State v. Smith

• Decision Date: 31 December 2002
• Docket Number: No. COA01-1360.,COA01-1360.
• Citation: State v. Smith, 573 S.E.2d 618, 155 N.C. App. 500 (N.C. App. 2002)
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. James Ben SMITH.

573 S.E.2d 618

155 NC App. 500

STATE of North Carolina v.James Ben SMITH.

No. COA01-1360.

Court of Appeals of North Carolina.

December 31, 2002.

Attorney GeneralRoy Cooper by Assistant Attorney GeneralPhilip A. Lehman, for the State.

Adrian M. Lapas, Goldsboro, for defendant-appellant.

McGEE, Judge.

James Ben Smith(defendant) was arrested on 2 July 2000 and counsel was appointed to represent him on 3 July 2000.Defendant's counsel withdrew on 5 July 2000 due to an ethical conflict and James S. Perry(Perry) was appointed to represent defendant.Defendant was indicted on 11 December 2000 for armed robbery, assault with a deadly weapon inflicting serious injury, three counts of possession with intent to sell and deliver a controlled substance, sale of a controlled substance, keeping and maintaining a building for the use of controlled substances, and possession of a firearm by a convicted felon.

Perry appeared in court on 9 February 2001 and asked to withdraw as defendant's counsel because he believed defendant intended to file a malpractice action against him.Perry was allowed to withdraw and Nick Harvey(Harvey) was appointed to represent defendant.Defendant's trial was continued to the 5 March 2001 session of superior court.Harvey and defendant appeared in court on 5 March 2001 and Harvey moved to continue the case and to withdraw as counsel.The trial court denied both motions.

The evidence presented at trial tended to show that Bill Berger(Berger) and Cheree Chadwell(Chadwell) visited defendant's unlicensed bar in Pink Hill, North Carolina on 2 July 2000"to get some weed."Defendant's premises consisted of a cinder block building containing a couple of sofas, a big screen television, a bar, and two pool tables.The building did not contain a bedroom, bed, shower facilities, or any clothing belonging to defendant.

Berger waited in the car while Chadwell entered the building and asked if anyone had any "reefer."Defendant went into the bathroom and retrieved a bag of marijuana that he sold to Chadwell.After completing the transaction, Chadwell asked defendant if Berger could come inside and defendant said yes.Chadwell went to the door and allowed Berger to enter the premises.

A few minutes after Chadwell entered, Anna Higuera(Higuera), defendant's daughter, entered the building.When she saw Berger, Higuera told defendant that there might be trouble because of a previous confrontation between her and Berger.Higuera told defendant that Berger had threatened "to rip my face off" during an argument over a dog she had given Berger.Defendant approached Berger and asked him about his threats to Higuera.Berger made a snide retort to defendant and defendant backhanded him several times.Defendant picked up a pistol, pointed it at Berger, and hit him in the head with the barrel of the gun several times.

Defendant asked Berger if he had any money and he told Berger to put his cash on the pool table.Defendant told his daughter to take the amount of money that Berger owed her and she picked up thirty dollars.Defendant asked Berger if he would like to make a donation to the Society for the Prevention of Cruelty to Animals (SPCA).Berger replied that he would and he allowed defendant to decide the amount.Defendant removed a one hundred dollar bill from the pile of cash and wrote "SPCA" on the bill.Defendant hit Berger a few more times and ordered him to leave the premises.

Berger went to a friend's house and called the Lenoir County Sheriff's Department.Detective Jeffrey Herring(Herring) testified that he took Berger to a hospital emergency room for medical treatment after interviewing him.Berger suffered cuts to his nose and ears and heavy bruises to his jaw, cheeks, and the back of his head.Herring obtained a search warrant for defendant's premises later that evening.

Herring and four other officers arrived at defendant's building around 11:15 p.m. to conduct a search of the premises.The officers knocked and identified themselves, did not receive an answer, and then forcefully entered the building.The officers found defendant and several other men lying on the floor.A bag containing 7.9 grams of marijuana was recovered in defendant's immediate proximity and a box containing bags of marijuana and a handgun was found on a couch in the same room.The officers removed keys and $1,051.00 in cash from defendant's pockets.They used the keys to open the women's bathroom, where they found a bag containing half a pound of marijuana, bags containing methamphetamine mixed with cocaine, syringes, rolling paper, handgun ammunition, and a box containing a bloodstained one hundred dollar bill.Captain Christopher Hill of the Lenoir County Sheriff's Department testified that there were no items of personal clothing, no bed, or other indication that the building was being used by someone as a home.

Defendant testified that his establishment was similar to a "hunt club" or "pool club."He acknowledged that he kept alcohol on the premises and that people at the establishment helped pay for it.Defendant testified that he became angry at Berger, backhanded him, pointed a pistol at him, and may have hit him with the pistol.He also testified that he took a one hundred dollar bill from Berger and that the blood found on the bill was the result of his beating Berger.

A jury found defendant guilty of robbery with a firearm, assault with a deadly weapon inflicting serious injury, possession of cocaine with intent to sell, possession of methamphetamine with intent to sell, possession of marijuana with intent to sell, selling marijuana, intentionally keeping or maintaining a building which is used for the purpose of unlawfully keeping or selling controlled substances, and possession of a handgun by a convicted felon.Defendant was sentenced to a minimum of 117 months and a maximum of 150 months in prison for robbery with a firearm, a minimum of 46 months and a maximum of 65 months in prison for assault with a deadly weapon inflicting serious injury, and a minimum of 20 months and a maximum of 24 months for possession of a firearm by a felon.Defendant also was sentenced to a total minimum of 14 months and a maximum of 17 months for possession of cocaine, methamphetamine, and marijuana with intent to sell and a total minimum of 14 months and a maximum of 17 months for the sale of marijuana and maintenance of a place for unlawfully keeping or selling controlled substances.Defendant appeals.

Defendant first argues the trial court abused its discretion and denied defendant's sixth amendment right to effective assistance of counsel under the United States Constitution when the trial court denied defendant's motion for a continuance.Defendant contends that twenty-one days was insufficient time for defendant's attorney to adequately prepare for trial.

The right to the assistance of counsel and the right to face one's accusers and witnesses with other testimony are guaranteed by the Sixth Amendment to the Federal Constitution which is made applicable to the States by the Fourteenth Amendment, and by Article I, Sections 19and23 of the Constitution of North Carolina.The right to the assistance of counsel includes the right of counsel to confer with witnesses, to consult with the accused and to prepare his defense.

State v. Cradle,281 N.C. 198, 208, 188 S.E.2d 296, 302-03, cert. denied,409 U.S. 1047, 93 S.Ct. 537, 34 L.Ed.2d 499(1972).

It is well-established that a motion to continue is ordinarily addressed to the trial judge's sound discretion and his ruling thereon will not be disturbed except upon a showing of abuse of discretion.However, when a motion to continue is based on a constitutional right, the question presented is a reviewable question of law.

State v. Poole,305 N.C. 308, 318, 289 S.E.2d 335, 341-42(1982)(citations omitted).The defendant must specifically demonstrate how his case would have been better prepared had the continuance been granted or show that he was materially prejudiced by the denial of the motion.State v. Covington,317 N.C. 127, 130, 343 S.E.2d 524, 526(1986);seeCradle,281 N.C. at 208, 188 S.E.2d at 303(stating that a motion for continuance should be supported by an affidavit setting forth the grounds for a continuance).

Defendant cites State v. Rogers,352 N.C. 119, 529 S.E.2d 671(2000), in support of his argument.In Rogers, our Supreme Court granted the defendant a new trial because his newly appointed counsel received only thirty-four days to prepare for a bifurcated capital trial after withdrawal by previous counsel.Id. at 125, 529 S.E.2d at 675-76.The Rogers case was particularly complex with multiple incidents occurring over several days.Id.The Court found that the defendant's counsel had not interviewed witnesses, submitted a jury questionnaire for distribution, or responded to orders issued in pre-trial rulings.Id.Our Supreme Court stated that it was unreasonable to expect any attorney to be adequately prepared to try a bifurcated capital case with numerous witnesses in only thirty-four days.Id.

The Rogers case is distinguishable from the case before us.Defendant's case did not possess the degree of complexity as the issues in Rogers.This was not a capital case and there were a limited number of witnesses testifying at trial.Furthermore, the timeline in the case before us did not prevent defendant's counsel from following basic pretrial procedures.

Defendant offered no supporting affidavit or other evidence at trial to demonstrate the need for a continuance.Defendant also fails to show how his case would have been better prepared had a continuance been granted or that he was materially prejudiced by denial of his motion for a continuance.Defendant argues that he could have testified more effectively had he been granted a continuance.His argument is insufficient to warrant a new trial, especially in light of his lack of cooperation...