An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-396

NORTH CAROLINA COURT OF APPEALS

Filed: 7 January 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County

No. 07 CRS 234510-16

JAMAL LABAR FLOYD,

Appeal by defendant from judgment entered 24 May 2012 by 

Judge Forrest D. Bridges in Mecklenburg County Superior Court. 

Heard in the Court of Appeals 26 September 2013.

Attorney General Roy Cooper, by Special Deputy Attorney 

General Daniel Snipes Johnson, for the State.

James N. Freeman, Jr., for defendant-appellant.

STEELMAN, Judge.

The trial court did not err in denying defendant’s motion 

to dismiss based upon an alleged speedy trial violation. Where 

defendant’s actions in restraining his victims were separate and 

apart from those inherent in the crime of robbery, the trial 

court did not err in denying defendant’s motion to dismiss the 

charge of kidnapping. There was evidence in the record that 
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supported the trial court’s instructions to the jury on flight 

and how to consider a statement made by defendant.

I. Factual and Procedural Background

On 26 June 2007, a black man wearing a black bandanna, 

dreadlocks, and no shirt entered the Aga Thyme store in 

Charlotte, ordering three women to put their hands up and show 

him where the money was. Of his face, only his eyes were 

visible. As he led the women to the rear of the store to 

retrieve the cashbox, one of the women, Julianna Canfield, 

observed that what she thought was a gun was a pipe covered in 

tin foil. After the man took the money from the cashbox, he 

asked about the location of the bathroom. He instructed the 

women to go into the bathroom. The women waited, and after 

hearing nothing for several minutes, they opened the bathroom

door and called the police.

Officers with the Charlotte Mecklenburg Police Department 

(CMPD) arrived at the scene in response to reports of a black 

man without a shirt behind a nearby shopping center. When they 

arrived, the employees of Aga Thyme informed them of the 

robbery. Officer Ashley Edmondson was on patrol when she heard 

the report of the robbery and the description of the suspect. 

As she was driving towards the store, she observed a black man 
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with dreadlocks in blue jeans, but when she approached him, he 

fled.

On 27 June 2007, CMPD patrol officers arrested a suspicious 

black man in a camouflage hoodie, who identified himself as 

Jamal Floyd (defendant). While being arrested, defendant stated

that he did not do it, but that he knew who did and where the 

money was.

On 9 July 2007, Canfield was asked by police to identify 

the robber from a photographic lineup. She identified defendant 

as the robber.

On 4 September 2007, defendant was indicted for two counts 

of robbery with a dangerous weapon, four counts of attempted 

robbery with a dangerous weapon, three counts of second-degree 

kidnapping, and one count of assault on a female. On 6 May 

2008, defendant was taken into custody, and released on bond on 

20 February 2009. In February of 2011, defendant was again 

arrested and charged with unrelated criminal activity committed 

in 2008. Defendant remained in custody until trial.

On 12 March 2012, defendant filed a motion to dismiss for 

violation of his right to a speedy trial.1 On 29 March 2012, the 

trial court denied this motion.

 

1 Defendant contends that a previous motion for speedy trial was
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On 24 May 2012, a jury found defendant guilty of one count 

of common law robbery, two counts of attempted common law 

robbery, three counts of second-degree kidnapping, and assault 

on a female. The trial court sentenced defendant to two 

consecutive terms of 29-44 months imprisonment, with a third 

sentence of the same duration suspended for thirty months with 

11 months of that sentence to be active.

Defendant appeals.

II. Right to a Speedy Trial

In his first argument, defendant contends that the trial 

court erred in denying his motion to dismiss based upon a 

violation of his right to a speedy trial. We disagree.

A. Standard of Review

“This Court reviews the trial court’s denial of a motion to 

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650 

S.E.2d 29, 33 (2007).

“The standard of review for alleged violations of 

constitutional rights is de novo.” State v. Graham, 200 N.C. 

App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed and 

disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010); see 

 

filed in July of 2010, but had never been heard. The trial 

court acknowledged this in its findings. However, no such 

motion is found in the record.
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also Piedmont Triad Reg’l Water Auth. v. Sumner Hills Inc., 353 

N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (“[D]e novo review is 

ordinarily appropriate in cases where constitutional rights are 

implicated.”).

B. Analysis

In the case of Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 

101 (1972), the United States Supreme Court set forth a fourpart test for determining if a defendant had been denied his 

constitutional right to a speedy trial. These four elements are 

(1) the length of the delay, (2) the reason for the delay, (3) 

the defendant’s assertion of his right to a speedy trial, and 

(4) prejudice to defendant resulting from the delay. Barker at 

530-32, 33 L. Ed. 2d at 117-18. Our Supreme Court held that 

this analysis applies when a defendant asserts a violation of 

North Carolina’s speedy trial law. State v. Grooms, 353 N.C. 

50, 62, 540 S.E.2d 713, 721 (2000). There is no exact calculus 

in balancing these factors; rather, they are to be considered 

together on a case-by-case basis, with no one factor being 

outcome-determinative. State v. Washington, 192 N.C. App. 277, 

282-83, 665 S.E.2d 799, 803 (2008). If a defendant establishes 
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that the factors weigh in his favor, the charges against him 

should be dismissed. Id. at 297-98, 665 S.E.2d at 812.

The first of the four Barker factors is the length of the 

delay. In the instant case, defendant was arrested and indicted 

in 2007, and tried in 2012. We have previously held that “[a] 

defendant’s right to a speedy trial attaches upon being formally 

accused of criminal activity, by arrest or indictment. The 

period relevant to speedy trial analysis ends upon trial. If 

the length of delay approaches one year, we examine the 

remaining three factors in Barker.” State v. Friend, ___ N.C. 

App. ___, ___, 724 S.E.2d 85, 90 (2012) (citations omitted). 

Since the delay in this case was approximately five years, we 

must examine the remaining Barker factors.

With regard to the second Barker factor, the reason for the 

delay, defendant bears the burden of “presenting prima facie

evidence that the delay was caused by the neglect or 

willfulness” of the State. Washington, 192 N.C. App. at 283, 

665 S.E.2d at 804. In the instant case, the trial court found:

9. That during the period of 2008 through 

2012 the Defendant has had, for various 

reasons, three attorneys representing him, 

including his current attorney appointed in 

August of 2011.

10. That one of his previous attorneys was 

allowed to withdraw as a result of a 
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complaint made by the Defendant to the State 

Bar giving rise to an inability of the 

attorney to adequately represent the 

Defendant.

11. That in addition the Defendant's cases 

were delayed for approximately nine months 

as a result of a medical leave taken by the 

attorney originally appointed to represent 

the Defendant.

12. That these matters have been scheduled 

for multiple pre-trial readiness conferences 

with the various attorneys representing the 

Defendant.

. . .

17. That the reasons for the delay in the 

trial of all of the Defendant’s charges 

include the change of attorneys by the 

Defendant, the medical leave by a previous 

attorney, the failure of the cases to be 

reached on the trial calendar, efforts by 

the State to try matters involving

Defendants who are in [sic] incarcerated 

rather than released on bond (including 

electronic monitoring) and the general 

backlog of criminal Superior Court cases.

In reviewing the trial court’s findings with regard to the 

reasons for the delay, it appears that while some of the delay 

may have been caused by the actions or inaction of the State, a 

substantial amount of the delay was caused by defendant’s 

decision to change lawyers, defense counsel’s medical leave, and 

the unfortunate backlog of cases in our state’s Superior Courts. 

We hold therefore that the delay was not caused primarily by the 
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neglect or willfulness of the State, and the trial court did not 

err in so holding.

With regard to the third factor, defendant’s assertion of 

his right to a speedy trial, our Supreme Court has held that a 

“[d]efendant’s failure to assert his right to a speedy trial, or 

his failure to assert his right sooner in the process, does not 

foreclose his speedy trial claim, but does weigh against his 

contention[.]” Grooms, 353 N.C. at 63, 540 S.E.2d at 722. In 

the instant case, the trial court found:

15. That in July of 2010 a separate motion 

for speedy trial was filed by a previous 

attorney for the Defendant but was not heard 

by the Court.

16. That it is unknown to the State or the 

Defendant's attorney why the previously 

filed motion for a speedy trial was not 

heard.

The trial court further observed that defendant’s present 

“motion for a speedy trial, motion to dismiss were properly 

noticed and before the Court.”

In Grooms, the defendant’s assertion of his right to speedy 

trial came nearly three years after indictment, and the Court 

held that this delay weighed against his claim. In the instant 

case, as in Grooms, we hold that this three-year delay weighs 

against defendant.
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With regard to the fourth factor, prejudice to defendant 

resulting from the delay, the trial court made no findings. 

Defendant contends that he was prejudiced by the unavailability 

of “key witness” Kaylah Roberson, but does not suggest how her 

testimony would have had a probable impact on the result of the 

case.

In its conclusions of law, the trial court held:

3. That the reasons for the length of the 

delay were a combination of the failure of 

the cases to be reached on the trial 

calendars as well as delays resulting from 

Defendant’s decision to change attorneys on 

two occasions since his original arrest and 

the lengthy medical leave.

4. That based on these factors the Court 

concludes that the delay in the trial of 

this matter is not due to willfulness of the 

State or any administrative neglect on the 

part of the State but rather due to a 

combination of factors for which both the 

State and the Defendant are responsible.

5. That in balancing the factors including 

the length of the delay, the time in which 

the Defendant filed this motion, the reasons 

for the delay and the lack of any showing of 

prejudice by the Defendant, the Court 

concludes that Defendant’s constitutional 

right to a speedy trial has not been denied.

Despite offering arguments with regard to the Barker

factors, defendant does not challenge the trial court’s findings

of fact. Findings of fact that are not challenged are binding 
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on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 

731 (1991).

We hold that (1) the delay was presumptively prejudicial, 

meriting an examination of the other Barker factors; (2) the 

State’s willful or negligent actions were not the cause of the 

delay; (3) defendant’s three-year delay in asserting his right 

to speedy trial weighs against him; and (4) defendant has not 

adequately argued that absent the delay, the jury would have 

returned a different verdict. Accordingly, we hold that the 

trial court did not err in denying defendant’s motion to dismiss 

based upon an alleged violation of defendant’s right to a speedy 

trial.

This argument is without merit.

III. Motion to Dismiss

In his second argument, defendant contends that the trial 

court erred in denying his motion to dismiss the kidnapping 

charges because the restraint involved in those charges was 

inherent to the robbery charges. We disagree.

A. Standard of Review

“This Court reviews the trial court’s denial of a motion to 

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650 

S.E.2d 29, 33 (2007). 
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B. Analysis

Our Supreme Court has held that the “restraint” which is 

“an inherent, inevitable element of another felony, such as 

armed robbery or rape,” cannot support the offense of 

kidnapping, thus permitting conviction and punishment for both 

crimes arising from a single act. State v. Irwin, 304 N.C. 93,

102, 282 S.E.2d 439, 446 (1981). Rather, that “restraint” 

needed to constitute a kidnapping must be separate and apart 

from that inherent in the commission of another felony. State 

v. Johnson, 337 N.C. 212, 221, 446 S.E.2d 92, 98 (1994).

Defendant relies on Irwin, in which the defendant forced 

the victim at knifepoint to walk to the prescription counter and 

safe. In that case, the Supreme Court held that the victim’s 

removal to the safe at the back of the store was an integral 

part of the attempted robbery, the objective of which was to 

obtain drugs.

In the instant case, however, defendant did more than 

merely remove the women to the back of the store while he opened 

the cashbox. Having completed the robbery, he then removed them 

to the bathroom. These facts are similar to those in State v. 

Davidson, 77 N.C. App. 540, 335 S.E.2d 518, disc. review denied, 

314 N.C. 670, 337 S.E.2d 583 (1985). In Davidson, defendant, 
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while robbing a store, removed the occupants of the store to a 

dressing room. We held that:

Since none of the property was kept in the 

dressing room, it was not necessary to move 

the victims there in order to commit the 

robbery. Removal of the victims to the 

dressing room thus was not an inherent and 

integral part of the robbery. Rather, as in 

Newman, it was a separate course of conduct 

designed to remove the victims from the view 

of passersby who might have hindered the 

commission of the crime. The evidence thus 

was sufficient under N.C. Gen. Stat. 14-39 

to sustain the kidnapping convictions, and

the court properly denied defendant's motion 

to dismiss the kidnapping charges.

Davidson at 543, 335 S.E.2d at 520. See also State v. Joyce, 

104 N.C. App. 558, 567, 410 S.E.2d 516, 521 (1991), disc. review 

denied, 331 N.C. 120, 414 S.E.2d 764 (1992) (holding that 

removals which were “not an integral part of the crime nor 

necessary to facilitate the robberies” were more comparable to 

Davidson than to Irwin). 

Defendant contends that the kidnapping charges should have 

been dismissed because the women in the Aga Thyme store were not 

subjected to any greater danger than from the robbery by being 

removed to the bathroom. Nonetheless, we are bound by the 

precedent found in Davidson and Joyce. In re Civil Penalty, 324 

N.C. 373, 384, 379 S.E.2d 30, 37 (1989). We hold that this 

second removal, subsequent to the completion of the robbery, was 
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a distinct act, separate and apart from defendant’s acts 

integral to the robbery. We hold that the trial court did not 

err in denying defendant’s motion to dismiss the kidnapping 

charges.

This argument is without merit.

IV. Jury Instructions

In his third argument, defendant contends that the trial 

court erred or committed plain error by giving instructions to 

the jury which were not supported by the evidence. We disagree.

A. Standard of Review

“[Arguments] challenging the trial court’s decisions 

regarding jury instructions are reviewed de novo by this Court.” 

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 

(2009). “The prime purpose of a court’s charge to the jury is 

the clarification of issues, the elimination of extraneous 

matters, and a declaration and an application of the law arising 

on the evidence.” State v. Cameron, 284 N.C. 165, 171, 200 

S.E.2d 186, 191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 

1153 (1974). “[A] trial judge should not give instructions to 

the jury which are not supported by the evidence produced at the 

trial.” Id. “Where jury instructions are given without 
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supporting evidence, a new trial is required.” State v. Porter, 

340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995).

B. Analysis

During the jury charge conference, defendant objected to 

proposed jury instructions on flight and on defendant’s alleged 

admission upon his arrest on 27 June 2007. The trial court 

overruled these objections and instructed the jury on flight, as 

follows:

One of the circumstances that the State 

contends and the defendant denies in this 

case is that the defendant fled. I instruct 

you that evidence of flight may be 

considered by you together with all other 

facts and circumstances in this case in 

determining whether those combined 

circumstances amount to an admission or show 

a consciousness of guilt. I instruct you, 

however, that proof of this circumstance --

that is, a circumstance of fleeing or flight 

-- is not sufficient in itself to establish 

guilt.

Defendant argued at trial, and contends on appeal, that 

this instruction was erroneous, because Officer Edmondson did 

not positively identify defendant as the man who fled from her.

Our Supreme Court has held that “an instruction on flight 

is justified if there is ‘some evidence in the record reasonably 

supporting the theory that the defendant fled after the 

commission of the crime charged.’” State v. Blakeney, 352 N.C. 
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287, 314, 531 S.E.2d 799, 819 (2000) (quoting State v. Allen, 

346 N.C. 731, 741, 488 S.E.2d 188, 193 (1997)).

In the instant case, there was evidence other than Officer 

Edmondson’s testimony that defendant expeditiously left the 

scene of the robbery. Specifically, evidence tended to show 

that the police arrived promptly, that they canvassed the area 

with dogs and a helicopter, and that they were unable to find 

the robber. Evidence that an exhaustive search failed to reveal 

a defendant may support a jury instruction on flight. See State 

v. Patterson, 332 N.C. 409, 420, 420 S.E.2d 98, 104 (1992) 

(holding that evidence of an exhaustive twelve-year police 

search for defendant “clearly supports the inference that the 

defendant was avoiding apprehension, thus supporting the 

instruction on flight.”).

This evidence, taken as a whole, tends to show that 

defendant quickly fled from the scene of the robbery. Even 

assuming arguendo that Officer Edmondson’s testimony was not 

sufficient to support the flight instruction, we hold that there 

was other evidence in the record sufficient to support the trial 

court’s flight instruction.

The trial court also instructed the jury that:

The State also contends and the defendant 

denies that the defendant has admitted one 
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or more facts relating to the crime charged 

in this case. I instruct you that if you 

find from the evidence that the defendant 

has admitted any fact relating to the crime 

charged in this case, then you should 

consider all of the circumstances under 

which that admission was made in determining 

whether it was a truthful admission and the 

weight that you will give to it.

Defendant argued at trial, and contends on appeal, that 

this instruction was erroneous. The statement that defendant 

allegedly gave upon his arrest was “I didn’t do it, but I know 

who did and where the money is.” Defendant contends that 

nowhere is “it” identified as the crime in this case, and thus 

that this admission was not “relating to the crime charged in 

this case.”

“An admission is a statement of pertinent facts which, in 

light of other evidence, is incriminating.” State v. Trexler, 

316 N.C. 528, 531, 342 S.E.2d 878, 879-80 (1986). In the 

instant case, defendant was apprehended the day after the money 

was stolen, in the same neighborhood, and he informed the 

apprehending officer that he “didn’t do it[,]” whatever “it” 

might be, but he “knew where the money [was].” In light of the 

circumstances of his arrest, this statement raised a sufficient 

question of fact for a jury to be instructed upon it. Further, 

the trial court’s instruction did not compel the jury to find 
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that the statement was an admission, but rather permitted the 

jury to decide whether there was an admission and the weight to 

be given to the statement. We hold that there was sufficient 

evidence presented by the State to support the trial court’s 

instruction.

This argument is without merit.

NO ERROR.

Judges HUNTER, ROBERT C. and BRYANT concur.

Report per Rule 30(e).