Appeal by defendant from Rousseau, Judge. Judgments entered 5 June 1981 in Superior Court, Guilford County. Heard in the Court of Appeals 10 March 1982.
Hill, Judge. Judges Wells and Becton concur.
The State's evidence tends to show that on 21 November 1971, Gail Cotter Murphy lived in an apartment which constituted the second floor of a two-story brick house owned by Greensboro College. Miss Murphy rose late that morning and went to work as the college's assistant director of admissions without eating breakfast or showering. She returned to her apartment at approximately 12:30 p.m. to shower and eat lunch. After her shower, Miss Murphy, dressed only in a towel, saw a black male standing on the roof of the house looking inside. Miss Murphy next saw the black male, whom she identified as defendant, inside her apartment. She said, "Who are you, what do you want?" Defendant replied, "I'm looking for a book store." Miss Murphy directed defendant to the college library, and he left through the back door. As she went to put on her bathrobe, Miss Murphy testified, "I ran into this young black man with the butcher knife in his hand raised." Defendant told her, "I'll hurt you, shut up. Get those glasses off. Get back to that bed." Defendant then began pulling on Miss Murphy's towel and eventually pushed her onto a love seat in the bedroom. Miss Murphy screamed "bloody murder", and defendant jumped back, dropped the knife, and ran out of the apartment. Defendant offered no evidence.
In defendant's first assignment of error, he argues that the trial judge erred in denying his motion for a continuance in order to allow the counsel of his choice to prepare his defense. On 3 June 1981, defendant's case was called for trial. The public defender, then representing defendant, informed the trial judge that defendant's mother had indicated a desire to retain private counsel. In fact, on that date, another attorney was retained to represent defendant. The record indicates that defendant's mother had been in contact with the privately retained attorney "for two or three weeks," and that the Commission on Racial Justice paid a part of the retainer fee.
The public defender moved to withdraw from the case saying, "There has been some friction in this case between myself and [defendant] all along in terms of trial tactics, . . . I think they would be much happier with [the privately retained counsel]." The privately retained counsel moved for a continuance to prepare the case for trial. However, the trial judge stated the following:
Now, I'm not going to continue this case for you to go out and employ a lawyer. The case is set for trial the first thing in the morning. . . .
Defendant indicated that he had rather represent himself, but he advised the judge on the following morning that he had elected to proceed with the public defender.
The rule is firmly established that a motion to continue ordinarily is addressed to the sound discretion of the trial judge, and his ruling thereon is not subject to appellate review unless it is shown that the judge abused that discretion. "But when 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 decision of the court below is reviewable." State v. Smathers, 287 N.C. 226, 230, 214 S.E.2d 112, 114-15 (1975).
Justice Ervin, speaking for the court in State v. Speller, 230 N.C. 345, 53 S.E.2d 294, unequivocally declared: "Both the State and Federal Constitutions secure to every man the right to be defended in all criminal prosecutions by counsel whom he selects and retains. N.C. Const., Art. I, sec. 11; U.S. Const., Amend. XIV." The United States Supreme Court recognized this constitutional right in Powell v. Alabama, 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55, with this language: "It is
hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice."
State v. McFadden, 292 N.C. 609, 611, 234 S.E.2d 742, 744 (1977). Thus, the denial of defendant's motion in this case presents a constitutional question ...