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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 4 December 2007
STATE OF NORTH CAROLINA
Nos. 06 CRS 2452
DEREK STOVALL 06 CRS 50678
Appeal by Defendant from judgment entered 9 June 2006 by Judge
Richard D. Boner in Iredell County Superior Court. Heard in the
Court of Appeals 12 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Harriet F. Worley, for the State.
Leslie C. Rawls for Defendant.
On 9 June 2006, a jury found Defendant Derek Stovall guilty of
one count of assault with a deadly weapon inflicting serious
injury . Defendant subsequently pled guilty to attaining the status
of an habitual felon . The charges were consolidated for sentencing
and, pursuant to the plea agreement, Defendant was sentenced in the
mitigated range to 96 to 125 months in prison. On appeal,
Defendant argues the trial court (1) abused its discretion in
denying his motion to continue the case, (2) committed plain error
in allowing the State to introduce evidence that Defendant invoked
his right to remain silent while in police custody, and (3) abused
its discretion in admitting into evidence a letter written by
Defendant while he was awaiting trial. We discern no error. The State's evidence at trial tended to show that Defendant
had been involved in an off and on romantic relationship with
Magdalene Lovell since 1999 . Defendant and Ms. Lovell lived
together for four years, but Ms. Lovell broke off the relationship
in December 2005 . On 21 January 2006, Ms. Lovell was entertaining
guests at her house when she received a call from Defendant who
told her he was coming by. Ms. Lovell told Defendant he could
not come by, she was seeing someone else, and to stay away.
After Ms. Lovell hung up on Defendant, he called again and asked
Ms. Lovell who she was seeing. She told Defendant that she was
seeing Danny Summers, a man with whom Defendant was acquainted .
Defendant called Mr. Summers on his cell phone, and Mr. Summers
hung up on Defendant. Despite Ms. Lovell's instruction to stay
away, Defendant arrived at her house later that night and asked to
speak to Mr. Summers . Mr. Summers went outside [t]o see what
[Defendant] wanted. Defendant stabbed Mr. Summers four times,
once in his abdomen, once in his side, and twice on his arm .
Officers Jason Campbell and Chan Austin of the Statesville Police
Department responded to the scene and arrested Defendant.
Defendant testified on his own behalf. According to
Defendant, he was standing in Ms. Lovell's driveway using his cell
phone when Mr. Summers came out of the house in an aggressive
manner. Another man, Mr. Gaither, came out of Ms. Lovell's house
right on [Mr. Summers'] heels. Defendant testified that Mr.
Gaither pulled out a knife and that Mr. Summers chargedDefendant . Defendant acknowledged that he stabbed Mr. Summers in
the ensuing fight.
MOTION TO CONTINUE
Defendant contends the trial court abused its discretion in
denying his motion to continue the trial because he needed more
time to confer with defense counsel. We disagree.
a motion to continue is addressed to the
discretion of the trial court, and absent a
gross abuse of that discretion, the trial
court's ruling is not subject to review. When
a motion to continue raises a constitutional
issue, the trial court's ruling is fully
reviewable upon appeal. Even if the motion
raises a constitutional issue, a denial of a
motion to continue is grounds for a new trial
only when defendant shows both that the denial
was erroneous and that he suffered prejudice
as a result of the error.
State v. Taylor, 354 N.C. 28, 33-34, 550 S.E.2d 141, 146 (2001)
(internal citations omitted), cert. denied, 535 U.S. 934, 152 L.
Ed. 2d 221 (2002). To establish that the denial of a motion to
continue was prejudicial,
a defendant must show that he did not have
ample time to confer with counsel and to
investigate, prepare and present his defense.
To demonstrate that the time allowed was
inadequate, the 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
State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331, 337 (1993)
(internal citations and quotation marks omitted). [A] motion for
a continuance should be supported by an affidavit showingsufficient grounds for the continuance. State v. Kuplen, 316 N.C.
387, 403, 343 S.E.2d 793, 802 (1986) (citations omitted).
In the case sub judice, defense counsel made the motion to
continue at Defendant's request and stated, I think [Defendant]
wanted a continuance so he could have additional time to discuss
the matter with me[.] Defense counsel then tendered Defendant to
the trial court to explain his reasons for seeking a continuance .
In explaining his reasons, Defendant only stated he needed time to
call a character witness to appear on his behalf. The trial court
then arranged to have the character witness appear at trial.
Defendant did not ask the trial court for a continuance in order to
have more time to discuss the case with his attorney. In fact,
after the trial court informed Defendant that it would arrange to
have the character witness subpoenaed, Defendant stated, But
that's what I wanted, your Honor. That's why I'm asking for a
continuance. Moreover, we disagree with Defendant's assertion in
his brief that trial counsel stated he needed additional time to
discuss the matter [with Defendant]. In fact, defense counsel
told the trial court, we've had time, of course, to prepare and
time to discuss the matter. In sum, Defendant has shown neither
that he did not have ample time to investigate, prepare, and
present his defense nor how his case would have been better
prepared had the continuance been granted. The trial court did not
abuse its discretion in denying the motion to continue, and
Defendant's argument is overruled.
RIGHT TO REMAIN SILENT
Defendant next argues that the trial court committed plain
error when it permitted the State to introduce evidence that, after
the stabbing, Defendant invoked his constitutionally protected
right to remain silent. We disagree.
A defendant's exercise of his constitutionally protected
right to remain silent may not be used against him by the State at
trial. State v. Ladd, 308 N.C. 272, 302 S.E.2d 164 (1983).
However, even where a defendant objects to the admission of such
evidence at trial, he is not entitled to a new trial if the State
shows that the error was harmless beyond a reasonable doubt. State
v. Bishop, 346 N.C. 365, 488 S.E.2d 769 (1997); N.C. Gen. Stat. §
15A-1443(b) (2005). Where a defendant does not object to the
introduction of evidence at trial, this Court may only review the
introduction of the evidence for plain error. Bishop, supra; N.C.
R. App. P. 10(c)(4). Under the plain error standard, the burden is
upon the defendant to show (i) that a different result probably
would have been reached but for the error or (ii) that the error
was so fundamental as to result in a miscarriage of justice or
denial of a fair trial. Bishop, 346 N.C. at 385, 488 S.E.2d at
779 (citations omitted).
Defendant argues he is entitled to a new trial because of the
State's repeated mention of Defendant's invocation of his right
to remain silent. Testifying for the State on direct examination,
Officer Campbell testified as follows:
Q. What did you do next?
A. My field training officer, Officer Austin,
told me to stay with [Defendant] at the patrolunit to get some of his information. And I
got his first name, address; and he said he
didn't want to say anything else.
Q. Told you his name [and] address and that
he didn't want to say anything else?
A. He said I don't want to say nothing.
Q. I didn't hear the last.
A. He said I didn't want to say anything
Q. Okay. . . .
Officer Campbell then read from a statement he prepared after the
arrest: Reading [Defendant] his rights he stated that he did not
want to make any statements regarding the incident. Similarly,
Officer Austin read from a statement he prepared after arresting
Defendant: While reading [Defendant's] rights, he stated that he
did not want to make any statements regarding the incident.
Because he did not object to any of this evidence at trial, this
Court reviews for plain error.
Assuming arguendo the trial court erred in admitting this
evidence, we conclude Defendant has failed to show plain error.
The evidence against Defendant was substantial and included, inter
alia, two eyewitnesses who testified they saw Defendant stab Mr.
Summers . Moreover, on cross-examination, Defendant's trial counsel
asked both Officer Campbell and Officer Austin if Defendant had
exercised his right to remain silent . Furthermore, Defendant
testified on direct examination in his defense that he had invoked
his right to remain silent while in police custody. Accordingly,
we cannot conclude that a different result probably would have beenreached at trial but for the admission of the complained-of
evidence. Nor can we conclude that the error was so fundamental as
to result in a miscarriage of justice or the denial of a fair
trial. Defendant's argument is overruled.
INTRODUCTION OF LETTER
Finally, Defendant argues the trial court erred in admitting
a letter Defendant wrote to Ms. Lovell while he was incarcerated
awaiting trial. Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. N.C. Gen. Stat. § 8C-1, Rule
403 (2005). The decision whether to exclude evidence under Rule
403 is a matter within the sound discretion of the trial judge.
State v. Mason
, 315 N.C. 724, 340 S.E.2d 430 (1986). A trial
court may be reversed for an abuse of discretion only upon a
showing that its ruling was so arbitrary that it could not have
been the result of a reasoned decision. State v. Wilson
, 313 N.C.
516, 538, 330 S.E.2d 450, 465 (1985).
In the letter, Defendant wrote:
I've always loved you so very deeply you
. . . .
You & your boy aren't anything more than 2
drunks with jobs. You're headed down a dead
Of course you do know I'll be looking in
just to keep things interesting. Me and your
boy didn't finish our talk! (smile). Tell
him I did however enjoy what conversation wehad _ especially the part when his eyes almost
popped out of his head. His expression of
disbelief was uncanny. He's not a warrior
. . . .
Course you aren't about to get too
attached to anybody are you? Especially after
you almost got him killed.
. . . .
As a matter of fact _ I'm very much at peace
right now. I'll tell you though. I'm far
from praying for my enemies. I hope you
[both] go straight ways to hell . . . I don't
wish you any good fortune and I do hope you
both would get killed in a terrible wreck.
. . . .
I'm not jealous anymore. You've cured me
of that. . . . I'll bet you a million dollars
you barely even went to the hospital to see
about your boy? Too afraid you'd run into
somebody who'd know that all of this is your
fault. You do know that's exactly what
everyone is saying, don't you. You caused him
to get f---ed up!!
It'll be a little rough on you for a time
y'know. Everytime he pulls his shirt off
you'll be reminded. Damn! That's hard!
. . . .
He'll eventually regret even f---ing with you
if he ever even does heal. There'll be
irregularity, scar tissue damage, exterior
scars, and emotional factors. He'll see me
for the rest of his days!
. . . .
Me . . ., I'm fine! (smile). My face is
straight!! I've done what most chicken sh-t
cowards you know only wish they had the heart
to do. My name is now written in the Book
just a little bit Bolder than it already was.
Muthaf---as gonna always see you as being my
woman _ no matter what else you do around
We conclude that this letter is relevant to the crime charged
and is probative of Defendant's motive and intent at the time of
the incident. The fact that the letter was written after the crime
was committed does not impact our conclusion. Furthermore, the
letter's probative value is not substantially outweighed by the
dangers of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence. The trial court did
not abuse its discretion in admitting the letter, and Defendant's
argument is overruled.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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