Converted WP file 070160-1

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.

    STEPHENS, Judge.

    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 “charged”Defendant . Defendant acknowledged that he stabbed Mr. Summers in the ensuing fight.

    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.
    Ordinarily,
        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 motion.

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.

    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 else.

        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.

    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 know.

        . . . .

        You & your boy aren't anything more than 2 drunks with jobs. You're headed down a dead end street.
            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 y'know?

        . . . .

            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 here.
    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.
    NO ERROR.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***