State v. Thomas

• Decision Date: 24 January 1978
• Docket Number: No. 104,104
• Citation: State v. Thomas, 240 S.E.2d 426, 294 N.C. 105 (N.C. 1978)
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Johnny Lowell THOMAS.

Page 426

240 S.E.2d 426

294 N.C. 105

STATE of North Carolina v. Johnny Lowell THOMAS.

No. 104.

Supreme Court of North Carolina.

Jan. 24, 1978.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.

Stephen G. Royster, Mount Airy, for defendant-appellant.

MOORE, Justice.

Defendant's first assignment of error is based on the contention that the trial judge erred in denying his motion for continuance for purposes of obtaining further psychiatric examination to determine his sanity.

Defendant was arrested on 4 October 1976. On 26 October 1976 counsel for defendant filed a motion requesting that defendant be committed to Dorothea Dix Hospital for evaluation to determine defendant's capacity to proceed to trial as well as his sanity at the time of the commission of the crime. This motion was granted and defendant underwent examination for two weeks at Dix Hospital. In a Diagnostic Conference Report filed by Billy W. Royal, M.D., dated 16 November 1976, the physician determined that the defendant was mentally capable of proceeding to trial. The defendant was also found to have reduced responsibility at the time of the crime, this being related to significant alcoholic ingestion.

On 22 December 1976 counsel for the defendant moved that defendant be recommitted to Dorothea Dix Hospital for further examination due to the initial examining physician's failure to give his opinion as to defendant's ability to distinguish between right and wrong. This motion was granted and defendant was recommitted to Dix Hospital. In a Diagnostic Conference Report filed 21 January 1977 by Bob Rollins, M.D., that physician stated that the defendant was able to plan and carry out goal-directed activity even though intoxicated, and that defendant met the minimum criteria for premeditation and deliberation. In his opinion the defendant did have diminished responsibility at the time of the offense, this being due to intoxication.

On 15 February 1977 defendant filed a motion for continuance on the ground that he had an appointment on 27 March 1977 to be examined by a private psychiatrist. At the March Term of Surry Superior Court defendant's case was continued until the May Term.

On 28 March 1977 defendant was examined by a private psychiatrist, J. Ray Isreal, M.D., and by a psychologist, Dr. David A. Hill, of the Bowman Gray School of Medicine. Dr. Hill administered certain uniform tests to defendant and submitted his findings to Dr. Isreal on 4 April 1977. The psychologist found that defendant's test scores were within normal limits and were above average in terms of intellectual functioning. The defendant was found to be impulsive and hostile. The psychologist suggested that an electroencephalogram test (EEG), or brain wave test, might possibly resolve questions as to whether or not defendant had suffered cerebral insult, but added that even if such condition were found it would not necessarily interfere with defendant's ordinary daily functioning.

For reasons not apparent from the record, Dr. Isreal did not submit a written evaluation to defendant's counsel until 25 April 1977. In Dr. Isreal's opinion the defendant had sufficient mental capacity to stand trial. He also found no evidence that the defendant suffered from a thought disorder. The defendant was found, however, to suffer from alcoholism, and was found likely to act impulsively, especially when intoxicated. Pursuant to the suggestion by Dr. Hill, Dr. Isreal recommended that the defendant have an electroencephalogram to determine if there had been ". . . prior cerebral insult which may have affected areas of the brain which might reduce impulse control and further contribute to his loss of impulse control when under the influence of alcohol. It is conceded that electroencephalographic examination probably would not help clarify this question. . . ."

On 28 April 1977 defendant moved for a continuance so that he might have an EEG examination as recommended by Dr. Isreal. This motion was denied by Seay, J., and defendant proceeded to trial at the 2 May 1977 Term of Surry Superior Court.

A motion for continuance is ordinarily addressed to the sound discretion of the trial court and its ruling is not subject to review absent abuse of discretion. State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976); State v. Smathers, 287 N.C. 226, 214 S.E.2d 112 (1975); State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974). However, if the motion is based on a right guaranteed by the federal and State constitutions, the question presented is one of law and not of discretion, and the ruling of the trial court is reviewable on appeal. State v. Brower, supra ; State v. Harrill, 289 N.C. 186, 221 S.E.2d 325 (1975); State v. Smathers, supra. Whether a defendant bases his appeal upon an abuse of judicial discretion or a denial of his constitutional rights, he must show both that there was error in the denial of the motion and that he was prejudiced thereby before he will be granted a new trial. State v. Robinson, 283 N.C. 71, 194 S.E.2d 811 (1973); State v. Moses, 272 N.C. 509, 158 S.E.2d 617 (1967). Defendant urges both abuse of discretion and denial of his constitutional rights as error.

We first take up the issue whether there was an abuse of the trial judge's discretion in denying defendant's motion. At the pretrial hearing on defendant's motion on 2 May, the following occurred:

"COURT: That motion is denied. In denying the motion I make the finding that the record reflects and the statement of counsel reflects that the defendant was arrested on October 1976, and had counsel appointed October of 1976, and that at the January Session of the Superior Court of Surry County, the defendant moved to continue the case, requesting that the accused or the defendant be sent for a second examination at the Dorothea Dix Hospital, that the request to the trial judge that the defendant be sent for an examination was denied and that counsel then contacted the resident judge, James Long, who agreed to sign the order sending the defendant for the second examination and motion for the defendant to continue the case was then granted, this event having occurred January 5, 1977. And the defendant has had more than an adequate time and opportunity to secure examination.

"MR. ROYSTER: Your Honor, if I may say this, I might have misled your Honor, my client was sent twice to Dorothea Dix and this is a private psychiatrist that examined the defendant March the 21st, or 22nd.

"COURT: Well, I will find that you have had an opportunity to have it done since that time. That motion is denied."

Defendant argues that the trial judge erred in finding that defendant had an opportunity to have the desired examination, since he did not receive the report from Dr. Isreal recommending the examination until 25 April 1977, and his case was called for trial on 2 May 1977. Defendant argues that this alleged error constitutes abuse of discretion. We do not agree.

The trial court found that the defendant had been arrested in October 1976. He was sent to Dix Hospital for psychiatric examination in November 1976. At the January Session of Surry Superior Court defendant moved for, and was granted, a continuance of his trial so that he could be examined a second time by a different physician at Dix Hospital. The results of this examination were similar to those of the initial examination a finding that defendant was capable of proceeding to trial and capable of premeditation and deliberation. A second motion for continuance was made in February 1977 so that defendant might be examined a third time, and defendant's case was again continued and set for the May Term. Defendant was examined by Drs. Isreal and Hill the last week in March, and as early as 4 April 1977 Dr. Hill made his recommendation to Dr. Isreal that the defendant undergo an EEG examination. Defendant's counsel apparently did nothing between the date of examination and 25 April (the date he alleges he first heard from Dr. Isreal) to find out if further examinations would be necessary before the trial in May.

Clearly, on these facts, the trial judge would be justified in his discretionary denial of a last minute motion for continuance. The defendant had had two prior continuances; had undergone four psychiatric examinations by four different doctors, all of whom had similar opinions regarding defendant's mental condition; and those doctors who recommended the EEG examination stated that it probably would yield no new information. No abuse of discretion has been shown.

We now turn to the contention that the denial of the motion for a continuance was a denial of defendant's constitutional rights. In State v. Smathers, 287 N.C. 226, 214 S.E.2d 112 (1975), this Court, quoting from State v. Farrell, 223 N.C. 321, 26 S.E.2d 322 (1943), said "The authority to rule a defendant to trial in a criminal prosecution attaches only after the constitutional right of confrontation has been satisfied. The question is not one of guilt. Nor does it involve the merits of the defense he may be able to produce. It is whether the defendant has had an opportunity fairly to prepare his defense and present it . . . .

" 'The rule undoubtedly is, that the right of confrontation carries with it, not only the right to face one's "accuser and witnesses with other testimony" (N.C.Const. art. I, sec. 23 (1971)), but also the opportunity fairly to present one's defense. . . .' "

See State v. Cradle, 281 N.C. 198, 188 S.E.2d 296 (1972); State v. Lane, 258 N.C. 349, 128 S.E.2d 389 (1962). And, as we said in State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970): "Due process requires that every defendant be allowed a reasonable time and opportunity to investigate and produce competent evidence, if he can, in defense of the crime with which he stands charged and to confront his accusers with other testimony. (Citations omitted.)"

The specific question...