RALEIGH — In a rare ruling, North Carolina’s second highest court found that the state had violated the constitutional right of a Durham man whose case took nearly five years to come to trial.
The N.C. Court of Appeals ruled the man’s rights had been violated and ordered his conviction vacated and all charges dismissed with prejudice.
The U.S. and N.C. constitutions specifically guarantee the right to a speedy trial. In its ruling on Sept. 2, the N.C. Court of Appeals found “overwhelming evidence that the delay could have been avoided if the State had exercised even the slightest care during the course of this prosecution” and suggested that another man could have been guilty in the case.
On May 30, 2002, Frankie Washington was arrested by Durham police in connection with a home invasion by a gunman. His case would not come to trial, however, until February 2007. A jury convicted Washington of burglary, kidnapping, robbery, and sex offense charges, for which he was sentenced to at least 48 years in prison.
Upon appeal, Washington argued that the lengthy delay violated his right to a speedy trial under both the Sixth Amendment of the U.S. Constitution and Article I, Section 18 of the state Constitution.
In a 1972 case called Barker v. Wingo the U.S. Supreme Court laid out a framework for analyzing such speed-trial claims. This balancing test involved four inter-related factors:
(1) the length of the delay;
(2) the reason for the delay;
(3) the defendant’s assertion of his right to a speedy trial;
(4) prejudice to defendant resulting from the delay.
The mere fact that someone waits a long time for their case to come to trial does not in itself mean a violation of a right to a speedy trial has occurred. Rather, such delay acts as a trigger that allows the other three factors to be examined by the courts. The state conceded that the nearly five years between Washington’s arrest and trial was sufficiently long to conduct such an analysis.
In its ruling, the Court of Appeals found that the other three factors all weighed in Washington’s favor.
The appeals court was particularly troubled by the delay in this case, most of which was associated with having evidence tested by the SBI. The police recovered a purse, a PDA and attachments take in the home invasion, a sawed-off shotgun, a bandanna, and fecal matter found at a park later on the day of the crime. A black toboggan was recovered in an alleyway between the house and the park.
Although some of the items were promptly sent to the SBI for examination, the purse and toboggan were not submitted by the Durham District Attorney’s Office for testing until August 2005 despite a court order March 2004 that they be examined as quickly as possible. Neither the purse nor the toboggan had material consistent with Washington. Both did, however, contain fingerprints or DNA from someone other than the victims and Washington. The District Attorney’s Office also failed to inform the SBI and the Durham Police Department of the court order mandating testing.
The Court of Appeals also questioned why the SBI lab had not compared the samples to that of Lawrence Hawes, who is in prison for a series of similar home invasions in the same part of Durham at the same time, despite a defense request to do so. In one case, Hawes entered a house with a bandanna on and pointed a sawed-off shotgun at a victim before raping and robbing her. It’s the SBI’s policy to not compare fingerprints to anyone other than a known suspect unless there specifically requested to do so by prosecutors or police.
“We conclude that the State’s failure to request that such comparisons be made is evidence of the State’s repeated neglect of this case over the course of the prosecution,” Judge Doug McCullough wrote for the Court of Appeals.
The appeals court also noted that Washington asserted his right to a speedy trial through a formal motion to dismiss the charges in August 2005 and informally via motions to expedite SBI testing in October 2002 and March 2004.
The Court of Appeals addressed where the delay might have affected the trial’s outcome. They found that it easily could have.
“Here, there is evidence that the near five-year pretrial delay resulted in actual particularized prejudice to defendant, which we must weigh heavily in defendant’s favor,” McCullough wrote.
The appeals court found the lengthy delay had impaired Washington’s defense because witnesses could not recall details of what happened. That was particularly important because there was no physical evidence tying him to the crime. The state’s case was based entirely upon victim and police testimony.
The police officers involved recalled little beyond what was in their notes. While about $150 was taken in the burglary, the officers couldn’t recall with certainty whether Washington had money on him when he was arrested. They also couldn’t remember details such as the weight and height of the person they were supposed to be looking for.
Likewise, the victims couldn’t remember the conditions under which they first identified Washington as their assailant immediately after he was arrested, although they were sure at trial that he was the perpetrator.
“Given the length of the delay, defendant’s repeated efforts to expedite his trial, the overwhelming evidence that the delay could have been avoided if the State had exercised even the slightest care during the course of this prosecution, and the fact that this delay actually prejudiced defendant at trial, there is not one Barker factor that weighs in favor of the State,” McCullough wrote.
“Therefore, after applying the Barker balancing test to the exceptional and unprecedented facts of this case, we have no choice but to conclude that defendant has been deprived of a right specifically affirmed in both our state and federal constitutions. As such, we must vacate defendant’s convictions and dismiss all charges with prejudice.”
Court of Appeals decisions are binding interpretations of state law unless overturned by the N.C. Supreme Court. Because the decision by the three-judge panel of the appeals court panel was unanimous, the high court is not required to hear the case.
The case is State v. Washington, (07-1517).
Michael Lowrey is an associate editor of Carolina Journal.