STATE OF NORTH CAROLINA
v. Davidson County
No. 04 CRS 58925
THOMAS KENNEDY MCMILLIAN
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Floyd M. Lewis, for the State.
Nancy R. Gaines for defendant-appellant.
BRYANT, Judge.
Thomas Kennedy McMillian (defendant), who was found guilty of
possession of cocaine and having attained habitual felon status,
appeals a judgment entered 5 October 2005. By his sole assignment
of error, defendant contends the trial court erred in denying a
continuance so he could hire counsel after he discharged his court-
appointed attorney. He argues the denial of the continuance
violated his right to counsel.
The record shows that at the call of defendant's case for
trial, defendant stood up and made a motion to discharge his
appointed attorney. When asked to state a basis for the motion,
defendant replied, “[I]f I'm going to jury trial, seems to me I'd
be trying to get some character witnesses or something. Myattorney, I have seen him three times in 14 months.” Defendant's
attorney disputed defendant's assertion but conceded defendant “has
a right to represent himself if he wants to do that.” The court
then asked defendant whether he wanted to represent himself.
Defendant responded, “Seems to me _ I mean, this is my second time
coming in the courtroom. I'd a done dismissed him if I could have
got in the courtroom. I mean, if I got to represent myself, then
I will.” The court offered defendant three choices: (1) to hire a
lawyer ready to try the case at 1:00 p.m. that day; (2) to stay the
course with his current lawyer; or (3) to represent himself.
Defendant asked, “So you ain't giving me no time to get a lawyer”?
The court responded, “No, sir.” Defendant replied, “I'll represent
myself.” The court then commenced to conduct the inquiry required
by N.C. Gen. Stat. § 15A-1242. N.C.G.S. § 15A-1242 (2005). The
court discharged counsel and permitted defendant to represent
himself.
In moving for a continuance a party must provide proof
establishing the reasons for the delay and must show material
prejudice. State v. Cody, 135 N.C. App. 722, 726, 522 S.E.2d 777,
780 (1999). Factors the court should consider in deciding the
motion include (1) whether a miscarriage of justice will result if
the motion is not granted, and (2) whether, considering the
complexity of the case, additional time is needed for adequate
preparation. State v. Rogers, 352 N.C. 119, 124, 529 S.E.2d 671,
674 (2000). Ordinarily a court's ruling upon a motion to continue
is reviewed for abuse of discretion but when the motion is groundedon a constitutional right or issue, the court's ruling is “fully
reviewable by an examination of the particular circumstances of
each case.” State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430,
433 (1981). Whether grounded on a constitutional claim or not, a
new trial is warranted only when the defendant is able to show that
the denial of the continuance was error and that his defense was
prejudiced as a result of the denial of the motion. State v.
Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982).
Assuming, arguendo, defendant's statement “[s]o you ain't
giving me no time to get a lawyer” constituted a motion for a
continuance, we find no error.
The present facts are remarkably
similar to those of State v. Montgomery, 33 N.C. App. 693, 236
S.E.2d 390, disc. rev. denied and appeal dismissed, 293 N.C. 256,
237 S.E.2d 258 (1977), in which counsel retained by the defendant
came fully prepared to represent the defendant at trial. At the
call of the case for trial, however, the defendant moved to
discharge counsel and for a continuance so he could retain new
counsel. The trial court allowed defendant's motion to discharge
counsel but denied his motion for a continuance. The trial court
offered the defendant the option of either proceeding to trial with
present counsel or without counsel. The defendant elected to
proceed without counsel. In finding no error, this Court held that
the defendant waived his right to counsel. We also stated that
“the attempt to change counsel when the case was called for trial,
which would have resulted in the disruption and obstruction of
orderly procedure in the court, must be charged to the defendant.” Id. at 697, 236 S.E.2d at 392.
Here, the record shows that defendant was indicted on 27
September 2004. The prosecutor also stated for the record that
defendant was charged on 25 August 2004, that the first date in
court was 25 October 2004, and that seven court dates were set in
the interim between then and the date trial began, 4 October 2005.
Defendant's counsel also stated to the court that he had been
representing defendant for fourteen months, had reviewed discovery
with defendant, had talked to defendant more than three times, and
had investigated the possible defenses offered by defendant but
“the evidence did not pan out.” Only four witnesses testified for
the State, namely, two law enforcement officers, defendant's
probation officer, and a State Bureau of Investigation chemist.
The State's evidence shows defendant ran from the two law
enforcement officers who were attempting to serve an arrest warrant
issued for him by his probation officer. The officers apprehended
defendant and found a rock of crack cocaine on defendant's person.
The chemist confirmed that the substance was cocaine. Defendant's
sole witness testified that defendant told him that he possessed
the substance. Given this overwhelming evidence of defendant's
guilt, it took the jury less than fourteen minutes of deliberation
to return with a verdict.
The courts “will vigilantly resist any manipulation by parties
or their counsel . . . to 'disrupt or obstruct the orderly progress
of the court,' (citation omitted), under the guise of generalized,
unsupported, or otherwise nonmeritorious motions to continue.” Rogers, 352 N.C. at 126, 529 S.E.2d at 676 (quoting State v.
McFadden, 292 N.C. 609, 615, 234 S.E.2d 742, 747 (1977)).
The
present case falls within this category.
No error.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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