An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-1024


Filed: 5 July 2006


         v.                         Mecklenburg County
                                 Nos. 02 CRS 200469-70
PERCY ALLEN WILLIAMS, JR.                 02 CRS 200485

    Appeal by defendant from judgments entered 4 December 2003 by Judge W. David Lee in Mecklenburg County Superior Court. Heard in the Court of Appeals 19 June 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General Daniel S. Johnson, for the State.

    Blanchard, Newman & Hayes, by Gregory A. Newman, for defendant appellant.

    McCULLOUGH, Judge.

     Defendant appeals from judgments entered on convictions by a jury of attempted first-degree murder, first-degree kidnapping, and assault with a deadly weapon with intent to kill inflicting serious injury. We conclude that he received a fair trial, free from error.
    The State presented evidence tending to show that on 5 January 2002, Lori Graham resided in a two-bedroom apartment with her boyfriend and two daughters. Defendant also resided with them and slept in the living room. That evening she went to bed and fell asleep. She was awakened by defendant strangling her with his hands. She lost consciousness and when she regained consciousness,defendant was strangling her with a belt. She lost consciousness again and the next time she awoke, she found herself outside in the backseat of an automobile. A police officer asked her what happened and to identify the perpetrator. She identified defendant. The next thing she could remember is waking up in the hospital. She remained in the hospital from that Saturday morning until the following Wednesday. She sustained injuries to her head, left side, chest, neck and wrist. She underwent surgery on her left eye.
    Defendant gave a confession to the police. He related that he went into Ms. Graham's bedroom, sprayed her face with mace and then “came across her head” with a twenty-five pound weight. He removed his belt, formed a noose, and began to strangle her. He dragged her off the bed, forced her into a closet, and pressed his foot against her face. He dragged her out to the car and put her in the backseat with the intention of driving somewhere to dispose of her body, but the automobile got stuck in snow. He then called 911 and pretended to have just returned home and discovered Ms. Graham in the car.
    The sole issue on appeal is whether the court erred by not allowing, on its own motion, a continuance when the clerk of court failed to provide defendant, who represented himself, with subpoena forms. The record shows that on 19 November 2003 Judge Yvonne Mims Evans ordered the clerk of superior court to provide defendant with subpoena forms so he could subpoena two mental health professionals to testify at his trial on 1 December 2003. The clerk acknowledged at the call of the case for trial that she had not provided defendant with the forms as ordered by the court two weeks earlier. Defendant also argues a continuance should have been granted so defendant could undergo testing to determine whether or not he is insane. He argues the failure to continue the trial prevented him from presenting an insanity defense and thereby violated his constitutional due process rights.
     The decision whether to grant a continuance is ordinarily within the trial judge's discretion and will not be disturbed on appeal unless an abuse of discretion is shown. State v. Thomas, 294 N.C. 105, 111, 240 S.E.2d 426, 431 (1978). However, when a constitutional issue is raised by a motion to continue, the trial court's ruling becomes fully reviewable on appeal. State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981). Even if a motion does raise a constitutional issue, a defendant must show both that the denial of the motion was erroneous, and that his defense was prejudiced as a result to receive a new trial. State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). Relevant factors to consider in determining whether the denial of a continuance is erroneous include: “(1) the diligence of the defendant in preparing for trial and requesting the continuance, (2) the detail and effort with which the defendant communicates to the court the expected evidence or testimony, (3) the materiality of the expected evidence to the defendant's case, and (4) the gravity of the harm defendant might suffer as a result of a denial of the continuance.” State v. Barlowe, 157 N.C. App. 249, 254,578 S.E.2d 660, 663, disc. review denied, 357 N.C. 462, 586 S.E.2d 100 (2003).
     The record shows that defendant was indicted on 28 January 2002. Assistant Public Defender Gregory Woods was appointed to represent defendant and on 9 August 2002, his motion for appointment of a forensic psychiatric examiner was granted. A forensic screener examined defendant and reported on 24 September 2002, that defendant was competent to stand trial. A conflict arose between defendant and Mr. Woods and on 20 December 2002 Mr. Woods was allowed to withdraw as counsel. Mr. Lucky Osho was then appointed to represent defendant. Mr. Osho also requested a psychiatric evaluation of defendant and on 8 April 2003, the court ordered a second evaluation which resulted in the same conclusion: defendant was competent to stand trial. Mr. Osho was subsequently allowed to withdraw as counsel and Mr. Ron Everhart was appointed to represent defendant. A conflict arose between Mr. Everhart and defendant and on 3 October 2003, Mr. Everhart filed a motion to withdraw. In the order allowing Mr. Everhart's motion to withdraw, Judge Yvonne Mims Evans found that Mr. Everhart also obtained an order for an independent psychological evaluation of defendant and that defendant refused to cooperate with Mr. Everhart. Judge Mims refused to appoint another attorney.
    In summary, defendant delayed the trial for almost two years while discharging three attorneys. Each attorney had a mental evaluation conducted of defendant. Each evaluation showed defendant was competent to stand trial. Nothing appears in the presentrecord to support an insanity defense other than defendant's own self-serving statements. “Rather, the record suggests a natural reluctance to proceed to trial, engendered by the seriousness of the charge and lack of a substantial defense, rather than scarcity of time or absence of bona fide witnesses.” State v. Tolley, 290 N.C. 349, 358, 226 S.E.2d 353, 362 (1976). Indeed, in his closing argument to the jury, defendant stated that he was guilty and that “[t]here [was] no defense” to the charges. Defendant gave a confession in which he lucidly related how he vengefully attempted to kill the victim.
    On these facts, the trial court was not compelled to enter an ex mero motu order continuing defendant's trial until a later date. We find no error.
    No error.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).     

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