Converted WP file 041569-1

Appeal by defendant from judgments entered 24 February 2004 by Judge W. Osmond Smith in the Superior Court in Wake County. Heard in the Court of Appeals on 20 June 2005.

Attorney General Roy Cooper, by Assistant Attorney General Marc Bernstein, for the State.

Amos Granger Tyndall, for defendant-appellant.

HUDSON, Judge.

    A jury found defendant guilty of trafficking in at least fourteen but less than twenty-eight grams of heroin by possession, possession of heroin with intent to sell or deliver, and keeping or maintaining a place for the purpose of keeping controlled substances. The trial court sentenced defendant to an active prison term of 90 to 117 months for his trafficking offense, as prescribed by N.C. Gen. Stat. § 90-95(h)(4) (2004). The court consolidated his remaining offenses and imposed a consecutive prison sentence of eight to ten months. Defendant gave notice of appeal in open court. As discussed below, we conclude there was no error.    The State's evidence tended to show that on 30 May 2003, a confidential informant advised Lieutenant Shelley Murray of the Wake County Sheriff's Department that a suspected heroin dealer was occupying a room at the Lodge America hotel on Capital Boulevard in Raleigh, North Carolina. The informant further reported that the dealer would be using an alias in order to avoid arrest on outstanding warrants. Murray proceeded to the Lodge America, where she learned from the front desk clerk that Room 321 was registered to a “Dupree Ellis” from New Jersey. She examined a photocopy of Ellis's identification card on file at the front desk and recognized both the photograph and the date of birth listed on the card as those of defendant.
    After obtaining defendant's pending arrest warrant from her office, Murray returned to the hotel at approximately 1:00 a.m., accompanied by uniformed members of the Raleigh Police Department. Police proceeded to the door of Room 321, where they announced their presence and indicated that they had a warrant for defendant's arrest. Defendant opened the door briefly and attempted to shut it, whereupon the officers entered the room and placed him in custody. When asked by Murray “if there was anything else in the room that we needed to know about,” defendant pointed to a blue nylon bag on the kitchen counter. Inside the bag, police found a bundle of small glassine packets containing what was later determined to be nineteen grams of heroin. Police searched the room's closet and found a second, black nylon tote bag which held 4.2 grams of heroin packaged in small glassine packets similar tothose found in the bag on the kitchen counter. In the pocket of a pair of pants was the identification card issued to Dupree Ellis. Defendant was alone in the room at the time of his arrest.
    On appeal, defendant claims the trial court violated his constitutional rights to due process and effective assistance of counsel by denying his motion for a continuance and his motion for funds to hire a private investigator. The record reflects that defendant filed his motions on the morning of trial, 23 February 2004, without supporting affidavits.   (See footnote 1) See N.C. Gen. Stat. § 15A- 952(b) (2004) (requiring motions to continue to be filed “at or before the time of arraignment”); State v. Kuplen, 316 N.C. 387, 403, 343 S.E.2d 793, 802 (1986) ("[A] motion for a continuance should be supported by an affidavit showing sufficient grounds for the continuance.”). In the motion to continue, defendant invoked his constitutional right to counsel and alleged that his counsel “would not be prepared to render effective representation if these cases proceed to trial as now scheduled.” The motion for funds alleged that counsel lacked the time and expertise required “to interview all the potential witnesses[,]” and also asserted defendant's constitutional right to present a defense. At the hearing on the motions, defense counsel acknowledged that he was appointed on 15 October 2003, and appeared at defendant's arraignment on 15 December 2003. Counsel claimed, however, that he had not known of the trial date “until [the] middle of lastweek[,]” because of problems accessing the criminal calendar on the court's internet website. Noting that defendant denied being arrested in the hotel room, his counsel averred, “I need to go out and see hotel management to ascertain whether [defendant] was the occupant . . . in that room.” As for the need for an investigator, counsel stated, “I do need someone to go out to interview hotel management. . . . I cannot testify of course so I need someone to go out there and interview those two people.”
    The trial court denied the motion to continue, whereupon defendant withdrew his motion for funds. After determining defendant would have sufficient time to prepare subpoenas for any witnesses from the hotel, the judge stated his willingness “to use the authority that I have to request expeditious service by a sheriff on someone, whether it's this afternoon or overnight, whatever it might be.”
    In his brief to this Court, defendant insists that the trial court's rulings “denied [counsel] sufficient time to prepare, investigate and present an adequate defense[,]” and prevented him from interviewing hotel management for the purpose of cross- examining Murray and adducing evidence for the defense.
    Although generally left to the discretion of the trial court, the denial of a motion for a continuance is reviewed de novo where the defendant asserts a denial of his constitutional rights. See State v. Covington, 317 N.C. 127, 129, 343 S.E.2d 524, 526 (1986). In order “[t]o establish a constitutional violation, a defendant must show that he did not have ample time to confer with counseland to investigate, prepare and present his defense.” State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331, 337 (1993). Moreover, “[t]o demonstrate that the time allowed was inadequate, 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.'" Id. (quoting State v. Covington, 317 N.C. 127, 130, 343 S.E.2d 524, 526 (1986)).
    The trial court did not err in denying defendant's motion. Defendant was indicted on 9 September 2003, arraigned on 15 December 2003, and brought to trial on 23 February 2004. Counsel was appointed on 30 October 2003, and thus had almost four months to conduct his investigation and prepare for trial. Moreover, the State's case against defendant was straightforward. The prosecutor called only three witnesses, one of whom was the forensic chemist who confirmed that the substance in question was heroin. Although counsel claimed to have learned of the trial date only five days beforehand on 18 February 2004, he made no showing that he was denied a reasonable opportunity to prepare a defense. See State v. Jones, 342 N.C. 523, 532, 467 S.E.2d 12, 18 (1996) (requiring “some form of detailed proof indicating sufficient grounds for further delay”) (quoting State v. Searles, 304 N.C. 149, 155, 282 S.E.2d 430, 434 (1981)). Specifically, we find counsel had ample opportunity to visit the hotel in order to interview the manager and front desk clerk. We overrule this assignment of error.
    Defendant also contends the court erred in denying defendant's motion for funds to hire an investigator. Under N.C. Gen. Stat. §§7A-450(b) and 7A-454 (2004), “[e]xperts for trial preparation should be provided only when there is a reasonable likelihood that the expert will materially aid the defendant in the preparation or presentation of the defense or that without such help it is probable the defendant will not receive a fair trial.” State v. Gardner, 311 N.C. 489, 498-99, 319 S.E.2d 591, 598 (1984). To establish a violation of his constitutional rights, a “defendant must demonstrate that the State's failure to provide funds with which to hire an investigator substantially prejudiced his ability to obtain a fair trial.” State v. Parton, 303 N.C. 55, 66-67, 277 S.E.2d 410, 418-19 (1981), disavowed in non-pertinent part by State v. Freeman, 314 N.C. 432, 438, 333 S.E.2d 743, 747 (1985).
    As noted above, counsel faced no difficulty in locating and interviewing the hotel's manager and front desk clerk. See State v. Poole, 305 N.C. 308, 323, 289 S.E.2d 335, 344 (1982) (“Determination of the names and location of the key witnesses to these crimes should have been little problem for any attorney.”). We reject the argument that counsel could not have personally interviewed the hotel employees without jeopardizing his role as counsel. To the extent hotel employees had information helpful to the defense, defendant could have secured their appearance at trial by subpoena. Moreover, a defense attorney's ability to represent his client is not compromised by the act of interviewing potential witnesses. Since hearsay is inadmissible, counsel may not offer testimony regarding the witnesses' out-of-court statements. See generally N.C.R. Evid. 802. Nor may counsel testify for thepurpose of impeaching witnesses' trial testimony with their inconsistent statements during an interview. See State v. Shane, 304 N.C. 643, 652-53, 285 S.E.2d 813, 819 (1982) (prohibiting use of extrinsic evidence to impeach witnesses), cert. denied, 465 U.S. 1104, 80 L. Ed. 2d 134 (1984); see also State v. Najewicz, 112 N.C. App. 280, 289, 436 S.E.2d 132, 138 (1993) (“[O]nce a witness denies having made a prior inconsistent statement, [a party] may not introduce the prior statement in an attempt to discredit the witness[.]”), disc. review denied, 335 N.C. 563, 441 S.E.2d 130 (1994). We overrule this assignment of error as well.
    The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned.
    No error.
    Judges MCGEE and LEVINSON concur.
    Report per Rule 30(e).

Footnote: 1