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North Carolina v. Pollock

Filed: April 6, 1982.

STATE OF NORTH CAROLINA
v.
FRANK E. POLLOCK, JR.



Appeal by defendant from Small, Judge. Judgment entered 2 May 1981 in Superior Court, Craven County. Heard in the Court of Appeals 3 March 1982.

Hedrick, Judge. Chief Judge Morris and Judge Vaughn concur.

Hedrick

The first assignment of error brought forth in defendant's brief is "[t]he Court's denial of defendant's Motion to Continue." Defendant argues that he was not informed until five days before trial that the State intended to use against defendant the testimony of an alleged co-participant in a scheme to illegally divert quantities of meat belonging to a hospital, and that the denial of his motion for continuance denied him his constitutional rights to the "production of witnesses, effective assistance of counsel, his right to cross examine State's witnesses and his right to confront his accusers."

Since defendant's motion for continuance is based on a right guaranteed by the Federal and State Constitutions, the decision of the trial judge is reviewable as a question of law. Thus, the question to be answered is: Did the refusal of the trial court to grant the [defendant's] motion for a continuance impinge upon his constitutional right of confrontation, in that it denied him a reasonable time within which to prepare and present his defense?

State v. Abernathy, 295 N.C. 147, 159, 244 S.E.2d 373, 381 (1978). "Continuances should not be granted unless the reasons therefor are fully established," State v. Rigsbee, 285 N.C. 708, 711, 208 S.E.2d 656, 658-59 (1974), and it is desirable that a motion for continuance be supported by an affidavit showing the grounds for continuance. State v. Rigsbee, supra. A continuance is proper if

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. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976).

In the present case, defendant had five days in which to prepare a trial strategy for confronting the testimony of the alleged co-participant. Defendant has made no showing that five days was an unreasonably short time to prepare for the adverse testimony. He has not provided an affidavit nor otherwise demonstrated that the additional time afforded by a continuance would have enabled him to secure specific material evidence with which to counteract the adverse testimony. The denial of the motion for continuance did not impinge upon defendant's constitutional rights of confrontation, and this assignment of error is overruled.

By his next assignment of error, defendant argues that the trial court erred in failing to inform the jury prior to the testimony of the alleged co-participant, Charles Koonce, that Koonce was testifying pursuant to an agreement with the State by which five of six charges against him would be dropped; defendant argues also that the trial court erred in not instructing the jury, in its final charge, on interested witnesses. It is defendant's contention that the agreement between Koonce and the State constituted a "grant of immunity" requiring, under G.S. § 15A-1052(c), the court to provide special information and instructions to the jury.

G.S. § 15A-1052(c) provides:

In a jury trial the judge must inform the jury of the grant of immunity and the order to testify prior to the testimony of the witness under the grant of immunity. During the charge to the jury, the judge must instruct the jury as in the case of interested witnesses.

The statutory "scrutiny" instruction is required, absent a special request by the defendant, only when a witness testifies under immunity. State v. Bogby, 48 N.C. App. 222, 268 S.E.2d 233 (1980). "[S]uch an instruction is not mandated under an arrangement ...


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