State v. Ford

310 S.E.2d 381, 65 N.C. App. 776, 1984 N.C. App. LEXIS 2788
CourtCourt of Appeals of North Carolina
DecidedJanuary 3, 1984
DocketNo. 8312SC305
StatusPublished
Cited by1 cases

This text of 310 S.E.2d 381 (State v. Ford) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ford, 310 S.E.2d 381, 65 N.C. App. 776, 1984 N.C. App. LEXIS 2788 (N.C. Ct. App. 1984).

Opinion

BRASWELL, Judge.

The Summerhill Self-Service Station was robbed on 15 December 1981 at 8:00 a.m. by two black males. The jury convicted the defendant, identified as the shorter of the two men, of robbery with a firearm. Prior to trial, the judge refused to grant the defendant’s fifth motion for a continuance and later at trial refused to grant his motion to suppress evidence in which two of the three eyewitnesses identified the defendant as the shorter robber. The defendant appeals from the denial of these motions. After a careful examination of the record, we hold that the motions were properly denied.

The State’s evidence tended to show that at the time of the robbery three employees were on duty at the service station. Catherine Diane Fowler was working as the cashier when two black men entered the store. The taller of the two men, holding a gun, ordered Ms. Fowler to go back into the station’s office. In this office were the other two employees, Don Smith and Claudia Skeen, who were in the midst of posting the previous day’s sales and counting the money to be deposited in the bank. Once they were in the office, the taller man proclaimed, “This is a robbery,” while the shorter robber placed approximately $3,900 from the table into a bag. The taller man ordered the three employees on the floor, then fired his gun between Ms. Fowler and Mr. Smith as he and the other robber left.

Each employee was interviewed by detectives and shown photographic lineup displays on 29 March 1982. Each eyewitness viewed individually the two lineup displays containing six photographs of black men of similar ages and looks. All of the employees testified during the voir dire examination that neither the detective present nor anyone else suggested in any way [778]*778which photograph they should select. On the basis of their observation of the men the day of the robbery, Ms. Fowler and Ms. Skeen selected the defendant’s photograph as a picture of the shorter robber, but could not make a positive identification of the taller robber from the photographs. Mr. Smith picked two photographs, one from each lineup, as pictures of the two robbers but neither of these photographs were of the defendant. Detective Proctor who actually conducted the lineup display presentation stated that after all of the employees had selected the photographs he indicated that the photograph of the defendant selected by Ms. Fowler and Ms. Skeen was indeed a picture of one of the robbers. The State only offered as evidence the pretrial identifications of Ms. Fowler and Ms. Skeen. The defendant offered no evidence.

The defendant’s first assignment of error questions whether the trial court committed reversible error by denying his motion for a continuance. The record reveals that the trial was originally set for 26 July 1982. On that date the defendant was granted a continuance until 8 August 1982 to complete discovery and to continue plea negotiations in the case. The defendant was granted three additional continuances on these grounds, the last of which was to run until 16 September 1982. The defendant’s trial was then calendared for 18 October 1982. On 14 October 1982, the defendant again moved for a continuance on the basis that the defendant “has attempted ... to contact and interview S/Sgt. Anthony Bradley and Spec. 4 Thomas Miles” who “are potentially alibi witnesses for the defendant.” The motion further provided “[t]hat defendant’s attorney needs to talk to Bradley and Miles in order to ascertain if they would be useful as witnesses for defendant” and that the defendant’s investigator has been informed that both men will be out of State on an Army training assignment and will not return prior to 18 October 1982. This final motion for a continuance was denied.

Ordinarily, a motion for a continuance, absent an abuse of discretion, is not reviewable. State v. Smathers, 287 N.C. 226, 214 S.E. 2d 112 (1975). Yet if the motion is based on a constitutional right, denial of the motion presents a question of law, and not one of discretion, and is reviewable. State v. McFadden, 292 N.C. 609, 234 S.E. 2d 742 (1977). Nevertheless, regardless of its nature, denial of a motion for a continuance is grounds for a new trial [779]*779only upon a showing that the denial was error and that the defendant has been prejudiced by it. State v. Lee, 293 N.C. 570, 238 S.E. 2d 299 (1977). The defendant alleges in his brief that because the trial court refused to grant his motion for a continuance he was denied his constitutional right to the effective assistance of counsel and his constitutional right to due process of law. He attempts to establish that the denial of this motion denied him “the opportunity to develop and present a potential defense.”

We find this case to be similar to State v. Searles, 304 N.C. 149, 282 S.E. 2d 430 (1981), where the defendant alleged he had been denied the effective assistance of counsel by the trial court’s order granting him a continuance of only two days. In Searles, counsel was assigned to the defendant’s case on 15 September 1980 and the case was originally calendared for 10 November 1980. The court even after having acknowledged that “the constitutional guarantees of assistance of counsel and confrontation of witnesses include the right of a defendant to have a reasonable time to investigate and prepare his case,” stated that “[a]s a general matter ... it is clear that defense counsel had more than ample time to confer with his client and any possible witnesses.” Id. at 153-54, 282 S.E. 2d at 433. The court also found that it could not say as a matter of law that the trial court on the day the case was called for trial erred in not granting “a longer continuance for the purpose of locating a potential alibi witness.” Id. at 154, 282 S.E. 2d at 434. (Emphasis in original.) Similarly, in the present case, defense counsel was appointed on 1 July 1982 and the case was finally calendared on 18 October 1982. Four days prior to trial, defense counsel also moved for a continuance in order to locate and to interview “potential” alibi witnesses. In the present case and in Searles, neither defense counsel made a meaningful attempt to inform the court the nature or contents of the potential alibi witnesses’ testimony so as to provide the trial judge with a basis for determining whether the testimony would be material. Quoting 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), the Searles court stated that the defendant’s motion

for continuance is not supported by affidavit or other proof. In fact, the record suggests only a natural reluctance to go to trial and affords little basis to conclude that absent witnesses, if they existed, would ever be available. We are left [780]*780with the thought that defense counsel suffered more from lack of a defense than from lack of time. ‘Continuances should not be granted unless the reasons therefor are fully established. Hence, a motion for a continuance should be supported by an affidavit showing sufficient grounds. State v. Gibson, 229 N.C. 497, 50 S.E. 2d 520 (1948).’ State v. Stepney, 280 N.C. 306, 185 S.E. 2d 844 (1972).

Id. at 155, 282 S.E. 2d at 434. In the present case, defendant provided no such affidavit. In his motion and on appeal, he has offered no additional information as to when these potential witnesses would be available in order to justify a further delay.

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Related

State v. Parks
336 S.E.2d 424 (Court of Appeals of North Carolina, 1985)

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Bluebook (online)
310 S.E.2d 381, 65 N.C. App. 776, 1984 N.C. App. LEXIS 2788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ford-ncctapp-1984.