STATE OF NORTH CAROLINA
v
.
Johnston County
No. 99 CRS 50507
DARRELL VINSON
Attorney General Roy Cooper, by Assistant Attorney General
Jill F. Cramer, for the State.
Michael J. Reece for the defendant-appellant.
WYNN, Judge.
On 8 November 2000, a jury found defendant guilty of the
first-degree murder of his girlfriend's father resulting in a
sentence of life in prison without parole. The sole issue on
appeal is whether the trial court erroneously denied defendant's
motion to continue his trial and thereby rendered the assistance of
his counsel ineffective. We answer: No.
N.C. Gen. Stat. § 15A-952(g) (1999) sets forth the factors a
trial court should consider in determining whether to grant a
continuance:
(1) Whether the failure to grant a continuance
would be likely to result in a miscarriage of
justice;
(2) Whether the case taken as a whole is so
unusual and so complex, due to the number of
defendants or the nature of the prosecution or
otherwise, that more time is needed for
adequate preparation; and
(3) Whether the case involves physical or
sexual child abuse when a victim or witness is
under 16 years of age, and whether further
delay would have an adverse impact on the
well-being of the child.
(4) Good cause for granting a continuance
shall include those instances when the
defendant, a witness, or counsel of record has
an obligation of service to the State of North
Carolina, including service as a member of the
General Assembly or the Rules Review
Commission.
[A] motion for a continuance is ordinarily
addressed to the sound discretion of the trial
judge whose ruling thereon is not subject to
review absent a gross abuse . . . It is
equally well established, however, that, when
such a motion raises a constitutional issue,
the trial court's action upon it involves a
question of law which is fully reviewable by
an examination of the particular circumstances
of each case.
See also State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433
(1981). “Generally, the denial of a motion to continue, whether a
constitutional issue is raised or not, is sufficient grounds for
the granting of a new trial only when the defendant is able to show
that the denial was erroneous and that he suffered prejudice as a
result of the error.” State v. Rogers, 352 N.C. 119, 124, 529
S.E.2d 671, 675 (2000).
The right to effective assistance of counsel is guaranteed by
the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution and Sections 19 and 23 of Article I of the North
Carolina Constitution. See U.S. Const. Amends. V, VI, XIV, N.C.Constit. Art. I, Sections 19, 23 (1999).
It is implicit in these guarantees that an
accused have a reasonable time to investigate,
prepare and present his defense. However, no
set length of time for investigation,
preparation and presentation is required, and
whether defendant is denied due process must
be determined upon the basis of the
circumstances of each case.
State v. Harris, 290 N.C. 681, 687, 228 S.E.2d 437, 440 (1976).
The defendant must “be allowed a reasonable time and opportunity to
investigate and produce competent evidence, if he can, in defense
of the crime with which he stands charged and to confront his
accusers with other testimony.” State v. Baldwin, 276 N.C. 690,
698, 174 S.E.2d 526, 531 (1970)).
In United States v. Cronic, the Supreme Court of the United
States noted that the right to effective assistance of counsel “is
recognized . . . because of the effect it has on the ability of the
accused to receive a fair trial.” 466 U.S. 648, 658, 80 L. Ed. 2d
657, 667 (1984), See also State v. Rogers, 352 N.C. 119, 125, 529
S.E.2d 671, 675 (2000) (addressing the propriety of a trial court's
refusal to allow a defendant's attorney additional time for
preparation). While a defendant ordinarily bears the burden of
showing ineffective assistance of counsel, our Supreme Court has
recognized that prejudice is presumed “without inquiry into the
actual conduct of the trial when the likelihood that any lawyer,
even a fully competent one, could provide effective assistance is
remote.” State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331, 336
(1993) (citation omitted).
Moreover, to establish a constitutional violation, a defendantmust show that he did not have ample time to confer with counsel
and to investigate, prepare and present his defense. State v.
Tunstall, 334 N.C. at 329, 432 S.E.2d at 337. “To demonstrate that
the time allowed was inadequate, the defendant must show 'how his
case would have been better prepared had the continuance been
granted or that he was materially prejudiced by the denial of his
motion.'” State v. Tunstall, 334 N.C. at 329, 432 S.E.2d at 337
(quoting State v. Covington, 317 N.C. 127, 130, 343 S.E.2d 524, 526
(1986)). Our Courts have consistently held that assignments of
error regarding motions for continuance that are not adequately
supported by affidavits or other proof are without merit. See
State v. McCullers, 341 N.C. 19, 460 S.E.2d 163 (1995); State v.
Searles, 304 N.C. 149, 282 S.E.2d 430 (1981); State v. Tolley, 290
N.C. 349, 226 S.E.2d 353 (1976).
In the present case, on 5 October 2000, defendant moved the
trial court to discharge his court-appointed-counsel, James
Ethridge. The trial court heard from defendant and Mr. Ethridge,
who joined in defendant's motion. The record reveals that Mr.
Ethridge had seen defendant seven times over a period of one year
since defendant's indictment. The trial court pointed out to
defendant during the hearing on the motion to discharge that Mr.
Ethridge had practiced law for twenty years and was recognized as
competent to try murder cases. At the hearing, Mr. Ethridge said
he spent as much time with this case as he had spent with other
cases. However, defendant claimed that Mr. Ethridge had only one
substantive conversation with him regarding the case. The recordalso indicates, Mr. Ethridge went over all discovery with
defendant. Additionally, the State indicated during the hearing
that it was prepared to proceed with trial. The trial court
inquired of defendant if the trial court granted his motion, if he
would be ready to try the case the week of 6 November, and if he
felt that he would have sufficient time to discuss the case and
prepare his defense before 6 November. Defendant answered that he
would be ready.
Following that hearing, the trial court granted the motion
terminating Mr. Ethridge as counsel for defendant and appointing in
his stead, Craig James. On 31 October 2000, when Mr. James
appeared before the trial court and moved for a continuance of the
case from 6 November 2000, the trial court asked the State for a
synopsis of what the State's case tended to show. The State
indicated that it had approximately ten witnesses to call, which
included the medical examiner and ballistics expert. The State
also forecasted evidence from fingerprint and DNA analyses. Mr.
James stated that he needed more time to develop evidence with
respect to alleged injuries sustained by defendant, and to talk
with the officers involved in the investigation. Following the
trial court's denial of the motion to continue, Mr. James stated
that he had diligently attempted to prepare for the case and that
in his opinion, he would be ineffective as trial counsel if forced
to proceed.
At the call of the case for trial on 6 November 2000, Mr.
James renewed his motion for a continuance. The trial court'sinquiry revealed that Mr. James had been licensed three and one
half years, and had represented indigent defendants for less than
that time. While he had defended felony cases, he assisted in one
homicide case while in law school and never had sole responsibility
for a homicide defense. Mr. James stated to the trial court, “I
basically had 30 days to prepare for a case of this magnitude
. . . I have diligently sought to prepare for this case and, in my
opinion, there are still some things that I could follow up on to
hopefully have a better defense for my client.” The trial court
found that “approximately one month is a reasonable time in which
to be properly prepared for the trial of a case such as this and
such has been proffered to me.”
Our examination of the facts of this case reveal that
defendant failed to provide any “form of detailed proof indicating
sufficient grounds for further delay.” State v. Searles, 304 N.C.
149, 155, 282 S.E.2d 430, 434 (1981). He did not establish a
foundation to show that there was insufficient time for preparation
of his defense; plus, he did not present evidence of how his case
would have been better prepared with more time. Indeed, defendant
was initially represented by Mr. Ethridge, a very experienced
criminal attorney, who was prepared for trial. Defendant argues
that Mr. Ethridge filed no pre-trial motions; however, he fails to
show that pre-trial motions were necessary in his case. The record
shows that Mr. Ethridge met with defendant seven times over a one-
year period and went over discovery with defendant six weeks before
the trial was calendered and was ready to proceed to trial. Moreover, Mr. Ethridge met with Mr. James to go over the case
before giving him defendant's file.
In support of his argument, defendant relies on State v.
Rogers, 352 N.C. 119, 529 S.E.2d 671 (2000), where our Supreme
Court reversed the defendant's conviction and death sentence and
remanded the case for a new trial on the grounds that little or no
trial preparation had been conducted. However, while there are
some similarities in Rogers and in the present case, the present
case includes a simpler fact pattern, and significantly this
defendant was not tried capitally. Like the attorneys in Rogers,
Mr. James argued that he did not have sufficient time to prepare
for the case; however, the present case involved a single
eyewitness to the murder of one victim which occurred over a very
brief period of time. In contrast, Rogers involved two defendants
and many eyewitnesses to testify about different events occurring
over several time periods. And unlike Rogers which was a capital
proceeding with aggravating circumstances, the subject case
involves a defendant who was found guilty of first-degree murder
and sentenced to life in prison.
In summation, we hold that defendant has made no showing that
any aspect of the trial would have been different had a continuance
been granted, and nor has he shown that thirty-two days preparation
time for substitute counsel was constitutionally inadequate or
materially prejudicial. Thus, we find that defendant failed to
establish a constitutional violation. See State v. Tunstall,
supra. We also find no manifest abuse of discretion by the trialcourt for denying defendant's motion for continuance.
No error.
Judges MCGEE and TYSON concur.
Report per Rule 30(e).
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