STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 00 CRS 7228
JIMMY LEE BURGESS
Attorney General Roy A. Cooper, III, by Assistant Attorney
General C. Norman Young, Jr., for the State.
Lisa S. Costner for defendant-appellant.
EAGLES, Chief Judge.
Jimmy Lee Burgess (“defendant”) appeals from the trial court's
judgment on a jury verdict finding him guilty of first degree
burglary. On appeal, defendant assigns error to the trial court's
rulings on several of his pretrial motions and his objections to
the State's closing argument. After careful consideration of the
record and briefs, we find no prejudicial error.
The State's evidence tends to show the following: Benjamin
Jones was living in a rented basement apartment in Lillie Price
Strickland's home at Five West 25th Street in Winston-Salem, North
Carolina. At approximately 1:00 a.m. on 2 February 2000, Mr. Jones
heard a noise at his basement apartment door. After hearing thenoise twice, Mr. Jones looked out a window and saw a black male in
the driveway.
Mr. Jones immediately picked up the telephone, walked
upstairs, and called 9-1-1. While he was on the phone with 9-1-1,
Mr. Jones went into Ms. Strickland's room and woke her up. While
waiting for the police to arrive, Mr. Jones heard glass breaking
from the direction of the patio. He looked towards the patio and
saw the door open. At this point, Mr. Jones observed a person
wearing a striped jacket enter the house and close the door. Mr.
Jones, who was still on the phone with 9-1-1, notified the
dispatcher that someone had entered the house. Immediately, the
person with the striped jacket opened the door and exited.
Officer M.J. Mulgrew of the Winston-Salem Police Department
responded to Mr. Jones' 9-1-1 call within two minutes of the call.
Upon arriving at Five West 25th Street, Officer Mulgrew noticed
defendant in the driveway, approximately one foot from a broken
window. Officer Mulgrew got out of his vehicle and ordered
defendant to remain. Defendant ran and Officer Mulgrew gave chase.
After a short chase in which he never lost sight of defendant,
Officer Mulgrew apprehended defendant, handcuffed him, and returned
with him to Five West 25th Street. At the house, Mr. Jones stated
that the striped jacket worn by the person apprehended by Officer
Mulgrew was similar to the jacket worn by the person he saw earlier
entering the house.
At the conclusion of his 10 July 2000 trial, the jury found
defendant guilty of first degree burglary. The trial courtsentenced defendant to 120 to 153 months imprisonment and entered
judgment. Defendant appeals.
Defendant assigns error to the trial court's denial of several
of his pretrial motions. Specifically, defendant argues that the
trial court erred in denying his motion to continue, his motion for
complete recordation, and his motion to suppress. We disagree.
First, defendant filed a pretrial motion to continue based on
the absence of two subpoenaed witnesses. In denying the motion,
the trial court found that
defendant had this information about the
witnesses, was requested by [defense counsel]
early on to divulge such information, and for
reasons best known to the defendant he did not
do so. Rather, he sat on this information and
disclosed it at a very late date.
. . . .
In the view of the Court, this motion is on
for the purpose of delay and defendant has not
attended to his defense in a business-like
manner and has not complied with his counsel's
request for early disclosure of necessary
information for his defense. This is a
dilemma entirely of the defendant's making.
Defendant argues on appeal that the trial court's denial of his
motion to continue denied him his constitutional right to have
reasonable time to investigate and to prepare his case.
A motion to continue is ordinarily addressed to the sound
discretion of the trial court and will not be disturbed absent a
showing of abuse of discretion. See State v. Beck, 346 N.C. 750,
756, 487 S.E.2d 751, 755 (1997). When the motion raises a
constitutional issue, denial of a motion to continue is grounds for
a new trial only upon a showing “that the denial was erroneous andalso that [defendant's] case was prejudiced as a result of the
error.” State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656
(1982). “The constitutional guarantees of due process, assistance
of counsel and confrontation of witnesses unquestionably include
the right of a defendant to have a reasonable time to investigate
and prepare his case. No precise time limits are fixed, however,
and what constitutes a reasonable length of time for the
preparation of a defense must be determined upon the facts of each
case.” Id. at 104-05, 291 S.E.2d at 656.
Here, the record reflects that defendant was arrested on 2
February 2000, and defense counsel was appointed on 4 February
2000. Defense counsel requested that defendant provide all
relevant information at an early stage. However, defendant did not
inform defense counsel of the existence of the two witnesses that
would testify on his behalf until 27 June 2000 -- nearly five
months after defendant was arrested and provided counsel, twenty-
five days after he requested a speedy trial, twenty-two days after
his trial date was set, and fourteen days before his 10 July 2000
trial. Additionally, a motion for a continuance should be
supported by an affidavit showing sufficient grounds. See id. at
105, 291 S.E.2d at 657. Defendant's motion for a continuance was
not supported by the required affidavit.
Accordingly, we hold that, on this record, defendant has not
demonstrated prejudicial error. Thus, we conclude that the trial
court did not abuse its discretion in denying defendant's motion to
continue. Second, defendant filed a pretrial motion for complete
recordation of the trial including bench conferences. The trial
court granted defendant's motion in part, but denied defendant's
request for the recordation of bench conferences. In so ruling,
the trial court ordered:
Bench conferences will be excepted and will
not be recorded unless otherwise directed by
the Court. Other than that, every utterance
of the Court from the bench in open court will
be recorded. And the court reporter will make
a true, complete, and accurate record of all
statements from the bench and all other
proceedings except arguments of counsel on
questions of law and bench conferences.
Private bench conferences between trial judges and attorneys
are not required to be recorded. See State v. Cummings, 332 N.C.
487, 497, 422 S.E.2d 692, 697 (1992). “If, however, either party
requests that the subject matter of a private bench conference be
put on the record for possible appellate review, the trial judge
should comply by reconstructing, as accurately as possible, the
matter discussed.” Id. at 498, 422 S.E.2d at 698; see also G.S. §
15A-1241(c).
Here, defendant requested the recordation of bench conferences
prior to the start of his trial, and the court denied the request.
During the trial, the record reflects that at least two off-the-
record conferences were held. However, defendant failed to request
that the subject matter of the conferences be reconstructed for the
record at the conclusion of each of the bench conferences.
Furthermore, defendant failed to allege, and the record fails to
show, how he was prejudiced by the court's failure to record thesubject matter of those bench conferences. In the absence of any
prejudice, we conclude that the trial court's error was harmless
beyond a reasonable doubt. See State v. Pittman, 332 N.C. 244,
252, 420 S.E.2d 437, 441 (1992).
Finally, defendant filed a pretrial motion to suppress a show-
up identification in which Mr. Jones identified defendant's jacket.
After the State assured the court that Mr. Jones would not be
called upon to identify defendant, the trial court denied the
motion.
Nevertheless, the matter arose again during Mr. Jones'
testimony at trial. In response, the court held a voir dire of Mr.
Jones after which it held that
the Court will not permit the witness to make
an in-court identification of the defendant's
person.
. . . .
And he may not make an eyewitness
identification based on everything I've heard.
He may, however, testify with respect to the
circumstance of the attire of the person in
[police custody] in comparison to the person
he observed on the premises. And that's
limited to strictly to testifying as to the
similarities in the jacket.
Following this ruling, Mr. Jones testified that the jacket worn by
the person in Officer Mulgrew's custody was similar to that worn by
the person who earlier entered the house.
“Show-ups, the practice of showing suspects singly to
witnesses for purposes of identification, have been criticized as
an identification procedure by both [our Supreme Court] and the
U.S. Supreme Court.” State v. Turner, 305 N.C. 356, 364, 289S.E.2d 368, 373 (1982). “This identification procedure may be
inherently suggestive for the reason that witnesses would be likely
to assume that the police presented for their view persons who were
suspected of being guilty of the offense under investigation.” Id.
“Pretrial show-up identifications, however, even though suggestive
and unnecessary, are not per se violative of a defendant's due
process rights.” Id. In fact, “[a]n unnecessarily suggestive
show-up identification does not create a substantial likelihood of
misidentification where under the totality of the circumstances
surrounding the crime, the identification possesses sufficient
aspects of reliability.” Id.
Here, Mr. Jones did not make an in-court identification of
defendant. Instead, he testified with specific particularity that
the person in police custody wore a striped jacket similar to the
striped jacket worn by the person who entered the house. However,
assuming arguendo that Mr. Jones' testimony about the jacket did
identify defendant, we conclude that under the totality of the
circumstances Mr. Jones' pretrial identification was sufficiently
reliable to be admissible despite any alleged suggestiveness of the
procedure.
Additionally, this Court has held that evidence relating to
clothing that a defendant was wearing at time of his arrest was
admissible where it was relevant in identifying defendant as the
perpetrator. See State v. Collins, 35 N.C. App. 250, 252, 241
S.E.2d 98, 99 (1978). Accordingly, we hold that the trial court
did not abuse its discretion in denying defendant's motion tosuppress. Further, the court did not err in allowing Mr. Jones to
testify regarding the striped jacket.
In his next assignment of error, defendant argues that the
trial court erred in failing to rule on his objections during the
State's closing argument. After careful review, we disagree.
G.S. § 15A-1230(a) governs the content of closing arguments to
the jury. Control of the arguments by counsel rests primarily in
the discretion of the trial court. See State v. White, 307 N.C.
42, 51, 296 S.E.2d 267, 272 (1982). “Generally, counsel is allowed
wide latitude in the scope of jury arguments.” State v. Hill, 347
N.C. 275, 298, 493 S.E.2d 264, 277 (1997). In fact, “[c]ounsel is
permitted to argue the facts which have been presented, as well as
reasonable inferences which can be drawn therefrom.” Id.
Here, the State implied in its closing that defendant had been
at Five West 25th Street for some period of time and that defendant
may have worn gloves. Defendant objected to both statements and
the trial court failed to rule. During the trial, Lillie
Strickland testified that four separate places in her residence
were broken into on 2 February 2000. Additionally, Officer Mulgrew
testified that the police were unable to obtain any fingerprints.
Thus, evidence in the record supports the inferences that defendant
had been on the premises for an extended period of time and that
defendant may have worn gloves.
While it is true that upon objection “the trial court has the
duty to censor remarks not warranted by the evidence or law,”
State v. Anderson, 322 N.C. 22, 37, 366 S.E.2d 459, 468 (1988), theevidence here supports the State's statements in its closing.
Accordingly, we hold that the trial court did not abuse its
discretion in declining to rule on defendant's objections.
In sum, we conclude that defendant received a fair trial free
from prejudicial error.
No error.
Judges McCULLOUGH and BIGGS concur.
Report per Rule 30(e).
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