State v. Armistead, ___ N.C. App. ___, 807 S.E.2d 664 (Nov. 7, 2017)

(1) In this impaired driving case, the court rejected the defendant’s argument that his speedy trial rights were violated due to a four year delay between indictment and trial. Considering the speedy trial factors, the court found that the length of delay weighed in the defendant’s favor. The second factor—the reason for the delay—also weighed in the defendant’s favor. Here, the delay could have been avoided by reasonable effort by the State. It was undisputed that on the date the defendant failed to appear in court and on the date four months later when the prosecutor removed the case from the docket, the fact that the defendant was incarcerated was readily discernible by a search of the Department of Public Safety’s Offender Public Information website and through other online databases used by prosecutors. Thus, the State’s failure to discover the defendant’s whereabouts--in its own custody--resulted from the prosecutor’s negligence by not checking readily available information. With respect to the third factor—the defendant’s assertion of his right—trial counsel acknowledged that there was no record of receipt by the clerk’s office of any communication from the defendant until more than three years after the defendant’s case was removed from the court docket. Based on the evidence presented, the court rejected the defendant’s assertion that he had made prior attempts to assert his right. For example, while he testified that he had asserted his right in a letter to the Clerk, he was unable to produce a copy of the letter and no letter was found in the Clerk’s file. In light of the lack of evidence that the defendant’s claimed assertions of his speedy trial right reached the proper court officials or the prosecutor until three years after he first failed to appear in court, this factor was neutral. Turning to prejudice, the court concluded that, despite his arguments to the contrary, the defendant was unable to show actual, substantial prejudice. (2) The trial court did not err by denying the defendant’s motion to dismiss pursuant to G.S. 15A-711. The State Supreme Court has held that failure to serve a G.S. 15A-711 motion on the prosecutor as required by the statute bars relief for a defendant. The court rejected the defendant’s assertion that certain letters he sent were properly filed written requests sufficient to satisfy the statute.