STATE OF NORTH CAROLINA
v. Forsyth County
No. 00 CRS 58997
ELROY JONES
Attorney General Roy Cooper, by Assistant Attorney General
Laura E. Crumpler, for the State.
Parish & Cooke, by James R. Parish, for defendant appellant.
McCULLOUGH, Judge.
Defendant was found guilty of robbery with a dangerous weapon
and was sentenced to 120-153 months in prison.
The State presented evidence tending to show that on 1
November 2000, defendant entered the office of Dr. Causby Davis, an
optometrist in Winston-Salem, and told Jean Behm, Dr. Davis's
secretary, that he wished to purchase contact lenses for his
girlfriend. Defendant told Behm that his girlfriend's last name
was “Harris.” As Behm bent over to look for this person's record
in a file cabinet, defendant pulled her away by grabbing her hair.
Holding a serrated steak knife in his hand, defendant demanded that
Behm give him all of the money in the office. Behm gave defendant
a bank bag containing two or three dollars. Defendant grabbedloose change in a cash tray and Behm's change purse. Then
defendant fled in a red automobile. Behm recorded the license
plate number, MZG-5742, of the vehicle. The license plate number
led to the identification of defendant as a suspect. Later, Behm
identified defendant as the perpetrator.
Defendant first contends that the trial court abused its
discretion by denying his motion for a continuance so he could
retain counsel. The record shows that this Court awarded defendant
a new trial in an unpublished opinion filed 4 November 2002. The
trial court released defendant on bond pending the second trial on
11 December 2002. On 14 January 2003, the date before the trial
was to commence, defendant and defendant's appointed counsel
appeared before the court and requested that counsel be allowed to
withdraw and that the trial be continued so that counsel retained
by defendant would have adequate time to prepare for trial.
Defendant declared that on the previous day he had contacted an
attorney for the purpose of retaining him. The court stated that
defendant could retain an attorney, but it was not going to delay
the trial. The court further indicated that the retained attorney
should be ready to try the case the next day.
As a general principle, a motion to continue is left to the
discretion of the trial court and is not reviewable in the absence
of a gross abuse of discretion. State v. Searles, 304 N.C. 149,
153, 282 S.E.2d 430, 433 (1981). Another general principle is that
when a motion raises a constitutional issue, the trial court's
action upon it involves a question of law which is fully reviewableby examining the particular circumstances of the case. Id. at 153,
282 S.E.2d at 433. However, regardless of whether or not a
constitutional issue is raised, the denial of the motion to
continue is grounds for a new trial only when defendant shows both
that the denial was erroneous and prejudicial. State v. Branch,
306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). When a defendant
seeks additional time to prepare for trial, 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. Covington, 317 N.C. 127, 130, 343 S.E.2d
524, 526 (1986).
In denying the motion to continue, the court observed that
appointed counsel, having represented defendant in the first trial,
was familiar with the case and was prepared to try the case again.
The court also noted that counsel was highly competent. The court
further found that defendant had plenty of time, more than a month,
to retain another attorney. The court also found that the case had
been pending in the court system for more than two years. During
the trial, the court granted recesses, including an overnight
recess, so that defendant could obtain the attendance of witnesses.
The court offered its assistance in procuring the attendance of the
witnesses, but counsel declined the offer. When called upon by the
court to present evidence, defendant stated that after consulting
with counsel he had decided not to present any evidence. Under
these circumstances, we find neither abuse of discretion nor
prejudicial error in the denial of the motion. Defendant's remaining contention is that the trial court
committed plain error by instructing the jury regarding defendant's
failure to testify when defendant did not request the instruction.
While it is the better practice not to give an instruction
regarding the defendant's failure to testify in the absence of a
request for the instruction, the general rule is that giving the
instruction is not erroneous if it “makes clear to the jury that
the defendant has the right to offer or to refrain from offering
evidence as he sees fit and that his failure to testify should not
be considered by the jury as basis for any inference adverse to
him.” State v. Baxter, 285 N.C. 735, 738-39, 208 S.E.2d 696, 698
(1974). Here, the court instructed the jury:
The defendant in this case has not
testified. The law of North Carolina gives him
this privilege. This same law also assures
him that his decision not to testify creates
no presumption against him. Therefore his
silence is not to influence your decision in
any way.
We conclude the instruction given by the court comports with the
general rule. This assignment of error is overruled. We conclude
that defendant received a fair trial free from reversible error.
No error.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***