An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1226


Filed: 15 July 2003


         v.                        Scotland County
                                No. 01 CRS 2317

    Appeal by defendant from judgment entered 22 March 2002 by Judge Gregory A. Weeks in Scotland County Superior Court. Heard in the Court of Appeals 7 July 2003.

    Attorney General Roy Cooper, by Elizabeth N. Strickland, Assistant Attorney General, for the State.

    Parish & Cooke, by James R. Parish, for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Amber M. Smith, appeals a conviction of assault with a deadly weapon with intent to kill inflicting serious injury. For the reasons discussed herein, we find no error.
    The State's evidence tended to show that defendant was involved in a physical altercation with Rose Smith (Smith), defendant's cousin by marriage. Police were called, and Laurinburg Police Officer A. Spruill responded to the scene. When he arrived, neither defendant nor Smith were there. Two bystanders, however, informed the officers of their location. The officer first located defendant, who appeared calm and without injury. Defendant admitted to having been involved in a fight, and told him where shelast saw Smith. Officer Spruill asked defendant to accompany him as he tried to locate Smith. Defendant accompanied the officer, and he subsequently found Smith in front of a nearby store. Smith was hysterical, and bleeding from the top of her head and the side of her face. When the officer approached Smith, she said, “Amber did it, she tried to kill me.” Officer Spruill stepped back to his vehicle, where defendant sat, and asked her if she had assaulted Smith. Defendant stated that she had. Smith was subsequently transported by ambulance to the hospital, where she received ten staples in the top of her head, sixteen stitches to the side of her face, five stitches in her neck and five stitches in her shoulder.
    Later, Officer Chris Strickland, found the knife used by defendant in the assault some 300-400 feet from the location that Officer Spruill had originally found defendant. The knife had dried blood on it, and was described as a “six-inch lock blade.”
    Defendant had previously threatened Smith with bodily harm after Smith began to date defendant's friend, Neal McNair (McNair). McNair and defendant had each sworn out warrants against each other for communicating threats and had appeared before the Scotland County District Court just before the instant assault occurred. While in court, the assistant district attorney and the presiding district court judge recalled hearing defendant make threats against Smith in court. Contrary to the judge and district attorney's instruction to the three not to “mess with each other,” after leaving the courthouse, defendant verbally and physically assaulted Smith.     Defendant's evidence tended to show that she had previously dated McNair. Defendant denied being upset by Smith dating McNair. She maintained that Smith was the aggressor in the 26 March 2001 assault. She stated that Smith called her names, “pick[ed] on her” during their appearance in district court, waited for her after court and followed her to a convenience store. Defendant stated that Smith announced that she wanted to fight and hit defendant first. The fight escalated when defendant saw Smith pull a “pointed object” from her pocket. Defendant testified that she only pulled her knife out and cut Smith in self-defense. She noted that Smith was known to carry a box cutter and ice pick. Defendant stated that she did not intend to hurt or kill Smith, and that she did not know that Smith was hurt in the altercation.
    Defendant's friend, Denise Lester (Lester), who was with the defendant on 26 March 2001 corroborated defendant's testimony. Lester further testified, however, that she did not hear any of the threats allegedly made by either of the women during court. Lester noted that Smith did pull something shiny out of her pocket, but could not identify what the object was. Lester testified that she saw Smith's face bleeding and saw red marks on defendant's face after the fight.
    The jury found defendant guilty as charged. The trial court sentenced defendant to 85 to 111 months in prison. Defendant appeals.
    In her first assignment of error, defendant argues that the trial court erred in denying her spontaneous, pro se pre-trialmotion to continue to allow her time to retain counsel. Defendant contends that court-appointed counsel failed to discuss her case with her and counsel was not adequately prepared for trial. We disagree.
    Generally, a motion to continue is addressed to the sound discretion of the trial court, and reviewable only upon a showing of an abuse of that discretion. State v. Taylor, 354 N.C. 28, 33, 550 S.E.2d 141, 146 (2001), cert. denied, 535 U.S. 934, 152 L. Ed. 2d 221 (2002). When the motion to continue is based on an asserted constitutional right, the trial court's ruling is a reviewable question of law. Id. However, as explained, by our Supreme Court in Taylor, “even if the motion raises a constitutional issue, a denial of a motion to continue is grounds for a new trial only when defendant shows both that the denial was erroneous and that he suffered prejudice as a result of the error.” Id. at 33-34, 550 S.E.2d at 146.     
    Counsel had been appointed more than a year before this matter came on for trial. At no time prior to this matter being called for trial did defendant express any dissatisfaction with counsel's representation. While defendant contends that she was unaware that she could retain counsel, our laws require that at the time a defendant makes her initial appearance in court, her rights to representation be thoroughly explained. The record does not show that defendant was not apprised of these rights in this case. As noted by defendant's Order of Assignment or Denial of Counsel and Affidavit of Indigency, defendant applied for and accepted court-appointed counsel. Moreover, and most significantly, defendant has failed to establish how retained counsel could have better prepared for trial had the continuance been granted or that she was prejudiced by the denial of her motion. Accordingly, we conclude that the trial court did not err in denying defendant's motion to continue. This assignment of error is without merit.
    In her second assignment of error, defendant argues that trial counsel rendered ineffective assistance of counsel by failing to cross-examine Officer Spruill in the presence of the jury about defendant's statement that she attacked Smith because Smith had a knife. We disagree.
    To establish an ineffective assistance of counsel claim, defendant must show: (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error. State v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15 (2000), cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001) (citing Strickland v. Washington, 466 U.S. 668, 691-96, 80 L. Ed. 2d 674, 696-99 (1984) and State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985)).
    In Braswell, our Supreme Court explained that the defendant must show more than mere deficient performance by counsel, but that “'counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.'” 312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland, 466 U.S. at687, 80 L. Ed. 2d at 693). Mere allegations surrounding matters of trial tactics, without more, are not sufficient to meet the Strickland test. State v. Piche, 102 N.C. App. 630, 638, 403 S.E.2d 559, 564 (1991).
    Defendant is unable to make the requisite showing to be entitled to relief. Although counsel may not have inquired of the officer as to defendant's comments that she attacked Smith out of self-defense, evidence was already before the jury in that regard. Both defendant and Lester testified that they saw Smith take something shiny out of her pocket during the fight. In addition, defendant testified that Smith was known to carry a box cutter and ice pick. Further, defendant admitted to cutting Smith in the head and face with a knife. Here, counsel's failure to question the responding officer was not an error “'so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.'” See Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693). Further, in light of her own testimony and other evidence before the court, defendant cannot show that but for counsel's alleged error, there would have been a different result. Thus, this assignment of error without merit.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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