Opinion
No. COA11–1586.
2012-07-3
STATE of North Carolina v. Carlos James COBB.
Attorney General Roy Cooper, by Assistant Attorney General Jay L. Osborne, for the State. J. Edward Yeager, Jr., for defendant-appellant.
Appeal by defendant from judgments entered 24 August 2011 by Judge Bradley B. Letts in Haywood County Superior Court. Heard in the Court of Appeals 18 June 2012. Attorney General Roy Cooper, by Assistant Attorney General Jay L. Osborne, for the State. J. Edward Yeager, Jr., for defendant-appellant.
ELMORE, Judge.
Carlos James Cobb (defendant) appeals from judgments entered after a jury found him guilty of possession of methamphetamine precursor chemicals, felony conspiracy to manufacture methamphetamine, and attempting to manufacture methamphetamine. The trial court imposed two active sentences of 65 to 87 months each, to be served consecutively. We find no error.
This case arose out of a joint law enforcement raid on a motel room at the Scottish Inn in Haywood County on 3 November 2010. Officers from the Haywood County Sheriff's Department, the Maggie Valley Police Department, and the State Bureau of Investigation (SBI) were involved. Defendant was found in the bathroom of the motel room with materials used to make methamphetamine. Defendant signed a waiver of his Miranda rights and was interviewed by SBI Special Agent Amanda Allen (Agent Allen). Defendant stated that he started using methamphetamine when he was 12 or 13 years old, and that he was in the process of making methamphetamine for his personal use in the motel room.
Prior to the start of his trial on 22 August 2011, defendant addressed the trial court and the following exchange occurred:
DEFENDANT: Last Wednesday, Your Honor, my attorney, Pam Smith, come to do something with my plea deal.
TRIAL COURT: Um-hum.
DEFENDANT: And we ended up getting into a cuss fight. And we had argument, and I told her I did not want her to represent me in this matter, and then I walked out of the room. And as I walked out of the room, she told me that she was going to get me years and years and years and years. And I do not feel confident as her being my attorney.
TRIAL COURT: Okay. Well, Mr. Cobb, I appreciate that. You and I have already heard your motion that you filed earlier.
DEFENDANT: Yes, sir.
TRIAL COURT: Ms. Smith is a very well-qualified attorney. She does an excellent job. And I have no doubt in my mind that she will represent you and your interests to the utmost. Your motion—are you asking to fire her or asking
DEFENDANT: Yes, sir.
TRIAL COURT:—for a new attorney?
DEFENDANT: I'm asking for a new attorney. I have another attorney who has been wanting to talk to me for a few months, but I guess he couldn't get no permission from Ms. Smith: Mr. Jonathan Song.
TRIAL COURT: Okay. All right. Thank you. Mr. Cobb.
Let the record reflect that it is 2:18 p.m. The jury has assembled downstairs at 2:00 o'clock. Mr. Cobb at this late state wishes to release his court-appointed counsel and hire other counsel, that this request is unreasonable. It is an unreasonable delay. It is not a timely request, and that request is denied....
Defendant contends that the trial court erred in denying the motion to continue in order for defendant to hire his own attorney. 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.” State v. Taylor, 354 N.C. 28, 33, 550 S.E.2d 141, 146 (2001), cert. denied, 535 U.S. 934, 152 L.Ed.2d 221 (2002) (citations omitted). “When a motion to continue raises a constitutional issue, the trial court's ruling is fully reviewable upon appeal.” Id. Our Supreme Court has previously noted that “ ‘there is no constitutional right under the Sixth Amendment to a continuance to enable [a] defendant to seek new counsel on the day of the trial,’ “ absent a “ ‘justifiable basis' “ therefore. State v. Poole, 305 N.C. 308, 319, 289 S.E.2d 335, 342 (1982) (quoting United States v. Hampton, 457 F.2d 299, 301–02 (7th Cir.), cert. denied,409 U.S. 856, 34 L.Ed.2d 101 (1972)). In this case, we conclude that defendant did not provide a justifiable basis for waiting until the day of trial to replace his appointed counsel with a retained attorney. As the trial court noted in its ruling on the motion to continue, Pam Smith was appointed as counsel on 4 November 2010, and since defendant was charged on 3 November 2010 he had not retained private counsel. The record shows that on 25 July 2011, defendant filed a pro se motion to have Pam Smith released; however, defendant did not indicate he intended that to retain counsel. Rather, defendant sought to have a new attorney appointed. Accordingly, we find that the trial court did not abuse its discretion in denying defendant's motion for a continuance.
Defendant also filed a pre-trial motion to suppress statements he made to law enforcement subsequent to his arrest on 3 November 2010. The trial court denied the motion, and defendant contends the trial court erred in doing so. Defendant asserts that he did not knowingly and voluntarily waive his Miranda rights because he was under the influence of controlled substances; therefore, his statements made to law enforcement were not voluntarily given.
“A trial court's findings of fact regarding the voluntary nature of an inculpatory statement are conclusive on appeal when supported by competent evidence.” State v. Wilkerson, 363 N.C. 382, 430, 683 S.E.2d 174, 203 (2009), cert. denied,––– U.S. ––––, 176 L.Ed.2d 734 (2010) (citations omitted). “However, when, as here, the trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal.” State v. Biber, 365 N.C. 162, 168, 712 S.E .2d 874, 878 (2011) (citation omitted). “[A] trial court's determination of the voluntariness of a defendant's statements is a question of law and is fully reviewable on appeal. Conclusions of law regarding the admissibility of such statements are reviewed de novo.” Wilkerson, 363 N.C. at 430, 683 S.E.2d at 203 (citation and quotation marks omitted).
“In determining the voluntariness of the confession and the waiver of Miranda rights, we look to the totality of the circumstances.” State v. McKoy, 323 N.C. 1, 21, 372 S.E.2d 12, 23 (1988), sentence vacated on other grounds, 494 U.S. 433, 108 L.Ed.2d 369 (1990) (citations omitted). “The fact that defendant was intoxicated at the time of his confession does not preclude the conclusion that defendant's statements were freely and voluntarily given. An inculpatory statement is admissible unless the defendant is so intoxicated that he is unconscious of the meaning of his words .” State v. Oxendine, 303 N.C. 235, 243, 278 S.E.2d 200, 205 (1981) (citations omitted).
Here, the uncontested findings of fact show that Agent Allen went through the rights advisory form with defendant. Agent Allen read the form aloud and defendant stood beside her so that he could read along with her. Defendant's responses to the questions were “immediate, appropriate, cogent, and articulate.” Defendant initialed the form in appropriate blanks, he wrote his name and age correctly, and his writing was “legible and readable.” Defendant's speech was not slurred, he was “lucid, fully understanding the questions posed to him, and able to focus on Agent Allen and respond to her appropriately.” Defendant has not shown that he was unconscious of the meaning of his words at the time he made the statements. Thus, we find that the trial court properly concluded that defendant “intelligently, freely, voluntarily, and knowingly waived [his] rights and thereupon made a statement to Agent Allen.” Accordingly, we conclude that the trial court did not err in denying defendant's motion to suppress.
No error. Judges HUNTER, ROBERT C., and McCULLOUGH concur.
Report per Rule 30(e).