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North Carolina v. Rotenberry

Filed: November 17, 1981.

STATE OF NORTH CAROLINA
v.
CLIFFORD ROTENBERRY, AKA JOHNNY LEE DUNN



Appeal by defendant from Lane, Judge. Judgments entered 17 October 1980 in Superior Court, Duplin County. Heard in the Court of Appeals 21 October 1981.

Martin (Robert M.), Judge. Judges Webb and Wells concur.

Martin

Defendant has brought forward on appeal all forty-one of his assignments of error and has incorporated them into nine arguments.

Defendant first assigns error to the trial court's allowance of the State's motion to continue his probable cause hearing. The hearing was initially scheduled for 12 August 1980. At approximately 3:10 p.m. on said date, the State moved for a continuance on the basis that none of the State's witnesses was present. The trial court allowed the motion after finding that an extraordinary cause had been shown which justified the continuance. The court noted that 140 cases were on the 12 August 1980 calendar; that it was after 4:00 p.m. and that there was insufficient time to hold probable cause hearings on the eight cases against defendant. The hearing was thereafter held two days later. Defendant contends in his brief that neither the reason given by the State nor the findings in the trial court's order granting the continuance constitutes an extraordinary cause as defined in G.S. 15A-606. He further contends that the State's motion was untimely. G.S. 15A-606(f) provides:

Upon a showing of good cause, a scheduled probable-cause hearing may be continued by the district court upon timely motion of the defendant or the State. Except for extraordinary cause, a motion is not timely unless made at least 48 hours prior to the time set for the probable-cause hearing.

It is the trial court's duty to determine good cause and extraordinary cause. State v. Siler, 292 N.C. 543, 234 S.E.2d 733 (1977). We find no error in the trial court's determination in the case at bar. Even if the continuance was erroneously granted, defendant failed to show any prejudicial effect from the two day delay.

We also find no merit to defendant's Assignments of Error Nos. 2, 3 and 7, which are based upon the trial court's denials of defendant's motions to dismiss. At the 14 August 1980 probable cause hearing, at the beginning of trial and at the close of all the evidence, defendant moved to dismiss the charges against him on the basis that his constitutional right to due process was violated when the probable cause hearing was continued. In State v. Foster, 282 N.C. 189, 192 S.E.2d 320 (1972), the Court held that neither the United States Constitution nor the North Carolina Constitution requires a preliminary hearing before a defendant may be prosecuted. This holding has been reaffirmed in State v. Lester, 294 N.C. 220, 240 S.E.2d 391 (1978), and the recent case of State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981). We further note that a probable cause hearing is unnecessary after the grand jury has returned indictments. State v. Foster, supra.

Assignments of Error Nos. 4 and 5 concern the admissibility of evidence involving a letter written to Ms. McMahon by defendant. Ms. McMahon testified that she had received three letters from defendant in the two months preceding his trial. The trial court allowed Ms. McMahon to read one of these letters to the jury. In the letter defendant confessed his love for her. Ms. McMahon then read the following to the jury:

Im (sic) facing 134 years. Baby, that is alot of time. If you care at all you will testify for me in Court. You want (sic) get into any trouble. I'm -- tell you everything to say, but then again you probably don't care. If you do you best get down here and see me. . . . Why, you don't know how much I'm hurt over all this shit and it's all my fault.

Defendant argues that te contents of this letter were immaterial to the charges against him and only prejudiced the minds of the jurors. We feel that defendant's letter to his girlfriend qualifies as an admission by defendant and is, therefore, competent evidence. State v. Edwards, 286 N.C. 140, 209 S.E.2d 789 (1974).

Notwithstanding our opinion, defendant has failed to show any prejudicial effect from the reading ...


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