Defendant appeals from judgment entered on or about 8 November
2006 by Judge J. Gentry Caudill in Superior Court, Lincoln County
convicting defendant of felony possession of cocaine after a jury
trial. Defendant appeals and presents three questions before this
Court: (1) Whether the trial court abused its discretion in
denying defendant's motions to continue and appoint substitute
counsel; (2) whether the trial court erred in partially denying
defendant's motion to suppress in violation of the U.S.
Constitution; and (3) whether the trial court erred by failing to
dismiss the charges against defendant because the evidence wasinsufficient as a matter of law. For the following reasons, we
find no error.
The State presented evidence tending to show the following:
On 6 November 2005 patrol officer Todd Spitzer (Deputy Spitzer)
and deputy/field training officer Terrence Smith (Deputy Smith)
with the Lincoln County Sheriff's Office (Sheriff's Office) were
on routine patrol on McIntosh Road at approximately 3:30 a.m. The
Sheriff's Office had an agreement with a property owner that the
deputies could act as agents for the owner. The agreement meant
that deputies could patrol the property, detain and question
individuals who were on the property, and possibly even charge the
individuals with trespassing.
When the deputies approached McIntosh Road they saw a male and
female in a white pickup truck and defendant beside the truck in
the area where the deputies were authorized to act as agents.
Defendant was beside the truck on the passenger side as the
deputies approached the truck from the front and parked to prevent
the individuals from leaving. Deputy Spizter got out of the patrol
car and stood behind the truck. Deputy Smith stood in front of the
truck and asked defendant to come speak with him. Defendant paced
back and forth acting very erratic and flailed his hands in the
air several times. The deputies saw a shiny object fly from the
defendant's hands and land in the grass approximately thirty feet
away. Deputy Spitzer handcuffed and detained defendant for officer
safety. Deputy Smith picked up the object which defendant had thrown
into the grass. He had not lost sight of the object since it had
left defendant's hands. The object was a silver vial with a screw
top lid. Deputy Smith asked defendant if the vial he recovered was
defendant's. The deputies then searched the truck and questioned
the two individuals in the truck. The individuals in the truck
claimed to be in the area to buy dogs. The deputies allowed the
individuals in the truck to leave the scene.
Deputy Smith then opened the vial and found cocaine inside.
Approximately ten feet from where defendant was standing when they
arrived at the scene, the deputies also found a crack pipe.
Defendant was taken into custody and placed in the patrol car where
he claimed he had an addiction and needed help. Defendant was
taken to the Sheriff's Office for processing.
On 5 December 2005 defendant was indicted for felony
possession of cocaine and possessing drug paraphernalia. Trial was
scheduled on 6 November 2006. Before the trial began defendant,
through his attorney, requested that the court continue his case,
and pro se
requested that the court appoint him substitute counsel
as he did not feel his attorney was prepared. After speaking with
defendant's attorney the trial court continued the case for one
day, giving defendant and his attorney time to prepare, but did not
appoint substitute counsel. Defendant's attorney indicated to the
court that one day would be enough time to speak further with
defendant. On 7 November 2006, the day of the continued trial, defendant
made a motion to suppress which was granted in part and denied in
part. The denial resulted in the admission of evidence of
defendant's statement in the patrol car regarding his addiction and
needing help. Defendant was convicted by a jury of felony
possession of cocaine. On 8 November 2006 defendant was sentenced.
Defendant assigns error to: (1) the trial court's denial of
his motions to continue and appoint substitute counsel, (2) the
trial court's partial denial of his motion to suppress, and (3) the
trial court's failure to dismiss the charges. For the following
reasons, we find no error.
II. Defendant's Pretrial Motions
A. Motion to Continue
Defendant assigns error to the denial of his motion to
continue his case and requests a new trial.
[A] motion for a continuance is ordinarily
addressed to the sound discretion of the trial
judge whose ruling thereon is not subject to
review absent a gross abuse . . . . Denial of
a motion for a continuance . . . is . . .
grounds for a new trial only upon a showing by
defendant that the denial was erroneous and
that [the] case was prejudiced thereby.
State v. Searles
, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981)
(internal citations omitted). North Carolina General Statute §
15A-952(g) also requires that [i]n superior or district court, the
judge shall consider . . . in determining whether to grant a
continuance . . . [w]hether the failure to grant a continuance
would be likely to result in a miscarriage of justice[.] N.C.Gen. Stat. § 15A-952(g) (2005). Continuances should not be
granted unless the reasons therefor are fully established. Hence,
a motion for continuance should be supported by an affidavit
showing sufficient grounds. State v. Stepney
, 280 N.C. 306, 312,
185 S.E.2d 844, 848 (1972).
the defendant made an oral motion to continue his
trial to locate a potential alibi witness. Id.
at 154-55, 282
S.E.2d at 434. The court continued the trial for two days. Id.
153, 282 S.E.2d at 433. After the two days defendant did not
request another continuance. Id.
at 156, 282 S.E.2d at 434-35.
This Court determined that the trial court did not err in granting
a short continuance as the defendant had ample time to prepare,
a little less than two months from the appointment of counsel until
trial, had met with his attorney at least once, and failed to raise
the issue at the continued trial. Id.
at 154-56, 282 S.E.2d at
We first note that though the trial judge did state he was
denying defendant's motion to continue, in addressing defendant's
motion to appoint substitute counsel, the trial judge did actually
continue the case for one day to give defendant more time to
discuss the case with his attorney. In the present case defendant
had ample time to prepare. Counsel was appointed on or about 24
July 2006. Trial was not held until 7 November 2006. Here
defendant had over three months to prepare compared to the less
than two months in Searles
that were determined to be sufficient
time for preparation. Id.
at 154, 282 S.E.2d at 433. Defendantalso informed the trial court in making his motion that he had met
with his attorney four or five times. The court in Searles
knew of one time the defendant had met with his attorney and still
found a two day continuance not to be in error. Id.
also failed to make a motion for further continuance the next day
at his continued trial and did not support his motion with an
affidavit showing sufficient grounds. See Stepney
at 312, 185
S.E.2d at 848; see Searles
at 156, 282 S.E.2d 434-35.
The trial judge also questioned defendant's counsel regarding
his trial preparation and the record reflects that the trial court
did indeed consider whether denying the motion to continue would
be likely to result in a miscarriage of justice and determined
this not to be the case. N.C. Gen. Stat. § 15A-952(g). We find no
abuse of discretion or error in the trial court's determination to
continue the trial for only one day. See Searles
at 153, 282
S.E.2d at 433. This assignment of error is overruled.
B. Motion to Appoint Substitute Counsel
Defendant also assigns error to the trial court's failure to
appoint substitute counsel. Absent a showing of a [S]ixth
[A]mendment violation, we review the denial of a motion to appoint
substitute counsel under an abuse of discretion standard. State v.
, 303 N.C. 321, 336, 279 S.E.2d 788, 798 (1981).
While it is a fundamental principle that
an indigent defendant in a serious criminal
prosecution must have counsel appointed to
represent him, Gideon v. Wainwright
, 372 U.S.
335, 83 S. Ct. 792, L. Ed. 2d 799 (1963), an
indigent defendant does not have the right to
have counsel of his choice
represent him. This does not mean, however,that a defendant is never entitled to have new
or substitute counsel appointed. A trial
court is constitutionally required to appoint
substitute counsel whenever representation by
counsel originally appointed would amount to
denial of defendant's right to effective
assistance of counsel, that is, when the
initial appointment has not afforded defendant
his constitutional right to counsel. Thus,
when it appears to the trial court that the
original counsel is reasonably competent to
present defendant's case . . . denial of
defendant's request to appoint substitute
counsel is entirely proper.
State v. Thacker
, 301 N.C. 348, 351-52, 271 S.E.2d 252, 255 (1980)
(internal citations omitted) (emphasis in original).
In State v. Anderson
, the defendant pro se
attorney be relieved from her case. 350 N.C. 152, 164, 513 S.E.2d
296, 304, cert. denied
, 528 U.S. 973, 145 L. Ed. 2d 326 (1999).
The trial court denied the motion. Id.
at 168, 513 S.E.2d at 306.
This Court found no error stating that [n]othing in the record
indicates . . . . [counsel] did not serve as a zealous advocate for
defendant throughout the entire time in which he represented . . .
[and] the effectiveness of representation cannot be gauged by the
amount of time counsel spends with the accused[.] Id.
513 S.E.2d at 306.
In the present case defendant informed the trial court he had
met with his attorney four or five times. Defendant's complaint
about his counsel was that he had not spent enough time on the
case. Upon being questioned by the trial judge, defendant's
attorney stated, I have had more than enough time to review the
evidence . . . . I have reviewed all the evidence. I have . . .
documented . . . the evidence itself. I am prepared. In denyingthe motion to appoint substitute counsel the trial judge stated,
Looking through the file and listening to both [defendant] and
[defendant's counsel], I feel that he has done a quite competent
job of representing his client and will continue to do so. I'm
familiar with [defendant's counsel's] abilities and feel quite
comfortable with him representing his client.
It is apparent from the transcript that the trial court
considered defendant's counsel to be reasonably competent and in
its discretion determined not to appoint substitute counsel. See
at 152, 271 S.E.2d at 255. Just as in Anderson
, there is
[n]othing in the record indicat[ing] . . . [counsel] did not serve
as a zealous advocate for defendant throughout the entire time in
which he represented [him] . . . [and] the effectiveness of
representation cannot be gauged by the amount of time counsel
spends with the accused[.] Anderson
at 167-68, 513 S.E.2d at 306.
We discern no abuse of discretion in the denial of defendant's
motion to appoint substitute counsel. Hutchins
at 336, 279 S.E.2d
at 798. This assignment of error is overruled.
III. Motion to Suppress
Defendant next assigns error to the trial court's partial
denial of his motion to suppress. Defendant contends that the
statements made while he was in the patrol car should have been
suppressed. The trial court's finding of fact number 18 regarding
the motion to suppress was that [d]uring the drive to the jail, no
questions were asked of [d]efendant. However, [d]efendantvolunteered that he had an addiction and needed help and that he
had made his bed and would have to lie in it.
The trial court's findings of fact were not excepted to on
appeal; therefore, they are not reviewable. State v. Watkins
N.C. 437, 438, 446 S.E.2d 67, 68 (1994). In State v. Cheek
defendant appealed the trial court's denial of his motion to
suppress his statements on the grounds, inter alia
, that they were
not voluntary. 351 N.C. 48, 62, 520 S.E.2d 545, 554 (1999), cert.
, 530 U.S. 1245, 147 L. Ed. 2d 965 (2000). Our Supreme Court
In this assignment of error, defendant
has failed to specifically except to any of
the trial court's findings of fact relating to
this motion. Defendant has additionally
failed to identify in his brief which of the
trial court's . . . findings of fact are not
supported by the evidence. Therefore, this
Court's review of this assignment of error is
limited to whether the trial court's findings
of fact support its conclusions of law.
at 63, 520 S.E.2d at 554. After reviewing the record, the
Supreme Court overruled the defendant's assignment of error stating
that police coercion is a necessary predicate to a determination
that a waiver or statement was not given voluntarily, and without
police coercion, the question of voluntariness does not arise
within the meaning of the Due Process Clause of the Fourteenth
(quoting State v. Morganherring
, 350 N.C. 701,
722, 517 S.E.2d 622, 635 (1999), cert. denied
, 529 U.S. 1024, 146
L. Ed. 2d 322 (2000) (quoting State v. McKoy
, 323 N.C. 1, 21-22,
372 S.E.2d 12, 23 (1988), cert. granted
, 489 U.S. 1010, 103 L. Ed.2d (1989), vacated on other grounds
, 494 U.S. 433, 108 L. Ed. 2d
369 (1990))) (internal quotations omitted).
In the present case we have also thoroughly reviewed the
record and find no evidence of police coercion or to support
defendant's contention that his statements were not voluntary. See
Defendant's own brief does not even argue that his statements
were coerced, but instead suggests that it is hard to believe that
nothing was said to provoke an unsolicited response on the part of
[defendant]. Both of the deputies testified that defendant made
the statements in the patrol car regarding his addiction
voluntarily and without any questioning from them. We find the
trial court's finding of fact that defendant's statements were
voluntary does support its implied conclusion of law that
defendant's statement in the patrol car should not be excluded.
at 63, 520 S.E.2d at 554. Defendant's motion to suppress
on this issue was properly denied. This assignment of error is
IV. Motion to Dismiss
Lastly defendant assigns error to the trial court's failure to
dismiss the charges against him because the evidence was
insufficient to establish defendant was in possession or had
control of the cocaine recovered at the scene. The elements of
felony possession are (1) defendant (2) knowingly possesses (3)
cocaine. State v. Burnette
, 158 N.C. App. 716, 720, 582 S.E.2d
339, 342 (2003).
Our standard of review of a trial court's
ruling on a motion to dismiss for insufficientevidence is whether there is substantial
evidence (1) of each essential element of the
offense charged, or of a lesser offense
included therein, and (2) of defendant's being
the perpetrator of such offense. Substantial
evidence is that amount of relevant evidence
necessary to persuade a rational juror to
accept a conclusion. The evidence must be
viewed in the light most favorable to the
State, giving the State the benefit of all
reasonable inferences. Contradictions and
discrepancies do not warrant dismissal of the
case but are for the jury to resolve.
State v. Prush
, ___ N.C. App. ___, ___, 648 S.E.2d 556, 558 (2007)
(internal citations and internal quotations omitted).
Defendant argues State v. Acolastse
supports his contention.
158 N.C. App. 485, 581 S.E.2d 807 (2003). In Acolastse
defendant was approached by the police and ran. Id.
at 486, 581
S.E.2d at 808-809. The police chased defendant and at one point
lost sight of him. Id.
at 486-87, 581 S.E.2d at 809. One of the
officers claimed they saw defendant make a throwing motion toward
some bushes. Id
. at 487, 581 S.E.2d at 809. Later, cocaine was
recovered on the roof of one of the houses defendant had been
around, though not near the bushes. Id
. Defendant was found
guilty of possession with intent to sell and deliver cocaine and
trafficking in cocaine by possession. Id.
On appeal this Court
reversed, disagreeing with the State's contention that the
evidence placing the defendant in close juxtaposition to the
cocaine, the money ($830.00) found on defendant's person in
denominations consistent with the sale of controlled substances and
the defendant's throwing motion are sufficient incriminatingcircumstances from which one can infer constructive possession.
at 489-91, 581 S.E.2d at 810-11.
however is quiet different from the present case as
defendant was observed to be in actual possession of the cocaine.
A person has actual possession of a substance if it is on
his person, he is aware of its presence, and either by himself or
together with others he has the power and intent to control its
disposition or use. State v. Reid
, 151 N.C. App. 420, 428-29, 566
S.E.2d 186, 192 (2002).
The present case is more on point with State v. Wilder
the officer saw the defendant throw something into some bushes and
later cocaine was discovered in the bushes in a bag matching the
officer's description of the object thrown into the bushes. 124
N.C. App. 136, 140, 476 S.E.2d 394, 397 (1996). This Court found
no error in the trial court's denial of the defendant's motion to
dismiss because there was substantial evidence of each essential
element of the crime charged, including possession. Id.
In the present case not only did Deputy Smith see defendant
throw an object, as in Wilder
, but here the deputy did not lose
sight of the object. See id.
The State asked Deputy Smith, At
any point did you lose sight of that object from when it left
[defendant's] hand to when it fell on the ground?. Deputy Smith
responded, No, ma'am, I kept it in sight the whole time. Deputy
Smith's testimony would not only be enough to persuade a rational
juror to accept a conclusion of constructive possession, but
would also allow a conclusion of actual possession as itestablishes the cocaine was on defendant, he was aware of it, and
he had the power and intent to control its disposition. Prush
___, 648 S.E.2d at 558; Reid
at 429, 566 S.E.2d at 192. We find
substantial evidence as to each element of felony possession of
cocaine and that defendant was indeed the perpetrator. See Prush
___, 648 S.E.2d at 558. This assignment of error is overruled.
For the foregoing reasons, we find the trial court properly
ruled on defendant's motion to continue, motion to appoint
substitute counsel, motion to suppress, and motion to dismiss.
Therefore, we find no error.
Chief Judge MARTIN and Judge ARROWOOD concur.
Report per Rule 30(e)