Criminal Practice — Constitutional – Speedy Appeal – Transcript Delay

Even though the court reporter’s ten extension requests resulted in a yearlong delay in defendant’s appeal, our application of the factors from Barker v. Wingo, 407 U.S. 514 (1972), shows that the delay in processing defendant’s appeal did not rise to the level of a due process violation.

We find no error or plain error in defendant’s convictions for discharging a weapon into an occupied moving vehicle, assault with a deadly weapon with intent to kill, attempted-first-degree murder and possession of a firearm by a felon.

The one-year delay in processing defendant’s appeal is sufficient to trigger review of the remaining Barker factors. However, since the delay was due to neutral factors, and not due to neglect or willfulness of the state, the court reporter’s delay does not weigh in defendant’s favor.

Defendant did not assert his right to a speedy appeal prior to his brief on appeal. Defendant’s failure to formally and affirmatively assert his speedy appeal right weighs against his contention that he has been unconstitutionally denied a speedy appeal.

Finally, we consider defendant’s allegations of prejudice in light of the interests protected by the right to a speedy appeal: (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. Courts will not presume that a delay in prosecution has prejudiced the accused.

Concerning the first two interests, defendant asserts that his incarceration during the Covid-19 pandemic was “uniquely stressful and oppressive.” Concerning the third interest, defendant argues that the delay diminished his memory of the events and hindered his ability to correct mistakes in the transcript, thereby prejudicing his appeal.

Defendant’s general allegations of faded memory are not sufficient to show prejudice resulting from delay. Defendant has failed to show that evidence lost by delay was significant and would have been beneficial. Further, the transcript eventually prepared and made available to the parties was adequate to allow full development of appeal issues. Acknowledging defendant’s allegation of stress caused by incarceration during the pandemic, we find that defendant has failed to show prejudice resulting from the delay.

After balancing the four factors set out above, we hold that the delay in processing defendant’s appeal did not rise to the level of a due process violation.

In its instructions to the jury on the charge of attempted murder, the trial court told the jury that it could infer malice if the state proved that defendant had intentionally inflicted a wound upon the victim with a deadly weapon. Since there was no evidence that the victim was physically wounded, the state could not meet its burden of proving that defendant intentionally inflicted a wound upon the victim; therefore, the jury was not permitted to infer malice. We cannot say that the challenged jury instruction had a probable impact on the jury’s finding that defendant was guilty.

No plain error; no error.

State v. Neal (Lawyers Weekly No. 011-214-21, 22 pp.) (Allegra Collins, J.) Appealed from Alamance County Superior Court (David Lambeth, J.) Mary Carla Babb for the state; Meghan Adelle Jones for defendant. 2021-NCCOA-656