Opinion
No. COA09-829.
Filed March 2, 2010.
Buncombe County Nos. 07 CRS 61721, 07 CRS 61722, 08 CRS 1.
Appeal by defendant from judgment signed 30 April 2008 by Judge James L. Baker, Jr. in Buncombe County Superior Court. Heard in the Court of Appeals 25 January 2010.
Roy Cooper, Attorney General, by John P. Barkley, Assistant Attorney General, for the State. Charlotte Gail Blake, for defendant-appellant.
Defendant was indicted for felony possession of cocaine, possession of drug paraphernalia, and attaining the status of habitual felon. The charges were consolidated for trial. Defendant was found guilty by a jury of both underlying charges. During the next phase of the bifurcated proceeding, defendant was found guilty of having attained the status of habitual felon. Upon finding that defendant had a prior record level of II, the trial court sentenced her to 100 months minimum to 129 months maximum in custody of the Department of Correction. Defendant filed written notice of appeal on 12 May 2008.
On 22 September 2007, a police officer stopped a man driving a tan sports utility vehicle who had committed at least two traffic offenses witnessed by the officer. Defendant was a passenger in the vehicle. The officer learned that the vehicle belonged to a rental car agency. The driver indicated that the vehicle had been rented by defendant. An officer asked defendant for permission to search for the rental paperwork. Defendant consented. The officer searched a sunglasses case reachable from the driver's seat. In the sunglasses case, the officer discovered defendant's driver's license and a substance that appeared to be crack cocaine. After discovery of the cocaine, the officers arrested the driver and defendant and searched the passenger area of the vehicle. There were some "crumbs" on the driver's seat which tested positive for crack cocaine and another "crack rock" in the driver's seat buckle. In the back seat, the officers found a set of digital scales inside a child's shoe in a shoe box. The evidence was bagged and defendant and the driver were transported to the Buncombe County Detention Center.
When the case was called for trial on 29 April 2008, defendant's counsel moved for a continuance because defendant "indicated that she has explored the possibility of retaining other counsel . . . but has been unable to do that at this time" and because of "some lack of preparation on [his] part." Counsel stated that he felt "a little underprepared" with regard to this case. This motion was denied. At trial, defendant's counsel objected to the testimony about the search of the sunglasses case, contending that it exceeded the scope of the consent defendant had given the officer to search for the rental papers. The trial court held that the objection, "which would have the effect of being a motion to suppress," could not be properly considered by the court as it was not submitted prior to trial and special circumstances did not exist. Therefore, the court overruled the objection.
The jury found defendant guilty on the underlying charges, and the State proceeded to offer evidence in support of its allegation that defendant was a habitual felon. The State submitted certified true copies of three judgments. Defendant objected to one of the exhibits, which listed a different name and birthday. Over defendant's objection, the State also introduced the testimony of John Constantine, an investigator with the district attorney's office who was certified to access the National Criminal Information Center ("NCIC"), and the NCIC criminal history report for defendant. The jury found defendant guilty of attaining the status of habitual felon.
Defendant's counsel filed a written Notice of Appeal which had as its caption the correct numbers for the underlying charges, but which had the incorrect number for the habitual felon charge. The correct indictment and jury verdict appear in the record. Defendant has filed a petition for a writ of certiorari, in the event defendant, by her error, has not preserved her right to appeal her status as a habitual felon. "To the extent that this error casts any doubt on our jurisdiction, we exercise our discretion and grant certiorari to review [defendant's] claims on their merits. . . ." Cox v. Steffes, 161 N.C. App. 237, 241, 587 S.E.2d 908, 911 (2003) (granting certiorari when plaintiff's notice of appeal "was served and filed with the clerk's office within the required time limitations, but, due to a clerical error by plaintiffs' counsel as to the case number, was not filed in the proper folder"), supersedeas denied, 358 N.C. 233, 595 S.E.2d 148 (2004).
Defendant's first assignment of error relates to the trial court's denial of her trial counsel's motion to continue. She alleges that failure to grant the motion to continue denied her effective assistance of counsel. "A motion for a continuance is ordinarily addressed to the sound discretion of the trial court, and the ruling will not be disturbed absent a showing of abuse of discretion." State v. Blakeney, 352 N.C. 287, 301, 531 S.E.2d 799, 811 (2000), cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001). "When a motion to continue raises a constitutional issue, however, the trial court's ruling thereon involves a question of law that is fully reviewable on appeal. . . ." Id. at 301-02, 531 S.E.2d at 811. "The denial of a motion to continue, even when the motion raises a constitutional issue, is grounds for a new trial only upon a showing by the defendant that the denial was erroneous and also that his case was prejudiced as a result of the error." State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982).
Our Supreme Court has stated,
A continuance ought to be granted if there is an apparent probability that it will further the ends of justice. Consequently, a postponement is proper where there is a belief that material evidence will come to light and such belief is reasonably grounded on known facts. But a mere intangible hope that something helpful to a litigant may possibly turn up affords no sufficient basis for delaying a trial to a later term.
State v. Gibson, 229 N.C. 497, 502, 50 S.E.2d 520, 524 (1948). Defendant argues that the denial of her motion was error because the nature of the habitual felon charge made the case complex and because of her attorney's unreadiness to try the case.
As to counsel's self-stated lack of preparedness, this Court has said, "The constitutional right to assistance of counsel necessarily includes that counsel should have a reasonable time to prepare for trial. However, no set length of time . . . is required and whether defendant is denied due process must be determined upon the basis of the circumstances in each case." State v. Moore, 39 N.C. App. 643, 646-47, 251 S.E.2d 647, 649, appeal dismissed, 297 N.C. 178, 254 S.E.2d 39 (1979). In addition, N.C.G.S. § 15A-952(g) states that a 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) (2009). Although the trial court does not specifically state that it considered this issue, it is clear from the record that the trial court considered the date defendant was charged and indicted, the fact counsel was defendant's third appointed counsel, the date upon which her current attorney was appointed, the complexity of the charges, and whether there were sufficient grounds or cause to continue. "Continuances should not be granted unless the reasons therefor are fully established. Hence, a motion for continuance should be supported by an affidavit showing sufficient grounds." State v. Stepney, 280 N.C. 306, 312, 185 S.E.2d 844, 848 (1972). In his motion for a continuance, defendant's counsel stated orally only that his request was appropriate because defendant "indicated that she has explored the possibility of retaining other counsel . . . but has been unable to do that . . ." and because of "some lack of preparation on my part." We conclude that these statements were not a sufficient basis to establish grounds for a continuance, and the trial court did not err in denying defendant's motion to continue.
Defendant next contends her constitutional rights to confront the witnesses against her were violated by the introduction of the NCIC reports and the testimony of John Constantine, an investigator with the district attorney's office. However, we need not reach this contention as we conclude there was sufficient prima facie evidence of defendant's prior convictions which led to the jury finding her guilty of attaining the status of habitual felon. Therefore, any constitutional error would be harmless beyond a reasonable doubt. See N.C. Gen. Stat. § 15A-1443(b) (2009).
Defendant contends the State's evidence, the certified true copies of the prior convictions, is flawed because the names on the convictions do not match. N.C.G.S. § 14-7.4 states that a "certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court." The names on two of the certified copies of defendant's prior convictions read "Shenequia Jones aka Rashedia Greene" and "Jones, Rashidah, Muhammad, Gree." Defendant admits in her brief that the name on the third conviction is "Rashidah Muhammad Greene." Defendant's indictment for attaining the status of habitual felon reads "Rashidah Muhammad Greene, AKA: Sheneqia Jones, Rashedia Greene, Rashidah Muhammad Gree Jones." Thus, the names on the prior convictions match the name on defendant's indictments. In addition, this Court has held that minor clerical errors alone do not render evidence incompetent. State v. Safrit, 154 N.C. App. 727, 729-30, 572 S.E.2d 863, 866 (2002) (holding that there was no error although one of defendant's prior convictions read "Howard Safriet, W, M." instead of "Howard Safrit"), disc. review denied, 357 N.C. 65, 579 S.E.2d 571 (2003). Therefore, we overrule these assignments of error.
No error.
Judges HUNTER and ERVIN concur.
Report per Rule 30(e).