An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-893

NORTH CAROLINA COURT OF APPEALS

Filed: 4 May 2004

STATE OF NORTH CAROLINA

         v.                        Forsyth County
                                No. 00 CRS 58997
ELROY JONES

    Appeal by defendant from judgment entered 16 January 2003 by Judge Jerry Cash Martin in Forsyth County Superior Court. Heard in the Court of Appeals 19 April 2004.

    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 The record shows that this Court awarded defendant a new trial in an unpublished opinion filed 4 November 2002.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).

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