Appeal by defendant from judgments entered 2 May 2006 and 3
May 2006 by Judge James L. Baker, Jr., in Madison County Superior
Court. Heard in the Court of Appeals 23 May 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Derrick C. Mertz, for the State.
Michael E. Casterline for defendant-appellant.
HUNTER, Judge.
Steven Wayne Ballard (“defendant”) was convicted of felony
trafficking in opium, felony possession of Methamphetamine, and
misdemeanor possession of Alprazolam (“Xanax”). Defendant appeals
this conviction. After careful consideration, we find no error.
On 16 June 2005, the Madison County Sheriff's Department
received a report of a suspicious vehicle operating on Big Pine
Road in the Big Pine residential area. The vehicle, a gold Jeep
Cherokee, was reportedly driving up and down the road. Detective
Neil, Deputy Tweed, and Captain Harwood responded to the call. The
officers observed a vehicle matching the description given by the
caller pulled off to the side of the road but partially out in theroadway. They also observed two white males near a stream on the
side of the roadway and made contact with the individuals.
Defendant was fishing and Robert Pendley (“Pendley”) was
watching nearby. Captain Harwood asked whether either individual
had a fishing license. Pendley said that he did not but that he
was only watching. Defendant stated that he did and provided the
fishing license to Captain Harwood. Defendant also produced a
North Carolina ID card, but was unable, after looking through his
vehicle, to produce a North Carolina driver's license.
Defendant stated that he had been driving the vehicle and that
it was his. Both men were asked to step near the roadway, and a
pat-down search of defendant was conducted. After a few
preliminary questions, Captain Harwood asked defendant for consent
to search the vehicle. At trial, the State put on evidence that
tended to show defendant consented to the vehicle search.
Captain Haywood and Deputy Tweed stayed with defendant and
Pendley while Detective Neil began to search the vehicle.
According to Detective Neil, the following items were found in
defendant's car: (1) a set of digital scales; (2) an unlabeled
pill bottle which contained approximately one hundred and fifty
(150) white pills, later determined to be Methadone; (3) a
cigarette box with twenty (20) more Methadone pills; (4) a small
plastic box with seven and a half (7 1/2) tablets of Xanax; and (5)
three plastic bags with Methamphetamine ice crystals. Defendant
was arrested after the search but Pendley was not. After the carwas impounded, two glass pipes were found that tested positive for
Methamphetamine residue.
The collected items were sent to the State Bureau of
Investigation (“SBI”) for identification and weight. At the
laboratory, the weight of the collective 170 white pills was
thirty-four point three (34.3) grams. One of the white pills was
tested and was positively identified as Methadone Hydrochloride.
Methadone Hydrochloride is a Schedule II controlled substance and
is a synthetic compound similar to Morphine with the same
properties and addiction sustaining liability.
Of the original indictments against defendant, one was for
trafficking in opium while possessing an amount of four (4) grams
or greater but less than fourteen (14) grams of opium or an opiate.
See N.C. Gen. Stat. § 90-95(h)(4)(a). The day before the scheduled
court date, the State issued a superseding indictment against
defendant based on an SBI lab report that elevated his trafficking
charge to an amount of twenty-eight (28) grams or more. See N.C.
Gen. Stat. § 90-95(h)(4)(c) (2005).
Defendant presents the following issues for review: (1) Did
the trial court err in denying defendant's motion for a
continuance; and (2) did the trial court commit plain error or
structural error when it tendered a verdict sheet containing the
term “Methadone.”
I.
Defendant first argues that the trial court erred in denying
his motion for a continuance. We disagree. Defendant alleges that the trial court's failure to grant his
motion for a continuance raises a constitutional issue, in that he
was denied the right to effective assistance of counsel.
Specifically, he argues that his trial counsel was unable to
adequately prepare a defense after the State issued a new
indictment one day before trial.
It is well established that a motion to continue, even when
timely filed, “is ordinarily left to the sound discretion of the
trial judge whose ruling thereon is not subject to review absent an
abuse of such discretion.”
State v. Pickard, 107 N.C. App. 94,
100, 418 S.E.2d 690, 693 (1992). It is also true, however, “that
when a motion for a continuance raises a constitutional issue, the
trial court's action upon it involves a question of law which is
fully reviewable by an examination of the particular circumstances
of each case.”
Id. Even when a motion to continue “raises a
constitutional question, its denial is grounds for a new trial only
upon a showing by the defendant that the denial was erroneous and
also that his case was prejudiced as a result of the error.”
Id.
Accordingly, we must first determine whether the trial court
committed error in denying defendant's motion to continue.
In the instant case, the State issued an indictment against
defendant that included a charge of trafficking in opium, which
makes illegal possession of an amount of four (4) grams or greater
but less than fourteen (14) grams of opium or an opiate.
See N.C.
Gen. Stat. § 90-95(h)(4)(a). The indictment issued the day before
the scheduled court date raised this charge to an amount of twenty-eight (28) grams or more.
See N.C. Gen. Stat. § 90-95(h)(4)(c).
The net effect of the new indictment was that the punishment level
would rise from a Level 1 to a Level 3. In other words, with the
new charge, defendant faced a potential sentence of 225-279 months
rather than one of seventy to eighty-four months.
At a pre-trial hearing on the day the superseding indictment
was returned, defendant's attorney stated that he was aware of the
indictment and was prepared to try the case the following day. On
the day of the trial, however, defendant's attorney sought a
continuance on the grounds that the increase in penalty had not yet
fully registered with his client. The trial court denied the
motion because the new charges were based on the same set of facts
as the original charge.
Constitutional guarantees of due process and assistance of
counsel include the right of a defendant to have a reasonable time
to investigate and prepare his case.
State v. Branch, 306 N.C.
101, 104, 291 S.E.2d 653, 656 (1982). “No precise time limits are
fixed, however, and what constitutes a reasonable length of time
for the preparation of a defense must be determined upon the facts
of each case.”
Id. at 104-05, 291 S.E.2d at 656.
Here, defendant and his counsel had notice for nearly a year
that defendant was charged with trafficking in opiates. The
discussion before the court indicated, and defense counsel agreed,
that the superseding indictment did not change the facts and nature
of the case. Additionally, defendant was aware of the possibility
of a superseding indictment approximately five days before trialand had met with his counsel to discuss its implications.
Accordingly, we hold that defendant had a reasonable time in which
to prepare for his case and that the trial court did not err in
denying defendant's motion to continue.
See State v. Bunch, 106
N.C. App. 128, 132, 415 S.E.2d 375, 377-78,
disc. review denied,
332 N.C. 149, 419 S.E.2d 575 (1992) (finding no abuse of discretion
in denying motion to continue where counsel had approximately
fifty-five (55) days to prepare for trial). Indeed, the transcript
indicates that the sole reason for seeking a continuance was that
the severity of the potential punishment had just sunk in with
defendant the night before the trial. Our Supreme Court has
already rejected the argument that “a natural reluctance to go to
trial” in any way impairs defendant's rights to effective
assistance of counsel or confrontation.
State v. Cradle, 281 N.C.
198, 208, 188 S.E.2d 296, 303,
cert. denied, 409 U.S. 1047, 34 L.
Ed. 2d 499 (1972).
Furthermore, even assuming trial court error, we find that
defendant was not prejudiced by the lack of a continuance.
Defendant does not allege that his counsel was defective at trial
or failed to adequately assist him. As to counsel's desire to
speak to another attorney before trial, the record indicates that
he was aware of the possibility of a superseding indictment and had
ample time in which to speak to another attorney. Indeed, if that
was a primary concern, defense counsel had an opportunity to inform
the trial court of this at the preliminary hearing but instead
stated that he was prepared to go ahead to trial. Finally, therecord clearly establishes defendant's possession of the alleged
amount of opiates, and defendant's guilt was found from that
evidence. Thus, we reject defendant's assignments of error as to
this issue.
II.
Defendant's final argument is that the variance between the
verdict sheet and the indictment by the inclusion of the word
“Methadone” constitutes plain error. We disagree.
Plain error analysis is the appropriate standard of review
when an error is not preserved by objection at trial. N.C.R. App.
P. 10(c)(4). Here, defendant did not object to the verdict sheet
or jury instructions. “Normally, where the defendant appeals based
on the content of the verdict sheet but failed to object when the
verdict sheet was submitted to the jury, any error will not be
considered prejudicial unless the error is fundamental.”
State v.
Wiggins, 161 N.C. App. 583, 592, 589 S.E.2d 402, 409 (2003). An
error is “plain error” if it
“can be said the claimed error is a
'
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done,' or 'where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,'
or the error '“has resulted in a miscarriage
of justice or in the denial to appellant of a
fair trial”' or where the error is such as to
'seriously affect the fairness, integrity or
public reputation of judicial proceedings' or
where it can be fairly said 'the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.'”
State v. Moore, 311 N.C. 442, 445, 319 S.E.2d 150, 152 (1984)
(citations omitted). Before assessing whether there was plainerror, we must determine whether there was error at all.
State v.
Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468,
cert. denied, 479
U.S. 836, 93 L. Ed. 2d 77 (1986).
Our statutes “do not specify what constitutes a proper verdict
sheet, [and] they contain 'no requirement that a written verdict
contain each element of the offense to which it refers.'”
State v.
Floyd, 148 N.C. App. 290, 295, 558 S.E.2d 237, 240 (2002) (quoting
State v. Sanderson, 62 N.C. App. 520, 524, 302 S.E.2d 899, 902
(1983)). Verdict forms need not “match the specificity expected of
the indictment.”
Floyd, 148 N.C. App. at 295, 558 S.E.2d at 241.
This Court has “held that a verdict sheet is sufficient 'if the
verdict can be properly understood by reference to the indictment,
evidence and jury instructions.'”
Id. at 296, 558 S.E.2d at 241
(quoting
State v. Connard, 81 N.C. App. 327, 336, 344 S.E.2d 568,
574 (1986).
In the instant case, the State requested that the jury be
given the statutory definition of an opiate. The trial court
granted the State's request over defense counsel's objection. The
jury was informed that: “An opiate means any substance having an
addiction forming or an addiction sustaining liability
similar to
morphine or being capable of conversion into a drug having
addiction forming or addiction sustaining liability.” (Emphasis
added.)
See N.C. Gen. Stat. § 90-87(18) (2005). Defense counsel
did not object to the verdict form given to the jury identifying
Methadone as an opiate. The following language was submitted to
the jury: WE THE JURORS FIND AS OUR UNANIMOUS VERDICT,
THE DEFENDANT STEVEN WAYNE BALLARD:
___ Guilty of Trafficking in Opium or an
Opiate (Methadone), by Possession, twenty-
eight (28) grams or more;
or
___ Not Guilty.
The evidence at trial tended to show that
Methadone is a
compound similar to Morphine in that it has addictive properties.
The indictment alleged that defendant “possess twenty-eight (28)
grams or more of opium or opiate, or salt, compound, derivative, or
preparation of opium or opiate, or mixture containing such
substance.” The statutory definition of “opiate” includes those
substances “similar to morphine.” N.C. Gen. Stat. § 90-87(18).
Accordingly, the verdict sheet and indictment are consistent with
this State's statutory definition of opiate as a compound similar
to Morphine. In light of the extensive evidence of defendant's
guilt and the trial court's proper instructions to the jury, we do
not believe the circumstances here amounted to error, much less
plain error.
III.
Because we find no error in either the trial court's denial of
defendant's motion to continue or in the verdict sheet, we reject
defendant's assignments of error.
No error.
Judges ELMORE and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***