An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-1058


Filed: 3 June 2003


v .                         Forsyth County
                            No. 01 CRS 9963

    Appeal by defendant from judgment entered 10 April 2002 by Judge William Z. Wood, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 16 April 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General John F. Maddrey, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant appellant.


    Delmar Brevard Hayes (“defendant”) appeals from his conviction and resulting sentence entered upon a jury verdict finding him guilty of robbery with a firearm. For the reasons stated herein, we uphold defendant's conviction.
    The State presented evidence at trial tending to show the following: On the late afternoon of 16 November 2000, Vena Bennette (“Bennette”) was at work behind the counter of a shoe store located in Winston-Salem, North Carolina. The owner of the store, Royce O'Brien Dixon (“Dixon”) was also present. At approximately 5:45 p.m., defendant and Ronald Bristow (“Bristow”) entered the store. Defendant approached Bennette and asked whether or not the store sold beverages. Bennette directed defendant to arefrigerator and gave him coins for a beverage. After defendant visited the store's restroom, both men departed the store.
    Several minutes later, defendant returned to the store armed with a rifle, accompanied by Bristow. Pointing the rifle in her direction, defendant ordered Bennette and Dixon into the store restroom and closed the door. The men returned once to the restroom to retrieve Dixon and forced him to open the store safe. Defendant also took money from Dixon. Bennette and Dixon remained in the restroom until the intruders left the store. When they emerged, they discovered that the men had emptied the store cash register and had taken Bennette's cellular telephone and money from her purse. Bennette later identified defendant from a photographic line-up. At trial, Bristow also testified that he committed the robbery with defendant.
    Defendant testified in his own defense and denied any knowledge whatsoever of the robbery. Defendant stated that on the day of the robbery he played basketball with friends until “5:30, 5:45 at the latest.” According to defendant, he left the basketball court and arrived at his residence shortly after 6:00 p.m. Defendant stated that he did not know Ronald Bristow, but was acquainted with Bristow's cousin, Travis Bristow. Further facts are set out in the following opinion as necessary.
    At the close of the evidence, the jury returned a verdict finding defendant guilty of robbery with a firearm. After calculating defendant's prior record level for purposes of sentencing as level IV, the trial court sentenced defendant to aminimum term of imprisonment of 117 months, with a maximum term of 150 months. From his conviction and resulting sentence, defendant appeals.
    Defendant presents the following four issues on appeal, arguing that the trial court erred in: (1) denying defendant's motion to continue after a witness for defendant failed to appear at trial; (2) denying defendant's motion for an order declaring a certain witness unavailable and refusing to allow defendant to introduce a statement attributed to that witness; (3) sentencing defendant at a prior record level IV; and (4) denying defendant's motion to dismiss. For the reasons stated herein, we find no error by the trial court with respect to the above-stated assignments of error.
    By his first assignment of error, defendant argues that the trial court erred in denying his motion to continue his trial when one of the witnesses subpoenaed by defendant failed to appear at trial. Defendant asserted in his motion to continue that Tomont Williams (“Williams”) was a properly subpoenaed essential witness who failed to appear at trial. Defense counsel argued that Williams' testimony went “to the heart of any defense” and that his presence was essential. After reviewing an affidavit executed by Williams, the trial court disagreed with defendant and denied the motion to continue. Defendant now contends that the trial court erred in denying the motion to continue. We disagree.
    Ordinarily, a motion for a continuance is within the solediscretion of the trial court, see State v. Dixon, 139 N.C. App. 332, 340, 533 S.E.2d 297, 303 (2000), “and absent a gross abuse of that discretion, the trial court's ruling is not subject to review.” State v. Walls, 342 N.C. 1, 24, 463 S.E.2d 738, 748 (1995), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 794 (1996). It is equally well settled, however, that if the motion is based on a right guaranteed by the federal or state constitutions, the question presented is one of law, not discretion, and the ruling of the trial court is reviewable on appeal. See State v. Tolley, 290 N.C. 349, 356, 226 S.E.2d 353, 361 (1976); State v. Brower, 289 N.C. 644, 660, 224 S.E.2d 551, 562 (1976). Here, defendant contends the trial court's ruling effectively denied him the right to offer material testimony, thereby denying him due process of law and the right to present evidence in his own defense under both federal and state constitutions. The question presented is therefore one of law rather than discretion. See Tolley, 290 N.C. at 356, 226 S.E.2d at 361.
    “Regardless of whether the motion raises a constitutional issue or not, a denial of a motion to continue is only grounds for a new trial when defendant shows both that the denial was erroneous, and that he suffered prejudice as a result of the error.” Walls, 342 N.C. at 24-25, 463 S.E.2d at 748. Furthermore, a motion for a continuance must be supported by detailed proof fully establishing the reasons for the delay. See State v. Jones, 342 N.C. 523, 531-32, 467 S.E.2d 12, 17-18 (1996). Postponement is proper if there is a belief that material evidence will come tolight and such belief is reasonably grounded on known facts. See Tolley, 290 N.C. at 357, 226 S.E.2d at 362.
    In the present case, defendant argues that Williams was an essential alibi witness whose anticipated testimony, as reflected by his affidavit, was material to defendant's case. Williams' affidavit states in pertinent part
        2.    That on November 16, 2000, Travis Williams, Tyrone Davis, [defendant], and I went to Miller Park to play basketball. We picked [defendant] up at his mother's place on Frazier Street in Happy Hill Gardens at about 4:00 p.m. . . . . We played ball until about 6:00 p.m. We then left Miller Park for [defendant's] mom's place. We arrived at [defendant's] mother's place on Frazier Street at about 6:15 p.m., or 6:20 p.m. [Defendant] went into his mother's place and we left . . . .
        3.    That I know of my own knowledge that Travis Bristow and [defendant] had a running feud going on. They did not like one another and I do not believe that Travis Bristow would introduce [defendant] to anyone, based on their current feud which has been running for some time. This feud was in effect well before November 16, 2000, and neither Travis Bristow nor [defendant] were on speaking terms at that time.

Defendant argues that this testimony was essential in that it (1) placed defendant elsewhere at the time of the crime and (2) discredited evidence by the State that defendant committed the crime with Ronald Bristow. Defendant's argument fails on several grounds.
    First, the excluded testimony was cumulative, in that several witnesses testified at trial that defendant was playing basketball at the time of the robbery. Travis Williams testified thatdefendant left the basketball court “about 5:45, 5:30, something like that.” Tyrone Davis stated that defendant left the basketball court “around 5:30.” Defendant testified that he left the basketball court at “5:30, 5:45 . . . at the latest.” The addition of Williams' testimony with respect to defendant's presence at the time of the robbery clearly would have added little to the evidence already before the jury. Defendant asserts, however, that Williams' testimony that defendant was in his presence until 6:15 p.m. or 6:20 p.m. was crucial, because the jury could have concluded that defendant left the basketball court at 5:30 or 5:45 p.m. and still have had time to rob the shoe store “minutes before the shoe store was to close at 6:00 p.m.” We disagree. Although the evidence tended to show that the actual robbery occurred a few minutes before 6:00 p.m., Bennette consistently testified that defendant first entered the shoe store “about a quarter or ten till 6:00.” Defendant denied having ever been to the shoe store or in the company of Bristow the evening of the robbery. Thus, in consideration of the evidence, the issue before the jury was whether they believed defendant was leaving the basketball court or entering the shoe store at approximately 5:45 p.m. on 16 November 2000. Williams' testimony in this regard would have made no appreciable difference in the result of the trial. See Dixon, 139 N.C. App. at 341, 533 S.E.2d at 304.
    Further, defendant's assertion that Williams' testimony was essential to discredit evidence by the State tending to show that defendant committed the crime with Ronald Bristow is without merit.The information regarding “a feud” between defendant and Travis Bristow (“Travis”) contained in paragraph three of Williams' affidavit was irrelevant and, if offered, would not have been admissible at trial. There was no evidence before the jury suggesting that Travis had introduced his cousin, Ronald Bristow, to defendant prior to the robbery. Ronald Bristow testified that he first met defendant the day of the robbery. The only reference to Travis introducing defendant and Ronald Bristow was contained in voir dire testimony that the trial judge determined was untrustworthy and therefore inadmissible. Evidence by Williams pertaining to the relationship between defendant and Travis, offered to discredit testimony never heard by the jury, was therefore irrelevant and inadmissible. As such, Williams' testimony as a defense witness on this issue would not have made any difference at trial.
    Because there is no indication that Williams' anticipated testimony at trial was essential, or that its exclusion resulted in prejudice to defendant, the trial court did not err in denying defendant's motion to continue. We overrule this assignment of error.
    By his next assignment of error, defendant argues that the trial court committed reversible error by denying his motion for an order declaring Travis unavailable as a defense witness and subsequently declining to allow hearsay testimony concerning statements made by Travis. At trial, Bristow testified that he robbed the shoe store with defendant, whom he met for the firsttime earlier that same day. According to testimony given by Detective K. W. Bishop during voir dire examination, Bristow informed Detective Bishop that Travis had introduced him to defendant. Detective Bishop further stated that Travis denied introducing Bristow and defendant. In light of Travis's “lengthy criminal history” and the fact that he was “currently wanted on several outstanding order[s] for arrest,” however, Detective Bishop doubted “that Travis was completely truthful” with him. Defendant subsequently made a motion to declare Travis an unavailable witness, and to allow into evidence the statement by Travis to Detective Bishop concerning Bristow. The trial court denied this motion on the grounds that Travis's statement to Detective Bishop lacked “the usual substantial guarantee of trustworthiness.” Defendant now argues that the trial court erred in denying his motion to declare Travis unavailable, in that the trial court made no particularized findings of fact supporting its conclusion that the statement was untrustworthy. We do not agree.     
    In State v. Triplett, 316 N.C. 1, 340 S.E.2d 736 (1986), the Supreme Court set forth a six-part inquiry for the trial court to use before admitting or excluding hearsay evidence pursuant to Rule 804(b)(5) of the North Carolina Rules of Evidence. The inquiry requires the trial court to determine: (1) that proper notice was given to the opponent about the evidence and the desire to have it admitted pursuant to 804(b)(5); (2) that no other hearsay exception applies to the statement; (3) that the statement possesses “equivalent circumstantial guarantees of trustworthiness” to theenumerated hearsay exceptions; (4) that the statement is material; (5) that the statement is “more probative on the point for which it is offered than any other evidence” which could be otherwise produced; and (6) that “'the general purposes of [the] rules [of evidence] and the interests of justice will best be served by admission of the statement into evidence.'” Id. at 8-9, 340 S.E.2d at 741 (quoting N.C. Gen. Stat. § 8C-1, Rule 804(b)(5)). This Court examines each appeal “on a case-by-case basis to determine whether the ruling of the trial judge admitting or excluding evidence under Rule 804(b)(5) may be sustained based on the contents of the record on appeal.” Id. at 10, 340 S.E.2d at 741.
    While the six-part inquiry is “very useful when an appellate court reviews the admission of hearsay under Rule 804(b)(5),” “its utility is diminished when an appellate court reviews the exclusion of hearsay.” Phillips & Jordan Investment Corp. v. Ashblue Co., 86 N.C. App. 186, 191, 357 S.E.2d 1, 3-4, disc. review denied, 320 N.C. 633, 360 S.E.2d 92 (1987) (emphasis added). “Common sense dictates that if proffered evidence fails to meet the requirements of one of the inquiry steps, the trial judge's findings concerning the preceding steps are unnecessary.” Id. at 191, 357 S.E.2d at 4. Thus, if the trial court determines that hearsay evidence is untrustworthy under step three of the six-part inquiry, the trial court's failure to make the requisite findings in denying a motion to admit hearsay evidence pursuant to 804(b)(5) is not prejudicial and does not constitute reversible error. See State v. Hardison, 143 N.C. App. 114, 118-19, 545 S.E.2d 233, 236 (2001); State v.Harris, 139 N.C. App. 153, 159, 532 S.E.2d 850, 854, disc. review denied, 353 N.C. 271, 546 S.E.2d 121 (2000).
    In the instant case, the trial court specifically found that the hearsay evidence proffered by defendant lacked a “substantial guarantee of trustworthiness.” This finding is based upon competent evidence of record tending to show that Travis was an unreliable witness whose statement to Detective Bishop regarding Bristow was highly questionable. Defendant has shown no prejudicial error relating to the trial court's exclusion of the statement by Travis to Detective Bishop, and we overrule this assignment of error.
    Defendant next argues that the trial court committed plain error when it sentenced defendant at a prior record level IV. Specifically, defendant contends that there was no evidence to support the trial court's determination that defendant had thirteen prior record points at the time of sentencing. Defendant maintains that the trial court therefore erred in sentencing him as a level IV offender. This argument is without merit.
    “Evidence presented by either party at trial may be utilized to prove prior convictions.” N.C. Gen. Stat. § 15A-1340.14(f) (2001). At trial, defendant admitted on cross-examination that he had been convicted of armed robbery, discharging a weapon into occupied property, and possession of cocaine. The trial court thereafter calculated that defendant had thirteen prior record level points, with six points for the prior Class D felony (armed robbery), four points for the prior Class E felony (discharging aweapon into occupied property), and two points for the prior Class I felony (possession of cocaine). The trial court added a further point because the elements of defendant's present offense were included in a prior offense, for a total of thirteen points and a prior record level IV. As there was competent evidence of record to support the determination of defendant's prior record level, we conclude that the trial court properly sentenced defendant as a level IV offender.
    By his final assignment of error, defendant contends that the trial court erred in denying his motion to dismiss based upon speedy trial violations. In Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101 (1972), the United States Supreme Court established a balancing test involving four interrelated factors for courts to conduct on a case-by-case basis in determining whether a defendant's constitutional right to a speedy trial has been violated. See id. at 530, 33 L. Ed. 2d at 116-17. These factors include: (1) the length of the delay; (2) the reason for the delay; (3) defendant's assertion of his right to a speedy trial; and (4) prejudice to defendant resulting from the delay. See id. at 530, 33 L. Ed. 2d at 117. Once a defendant shows that his trial has been delayed for an exceptional amount of time, the delay triggers the court's consideration of the remaining Barker factors. See id; State v. Webster, 337 N.C. 674, 678, 447 S.E.2d 349, 351 (1994).
In the present case, defendant was arrested on 4 May 2001, and an indictment for robbery with a dangerous weapon was returned on 25 June 2001. Defendant filed a motion to dismiss for the denialof a speedy trial on 26 March 2002. Defendant's trial began on 8 April 2002. Thus, defendant's trial began approximately eleven months after his arrest, less than ten months after his indictment, and thirteen days after he filed his motion to dismiss. In State v. Kivett, 321 N.C. 404, 410, 364 S.E.2d 404, 408 (1988), a 427-day delay between indictment and trial was not “sufficient, standing alone, to constitute unreasonable or prejudicial delay.” Defendant has advanced no authority, nor have we discovered any, where a time period of less than one year has been held to be presumptively prejudicial. We conclude that the trial court did not err in denying defendant's motion to dismiss based on speedy trial violations.
    In conclusion, we hold that the trial court did not err in denying defendant's motion to continue and in declining to admit hearsay evidence. We further hold that the trial court did not err in sentencing defendant as a prior record level IV offender and in denying his motion to dismiss based on asserted speedy trial violations.
    No error.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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