State v. Lowery

Court of Appeals of North Carolina

State v. Lowery

197 S.E.2d 27, 18 N.C. App. 485, 1973 N.C. App. LEXIS 1913

CourtCourt of Appeals of North Carolina

DecidedJune 13, 1973

DocketNo. 7313SC395

StatusPublished

This text of 197 S.E.2d 27 (State v. Lowery) 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. Lowery, 197 S.E.2d 27, 18 N.C. App. 485, 1973 N.C. App. LEXIS 1913 (N.C. Ct. App. 1973).

Pincite

Opinion

HEDRICK, Judge.

Defendant assigns as error the denial of his motion for a continuance.

Ostensibly, defendant sought a continuance in order to obtain the presence of Billy Inman as.a witness; however, the motion to continue was not supported by affidavits setting forth the reasons for the motion or detailing what steps had been taken to secure his presence as a witness. Indeed, in response to questioning by the solicitor, defendant stated:

“I did not tell Billy Inman that I was going to be tried this week and I have not subpoenaed him. I thought he would come on his own.”

A motion for a continuance is addressed to the sound discretion of the trial judge and his ruling thereon will not be disturbed on appeal absent a showing of such abuse of discretion as would deprive a defendant of a fair trial. State v. Holloway [487]*487and State v. Jones, 16 N.C. App. 266, 192 S.E. 2d 75 (1972). Defendant has failed to show an abuse of discretion by the trial judge in the denial of his motion for a continuance.

Defendant contends the trial court erred in allowing Officer Canipe to testify, over defense objection, “as to the contents of a conversation had with the defendant at the time of his arrest without any evidence that the defendant was warned of his Constitutional Rights. . . .”

Suffice it to say, the challenged testimony concerned voluntary statements allegedly made by defendant when the officer issued him a citation and did not result from custodial interrogation. Therefore, it was not incumbent upon the officer to administer the “Miranda warnings,” State v. Hayes, 273 N.C. 712, 161 S.E. 2d 185 (1968); State v. Tessenar, 15 N.C.App. 424, 190 S.E. 2d 313 (1972) ; and the court did not err in admitting this testimony into evidence.

Defendant had a fair trial free from prejudicial error.

No error.

Judges Campbell and Vaughn concur.

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