Opinion
No. COA08-1350.
Filed June 2, 2009.
Haywood County, No. 07CRS053936.
Appeal by defendant from judgment entered 7 August 2008 by Judge R. Stuart Albright in Haywood County Superior Court. Heard in the Court of Appeals 18 May 2009.
Attorney General Roy Cooper, by Assistant Attorney Nancy Reed Dunn, for the State. Don Willey for defendant-appellant.
On 10 December 2007, defendant was indicted for one count of felonious larceny of a motor vehicle and one count of felonious possession of stolen goods. Evidence from trial establishes the following factual background. On 20 September 2007, John Britt ("Britt") and David Burnette ("Burnette") were working at a Bi-Lo grocery store in Waynesville, North Carolina. Burnette, the victim, was the store's manager. After finishing work for the evening, Britt was exiting the store when he saw someone "fiddling" around with Burnette's car, a green 1996 Nissan Maxima. Britt described the person as a tall white man with a shaved head, who was wearing a black tank top and faded blue jeans. Britt saw the man open the driver side door to the Maxima, fiddle around, and exit the car. The man then jumped into the passenger seat of a gold-colored vehicle and sped away.
Britt went back inside to tell Burnette what he had witnessed. Burnette ran outside to check on his car and found that his car keys and cell phone were missing. Burnette explained that he regularly keeps his car keys and cell phone in a compartment under the emergency brake. Burnette went back inside to call the police, and while he was on the phone with the police, Britt went back outside and saw the same man get back into Burnette's car and drive away. Britt went back inside and told Burnette what he witnessed. Burnette was still on the phone with the police, but looked up and saw his car being driven down the street.
Officer Carver of the Waynesville Police Department responded to the call. After receiving all the pertinent information regarding the vehicle and suspect, Officer Carver made a call into dispatch regarding the stolen vehicle. Officer Russ Gilliland of the Maggie Valley Police Department responded to the call and spotted a vehicle matching the description. After verifying that the license plate of the suspect vehicle matched that of the stolen vehicle, Officer Gilliland stopped the vehicle and detained the driver. The driver was defendant, a tall white male with a shaved head, who was wearing a black tank top and faded blue jeans. Officer Carver then brought Burnette to the scene of the stopped vehicle and identified the suspect vehicle as his car. Defendant was then taken into custody by Officer Carver.
Defendant's case was calendared on the 6 August 2008 Session of Criminal Superior Court in Haywood County. On the morning of 6 August 2008, the trial court elected to handle a shorter matter before defendant's trial. When defendant's matter was resumed around noon, defendant was not present, although he had been in the courtroom earlier that morning. Defendant had apparently left during a morning break and never returned. Because the parties had been instructed to return to the courtroom (or at least stay close by) after the break, the trial court found that defendant had willfully fled the jurisdiction and issued an order for his arrest. However, another issue had sprung up in defendant's case, which the trial court handled prior to trial. Shortly before the case was called, the assistant district attorney ("ADA") handling the case spoke with Burnette. Burnette told the ADA that defendant had come into his store several weeks after the incident, apologized for taking his car and asked Burnette to drop the charges. The ADA was not previously aware of this statement allegedly made by defendant, because this was the ADA's first conversation with Burnette. Immediately after Burnette's disclosure, the ADA informed counsel for defendant.
The parties then notified the trial court of the situation, and the trial court decided to call Burnette as a witness and "put [him] under oath for discovery purposes." Burnette testified that defendant came to his store several weeks after the incident and asked Burnette to drop the charges because defendant had a record and couldn't afford another felony. Burnette asked defendant why he took the car, and defendant answered that he was intoxicated and didn't know what he was doing. Burnette testified that he had not previously told anyone about this encounter, because he did not think it was pertinent. Following Burnette's testimony, the trial court called a lunch recess.
When the court reconvened around 2:45 p.m., defendant made a motion for continuance, or, in the alternative, for exclusion of the statements. Defendant had just returned to the courtroom at the time court reconvened. In support of the motion, counsel argued that he had not had an opportunity to appropriately discuss the matter with defendant, because defendant had just made himself available. The trial court denied defendant's motion. Noting that Burnette's late disclosure posed an unusual circumstance, the trial court nonetheless found that the State had complied with its "ongoing duty to disclose any evidence pursuant to the discovery law timely." The court noted that the defendant already had an opportunity to examine the witness and issue subpoenas if necessary. The trial court also found that defendant had not been prejudiced, because defendant purposefully and intentionally failed to appear.
The trial began in the late afternoon of 6 August 2008 and concluded the following day. The jury returned verdicts finding defendant guilty of felonious possession of stolen goods, but not guilty of felonious larceny. The trial court imposed a sentence of 11 to 14 months active imprisonment, which was within the presumptive range for defendant's prior record level of IV and Class H felony. Defendant gave timely notice of appeal in open court.
Defendant only raises one issue on appeal. Defendant contends that the trial court erred by denying defendant's motion to continue or, in the alternative, exclude certain evidence. It is well established that "a motion for continuance is ordinarily addressed to the sound discretion of the trial court. In such cases, the trial court's ruling will not be disturbed unless it is manifestly unsupported by reason, which is to say it is so arbitrary that it could not have been the result of a reasoned decision." State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998) (citations omitted). "However, if the motion to continue is based on a constitutional right, the trial court's ruling thereon presents a question of law that is fully reviewable on appeal." Id.
Defendant argues that his motion was based on a constitutional ground because he was denied the ability to sufficiently prepare a defense following Burnette's disclosure of the statements allegedly made by defendant. See State v. Worrell, ___ N.C. App. ___, ___, 660 S.E.2d 183, 187 (finding that a motion to continue on the grounds of insufficient time to prepare an adequate defense raises constitutional questions), appeal dismissed, 362 N.C. 668, 671 S.E.2d 531 (2008). After the pretrial examination of Burnette, counsel moved for a continuance of the trial, offering the following explanation: "Your honor, as my client has just made himself available, I haven't had an opportunity to discuss that with him appropriately." The trial court denied defendant's motion, offering the following explanation:
Well, certainly we're not going to finish with this trial today. The witness identified several people. You had more than ample opportunity to issue any subpoenas you needed to if you thought it was necessary several hours ago, and certainly I'm not going to allow the defendant to benefit from him in essence committing a felony in the court's presence by him purposefully and intentionally failing to appear for the trial of this case. So based on your motion with the general allegations I find in the first instance that there's no prejudice to the defendant, and the second instance, I find that the State complied with this ongoing duty to disclose any evidence pursuant to discovery law timely. The State has fully complied with the discovery statute in a very unusual circumstance. The defendant has already had a chance to examine the victim about his statement under oath, so will deny the defendant's motion.
However, it is unnecessary for us to determine whether defendant's motion raised constitutional issues. Regardless of whether a motion to continue raises a constitutional issue, "the denial of a motion to continue . . . is sufficient grounds for the granting of a new trial only when the defendant is able to show that the denial was erroneous and that he suffered prejudice as a result of the error." State v. Rogers, 352 N.C. 119, 124, 529 S.E.2d 671, 675 (2000). After examining the record, we do not find any prejudice. To begin, the State's evidence against defendant was sufficient even without Burnette's testimony regarding defendant's confession. Britt saw a tall white man with a shaved head wearing a tank top and faded blue jeans drive off with Burnette's car. After the suspect vehicle was located, Burnette identified that it was in fact his car, and the driver matched Britt's description.
More importantly, defendant's own conduct contributed to any purported inability to prepare a defense following Burnette's disclosure, and, therefore, defendant has no basis to complain that he was prejudiced. In Worrell, we explained that "`[a] defendant is not "prejudiced . . . by error resulting from his own conduct.'" Worrell, ___ N.C. App. at ___, 660 S.E.2d at 188 (quoting N.C. Gen. Stat. § 15A-1443 (c)). Had defendant been present in the courtroom when the ADA initially spoke with Burnette, counsel would have had several hours to discuss the incident with defendant and defendant would have been able to give counsel input before cross-examining Burnette. Unfortunately, defendant chose to leave the courtroom for several hours, in direct contradiction of the trial court's order, and missed this important development in his case. Therefore, we conclude that defendant cannot now argue that he was prejudiced by the trial court's denial of his motion to continue. Accordingly, we hold that defendant was not prejudiced by the denial of his motion to continue. This assignment of error is overruled.
As noted above, defendant moved, in the alternative, to exclude Burnette's testimony. Defendant, however, has failed to argue that the trial court's denial of his alternative motion to exclude was in error. His argument focuses solely on the denial of his motion to continue. Therefore, to the extent that defendant's assignment of error encompasses his alternative motion to exclude, it is deemed abandoned. See N.C.R. App. P. 28(b)(6) (2006). No error.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).