Petition — Seay v. North Carolina

PAICHAEL RUDAK, JR., CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

~ 89-176]

No.

STATE OF NORTH CAROLINA

Ve

WAYNE SEAY

(3 Lhererc

we wii

On-Appeal-krom The North Carolina Supreme-Court

PETITION FOR WRIT OF CERTIORARI

f DONALD R. BILLINGS

R. MICHAEL WELLS

BILLINGS, BURNS & WELLS

Suite A

Lower Plaza

NCNB Building

Winston-Salem

North. Carolina 27101

Attorneys for Petitioner

SEARO RESPEC LES OI ARETE IN, ICN RACE RSA Ah AIARIIRNE RN

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

<=

-& wn =

nN

ws

PAGE

Cranes BOW oo ei ccac ccciiteeveeess caesar ]

FACT os os i vind wane ne eas Reena oe ee 2

QUESTIONS PRESENTED FOR REVIEW............00065 2

TABLE OF CONTENTS

CONSTITUTIONAL PROVISIONS WHICH THE CASE _IN-

WAVED §..c.idoxkoa skeen weense toute

Srareent Oe Tit Cah «ows ica dhs eek eee

ARGUMENT AMPLIFYING REASONS FOR ALLOWANCE OF

Fem Wee on ccc icend ddead see

II.

Ill.

Whether Petitioner’s Sixth Amendment Right To

A Speedy Trial Via The Fourteenth Amendment,

Has Been Violated By A Delay Of Nearly Five

Years Between The Alleged Criminal Acts And

Actual Indictments, Where The Delay Resulted

In Irreparable Prejudice To The Preparation Of

His EROCORONT nos Sa ean k8 5 0 ea ree eee

Whether Petitioner Has Been Denied His Con-

stitutional Right To Due Process Of Law, Via

The Fifth And Fourteenth Amendments, Where

Nearly Five Years Elapsed Between The Alleged

Criminal Acts And The Indictments, Petitioner’s

Defense Was Irreparably Prejudiced, The State

Either Intentionally Or Negligently Failed To

Seek An Indictment After Knowing Of The

Salient Facts For Nearly Two Years Prior To

Seeking Indictment, And The District Attorney,

Testifying As A Witness, Misstated Evidence

Prejudicial To Petitiogier? « ... ..sccccetvewsecs

Whether The State Must Show A Lack Of Pre-

judice To Petitioner’s Preparation Of His

Defense To Criminal Charges When An Inor-

dinate And Excessive Delay Of Nearly Five

Years Transpired Between The Time Of The

Alleged Criminal Acts And Indictments, And, If

So, Whether The State Has Shown That Peti-

ii

APPENDIX:

NET, Ps . . ae «ain u's Guedhued-o uae slip waar a eos la

SUING OB. sk o's wn acon c cvbawlaxetucansuauatee eee 8a

TABLE OF AUTHORITIES

CASES: PAGES

Dellingham v. United States, 423 U.S. 64, 46 L. Ed. 2d

; oF ee. Tt} Pere reer ee 8

Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 694, 86 S.

oe, BEE (OSE 8 kk awdeviiwawuvsenceee eee 8

Mooney v. Holohan, 294 U.S. 103, 79 L. Ed. 791, 55 S.

Ck, DP CEO OT > vac di cardnciewcgueeeeeente seu 11

Nickens v. United States, supra, 323 F.2d at 813 ....... 7

Pyle v. Kansas, 317 U.S. 213, 87 L. Ed. 214, 633 S. Ct.

OTe CREE ov ed iwie cue ebdansas cau ceeeeeeee lee 12

Ross v. United States, 121 U.S. App. D.C. 233, 349 F.

Oe Zee CIRO osc cvasiiveesesacehact eee 12

State v. Johnson, 275 NC 264, 167 SE2d 274 (1969) .... 6

United States v. Ewell, 383 U.S. 116, 120 (1966)........ 6

United States v. Lovasco, 431 U.S. 783, 52 L. Ed. 2d

732, 97 S. Ci. BO CE 8s is 6 eee 9

United States v. Lustman, 258 F. 2d 475 (2d Cir. 1958),

cert. denied, 358 U.S. 880, 3 L. Ed. 2d 109, 79 S.

ER. BEG COP eees 5 kee V seas s ceeke nds eeee eee 12

United States v. Marion, 404 U.S. 307, 30 L. Ed. 2nd

OBR, SS Bs TX. GF TESTE iad ot Non ee neeee pero »

CONSTITUTIONAL PROVISIONS:

Pee PUNO vise oy 8k ead bee passim

ee EOIN ooo aioe Ss eae aoe passim

IN THE

Supreme Court of the Anited States

OCTOBER TERM, !979

No.

STATE OF NORTH CAROLINA

Ve

WAYNE SEAY

On Appeal From The North Carolina Supreme Court

PETITION FOR WRIT OF CERTIORARI

1. OPINIONS BELOW

The opinion of the North Carolina Court of Ap-

peals affirming the convictions of Petitioner on two

counts of embezzlement in the trial court, is attached as

Exhibit A. The Order of the Supreme Court, dismissing

Petitioner’s Appeal as a matter of right based on con-

stitutional issues and denying the Petition for Discre-

tionary Review, is attached as Exhibit B.

2. JURISDICTION

The jurisdiction of this Court to review the deci-

sions of the North Carolina Supreme Court and Court

of Appeals is conferred by Title 28, United States Code,

Section 1257(3). The Petitioner has _ preserved

throughout this entire matter his constitvtional challenge

to the indictments.

3. QUESTIONS PRESENTED FOR REVIEW

I. Whether Petitioner’s Sixth Amendment right to a

speedy trial, via the Fourteenth Amendment, has been

violated by a delay of nearly five years between the

alleged criminal acts and actual indictments, when the

delay resulted in irreparable prejudice to the preparation

of his defense?

Il. Whether Petitioner has been denied his constitu-

tional rights to due process of law, via the Fifth and

Fourteenth Amendments, where nearly five vears elaps-

ed between the alleged criminal acts and the indictments,

Petitioner’s defense was irreparably prejudiced, the State

either intentionally or negligently failed to seek an in-

dictment after knowing of the salient facts for nearly

two years prior to seeking the indictment, and the

District Attorney, testifying as a witness, misstated

evidence prejudicial to Petitioner?

Ill. Whether the State must show a lack of pre-

judice to Petitioner’s preparation of his defense to

criminal charges when an inordinate and excessive delay

of nearly five years transpired between the time of the

alleged criminal acts and indictments, and, if so,

whether the State has shown that Petitioner was not pre-

judiced by the delay?

3

4. CONSTITUTIONAL PROVISIONS WHICH THE

CASE INVOLVES

Fifth (Sth), Sixth (6th) and Fourteenth (14th)

Amendments to the United States Constitution.

5. STATEMENT OF THE CASE

Petitioner, a resident of Winston-Salem, North

Carolina, was secretary-treasurer of American

Marketing Company, Inc., a North Carolina corpora-

tion, which was formed to develop real estate (Record,

N.C. Court of Appeals, Page 14)*.

Mr. Roger Tise, a sales agent at that time for the

company, had received a $500 investment from Mrs. In-

ez Poindexter (whom Petitioner learned several months

later was the mother of Roger Tise), which Petitioner

deposited in the corporate account (R.pp.14,15). Mr.

Tise also received an investment from Mr. James Belton

of $400. Mr. Belton’s check was also deposited in the

corporate account (R.p.15). Both of these transactions

took place in early April, 1973.

Thereafter, a conflict between Mr. Tise and Mr.

McLawhorn, president of the ‘corporation, arose,

because Mr. Tise wanted an advance on his commis-

sions, which he alleged were due him (R.p.14).

Petitioner became ill in June, 1973, and was in-

capacitated for approximately six months (R.p.13).

Because of Petitioner’s physical condition and the

possibility that he might not be able to develop the pro-

perty, it was decided that it was not feasible to raise the

money to develop the real estate.

*A copy of the Record of the hearing on the Motion to Dismiss

the indictments and the Trial Court’s Order denying the Motion has

been filed with the Office of the Clerk of the Supreme Court of the

United States.

4

A check for $500 was made to Roger Tise to pay

back Mrs. Poindexter (R.p.15). Mr. Tise was also in-

structed to return Mr. Belton his $400, and Petitioner

took a receipt from Mr. Tise for same.

Because of Petitioner’s health and the inability of

the company to proceed with the projects, the company

became inactive, and the lessor of the space rented by

the company took possession of all the assets which

were located in the office, including the books and

records of the corporation (R.p.13). Petitioner made an

effort thereafter to recover the books and records, and

went to the office of the management company in con-

trol of the space leased by the corporation, but he was

unable to recover any of the books and _ records

(R.pp.13,14).

In February, 1976, Inez Poindexter contacted the

Attorney General’s Office about the money she had paid

to American Marketing (R.p.23). She also wrote the of-

fice of the Secretary of State and told the officials there

the circumstances surrounding the investment. She

received correspondence from the Attorney General’s of-

fice dated April 8, 1976, and later, correspondence from

the Secretary of State’s Office (R.p.21).

In September, 1976, Mrs. Poindexter contacted the

District Attorney’s Office in Forsyth County, North

Carolina, and thereafter had a meeting with the District

Attorney in September, 1976, and several telephone con-

versations concerning the investment (R.pp.21,22).

Two bills of indictment were returned on February

27, 1978 (R.pp.3-5) by the Forsyth County Superior

Court (Winston-Salem) alleging that Petitioner embezzl-

ed the investments of Inez Poindexter and James Belton.

(Prior to trial, counsel then representing Petitioner filed

5

a Motion to Dismiss the indictments, alleging violations

of Petitioner’s Federal and State constitutional rights

(R.pp.11-12), because of the inordinate and undue delay

between the alleged criminal acts and the indictments

and the prejudice suffered by Petitioner because of the

delay, among other reasons.)

The trial court denied Petitioner’s Motion to

Dismiss and found that the prosecution did not

deliberately and unnecessarily cause delay for its conve-

nience or any advantage of the State (R.pp.43,44).

Petitioner was tried and convicted on both counts

of embezzlement and sentenced to sixty (60) days active

time. His conviction was affirmed on appeal to the

North Carolina Courts (see appendices A and B).

6. ARGUMENT AMPLIFYING REASONS FOR

ALLOWANCE OF THE WRIT

I. Whether Petitioner’s Sixth Amendment Right

To A Speedy Trial, Via The Fourteenth Amend-

ment, Has Been Violated By A Delay Of Nearly

Five Years Between The Alleged Criminal Acts

And Actual Indictments, Where The Delay

Resulted In Irreparable Prejudice To The

Preparation Of His Defense?

Petitioner contends that he is entitled to the Sixth

Amendment guarantee to a speedy trial, via the Four-

teenth Amendment, and that this right was violated

because of the delay of nearly five years between the

alleged criminal acts and actual indictments, which delay

resulted in the irreparable damage to Petitioner’s presen-

tation of his defense.

Petitioner is aware of this Court’s opinion in

United States v. Marion, 404 U.S.307, 30 L. Ed. 2nd

468, 92 S. Ct. 455 (1971), but stresses that in that case

defendant neither demonstrated nor explained specific

prejudice because of the delay. Moreover, this court

cited as a basis for its decision the fact that defendants

are protected from extreme pre-indictment delays by

statutes of limitation. But North Carolina has no statute

of limitation on felony cases. For these reasons, this

case is not dispositive of the issue in the case at bar.

Petitioner contends that the word ‘‘accused’’ was

not intended by the drafters of the Sixth Amendment to

limit the constitutional guarantee of a speedy trial to

ones formally charged. In support of that assertion,

Petitioner would show the Court:

A. The right to a speedy trial is an important

safeguard to limit the possibility that long delay will im-

pair the ability of an accused to prepare a defense.

United States v. Ewell, 383 U.S. 116, 120 (1966).

Although certainly not binding on this court, the

reasoning of former North Carolina Chief Justice Susie

Sharp, a highly respected jurist, in State v. Johnson, 275

NC 264, 167 SE2d 274 (1969), on this issue is instruc-

tive: After noting that the guarantee of a speedy trial

imposes the only limitation upon purposeful and op-

pressive delay between the date of the felonious offense

and the commencement of the prosecution, Justice

Sharp, writing for the court, stated, 275 at

‘We can see little, if any, difference in the dilemma

which unreasonable delay creates for the suspect

who was belatedly charged, the accused named in a

warrant promptly issued but belatedly served, and

the indicted defendant whose trial has been unduly

postponed. The same considerations which impel

prompt action in the one situation are equally

critical in the others. ‘Indeed, a suspect may be at a

special disadvantage when complaint or indictment

Or arrest, is purposefully delayed. With no

knowledge that criminal charges are to be brought

against him, an innocent man has no reason to fix

in his memory the happenings on the day of the

alleged crime. Memory grows dim with the passage

of time. . .’ Nickens v. United States, supra, 323

F.2d at 813 (concurring opinion).’’

B. The Constitution is a document purposely brief,

and the rights sought to be protected therein are

sometimes subject to inpermissible limitations because of

the difficulty in translating into a few words the scope

of the right to be protected. Such is the case with the

right to a speedy trial under the Sixth Amendment. That

right is guaranteed to an ‘‘accused’’, and while a limited

interpretation of that word is that one must be formally

charged before that right can be invoked, such an inter-

pretation discounts the argument that, assuming the

Amendment seeks to protect anyone who has the stan-

ding to complain of prosecutorial delay in seeking an in-

dictment, which Petitioner argues that it most certainly

does, what other satisfactory language could have been

used, considering the drafters’ conceptual adherence to

brevity?

C. Historically, British Courts did consider delay as

a condition to issuance of an information.

The criminal prosecution, procedurally, was com-

menced by the filing of a lawsuit, and thereafter the fil-

ing of an application for a criminal prosecution or a

rule nisi for similar procedure calling for the defendant

to show cause why he should not be imprisoned. Thus

in the English common law, an individual charged as the

defendant in a criminal proceeding could and would be

an ‘‘accused’’ prior to formal indictment. United States

v. Marion, supra (Douglas, J., concurring opinion).

8

This Court held in Dellingham v. United States, 423

U.S. 64, 46 L. Ed. 2d 205, 96 S. Ct. 303 (1975), that a

defendant after arrest was an ‘‘accused’’, and a delay of

22 months between arrest and indictment could be con-

sidered on this issue. Petitioner would argue that when

the State starts building its case against a defendant and

focuses the full investigatory and prosecutorial powers

of the State against the defendant, the defendant should

be considered accused for the purposes of the Sixth

Amendment.

D. Since the power to indict rests with the State, it

controls when a cause might be submitted to the Grand

Jury and when a formal charge against an individual

can be made. To limit the vesting of an individual’s

right to a speedy trial to that point allows the State to

circumvent completely that right by purposely delaying

its submission of its case to the Grand Jury. Certainly

this was not contemplated by the drafters of the Bill of

Rights.

E. In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed.

694, 86 S. Ct. 1602 (1966), this Court ruled that an in-

dividual, prior to formal charges, must be informed of

the Sixth Amendment rights accorded to an ‘‘accused’’.

This opinion clearly recognizes that an ‘‘accused’’,

under the Sixth Amendment, is not merely one who is

formally charged but clearly envelopes a large spectrum

of individuals subject to the investigatory and pro-

secutorial powers of the State.

In the case at bar, nearly five years elapsed between

the alleged criminal acts and the indictment. As a result

of the delay, Petitioner was irreparably damaged in that

documentary evidence necessary to his defense was

destroyed in the interim. Moreover, the record indicates

that the State was aware of the complaints by the pro-

secuting witnesses for two years prior to seeking an in-

dictment. The State, therefore, either intentionally or

negligently failed to seek an indictment for a constitu-

tionally inpermissible period of time.

These facts are to be distinguished from United

States v. Lovasco, 431 U.S. 783, 52 L. Ed. 2d 752, 97 S.

Ct. 2044 (1977), where this Court presumed good cause

for delay and noted protection via statutes of limitation.

Petitioner does not believe such good cause can be

ascribed to the District Attorney on this record, and, as

noted, the statute of limitation affords this Petitioner no

protection.

To summarize, Petitioner contends that the Sixth

Amendment right to a speedy trial applies to preindict-

ment delay where a defendant’s rights are prejudiced

thereby, and that that right has been violated because of

the inordinate delay of nearly five years between the

alleged criminal acts and indictment, the prejudice to

Petitioner because of that delay, and the State’s inten-

tional or negligent delay for nearly two years in seeking

an indictment.

Il. Whether Petitioner Has Been Denied His Con-

stitutional Right To Due Process Of Law, Via

The Fifth And _ Fourteenth Amendments,

Where Nearly Five Years Elapsed Between The

Alleged Criminal Acts And The Indictments,

Petitioner’s Defense Was Irreparably Prejudic-

ed, The State Either Intentionally Or

Negligently Failed To Seek An_ Indictment

After Knowing Of The Salient Facts For Near-

ly Two Years Prior To Seeking Indictment,

And The District Attorney, Testifying As A

Witness, Misstated Evidence Prejudicial To

Petitioner?

10

Petitioner contends that a delay of nearly five years

between the alleged criminal acts and the indictments,

coupled with irreparable prejudice to Petitioner’s

defense, and the intentional or negligent delay of the

State to seek an indictment after knowing of the salient

facts for nearly two years prior thereto, violated his

right to due process of law as guaranteed by the Fifth

and Fourteenth Amendments to the United States Con-

stitution.

Clearly, the thrust of many of the constitutional

guarantees afforded one ultimately charged with a

criminal offense is the preparation of an adequate

defense. (Sixth Amendment, United States

Constitution). In all cases, excessive delay between the

time of the alleged criminal acts and the trial hampers

the effective presentation of testimony concerning words

spoken and conduct taken. In cases involving alleged

acts of embezzlement such as the case at bar, necessarily

dependent upon the presentation of documentary

evidence, one’s difficulty in presenting an effective

defense is compounded by the fact that the necessary

documentary evidence is often destroyed when there is

considerable delay between the alleged criminal acts and

the trial. Such is the case at bar.

The State of North Carolina no doubt will contend

that Petitioner’s documentary evidence was destroyed

before it was aware of the facts which ultimately led to

Petitioner’s indictment. But Petitioner would argue that

nearly three and one-half years elapsed between the time

of the alleged criminal acts and when Petitioner was

contacted by the local District Attorney. Surely no

businessman should be expected to maintain business

records for that long period of time after business had

ceased operations in the anticipation that a District At-

torney would suddenly take an interest in alleged ‘‘white

collar crimes’’ and seek to prosecute him nearly five

years after the alleged criminal acts. This Petitioner has

no statute of limitations to protect him.

Petitioner also argues that the State either inten-

tionally or negligently failed to present its case to the

Grand Jury until nearly two years after learning of the

salient facts, and the District Aftorney, while testifying

as a witness, misstated evidence to the jury which pre-

judiced Petitioner.

Donald K. Tisdale, the District Attorney in Forsyth

County, North Carolina, where the case was tried,

testified at the trial on the merits (R.pp.80-83), although

perhaps the more prudent course would have been to

withdraw his staff from prosecution of the case. Mr.

Tisdale testified that he had talked with Petitioner by

telephone and that he had found his telephone number

in the telephone book (R.p.83). Yet the uncontradicted

evidence is that Petitioner never had his phone number

listed in the telephone book.

Mr. Tisdale also testified that Petitioner told him he

owed the money to Mrs. Poindexter and that he would

pay it back, which testimony directly contradicts Peti-

tioner’s defense.

While Mr. Tisdale’s misstatement appears minor,

the Court must know that the jury accorded his

testimony great weight, and the District Attorney’s will-

ingness to testify falsely as to this fact and otherwise

playing ‘‘fast and loose’’ with the facts, quite obviously

could have affected the jury’s verdict. Because of the

significant prejudice to Petitioner, Petitioner believes he

has not been accorded due process of law. See Mooney

v. Holohan, 294 U.S. 103, 79 L. Ed. 791. 55 S. Ct. 340

12

(1935) and Pyle v. Kansas, 317 U.S. 213, 87 L. Ed. 214,

633 S. Ct. 177 (1942).

In summary, Petitioner’s right to due process of

law, as is guaranteed by the Fifth and Fourteenth

Amendments to the United States Constitution, was

violated because of the inordinate delay of nearly five

years between the alleged criminal acts and indictments,

the prejudice suffered to Petitioner by the delay, the

State’s intentional or negligent failure to present its case

to the Grand Jury for nearly two years after learning the

salient facts, and the District Attorney’s misstating of

the evidence.

Ill. Whether The State Must Show A Lack Of

Prejudice To Petitioner’s Preparation Of His

Defense To Criminal Charges When An Inor-

dinate And Excessive Delay Of Nearly Five

Years Transpired Between The Time Of The

Alleged Criminal Acts And Indictments, And,

If So, Whether The State Has Shown That

Petitioner Was Not Prejudiced By The Delay?

A delay of four years or more in securing an indict-

ment, nothing else appearing, is an unusual and undue

delay. United States v. Lustman, 258 F. 2d 475 (2d Cir.

1958), cert. denied, 358 U.S. 880, 3 L. Ed. 2d 109, 79 S.

Ct. 118 (1958). A delay of seven months prior to bring-

ing charges has been held an inpermissible period. Ross

v. United States, 121 U.S. App. D.C. 233, 349 F. 2d

210 (1965).

Petitioner contends that the Due Process Clause of

the Fifth Amendment, and the Sixth Amendment, via

the Fourteenth Amendment, require the State to have

the burden of proof to establish that the unusual and

undue delay between the alleged criminal acts and the

13

indictments is not prejudicial to Petitioner, and that the

State has not made that showing on this record. Peti-

tioner believes that .he State should have the burden of

proving lack of prejudice to discourage and prevent the

State from deliberately and intentionally delaying the

presentation of its case to the Grand Jury.

While Petitioner recognizes that any arbitrary stan-

dard denies the court some flexibility in this area, Peti-

tioner would contend that if a lapse of four years bet-

ween the alleged criminal acts and indictments is, on its

face, an unusual and undue delay, Petitioner should not

have to bear the burden of showing the absence of pre-

judice.

7. CONCLUSION

For the foregoing reasons, Petitioner believes his

Petition for Writ of Certiorari should be granted.

Respectfully submitted,

DONALD R. BILLINGS

R. MICHAEL WELLS

BILLINGS, BURNS AND

4 WELLS

, Suite A

Lower Plaza

NCNB Building

Winston-Salem, N.C.

27101

Attorneys for Petitioners

APPENDIX

la

EXHIBIT A >

COURT OF APPEALS OF NORTH CAROLINA

No. 7921SC647

STATE OF NortH CAROLINA

Vv.

WAYNE SEAY

Dec. 18, 1979

Defendant was charged in two bills of indictment with

embezzlement of funds from Inez Poindexter and James

Belton. In April, 1973, James Belton, Inez Poindexter and at

least One other were solicited by Roger Tise to make in-

vestments in Salem Properties, a limited partnership, which

would be formed once sufficient capital was raised and which

would make investments in real property. The general partner

for this limited partnership was to be American Marketing

Corporation. Robert McLawhorn was president and defen-

dant was secretary-treasurer of the general partner corpora-

tion. Tise was hired and trained by McLawhorn to solicit

capital for the limited partnership. The evidence is in dispute

on whether his compensation was to be a salary with a 10%

commission for sales or a straight 10% commission. He did

receive one check for $500.00 which was designated a ‘‘com-

mission advance’’ and which was drawn on Intercapital Cor-

poration of which defendant was president and McLawhorn

was secretary-treasurer.

Poindexter and Belton were provided with subscription

letters, power of attorney forms and copies of a partnership

agreement for Salem Properties which designated American

Marketing Corporation as general partner. Partnership

subscriptions were in $100.00 units, and the agreement of

partnership was not to become effective or to be recorded

with the register of deeds until a minimum of $50,000.00 in

capital was raised. The agreement also provided that ‘‘[t}]he

general partner agrees that it will, in the name of the partner-

a

2a

ship, jointly open and thereafter maintain in a North

Carolina bank a bank account or accounts in which shall be

deposited all contributions of the partners and all other part-

nership income and that it will use such funds solely for the

business of the partnership.’’ Poindexter contributed $500.00

on 6 April 1973 and Belton contributed $400.00 on 2 April

1973 to the Salem Properties investment explained to them by

Tise. Both delivered checks to Tise made payable at his in-

structions to ‘‘American Marketing Corporation, General

Partner.’’ Both checks were delivered by Tise to defendant.

The checks were cashed and endorsed ‘‘For deposit only,

American Marketing Corporation by Wayne Seay.’’ Tise was

fired shortly after these solicitations were made.

In the latter part of 1973, Poindexter began inquiring of

defendant about her investment. She was given his phone

number by Tise who was her son. She called him every month

or so about returning the money and was given assurance that

he was working on everything and would ‘“‘get things

a-goin’.’’ In March or April, 1975, Tise talked with Seay

about the investments and was assured that they were safe

but not reachable. In February, 1976, Poindexter consulted

an attorney and made a written complaint to the Attorney

General in Raleigh. In September, 1976, she saw the district

attorney for the twenty-first judicial district. The district at-

torney wrote defendant a letter and defendant responded by

phone in November, 1976. Defendant acknowledged receipt

of the money and gave excuses of ill health and promised to

repay in thirty days. Belton and Poindexter hired an attorney

who also reached defendant. He told their attorney he was

financially unable to repay at that time but promised to con-

tact the attorney again within a week about the matter. He

never did. The SBI began an investigation in 1977. A limited

partnership known as Salem Properties with the general part-

ner being American Marketing Corporation was _ never

registered nor formally created. Poindexter and Belton were

never reimbursed nor repaid for their contribution. Indict-

ments were brought against defendant on 27 February 1978

for embezzlement from Poindexter and Belton.

3a

Defendant presented evidence through the testimony of

Robert McLawhorn that he and defendant concluded after

firing Tise that the investment solicitations made by Tise

which totaled $1,000.00 should be returned. They accordingly

sent Tise a letter instructing him to use the commission ad-

vance to repay Poindexter, his mother. The letter contained

$500.00 in cash with which he was to reimburse Belton and

another subscriber for their contributions to the Salem Pro-

perties venture.

The jury returned verdicts of guilty and judgments were

entered thereon. Defendant appeals.

Atty. Gen. Rufus L. Edmisten, by Sp. Deputy Atty.

Gen. David S. Crump, Raleigh, for the State.

Morrow, Fraser & Reavis by John F. Morrow, Winston-

Salem, for defendant-appellant.

VAUGH, Judge

Defendant first assigns error in the denial of his pretrial

motion to dismiss for denial of his right to a speedy trial em-

bodied in the Sixth Amendment of the United States Con-

stitution applicable to the states through the Fourteenth

Amendment and the Eighteenth Section of the First Article of

the North Carolina Constitution. Almost five years had pass-

ed from the alleged embezzlements in April, 1973 until the 27

. February 1978 indictments.

Such a long period of time, nothing else appearing, con-

stitutes unusual and undue delay.

*‘[W]hen there has been an atypical delay in issuing a

warrant or in securing an indictment and the defendant

Shows (1) that the prosecution deliberately and un-

necessarily caused the delay for convenience or supposed

advantage of the State; and (2) that the length of delay

created a reasonable possibility of prejudice, defendant

has been denied his right to 2 speedy trial and the pro-

secution must be dismissed.’’ State v. Johnson, 275 N.C.

264, 277, 167 S.E.2d 274, 283 (1969) (emphasis added).

4a

The circumstances of each case are controlling but factors to

be considered by a court in determining whether an accused

has been deprived of a speedy trial are (1) the length of the

delay, (2) the cause of the delay, (3) waiver by the defendant

and (4) prejudice to the defendant. State v. McKoy, 294 N.C.

134, 240 S.E.2d 383 (1978). State v. Johnson, supra. In this

case, defendant has not shown a deliberate and unnecessary

delay caused by the State resulting in a reasonable possibility

of prejudice to defendant.

The only possible prejudice shown by defendant at the

hearing on the motion was that all records for the varied

companies and partnerships he was involved in were lost

when the building owner repossessed the business office for

all the companies sometime in July or August of 1973. This

loss of evidence was not caused or in any way contributed to

by the handing down of an indictment in early 1978.

For the first three years of this time span, defendant gave

assurance to his alleged victims that the money was safely in-

vested. Not until February of 1976 was any official of the

State of North Carolina informed of or complained to in

regard to the Poindexter and Belton investments. In

September, 1976, the local district attorney received the infor-

mation and contact was made with defendant. In early

November, 1976, he promised the district attorney he would

repay the money and was given thirty days to do so. Thus,

until early December, 1976, any delay in bringing defendant

to trial lies squarely on his shoulders.

In April of 1977, ancillary to an investigation of another

set of corporations and partnerships in which defendant was

involved, information the local district attorney had on the

Poindexter and Belton investments was turned over to the

White Collar Crime Unit of the SBI. Because of a heavy

caseload, this unit did not begin investigating these particular

embezzlements by defendant until October, 1977. Bank

records involving the Poindexter and Belton payments were

not received until January of 1978. Indictments were brought

Sa

the next month. The only possible prejudicial delay of these

facts was from December, 1976, a time by which defendant

was to repay the investors, until February, 1978, a period of

little more than a year which was not a period constituting

prejudicial delay in defendant’s case. It was a reasonable

period for investigation particularly in light of the many and

varied business and legal entities surrounding defendant.

Thus, looking at the four factors we are to consider ac-

cording to State v. McKoy, supra, and State v. Johnson,

supra, the facts and circumstances of this case present the

following: (1) the length of the delay because of defendant’s

own assurances that he would repay was not a period of five

years but really little more than a year; (2) defendant’s own

promises of repayment along with a heavy SBI caseload the

the complicated nature of this case caused the delay; (3) the

defendant’s own assurances constituted a waiver of most of

the time span when an indictment could have been brought

and (4) no prejudice has been shown by defendant.

‘*The burden is on an accused who asserts the denial of

his right to a speedy trial to show that the delay was due

to the neglect or willfulness of the prosecution. A defen-

dant who has himself caused the delay, or acquiesced in

it, will not be allowed to convert the guarantee, designed

for his protection, into a vehicle in which to escape

justice.’’ State v. Johnson, 275 N.C. at 269, 167 S.E.2d

at 278; see also State v. Wright, 290 N.C. 45, 224 S.E.2d

624 (1976), cert. den., 429 U.S. 1049, 50 L.Ed.2d 765, 97

S.Ct. 760 (1977).

The trial court properly denied the motion.

Defendant’s other assignment of error deals with the jury

instruction on the definition of fiduciary. Defendant was

charged with embezzlement in violation of G.S. 14-90 which

provides:

‘If any person exercising a public trust or holding a

public office, or any guardian, administrator, executor,

trustee, Or any receiver, or any other fiduciary, or any

officer or agent of a corperation, or any agent, con-

6a

signee, clerk, bailee or servant, except persons under the

age of sixteen years, of any person, shall embezzle or

fraudulently or knowingly and wilfully misapply or con-

vert to his own use, or shall take, make away with or

secrete, with intent to embezzle or fraudulently or know-

ingly and willfully misapply or convert to his own use

any money, goods or other chattels, bank note, check or

order for the payment of money issued by or drawn on

any bank or other corporation, or any treasury warrant,

treasury note, bond or obligation for the payment of

money issued by the United States or by any state, or

any other valuable security whatsoever belonging to any

other person or corporation, unincorporated association

or organization which shall have come into his possession

or under his care, he shall be guilty of a felony, and shall

be punished as in cases of larceny.’’ (Emphasis added).

The words ‘‘or any other fiduciary’’ were added by amend-

ment in 1939 to enlarge the scope of the statute after a

restrictive reading by the Court in State v. Whitehurst, 212

N.C. 300, 193 S.E. 657 (1937) and State v. Ray, 207 N.C.

642, 178 S.E. 224 (1935). See State v. Ross, 272 N.C. 67, 157

S.E.2d 712 (1967). Embezzlement in violation of this statute

is made up of four elements: (1) the defendant must be the

agent of the prosecutor; (2) by terms of his employment, of-

fice or other fiduciary relationship he was to receive the pro-

perty of his principal; (3) that he received the property in the

course of his employment, office or other fiduciary relation-

ship and (4) knowing it was not his own, he converted it to

his own use or fraudulently misapplied it. See, e.g., State v.

Ellis, 33 N.C. App. 667, 236 S.E.2d 299, cert. den., 293 N.C.

255, 236 S.E.2d 708 (1977). In this case, defendant was in a

fiduciary relationship. He was a promoter of a limited part-

nership in which the prosecutors of this case, Poindexter and

Belton, invested. Behind a corporate front, he was in charge

of investing the money in real property. He received and

deposited their money in the account of a corporation of

which he was secretary-treasurer and which he had designated

to be general partner for the limited partnership. The money

was not invested as promised and was not returned to those

7a

who invested it. Defendant’s promises, promotions, receipt

and disbursement of money, and his position in American

Marketing Corporation gave him a fiduciary relationship with

the investors. the funds was misapplied before the partnership

was formed. No partnership property was embezzled. The in-

vestments of Poindexter and Belton were instead embezzled

and they were embezzled by one in a fiduciary relation to

them. See Annot. 82 A.L.R.3d 822, 851-54 (1978). Defen-

dant’s actions were encompassed in the ‘‘any other fiduciary’”’

part of the statute.

‘*Fiduciary’’ thus became a crucial term in the case. The

trial court instructed ‘‘a fiduciary is defined in law as a per-

son having a duty created by his undertaking to act primarily

for another’s benefit.’’ This definition was adequate for the

case. Courts have been hesitant to define the term as is the

case with the term ‘‘fraud’’ for fear one may escape the con-

sequences of his actions for failure to meet a technical defini-

tion. We reecho this today and in approving the trial court’s

wording by no means declare its wording the definition of

fiduciary. Our Courts have said:

‘**The relation may exist under a variety of circumstances;

it exists in all cases where there has been a special con-

fidence reposed in one who in equity and good cons-

cience is bound to act in good faith and with due regard

to the interests of the one reposing confidence. ‘It not

only includes all legal relations, such as attorney and

client, broker and principal, executor or administrator

and heir, legatee or devisee, factor and principal, guar-

dian and ward, partners, principal and agent, trustee and

cestul que trust, but it extends to any possible case in

which a fiduciary relation exists in fact, and in which

there is confidence reposed on one side, and resulting

domination and influence on the other.’ ’’ Abbitt v.

Gregory, 201 N.C. 577, 598, 160 S.E. 896, 906 (1931)

(citations omitted).

The wording of the instruction in this case was similar to this

and adequate.

No error.

Webs and Harry C. MARTIN, JR.. concur.

8a

EXHIBIT B

SUPREME COURT OF NORTH CAROLINA

Fall Term 1979

STATE OF NORTH CAROLINA

v.

WAYNE SEAY

Judgment Dismissing Appeal On Motion Of Attorney

General And Denying Petition For Discretionary Review

(7921SC647)

(filed February 15, 1980)

This matter came on to be considered upon defendant’s

notice of appeal from the North Carolina Court of Appeals,

pursuant to G.S. 7A-30, upon the Attorney General’s motion

to dismiss the appeal for lack of a substantial constitutional

question, and upon defendant’s petition for discretionary

review of the decision of the North Carolina Court of Ap-

peals, pursuant to G.S. 7A-31; upon consideration whereof, it

is adjudged by the Court in conference this 6th day of

February 1980 that the motion to dismiss the appeal be allow-

ed, that the petition for discretionary review be denied, and

that it be so certified to the North Carolina Court of Ap-

peals.

It is considered and adjudged further that the defendant

do pay the sum of NINE AND NO/100 DOLLARS ($9.00)

and execution issue therefor.

This Court’s order of 9 January 1980 temporarily staying

execution of judgment is dissolved.

/s/ CARLSON, J.

Carlson, J.

For the Court

Ya

The foregoing order is issued over my hand and the seal

of the Supreme Court this 14th day of February, 1980.

/s/ JOHN R. MORGAN

John R. Morgan

Clerk of the Supreme

Court

of North Carolina

cc: North Carolina Court of Appeals

David S. Crump, Special Deputy Attorney General

Morrow, Fraser & Reavis, Attorneys at Law

Donald K. Tisdale, District Attorney

A. E. Wellburn, Clerk of Superior Court