On discretionary review of a unanimous opinion of the Court of Appeals, 274 N.C. App. 65 (2020), the Supreme Court held in this Rowan County case that the trial court plainly erred by admitting testimony that violated the defendant’s attorney-client privilege and consequently reversed the trial court’s order relying on that testimony in denying the defendant’s motion to dismiss on speedy trial grounds.

The defendant was represented by four different attorneys over the six-year period from his arrest in June 2012 to his trial in October 2018 on various charges, including second-degree murder and attaining violent habitual felon status, arising from his involvement in a fatal motor vehicle crash in 2012. At a September 2018 hearing on the defendant’s speedy trial motion to dismiss, the trial court admitted testimony without objection from one of the defendant’s former attorneys, Davis, concerning his representation of the defendant and their communications about Davis’s strategic decision to delay the defendant’s trial. The Supreme Court determined that it was plain error to admit this testimony as it violated attorney-client privilege and served as the sole basis for the trial court’s conclusion in a Barker inquiry that the presumption of prejudice from the six-year delay between arrest and trial was rebutted.  The Court rejected the State’s argument that the defendant waived the privilege by filing a pro se IAC motion, explaining that the motion was a “legal nullity” given that the defendant was represented by counsel at the time and thus “was not allowed to file pro se motions.” The Court went on to explain that the trial court had misapplied the proper standard for evaluating prejudice to a defendant resulting from a delayed trial by (1) assessing the prejudice of the delay to the State’s case and (2) concluding that the defendant was not prejudiced because he did not prove actual prejudice. The Court remanded the case for the trial court to consider any competent non-privileged evidence while applying the balancing framework and proper prejudice standard from Barker v. Wingo.

Justice Berger, joined by Chief Justice Newby and Justice Barringer, dissented, expressing the view that the majority improperly shifted the burden of proof from the defendant to the State and eliminated the Barker requirement that a defendant demonstrate prejudice caused by the delay.  The dissent also expressed the view that the defendant had waived his attorney-client privilege.