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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 June 2007
STATE OF NORTH CAROLINA
No. 04 CRS 227216
CHARLES ORLANDO WILLIAMS
Appeal by defendant from judgment entered 2 December 2005 by
Judge David S. Cayer in Mecklenburg County Superior Court. Heard
in the Court of Appeals 20 February 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Christine M. Ryan, for the State.
Hartsell & Williams, P.A., by Christy E. Wilhelm, for
When a defendant makes a pretrial motion to suppress evidence
and fails to renew his objection at trial, N.C. R. App. P. 10(b)(1)
and State v. Tutt, 171 N.C. App. 518, 615 S.E.2d 688 (2005), are
controlling, and the matter is not preserved for our review. A
defendant's motion to dismiss is properly denied when the State
submits substantial evidence in support of each element of the
offense of robbery with a dangerous weapon. When a defendant fails
to demonstrate that he suffered material prejudice by the denial of
his motion to continue, a new trial is not warranted. Finally,
when a defendant fails to assert his right to a speedy trial, and
the record reveals neither evidence of neglect nor willfulness onthe part of the State, nor that defendant was prejudiced by the
delay, defendant's rights are not violated.
In the early afternoon of 12 June 2004, Jennifer Witzen
(Witzen) drove her burgundy 2004 Chevy Blazer to a CVS store in
Charlotte . Witzen was seventeen years old. Witzen saw Charles
Orlando Williams (defendant) squatting by the front door of CVS
as she entered the building. When she exited CVS, Witzen walked
past defendant toward her Blazer, and defendant started following
her. Witzen turned around, and defendant started walking in a
different direction. Witzen then walked quickly to her Blazer,
opened her driver's side door, and stepped into the vehicle.
Before Witzen was able to close her door, she heard the sound of
flip-flops running toward her. Defendant blocked the door, held a
knife to Witzen's neck, and demanded that Witzen get out of the
vehicle. The pressure of defendant's knife raised welts on
Witzen's neck. Witzen attempted to fight back and close the door,
but defendant pried the door open, demanding again that Witzen get
out of the Blazer and give him the keys. Defendant took the keys
to the Blazer and Witzen's purse. Witzen ran into CVS and called
Later that day, Officer Hopkins (Hopkins) of the Charlotte-
Mecklenburg Police Department arrived at CVS, and he observed
Witzen crying, shaking and visibly distraught. Witzen
described her attacker to Hopkins: I described what he was
wearing, a button-up, short-sleeved shirt, maybe a navy blue or
dark red plaid; gray shorts and flip-flops. He was scruffy,unkempt. He was unshaven. He had a white spot on the front of his
hair. Witzen later recognized pictures of her vehicle when the
police located it after several days.
Lisa Harris Worthy (Worthy), defendant's cousin, testified
that defendant visited her house on 12 and 13 June 2004 in a red
Jeep or sports utility vehicle[,] and that defendant told her
the vehicle belonged to a female friend. Defendant left a knife in
Worthy's house after his second visit. Worthy believed the vehicle
to be the one involved in the recent carjacking and contacted
Crimestoppers, after which Sergeant Hulsey (Hulsey), a detective
for the Charlotte-Mecklenburg Police Department, visited Worthy.
With Worthy's permission, Hulsey took defendant's knife and clothes
from duffel bags defendant left at Worthy's house.
On 15 June 2004, Captain Willis (Willis) of the Charlotte-
Mecklenburg Police Department located Witzen's Blazer. Willis
activated his lights and siren to stop the vehicle. The driver
pulled the Blazer over to the side of the road, and Willis observed
two people in the vehicle. As Willis began to approach the
vehicle, the driver sped off. Willis then quickly returned to his
patrol car and followed the Blazer until it crashed into a fence.
The driver and passenger ran from the scene of the crash. Willis
recognized defendant as the passenger in the Blazer. Soon
thereafter, Willis and other law enforcement officers apprehended
and arrested defendant.
On 15 June 2004, Witzen was informed that her Blazer had been
recovered and met with Hulsey to view a photo lineup. Witzentestified at trial that she was instructed that the person who
robbed me may or may not be in that lineup; that I do not have to
choose anybody. Hulsey testified that:
Prior to showing someone a photo lineup, I
tell them, You are going to see a
photographic lineup containing six
individuals. The person who robbed you . . .
may or may not be pictured in this lineup. I
also tell them to bear in mind that the
photograph may not necessarily have been taken
that day or even close to the day that the
crime was committed.
Witzen looked at the lineup for approximately ten seconds and
pointed to defendant's photo, stating, I think that is him.
On 6 July 2004, defendant was indicted for the crime of
robbery with a dangerous weapon, pursuant to N.C. Gen. Stat. . 14-
On 12 September 2005, defendant filed a motion to suppress the
evidence of his identification in the photographic lineup. The
trial court conducted a hearing on the motion to suppress on 1
November 2005. During the hearing, it became apparent that
defendant's counsel had a conflict of interest, such that counsel
could not continue to represent defendant. New counsel was
appointed. The trial court entered an order on 21 November 2005
denying defendant's motion to suppress.
The case went to trial on 28 November 2005. At the close of
the State's evidence, defendant moved to dismiss. Defendant did
not put on evidence or testify at trial, and the jury found
defendant guilty of robbery with a dangerous weapon. The trial
court determined that defendant was a prior felony record level IVand sentenced him to 117 to 150 months imprisonment in the North
Carolina Department of Correction. From this judgment, defendant
I: Motion to Suppress
In his first argument, defendant contends that the trial court
erred by denying defendant's motion to suppress the identification
of defendant by Witzen. We disagree.
[A] pretrial motion to suppress is a type of motion in
limine. State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198
(2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). Our
Supreme Court has consistently held that '[a] motion in limine is
insufficient to preserve for appeal the question of the
admissibility of evidence if the defendant fails to further object
to that evidence at the time it is offered at trial.' State v.
Tutt, 171 N.C. App. 518, 520, 615 S.E.2d 688, 690 (2005) (quoting
State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per
curiam) (citations omitted)).
In an amendment effective 1 October 2003, the North Carolina
General Assembly amended N.C. Gen. Stat. . 8C-1, Rule 103(a)(2), to
say [o]nce the court makes a definitive ruling on the record
admitting or excluding evidence, either at or before trial, a party
need not renew an objection or offer of proof to preserve a claim
of error for appeal. N.C. Gen. Stat. § 8C-1, Rule 103(a)(2)
(2005); 2003 N.C. Sess. Laws ch. 101, . 1. This rule would have
permitted appellate review of a pretrial ruling even though the
party failed to object at trial, in direct conflict with ourSupreme Court's interpretation of N.C. R. App. P. 10(b)(1). In
Tutt, 171 N.C. App. at 524, 615 S.E.2d at 693-94, this Court held
that this amendment to Rule 103 was unconstitutional, stating, to
the extent that N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) is
inconsistent with N.C. R. App. P. 10(b)(1), it must fail. Id. We
note that the trial of defendant commenced on 28 November 2005,
over four months after the filing of the Tutt decision. Tutt is
thus controlling and binding precedent in this case.
In the instant case, defendant's pretrial motion to suppress
evidence was heard on 1 November 2005, and the motion was denied.
The court concluded as a matter of law that [t]he pretrial
identification procedure was not impermissibly suggestive[,] and
[Witzen's] in-court identification of Defendant . . . was not
based on any impermissibly suggestive procedures or factors. This
matter went to trial on 28 November 2005. At trial, defendant did
not object to the admission of the evidence as to Witzen's
identification of defendant or the photo line-up evidence. The
record shows that Witzen identified defendant, in a photo lineup
and at trial, as the person who robbed her. Witzen testified that
Detective Hulsey told her that the person who robbed me may or may
not be in that lineup; that I do not have to choose anybody. When
asked if Detective Hulsey suggested or hinted in any way that you
should try to pick someone out from the lineup that you were
shown[,] Witzen said, No. Witzen also testified that she
recalled stating, I think that is him[,] when she pickeddefendant out of the lineup, but that even though [she] made that
comment[,] she was sure of her choice.
Defendant did not object to the aforementioned evidence at any
point during the trial. This assignment of error is not preserved
for appellate review under N.C. R. App. P. 10(b)(1) , and is
II: Motion to Dismiss
In his second argument, defendant contends that the trial
court erred by denying defendant's motion to dismiss. We disagree.
Our standard of review on a motion to dismiss based on
insufficiency of the evidence is the substantial evidence test.
The substantial evidence test requires a determination that there
is substantial evidence (1) of each essential element of the
offense charged, and (2) that defendant is the perpetrator of the
offense. State v. Jones, 110 N.C. App. 169, 177, 429 S.E.2d 597,
602 (1993) (citing State v. Mercer, 317 N.C. 87, 96, 343 S.E.2d
885, 890 (1986)). Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811,
814 (1990). If there is substantial evidence of each element of
the charged offense, the motion should be denied. State v.
Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 387 (1984).
Upon a motion to dismiss, 'the trial court must consider the
evidence in the light most favorable to the State and the State is
entitled to every reasonable inference to be drawn from that
evidence.' State v. Lane, 328 N.C. 598, 606, 403 S.E.2d 267, 272,cert. denied, 502 U.S. 915, 116 L. Ed. 2d 261 (1991) (quoting State
v. Saunders, 317 N.C. 308, 312, 345 S.E.2d 212, 215 (1986)).
If the trial court determines that a reasonable inference of
the defendant's guilt may be drawn from the evidence, it must deny
the defendant's motion and send the case to the jury even though
the evidence may also support reasonable inferences of the
defendant's innocence. State v. Smith, 40 N.C. App. 72, 79, 252
S.E.2d 535, 540 (1979) (emphasis in original).
The elements of robbery with a dangerous weapon under N.C.
Gen. Stat. § 14-87 are as follows: (1) the unlawful taking or an
attempt to take personal property from the person or in the
presence of another (2) by use or threatened use of a firearm or
other dangerous weapon (3) whereby the life of a person is
endangered or threatened. State v. Faison, 330 N.C. 347, 358, 411
S.E.2d 143, 149 (1991) (citation omitted); N.C. Gen. Stat. . 14-87.
In the instant case, the State submitted substantial evidence
in support of each element of the offense of robbery with a
dangerous weapon. On Saturday, 12 June 2004, Witzen heard
[defendant's] flip-flops running up to me[,] as she stepped into
her vehicle. Witzen tried to close the door, but [defendant] had
a knife to my neck. Defendant reached his arm in to block me
from closing the door[,] [and] [h]e told me to get out of the car.
Witzen then tried to close the door on his arm, but he pried it
open. Then, [defendant] took the keys, and he grabbed my purse,
and I ran into the store. When asked if Witzen recalled whether
any pressure was placed on [her] neck when the defendant held theknife there, Witzen responded, Yes[,] I had welts afterward. The
welts were visible immediately[,] and the State introduced as
evidence digital photos of the welts on Witzen's neck.
Defendant visited Worthy's home on Saturday, 12 June 2004, and
Sunday, 13 June 2004. Defendant had a knife with him when he
visited her on Sunday, and he drove a sports utility vehicle to
On 15 June 2004, Captain Willis apprehended defendant as a
passenger in Witzen's vehicle. Defendant gave inconsistent
explanations as to how and where he obtained the vehicle. Willis
caught up with defendant [a]fter the vehicle crashed into the
fence . . . [and] the driver and passenger jump[ed] and [ran] from
the vehicle[.] Willis identified the passenger of the vehicle as
We conclude that the State presented substantial evidence of
each element of the crime of robbery with a dangerous weapon,
requiring that the question of defendant's guilt be submitted to a
jury. This argument is without merit.
III: Motion to Continue
In his third argument, defendant contends that the trial court
erred by denying defendant's motion to continue, resulting in a
violation of defendant's constitutional right to counsel. We
A motion for a continuance is ordinarily addressed to the
sound discretion of the trial court[,] [and] the ruling is not
reversible on appeal absent an abuse of discretion. State v.Covington, 317 N.C. 127, 129, 343 S.E.2d 524, 526 (1986) (quoting
State v. Smith, 310 N.C. 108, 111, 310 S.E.2d 320, 323 (1984)).
However, if 'a motion to continue is based on a constitutional
right, then the motion presents a question of law which is fully
reviewable on appeal.' Id. (quoting Smith, 310 N.C. at 112, 310
S.E. 2d at 323).
To win a new trial, defendant must show not only that the
denial of the motion to continue was erroneous, but he must
demonstrate that he suffered prejudice as a result of the denial.
State v. Attmore, 92 N.C. App. 385, 390, 374 S.E.2d 649, 653
(1988). An accused must have a reasonable time to investigate,
prepare, and present his defense. State v. Tunstall, 334 N.C. 320,
328, 432 S.E.2d 331, 336 (1993). [T]he constitutional requirement
of a 'reasonable time' to prepare mandates 'no set length of time
for investigation, preparation and presentation[.]' Id. at 329,
432 S.E.2d at 337 (1993) (quoting State v. Harris, 290 N.C. 681,
687, 228 S.E.2d 437, 440 (1976)); see also State v. Horner, 310
N.C. 274, 277-78, 311 S.E.2d 281, 284 (1984). Rather, [t]he facts
of each case are pertinent. State v. Morgan, 359 N.C. 131, 144,
604 S.E.2d 886, 894 (2004). [A] defendant must show that he did
not have ample time to confer with counsel and to investigate,
prepare and present his defense. Tunstall, 334 N.C. at 329, 432
S.E.2d at 337 (quoting Harris, 290 N.C. at 687, 228 S.E.2d at 440).
To demonstrate that the time allowed was inadequate, defendant must
show how his case would have been better prepared had the
continuance been granted or that he was materially prejudiced bythe denial of his motion. Covington, 317 N.C. at 130, 343 S.E.2d
at 526. [A] motion for a continuance should be supported by an
affidavit showing sufficient grounds for the continuance. State
v. Beck, 346 N.C. 750, 756, 487 S.E.2d 751, 755 (1997) (quoting
State v. Kuplen, 316 N.C. 387, 403, 343 S.E.2d 793, 802 (1986));
see also State v. McCullers, 341 N.C. 19, 33, 460 S.E.2d 163, 171
If the defendant shows that the time allowed his counsel to
prepare for trial was constitutionally inadequate, he is entitled
to a new trial unless the State shows that the error was harmless
beyond a reasonable doubt. Tunstall, 334 N.C. at 329, 432 S.E.2d
at 337 (citing State v. Gardner, 322 N.C. 591, 594, 369 S.E.2d 593,
In the instant case, defendant was originally appointed trial
counsel on 22 June 2004. Defendant filed his first motion to
continue and supporting affidavit on 19 September 2005. The record
does not reflect whether this motion was granted. During counsel's
representation of defendant, counsel requested discovery and filed
a motion in limine and a motion to suppress evidence. On 1
November 2005, counsel argued defendant's motion to suppress before
the trial court, during which time a conflict of interest between
defendant and counsel became apparent. Pursuant to the Revised
Rules of Professional Conduct, 1.7 and 1.10, counsel could not
continue to represent defendant, and defendant refused to waive his
objection to the conflict. New counsel was appointed on 3 November 2005, and defendant
filed his second motion to continue on 14 November 2005. Defendant
generally stated in his motion that counsel cannot be adequately
prepared to defend him in the trial of this case with such a brief
time to prepare [for] trial, and that substantial additional
investigation remains undone[.] However, defendant did not file
a supporting affidavit with his motion to continue to show that he
did not have ample time to confer with counsel and to investigate,
prepare and present his defense. Tunstall, 334 N.C. at 329, 432
S.E.2d at 337. The trial court denied his motion on 14 November
2005; however, the record does not reflect the reason for denial.
The denial of this motion is the basis of defendant's assignment of
error on appeal.
Trial was scheduled and held on 28 and 29 November 2005. At
trial, the following conversation transpired between the trial
court and the appointed counsel for defendant:
The Court: Mr. Everhart had filed a motion to
Mr. Everhart: That was ruled on. Judge
Johnston ruled on that in Courtroom 2201 on
November 14th. Ruling that if the court
reporter could provide a transcript of a
hearing held on November 1 before Judge Bell,
that the case would go forward. If the court
reporter was unable to do so, then it would
not. The court reporter has done so.
In his appellate brief to this Court, defendant generally
argues that three weeks was not adequate time for the new defense
counsel to adequately prepare for the two-day trial in this
matter[,] without showing specifically how his case would havebeen 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. The most precise argument
defendant makes is that the trial court's denial of his motion to
continue may have caused [counsel] to fail to renew certain
objections to evidence presented or otherwise hindered his ability
to gain knowledge of existing or potential evidentiary issues[.]
However, counsel's failure to renew an objection to the trial
court's denial of defendant's motion to suppress evidence was a
matter of procedure, not of preparation. Furthermore, defendant
does not say what existing or potential evidentiary issues could
possibly have necessitated a continuance. After voluntary
discovery on 30 July 2004, defendant's formal discovery request on
28 February 2005, and further discovery on 15 September 2005, we
find defendant's general argument, that there were further
potential evidentiary issues, unconvincing.
In certain circumstances, three weeks may not be adequate time
to prepare for trial; however, the reasonable time requirement
mandates no set length of time for investigation, preparation and
presentation[,] Tunstall, 334 N.C. at 329, 432 S.E.2d at 337, and
the issues presented in this case were not complicated. We
conclude that in this case, the defendant has not shown 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. This argument is without merit.
IV: Right to Speedy Trial
In his fourth argument, defendant contends that the trial
court erred by violating defendant's constitutional right to a
speedy trial. We disagree.
The United States Supreme Court has identified four factors
which courts should assess in determining whether a particular
defendant has been deprived of his right to a speedy trial under
the federal constitution. Barker v. Wingo
, 407 U.S. 514, 530, 33
L. Ed. 2d 101, 117 (1972). These factors are: '(1) the length of
the delay, (2) the reason for the delay, (3) the defendant's
assertion of [the] right to a speedy trial, and (4) prejudice
resulting from the delay.' State v. Webster
, 337 N.C. 674, 678,
447 S.E.2d 349, 351 (1994) (quoting State v. Willis
, 332 N.C. 151,
164, 420 S.E.2d 158, 163 (1992)). We follow the same analysis in
reviewing speedy trial claims under Article I, Section 18 of the
North Carolina Constitution. See Id.
at 678, 447 S.E.2d at 351.
[F]ailure to demand a speedy trial does not constitute a
waiver of that right, [but] it is a factor to be considered. Id.
at 680, 447 S.E.2d at 352. The defendant's assertion of the right
to a speedy trial is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the right.
, 407 U.S. at 531-32, 33 L. Ed. 2d at 117-18).
[F]ailure to assert the right will make it difficult for a
defendant to prove that he was denied a speedy trial. Id.
(quotation omitted). In the instant case, defendant was incarcerated for over nine
months before his trial. Defendant failed to assert his right to
a speedy trial before the trial court. Due to defendant's failure
to raise this issue before the trial court, we are unable to
discern the reasons for the time period that elapsed between
defendant's indictment and trial. A review of the record on appeal
reveals no evidence of neglect or willfulness on the part of the
State, nor that defendant was prejudiced by the delay. This
assignment of error is without merit.
For the foregoing reasons, we find
Judges WYNN and JACKSON concur.
Report per Rule 30(e).
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