Converted WP file 041300-1

Appeal by defendant from judgment entered 19 March 2004 by Judge Franklin F. Lanier in Sampson County Superior Court. Heard in the Court of Appeals 18 May 2005. Remanded to the trial court for consideration of a motion for appropriate relief 19 May 2005. Motion for appropriate relief denied by the trial court 3 October 2005; order received in the Court of Appeals 18 November 2005.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Grady L. Balentine, Jr., for the State.

Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr.; Thompson & Thompson, P.C., by E. C. Thompson, III, for defendant-appellant.

    HUNTER, Judge.

    Glenn Edwad   (See footnote 1) Powers, Jr. (“defendant”) appeals from a final judgment entered consistent with a jury verdict of second degreemurder. Defendant argues the trial court committed reversible error by (1) denying defendant's request for a recess in order to locate a witness; (2) denying his request for an instruction on alibi; and (3) instructing the jury about the need to continue deliberation in an effort to reach a verdict without reiterating that the verdict had to be unanimous. For the reasons stated herein, we find no error by the trial court.
    On 10 August 2002, Ronald Parker (“Parker”) was fatally shot at Zet's Club in Garland, North Carolina. At trial, Jeff German (“German”) testified that he observed defendant shoot and kill Parker at Zet's Club. German was the State's only eyewitness to the murder. German stated that he was drinking at the bar of the club when defendant came in, ordered a drink, and stood beside him. Parker then came up to the bar and ordered a drink. German testified that Parker and defendant “stare[d]” at one another. Defendant then pulled out a handgun and shot Parker.
    Defendant called several witnesses to testify that they did not see defendant at Zet's Club the night Parker was shot. When these witnesses finished testifying, defense counsel requested a recess in order to bring one final witness, Donald Newkirk (“Newkirk”), to the court to testify. Defense counsel stated that Newkirk contacted him the morning of the final day of defendant's case to say he was available and willing to testify, but did not have transportation to the courthouse. The trial court denied defendant's request for a recess to secure Newkirk's presence. Thecourt also denied defendant's request for a pattern jury instruction on alibi.
    Upon consideration of the evidence, the jury found defendant guilty of second degree murder. The trial court sentenced defendant to a term of imprisonment of 201 to 251 months. Defendant appeals.
    By his first assignment of error, defendant contends the trial court erred in denying his request for a recess in order to bring a witness to court. Defendant argues the trial court's denial of his motion deprived him of effective assistance of counsel and the right to present evidence.
    While a motion for a continuance is ordinarily within the sound discretion of the trial court, if it is based on a constitutional right, it becomes a question of law fully reviewable on appeal. State v. Covington, 317 N.C. 127, 129, 343 S.E.2d 524, 526 (1986). Even where the motion raises a constitutional issue, however, denial of the motion is grounds for a new trial only upon a showing that the denial was erroneous and that the defendant was prejudiced as a result of the error. State v. Blakeney, 352 N.C. 287, 302, 531 S.E.2d 799, 811 (2000).
    It is well established that a defendant and his counsel must have a reasonable amount of time to investigate, prepare, and present a defense. State v. Tunstall, 334 N.C. 320, 328, 432 S.E.2d 331, 336 (1993). No set length of time for investigation, preparation, and presentation is required, however, “and whether [a] defendant is denied due process must be determined upon thebasis of the circumstances of each case.” State v. Harris, 290 N.C. 681, 687, 228 S.E.2d 437, 440 (1976). To 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.” Covington, 317 N.C. at 130, 343 S.E.2d at 526.
    In the circumstances of the present case, we conclude that defendant had adequate time to investigate, prepare, and present a defense, and that the trial court did not err in denying his motion for a recess. Defendant requested the recess in order to bring Newkirk to court to testify. Defendant proffered that Newkirk was important because he was an eyewitness and one of German's (the State's key witness) companions that night. Defendant knew well before making his motion, however, that German was a potential witness for the State, and he was aware that Newkirk was a companion of German's on the night Parker was killed. Defendant also knew of Newkirk's presence at Zet's Club and therefore of his potential as a witness for the defense. Defendant could have subpoenaed Newkirk, but he failed to do so. As defendant has not shown he had inadequate time to prepare a defense, the trial court did not err in denying his motion for a recess. Defendant moreover has failed to demonstrate he was materially prejudiced by the trial court's denial of his motion. Although Newkirk was one of German's companions the night of Parker's murder, defendant does not relate any crucial testimony Newkirk could have offered on his behalf. Defendant argues Newkirk would have testified that he did not seedefendant at the club that night, but defendant presented several witnesses who testified to that effect. Moreover, defendant called Carolee James as a witness, who was also at Zet's Club and a companion to German the night Parker was killed. Defendant has failed to show how Newkirk's testimony could have resulted in a different verdict. As defendant was given a reasonable amount of time to investigate, prepare, and present his defense, and because he was not materially prejudiced by the absence of Newkirk's testimony, the trial court's denial of his motion for a recess did not violate defendant's constitutional guarantees of effective assistance of counsel or right to present evidence. We overrule this assignment of error.
    By his second assignment of error, defendant argues the trial court erred in denying defendant's request for an instruction on alibi. We do not agree.
    “'In the absence of a requested instruction, there is no duty upon the trial court to instruct specifically upon the subject of alibi.'” State v. Hunt, 283 N.C. 617, 622, 197 S.E.2d 513, 517 (1973) (citation omitted). Nevertheless, when there is sufficient evidence in the case to raise an issue as to alibi and a defendant has specifically requested the trial court to charge the jury with instructions on alibi, it is the duty of the court to so instruct, and the failure, or refusal, to instruct as to alibi under such circumstances constitutes prejudicial error. Id.
    “An alibi is simply a defendant's plea or assertion that at the time the crime charged was perpetrated he was at another placeand therefore could not have committed the crime.” Id. at 619, 197 S.E.2d at 515. “[A] defendant's mere denial that he was at the place when the crime was committed is insufficient to justify the giving of an instruction on alibi.” State v. Green, 268 N.C. 690, 692, 151 S.E.2d 606, 608 (1966). A trial court's failure to give a requested instruction on alibi, even when warranted by the evidence, is not prejudicial when the trial court has instructed the jury that the State must prove beyond a reasonable doubt that the defendant was the perpetrator of the charged offense and committed each element of the crime charged. State v. Hood, 332 N.C. 611, 618, 422 S.E.2d 679, 682 (1992).
    Here, defendant made a timely request for the pattern instruction on alibi. However, defendant did not offer evidence sufficient to warrant an instruction on alibi. Defendant did not give evidence that he was at some other specified place at the time of the crime. Although five witnesses testified that they did not see defendant at Zet's Club the night Parker was killed, such evidence was insufficient to warrant a jury instruction on alibi, as it did not establish that defendant was elsewhere at the time of the crime. In addition, the trial court instructed the jury that the State had to prove beyond a reasonable doubt that defendant committed the crime charged. We conclude the trial court properly denied defendant's requested instruction on alibi, and we therefore overrule this assignment of error.
    Finally, defendant contends the trial court committed reversible or plain error in instructing the jury about the need todeliberate in an effort to reach an agreement, without reiterating the fact that the verdict must be unanimous. Defendant argues that when the trial court instructs the jury as to section 15A-1235(b) of the General Statutes, which covers the need to deliberate, the trial court must also instruct on section 15A-1235(a), which states that the verdict must be unanimous.
    Section 15A-1235 provides instruction to the trial court when a jury indicates that it is deadlocked and provides in pertinent part as follows:
        If it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue its deliberations and may give or repeat the instructions provided in subsections (a) and (b). The judge may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

N.C. Gen. Stat. § 15A-1235(c) (2005). The trial court is only required to read both subsections (a) and (b) when the jury is deadlocked or indicates that it is having difficulty reaching a unanimous verdict. State v. Williams, 339 N.C. 1, 40, 452 S.E.2d 245, 268 (1994), overruled on other grounds by State v. Warren, 347 N.C. 309, 492 S.E.2d 609 (1997).
    The jury began its deliberations in the present case at 3:18 p.m. and deliberated until 5:00 p.m. The next morning, the jury resumed its deliberations at 9:42 a.m. The jury deliberated until a recess for lunch at 12:25 p.m. The jury resumed its deliberations at 2:05 p.m. The trial court took an afternoon recess at 3:10 p.m. When the trial court sent the jury to resume its deliberations after the recess, it instructed the jury pursuantto section 15A-1235(b). The jury did not indicate that it was deadlocked or having difficulty reaching a verdict. The trial court therefore did not commit reversible or plain error in instructing the jury about the need to deliberate in an effort to reach an agreement without reiterating that the verdict must be unanimous. State v. Lyons, 343 N.C. 1, 21, 468 S.E.2d 204, 213 (1996).
    In conclusion, we find no error by the trial court.
    No error.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1