Opinion
No. COA11–1367.
2012-07-17
STATE of North Carolina, v. Philomena Marie GUILFORD.
Attorney General Roy A. Cooper, by Assistant Attorney General David D. Lennon, for the State. Law Office of Larry S. Height, by Larry S. Height, for defendant-appellant.
Appeal by defendant from judgment entered 25 May 2011 by Judge Walter H. Godwin, Jr., in Martin County Superior Court. Heard in the Court of Appeals 23 April 2012. Attorney General Roy A. Cooper, by Assistant Attorney General David D. Lennon, for the State. Law Office of Larry S. Height, by Larry S. Height, for defendant-appellant.
BRYANT, Judge.
Where defendant's motion to continue was untimely and inadequately supported, and where the probative value of testimony sought to be admitted to attack the credibility of a witness was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, and where a witness had no personal knowledge of a subpoena about which she was questioned, we hold no error.
Facts and Procedural History
Defendant was indicted by a Martin County Grand Jury on 29 November 2010 on five (5) counts of embezzling from her employer, Dollar General Corporation (Store Number 2895) (the corporation is referred to hereafter as “Dollar General”) (the individual store is referred to hereafter as “Dollar General Store”), between 15 January 2010 and 20 January 2010. The case came on for jury trial during the 23 May 2011 Criminal Session of Martin County Superior Court, the Honorable Walter H. Goodwin, Jr., Judge Presiding.
Upon the case being called for trial, potential jurors were excused from the courtroom and defendant raised a motion to continue the trial. As the basis of the motion, defendant stated that she only recently received discovery documents and “[had] not had an opportunity to fully evaluate the documents that [she] received.” Defendant further stated that a witness was listed in the discovery documents that the defense was not previously aware of. In response to questioning from the court, defendant stated that she thought the discovery had arrived seven (7) days earlier in the mail.
The State, in response to defendant's motion, acknowledged that the discovery documents were subpoenaed from Dollar General and had not been in the State's possession, as they were received by the State the previous week. Nevertheless, the State had reviewed the documents and was prepared to proceed to trial. All witnesses were present, including the recently discovered witness. The court denied defendant's motion to continue.
At trial, witness testimony revealed that the case arose as a result of missing Dollar General Store deposits totaling approximately ten-thousand dollars ($10,000.00). The missing deposits were supposed to have been deposited at First Citizens Bank in Williamston (the “bank”) between 15 January 2010 and 20 January 2010. However, a search of the bank's electronic journal by Ms. Gwendolyn Welch (“Welch”), teller supervisor at the bank, returned no record of the deposits.
At the time the deposits were discovered missing, defendant was the store manager of Dollar General Store, Ms. Sheila Stokes (“Stokes”) was the assistant manager of Dollar General Store, and Ms. Ramona Highsmith (“Highsmith”) was Dollar General Store's lead clerk. Testimony indicated that they were the only employees of Dollar General Store to have access to the deposits.
Further testimony at trial centered around the events leading up to the filing of a police report with the Williamston Police Department on 22 January 2010, the contents of Dollar General Store's deposit logs, and the contents of surveillance video taken by Dollar General Store's security system.
In regards to the events of the week the deposits were discovered missing, Mr. Terry Little (“Little”), Dollar General's district manager overseeing Dollar General Store, received notice of the missing deposits from Dollar General and began an investigation. As part of his investigation, Little questioned defendant, Stokes, and Highsmith about the missing deposits. Stokes testified that when asked about the deposits, she told Little that defendant had taken them out. Stokes further testified that on the evening of Thursday, 21 January 2010, subsequent to Little's questioning, defendant arrived at Stokes' house and turned over her keys to Dollar General Store, stating she would not be back. When Little found out, he called defendant to ask, “[w]hat's going on?” Defendant responded that she was resigning and could not say anything because she might incriminate herself.
In regards to the contents of Dollar General Store's deposit logs and the surveillance video admitted at trial, Mr. Phillip Howard (“Howard”), Dollar General's regional loss prevention manager overseeing Dollar General Store, testified that the deposit logs indicated that defendant removed certain missing deposits from the store and that the surveillance video showed defendant removing the deposits from Dollar General Store's safe and placing them in her pockets. Howard burned this video to a disc and turned it over to Officer Keith Owens of the Williamston Police Department on 22 January 2010, when he reported the missing deposits.
Based on this evidence and other evidence presented at trial, a jury found defendant guilty on all five (5) counts of embezzlement, and the court entered judgment on 25 May 2011. The court sentenced defendant to three consecutive prison terms, each six (6) to eight (8) months, with the latter two terms suspended upon the condition that defendant complete thirty-six (36) months of supervised probation, complete eighteen (18) hours of community service during the first 180 days of the period of probation, pay costs and community service fees, and pay restitution. Defendant appeals.
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Defendant raises the following issues on appeal: whether the trial court erred in (I) denying defendant's motion to continue at the beginning of the trial; (II) denying defendant's right to cross-examine a material witness concerning her credibility; (III) sustaining an objection to defendant's question as to whether a material witness was issued a subpoena to testify and ordered to bring documents to court.
I
Defendant argues that the trial court erred in denying his motion to continue at the beginning of the trial because defendant received discovery documents at the last minute and did not have time to adequately prepare the case. 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. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981). When a motion to continue raises a constitutional issue, the trial court's ruling is fully reviewable upon appeal. Id. 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. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982).
State v. Taylor, 354 N.C. 28, 33–34, 550 S.E.2d 141, 146 (2001), cert. denied, 535 U.S. 934, 152 L.Ed.2d 221 (2002).
In the case sub judice, defendant has not raised any constitutional issues with respect to the denial of her motion to continue. Therefore, we review the denial of defendant's motion to continue for an abuse of discretion.
N.C. Gen Stat. § 15A–952 governs whether a motion to continue is timely filed.
Unless otherwise provided, [motions 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. If arraignment is to be held at the session for which trial is calendared, the motions must be filed on or before five o'clock P.M. on the Wednesday prior to the session when trial of the case begins.
If 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.
N.C. Gen.Stat. § 15A–952(c) (2011). Therefore, at the very latest, a motion to continue is timely when “filed on or before five o'clock P.M. on the Wednesday prior to the session when trial of the case begins.” Id. Failure to timely file a motion to continue constitutes a waiver of the motion unless the court, in its discretion, grants relief from the waiver. N.C. Gen Stat. § 15A–952(e) (2011).
In the case before us, defendant orally asserted her motion to continue upon the case being called for trial. As a basis for her motion to continue, defendant stated that she had only recently received discovery documents and had not been able to review them. However, when questioned by the court, defendant admitted that she received the discovery materials seven days earlier by mail. Thus, defendant had sufficient time to file a motion to continue before the five o'clock P.M. Wednesday deadline. Failure by defendant to file the motion to continue constituted a waiver.
Even when timely filed,
A motion for continuance ... is ordinarily addressed to the sound discretion of the trial judge whose ruling thereon is not subject to review absent an abuse of such discretion. This rule requiring the defendant to make a showing of abuse by the trial court in denying his motion for a continuance should be applied with even greater vigor in cases such as this in which the defendant has waived his right to make a motion to continue by failing to file the motion within the time prescribed....
State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982) (internal citation omitted). When determining whether to grant a motion to continue, the trial judge shall consider “[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)(1). A motion to continue should not be granted unless the reasons for the continuance have been fully established. State v. Cradle, 281 N .C. 198, 208, 188 S.E.2d 296, 303,cert. denied,409 U.S. 1047, 93 S.Ct. 537, 34 L.Ed.2d 499 (1972). While it is good practice to support a motion to continue with an affidavit, “ ‘detailed proof’ may be in the form of an unsworn statement by the movant's attorney or an affidavit by the attorney which establishes the reason for delay and how the movant will be prejudiced if its motion is denied.” State v. Cody, 135 N.C.App. 722, 726, 522 S.E.2d 777, 780 (1999).
In the present case, after introducing her motion to continue, defendant offered unsworn statements that she had only recently received discovery documents and learned the identity of a witness. While unsworn statements may be sufficient to support a motion to continue, defendant failed to demonstrate how her case was prejudiced.
Given the facts and circumstances surrounding defendant's motion to continue, the trial court did not err in denying the motion where “[d] efendant's failure to make a timely motion was in itself sufficient basis for its denial. Moreover, although no longer required by statute, it is still desirable that a motion for continuance be supported by an affidavit showing the grounds for continuance.” State v. Evans, 40 N.C.App. 390, 391–92, 253 S.E.2d 35, 36 (1979) (citing State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974)). Defendant's argument is overruled.
II
To the best we can discern, defendant next contends that the trial court erred in denying her the right to attack the credibility of Stokes during cross-examination. We disagree.
The issue stated on page 12 of defendant's brief appears to be entirely different from the second issue on page 1 of her brief. To the extent defendant intended to advance the issue stated on page 12 of her brief, it is not discussed and is therefore abandoned pursuant to N.C.R.App. P. 28(a).
“We review a trial court's decision to exclude evidence under Rule 403 for abuse of discretion.” State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008). “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. Jordan, 333 N.C. 431, 436–7, 426 S.E.2d 692, 695 (1993).
According to the North Carolina Rules of Evidence, “[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” N.C. Gen Stat. § 8C1, Rule 611(b) (2011). “The credibility of a witness may be attacked by any party. ...” N.C.R. Evid. 607. “Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, ... may, ... in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness....” N.C.R. Evid. 608(b).
However, such evidence may nonetheless be excluded under Rule 403 if the trial court determines “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.”
Whaley, 362 N.C. at 159–60, 655 S.E.2d at 390 (quoting N.C.R. Evid. 403).
At trial, the State called Stokes to testify concerning Dollar General Store's deposit policies, the contents of the Dollar General Store's deposit logs, and the events the week the deposits were discovered missing. During cross-examination of Stokes, defendant sought to attack Stokes' credibility on two occasions. First, defendant attacked the credibility of Stokes when she offered inconsistent testimony on whether she was working Thursday, 21 January 2010. Second, defendant sought to inquire into an earlier April 2009 investigation of missing deposits at Dollar General Store.
Concerning the inconsistent testimony, during direct examination by the State, Stokes testified that she was not working on Thursday, 21 January 2010. Then, during cross-examination, Stokes restated that she was not working on Thursday, the day defendant dropped off the keys to Dollar General Store at her house. Yet, in response to further questioning about the deposit logs, Stokes contradicted herself, stating that she was working on 21 January when she took the deposits to the bank. Upon further examination by both the State and defendant, Stokes attempted to clarify her prior inconsistent testimony. Stokes reiterated that she did not work on 21 January 2010 and just got the dates mixed up. Stokes stated that she took the deposit prepared by defendant on 21 January 2010 to the bank on 22 January 2010.
Defendant raises no contentions regarding the above testimony. Instead, defendant argues that Stokes' testimony amounted to lying and, therefore, defendant, over the State's objection, should have been able to inquire into the April 2009 investigation of missing deposits. The question to Stokes to which the State objected was, “In April of 2009, isn't it true you were investigated by Dollar General for missing deposits?”
Defendant is correct that the credibility of a witness may be attacked by prior bad acts. N.C.R. Evid. 608(b). Nevertheless, this rule is not absolute. Evidence is admitted at “the discretion of the court.” Id.
At trial, testimony by Sergeant Clinton Davis revealed that Stokes was one of the two suspects involved in the April 2009 investigation into missing deposits. However, no charges were filed because the evidence was not conclusive enough to eliminate either Stokes or Highsmith as suspects. Thus, in this case,
[b]ecause the only purpose for which this evidence is sought to be admitted is to impeach or to bolster the credibility of a witness, the only character trait relevant to the issue of credibility is veracity or the lack of it. The focus, then, is upon whether the conduct sought to be inquired into is of the type which is indicative of the actor's character for truthfulness or untruthfulness.
State v. Morgan, 315 N.C. 626, 634–35, 340 S.E.2d 84, 90 (1986). In accordance with North Carolina Rule of Evidence 403, it is well within the discretion of the trial court to disallow evidence of a prior, inconclusive investigation to attack the credibility of a witness where the “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” N.C.R. Evid. 403.
Even if we determined the denial of the line of questioning to be an abuse of discretion, the “[error is] harmless unless a defendant proves that absent the error a different result would have been reached at trial.” State v. Ferguson, 145 N.C.App. 302, 307, 549 S.E.2d 889, 893,disc. review denied, 354 N.C. 223, 554 S.E.2d 650 (2001). Defendant has provided no evidence showing prejudice. In fact, the evidence defendant sought to be admitted came in through the testimony of Sergeant Davis.
Given the record on appeal , we cannot say that the trial court abused its discretion by sustaining the State's objection to defendant's question to Stokes regarding the April 2009 investigation into missing deposits. Accordingly, we overrule defendant's argument.
We note that defendant failed to develop any argument and failed to cite any authority in support of the position taken regarding the second issue on appeal. Defendant merely repeated the facts and stated that the trial court abused its discretion, amounting to prejudice towards defendant's case.
III
Defendant's final contention is that the trial court erred by sustaining an objection to defendant's question as to whether Welch was issued a subpoena to testify and ordered to bring documents to court. We disagree.
At trial, Welch testified that in response to Little's 22 January 2010 inquiry concerning the missing deposits, she performed a search of the bank's electronic journals. Welch found no record of the Dollar General Store deposits in question.
During cross-examination, defendant asked Welch if she brought the journal documents with her. When Welch responded that she did not, defendant questioned Welch as to whether she was aware of a subpoena issued to Dollar General. Welch again answered in the negative, stating that she was not aware of the subpoena. Defendant followed by asking, “[a]nd you are a witness today, so you don't have any idea why the State didn't bring those documents in for us to look at.” The State's objection to the question was sustained. Further questioning regarding the bank's records and deposit process continued until defendant asked Welch who had subpoenaed her. The State objected again and the court sustained the objection, commenting “[w]hether she got a subpoena or not is not relevant in this case.”
In making her argument that the trial court erred in sustaining the State's objections, defendant cites authority for the proposition that the opposing party generally has an absolute right to cross-examine a witness. While we agree that the opposing party has a right to cross-examine a witness, “the scope of cross-examination is left to the discretion of the trial judge and his rulings should not be disturbed unless prejudicial error is disclosed. Furthermore, the trial judge may properly exclude testimony on cross-examination when it becomes merely repetitious or argumentative.” State v. Cox, 296 N.C. 388, 391, 250 S.E.2d 259, 261–62 (1979). Thus, “[w]e review a trial court's decision to exclude evidence under Rule 403 for abuse of discretion.” Whaley, 362 N.C. at 160, 655 S.E.2d at 390.
This is the only authority cited by defendant in support of her argument under issue III.
We first note that defendant's argument is based on a misstatement of the facts. Defendant claims that Welch testified regarding bank ledgers but failed to bring any of the documents used as a basis of her testimony to court pursuant to a subpoena. Defendant claims the State objected to further questioning along these lines and that it was error for the trial court to sustain the objection.
As noted above, the trial transcript does not support defendant's version of the facts. The subpoena that defendant questioned Welch about was not issued to Welch but instead to Dollar General. Welch testified that she knew nothing about the subpoena from defendant to Dollar General. The State's objection was not raised until defendant asked Ms. Welch, “[a]nd you are a witness today, so you don't have any idea why the State didn't bring those documents in for us to look at.” Any answer that Welch could give in response to why the State did not bring documents to court would be merely speculation. Thus, the court properly sustained the objection.
The North Carolina Rules of Evidence provide that, “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.” N.C.R. Evid. 602. Even then, “[a]lthough 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.R. Evid. 403.
Given the facts of this case as reflected in the trial transcript, we can not say that the trial court abused its discretion is sustaining the State's objection. Accordingly, we overrule defendant's argument.
No Error. Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).