STATE OF NORTH CAROLINA
v. Chowan County
No. 97 CRS 2155
MICHAEL RANKINS
Attorney General Roy Cooper, by Special Deputy Attorney
General J. Charles Waldrup, for the State.
Nora Henry Hargrove for defendant appellant.
McCULLOUGH, Judge.
On 3 November 1997, defendant Michael Rankins was indicted for
felony escape. The case was tried before a jury at the 3 July 2000
Criminal Session of Chowan County Superior Court. The State's
evidence at trial tended to show the following: On 4 September
1997, defendant was convicted of robbery with a firearm and
sentenced to 146-184 months' imprisonment. Defendant was placed in
custody and transferred to the Chowan County Detention Facility.
On 15 September 1997, defendant was to be transferred to the
Department of Corrections pursuant to the 4 September 1997 judgment
and commitment. John Wrighton, a custodial officer at the jail,
told defendant to pack his belongings and prepare for the transfer. Wrighton then escorted defendant to the laundry room so defendant
could return the items he had used while in jail and pack his
T-shirts, socks, and other items in a paper bag. While defendant
was doing this, some inmates started “hollering” for Wrighton, and
he turned and walked down the hall toward them. When he turned
back around a minute or two later, defendant was gone. Defendant
apparently exited from the laundry area to an outside courtyard and
then climbed over a brick wall. Defendant left the facility around
11:00 a.m. Defendant did not have permission to leave the
facility. Defendant was captured around 11:00 p.m. that same day
about five blocks from the jail.
The matter was called for trial on 3 July 2000. Prior to the
start of trial, defendant asked the trial court for a continuance.
Both defendant and his attorney asserted that they had not expected
the escape charge to be called for trial that day. According to
defendant and his attorney, another judge had entered an order
stating that a robbery charge against defendant would be tried
first, followed by a trial on a second robbery charge. However, no
such order appeared in the court file. The trial court determined
that the prior judge's calendaring referred only to the two robbery
charges, and did not contemplate the escape charge when the order
was entered. Accordingly, the trial court denied the motion. The
trial court then allowed defendant to represent himself pro se, and
appointed his former attorney as standby counsel.
During his opening argument, defendant stated that “I don't
deny the fact that I escaped.” Defendant further explained that: What caused the escape to happen was [the
prosecutor] and his key witness, Gregory
Bonner, had framed me for robbery. . . . But I
feel as though that I shouldn't be held liable
for the escape, because I -- I only did what I
felt was right. That was to escape.
Defendant declined to call any witnesses on his behalf, and did not
testify or offer any documentary evidence in his defense.
Defendant was convicted of felonious escape and sentenced to 8-10
months' imprisonment, the sentence to be served at the expiration
of all sentences defendant was then obligated to serve. Defendant
appealed.
By his first assignment of error, defendant contends that the
trial court erred by denying his request for a continuance.
Defendant further contends that he was forced to go to trial
unprepared. According to defendant, he came to court expecting to
be tried on a pending armed robbery charge, not the escape charge.
Defendant claims that there was an order in the record stating that
one of the armed robbery charges should be tried first. Because of
the surprise, defendant argues he did not have a reasonable amount
of time to prepare his case. We disagree.
This Court has stated:
A trial court's ruling on a motion to
continue ordinarily will not be disturbed
absent a showing that the trial court abused
its discretion, but the denial of a motion to
continue presents a reviewable question of law
when it involves the right to effective
assistance of counsel. The right to effective
assistance of counsel includes, as a matter of
law, the right of client and counsel to have
adequate time to prepare a defense. Unlike
claims of ineffective assistance of counsel
based on defective performance of counsel,prejudice is presumed in cases where the trial
court fails to grant a continuance which is
“essential to allowing adequate time for trial
preparation.”
In re Bishop, 92 N.C. App. 662, 666, 375 S.E.2d 676, 679 (1989)
(citations omitted). Our Supreme Court further analyzed the legal
standards governing the appeal of a denial of a motion to continue,
stating that:
“To establish that the trial court's
failure to give additional time to prepare
constituted a constitutional violation,
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.' '[A] motion for
a continuance should be supported by an
affidavit showing sufficient grounds for the
continuance.' '“[A] postponement is proper if
there is a belief that material evidence will
come to light and such belief is reasonably
grounded on known facts.'”
. . . .
. . . “'“[C]ontinuances should not be
granted unless the reasons therefor are fully
established. Hence, a motion for a continuance
should be supported by an affidavit showing
sufficient grounds.”'”
State v. Jones, 342 N.C. 523, 531, 467 S.E.2d 12, 17 (1996)
(citations omitted) (emphasis added). In the present case,
“[d]efendant's oral motion to continue, made on the date set for
trial and not supported by an affidavit, did not set forth any form
of 'detailed proof indicating sufficient grounds for further
delay.'” Id. at 532, 467 S.E.2d at 18 (citations omitted); see
also State v. Cody, 135 N.C. App. 722, 726, 522 S.E.2d 777, 780
(1999). Furthermore, defendant failed to show how he wasmaterially prejudiced by the denial of his motion. The escape
occurred on 15 September 1997 and defendant's trial was held on 3
July 2000. Thus, defendant had ample time to prepare for trial.
There is also no evidence in the record to support defendant's
contention that he had a reasonable basis for believing that the
escape case would not come to trial on 3 July 2000. Accordingly,
we conclude that defendant has failed to show an abuse of
discretion by the trial court in failing to grant the motion for
continuance. Defendant's first assignment of error is overruled.
Defendant next contends that the trial court erred by failing
to instruct the jury on the defense of duress. Defendant claimed
that he had to escape because his incarceration was the result of
perjury or other illegal acts on the part of a law enforcement
officer, and he was forced to escape until he could uncover the
officer's acts. Defendant contends he should have been able to
have the jury consider this as a defense.
After careful review of the record, briefs and contentions of
the parties, we find no error. This Court has stated:
“In order to successfully invoke the
duress defense, a defendant would have to show
that his 'actions were caused by a reasonable
fear that he would suffer immediate death or
serious bodily injury if he did not so act.'
Furthermore, a defense of duress 'cannot be
invoked as an excuse by one who had a
reasonable opportunity to avoid doing the act
without undue exposure to death or serious
bodily harm.'”
State v. Smarr, 146 N.C. App. 44, 55, 551 S.E.2d 881, 888 (2001)
(citations omitted). “A defendant must present evidence on eachelement of the [duress] defense for the trial court to instruct the
jury on that defense.” Id. In the case sub judice, defendant did
not present any evidence in his defense, relying only upon his
arguments to the jury and cross-examination of the State's
witnesses. The only testimony concerning defendant's claim of
duress was elicited during defendant's cross-examination of Chowan
County Sheriff Fred Spruill, who admitted on cross-examination that
he recalled hearing defendant say that he had been “framed.”
However, there was no evidence admitted regarding the specifics of
defendant's claim, and no evidence was offered to show that
defendant had a reasonable fear that he would suffer immediate
death or serious bodily injury if he did not escape. See id.
Accordingly, we conclude the trial court properly declined to give
an instruction on duress. This assignment of error is overruled.
Lastly, defendant contends that the trial court erred when it
failed to intervene on its own to prohibit certain arguments by the
prosecutor. The prosecutor stated in his closing argument that
defendant's claims that he was wrongfully convicted were “not
true.” Additionally, the prosecutor stated that defendant “may say
some things [in his closing argument] that a lawyer might not be
able to say.” Defendant contends that the prosecutor's statements
were improper, and the trial court should have intervened to
prohibit them. We do not agree.
Defendant did not object to any part of the prosecutor's
closing argument. Our Supreme Court has stated:
Where a defendant fails to object to the
closing arguments at trial, defendant must
establish that the remarks were so grossly
improper that the trial court abused its
discretion by failing to intervene ex mero
motu. “To establish such an abuse, defendant
must show that the prosecutor's comments so
infected the trial with unfairness that they
rendered the conviction fundamentally unfair.”
State v. Mitchell, 353 N.C. 309, 324, 543 S.E.2d 830, 839, cert.
denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999) (quoting State v.
Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998)). Here, defendant
failed to offer any evidence to counter the State's case. In fact,
defendant conceded in his opening argument that he did escape.
Moreover, defendant failed to offer any evidence to support his
claim of duress. Even assuming arguendo that the prosecutor's
statements were inappropriate, the trial court's failure to
intervene ex mero motu was harmless beyond a reasonable doubt.
Thus, defendant's third assignment of error is overruled.
After careful examination of the record and the arguments
presented by the parties, we conclude defendant received a fair
trial, free from prejudicial error.
No error.
Chief Judge EAGLES and Judge TIMMONS-GOODSON concur.
Report per Rule 30(e).
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