# Petition — Seay v. North Carolina

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2346%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 826

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2346%3A1. Public record. Not legal advice.