Opinion
No. 07-691.
Filed January 15, 2008.
Mecklenburg County Nos. 05 CRS 220759, 05 CRS 220760.
Appeal by Defendant from judgments entered 16 November 2006 by Judge David S. Cayer in Mecklenburg County Superior Court. Heard in the Court of Appeals 31 December 2008.
Attorney General Roy Cooper, by Assistant Attorney General David D. Lennon, for the State. Cheshire, Parker, Schneider, Bryan Vitale, by John Keating Wiles, for Defendant.
Thong Xuan Mai ("Defendant") was indicted by a Mecklenburg County grand jury on 31 July 2006 on three counts of trafficking in methylenedioxymethamphetamine ("MDMA"), also known as Ecstasy, by possession, transportation, and sale, and on one count of conspiracy to commit trafficking in drugs. The case was tried before a jury on 9 and 10 November 2006, and the jury returned verdicts of guilty on the charges of trafficking by possession and sale, and not guilty on the charges of trafficking by transportation and conspiracy to commit trafficking in drugs. Upon the guilty verdicts, the trial court entered judgments, sentencing Defendant to consecutive terms of 35 to 42 months imprisonment and fines totaling $50,000. From these convictions and judgments, Defendant appeals.
I. FACTS
On 6 November 2006, Defendant filed a "Motion to Continue and Motion For Discovery," asking the trial court to grant him a continuance from the 6 November 2006 criminal trial term and to order the State to turn over discovery material regarding Kieu Oahn Luong (aka "Dee"). On 7 November 2006, Defendant issued a subpoena seeking to compel Dee to appear and testify on 8 November 2006. The return of service indicated Dee received and was served with the subpoena on 9 November 2006.
The case was called for trial on 9 November 2006. At the start of the trial, the trial court asked, "Counsel, are there any matters for the Court before we send for a jury?" Aside from Defendant's request for sequestration of witnesses, neither party brought any matter to the trial court's attention. The trial court recessed for the evening at 5:00 p.m. on 9 November 2006 and resumed on 10 November 2006. Before bringing the jury back in on 10 November, the trial court asked, "Is counsel ready for the jury?" Defendant's counsel answered, "Yes, sir."
At trial, the State presented expert testimony of a forensic chemist and testimony of three Charlotte-Mecklenburg Police Department Officers, including Officer Kellough. Officer Kellough testified he was an undercover operative in an investigation into MDMA trafficking. He had made arrangements to meet a female suspect, later identified as Dee, for the purpose of purchasing 150 MDMA pills. On 1 April 2005, Dee drove into the parking lot where Officer Kellough was waiting to complete the transaction. She told him to get into the backseat of the car. She told the man sitting next to her in the front passenger's seat, later identified as Defendant, to hand the pills to Officer Kellough. Defendant pulled a small, clear plastic bag containing gray round pills that appeared to be MDMA from his front left pants pocket and handed them to Officer Kellough. Defendant told Officer Kellough that "all the pills were there and that [Officer Kellough] would like them." Dee told Officer Kellough to count his money and hand it to Defendant, which he did. Officer Kellough then got out of the car and Dee drove away with Defendant. A uniformed officer stopped the car shortly afterwards for an expired registration and obtained identification information from both Dee and Defendant.
Defendant testified that he and Dee were going to a restaurant that day when she said she had to drop something off. Dee then stopped in a parking lot, and a man got into the car. She told the man to count the money, and she gave the pills to the man. She then asked Defendant to recount the money, and he did so because she was busy on the phone. Defendant denied knowing what Dee was doing, and he stated that he neither received nor expected to receive any kind of compensation from her from the sale of the drugs.
After Defendant's testimony, an unrecorded bench conference was held and then the trial court excused the jury. Subsequently, a discussion between defense counsel and the trial court took place regarding Defendant's efforts to contact a Ms. Brooks and an unnamed witness. According to defense counsel, the witness was under subpoena, even though it had not been filed. Defense counsel further informed the trial court that although "we have left messages today with our witnesses[,]" Defendant had not been able to reach anyone. The trial court indicated that it "would certainly consider" extending Defendant more time to get in touch with his witnesses. Defense counsel asked, "If the Court is inclined, I would like to at least have — if we could take an early lunch recess and see if I can reach someone during the break." Accordingly, the trial court said it would allow for a lunch break between 12:00 and 1:30. Defense counsel responded, "That would be fine." The trial court then warned that if the witnesses were not at the court by then, Defendant would have to proceed without their testimony. Defense counsel responded, "We understand that." The trial court then excused the jury for lunch.
Upon the jury's return from lunch, another unrecorded bench conference was held. The trial court then asked Defense counsel, "Are you ready to proceed[?]" Defense counsel responded, "Yes, Your Honor." Defendant entered an exhibit into evidence, rested his case, and made a motion to dismiss at the close of all the evidence, which was denied.
At no point in the proceding was Defendant's motion to continue mentioned, nor did Defendant at any point raise an objection to proceeding with the case as calendared.
II. DISCUSSION
Defendant contends that by calling his case for trial when he had filed a written motion to continue, the trial court deprived him of his state and federal constitutional rights to present a defense. He argues that "that decision ended up putting [him] in the position of being unable to present [Dee's] testimony. And that violated [his] constitutional rights to present a defense[.]" Defendant's argument is without merit.
"[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with ? Rule 10." N.C. R. App. P. 10(a) (2006). Except for matters set out in North Carolina Rule of Appellate Procedure 10(a), errors occurring during trial must be preserved for appeal if they are to be reviewed on grounds other than plain error. Reep v. Beck, 360 N.C. 34, 619 S.E.2d 497 (2005).
Plain error review is limited to alleged evidentiary and instructional errors in criminal cases. State v. Gregory, 342 N.C. 580, 467 S.E.2d 28 (1996).
Pursuant to Rule 10, in order to preserve a question for appellate review, "a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make[.]" N.C. R. App. P. 10(b)(1) (2006). Furthermore, "[i]t is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion." Id. Failure to do so generally results in a waiver of the issue. Id. Moreover, "a constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal." State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982).
Nevertheless, "[a]ppellate Rule 2 specifically gives either court of the appellate division the discretion to suspend or vary the requirements or provisions of any of [the] rules in order [t]o prevent manifest injustice to a party, or to expedite decision in the public interest." State v. Hart, 361 N.C. 309, 315, 644 S.E.2d 201, 204-05 (2007) (quotation marks and citation omitted). However, "Rule 2 must be applied cautiously," id. at 315, 644 S.E.2d at 205, as "the exercise of Rule 2 was intended to be limited to occasions in which a fundamental purpose of the appellate rules is at stake, which will necessarily be rare occasions." Id. at 316, 644 S.E.2d at 205 (quotation marks and citations omitted).
In this case, Defendant failed to properly preserve the issue of his motion to continue for appellate review. First, in order to be timely, a motion to continue must be made "at or before the time of arraignment if a written request is filed for arraignment and if arraignment is held prior to the session of court for which the trial is calendared." N.C. Gen. Stat. § 15A-952(c) (2005). Furthermore, "[i]f arraignment is to be held at the session for which trial is calendared, the motion? must be filed on or before five o'clock [p.m.] on the Wednesday prior to the session when trial of the case begins." Id. Finally, "[i]f a written request for arraignment is not filed, then [a motion to continue] must be filed not later than 21 days from the date of the return of the bill of indictment as a true bill." Id. Here, the record is silent as to whether a written request for arraignment was filed or when arraignment took place. Regardless, even if a written request for arraignment was filed and arraignment took place at the 6 November 2006 session of court, allowing for the latest possible filing date, Defendant's motion would have to have been filed by 5:00 p.m. on 1 November 2006. However, Defendant did not file his motion until 6 November 2006.
Furthermore, although given ample opportunity by the trial judge before, during, and after the trial to request a ruling on the motion to continue, Defendant failed to obtain a ruling from the trial court, never even mentioning the motion to continue in any capacity. Finally, Defendant never raised a constitutional issue at the trial level with regard to proceeding to trial despite the fact that he had filed a written motion, attempting instead to raise his constitutional objection for the first time on appeal. Consequently, by failing to timely file his motion to continue, by failing to obtain a ruling on the motion, and by failing to raise a constitutional issue regarding his motion at trial, Defendant did not preserve for appellate review the issue of whether, by calling his case for trial when Defendant had filed a written motion to continue, the trial court deprived Defendant of his state and federal constitutional rights to present a defense. Defendant's failure to preserve this issue for appellate review results in a waiver of the purported error. N.C. R. App. P. 10(b)(1); State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996).
Because the purported error was not preserved, only Rule 2 of the North Carolina Rules of Appellate Procedure would permit this Court to review the issue sua sponte. Reep, 360 N.C. 34, 619 S.E.2d 497. However, after thorough examination, we decline to invoke Rule 2 as the Rules of Appellate Procedure need not be suspended in this case to prevent manifest injustice to Defendant.
Defendant failed to bring forward his remaining assignments of error. Because he has neither cited any authority nor stated any reason or argument in support of those assignments of error, they are deemed abandoned. N.C. R. App. P. 28(b)(6) (2006).
Dismissed.
Judges TYSON and GEER concur.
Report per Rule 30(e).