION?
A. YES, SIR.
Q. WAS IT THE SMART PHONE OR SOMETHING ELSE?
A. IT WAS THE SMART PHONE, I BELIEVE, YES.
Q. AND DID YOU MAKE AN AUDIO TAPE OF THE
DISTRICT COURT TRIAL?
A. YES, I DID.
Q. AND SPECIFICALLY DID YOU MAKE AN AUDIO
TAPE OF THE TESTIMONY OF THE STATE TROOPER
AT THAT TRIAL?
A. YES, SIR.
Q. DID YOU RECORD THE ENTIRE QUESTIONS AND
ANSWERS OF HIM BY THE PROSECUTING ATTORNEY
AND BY HIS DEFENSE ATTORNEY?
A. YES, SIR.
Q. AND JUST FOR THE RECORD, DO YOU KNOW THE
IDENTITY OR DO YOU KNOW THE IDENTITY OR NAME
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OF MR. MCGEE’S DEFENSE ATTORNEY IN THE
DISTRICT COURT?
A. I BELIEVE IT WAS -- HE GOES BY CHUCK
ALEXANDER, BUT CHARLES ALEXANDER, YES, SIR.
Q. AND AFTERWARDS, DID YOU HAVE OCCASION TO
REVIEW THE AUDIO RECORDING OF THE QUESTIONS
AND ANSWERS AT THE DISTRICT COURT TRIAL?
A. YES, SIR.
Q. NOW, DO YOU HAVE WITH YOU THE CAPABILITY
OF SHOWING THE COURT THE AUDIO -- STRIKE
THAT -- SHOWING THE COURT THE VIDEO . . .
AND ALSO PLAYING THE AUDIO?
A. YES.
Q. ALL RIGHT. THE DEVICE YOU HAVE TO DO THAT
IS A COMPUTER?
A. YES.
Q. HAVE YOU TESTED THE COMPUTER TO SEE IF IT
COULD PLAY THESE ITEMS?
A. AS OF A FEW MINUTES AGO IT WAS STILL
WORKING. YES. I HAVE TESTED IT.
Q. OKAY.
. . .
Q. FIRST OF ALL, THE VIDEO, IS THAT ACTUALLY
INSIDE THE COMPUTER OR DO YOU HAVE IT SO YOU
CAN HAVE IT IN YOUR HANDS?
A. AS OF RIGHT NOW IT’S INSIDE THIS COMPUTER
(INDICATING).
Q. WHAT ABOUT THE AUDIO TAPE?
A. YES. IT IS ALSO INSIDE THAT COMPUTER.
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Defendant then moved to admit the audio recording into
evidence.
Conrad’s testimony shows that she attended defendant’s
District Court trial, heard all of Trooper Whitener’s testimony,
recorded his testimony on a smartphone, reviewed the audio
recording, and was able to play the recording through her
computer. Thus, defendant properly authenticated the audio
recording as a matter of law. See State v. Baker, 112 N.C. App.
410, 418, 435 S.E.2d 812, 817 (1993) (holding that a party met
its burden of authentication because two witnesses “identified
the tape and listened to it, testifying that the tape was a fair
and accurate recordation of the conversation they held with
defendant”); see also State v. Stager, 329 N.C. 278, 317, 406
S.E.2d 876, 898 (1991) (“The testimony of the four witnesses
that the tape recording contained the voice of [defendant] was
sufficient to meet the . . . burden of authentication under Rule
901.”).
Although Judge Gullet erred by failing to admit the audio
recording on the basis of insufficient authentication, defendant
must still show that the error was prejudicial. See State v.
Chavis, 141 N.C. App. 553, 566, 540 S.E.2d 404, 414 (2000) (“The
erroneous admission of evidence requires a new trial only when
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the error is prejudicial.”). Other than constitutional errors,
an error is prejudicial “when there is a reasonable possibility
that, had the error in question not been committed, a different
result would have been reached at the trial out of which the
appeal arises.” Ellis, 205 N.C. App. at 657-58, 696 S.E.2d at
541 (citation and internal quotation marks omitted).
Even though Judge Gullet failed to admit the audio
recording into evidence, defendant cross-examined Trooper
Whitener about the inconsistencies between his testimony in
District Court and testimony provided during the motion to
suppress in Superior Court. Moreover, defendant’s attorney
questioned Conrad about Trooper Whitener’s testimony in District
Court, including his testimony regarding defendant’s location
when he arrived on the scene and where the patrol cars were
parked.
Thus, in lieu of the audio recording, defendant had the
opportunity to elicit similar impeachment evidence through
Trooper Whitener’s cross-examination and Conrad’s testimony. As
such, we hold that defendant failed to show prejudicial error in
Judge Gullet’s failure to admit the audio recording.
c.) Video Recording
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Defendant also argues that Judge Gullet committed
prejudicial error by failing to admit the video recording into
evidence. We disagree.
In light of the analysis above pertaining to the audio
recording, even if Judge Gullet erred in failing to admit the
video recording into evidence, such error was not prejudicial.
Conrad testified in detail as to the very issues defendant
sought to bring to Judge Gullet’s attention through the video—
Trooper Whitener’s administration of the field sobriety tests
and defendant’s ability to walk without swaying. Specifically,
Conrad testified that Trooper Whitener’s testimony about his
administration of the horizontal gaze nystagmus test was
inaccurate because he
said he held his finger for four seconds on
each side twice. That did not happen. It
might have happened one time for a full four
seconds[.] . . . [O]ne of the things I
noticed about his testimony was that he said
he specifically is looking for eye movements
and jerking. And when my brother, when he
put his finger here (indicating), he went
like this (demonstrating) or more up like
this (demonstrating), which would have made
someone jerk their eyes.
Conrad further stated that “[w]here they took him to do the
other test, there wasn’t very much lighting where he would need
to walk to see.” She also testified that defendant walked
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without swaying, and contrary to Trooper Whitener’s testimony,
defendant only lost his balance once during the walk-and-turn
field sobriety test. Thus, defendant impeached Trooper
Whitener’s testimony without the video recording. Any error by
Judge Gullet in her failure to admit the video recording into
evidence was not prejudicial.
d.) Speedy Trial
Lastly, defendant argues that the State violated his
constitutional right to a speedy trial. We disagree.
“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), appeal dismissed and
disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010); see
also Piedmont Triad Reg’l Water Auth. v. Sumner Hills Inc., 353
N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (“[D]e novo review is
ordinarily appropriate in cases where constitutional rights are
implicated.”).
“The right of every person formally accused of crime to a
speedy and impartial trial is secured by the fundamental law of
this State and guaranteed by the Sixth Amendment to the federal
constitution, made applicable to the State by the Fourteenth
Amendment.” State v. McKoy, 294 N.C. 134, 140, 240 S.E.2d 383,
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387-88 (1978) (citations omitted). The only remedy for a denial
of the right to a speedy trial is a dismissal of the criminal
charges. Id. at 140, 240 S.E.2d at 388. In reviewing a
defendant’s claim that the State denied his constitutional right
to a speedy trial, this Court uses “a balancing test in which
the court weighs the conduct of both the prosecution and the
defendant.” Id. We must consider four factors: “(1) the length
of the delay; (2) the reasons for the delay; (3) the defendant’s
assertion of his rights; and (4) the prejudice to the
defendant.” State v. Bare, 77 N.C. App. 516, 519, 335 S.E.2d
748, 750 (1985) (citation omitted). “The length of a delay”
factor alone “is not determinative of whether a violation has
occurred.” Id. (citation omitted). Instead, the “issue must be
resolved on the facts of each case, and the defendant has the
burden of establishing that the delay was purposeful or
oppressive or by reasonable effort could have been avoided by
the State.” Id. (citations and quotation marks omitted).
We now address each of the four factors to determine
whether defendant’s right to a speedy trial was violated.
1. Length of the Delay
We must first determine the relevant time period of delay.
This Court has held that when a defendant has a trial in
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District Court but fails to file a motion for a speedy trial,
“the time for computing the delay runs from his appeal from
District Court to Superior Court . . . until his trial in
Superior Court[.]” State v. Friend, ___ N.C. App. ___, ___, 724
S.E.2d 85, 90 (2012), writ denied, review denied, appeal
dismissed, 366 N.C. 402, 735 S.E.2d 188 (2012). We only analyze
the three remaining factors “[i]f the length of delay approaches
one year[.]” Id.
Here, defendant never filed a speedy trial motion in
District Court, was found guilty of DWI after a trial in
District Court, gave notice of appeal from his District Court
conviction on 19 March 2012, and his trial in Superior Court
commenced on 8 October 2013. Thus, his right to a speedy trial
was delayed almost nineteen months. However, this delay does
not result in an automatic determination that defendant’s right
to a speedy trial was violated. See State v. Webster, 337 N.C.
674, 678, 447 S.E.2d 349, 351 (1994) (“The length of the delay
is not per se determinative of whether a speedy trial violation
has occurred.”). Rather, the delay triggers our consideration
of the remaining three factors. See Friend, supra.
2.) Reasons for the Delay
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Under the second factor, defendant carries the burden to
establish that “the delay was caused by the neglect or
willfulness of the State.” Friend, ___ N.C. App. at ___, 724
S.E.2d at 90 (citation and internal quotation marks omitted).
Upon review of the transcript, record, and Judge Gullet’s
findings of fact, the reasons for delay were not a result of
prosecutorial neglect or willfulness. Defendant did not obtain
an attorney of record until 22 May 2012, approximately two
months after defendant gave notice of appeal to Superior Court.
The State provided discovery to defendant on 4 June 2012, the
next available term of Superior Court. Davie County Criminal
Superior Court is generally only held once every other month.
After defendant indicated his intent to file pre-trial motions,
the State waited before calendaring the matter for trial. Such
action was a valid reason for delay because if Judge Gullet
granted defendant’s motion, it would have been dispositive to
the case’s outcome. See State v. Hammonds, 141 N.C. App. 152,
160, 541 S.E.2d 166, 173 (2000) aff’d, 354 N.C. 353, 554 S.E.2d
645 (2001) (“The constitutional guarantee does not outlaw good-
faith delays which are reasonably necessary for the State to
prepare and present its case[.]”).
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Defendant filed a pre-trial motion to suppress and a motion
to dismiss on 7 January 2013, six months after indicating his
intent to conduct motions pre-trial, and the State immediately
calendared those motions for hearing, but they were not reached
due to other pending trials. The pre-trial motions were finally
heard during the 22 July 2013 session of Superior Court, and
after Judge Gullet denied each of defendant’s motions, the
State calendared the matter for trial. The record also
indicates that defendant’s attorney filed a designation of
secured leave, indicating that he would be unavailable for any
Superior Court proceeding for three calendar weeks from 29 July
2013 until 16 August 2013.
Thus, defendant failed to establish that the delay was a
result of the State’s negligence or willfulness in light of the
various reasons for the delay, including defendant’s
contribution to the delay and the limited sessions of criminal
Superior Court in Davie County.
3.) Defendant’s assertion of his rights
It is well established that a “defendant’s failure to
assert his right to a speedy trial sooner in the process does
not foreclose his speedy trial claim, but does weigh against his
contention that he has been denied his constitutional right to a
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speedy trial.” Hammonds, 141 N.C. App. at 162, 541 S.E.2d at
174 (citations and internal quotation marks omitted). For this
factor, we “presume that the delay is computed from the filing
of the initial charge[.]” Friend, __ N.C. App. at __, 724
S.E.2d at 90.
Here, defendant asserted his speedy trial right on 25 July
2013 when he filed a motion to dismiss for lack of a speedy
trial. He concedes that up until the filing of that motion he
had not “affirmatively assert[ed] his speedy trial right in this
case[.]” Defendant was charged with DWI on 30 January 2011,
over two years and six months before he asserted his speedy
trial right. Thus, this third factor weighs against him.
4.) Prejudice to Defendant
Defendant carries the burden to prove prejudice resulting
from the delay of his trial. Hammonds, 141 N.C. App. at 163,
541 S.E.2d at 175. We determine whether defendant was
prejudiced by the delay of his trial by analyzing whether
defendant experienced oppressive pre-trial incarceration,
anxiety and concern, and impairment to his defense. State v.
Washington, 192 N.C. App. 277, 291, 665 S.E.2d 799, 808 (2008)
(citation omitted). Of these three considerations, “the most
serious is the last, as the inability of a defendant adequately
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to prepare his case skews the fairness of the entire system.”
Id. (citation and quotation marks omitted). We also note that
“the need to demonstrate prejudice diminishes as the
egregiousness of the delay increases.” Id.
In his brief, however, defendant does not argue that he was
prejudiced as a result of the delay in his trial. He merely
contends that the State denied his constitutional guarantee to a
speedy trial by calendaring the case for trial over a year after
defendant’s counsel appeared for the first time in Superior
Court. Even if we accept defendant’s argument as true, he must
still argue that prejudice occurred based on pre-trial
incarceration, anxiety and concern, or impairment to his
defense. We cannot make defendant’s argument for him. See
Hammonds, 141 N.C. App. at 162, 541 S.E.2d at 174-75 (addressing
only the “impairment to defense” inquiry because the defendant
argued in his appellate brief that he was prejudiced solely by
this third factor).
However, even upon review of the record, transcripts, and
Judge Gullet’s findings of fact, defendant failed to establish
prejudice.
Defendant was not incarcerated before trial. Thus, he
suffered no oppressive pre-trial incarceration.
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Defendant argued to Judge Gullet that the pending case
caused anxiety and concern because he could not sleep, it
prevented him from applying for better employment, and he could
not obtain legal custody of his daughter. While the sleep and
job situations weigh in favor of defendant’s position, defendant
maintains physical custody of his daughter and she lives with
him full-time. Although defendant demonstrated an appreciable
level of anxiety and concern, we give marginal weight to this
factor in determining prejudice. See Webster, 337 N.C. at 681,
447 S.E.2d at 352 (“Although [anxiety and concern] are the
kinds of things the speedy trial right exists to prevent, they
do not loom as large as actual impairment of the defendant’s
ability to defend against the criminal charges themselves.”).
Finally, defendant argued to Judge Gullet that he exhibited
an impairment to his defense because some personal notes
regarding the case were stolen. However, he testified that all
of his witnesses were still available and he remembered the case
details. Moreover, several affidavits in the court file detail
the witnesses’ memories and recollection of the events.
Accordingly, defendant has not shown an impairment to his
defense as a result of the trial delay.
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In sum, after conducting a balancing test by considering
the length of the delay, the reasons for the delay, the timing
of defendant’s assertion of his rights, and the prejudice to
defendant, we hold that the State did not deny defendant’s
constitutional right to a speedy trial.
III. Conclusion
We dismiss defendant’s argument that he was denied a fair
suppression hearing due to a violation of his sixth amendment
constitutional rights because the constitutional issue was never
raised before the trial court. We affirm Judge Gullet’s order
denying defendant’s motion to suppress because she did not
commit prejudicial error in failing to admit the audio and video
recordings into evidence. Finally, we hold that the State did
not violate defendant’s constitutional right to a speedy trial.
Affirmed, in part, no prejudicial error, in part.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).