STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 01 CRS 9963
DELMAR BREVARD HAYES
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.
TIMMONS-GOODSON, Judge.
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.
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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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