The opinion
TIMMONS-GOODSON, Judge,
dissenting.
The right to a speedy trial is a fundamental right guaranteed to an accused by the Sixth Amendment to the United States Constitution and the laws of this State. The right to a speedy trial protects the accused from “ ‘oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the [accused’s] defense will be impaired’ by dimming memories and the loss of exculpatory evidence.” Doggett v. United States, 505 U.S. 647, 654 , 120 L. Ed. 2d 520, 529-30 (1992) (quoting Barker v. Wingo, 407 U.S. 514, 532 , 33 L. Ed. 2d 101, 118 (1972)). The Sixth Amendment right to a speedy trial is a “slippery” right “generically different from any of the other rights enshrined in the Constitution for the protection of the accused,” of which a violation results in the “unsatisfactorily sevére remedy of dismissal of the indictment when the right has been deprived.” Barker, 407 U.S. at 519-22 , 33 L. Ed. 2d at 110-12 . Because I believe that the trial court did abuse its discretion in denying defendant’s motion to dismiss for lack of a speedy trial, I respectfully dissent from the majority opinion.
In Barker , the United States Supreme Court established a balancing test of four factors to be considered in determining whether a defendant was denied the constitutional right to a speedy trial. Those four 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. See Barker, 407 U.S. at 533 , 33 L. Ed. 2d at 117 ; see also State v. Chaplin, 122 N.C. App. 659, 662 , 471 S.E.2d 653, 655 (1996). The burden is on the defendant to show that his “constitutional rights have been violated],]” and that the unreasonable delay in his trial was caused by “ ‘neglect or wilful *192 ness of the prosecution[.]’ ” Chaplin, 122 N.C. App. at 663 , 471 S.E.2d at 655 (quoting State v. McKoy, 294 N.C. 134, 141 , 240 S.E.2d 383, 388 (1978)).
In Doggett , the Supreme Court further clarified how the four factors are to be weighed and the burden each factor carries. The Court held that the threshold inquiry is whether the delay was long enough to trigger a “speedy trial analysis.” Doggett, 505 U.S. at 651-52 , 120 L. Ed. 2d at 528 . Generally, a post-accusation delay approaching one year is “presumptively prejudicial.” Id.
In the instant case, a period of approximately four and a half years elapsed between defendant’s date of arrest and the date on which defendant was ultimately convicted. Defendant was arrested on 18 October 1994 and remained in the Robeson County jail without the benefit of bond until his trial on 3 May 1999. Under the first factor of Barker , “[t]his delay is not only unreasonable, but excessive and thus presumptively compromised the reliability and fairness of defendant’s trial.” State v. Hammonds, 141 N.C. App. 152, 176 , 541 S.E.2d 166, 182-83 (2000) (Greene, J., dissenting), affirmed, 354 N.C. 353 , 554 S.E.2d 645 (2001). As Judge Greene noted in his dissent, “although there is no showing the prosecutor intentionally delayed the trial for the purpose of obtaining an advantage over defendant, the record clearly shows [that] the prosecutor did not make a reasonable effort to avoid the excessive delay of defendant’s trial and thus was negligent.” Id. at 176-77, 541 S.E.2d at 183 . The record in the present case clearly indicates that the criminal docket in Robeson County is overflowing and heavily congested. As stated in the dissent in Hammonds , there is no evidence in the record that the prosecutor-made any reasonable effort to “avoid the excessive delay” of defendant’s trial and was therefore negligent. This Court cannot continue to overlook such substantial delays because of congested dockets. Under our unified court system and the constitutional right to a speedy trial, the court’s resources must not be viewed from the perspective of a single judicial district, but system-wide. A lack of personnel or court sessions in a single judicial district is not a sufficient reason to maintain a defendant who is presumed innocent, confined in jail for four and a half years awaiting his or her day in court.
In summary the defendant has been denied his right to a speedy trial and the trial court erred in refusing to grant defendant’s motion to dismiss.