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NO. COA07-1517 FOURTEENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
*************************************
STATE OF NORTH CAROLINA )
) From Durham County
vs. ) No. 02 CRS 48600-48604
) 02 CRS 48607-48608
FRANKIE DELANO WASHINGTON )
******************************
DEFENDANT-APPELLANT’S BRIEF
******************************
ii
INDEX
TABLE OF CASES AND AUTHORITIES. . . . . . . . . . . . . . . .iii
QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . .4
JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . .7
ARGUMENTS:
1. THE TRIAL COURT DENIED THE DEFENDANT A FAIR AND SPEEDY
TRIAL AS GUARANTEED BY THE FIFTH AND SIXTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND ARTICLE I OF THE
NORTH CAROLINA CONSTITUTION WHEN THE TRIAL COURT DENIED
THE DEFENDANT’S MOTION TO DISMISS FOR DENIAL OF A SPEEDY
TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . .8
2. THE TRIAL COURT ERRED IN FAILING TO DISMISS DUE TO
THE INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF FIRST-
DEGREE BURGLARY IN CASE NUMBER 02 CRS 48600. . . . . . . 19
3. THE TRIAL COURT ERRED IN FAILING TO DISMISS DUE TO
THE INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF KIDNAPPING
OF MARY BREEZE IN CASE NUMBER 02 CRS 48601. . . . . . . .21
4. THE TRIAL COURT ERRED IN FAILING TO DISMISS DUE TO
THE INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF SIMPLE
ASSAULT OF WILLIAM BREEZE IN CASE NUMBER 02 CRS 48603. . 26
5. THE TRIAL COURT ERRED IN FAILING TO DISMISS DUE TO
THE INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF SECOND-
DEGREE KIDNAPPING OF WILL BREEZE IN CASE NUMBER 02
CRS 48604. . . . . . . . . . . . . . . . . . . . . . . . 27
6. THE TRIAL COURT ERRED IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF FIRST-DEGREE
SEXUAL OFFENSE AS CHARGED IN 02 CRS 48607. . . . . . . . 30
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 33
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . 36
iii
TABLE OF CASES AND AUTHORITIES
Barker v. Wingo, 407 US 514, 92 SCt 2182, 33 LEd2d 101 (1972).11
Dickey v. Florida, 398 US 30, 90 SCt 1564, 26 LEd2d 26 (1970).17
Doggett v. United States, 505 US 647, n.1, 112 SCt 2686, n.1,
120 LEd2d 520, n.1 (1992). . . . . . . . . . . . . . . . 12
Klopher v. North Carolina, 386 US 213, 87 SCt 988, 18 LEd2d
1 (1967). . . . . . . . . . . . . . . . . . . . . . . . .10
Moore v. Arizona, 414 US 25, 94 SCt 188, 38 LEd2d 183 (1973). 17
State v. Artis, 31 NCApp 193, 228 SE2d 768, cert. denied,
291 NC 449, 230 SE2d 766 (1976). . . . . . . . . . . . . 11
State v. Bare, 77 NCApp 516, 335 SE2d 748 (1985). . . . . . . 11
State v. Brown, 282 NC 117, 191 SE2d 659 (1992). . . . . . . .12
State v. Chambers, 218 NC 442, 11 SE2d 280 (1940). . . . . . .20
State v. Chance, 3 NCApp 459, 165 SE2d 31 (1969). . . . . . . 32
State v. Cutler, 271 NC 379, 156 SE2d 679 (1967). 20,22,26,28,31
State v. DeLeonardo, 315 NC 762, 340 SE2d 350 (1986). . . . . 31
State v. Fikes, 270 NC 780, 155 SE2d 277 (1967). . . . . . . .21
State v. Gammons, 260 NC 753, 133 SE2d 649 (1963). . . . . . .32
State v. Gay, 224 NC 141, 29 SE2d 458 (1944). . . . . . . . . 32
State v. Heater, 229 NC 540, 50 SE2d 309 (1948). . . . . . . .32
State v. Irwin, 304 NC 93, 282 SE2d 439 (1981). . . . . . .22,28
State v. Jolly, 297 NC 121, 254 SE2d 1 (1979). . . . . . . . .20
State v. Locklear, 300 NC 534, 284 SE2d 500 (1981). . . . . . 32
State v. Lunsford, 26 NCApp 78, 214 SE2d 619 (1975). . . . . .27
State v. McCoy, 79 NCApp 273, 339 SE2d 419 (1986). . . . . . .20
State v. Pippin, 72 NCApp 387, 390, 324 SE2d 900, 903, disc.
rev. denied, 313 NC 609, 337 SE2d 615 (1985). . . . . . .10
State v. Rogers, 352 NC 119, 529 SE2d 671 (2000). . . . . . . .8
State v. Ross, 133 NCApp 310, 515 SE2d 252 (1999). . . . . 23,29
State v. Smith, 40 NCApp 72, 252 SE2d 535 (1979). 20,22,26,28,31
State v. Wade, 181 NCApp 295, 639 SE2d 82 (2007). . . . . .23,28
State v. Webb, 155 NC 426, 70 SE2d 1064 (1911). . . . . . . . 10
State v. Webster, 337 NC 674, 447 SE2d 349 (1994). . . . . . .15
State v. Wilson, 289 NC 531, 223 SE2d 311 (1976). . . . . . . 20
Sixth Amendment, U.S. Constitution. . . . . . . . . . . . . . 10
Fourteenth Amendment, U.S. Constitution. . . . . . . . . . . .10
N.C.Const. Article I, Section 24. . . . . . . . . . . . . . . 11
N.C.G.S. §7A-27(b). . . . . . . . . . . . . . . . . . . . . . .7
N.C.G.S. §14-27.4. . . . . . . . . . . . . . . . . . . . . . .31
N.C.G.S. §14-39(a)(2). . . . . . . . . . . . . . . . . . . 22,28
N.C.G.S. §14-51. . . . . . . . . . . . . . . . . . . . . . . .20
N.C.G.S. §14-54(a). . . . . . . . . . . . . . . . . . . . . . 21
N.C.G.S. §15A-1443(b). . . . . . . . . . . . . . . . . . . . . 8
NO. COA07-1517 FOURTEENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
*************************************
STATE OF NORTH CAROLINA )
) From Durham County
vs. ) No. 02 CRS 48600-48604
) 02 CRS 48607-48608
FRANKIE DELANO WASHINGTON )
******************************
DEFENDANT-APPELLANT’S BRIEF
******************************
QUESTIONS PRESENTED
1. DID THE TRIAL COURT DENY THE DEFENDANT A FAIR AND SPEEDY
TRIAL AS GUARANTEED BY THE FIFTH AND SIXTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE I OF THE NORTH CAROLINA
CONSTITUTION WHEN THE TRIAL COURT DENIED THE DEFENDANT’S MOTION
TO DISMISS FOR DENIAL OF A SPEEDY TRIAL?
2. DID THE TRIAL COURT ERR IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF FIRST-DEGREE
BURGLARY IN CASE NUMBER 02 CRS 48600?
3. DID THE TRIAL COURT ERR IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF KIDNAPPING OF MARY
BREEZE IN CASE NUMBER 02 CRS 48601?
4. DID THE TRIAL COURT ERR IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF SIMPLE ASSAULT OF
WILLIAM BREEZE IN CASE NUMBER 02 CRS 48603?
5. DID THE TRIAL COURT ERR IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF SECOND-DEGREE
KIDNAPPING OF WILL BREEZE IN CASE NUMBER 02 CRS 48604?
6. DID THE TRIAL COURT ERR IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF FIRST-DEGREE SEXUAL
OFFENSE AS CHARGED IN 02 CRS 48607?
2
STATEMENT OF THE CASE
The defendant was charged May 30, 2002 for the first-degree
burglary of the residence of Mary and William Breeze (02 CR
48600); second-degree kidnapping of Mary Breeze and her son Will
(02 CR 48601, 48604); the attempted robbery with a dangerous
weapon of Mr. William Breeze (02 CR 48602); second-degree sexual
offense of Mary Breeze (02 CR 48607); robbery with a dangerous
weapon of Mary Breeze (02 CR 45608) and additional charges not
part of the appeal. The defendant was determined to be indigent
at his first appearance and counsel was court appointed to
represent the defendant.
On August 19, 2002 the grand jury of Durham County indicted
the defendant for the charges identified above and the
kidnapping and assault of Mr. William Breeze. (02 CRS 48603).
Defendant was arraigned on all charges on April 6, 2005 and
pled not guilty.
The defendant filed a motion to dismiss for denial of a
speedy trial and in the alternative for the State’s failure to
comply with discovery requests. The motions were denied by
Superior Court Judge Orlando Hudson.
All cases were joined for trial and the trial began at the
February 19, 2007 Criminal Session of Superior Court for Durham
County before the Honorable Henry W. Hight, Jr., Superior Court
Judge presiding. At the close of the State’s evidence the trial
3
court dismissed the kidnapping charge of Mr. William Breeze (02
CRS 48603) and additional charges not part of the appeal. After
the presentation of evidence, arguments of counsel and the
instructions by the court the jury returned verdicts of guilty
of first-degree burglary, robbery with a dangerous weapon,
attempted robbery with a dangerous weapon, two counts of
kidnapping, attempted first-degree sexual offense and simple
assault. The jury found the defendant not guilty of possession
of a firearm by a felon. The court determined the defendant to
have 13 criminal history points and thus a Record Level IV for
the purposes of sentencing. The court sentenced the defendant
as follows: 02 CRS 48600 for the first-degree burglary a Class
D felony to 117 months minimum to 150 months maximum; 02 CRS
48608 robbery with a dangerous weapon the defendant was
sentenced to 117 months minimum to 150 months maximum; 02 CRS
48602 attempted robbery with a dangerous weapon the defendant
was sentenced to 117 months minimum to 150 months maximum; 02
CRS 48601 for the second-degree kidnapping of Mary Breeze the
defendant was sentenced to 46 months minimum to 56 months
maximum; 02 CRS 48604 the second-degree kidnapping of Will
Breeze the defendant was sentenced to 46 months minimum to 56
months maximum; 02 CRS 48607 the attempted first-degree sex
offense the defendant was sentenced to 251 months minimum to 311
months maximum; 02 CRS 48603 simple assault the defendant was
4
sentenced to 20 days to run concurrently with the others. All
sentences with the exception of the conviction for simple
assault were to be run at the expiration of one another.
In open court on February 26, 2007 immediately after
sentencing the defendant gave notice of appeal to the North
Carolina Court of Appeals.
The transcript order was filed March 1, 2007.
On March 9, 2007 Attorney James R. Parish of the Cumberland
County Bar was appointed to perfect the defendant’s appeal.
Orders extending time for the preparation of the trial
transcripts were signed first by Judge Hight and then by the
Court of Appeals directing the trial transcripts to be produced
on or before September 28, 2007. The final transcript was
delivered in a timely fashion. The proposed record on appeal
was timely served upon the Office of the District Attorney for
Durham County.
The record on appeal was filed and docketed December 14,
2007.
STATEMENT OF THE FACTS
Mary Katherine Breeze returned home about 2:30 in the
morning May 30, 2002 to her family’s residence at 911 N. Gregson
Street. (Tp 31). Once inside she went directly to her room and
got ready for bed. (Tp 36). At about 3:30 in the morning
William Breeze heard the dog barking downstairs and he went down
5
to investigate. (Tp 481). When he got to the bottom of the
stairs he saw a man with a gun who said “give me your money or
I’ll kill you.” (Tp 483). Mr. Breeze hollers “he’s got a gun.”
(Tp 483). The man with the gun asked where the money was and
Mr. Breeze said he did not have any. Mary Breeze was upstairs
in her bedroom when she heard her husband holler “he’s got a
gun.” (Tp 70). Her son Will came out of his bedroom and they
stood at the top of the stairs as the man with the gun came up
to them. (Tp 71). The man with the gun directed them both
downstairs to the living room and pushed Will onto the couch.
(Tp 71). Mary Breeze did not see her husband downstairs and so
she thought he had gone for help. (Tp 72). The man with the
gun took her into the den which was dark except for computer
screens. He shut the door behind them and stuck his hand into
her underpants. She had just had abdominal surgery two weeks
prior so she had drains and lines extending out. She told him
to be careful she had just had surgery. (Tp 73). He stopped;
took her by the arm; put the gun to the back of her head and
walked her back into the living room. He told her he wanted all
of her money. Her purse was sitting on a desk and she gave him
the purse. The assailant ran out the door. (Tp 73).
When William Breeze saw the man with the gun going up the
stairs he picked up the telephone to call 911 but decided he
would be more helpful by actually going for help. He left the
6
house and went to several neighbors’ houses banging on the doors
and when he turned back the man with the gun was in his face
again. (Tp 492). The man with the gun said “we’re going back
into the house or I’ll kill you.” (Tp 484). Mr. Breeze said
that he was not and was struck on the jaw by either a fist or a
gun. (Tp 494).
The police came and the family described the assailant as a
black man wearing a blue T-shirt with writing on the front and
back. (Tp 164). Mary Breeze described the man as slight build
and slightly taller than she which was 5’7”. (Tp 101). The
assailant wore a multi-colored bandana covering his nose and
mouth. (Tp 101). He was wearing some type of covering on his
head such as a ski cap which slipped back so that Mary Breeze
believed there was some baldness. (Tp 103). She believed the
man to be perhaps 20-25 years of age. (Tp 103).
Law enforcement officers searched the neighborhood in cars
and with K9 units. Officer William Bell found a person that fit
the description walking several blocks from the victim’s home.
The man was Frankie Washington. (Tp 165). He said he was
coming from his girlfriend’s house. He was asked to empty his
pockets and nothing from the victim’s residence was found on his
person. Law enforcement officers brought Mary Breeze and
William Breeze to the scene and both identified Frankie
Washington as the assailant in their house. (Tp 502).
7
Frankie Washington is 5’6” tall and at the time of his
arrest he was 41 years of age. (Tp 593). Later in the morning
after the breaking into her home Mary Breeze found a cigarette
butt in an ashtray that had been smoked. Her house is a non-
smoking house. (Tp 98). The DNA profile obtained from the
cigarette butt did not match the DNA of Frankie Washington. (Tp
416). Near where the defendant was apprehended the officers
observed a shotgun, purse and a bandana in a creek. (Tp 287).
A toboggan and towel were found in a trashcan near the Breeze’s
home. (Tp 342). Law enforcement officers were able to lift
three identifiable fingerprints from the purse but none were a
match for Frankie Washington. (Tp 430). Identifiable DNA was
found on the toboggan but it did not match the DNA of Frankie
Washington. (Tp 469). Fecal matter was found in the creek near
the other items and collected so it could be analyzed but it
never was. (Tp 420).
Further facts will be developed within the brief.
JURISDICTION
The defendant appeals as a matter of right to the North
Carolina Court of Appeals from the conviction and final
judgments after a jury trial in Superior Court. N.C.G.S. §7A-
27(b).
8
ARGUMENTS
1. THE TRIAL COURT DENIED THE DEFENDANT A FAIR AND SPEEDY
TRIAL AS GUARANTEED BY THE FIFTH AND SIXTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE I OF THE NORTH CAROLINA
CONSTITUTION WHEN THE TRIAL COURT DENIED THE DEFENDANT’S MOTION
TO DISMISS FOR DENIAL OF A SPEEDY TRIAL.
ASSIGNMENT OF ERROR NO. 1
(Rp 70)
STANDARD OF REVIEW
When violation of Constitutional rights are implicated a de
novo standard of review applies. State v. Rogers, 352 NC 119,
529 SE2d 671 (2000). Violation of the defendant’s rights under
the Constitution of the United States is prejudicial unless the
appellate court finds that it was harmless beyond a reasonable
doubt. This burden is upon the State to demonstrate, beyond a
reasonable doubt, that the error was harmless. N.C.G.S. §15A-
1443(b).
ANALYSIS
Frankie Washington was charged May 30, 2002 for first-
degree burglary, second-degree kidnapping, attempted robbery
with a dangerous weapon, second-degree sexual offense, robbery
with a dangerous weapon all alleged to have occurred the same
night against a single family. The charges were joined for
trial and the trial began February 19, 2007. Thus the time
between arrest and trial was four years and nine months.
9
During the interim between arrest and trial the following
occurred:
On August 19, 2002 Frankie Washington was indicted for the
above-named charges and for an additional kidnapping and assault
of one of the family members. Defense counsel demanded a
probable cause hearing June 12, 2002. The probable cause
hearing was waived the following day June 13, 2002. (Rpp 16, 4,
6, 8, 10, 12, 14). Defense counsel filed a motion for reduction
of the $1,000,000.00 bond. Over opposition by the State the
court on August 26, 2002 reduced the bond to $500,000.00. (Rp
31). Defendant requested a formal arraignment August 27, 2002.
(Rp 34). Motions to compel SBI testing were filed starting
October 24, 2002. The defendant filed repeated motions for bond
reductions and despite the opposition of the prosecution the
court consistently reduced the defendant’s bond due to the
failure of the State to have performed any of the SBI testing
that had been previously ordered. (Rpp 66, 47, 51). On May 7,
2003 the Superior Court reduced the defendant’s bond from
$75,000.00 to $37,500.00. (Tp 52). On May 18, 2004 pursuant to
a defendant’s request to compel the State Bureau of
Investigation to conduct lab testing on a variety of materials
the court ordered the SBI to perform those tests or to advise
the State if they could not do so. (Rp 55). The defendant was
arraigned April 6, 2005. (Rp 61). The case was ordered for
10
trial June 27, 2005 but was not reached. (Rp 65). On June 24,
2005 defendant filed a motion to dismiss for violation of his
speedy trial rights alleging that prior to being released on a
secured bond of $37,500.00 the defendant had been held in
pretrial detention for more than 365 days. (Rp 65). Further,
defense counsel indicated the case had been scheduled two
previous times but continued by the State because the SBI had
not performed the test ordered by the court in 2004. (Rp 67).
The court denied the defendant’s motion. (Rp 70).
“The fundamental law of this State provides every
individual charged with a crime has the right to a speedy
trial.” State v. Pippin, 72 NCApp 387, 390, 324 SE2d 900, 903,
disc. rev. denied, 313 NC 609, 337 SE2d 615 (1985); State v.
Webb, 155 NC 426, 70 SE2d 1064 (1911). This right is also
protected by the Sixth Amendment to the United States
Constitution and is applied to the states by the 14th Amendment.
Klopher v. North Carolina, 386 US 213, 87 SCt 988, 18 LEd2d 1
(1967). This right “protects an accused for undue and
oppressive pretrial incarceration, prolonged anxiety attendant
to criminal accusation, and the potential that undue delays will
impair an accused’s defense.” State v. Pippen, supra, citing
United States v. Ewell, 383 US 116, 86 SCt 773, 15 LEd2d 627
(1966).
11
In Barker v. Wingo, 407 US 514, 92 SCt 2182, 33 LEd2d 101
(1972) the United States Supreme Court set out a four-part test
for determining if a defendant has been denied his Federal
Constitutional rights to a speedy trial. These factors include
(1) the length of the delay, (2) the reason for the delay, (3)
the defendant’s assertion of his right to a speedy trial, and
(4) prejudice to the defendant. Such a test has been employed
to determine if the analogous State Constitutional right has
been violated. See, e.g. State v. Artis, 31 NCApp 193, 228 SE2d
768, cert. denied, 291 NC 449, 230 SE2d 766 (1976). “These
factors were adopted as the standard under North Carolina
Constitutional law.” State v. Bare, 77 NCApp 516, 519, 335 SE2d
748, 750 (1985); N.C.Const. Article I, Section 24.
As a preliminary matter, it is not clear that the trial
court applied the four-part test enunciated in Barker v. Wingo,
supra, in denying the motion to dismiss for lack of speedy
trial. The record reflects, in affidavit form, that both
counsel for the defendant and the Assistant District Attorney
appeared before Judge Hudson the week of July 11, 2005 at which
time Judge Hudson denied the motion. (Rp 70). There are no
findings of facts or conclusions of law anywhere within the
clerk’s file. Had the trial court properly applied the four-
part analysis as directed in Barker v. Wingo and the applicable
State cases, the court would have concluded the defendant had
12
been denied his State and Federal Constitutional rights to due
process of law.
The length of delay between accusation and trial is not per
se determinative of whether a speedy trial violation has
occurred. State v. Pippen, supra. Our Courts have held delays
of 14-17 months between accusation and trial as being long
enough to trigger consideration of other factors. State v.
Pippen, supra at 310 NC 716, 721, 314 SE2d 529, 533 (1984) and
State v. Brown, 282 NC 117, 191 SE2d 659 (1992). The United
States Supreme Court has viewed even shorter delays sufficient
to trigger examination of other factors.
Depending on the nature of the charges, the
lower Courts have generally found post-
accusation delay ‘presumptively prejudicial’
at least as it approaches one year. We note
that, as the term is used in this threshold
context, ‘presumptive prejudice’ does not
necessarily indicate a statistical
probability of prejudice; it simply marks the
point at which Courts deem the delay
unreasonable enough to trigger the Barker
inquiry.
Doggett v. United States, 505 US 647, 651, n.1, 112 SCt
2686, 2691, n.1, 120 LEd2d 520, 528, n.1 (1992).
Frankie Washington was arrested May 30, 2002 for burglary,
kidnapping, attempted robbery, second-degree sex offense and
robbery with a dangerous weapon and indicted August 19, 2002.
His trial began February 19, 2007. He had been continuously in
custody for more than 365 days prior to his release. (Rp 67).
13
The length of delay from arrest to trial was four years and nine
months. This delay is clearly long enough to cause concern and
to trigger examination of the other factors. The delay from
accusation to trial is “presumptively prejudicial”. Doggett v.
United States, supra.
The next factor to consider is the reason for delay. At the
District Court level the defendant first demanded and then waived
a probable cause hearing. (Rpp 16, 4, 6, 8, 10, 12, 14).
Frankie Washington was indicted August 19, 2002. The defendant
filed a motion to compel testing by the State Bureau of
Investigation on October 24, 2002. (Rp 24). The defendant filed
a request for formal arraignment August 27, 2002. Multiple
motions for bond reductions were filed and over opposition of the
State granted by the court due to the failure of the State to
conduct the necessary SBI testing. (Rp 67). Though a motion to
compel testing by the SBI had been filed in October of 2002 the
same motion was filed again March 18, 2004 and an order directing
the State to perform these tests was signed the same date by
Superior Court Judge Ronald L. Stephens. (Rp 55). The record
reflects the cases had appeared on two previous trial calendars
“and were continued at the request of the State because the SBI
had not performed the test as ordered by the court.” (Rp 67).
The record reflects two scheduling orders indicating the case was
set for trial June 27, 2005 and December 12, 2005. (Rpp 65, 74).
14
Thus it appears from the record that from the date of indictment
which was August 19, 2002 until July 20, 2006 the delay was
caused by the neglect of the State and its refusal or inability
to have the necessary testing performed by the SBI. This was a
delay of 47 months that is attributable to the State’s neglect or
refusal to comply with a court order.
On July 20, 2006 a scheduling order reflects the case was
now calendared for September 18th or September 20th of 2006. Thus
the delay from July 20, 2006 until September 18, 2006 was a
result of the defendant’s motion to continue and is attributable
to the defendant.
A scheduling order on October 16, 2006 reflects the case was
set for trial January 8th and 16th of 2007. (Rp 95). As set out
in the motion to dismiss the cases appeared at least twice on the
Superior Court calendar and were continued by the State each time
due to their failure to comply with the judge’s order. There is
no reason in the record presented by the State to defend or
explain any of the delay. The State presented no evidence as to
unusual court docket backlog or any other reasons as to why the
delays occurred. The reason presented by the defendant in his
motion to dismiss stands unrebutted: the State failed to provide
necessary discovery and then from the date of Judge Stephens’
order in 2004 failed for over two years to comply with the
judge’s order.
15
The third factor to consider is whether or not Mr. Frankie
Washington asserted his speedy trial right. On August 27, 2002
the defendant requested formal arraignment to begin the process.
(Rp 31). Other than the motion to continue the trial which was
granted July 20, 2006 for two months there is no delay that is
attributable to the defendant. Defendant’s motion to dismiss due
to the denial of a speedy trial filed June 24, 2005 serves as
both a request to dismiss the case for failure of the State to
guarantee his Constitutional rights and an assertion of that
right. Our Courts have held a defendant’s failure to assert his
right to a speedy trial sooner in the process does not foreclose
his speedy trial claim. See, State v. Webster, 337 NC 674, 447
SE2d 349 (1994).
The final factor to consider is prejudice to the defendant.
The Supreme Court has recognized three objectives of the right to
a speedy trial: to prevent oppressive pretrial incarceration; to
minimize anxiety and concern of the accused; and to limit the
possibility that the defense will be impaired. Barker v. Wingo,
407 US at 532. Frankie Washington suffered pretrial
incarceration for more than 365 days before his release after the
fourth bond reduction motion was granted by the court due to the
failure of the State to conduct the SBI testing of a variety of
materials. (Rp 67). That bespeaks oppressive pretrial
incarceration. After his release in June of 2003 the defendant
16
existed for four more years under the “stigma of these
allegations”; remaining “under the obligation of his bond”; and
being “required to take time off from work to appear in court
numerous times when these cases were scheduled by the State.”1
(Rp 67). The anxiety suffered by Frankie Washington is
immeasurable if the court considers the stigma of the charges,
the mandatory prison sentence if convicted, and the dislocation
of his life from constant appearances in court and meetings with
defense counsel for multiple trial preparation.
The United States Supreme Court has held that the need to
demonstrate actual prejudice diminishes as the egregiousness of
the delay increases. Doggett v. United States, 505 US at 657.
In Doggett v. United States, 906 Fed2d 573 (CA 11, 1990) a split
panel of the Court of Appeals ruled that Mr. Doggett could
prevail in his motion to dismiss for denial of speedy trial only
by proving “actual prejudice” or by establishing that “the first
three Barker factors weigh[ed] heavily in his favor”. Id 906
Fed2d at 582. As he was not incarcerated during his lengthy
delay the majority found that he had not shown actual prejudice.
In attributing the government’s delay to “negligence” rather than
bad faith, the Court of Appeals concluded that the first three
factors of Barker v. Wingo, supra, did not weigh so heavily
1
Representations contained in paragraphs 12-15 from defendant’s motion to
dismiss filed June 24, 2005.
17
against the government as to make proof of specific prejudice
unnecessary. The United States Supreme Court granted certiorari
and reversed the Court of Appeals. The United States Supreme
Court noted: “[w]e have observed in prior cases that unreasonable
delay between formal accusation and trial threatens to produce
more than one sort of harm, including ‘oppressive pretrial
incarceration’, ‘anxiety and concern of the accused’, and ‘the
possibility that the [accused’s] defense will be impaired’ by
dimming memories and loss of exculpatory evidence”. Doggett v.
United States, Id at 655, 120 LEd2d at 530. The Supreme Court
additionally noted that when the government’s negligence causes a
significant delay sufficient to trigger judicial review, the
burden is upon the government [in this case the State] to rebut
the presumption of prejudice even if the prejudice is unspecified
or non-particularized. See, also, Moore v. Arizona, 414 US 25,
94 SCt 188, 38 LEd2d 183 (1973); Dickey v. Florida, 398 US 30, 90
SCt 1564, 26 LEd2d 26 (1970); State v. Pippen, supra. In State
v. Webster, 337 NC 674, 447 SE2d 349 (1994) wherein the court
denied a defendant’s motion to dismiss for lack of speedy trial
for delay of 16 months from arrest to trial, our Court paid
particular attention to the absence of any oppressive pretrial
incarceration as the defendant was released from jail on bond
five days after her arrest and remained free on bond from that
time until her trial and sentence.
18
The delay worked to the actual particularized prejudice of
the defendant in this case. Significantly in the trial the
defendant offered only three witnesses in his defense one of whom
was the prosecutor who was questioned about her delays in
complying with a motion to compel testing by the State Bureau of
Investigation. (Tp 605). Additionally the defendant called
Detective Anthony Smith with the Durham County Police Department
who testified the arrest sheet of the defendant showed his birth
date was September 26, 1960 and made him 41 at the time of arrest
and therefore considerably older than the under 30 year old male
described by the victims. (Tpp 103, 593, 527). Additionally the
defendant called Dr. Wallendael, a psychology professor at UNC-
Charlotte to testify as an expert in the field of eyewitness
identification. (Tp 541). As part of her testimony she
explained the difficulty in cross-racial identifications. (Tp
547). The testimony of the victims and witnesses in the case
were significantly more damning to the defendant then their
statements given at the time of the crimes. Several examples
will illustrate this phenomenon. Mary Breeze testified the
assailant put his hand in her underpants and went to her crotch.
(Tp 73). This was to be the basis of the charge of attempted sex
offense. Her statement given to the police the same evening as
the occurrence reads the assailant “put his hand inside my
underpants, and fondled my buttocks.” (Tp 104). That statement
19
falls woefully short of establishing any attempted sex offense.
Mary Breeze, the victim who spent the most time with the
assailant, positively identified the defendant in court but her
statement indicated the man was “slightly taller than me, I’m
5’7” tall.” (Tp 101). Mr. William Breeze testified he is 5’7½”
tall. He said the black male that assaulted him was a little
taller than he was. Officer Irving, a K9 handler for the police
department testified he was looking for a black male six feet
tall based on the information given out to him from officers who
interviewed the victims. (Tp 259). Detective Smith testified
the defendant was 5’6” tall. (Tp 593).
Under the totality of the circumstances in this case: the
defendant incarcerated for more than 365 days and then living
under the threat of trial for four more years; the unexplained
delay in trying the case by the State and the apparent willful
negligence or intentional delay in failing to comply with the
court-ordered SBI lab tests all serve to tip the scales in favor
of granting the defendant’s motion to dismiss for denial of the
State and Federal Constitutional rights to a speedy trial. The
motion to dismiss should have been granted and the trial court
erred. The judgments against the defendant should be vacated.
3. THE TRIAL COURT ERRED IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF FIRST-DEGREE
BURGLARY IN CASE NUMBER 02 CRS 48600.
ASSIGNMENT OF ERROR NO. 3
20
(Tpp 586-587)
STANDARD OF REVIEW
In order to withstand motions to dismiss due to the
insufficiency of evidence, the State must present substantial
evidence of each essential element of the crime charged. State
v. Smith, 40 NCApp 72, 252 SE2d 535 (1979). Evidence which
raises no more than a surmise, suspicion or conjecture of guilt
is insufficient to overrule the motion to dismiss. State v.
Cutler, 271 NC 379, 156 SE2d 679 (1967).
ANALYSIS
Burglary is defined as the unlawful breaking and entering
of a dwelling in the nighttime with the intent to commit a
felony therein. N.C.G.S. §14-51. Unlike felonious breaking or
entering, burglary requires proof of both a breaking and
entering. See, State v. Jolly, 297 NC 121, 254 SE2d 1 (1979);
State v. Wilson, 289 NC 531, 223 SE2d 311 (1976); State v.
McCoy, 79 NCApp 273, 339 SE2d 419 (1986). Entry through an open
window or door does not constitute a breaking. State v.
Chambers, 218 NC 442, 11 SE2d 280 (1940); State v. McCoy, supra.
The only evidence introduced by the State on the status of
the doors to the house that night was presented by Mary
Katherine Breeze. She testified she returned home from a party
at about 2:45 in the morning and entered the house. (Tp 32).
She testified she did not lock the screen door she came in. (Tp
21
33). She did not testify that she closed the door. She did
testify that the main door behind the screen door was locked
when she got there and that she unlocked it and went inside.
She testified she did not lock it after she entered because she
was nervous about her parents finding out she was coming home
late and her sister was still at the party and she was not sure
whether she would be coming home or not. (Tp 34). She did not
testify she closed this door either. Thus she did not testify
that either door was closed. The State thus failed to present
substantial evidence that either door was closed. If the entry
by the assailant was made through an open door there was no
breaking and thus no burglary. For the failure of the State to
present substantial evidence of each essential element of the
crime charged the defendant is entitled to have his conviction
of burglary vacated and to be sentenced as for felonious
breaking and entering since that felony does not require
evidence of both a felonious breaking and felonious entering.
See, N.C.G.S. §14-54(a); State v. Fikes, 270 NC 780, 155 SE2d
277 (1967); State v. McCoy, supra.
4. THE TRIAL COURT ERRED IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF KIDNAPPING OF MARY
BREEZE IN CASE NUMBER 02 CRS 48601.
ASSIGNMENT OF ERROR NO. 4
(Tpp 586-587)
22
STANDARD OF REVIEW
In order to withstand motions to dismiss due to the
insufficiency of evidence, the State must present substantial
evidence of each essential element of the crime charged. State
v. Smith, 40 NCApp 72, 252 SE2d 535 (1979). Evidence which
raises no more than a surmise, suspicion or conjecture of guilt
is insufficient to overrule the motion to dismiss. State v.
Cutler, 271 NC 379, 156 SE2d 679 (1967).
ANALYSIS
The defendant was indicted for the second-degree kidnapping
of Mary Breeze alleging he confined, restrained and removed her
“for the purpose of facilitating the commission of a felony,
robbery.” (Rp 18). Statutory law declares a defendant is guilty
of kidnapping if he unlawfully confines, restrains or removes an
individual from one place to another without their consent if
done for the purpose of facilitating the commission of a felony.
N.C.G.S. §14-39(a)(2). So as not to violate the defendant’s
Constitutional protection against double jeopardy, our case law
requires confinement, restraint or removal “separate and apart
from that which is an inherent, inevitable part of the commission
of another felony.” State v. Irwin, 304 NC 93, 103, 282 SE2d
439, 446 (1981). “To permit separate and additional punishment
where there has been only a technical asportation, inherent in
the other offense perpetrated, would violate a defendant’s
23
Constitutional protection against double jeopardy. Id; see also,
State v. Wade, 181 NCApp 295, 639 SE2d 82 (2007) citing State v.
Irwin. In the instant case the evidence taken in the light most
favorable to the State would indicate Mary Breeze was awakened at
night and left her bedroom only to see a man at the bottom of the
stairs with a gun to the head of her husband. (Tp 68). Her
husband hollered “he’s got a gun.” (Tp 70). The assailant
walked up the stairs and directed Mary Breeze and her son
downstairs. He put a gun to her head. (Tp 72). The assailant
testified she was going to give him everything he wanted or he
was going to kill her. They were directed to go into the living
room and the son sat on a couch. (Tp 71). The assailant took
Mary Breeze to the den and shut the door. He stuck a hand in her
underpants. (Tp 73). He then took her to the living room and
indicated he wanted money. She gave him her purse and the
assailant left. (Tp 73). The facts of this case are similar to
those of State v. Wade, supra; State v. Irwin, supra; and State
v. Ross, 133 NCApp 310, 515 SE2d 252 (1999). In Wade several
assailants entered the victim’s home and beat him with fists and
subsequently a pistol. During the beating the robbers asked
“where is the money at?” State v. Wade, supra. They asked about
a safe and then started dragging him towards the bathroom where
it was believed the safe was kept. Id. The victim in the case
escaped. The Court found the removal was an inherent part of the
24
robbery with a dangerous weapon and indicated the victim’s own
testimony was that the robbers were dragging him towards the
location of the safe. The Court vacated the defendant’s
conviction for second-degree kidnapping. Id.
In State v. Irwin, supra the assailant forced the clerk at
knifepoint to walk from her position near the fountain cash
register to the back of the store in the general area of the
prescription counter and the safe. The Court found the clerk’s
removal to the back of the store “was an inherent and integral
part of the attempted armed robbery. To accomplish [the
robbers’] objective of obtaining drugs it was necessary that
either the pharmacist or clerk go to the back of the store to the
prescription counter and open the safe.” State v. Irwin, 304 NC
at 103, 282 SE2d at 446. The Court reasoned the clerk’s removal
from the front of the store to the back of the store was “a mere
technical asportation and insufficient to support conviction for
a separate kidnapping offense.” Id.
In State v. Ross, supra, the assailants removed the victim
from one part of his house to his bedroom looking for property to
steal. Id. The Court found the victim was taken to his bedroom
as part of the robbery and was thus not exposed to a greater
danger than that inherent in the armed robbery. Id.
In the instant case Mary Breeze was directed to come
downstairs as the robber attempted to gather all of the occupants
25
of the house. Once they were in the living room he demanded
money and Mary Breeze gave him her purse. The assailant fled.
(Tp 73). The Court must be mindful the indictment alleges the
defendant kidnapped Mary Breeze “by unlawfully confining her,
restraining her and removing her from one place to another...for
the purpose of facilitating the commission of a felony, robbery.”
(Rp 18). Thus to serve as the basis for a distinct crime of
kidnapping, any restraint, confinement or removal of Mary Breeze
within the house must have been distinct from and not an inherent
and integral part of the robbery with a dangerous weapon yet
facilitated the commission of the robbery. Additionally, as with
the fact situation of State v. Wade, supra, wherein that
defendant was charged not just with robbery with a dangerous
weapon but also with assault, the Court found “we are unable to
discern how any confinement, restraint, or removal of [the
victim] was not an inherent and integral part of either the
robbery with a dangerous weapon or the assault.” Id. In the
instant case the facts do not reveal how any confinement,
restraint or removal of Mary Breeze was not an inherent and
integral part of either robbery with a dangerous weapon or the
attempted sexual assault. Under the rationale of State v. Wade,
State v. Irwin, and State v. Ross, the defendant’s conviction for
second-degree kidnapping should be vacated.
26
6. THE TRIAL COURT ERRED IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF SIMPLE ASSAULT OF
WILLIAM BREEZE IN CASE NUMBER 02 CRS 48603.
ASSIGNMENT OF ERROR NO. 6
(Tpp 586-587)
STANDARD OF REVIEW
In order to withstand a motion to dismiss due to the
insufficiency of evidence, the State must present substantial
evidence of each essential element of the crime charged. State
v. Smith, 40 NCApp 72, 252 SE2d 535 (1979). Evidence which
raises no more than a surmise, suspicion or conjecture of guilt
is insufficient to overrule the motion to dismiss. State v.
Cutler, 271 NC 379, 156 SE2d 679 (1967).
ANALYSIS
Frankie Washington was charged with attempted robbery with a
dangerous weapon and simple assault of William Breeze in case
numbers 02 CRS 48602 and 02 CRS 48603. He was convicted of both
charges. The evidence in the light most favorable to the State
show that an attempted robbery of William Breeze was perpetrated
by the defendant. (Tp 483). When the assailant turned his
attention to Mrs. Breeze, Mr. Breeze left the house to call for
help. (Tp 492). He returned to find the assailant had gone
outside apparently to pursue him. When confronted with the man
Mr. Breeze was told to go back into the house or that he would be
killed. (Tp 494). Mr. Breeze indicated he was not going back
27
into the house and was struck in the jaw. (Tp 494). The
assailant then fled the scene. (Tp 496). Our Courts have said
these dual convictions cannot stand. “If a person is convicted
simultaneously of armed robbery and of the lesser-included
offense of assault with a deadly weapon, and both offenses arise
out of the same conduct [cites omitted] and separate judgments
are pronounced, the judgment on the separate verdict of guilty on
assault with a deadly weapon must be arrested.” State v.
Lunsford, 26 NCApp 78, 80, 214 SE2d 619, 620 (1975). The Court
held all of the essential elements of the misdemeanor assault are
essential elements of the robbery with a dangerous weapon charge.
Id. In the instant case the defendant was convicted
simultaneously of attempted robbery with a dangerous weapon and
the lesser-included offense of simple assault. Both offenses
arose out of the same transaction of conduct. There is thus
insufficient evidence to proceed on the misdemeanor and the
conviction must be vacated.
7. THE TRIAL COURT ERRED IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF SECOND-DEGREE
KIDNAPPING OF WILL BREEZE IN CASE NUMBER 02 CRS 48604.
ASSIGNMENT OF ERROR NO. 7
(Tpp 586-587)
STANDARD OF REVIEW
In order to withstand a motion to dismiss due to the
insufficiency of evidence, the State must present substantial
28
evidence of each essential element of the crime charged. State
v. Smith, 40 NCApp 72, 252 SE2d 535 (1979). Evidence which
raises no more than a surmise, suspicion or conjecture of guilt
is insufficient to overrule the motion to dismiss. State v.
Cutler, 271 NC 379, 156 SE2d 679 (1967).
ANALYSIS
Our Courts have said a defendant is guilty of kidnapping if
he unlawfully confines, restrains or removes an individual from
one place to another without his consent and if done for the
purposes of facilitating the commission of a felony. State v.
Wade, 181 NCApp 295, 639 SE2d 82 (2007); State v. Irwin, 304 NC
93, 282 SE2d 439 (1981); N.C.G.S. §14-39(a)(2). The confinement,
restraint or removal must be “separate and apart from that which
is an inherent, inevitable part of the commission of another
felony.” Irwin, Id 304 NC at 103, 282 SE2d at 446 (1981). “To
permit separate and additional punishment where there has been
only a technical asportation, inherent in the other offense
perpetrated, would violate a defendant’s Constitutional
protection against double jeopardy.” Id; State v. Wade, supra
citing State v. Irwin.
In the instant case Will Breeze was 12 years old at the
time. He awoke about 3:30 a.m. when he heard a commotion
downstairs. (Tp 118). He went outside his room and his mother
told him to get back inside. A man with a gun came up the stairs
29
and told both Will and his mother to come down. (Tp 119). Will
and his mother came downstairs to the living room where Will was
told to go sit on a couch. The assailant took his mother into
another room. (Tp 121). Will was never asked for money but the
assailant told his mother “give me all your money or I’ll shoot
you.” (Tp 121). The assailant and his mother came back into the
living room from the den and the assailant said “give me your
purse” to his mother. The assailant grabbed it and ran from the
house. (Tp 122). Apparently this confinement and removal serves
as the basis for the kidnapping conviction of Will Breeze.
In this case on appeal the assailant seems to have collected
all the family members within the house and then demanded money
of the two parents. The facts of this case seem similar to those
in State v. Wade, supra; State v. Irwin, supra; and State v.
Ross, 133 NCApp 310, 515 SE2d 252 (1999). In those cases the
victim or victims were taken to an area where the demand for
money was made or were taken to an area looking for property to
steal. In State v. Wade, supra the assailants were looking for a
safe in a bathroom and eventually dragged the victim to the
location of the safe so that he could access the property
therein. Id. In State v. Irwin, supra the assailant forced a
clerk at knifepoint to walk from a position near a fountain cash
register to the back of the store in the general area of the
prescription counter and safe. The Court found the removal of
30
the clerk to the back of the store was an inherent and integral
part of the attempted armed robbery. Id. The Court reasoned the
double jeopardy clause would prohibit convictions for both armed
robbery and kidnapping upon facts where a victim was forced to
walk a short distance towards the cash register or to move away
from it. Under those circumstances a victim or witness is not
exposed to greater danger than that inherent in the armed robbery
itself, nor is the victim or witness subjected to the kind of
danger and abuse that the kidnapping statute was designed to
prevent. State v. Irwin, Id. In State v. Ross, supra the
assailants took the victim to his bedroom looking for property to
steal. Because the victim was taken to his bedroom as part of
the robbery he was not exposed to greater damage than inherent in
the armed robbery and thus the kidnapping conviction was vacated.
Id.
For the foregoing reasons the removal of Will Breeze and his
mother from upstairs to downstairs was an integral part of the
attempted robbery of Will’s parents and thus does not serve as
the basis for a kidnapping conviction. Thus the kidnapping
conviction in 02 CRS 48604 must be vacated.
8. THE TRIAL COURT ERRED IN FAILING TO DISMISS DUE TO THE
INSUFFICIENCY OF THE EVIDENCE THE CHARGE OF FIRST-DEGREE SEXUAL
OFFENSE AS CHARGED IN 02 CRS 48607.
ASSIGNMENT OF ERROR NO. 8
(Tpp 586-587)
31
STANDARD OF REVIEW
In order to withstand a motion to dismiss due to the
insufficiency of evidence, the State must present substantial
evidence of each essential element of the crime charged. State
v. Smith, 40 NCApp 72, 252 SE2d 535 (1979). Evidence which
raises no more than a surmise, suspicion or conjecture of guilt
is insufficient to overrule the motion to dismiss. State v.
Cutler, 271 NC 379, 156 SE2d 679 (1967).
ANALYSIS
Frankie Washington was indicted for first-degree sexual
offense of Mary Breeze. (Tp 22). The case proceeded to the jury
and the defendant was convicted of attempted first-degree sexual
offense. (Tp 122). For the purposes of this appeal a person is
guilty of first-degree sexual offense if he engages in a sexual
act with another person by force and against the will of another
person and employs or displays a dangerous or deadly weapon.
N.C.G.S. §14-27.4. The term “sexual act” as used in this section
means cunnilingus, fellatio, analingus, or anal intercourse. It
also means the penetration by any object into the genital or anal
opening of another person’s body. State v. DeLeonardo, 315 NC
762, 340 SE2d 350 (1986). Since the substantive act did not
occur and the defendant was convicted of an attempt, the State
must present substantial evidence the defendant attempted a
sexual act as described by statute and case law. Our Courts have
32
said the elements of an attempt to commit an offense are, first,
an intent to commit the offense, and second, a direct,
ineffectual act done toward its commission. State v. Chance, 3
NCApp 459, 165 SE2d 31 (1969).
The phrase “by force and against the will” of another means
the same in these statutes as it does in the rape statute and as
it meant at common law. State v. Locklear, 300 NC 534, 284 SE2d
500 (1981). The term “by force and against the will of the other
person” requires an intent on the part of the assailant to
gratify his passion notwithstanding any resistance on the part of
his intended victim. See, State v. Gammons, 260 NC 753, 133 SE2d
649 (1963). Thus an assault or an overt act by a defendant
without the felonious intent to gratify his passion
notwithstanding any resistance on the part of the victim does not
constitute an assault or attempt to commit the requisite sex
offense. See, State v. Gay, 224 NC 141, 29 SE2d 458 (1944).
Where a defendant desists immediately when a victim resists his
advances he is not guilty. See, State v. Heater, 229 NC 540, 50
SE2d 309 (1948). Though State v. Gay, supra and State v. Heater,
supra deal with the offenses of assault with intent to commit
rape they both require an assault or overt act and the
simultaneous intent. Those offenses would be analogous and
instructive when evaluating the sufficiency of evidence to
support an attempted first-degree sex offense. In the instant
33
case Mary Breeze testified the defendant took her to the den
after assembling the family downstairs. He shut the door behind
them then stuck his hand into her underpants. She testified she
had recently had abdominal surgery and still had drains and lines
coming from her abdomen. (Tp 73). She testified she was afraid
he was going to kill her either by accident or on purpose and
thus told him she had just had surgery and to be careful. (Tp
73). She testified the assailant stopped, took her by the arm
and with a gun to the back of her head brought her back to the
living room at which time he demanded money. (Tp 73). The
State’s evidence failed to show the defendant had the specific
intent to commit the crime of sex offense against the victim.
The evidence failed to show his desire to commit this crime by
force and against her will. Additionally it is unclear what
specifically was intended beyond an unpermitted touching to the
external portion of her body which would permit the jury to only
convict the defendant of assault on a female. For the foregoing
reasons the State failed to present substantial evidence of each
essential element of the crime charged and thus the defendant’s
motion to dismiss should be granted.
Defendant abandons Assignments of Error 2, 5, 9, 10 and 11.
CONCLUSION
Due to the denial of the defendant’s right to a fair and
speedy trial as guaranteed by the Fifth and Sixth Amendments to
34
the United States Constitution and Article I of the North
Carolina Constitution the defendant is entitled to a dismissal of
all the charges.
Due to the failure of the State to prove the doors to the
house were closed prior to entry by the assailant, the defendant
is entitled to a dismissal of the burglary charge and to be
resentenced as for breaking and entering.
Due to the failure of the State to prove the movement of
Mary Breeze from upstairs in her house to downstairs was not an
integral part of the attempted robbery with a dangerous weapon,
the defendant is entitled to a dismissal of the charge of
kidnapping of Mary Breeze in 02 CRS 48601.
Due to the failure of the State to prove all of the elements
of simple assault of William Breeze and that the crime was
distinct from the attempted robbery of William Breeze the
defendant is entitled to a dismissal of the simple assault charge
in case number 02 CRS 48603.
Due to the failure of the State to prove the movement of
Will Breeze from upstairs in his house to downstairs was not an
inherent part of the attempted robberies of the family the
defendant is entitled to a dismissal of the kidnapping charge in
case number 02 CRS 48604.
35
Due to the failure of the State to prove all of the elements
of attempted first-degree sex offense as contained in 02 CRS
48607, the defendant is entitled to a dismissal of that charge.
THIS the ___ day of ________________, 2008.
PARISH, COOKE & CONDLIN
_______________________
JAMES R. PARISH
ATTORNEY FOR THE DEFENDANT
P.O. DRAWER 1824
FAYETTEVILLE, NC 28302
TELEPHONE: (910) 483-7680
36
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the
foregoing DEFENDANT-APPELLANT’S BRIEF upon the State by placing
same in the United States mail, first class postage prepaid,
addressed as follows:
WILLIAM P. HART
NORTH CAROLINA DEPARTMENT OF JUSTICE
9001 MAIL SERVICE CENTER
RALEIGH, NC 27699-9001
THIS the ___ day of _______________, 2008.
PARISH, COOKE & CONDLIN
_______________________
JAMES R. PARISH
ATTORNEY FOR THE DEFENDANT
P.O. DRAWER 1824
FAYETTEVILLE, NC 28302
TELEPHONE: (910) 483-7680
