19CR002398 280 19CR002399 280 19CR055946 280 STATE OF NORTH CAROLINA v. SYLVESTER DEJESUS THOMPSON (2026)

Sylvester Thompson (“defendant”) appeals from judgment entered upon his conviction of first-degree murder, robbery with a dangerous weapon, and possession of a firearm by a felon. Defendant contends the trial court erred in denying his motion to dismiss on speedy trial grounds and abused its discretion by declining to answer a question from the jury during deliberations. For the following reasons, we discern no error.

I. Background

On 6 November 2019, a confidential informant notified the Thomasville police of a murder that had occurred the day before. Based on that information, local law enforcement traveled to a residence on Afton Street. The utility records for the residence listed a “Ms. Murray” as the occupant. When law enforcement arrived, the front door of the residence was open. The officers entered the residence and found the body of a deceased man, later identified as Benny Vines. Mr. Vines had been shot once in the head.

Based on the informant's information, the police also searched the area for two vehicles: a white Buick and a silver Mercedes. They found the Mercedes parked near an apartment complex on James Avenue. The Mercedes was registered to the same Ms. Murray and had a sheathed knife under the driver's seat. Police located the Buick the next day and conducted a traffic stop. Defendant was driving the Buick and had a key to the Mercedes on his key ring.

Through their investigation, the police also identified and interviewed Ms. Shelton who had reportedly spent the evening and day of Vines’ death with defendant. According to her testimony, defendant had picked her up and taken her to the Afton Street residence where there were several people consuming alcohol and crack cocaine. The next day, defendant asked Ms. Shelton to stab Mr. Vines and she refused. Later, defendant's brother, whom Ms. Shelton referred to as T-Poppa, came to the residence. She saw both defendant and T-Poppa with a gun.

After T-Poppa left, Ms. Shelton went outside and sat in defendant's car. She heard a noise and defendant came out of the residence and told Ms. Shelton to follow him in his car while he drove the other vehicle, a white car, to his father's residence. After dropping the white car off, defendant drove Ms. Shelton to T-Poppa's house and then to High Point.

T-Poppa's ex-girlfriend, Ms. Green, testified that on 6 November 2019, T-Poppa told her to hide in the kitchen closet and listen as he spoke to defendant. She overheard T-Poppa crying and asking “why?” and defendant responding “because he owed me money.” Defendant then instructed T-Poppa not to say anything.

When defendant was interrogated by the police, he stated that he spent the weekend at Mr. Vines’ house but had been staying with his friend since Tuesday, November 5th. Defendant claimed he saw Mr. Vines on the 5th and that Mr. Vines gave him a key to his Mercedes and asked defendant to move the car so his girlfriend would not know he was home.

Defendant was arrested on 8 November 2019 and was incarcerated while he awaited trial. He was incarcerated with Mr. Lee who later testified that defendant spoke to him about his charges. Mr. Lee testified that Mr. Vines owed defendant $2,000.00 for drugs but refused to pay. Defendant purportedly told Mr. Lee that he shot Mr. Vines and then took his car, parked it and jumped the fence. He also told Mr. Lee that Ms. Green hid the gun behind T-Poppa's washing machine and had overheard defendant's conversation with T-Poppa about the shooting.

Defendant remained incarcerated from his arrest until his trial in March 2025. On 20 June 2024, defendant filed a petition for a speedy trial. On 14 November 2024, defendant moved to dismiss his charges due to violation of his right to a speedy trial. The trial court held a hearing on defendant's motion to dismiss on 24 January 2025. Following the hearing, the trial court issued an order concluding that defendant's right to a speedy trial was not violated and denying defendant's motion to dismiss.

The case proceeded to trial, and the jury found defendant guilty of first-degree murder, robbery with a dangerous weapon, and possession of a firearm by a felon. Defendant gave notice of appeal to this Court on 28 March 2025.

II. Discussion

Defendant presents two issues on appeal: 1) whether the trial court erred in denying his motion to dismiss for lack of a speedy trial and 2) whether the trial court abused its discretion in responding to a jury question. We address each issue in turn.

A. Standard of Review

“The denial of a motion to dismiss on speedy trial grounds presents a constitutional question of law subject to de novo review.” State v. Farook, 381 N.C. 170, 178 (2022) (citation omitted). “We review the superior court's order to determine ‘whether the trial judge's underlying findings of fact are supported by competent evidence ․ and whether those factual findings in turn support the judge's ultimate conclusions of law.’ ” State v. Wilkerson, 257 N.C. App. 927, 929 (2018) (quoting State v. Cooke, 306 N.C. 132, 134 (1982)) (ellipses in original). We review a trial court's decision of whether or not to give additional instructions to the jury for abuse of discretion. State v. Mackey, 241 N.C. App. 586, 600 (2015).

B. Speedy Trial

Defendant argues that the trial court erred by denying his motion to dismiss for lack of a speedy trial. For the following reasons, we disagree.

A criminal defendant's right to a speedy trial is guaranteed by the Constitutions of both the United States and North Carolina. U.S. Const. amend. VI; N.C. Const. art. I, § 18. “To prove a speedy trial violation, a criminal defendant must first show that the length of the delay in his case is so presumptively prejudicial that it warrants a full constitutional review of his claim under Barker.” Farook, 381 N.C. at 178 (citation omitted). Generally, a delay of one year “signal[s] the point at which courts deem the delay unreasonable enough to trigger the Barker calculus.” Id. (citing Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992)).

The Barker analysis was devised by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972) to determine whether a defendant's right to a speedy trial was violated. It has also been adopted by our courts and applies to analogous claims under the North Carolina Constitution. State v. Webster, 337 N.C. 674, 678 (1994). The Barker analysis calls for courts to weigh four factors in determining whether a defendant's right to a speedy trial was violated: (1) length of the delay, (2) reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice to the defendant. Barker, 407 U.S. at 530; see also Farook, 381 N.C. at 176–180.

None of the Barker factors are “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Barker, 407 U.S. at 533. “Rather, we ‘engage in a difficult and sensitive balancing process’ of weighing these factors and other relevant circumstances.” State v. Crisp, 297 N.C. App. 400, 402 (2024) (quoting Barker, 407 U.S. at 533). We address each of the four factors below.

1. Length of Delay

The length of time between a defendant's arrest and their trial acts as both a trigger to the Barker analysis and an independent factor. Id. The length of delay “is significant to the speedy trial analysis because, as we discuss below, the presumption that pretrial delay has prejudiced the accused intensifies over time.” Doggett, 505 U.S. at 647. However, “[t]he length of delay is not per se determinative of whether a defendant has been deprived of his right to a speedy trial.” Farook, 381 N.C. at 178.

Here, the delay was over five years which greatly exceeds the point at which a delay becomes “unreasonable.” The trial court properly found, and the State concedes, that the delay is significant and weighs in defendant's favor.

2. Reasons for Delay

“Barker recognizes four categories of reasons for delay: (1) deliberate delay on the part of the State, (2) negligent delay, (3) valid delay, and (4) delay attributable to the defendant.” Farook, 381 N.C. at 180 (citation omitted). “[D]ifferent weights should be assigned to different reasons.” Barker, 407 U.S. at 531. Deliberate delays on the part of the State in an attempt to hamper the defense weigh heavily against the State. Id. More neutral reasons such as negligence or overcrowded courts weigh less heavily but still firmly against the State because “the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Id. “[A] valid reason, such as a missing witness, should serve to justify appropriate delay.” Id. “Finally, delays occasioned by acts of the defendant or on his or her behalf are heavily counted against the defendant and will generally defeat his or her speedy trial claim.” Farook, 381 N.C. at 180.

Generally, the defendant bears the burden of demonstrating that the delay was caused by the prosecution's neglect or willfulness. Crisp, 297 N.C. App. at 402–403. However, “a delay approaching one year is generally recognized as long enough to create a prima facie showing that the delay was caused by the negligence of the prosecutor sufficient to shift the burden of proof to the State to rebut and offer explanations for the delay.” Id. (cleaned up).

Here, the over five-year long delay creates a prima facie showing that the delay was caused by the negligence of the prosecutor. Accordingly, the prosecutor bore the burden of proof to rebut the presumption. The delay in this case can be attributed to several reasons. We divide the delay into time periods for clarity.

a. November 2019 to May 2021

Defendant was arrested on 8 November 2019. In March 2020, trial courts across the state were closed due to the COVID-19 pandemic. Davidson County did not resume jury trials until May 2021. The parties generally agree that the court shutdown due to COVID-19 is a valid delay and should not be weighed against either party. However, defendant argues that only the period from March 2020 to January 2021, when the statewide ban on in-person proceedings was lifted, was justified by the COVID-19 pandemic and that there was insufficient evidence offered to explain why Davidson County courts remained closed until May 2021.

We have recognized that court closings due to the COVID-19 pandemic are justified delays. See Crisp, 297 N.C. App. at 404–405. The trial court's finding that the Davidson County courts were not able to resume trials until May 2021 was supported by the State's attorney's oral statements that no trials were held in that time period due to the pandemic. Defendant did not object to the statements or to the trial court taking judicial notice of that fact, and so the attorney's statements could properly serve as evidence. State v. Chaplin, 122 N.C. App. 659, 663 (1996) (“When there is no objection, evidence at the [speedy trial] hearing may consist of oral statements by the attorneys in open court in support and in opposition to the motion to dismiss.”). Additionally, though the statewide ban ended in January 2021, that does not mean that COVID-19 was no longer a concern and could not justify delay. The State's evidence that the Davidson County courts were closed continuously from March 2020 to May 2021 supports the trial court's conclusion that the delay from that entire timespan was due to the pandemic. Accordingly, we conclude that the delay from March 2020 to May 2021 was justified and does not weigh against either party.

b. May 2021 to May 2022

When the Davidson County courts opened in May 2021, they faced a significant backlog of cases. While the courts were closed, 247 defendants were charged with major felonies.¹ Meanwhile, there were no jury trials, and court resources were extremely limited for any manner of disposition. The trial court concluded that this period of delay in which the State was dealing with the backlog “was not attributable to any neglect nor willfulness by the State of North Carolina.” The State conceded at the hearing and again on appeal that the crowded docket does not excuse the delay. We agree and consequently conclude that this period of delay should be weighed against the State, though less heavily than a deliberate delay.

c. May 2022 to March 2025

In May 2022, defendant's counsel was removed at defendant's request. During this period of delay, the State was still facing a significant backlog. Defendant petitioned for a speedy trial on 20 June 2024 and moved to dismiss the charges against him due to a denial of his right to a speedy trial on 14 November 2024. When asked at the January hearing about the delay following defendant's motions, the State's attorney explained that there were communication issues between himself and defendant's counsel. Following the hearing, the trial court concluded that a “substantial period of the delay following May 2022 is attributable to defendant due to his requested change in counsel” and any remaining delay was not attributable to the neglect or willfulness of the State.

Defendant challenges the court's conclusion, arguing that the trial court's order obscured the fact that defendant requested a change in counsel because his attorney had failed to move for a speedy trial. Additionally, defendant argues that there was no evidence that the change in counsel caused a “substantial” delay because defendant's new counsel never requested a continuance and the State made no attempt to place defendant's case on the calendar until March 2025. Defendant also argues that, even considering the backlog, the State was negligent in not trying defendant's case earlier and taking so long to arrange a hearing on defendants Petition for a Speedy Trial.

Delay caused by a defendant's motion to remove counsel and appoint new counsel is attributed to, and weighed against, the defendant. See State v. Spinks, 277 N.C. App. 554, 565 (2021); Farook, 381 N.C. at 180–81. A change in counsel necessarily requires some amount of delay while the new counsel becomes acquainted with the case. This is true regardless of the reason for the change and even if not evidenced by a motion to continue the case. Indeed, at his hearing on his request for new counsel, defendant acknowledged that the change would delay his case. Accordingly, defendant's change in counsel is sufficient to support the trial court's conclusion that “a substantial period following May 2022 is attributable to the defendant[.]”

As to defendant's argument that the State was negligent in not trying the case sooner, the State presented evidence concerning the number of attorneys on the staff, the number of sessions held in the Superior court, and the number of cases disposed of since the courts reopened. The trial court concluded from this evidence that the District Attorney “did undertake good faith efforts to recommence dispositions as quickly and efficiently as possible.” However, defendant argues that the State's evidence showed that his case “[fell] to the wayside” while other cases, including homicide charges arising after his own, were disposed of. Defendant alleges that there was “no evidence of a coordinated strategy by the district attorney to apply neutral criteria to decide which cases to try in what order.”

Defendant is correct that the State's evidence tended to show that other cases arising around the same time as or after defendant's were disposed of first. The evidence indicated that between January 2020 and May 2021, the District Attorney for Davidson County indicted 25 defendants with homicides and attempted murder. At the time of the hearing, there were only 6 pending homicide cases from 2020–2021 and defendant's was the only pending case from 2019. “However, the State has prosecutorial discretion in deciding the order in which to try cases.” Crisp, 297 N.C. App. at 405 (citing State v. Spivey, 357 N.C. 114, 120–21 (2003)). Thus, evidence that the State disposed of other cases first does not necessarily demonstrate negligence. Rather, we conclude that the State's evidence about the backlog of cases and its progress in disposing of cases is sufficient to rebut the presumption of negligent or willful delay and support the trial court's conclusion that the delay was due to the backlog. Still, the delay resulting from the backlog weighs against the State.

Altogether, about 15 months of the delay was justified by the COVID-19 related court closure. Of the remaining 49 months of delay, a substantial portion is attributed to defendant and weighed against him, but a larger portion is attributed to the backlog of cases in Davidson County which weighs against the State. The mixture of reasons behind the delay makes weighing this factor challenging. However, the State concedes, and we agree, that this factor ultimately weighs slightly in favor of defendant.

3. Defendant's Assertion of Right to a Speedy Trial

Assertion of the right to a speedy trial is “entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right” due to its close relation to the other Barker factors. Barker, 407 U.S. at 531–32.

The strength of [a defendant's efforts to assert his right] will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain․ [F]ailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

Id.

“A defendant's belated assertion of his right to a speedy trial ‘does weigh against his contention that he has been denied his constitutional right to a speedy trial.’ ” State v. Farmer, 376 N.C. 407, 417 (2020) (quoting State v. Flowers, 347 N.C. 1, 28 (1997)). However, this Court has declined to weigh a delayed assertion against a defendant where there was significant delay after the assertion or where the defendant had informally asserted his right to a speedy trial earlier in his case. See State v. Washington, 192 N.C. App. 277, 290–91 (2008) (weighing defendant's assertion in his favor where his formal assertion was made approximately three years after arrest but two years before trial and he had informally asserted his right sooner); State v. Armistead, 256 N.C. App. 233, 240 (2017) (weighing defendant's assertion of right as neutral where there was no formal assertion but defendant alleged to have asserted it in informal letters).

Defendant first formally asserted his right in a Petition For a Speedy Trial on 20 June 2024, around 55 months after his arrest and 9 months before his trial. Prior to that motion, defendant had indicated that he wanted to go to trial in letters and statements to the trial court. For example, his 14 March 2022 letter requesting the removal of his first attorney repeatedly stated that he was ready for trial and wanted to move forward in his case. At his 11 April 2022 hearing on the appointment of new counsel, defendant stated that he wanted to go to trial “right now,” though he also acknowledged that removing counsel would cause a delay. Altogether, we conclude, and the State concedes, that defendant's assertion of his right weighs in his favor. However, defendant's belated formal assertion does significantly lessen the weight of this factor.

4. Prejudice

The last Barker factor is prejudice to the defendant. The Barker Court identified three interests of defendants to consider under the prejudice factor: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532. “Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id.

Prejudice can be actual or presumptive. Farook, 381 N.C. at 189–90. Actual prejudice would include a witness dying or disappearing during a delay, or defense witnesses being unable to accurately recall past events. See Barker, 407 U.S. at 532. However, actual prejudice may be difficult to demonstrate “ ‘since excessive delay can compromise a trial's reliability in unidentifiable ways.’ ” Farook, 381 N.C. at 189 (quoting Doggett, 505 U.S. at 648) . Thus, “a lengthy delay coupled with the absence of any rebuttal to the presumption of prejudice created by that delay should result in a finding of prejudice.” Id. (citing Doggett, 505 U.S. at 658).

The Court discussed the role of presumptive prejudice at length in Doggett. There, the Court had already determined that Doggett had faced an “extraordinary” eight-and-a-half-year long delay, most of the delay was due to the Government's negligence in failing to even arrest defendant for six years, he had invoked his speedy trial right, and he had not made an affirmative showing of prejudice to his defense. Doggett, 505 U.S. at 653–56. Due to the length of the delay, there was a presumption of prejudice to Doggett's defense. Id. at 655–56.

The Court explained that, had the Government pursued Doggett and his case with reasonable diligence, his speedy trial claim would fail without a show of specific prejudice to his defense. Id. at 656. On the other hand, if the Government had deliberately delayed Doggett's case, Doggett would prevail with presumptive prejudice. Id. Doggett's case fell in the middle ground, which the Court said required long lasting negligent delay in order to prevail. Id. at 657. Ultimately, the Court concluded that Doggett was entitled to relief where the Government's negligence caused a six-year delay and the presumption of prejudice was not extenuated by Doggett's acquiescence nor persuasively rebutted by evidence that the delay left his ability to defend himself unimpaired. Id. at 658, n. 4.

Here, defendant was incarcerated for the entirety of the delay, which inherently prejudices the first two interests identified in Barker, pretrial incarceration and concern and anxiety of the accused. See Barker, 407 U.S. at 532–33 (discussing the consequences of incarceration). As to prejudice to defendant's defense, his counsel alleged at the 24 January 2025 hearing that there was a witness that would have corroborated defendant's statement to the police about where he was the night that Vines was killed but that she died during the delay. On appeal, defendant alleges that the trial court erred by not accepting the counsel's statements as evidence and failing to find that defendant had demonstrated actual prejudice.

However, the record indicates that the trial court did consider defendant's counsel's statements as evidence but found that they were insufficient to show actual prejudice. The trial court explained that defendant did not specify who the witness was or when she died. Without that information, the trial court could not verify that the delay caused the alleged witness to become unavailable. Accordingly, we conclude that the record supports the trial court's decision to not find that a defense witness became unavailable due to the delay, and the court's findings in turn support its conclusion that defendant failed to specifically demonstrate prejudice to his defense.

Even though defendant has not demonstrated specific prejudice to his defense, the delay in his case is long enough to give rise to presumptive prejudice. However, using Doggett as a guide, we conclude that balanced with the other Barker factors, mere presumptive prejudice does not entitle defendant to relief. While defendant's delay was long, a significant portion of it was either excused by a valid delay or attributable to defendant. The remaining delay was caused by the backlog and communication difficulties which, while attributable to the State, is still distinct from the negligence found in Doggett. Additionally, defendant's delayed assertion of his right lessens the weight of that factor. Therefore, taking each Barker factor into consideration, we conclude that defendant's right to a speedy trial was not violated. Accordingly, the trial court did not err by denying defendant's motion to dismiss.

C. Jury Question

During deliberation, the jury submitted a note to the court. The top of the note listed the charges against defendant: “1) Possession of a firearm by a felon, 2) Robbery with a dangerous weapon, 3) First degree murder – proximate cause.” Then the note asked: “If you have prior permission to possess an item and the original owner dies, when does the permission to use that item terminate[?]”

After a discussion, the court and the parties agreed that the question pertained only to the robbery charge, and to robbery as an underlying felony for first-degree murder. The court stated,

[I]t seems to be a factual question for them whether there was consent․ In my view, they have what they need in terms of the law, and they need to make a factual determination as to whether they believe that the defendant took the property, whether he took it with consent and whether he took it knowing he was not entitled to it, with intent to deprive permanently.

The court then instructed the jury to recall all of the evidence in the case and rely on the instructions previously given by the court. The jury returned with its verdict approximately seven minutes later.

On appeal, defendant argues that the trial court erred by declining to answer the jury question. Specifically, defendant argues that the question was a matter of law, namely whether death terminates consent. The State responds that the trial court correctly identified the question as one of fact or, in the alternative, that the question did not implicate an important point of law. For the following reasons, we conclude that the trial court did not abuse its discretion.

“The trial court has the duty to ‘declare and explain the law arising on the evidence relating to each substantial feature of the case.’ ” State v. Snelling, 231 N.C. App. 676, 679 (2014) (quoting State v. Hockett, 309 N.C. 794, 800 (1983)). A trial judge may give additional instructions in response to an inquiry made by the jury in open court. N.C.G.S. § 15A-1234(a)(1). “[T]he trial court is in the best position to determine whether further additional instruction will aid or confuse the jury in its deliberations, or if further instruction will prevent or cause in itself an undue emphasis being placed on a particular portion of the court's instructions.” State v. Prevette, 317 N.C. 148, 164 (1986).

However, where a trial court refuses to answer a jury question that is clearly asking for a clarification on a material point of law by misconstruing the question as one of fact, a new trial is warranted. Hockett, 309 N.C. at 800–02. In Hockett, the jury was instructed on first-degree sexual offense, second-degree sexual offense, robbery with a dangerous weapon, and common law robbery. See id. at 801. During its deliberation, the jury submitted two questions, both to the effect of “If one threatens to blow another's head off but does not actually have a gun—is he guilty to the same degree as if he did actually have a gun?” Id. The trial court determined that the jury's question was one of fact and declined to offer any answer or review of the elements to the jury. Id.

Our Supreme Court concluded that the question was instead one of law about the difference between first-degree sexual offense and second-degree sexual offense and between robbery with a dangerous weapon and common law robbery. Id. The question made clear that the jury “did not understand how the presence or absence of a gun would affect the degree of guilt as to both offenses.” Id. at 802. The Court held that “the failure of the trial court to answer the questions of the jury on an important point of law was prejudicial error and the conviction must be reversed and a new trial granted.” Id.

Here, the jury's question is distinct from that in Hockett because it involves a mixed question of law and fact. Defendant is correct to point out that if the question were whether consent automatically terminates upon death as a matter of law, the trial court would have been obligated to answer. However, the jury's question was broader. As the trial counsels originally agreed, the termination of consent depends upon the nature and the scope of the permission given. Thus, the point at which Mr. Vines’ consent terminated is a question of fact, and the trial court had discretion in determining whether additional instructions would aid or confuse the jury in determining that fact. The record indicates that the trial court carefully considered its previous instructions on the elements of robbery and determined that they provided the jury with everything it needed in order to make its factual determinations. Accordingly, we conclude that the trial court did not abuse its discretion in declining to answer the jury's question.

III. Conclusion

For the foregoing reasons, we find that the trial court did not err by denying defendant's motion to dismiss for violation of his right to a speedy trial or by declining to answer a jury question.

NO ERROR.

Report per Rule 30(e).

FOOTNOTES

1.   Defendant challenges the trial court's findings about the extent of the backlog in Davidson County as not being supported by sufficient evidence because they are based on the State attorney's unsworn statements during the hearing. We reject this argument for the same reasons above. While defendant is correct that in other contexts, the arguments of counsel are not evidence, see State v. Foster, 222 N.C. App. 199, 203 (2012), we have consistently held that for the purposes of a speedy trial motion, oral statements by the attorneys in open court may serve as competent evidence, see State v. Ambriz, 286 N.C. App. 273, 287–93 (2022).

ARROWOOD, Judge.

Judges GORE and FLOOD concur.