STATE OF NORTH CAROLINA
v
.
Buncombe County
No. 04 CRS 53803
MICHAEL SINCLAIR MOSELY
Attorney General Roy Cooper, by Assistant Attorney General
Meredith Jo Alcoke, for the State.
Belser & Parke, P.A., by David G. Belser and Al Messer for
defendant.
LEVINSON, Judge.
Michael Sinclair Mosely (defendant) appeals from judgment
entered upon his conviction for possession of cocaine with intent
to sell or deliver. We find no error.
The relevant facts may be summarized as follows: On 27 March
2004, Officer Geoff Rollins and other law enforcement personnel
from the Asheville Police Department executed an undercover drug
operation at the Hillcrest Apartments in Asheville, North Carolina.
While undercover officers attempted to buy crack cocaine, Rollins
waited in an unmarked van as part of a “takedown team” that was
charged with arresting suspects who sold crack to the undercover
officers. Rollins' team received a call to arrest a suspect who
had sold cocaine to an officer near Building 12 of the HillcrestApartments. After a description of the suspect was provided,
Rollins and his team proceeded in an unmarked van towards Building
28, where Rollins saw the defendant standing in the vicinity of
Building 26 or Building 28. While Rollins recognized the defendant
as someone who was banned from this public housing complex, he was
unable to identify the defendant as the suspect who had purchased
cocaine from the undercover officers.
As law enforcement officers exited their van, Rollins
witnessed the defendant immediately throw an object behind himself.
Rollins quickly ran towards the defendant and ordered him to the
ground. A few minutes thereafter, Rollins found a paper towel
containing 16 small “tan rocks” which he believed to be cocaine.
Another officer searched the defendant and found $548 in cash.
At trial, Rollins identified the defendant as the person he
arrested for possession of cocaine with intent to sell or deliver
and second degree trespass of the Hillcrest Apartments. Although
Rollins testified there were 15-20 people in the area, he
nevertheless saw the defendant throw an object to the ground.
Lieutenant Kevin West, who commanded the undercover operation,
recorded the scene of defendant's arrest with a personal video
camera. A synopsis of the arrest report taken by Rollins and
signed by Lieutenant West did not include the video recording. The
video was admitted into evidence and shown to the jury.
The defendant presented testimony from several witnesses who
were either residents or former residents of the Hillcrest
Apartments. Robena Majias testified that there were many people atthe apartment complex before the police arrived. She also
testified that, while defendant was being held on the ground, the
officers searched for 30 to 45 minutes before they transferred him
to a police van. Natalie Boseman testified that the police
discovered the cocaine in the front porch area near her apartment -
not close to where the defendant was standing. She “tried to tell”
the police that the drugs did not belong to defendant. Monica
Harrison witnessed the arrest and testified that while defendant
was being held on the ground, the officers searched for 15 minutes
and “found something and put it on Mike.” Monica Harrison's son,
Marlon, testified that he was walking around the apartments with a
beer and that when the police arrived, he got down on the ground.
He testified that he and the defendant were on the ground for 10 to
15 minutes.
Defendant was convicted of possession of cocaine with intent
to sell or deliver. Defendant admitted his status as an habitual
felon and also pled guilty to second degree trespass. It is from
the conviction of possession of a controlled substance with intent
to sell or deliver that defendant appeals, contending that the
trial court erred by (1) denying his motion to continue, and (2)
refusing to exercise its discretion before denying the jury's
request to review a transcript of Rollins' testimony.
In his first argument on appeal, defendant contends that the
trial court denied his motion to continue in violation of his right
to due process protected under the Sixth and Fourteenth Amendments
to the United States Constitution and the parallel guaranteescontained in Article I §§ 19 and 23 of the North Carolina
Constitution. We disagree.
In the instant case, the State's videotape recording depicted
the defendant's arrest. The video was first provided to defendant
on 29 November 2004, the original date of the trial. Defendant
made a motion to continue based upon his contention that he
required time to identify potential witnesses depicted on the tape.
In a 1 December 2004 order, the trial judge granted defendant's
motion to continue so that he could have additional time to view
the videotape and otherwise prepare for trial. The trial court
ordered that the parties be ready for trial the week of 6 December
2004. On 6 December 2004, defendant orally moved for another
continuance. He argued that because defense counsel did not have
adequate time to review the videotape to identify and interview
potential witnesses, the defendant would be prejudiced and deprived
of, inter alia, the effective assistance of counsel in violation of
the Sixth and Fourteenth Amendments to the United States
Constitution and the parallel guarantees contained in Article I §§
19 and 23 of the North Carolina Constitution. The trial court
denied defendant's oral motion to continue, reasoning that the
defendant had not been prejudiced because the tape had already been
in the defendant's possession for one week.
Traditionally, the decision to grant or deny a
continuance rests within the discretion of the
trial court. However, that discretion does
not extend to the point of permitting the
denial of a continuance that results in a
violation of a defendant's right to due
process. This Court has long held that when amotion for a continuance is based on a
constitutional right, the issue presented is
an issue of law and the trial court's
conclusions of law are fully reviewable on
appeal.
State v. Tunstall, 334 N.C. 320, 328, 432 S.E.2d 331, 336 (1993)
(citations omitted).
[T]he constitutional guarantees of assistance
of counsel and confrontation of witnesses
include the right of a defendant to have a
reasonable time to investigate and prepare his
case, but no precise limits are fixed in this
context, and what constitutes a reasonable
length of time for defense preparation must be
determined upon the facts of each case.
State v. Searles, 304 N.C. 149, 153-54, 282 S.E.2d 430, 433 (1981).
To establish that the trial court's failure to give additional
time to prepare constituted a constitutional violation, 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). “[A] motion for a continuance should
be supported by an affidavit showing sufficient grounds for the
continuance.” State v. Kuplen, 316 N.C. 387, 403, 343 S.E.2d 793,
802 (1986). “[A] postponement is proper if there is a belief that
material evidence will come to light and such belief is reasonably
grounded on known facts.” State v. Tolley, 290 N.C. 349, 357, 226
S.E.2d 353, 362 (1976) (quoting State v. Gibson, 229 N.C. 497, 502,
50 S.E.2d 520, 524 (1948)).
In State v. Cradle, 281 N.C. 198, 188 S.E.2d 296 (1972), the
accused wished to continue the case so she could attempt to elicitevidence from additional witnesses. The Supreme Court held that
the trial court did not err in denying defendant's motion to
continue because “neither defendant nor her counsel revealed to the
court the name of a single witness defendant allegedly had at her
home which she desired to subpoena. What she [defendant] expected
to prove by these witnesses must be surmised.” Id. at 208, 188
S.E.2d at 303. In making its decision, the Court noted that
“[c]ontinuances should not be granted unless the reasons therefor
are fully established. Hence, a motion for a continuance should be
supported by an affidavit showing sufficient grounds.” Id.
(quoting State v. Stepney, 280 N.C. 306, 312, 185 S.E.2d 844, 848
(1972)); see also Searles, 304 N.C. at 155, 282 S.E.2d at 434
(holding that the trial court did not err by denying defendant's
motion to continue in order to have time to locate a potential
material witness where “defendant's oral motion . . . made on the
date set for trial, was not supported by some form of detailed
proof indicating sufficient grounds for further delay”).
In the instant case, the defendant failed to articulate how
the granting of a second continuance would have helped him better
prepare an adequate defense. Although the defendant had already
been granted one continuance and the videotape had been in his
possession from 29 November 2004 through 6 December 2004, the
defendant did not supply an affidavit or otherwise show sufficient
grounds to support a second continuance. The defendant did not
identify one potential witness on the videotape, or articulate the
necessity of having one or more of the persons depicted on thevideotape testify. Finally, we observe that the defendant
presented a substantial defense, offering the testimony of four
witnesses. These witnesses' testimony presented a differing
version of facts than those proferred by the State, and sought to
negate the inference that defendant threw the package to the
ground. This assignment of error is overruled.
In his second argument on appeal, defendant contends that the
trial court erred when it refused to exercise its discretion before
denying the jury's request for a transcript of Officer Rollins'
testimony. This argument lacks merit.
In the instant case, the trial court responded in the
following manner to the jury's request to review a transcript of
Rollins' testimony:
The Court: Members of the jury, in my
discretion, I'm not going to direct our Court
Reporter to attempt to prepare a typewritten
transcript of that testimony and then have
that prepared and delivered to you.
Certainly, that could be done, but in my
discretion, I'm not going to attempt to have
that done. I am going to instruct you,
though, to rely on your collective
recollections of the officer's testimony and
all of the witnesses' testimony in determining
the facts of the case and apply to those facts
the law.
In addition, the trial court responded as follows in response
to the defendant's objection to the denial of the jury's request to
view the transcript:
The Court: . . . The transcript certainly
could be prepared and I could have our Court
Reporter go in and prepare the written
transcript of that testimony. It is in my
authority to do so. And we could have the
jury then stop what they are doing whilethat's being prepared, and we could hold up
everything while that's being done. . . . In
my discretion . . . I'm not about to start
having transcripts of all witnesses' testimony
prepared. . . . The request is denied. They
have heard the testimony. They have the
ability to rely on their collective
recollection.
The jury's review of the evidence and testimony presented is
controlled by N.C. Gen. Stat. § 15A-1233 (2005) which states, in
pertinent part, that:
(a) If the jury after retiring for
deliberation requests a review of certain
testimony or other evidence, the jurors must
be conducted to the courtroom. The judge in
his discretion, after notice to the prosecutor
and defendant, may direct that requested parts
of the testimony be read to the jury and may
permit the jury to reexamine in open court the
requested materials admitted into evidence.
In his discretion the judge may also have the
jury review other evidence relating to the
same factual issue so as not to give undue
prominence to the evidence requested.
Our Supreme Court has held that a trial court does not commit
reversible error by denying a jury request to review testimony of
a particular witness when “[i]t is clear from [the] record that the
trial court was aware of its authority to exercise its discretion
and allow the jury to review the [expert's] testimony.” State v.
Lee, 335 N.C. 244, 290, 439 S.E.2d 547, 571 (1994). However, this
Court has found reversible error when a trial court's comments
indicate that the court misunderstood its authority to allow a
review of a witness' testimony or failed to exercise discretion in
this regard. For instance, the Supreme Court concluded in State v.
Lang, 301 N.C. 508, 272 S.E.2d 123 (1980), that the trial court'scomment to the jury that “the transcript was not available to them
was an indication that [it] did not exercise [its] discretion to
decide whether the transcript should have been available under the
facts of this case. The denial of the jury's request as a matter
of law was error.” Id. at 511, 272 S.E.2d at 125.
In the instant case, it is clear from the record that while
the trial court was well aware of its authority to provide a
transcript, it decided that the jury would, instead, rely upon its
recollection of the evidence. Hence, the record reflects that the
trial court thoughtfully considered, yet in its discretion denied,
the jury's request for a transcript of Officer Rollins' testimony
pursuant to G.S. § 15A-1233. This assignment of error is
overruled.
No error.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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