Petition — Morrison v. Reed

IN THE

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

A. B. MORRISON,

Petitioner

Vv.

AMCS E, REED,

Secretary,

Department 6f Correction

North Carolina,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

300 Law Building

Charlotte, North Carolina 28202

Phone: (704) 332-6114

(Jo Hill Dobbins on Writ)

FRED R. SURFACE & ASSOC. INC., HERITAGE BUILDING, RICHMOND, VA. (804) 643-7789 ~

EPR eee oe

INDEX

Table of Citations

Opinions Below

Jurisdiction

Question Presented

Constitutional Provision

Involved

Statement of Case

Statement of Facts

Reasons for Granting Cert-

iorari

Reason 1

Reason 2

Reason 3

Conclusion

Conclusion

Appendix

(1) Opinion of the

United States Court

of Appeals for the

Fourth Circuit

(2) Opinion of the

United States District

Court for the Western

District of North

Carolina

(3) Certificate of

Service

A-1

A-6

A-19

TABLE OF CITATIONS

CASES Page(s)

Arrant v. Washington, 468

F.2d 677 (5th Cir. 1972)

cert. denied 410 U,S,

947 (1973) 32

Barker v. ngo, 407 U.S.

514, 92 $.Ct. 2182, 33

L.Ed.2d 101 (1972) Ms &3,

16, 19, 20,

ee es

28, 29, 30,

ee wes

a

Klopfer v. North Carolina,

386 U.S. 213, 87 S.Ct.

988, 18 L.Ed.2d 1 (1967) 14, 16,

17, 18,

19, 21, 22

Lassiter v. Turner, 423

F.2d 897 (4th Cir. 1970),

cert, denied 400 U.S, 852

(1970). «. 7,

* 19, 22, 27

Moore v. Arizona, 414 U.S,

25, 94 S.Ct. 188, 38

L.Ed.2d 183 (1973) 30, 37

ii

Morrison v. Jones, 428 F.

Supp. 82 (W.D.N.C, 1977)

North Carolina v. Johnson,

275 N.C, 264, 167 S.E.2d

274 (1969)

North Carolina v. Klopfer,

266 N.C, 349, 145 S.E.2d

909 (1966)

North Carolina v. Morrison,

19 N.C, App. 717, 199 S.E.2d

708 (1973), cert. denied

284 N.C. 261, 291 S.E.2d

691 (1974)

Smith v. Hooey, 393 U.S, 374

(1969)

Strunk v. United States, 412

U.S. 434, 93 S.Ct. 2261,

37 L.Ed.2d 56 (1973)

United States v. Hanna, 347

F. Supp. 1010 (Del. 1972)

United States v. Macino, 486

F.2d 750 (7th Cir. 1973)

United States v. Mann, 291

F. Supp. 268 (S.D.N.Y.

1968)

iii

27

17

37

24

CONSTITUTIONAL PROVISIONS:

United States Constitution

Amendment VI

STATUTORY PROVISIONS:

18 U. S.C, 1361

28 U.S.C.A,. 1254(1)

N.C, 1973 Criminal Procedure

Act, Sessions Laws 1973

C. 1285, $.26

TREATISES :

Rudstein, The Right to a

Speedy Trial: Barker vs.

Wingo in the Lower Courts,

1975 Univ. Iil. L.F, 11

iv

19

29

37

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 1977

No.

A. B. MORRISON,

Petitioner

DAVID L. JONES,

Commissioner of Correction,

Department of Social

Rehabilitation and Control

for the State of North

Carolina,

Respondent.

KKREKEEKREEREERREREREREERERERREREER EI ERE

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KKREKEKREREKRREREREREERERERERERERERER ERE

The petitioner, A. B. Morrison,

prays that a Writ of Certiorari issue

to review the judgment of the United

States Court of Appeals for the Fourth

Circuit entered in this cause on

October 31, 1977.

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Fourth.

Circuit is annexed to this petition

as Appendix A. The opinion of the

United States Court of Appeals for

the Fourth Circuit is not reported.

The opinion of the United States

District Court for the Western

District of North Carolina is annexed

to this petition as Appendix B. The

opinion of the United States District

Court for the Western District of

North Carolina is reported at 428 F.

Supp. 82 (W.D.N.C. 1977).

JURISDICTION

The jurisdiction of this Court is

invoked under 28 U.S.C.A. 1254(1).

QUESTION PRESENTED

Is a citizen's rights to a speedy

trial under the Sixth Amendment of the

Constitution of the United States

violated when over three and one-half

years elapsed between arrest and final

conviction, during which time there

was no active prosecution for two

years and thereafter a nol pros was

taken and the case remained dormant

for an additional period of one year

and the defendant was actually and

substantially prejudiced by these

lengthy delays.

CONSTITUTIONAL PROVISION INVOLVED

Constitution of the United States

AMENDMENT VI,

In all criminal prosecutions the

accused shall enjoy the right to a

speedy and public trial, by an impar-

tial jury of the state and district

wherein the crime shall have been

committed, which district shall have

been previously ascertaired by law,

and to be informed of the nature and

cause of the accusation; to be con-

fronted with the witnesses against him;

to have compulsory process for obtain-__

ing witnesses in his favor, and to have

the assistance of counsel for his

defense.

2

STATEMENT OF CASE

This proceeding arises in the

United States Court of Appeals for the

Fourth Circuit,

A.B. Morrison was convicted of

second degree murder in Mecklenburg

County Superior Court on April 16,

1973, and sentenced to serve twenty

years in the state's prison system.

His conviction was affirmed by the

North Carolina Court of Appeals.

State v. Morrison, 19 NC App 717, 199

SE2d 708 (1973). Certiorari was

denied by the Supreme Court of North

Carolina; State v. Morrison, 284 NC

621, 201 SE2d 691 (1974).

A.B. Morrison filed an applica-

tion for a writ of habeas corpus in the

United States District Court, Western

District of North Carolina on May l,

1974, alleging that he had been

denied effective assistance of counsel,

the right to procure a witness, and

due process due to the judge's charges.

On August 12, 1974, Honorable James

B. McMillan entered an order denying

the application. A.B, Morrison then

moved the United States District Court

for a rehearing with oral argument on

the application. This motion was

granted by the United States District

Court September 23, 1974, and set for

argument January 20, 1975. At the

January 20, 1975 hearing A. B.

3

Morrison moved to amend the petition

for writ of habeas corpus co include

an allegation of failure to provide

a speedy trial. Honorable James B.

McMillian denied the motion to amend

without prejudice to renew after

state remedies had been exhausted.

On February 14, 1975, A. B. Morrison

filed a motion for a post conviction

hearing in Mecklenburg County Superior

Court. A plenary hearing on the

matter was granted and was held on

April 14, 1975. On June 17, 1975, the

Honorable Fred H. Hasty, Senior Resi-

dent Superior Court Judge, entered an

order denying the petition for post

conviction relief.

Certiorari was denied by the

North Carolina Court of Appeals on

July 9, 1975. On July 15, 1975,

A. B. Morrison filed a petition for

a writ of habeas corpus in the United

States District Court, Western District

of North Carolina, Charlotte Division,

reasserting his allegation that he was

denied his constitutional right to a

speedy trial and also requesting bond.

On August 11, 1975, the United States

District Court entered a Show Cause

Order. On August 28, 1975, A. B.

Morrison filed a motion requesting

bond. The State answered on Septem-

ber 22, 1975. On January 30, 1976,

an addendum to the petition for writ

of habeas corpus was filed by A. B.

4

Morrison. On March 3, 1976, the

District Court entered an Order

requiring an evidentiary hearing on

che question of the new evidence which

was the basis of the reopening of the

case by the prosecution, This hearing

took place on April 26, 1976. The

District Court on February 9, 1977

entered an order requiring that a writ

of habeas corpus issue and that A. B.

Morrison be released. The State of

North Carolina gave notice of appeal

from the decision of the District

Court on March 1, 1977 which appeal

was docketed on March 18, 1977 with

the United States Court of Appeals

for the Fourth Circuit.

The matter was argued October 5,

1977 before the United States Court of

Appeals for the Fourth Circuit and

on Ocfober 31, 1977 the order of the

district court was reversed,

STATEMENT OF FACTS

On September 4, 1969, a warrant

was issued for the arrest of Alvin B.

Morrison, along with George E. Cox,

for First Degree Murder. On September

6, 1969, Morrison and Cox were arrested

in Kentucky and remained in jail there

until they were brought to the city of

Charlotte, North Carolina on November

19, 1969 pursuant to an extradition

warrant. On January 5, 1970 an

5

indictment and true bill were found

by the grand jury against both A. B.

Morrison and George E. Cox. Morrison

remained in jail until February 16,

1970, when he stood trial in the

Superior Court of Mecklenburg County,

North Carolina, for second degree

murder. George E. Cox became the

principal witness for the State and

thereafter the State elected to take

a nolle prosse in the case against

George E. Cox. A unanimous verdict

could not be reached in the case and

a mistrial was declared, A. B.

Morrison was released on a $7,500.00

bond.

After the mistrial was declared,

no action was taken in this case

until January 20, 1972, and no further

investigation was made. Nothing was

done by the State of North Carolina

to resume the prosecution of this case

and it was recalendared on January 20,

1972. Peter Gilchrist, the Assistant

District Attorney, reviewed the matter

and determined that there was no

evidence which had not been presented

in the first trial to indicate that

a successful prosecution could take

place, and on January 20, 1972, the

Assistant District Attorney elected

to take a Nolle Prosse with leave.

The case continued to remain

dormant until August, 1972, when

6

Lt. Smith of the Mecklenburg County

Police Department allegedly received

a telephone call from Mr. Linville

Spencer in Kentucky who said he had a

pistol which A, B. Morrison said he

had used to kill a man in North Caro-

lina. Mr. Spencer came to Charlotte

with the weapon and made a statement

to the police, On the basis of this

information, the Assistant District

Attorney decided to re-open the case

and asked the Court to re-calendar the

case based upon this information. On

December 13, 1972, the case was re-

opened by order of the court and a bond

for his appearance was set at $1,000.00.

Morrison waived extradition. The trial

was scheduled for April 24, 1973. The

court-appointed attorney for Morrison

filed a motion for a continuance

because Morrison's privately retained

counsel in Tennessee would be unable

to be present for the trial. The motion

was denied,

Before the trial, the Assistant

District Attorney determined that the

alleged weapon and new evidence that

he had received and used to re-open

the case was false and unreliable.

This was known to him to be false

before he began the second trial. It

was further known to the Assistant

District Attorney that not only was

the evidence allegedly produced by

Linville Spencer false, but that there

7

s

was a revengeful purpose behind the

statement and production of the alleged

murder weapon on the part of Spencer.

The District Attorney had also deter-

mined before the trial that the weapon

had not been sold to the original

purchaser until after the murder and

that the police department's ballistics

experts had examined the gun and con-

cluded that it was not the murder

weapon. Nevertheless, the District

Attorney decided to proceed to trial.

Linville Spencer did not testify at

the second trial.

A. B. Morrison was convicted of

second degree murder and sentenced to

twenty years imprisonment.

The evidence at the second trial

covered substantially the same ground

as that at the original trial, with

three exceptions. These exceptions

were the testimony of the witness

Whitfield, the testimony of the witness

Bryan, and the testimony of Morrison

himself denying all guilt.

George E. Cox was the principal

witness and his testimony at both

trials tended to show the following:

Cox and Morrison worked for

Connelly Home Improvement Company in

Ashland, Kentucky. They and their

wives were friends. Cox had a heart

attack and moved back to Locust, North

Carolina. In early September, 1969,

pursuant to some telephone conversa-

tions, Morrison and his wife drove

from Kentucky to North Carolina to

meet Cox and talk about going back

into business together, either in

North Carolina or back in Kentucky

with Connelly.

Ralph Gordon, the deceased, was

a stranger to Morrison but a personal

friend of Cox. Gordon and Cox had

known each other for six or seven

years and had lived and worked toge-

ther. They renewed close contacts

when Cox returned to North Carolina.

Morrison, his brother, wife, and

children went to the Cox's house. It

was Labor Day Weekend. The Morrisons

and Cox and Gordon started drinking

together and drank considerable

amounts over a period of many hours.

The three men then went to a river

house owned by L. T. Smith and

remained there drinking and playing

cards from about 6:30 or 7:00 in the

evening of September 3rd until about

11:00 p.m. They had dinner, played

the guitar, and sang. There was a

dispute between Morrison and Gordon

over a poker hand involving a pair

of queens but there was no violence.

They compromised by "splitting the

pot," and played some more poker

later on and Morrison won.

9

Morrison and Cox and the deceased,

Gordon, left the Smith cabin, all

fairly well intoxicated, about 11:00

P.M, or later. They headed east

toward Locust some thirty or forty

miles away. They stopped at an Esso

station in Charlotte at Tryon Street

and Sugar Creek Road. Gordon got out

of the car to call a friend or a taxi

to complete the trip to his home.

Later, Cox testified, Gordon re-joined

them at a restaurant a short distance

away. The witness Cox said that he,

being pretty drunk, went to sleep or

"passed out." He was awakened by the

sound of gunshots and looked around

and saw that he was alone in the car

in a church yard. He went back to

sleep and the next thing he remembered

was Morrison waking him and asking him

to drive the rest of the way home.

On the way home, Cox said, Morrison

told him that he had killed Gordon.

Cox did nothing about it and expressed

only momentary surprise and disbelief.

He said, in fact, that he did not.

believe it.

The next day, Morrison and Cox

drove with their families to Kentucky

and spent the night in a motel near

Morrison's Kentucky home. .They were

arrested on September 6th when they

went to Morrison's home.

10

In another version of Morrison's

statements, Cox testified that Morrison

told him while they were in jail in

Kentucky, that Gordon had attacked him

with fists, and had pulled a gun on

him and had actually fired at Morrison

and that Morrison had taken the gun

away from Gordon and killed him.

Other witnesses testified about

the various events at the Smith river

house that night, but Cox was the only

witness to any of the events that took

place after Morrison, Cox, and the

deceased left the Smith house after

11:00 P.M,

There was no evidence that Morri-

son had a gun that night. Cox stated

that there vas no gun in the car.

There were no fingerprints or other

marks. There was no physical evidence.

The only evidence against Morrison

(other than statements by police

relating what Cox had said to them)

was the testimony of Cox himself.

L. G. Whitfield was an attendant

at the Esso station. He had been

known as a witness by the prosecution

at the first trial but had not been

called to testify.

Whitfield testified at the second

trial that on the night of the murder

three men in a car stopped at his

11

station and asked for directions to

Locust, North Carolina, and that he

saw the handle of a gun on the front

seat of the car. Whitfield had given

a statement to the police five weeks

after the death, but had not mentioned

a pistol. He could not identify

Morrison or Cox. He stated that

Morrison “resembled” the man that

asked for directions. (Cox's testimony

had shown that Cox asked for directions).

Whitfield himself stated that it had

been a long time and he had been

through a "whole lot of stuff" since

then,

The prosecuting attorney at the

second trial was a new man who had

not conducted the first trial. He

testified in an effort to explain

why Whitfield had not been called as

a witness in the first trial and could

only say that he was informed that

either he was in the hospital or for

some reason he had not testified at

the first trial. This falls far short

of a competent showing that the witness

Whitfield was in fact unavailable at

the first trial and does not answer

why, if due care had been taken to

prepare the case for the first trial,

it was not postponed as a routine

matter upon motion or decision of the

prosecutor.

Howard Bryan testified at the

second trial. He had also been known

12

a”

to the prosecution at the time. of the

first trial but the state had elected

not to offer his testimony at the

first trial.

His testimony at the second trial

was that a week or so before Morrison

came to North Carolina, Morrison had

asked him where he could buy a pistol

for the protection of his wife. Bryan

and Morrison went to the home of

Bryan's cousin, looked at a pistol and

tried it out. He testified that

Morrison bought the gun, a .38 caliber

pistol of Spanish make, some twenty-

five or thirty years old. He also

testified that his cousin had died

two years before.on December 15, 1971.

Morrison testified that he and

Cox parted company with Gordon, the

deceased, at the Esso station and

that he never saw him again. He

testified that he purchased food for

Cox's family and was trying on the

trip to North Carolina to help Cox

get back on his feet financially.

He testified that he never bought the

gun from Bryan's cousin.

Thus, the only new evidence at

the second trial was the circumstantial

evidence presented by the testimony

of the witnesses Whitfield and Bryan.

This testimony convicted Morrison

and he was sentenced to twenty years

imprisonment.

13

Re

REASONS FOR GRANTING CERTIORARI

The decision below should be

reviewed because the United

States Court of Arpeals for the

Fourth Circuit has rendered a

decision that is in direct con-

flict with the United States

Supreme Court's decision in

Klopfer v. North Carolina, 386

U.S, 213, 87 S.Ct. 988, 18 LEd2d

1 (1967). Moreover, the United

States Court of Appeals for the

Fourth Circuit refused to construe

Klopfer in pari materia with

Barker V. Wingo, 407 US 514, 92

S.Ct. 2182, 33 LEd2d 101 (1972).

This case involves the application

of criteria for determining when

a speedy trial has been denied,

formulated by Barker v. Wingo,

407 US 514, 92 S.Ct. 2182, 33 LEd

2d 101 (1972). The decision

below should be reviewed because

the United States Court of Appeals

for the Fourth Circuit has ren-

dered a decision that conflicts

with this Court's decision in

Barker.

There is substantial conflict and

variance in application among the

various circuit court of appeals

as to the analysis of the balanc-

ing test described in Barker v.

14

Wingo, 407 U.S. 514, 92 S.Ct. 2182,

33 LEd2d 101 (1972). This instant

case is an excellent opportunity

for the Court to reconcile these

conflicts, refine its meaning, and

prevent a growing, unacceptable

trend toward constriction of speedy

trial rights.

15

1. The decision below should be

reviewed because the United States

Court of Appeals for the Fourth

Circuit has rendered a decision that

is in direct conflict with the United

States Supreme Court's decision in

Klopfer v. North Carolina, 386 U.S,

213, 87 S.Ct. 988, 18 LEd2d 1 (1967).

Moreover, the United States Court of

Appeals for the nore Circuit refused

to construe Klopfer in pari materia

with Barker v, Wingo, 407 U.S, 514,

92 S.Ct. 2182, 33 LEd2d 101 (1972).

All of the courts below refused

to consider the Klopfer decision in

rendering their decisions. The

United States Court of Appeals for

the Fourth Circuit summarily dis-

missed Klopfer by way of a footnote

stating that the United States

Supreme Court found that the procedure

was unusual and was of uncertain

origin in North Carolina and that

statutes and case law provided author-

ity for entry of the nol pros "with

leave." This was not the crux of the

Klopfer decision which found that when

North Carolina used this procedure for

an “unjustified postponement of trial

for an accused discharged from custody",

it was an unconstitutional denial of

his right to a speedy trial. Klopfer,

386 U.S. at 219.

The North Carolina Supreme Court

16

had held in North Carolina v. Klopfer,

266 N.C. 349, 145 SE2d 909 (1966),

that if a prosecutor decided after a

mistrial due to a hung jury that

another trial would not be worth the

time’ and expense of another effort

that he could take a nol pros and

retry him at a subsequent term. Under

such conditions, the defendant did not

have the right to compel the State to

prosecute him,

This practice of nol pros was

rejected in Klopfer by the United

States Supreme Court that found all

of the other courts that had consid-

ered the matter had rejected it

except North Carolina and Pennsylvania.

The United States Court of Appeals

for the Fourth Circuit also failed to

follow the reasoning it adopted in

Lassiter v. Turner, 423 F2d 897 (1970).

In Lassiter, a defendant was coerced

into a guilty plea in another charge

because the district attorney threat-

ened to revive a prosecution that was

over five years old. The Lassiter

case per se shows the dangers inherent

in the procedural process known as nol

pros as used by the State of North

Carolina. Although Lassiter did not

object to the suspension of the secret

assault prosecution five years prior,

the Court went on to say "This is not

to say, however, that there was a

17

waiver of the right to a speedy trial.

There is no evidence that he knew of

his right to a speedy trial or that he

intended to relinquish it. Klopfer

held that the right guaranteed by the

Sixth Amendment extends, through the

Fourteenth Amendment, to persons

accused under state law." Lassiter,

423 F2d at 903. The United States

Court of Appeals for the Fourth

Circuit repeated the findings in

Klopfer that this unusual procedure

known as nol pros had been rejected

by all other courts considering it.

The Court specifically stated "that

the argument that the right to a

speedy trial does not afford affirma-

tive protection against an unjustified

postponement of trial has been expli-

citly rejected by every other State

Court [other than North Carolina]

which has specifically considered the

question. (386 US at 219, 87 S.Ct. at

991)." Lassiter, 423 F2d at 903.

This simply points out the con-

fusion that exists with reference to

this unusual process, The Court

seems to accept the Klopfer reasoning

in the Lassiter case, but explicitly

rejects Klopfer in the present case.

In the present case Morrison contends

that the Lassiter and Klopfer cases

are applicable to the questions pre-

sented in his case. The United States

Court of Appeals should not only have

18

construed Klopfer in pari materia with

Barker v. Wingo, supra, but should have

considered the Klopfer decision as

applied in Lassiter.

This unacceptable procedure of

nol pros was used against Morrison in

spite of Klopfer and Lassiter, It

remained in customary practice and use

in North Carolina until North Carolina

finally recognized this procedure as

being an inhabitant of Pandora's Box.

It was replaced by the 1973 Criminal

Procedure Act, Session Laws 1973, C.

1285, S.26, effective July 1, 1975.

This new act requives that if a vol-

untary dismissal is taken, it is a

final dismissal and new charges must

be brought within the statute of

limitations if no jeopardy has

attached. In Article 50 of the North

Carolina General Statutes, the official

commentary made special mention that

the Klopfer case had stated that the

system of "nol pros" previously used

was unconstitutional when it left

charges pending against a defendant

and he was denied a sp@edy trial.

Shouldn't North Carolina be taken

to task one more time by the highest

Court of our land for its unconstitu-

tional use of the procedure of nol

pros?

19

2. This case involves the application

of criteria for determining when a

speedy trial has been denied as forn-

ulated by Barker v. Wingo, 407 U.S.

514, 92 S.Ct. 2182, 33 LEd2d 101 (1972).

The decision below should be reviewed

because the United States Court of

Appeals for the Fourth Circuit has

rendered a decision that conflicts

with this Court's decision in Barker.

The Supreme Court denominated

four factors as a balancing test to be

considered along with other relevant

factors in determining whether or not

a citizen has been denied his right to

a speedy trial: length of delay, the

reason for the delay, assertion of the

right to speedy trial, and prejudice

to the defendant. Barker v. Wingo,

407 U.S, at 530.

The United States Court of Appeals

for the Fourth Circuit not only failed

to consider all four factors, but

failed to weigh each factor according

to the guidelines set forth in Barker.

1. Length of Delay

The Court below conceded and

agreed with the United States District

Court for the Western District of North

Carolina that the length of time between

the arrest and final conviction was

sufficient to act as a "triggering

20

mechanism" to inquire into the three

remaining factors identified in Barker.

But the court failed to pay even lip

service as to the reason for the delay

and weigh this factor heavily against

the government.

Although the Court in Barker did

not set forth an exact amount of time

at which there is an encroachment upon

a citizen's right to a speedy trial,

the many months that elapsed in the

Morrison matter should have been

weighed heavily against the State and

heavily in favor of the Defendant.

Such was the finding of the United

States District Court for the Western

District cf North Carolina.

The Court must consider Klopfer,

supra, at this point in pari materia

with Barker because of the unacceptable

machinery of nol pros that was used to

delay the trial.

Inasmuch as the length of delay

is conceded by the court below, although

apparently given no weight in the

balancing of the factors, we move to

the next balancing factor as set forth

in Barker.

~

2. Reason for Delay

The United States Court of Appeals

for the Fourth Circuit failed to

consider or discuss the second factor

21

enunerated in Barker.

The State admits that in January

of 1972 a decision was made that a

retrial would be unsuccessful and

took a nol pros with leave to hold

the indictment open. The Court of

Appeals for the Fourth Circuit

ignored the fact that Klopfer had

already decided that this was unaccep-

table and unconstitutional inasmuch as

it denies speedy trial. In light of

the fact that North Carolina had been

informed through Klopfer that this is

an unjust postponement, it must be

declared by this Court to be a

deliberate attempt to delay the trial

by unconstitutional methods.

In Lassiter, supra, the United

States Court of Appeals for the Fourth

Circuit had already found this same

procedure to be unjustiffed. Heavy

weight should be given to a deliberate

attempt on the part of the prosecution

to delay a trial. Barker v. Wingo,

407 U.S. at 531.

If allowed to stand, the proce-

dure of using a nol pros as inflicted

on the Petitioner herein will have

staggering implications to the right

of speedy trial. It will allow the

State to wait (either before a trial

or after a hung jury) until new

leads or new witnesses appear before

22

further prosecution, even if the new

information is not presented in the

trial. It will destroy the speedy

trial right with the use of a nol

pros and may even go on to the Federal

Courts and make the Federal Speedy

Trial Act (18 U.S, Code 1361, et seq.)

meaningless.

3. Assertion of Right

Morrison does not contend that he

slept at the courthouse doorsteps

crying out to be prosecuted. There

are few such people on the courthouse

doorsteps and even fewer within the

prison walls. But his failure to

"wail" is not fatal according to

Barker. Barker v. Wingo, 407 U.S. at

528.

Later in Strunk v. United States,

412 U.S. 434, 93 S.Ct. 2261, 37 LED2d

56 (1973), this Court refined its

position on assertion of right in

footnote 2. "It can also be said

that an accused released pending

trial often has little or no fmterest

in being tried quickly; but this,

standing alone, does not alter the

prosecutor's obligation to see to it

that the case is brought on for

. )

As the years pass it is not

unreasonable to assume that the gov-

23

ernment has abandoned its prosecution.

"It is commonly understood that the

defe..dant will hesitate to disturb

the ‘hushed inaction’ by which

dormant cases have been known to

expire." United States v. Mann, 291

F. Supp. 268, 274-275 (S.D.N.Y. 1968).

Morrison made no effort to evade

or delay retrial at any time. There

was every indication that he would

not be retried. The case lay dormant

without any investigation being made

by the prosecution for twenty-three

months after the first trial. A nol

pros with leave was entered. The case

remained dormant again for a year. The

State's own testimony shows that they

did not feel they could have a success-

ful prosecution. His court-appointed

attorney indicated to Morrison that

he would not be retried and that the

State planned to nol pros the matter.

To mandate the citizen to be com-

pletely responsible for the preservation

of his Sixth Amendment rights does not

withstand the test of reasonableness.

The citizen is usually neither practi-

cably nor legally in control of the

trial of his case. Requiring such

mandate inevitably compels forfeiture.

Ignorant forfeitures under any circum-

stances should never be tolerated in

a free society.

24

4. Prejudice

The United States Court of Appeals

for the Fourth Circuit stated there

was no showing of prejudice. It

refused to take into consideration

either the actual prejudice to this

Petitioner's defense or the anxiety

and concern that accompanied him for

these years.

Evidence at the first trial

covered substantially the same ground

as the original trial with three

exceptions: the testimony of the

witness Whitfield, the testimony of

the witness Bryan, and Morrison him-

self.

Whitfield, the attendant at the

service station, was not called to

testify at the first trial even though

the prosecutor knew him as a witness.

His testimony at the second trial

(that he saw a gun on the front seat)

was substantially different from a

statement he gave to the police shortly

after the murder and substantially

different from the testimony of the

principal witness for the state and

co-defendant, He identified Morrison

as the man sitting on the passenger

side of the automobile, but the princi-

pal witness and co-defendant, Cox, had

testified that he himself was seated

in this position. His testimony about

the gun and his identification could

25

have been challenged and tested by

fresh memory and circumstances. The

prosecuting attorney at the second

trial could not explain why Whitfield

had not been called to testify at the

first trial or why the case had not

been postponed if he had been unavail-

able.

Bryan also testified at the second

trial even though he had not testified

at the first trial. He stated that

Morrison had purchased a pistol from

Bryan's cousin about a week before the

murder. The cousin from whom Morrison

had allegedly bought the gun had died,

according to Bryan, on December 15,

1971. This is almost a year after the

mistrial. Had a speedy trial followed

the mistrial, Morrison could have

subpoeaned Bryan's cousin to challenge

Bryan's testimony.

The "new" evidence at the second

trial was totally circumstantial. But

this circumstantial evidence, that

had been available at the first trial,

made the difference between acquittal

and conviction. Morrison was unable

to challenge Whitfield's testimony

because it was not fresh in his memory.

Bryan's cousin had died and could not

be called as an important defense

witness.

Were it not for this "new" circum-

26

stantial testimony, Morrison probably

would not have been convicted. His

defense was greatly prejudiced by the

delay.

Additionally, according to Lassi-

ter v. Turner, 423 F.2d 897, 903 (4th

Cir. 1970), the defendant in the present

case has met the North Carolina require-

ment of a "reasonable possibility of

prejudice."' Certainly three and one-

half years between arrest and final

conviction is a sufficient period of

time for the possibility of prejudice

to creep in. According to Lassiter,

there need only be the possibility of

prejudice as opposed to actual or

probable prejudice. The United States

Court of Appeals for the Fourth Circuit

refused to consider this North Caro-

lina requirement as set forth in

Lassiter and previously set forth in

State v. Johnson, 275 N.C. 264, 167

S.E.2d 274 (1969).

Neither can personal prejudice to

Morrison be ignored in the light of

the extended time in which his freedom

was held in limbo for over three years.

In Strunk v. United States, 412 U.S.

434, 93 S.Ct. 2261, 2263, the Court

recognized that "prolonged delay may

subject the accused to emotional stress

that can be presumed to result in the

ordinary person from uncertainties in

the prospect of facing public trial...

27

uncertainties that a prompt trial

removes.'' (Emphasis added). This is

especially true in a capital case such

as the present one.

The United States District Court

for the Western District of North

Carolina found as a fact that actual

prejudice was shown by the difference

in Whitfield's statement to the police

and his testimony three and one-half

years later in the second trial. As

stated in that opinion, Testimony

three and one-half years old is far

less precise and reliable that testi-

mony given promptly after an event."

CONCLUS ION

When all of the factors enumerated

in Barker are weighed and balanced, the

extraordinary delay between arrest and

conviction must be weighed heavily

against the government, as must the

unjustified and unconstitutional

procedure used to deliberately delay

the trial. The actual and substantial

prejudice to the Petitioner's defense

and the anxiety and concern that

accompanied him for three and one-half

years must weigh most heavily in his

favor. The fact that Morrison did

not stand at the prosecutor's door

demanding a retrial cannot be weighed

heavily against him under his circum-

stances inasmuch as it is the duty of

the State to bring a case to trial.

28

3. There is substantial conflict and

variance in application among the

various circuit court of appeals as

to the analysis of the balancing test

described in Barker v. Wingo, supra.

This instant case is an excellent

opportunity for the Court to reconcile

these conflicts, refine its meaning,

and prevent a growing, unacceptable

trend toward constriction of speedy

trial rights.

Until Barker v. Wingo, supra, in

1972, speedy trial was largely unde-

fined. Barker set out a balancing

test with four factors to be considered:

length of delay, reason for delay,

assertion of right, and prejudice to

the defendant. However, many facets

nave been criticized and many questions

remain unanswered.

In 1975, Assistant Professor of

Law, D.S. Rudstein, studied the lower

court decisions to determine if and

how the broad standards of Barker had

been applied and if mere lip-service

had been paid to the balancing process.

Rudstein, The Right to a Speedy Trial:

Barker vs. Wingo in the Lower Courts,

1975 Univ. Ill. L,F. 11 (1975). His

examination of lower court decisions

revealed a need for the Supreme Court

to reformulate or at least refine the

balancing test of Barker. The conflicts

in the opinions are legion. A brief

29

discussion of some of these conflicts

follows to demonstrate the urgent

need for reformulation or refinement.

Length of Delay

The Court in Barker stated that

if the delay is “presumptively preju-

dicial,"' it triggers an inquiry into

the other factors. To determine

whether or not the delay is "presump-

tively prejudicial" depends upon the

circumstances of each case. Less

delay can be tolerated for an ordinary

street crime than for a serious,

complex conspiracy. Most lower courts

ignore that types of offenses should

be treated differently and have gen-

erally set a time limit of one year

as being “presumptively prejudicial."

However, in computing the length

of delay, many courts have subtracted

the time period not attributable to the

prosecution or orderly p vocessing of

the case from the total length of delay.

This was not suggested in Barker nor

in the later decisions of Strunk v.

United States, 412 U.S. 434, 93 S.Ct.

2261, 37 L.Ed.2d 56 (1973) and Moore

v. Arizona, 414 U.S. 25, 94 S.Ct. 188

38 L.Ed.2d 183 (1973).

There is disagreement as to

whether the length of delay is to be

used only as a triggering mechanism

30

or whether it should be given weight

in the balance test. Surely a defen-

dant whose trial was delayed four

years should be given more weight than

one which was delayed only one month.

Unless this factor is weighed in the

balancing process, the State will not

try to lower its court congestion or

attempt to overcome its negligent

treatment of cases.

Reason for Delay

In Barker, supra at 531, the

Court concluded that different weights

should be given for different reasons

for delay.

"A deliberate attempt to delay

the trial in order to hamper

the defense should be weighed

heavily against the govern-

ment. A more neutral reason

such as negligence or over-

crowded courts should be

weighed less heavily but

nevertheless should be con-

sidered since the ultimate

responsibility for such cir-

cumstances must rest with the

government rather than with

the defendant. Finally, a

valid reason, such as a miss-

ing witness, should serve to

justify appropriate delay."

31

For a valid reason, the govern-

ment may take an "appropriate" delay.

The major problem is how long is

a valid delay "appropriate", The

lower courts have held that valid

delays are "justified" for almost

exy period of time.

Negligence and over-crowded

court dockets are examples of "neutral"

reasons for delay. Barker stated

that under these circumstances, this

factor should be weighed “less heavily"

against the government, but neverthe-

less weighed. However, most lower

courts justify a delay due to court

congestion and give no weight to

this factor. A few courts, because

of Justice White's concurring opinion

in Barker, have weighed crowded court

dockets heavily against the govern-

ment since the defendant is not

responsible for the condition,

Negligent delays have been

weighed lightly against the govern-

ment and most courts discount it

entirely.

Only two courts have found an

intentional delay situation. In

Arrant v. Washington, 468 F.2d 677

(5th Cir. 1972), cert. denied, 410

U.S. 947 (1973), out of a two year

delay, fifteen months was considered

unjustified and weighed heavily

32

against the government. The only

reason the government gave for the

delay was that it felt it could not

convict the defendant earlier. This

case is analagous to the instant

case for this reason,

In U,S, v. Hanna, 347 F. Supp.

1010 (Del. 1972), the defendant was

told that he would not be prosecuted

if he co-operated to convict another

individual. Although he co-operated,

he was subsequently indicted for this

offense ..d another. The Court

condemned the government for "lulling

the defendant into a false sense of

security" that he would not be tried.

Although Barker does not say that

a deliberate delay is necessary to a

denial of speedy trial rights, most

lower courts have held that a good

faith attempt on the part of the gov-

ernment is a justification for a

lengthy delay of trial.

Assertion of Right

In Barker, the Court rejected the

demand-waiver policy. The lower courts

have had little difficulty in deter-

mining whether a defendant has adequately

asserted his right and have generally

been liberal in approving the method

used, However, the assertion must

also be timely and the court will look

behind the formal demand for trial to

33

try to determine whether the defendant

really wanted a speedy trial. There

is great danger of interpreting a

legitimate demand for trial as merely

pro forma and finding that the defen-

dant did not want a speedy trial when

he actually did. Indeed, there is

even this danger when a defendant

makes no assertion of his right.

Fxcept for speedy trial rights, no

other fundamental right is lost except

when expressly waived. Silence should

not be considered a waiver, A defen-

dant should not be required to seek

his own prosecution.

If Barker had considered the

right to a speedy trial and assertion

of that right in traditional waiver

terms, it is likely that the results

reached in many cases would have been

different.

Prejudice

In Barker, the Court stated that

the possibility that the defense will

be impaired is very serious and a

major purpose of speedy trial.

The Court did not discuss the

burden of proof on this issue and

this has been criticized as a weakness

in the Court's opinion, since proof

of actual prejudice may be difficult

34

to show.

Witnesses that have died or dis-

appeared and loss of memory (which is

hard to reflect in the record) are

examples given of possible prejudice

to the defense.

However, in practice, the lower

courts have put too much burden on

the defendant and have required him

to show actual and substantial pre-

judice before weighing this factor in

his favor. Even though a witness is

missing, many times the defendant

must show that he could have aided

his defense and that the testimony

would have changed the verdict. Only

in United States v. Macino, 487 F.2d

750 (7th Cir. 1973) did the court find

that a missing witness, even though his

testimony was unknown, was enough to

create a strong possibility of pre-

judice. Usually the only evidence of

prejudice that is accepted must be

in the record even though the Barker

court realized it is difficult to

demonstrate what is forgotten.

Even though “living under a

cloud of anxiety and suspicion" was

a “major evil protected against by

the speedy trial guarantee, the

Barker court considered this type

of prejudice minimal for four years.

Therefore, lower courts rarely mention

prejudice of this nature. One can not

35

imagine how long this cloud must hang

over a defendant's head before this

prejudice becomes more than minimal

if not in four years,

In spite of Smith v. Hooey, 393

U.S. 374 (1969), only a few courts

have even found that pre-trial incar-

ceration is minimal prejudice, much

less existent.

CONCLUSION

After the Courts have determined

which party benefits by each factor

separately and how heavily each factor

should be weighed, then all of the

factors should be balanced to see if

the defendant has been denied a speedy

trial. In Barker, there was a neutral

reason for the delay, no assertion by

the defendant, and minimum prejudice.

The Court considered this a "close"

case.

The lower courts have been faced

with many problems when the factors do

not fall precisely within Barker. Not

only is stare decisis totally lacking

in the Circuit Courts and the District

Courts, but there is confusion and»

conflict inter se among the courts.

Many facets of Barker have been

criticized and some with validity.

These include the Court's treatment of

36

of delay caused by negligence, the

Court's treatment of the defendant's

failure to assert his speedy trial

right, and the Court's treatment of

the relationship between length of

delay and prejudice, Rudstein, supra

at 58.

There are also many questions

that remain unanswered. How should

time be computed? Is time merely a

"triggering mechanism" or should it

be given weight as a separate factor?

How long is an "appropriate" delay

with a valid excuse? How heavy should

a "neutral" reason for delay be weighed

against the government? Who has the

burden of proof of prejudice to the

defendant? What is substantial pre-

judice? Rudstein, supra, at 58. Is

actual prejudice necessary? How great*

does the "possibility of prejudice"

have to be before prejudice becomes

substantial?

The Supreme Court needs to re-

examine Barker and reformulate portions

of the balancing process and needs to

redefine some of its guidelines. The

Court indicated a willingness to do

this in Strunk v. United States, supra,

and Moore v. Arizona. This instant

case is an excellent vehicle for the

Court to reformulate and redefine.

There has been no case reported where

there has been a purposeful delay with

no assertion as in the instant case,

37

Surely, when there has been a pur-

poseful delay with substantial

prejudice, assertion must not be

required,

38

CONCLUS ION

For the reasons set forth above,

it is respectfully submitted that this

Petition for Writ of Certiorari should

be granted.

Robert! F. Rush

300 Law Building

Charlotte, North Carolina

Phone: (704) ee2-6114

Counsel for Petitioner

sh 1

Ay ;

¢ ALLY Mbhina/

Jo/Hill Dobbins

(On Petition for Writ)

39

APPENDIX TO PETITION

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1347

A. B. MORRISON,

Appellee,

versus

DAVID L, JONES,

Commissioner of Correction,

Dept. of Social Rehab. and

Control for the State of

North Carolina.

Appellants.

Appeal from the United States District

Court for the Western District of

North Carolina, at Charlotte.

James B. McMillan, District Judge.

Argued October 5, 1977

Decided October 31, 1977

Before BRYAN and FIELD, Senior Circuit

Judges, and WIDENER, Circuit Judge.

A-1

Joan H. Byers, Associate Attorney

General (Rufus L. Edmisten, Attorney

General of North Carolina on brief)

for Appellant; Robert F. Rush (Jo

Hill Dobbins on brief) for Appellee.

FIELD, Senior Circuit Judge:

A. B. Morrison, a North Carolina

prisoner, filed a petition for habeas

corpus in the district court alleging

that the state had violated his right

to a speedy trial under the Sixth

Amendment, The court granted the

petition and North Carolina has

appealed.

In an indictment returned by a

state grand jury on January 5, 1970,

the petitioner was charged with first

degree murder allegedly committed on

September 4, 1969. The first trial on

February 19, 1970, resulted in a mis-

trial when the jury failed to reach a

verdict. Some two years elapsed and

on January 20, 1972, the state took

A-2

a nolle prosequi "with leave."! There-

after, in December of 1972, the prose-

cution was revived and a new warrant

was issued for Morrison's arrest. On

January 29, 1973, on motion of the

petitioner the case was continued for

the Term of February, 1973. It was

calendared for trial on April 20, 1973,

at which time the petitioner's motion

for another continuance was denied and

trial was set for April 24, 1973. On

retrial, the jury found Morrison guilty

and his conviction was affirmed by the

North Carolina Court of Appeals and

« In Klopfer v. North Carolina,

386 U.S, 213, 215, 216 (1967), the

Court noted that this unusual procedure

was of uncertain origin in North Caro-

lina, although both state statutory

and case law arguably provided autho-

rity for the entry of a nolle prosequi

"with leave", Although it has no

bearing upon our decision, we were

advised by counsel at oral argument

that the procedure is no longer used

since the statutory basis, N.C. Gen.

Stat. § 15-175 (1965), was repeated by

the state's 1973 Criminal Procedure Act,

Session Laws 1973, c. 1286, S.26, effec-

tive July 1, 1975. The new statute

also added speedy trial provisions to

the state's criminal procedure. See

N.C, Gen. Stat. §§ 15A-701 through 706

(1975 Replacement Volume).

A-3

certiorari was denied by the state

Supreme Court.

In granting the petition, the

district judge concluded that Morrison

had satisfied the four factors speci-

fied by the Court in Barker v. Wingo,

407 U.S. 514 (1972). While we agree

with the district judge that the delay

of some three years was sufficient to

trigger a consideration of the other

factors identified in Barker, in our

opinion the absence of any showing of

prejudice and the failure of the

petitioner to assert his right to a

speedy trial preclude relief in this

case. The district court entered an

order specifically inviting the peti-

tioner to discuss in a separate writing

all of the facts bearing upon his

constitutional claim in the light of

Barker, but the only response was a

general reference to the state record.

Other than the lengthy cloud of suspi-

cion and anxiety attendant upon any

criminal charge, Morrison asserted no

. Claim that any witness had died or

. otherwise become unavailable, nor any

other significant impediment to his

defense as a result of the delay.

Even more palpable from the record

is the fact that, like Barker, Morrison

did not desire a speedy trial. The

affidavit of Hugh B. Campbell, Jr.,

Morrison's attorney, discloses that

A-4

prior to the date of the nolle prosequi,

Morrison and Campbell .wiscussed the

matter and decided not to request a

retrial, and that following the pels

rosequi Morrison and Campbell, feeling

that the matter was ended, filed no

motions of any kind,

Based upon our examination of the

record, we agree with the finding of the

state post-conviction judge that be-

tween his first and second trials

neither Morrison nor his counsel did

anything to assert his constitutional

right under the Sixth Amendment, nor

vas there any evidence to show that

Morrison's defense was in any way im-

paired by the lapse of time, Accord-

ingly, the order of the district court

is reversed,

REVERSED.

A-5

IN THE DISTRICT COURT

OF THE UNITED STATES

FOR THE WESTERN DISTRICT

OF NORTH CAROLINA

Charlotte Division

C-C-75-250

A, B,. MORRISON, Petitioner,

#“VEg-

DAVID L, JONES, Commissioner of

Correction, Department of Social

Rehabilitation and Control for

the State of North Carolina,

Respondent.

ORDER

ROBERT F, RUSH and ROBERT A,

KARNEY, 300 Law Building, Charlotte,

North Carolina 28202, counsel for

petitioner,

RICHARD N, LEAGUE, Assistant

Attorney General, North Carolina

Department of Justice, Post Office

Box 692, Raleigh, North Carolina,

counsel for respondent,

Before James B, McMillan,

District Judge

Filed February 9, 1977

A-6

FINDINGS OF FACT

A. B. Morrison, a North Carolina

state prisoner, seeks habeas corpus,

alleging violation of his right under

the Sixth Amendment to a speedy trial,

Petitioner and a friend and bus-

iness acquaintance named George E, Cox

were charged in the Superior Court of

Mecklenburg County, North Carolina,

with the crime of first-degree murder,

allegedly committed on September 4,

1969, Cox and Morrison denied guilt,

However, after several months in jail

awaiting trial, the accused Cox turned

state's evidence and arranged to

testify against Morrison, He did so

testify in both subsequent trials;

his prosecution was nol prossed and

was not, so far as the record shows,

revived,

Morrison was tried twice,

The first trial was on February

19, 1970, It resulted in a mistrial

because of a hung jury. Cox was the

principal witness, His testimony

tended to show the following:

Cox and Morrison worked for

Connelly Home Improvement Company

in Ashland, Kentucky, They and their

wives were friends, Cox had a heart

attack and moved back to Locust, North

A-7

Carolina. In early September, 1969,

pursuant to some telephone conversa-

tions, Morrison and his wife drove

from Kentucky to North Carolina to

meet Cox and talk about going back

into business together, either in

North Carolina or back in Kentucky

with Connelly.

Ralph Gordon, the deceased, was a

stranger to Morrison but a personal

friend of Cox. Gordon and Cox had

known each other for six or seven

years and had lived and worked together.

They renewed close contacts when Cox

returned to North Carolina.

Ty

Morrison and his brother and wife

and children went to Cox's house. It

was Labor Day weekend. The Morrisons

and Cox and Gordon started drinking

together and drank considerable amounts

over a period of many hours. The three

men then went to a river house owned by

L. T. Smith and remained there drinking

and playing cards from about 6:30 to

7:00 in the evening of September 3rd

until about 11:00 P.M, They also had

dinner and did some singing. There

was a dispute between Morrison and

Gordon over a poker hand involving a

pair of queens; there was no violence;

the evidence showed that they compro-

mised the issue by "splitting the pot,"

and played some more poker later on.

Morrison won.

A-8

Morrison and Cox and the deceased,

Gordon, left the Smith cabin, all

fairly well intoxicated, about 11:00

P.M. or later, and headed east toward

Locust, some thirty or forty miles

away. They stopped at an Esso station

in Charlotte at Tryon Street and Sugar

Creek Road. Gordon got out of the car

to call a friend or a taxi to complete

the trip to his home. Cox further

testified that a few minutes later

Gordon re-joined the other two at a

restaurant a short distance away.

The witness Cox said that he, being

pretty drunk, went to sleep or "passed

out." He was awakened by the sound of

gunshots and looked around and saw that

he was alone in the car in a church

yard. Morrison got back in the car,

without Gordon, and they drove home.

On the way home, Cox said, Morrison

told him that he had killed Gordon.

Cox apparently did nothing about it

and expressed only momentary surprise

and disbelief. He said, in fact, that

he did not believe it. (T.p.21).

Morrison and Cox drove with their

families to Kentucky the next day, and

spent the night in a motel near Morri-

son's Kentucky home. They were arrested

September 6th when they went to Morri-

son's home, and were charged with first

degree murder.

In another version of Morrison's

A+9

statements, Cox testified (T.p. 28)

that Morrison told him, while they

were in jail in Kentucky, that Gordon

had attacked him with fists, had

pulled a gun on him; and had actually

fired at Morrison and that Morrison

had taken the gun away from Gordon and

killed him. He also testified to some

threats which he said Morrison had

made against him later in prison, if

he, Cox, "said anything about it."

Other witnesses testified about

the various events at the Smith river

house that night, but Cox was the only

witness to any of the events that took

place after Morrison and Cox and the

deceased left the Smith house after

11:00 P.M,

There was no evidence that Morri-

son had a gun that night; there were

no fingerprint or other marks; there

was no physical evidence; the only

evidence against Morrison (other than

statements by police relating what

Cox had said to them) was the testimony

of Cox himself.

The jury was unable to agree upon

a verdict, and on February 19, 1970, a

mistrial was ordered. Morrison was

released under a $7,500.00 bond.

Two years passed, with no effort

by the state to re-try Morrison.

A-10

a

Lee a ee ae

On January 20, 1972, the state

took a nol pros with leave.

In December, 1972, the prosecu-

tion was revived and a new warrant

was issued for petitioner's arrest.

The sole basis for the re-activation

of the case was said to be some new

information voluntarily offered by

telephone by a Kentucky man named

Spencer. Spencer told the District

Attorney that he had possession of a

firearm which petitioner had told

Spencer he had used to kill a man in

North Carolina. Spencer delivered

the firearm to police. Later on,

before the trial, the District Attorney

determined (1) that the weapon had not

been sold to the o 1 purchaser

until after the murder, (2) that the

police department's ballistics

experts had examined the gun and

concluded that it was not the murder

weapon, and (3) that there was

"relatively strong" bad feeling

between Spencer and Morrison.

The testimony of Spencer, on

whose volunteer information the

petition to re-open was based, was

thus determined to be false and

unreliable. Nevertheless, the District

Attorney decided to proceed to trial.

Petitioner pleaded not guilty but

was tried and convicted of second-

degree murder at the April 16, 1973

A-11

term of Mecklenburg County Superior

Court, and was sentenced to, and is

serving, twenty years in prison,

Spencer was not called as a

witness,

The evidence at the second trial

covered substantially the same ground

as that at the original tris’, with

three exceptions, These exceptions

were the testimony of the witness

Whitfield, the testimony of the witness

Bryan, and the testimony of Morrison

himself denying all guilt,

L. G, Whitfield was an attendant

at the Esso station. He had been

known as a witness by the prosecution

at the first trial but had not been

called to testify.

Whitfield testified at the second

trial that on the night of the murder

three men in a car stopped at his

station and asked for directions to

Locust, North Carolina, and that he

saw the handle of a gun on the front

seat of the car, (Cox's testimony

had placed Morrison at the wheel, Cox

in the right front seat, and Gordon

in the back seat at the time of the

visit to the filling station.) Whit-

field had given a statement to the

police five weeks after the death,

but had not mentioned a pistol, He

A-12

could not identify Morrison or Cox

except that petitioner Morrison

"resembled" one of the men,

The prosecuting attorney at the

second trial was a new man who had

not conducted the first trial, He

testified, in an effort to explain

why Whitfield had not been called as

a witness the first time, that

"T was informed that either

he was in the hospital or

for some reason he was not,

he had not testified at the

first trial, He was unavail-

able, I don't know whether

they couldn't subpoena him

or he was in the hospital."

This testimony falls far short

of a competent showing that the wit-

ness Whitfield was in fact unavailable

at the first trial, and it does not

answer the question why, if due care

had been taken to prepare the case for

the first trial, it was not postponed

as a routine matter upon motion or

decision of the prosecutor.

Howard Bryan testified at the

second trial, He had also been known

to the prosecution at the time of the

first trial, and the state on the

first trial had elected not to offer

his testimony. His testimony was

that a week or so before Morrison

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came to North Carolina, Morrison had

inquired where he could buy a pistol

for the protection of his wife. Bryan

knew where a pistol could be bought;

they went and looked at it and tried

it out; and Morrison bought the gun,

a 38-caliber pistol of Spanish make,

some twenty-five or thirty years old.

The third exception was that

Morrison t: tified at the second trial

and denied any guilt or knowledge of

the crime, and offered witnesses to

his good character. Morrison testi-

fied that he and Cox parted company

with Gordon, the deceased, at the

Esso station, and never saw him again.

He also testified that he was pur- |

chasing food for Cox's family and was

trying on the trip to North Carolina

to help Cox get back on his feet

financially.

The only new evidence of any

consequence at the second trial was

thus the circumstantial testimony of

the witness Whitfield that he saw the

handle of a gun on the front seat of

a car containing a man who "resembled"

Morrison,

CONCLUSIONS OF LAW

The Sixth Amendment to the United

States Constitution says:

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"In all criminal prose-

cutions the accused shall

enjoy the right to a speedy

and public trial by an im-

partial jury of the state

and district wherein the .

crime shall have been com-

mitted..."

This crime was committed on

September 4, 1969, and petitioner was

arrested on September 6, 1969, The

first and unsuccessful prosecution

ended February 19, 1970.

The accused was set free pending

re-trial of his first-degree murder

charge, on a bond of $1,000.00. With-

out explanation, the prosecution went

for two years doing nothing at all

about the case. On January 20, 1970,

a nol pros was taken. On December 13,

1972, an order was entered by Judge

William T, Grist for re-trial of the

case and for Morrison's arrest. The

second trial itself occurred in April,

1973, and a conviction was rendered on

April 16, 1973, more than three and

one-half years after the original

arrest.

The question is whether failure

to provide a speedy trial entitles

petitioner to a writ of habeas corpus.

Several factors must be considered.

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These are the length of delay; the

reason for the delay; prejudice to the

defendant; and whether defendant should

be denied relief because he was not

constantly clamoring at the prosecutor's

door demanding re-trial. Barker v.

Wingo, 407 U.S, 514, 530 (1972).

On this record petitioner has

satisfied all necessary requirements

and is entitled to be released because

he was denied a speedy trial on the

murder charge. Barker v. Wingo, supra;

United States v. MacDonald, 531 F.2d

196 (4th Cir. 1976).

1. There was no speedy trial.--

The homicide occurred on September 4,

1969, The first trial ended on

February 19, 1970. The state took a

nol pros on January 20, 1972, and it

was not until December of 1972, more

than three years after the original

arrest, that the second prosecution

was instituted, On the fact of it,

this is too long. Unless the consti-

tutional requirement of speedy trial

is to be stood on its head, this

petitioner is entitled to relief.

If we take any account of the

"evolving considerations of decency"

in this field, it is worth noting that

Congress has passed a law, the Speedy

Trial Act, which sets sixty days as

the time within which ordinarily

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[federal] re-prosecution following a

mistrial must be completed. 18 U,S.C,

§§ 3161, et. seg.

2. No reason was given by the

prosecution for the delay.-- The

record is devoid of any reason for the

delayed re-trial. Moreover, the reasons

which prompted the new prosecution

proved to be illusory. The witness

Spencer and his “information" about a

gun were the sole reason for the

motion to re-open the case, Before

the trial was started, Spencer's

testimony was demonstrated to be false

insofar as it connected Morrison with

the gun or guns in question, and

probably also to be motivated by per-

sonal ill will. Neither Spencer nor

the weapon he produced was used at

the re-trial. This leaves the decision

to re-try hanging by one fragment of

circumstantial testimony of the witness

Whitfield who, on this record, is not

shown to have been unavailable at the

original trial.

3. The defendant was prejudiced.--

If Whitfield had testified at the first

trial, the testimony about the gun and

his identification could have been

challenged and tested by fresh memory

and circumstances. Defendant lived

for more than three years with the

shadow of a possible re-trial hanging

over his head. He was prejudiced by

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this, even though not in prison

during that time. See Klopfer v.

North Carolina, 386 U.S. 213, 222

(1967); United States v. MacDonald,

531 F.2d 196 (4th Cir. 1976). Testi-

mony three and one-half years old is

far less precise and reliable than

testimony given promptly after an

event. "Loss of memory ... is not

always reflected in the record because

what has been forgotten can rarely be

shown." Barker v. Wingo, 407 U.S, 514,

532 (1972).

4. Defendant's failure to demand

early re-trial should not bar relief.--

The duty to try and prove the case is

that of the prosecution, not the defen-

dant. The evidence shows no effort by

Morrison to evade or delay re-trial at

any time between the first trial in

January, 1970, and the time-the case

was re-activated in December, 1972.

In view of the length of the delay

and the complete absence of excuse for

it, other than weaknecs of the prose-

cution's case, defendant's passive

failure to demand early re-trial is not

fatal to his constitutional right.

IT IS THEREFORE ORDERED that the

writ of habeas corpus issue and that

petitoner be immediately released

from custody. Respondent is directed

to certify compliance with this order

by February 15, 1977.

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eT

CERTIFICATE OF SERVICE

This is to certify that the

foregotng Petition for a Writ of

Certiorari was served upon David L,

Jones by forwarding three copies to

Rus L,. Edmisten, Attorney General

of North Carolina and Joan H, Byers,

| Associate Attorney General, Depart-

| ment of Justice, Post Office Box 629,

| Raleigh, North Carolina 27602.

This 29TH day of November, 1977.

ROBERT

Attorney for Petitioner

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