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State v. Swink

Court of Appeals of North Carolina

March 7, 2017

STATE OF NORTH CAROLINA
v.
LINZIE LEE SWINK, Defendant.

          Heard in the Court of Appeals 8 August 2016.

         Appeal by defendant from judgments entered on or about 4 May 2015 by Judge Hugh B. Lewis in Superior Court, Catawba County. No. 12 CRS 7763-64, 13 CRS 4688

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Jennifer T. Herrod, for the State.

          W. Michael Spivey for defendant-appellant.

          STROUD, Judge.

         Defendant Linzie Lee Swink appeals his convictions for rape of a child and indecent liberties with children. On appeal, defendant argues that the trial court lacked authority to try him without a jury, in violation of the North Carolina Constitution and N.C. Gen. Stat. § 15A-1201, and that the trial court erred when it failed to adequately determine whether defendant made a knowing and voluntary waiver of his right to a jury trial. We disagree and affirm the actions of the trial court.

         Facts

         Defendant was indicted on or about 3 December 2012 for two counts of rape of a child (12 CRS 7763 and 12 CRS 7764), on or about 3 September 2013 for one count of taking indecent liberties with children (13 CRS 4688), and on or about 2 March 2015 for superseding indictments of rape of a child (12 CRS 55705) and sexual offense with a child (15 CRS 50932). Defendant filed a motion for a bill of particulars, which the State answered on 25 February 2015. The State's answer laid out details of the date and time of each offense. On 2 March 2015, the trial court heard defendant's request for a bench trial. The court inquired into defendant's waiver, calling him to the stand and engaging in the following colloquy with defendant:

THE COURT: Sir, are you able to hear and understand me?
MR. SWINK: Yes, sir.
THE COURT: And are you under the influence of any alcoholic beverages, drugs, narcotics or pills at this time?
MR. SWINK: No, sir.
THE COURT: And how old are you?
MR. SWINK: 40.
THE COURT: And at what grade level can you read and write?
MR. SWINK: Probably 11th grade right now, 11th.
THE COURT: Do you suffer from any mental handicap or physical handicap that would prevent you from understanding what's ...

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