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North Carolina v. Branch

Filed: June 2, 1982.


Before Judge Hollis M. Owens, Jr., presiding at the December 1980 Session of McDowell Superior Court, the defendant was convicted by a jury of felonious larceny in violation of G.S. 14-72(a) and sentenced to a term of imprisonment of not less than four years nor more than six years. The defendant's appeal to the Court of Appeals was dismissed due to late filing of the record on appeal. On 4 January 1982 the Court of Appeals, with Judge Clark dissenting, denied the defendant's petition for certiorari. The defendant's petition to this Court for writ of certiorari was allowed on 3 March 1982.

Mitchell, Justice.


The issues raised before this Court are whether the trial court erred by denying the defendant's motion for a continuance and by admitting into evidence the defendant's confession. We find that no prejudicial error occurred in the trial court.

The State's evidence at trial tended to show that on 23 June 1980 the garage supervisor of Ethan Allen, Inc., an industrial plant in Old Fort, North Carolina, found eleven truck tires of a

total value of approximately $1,700 missing from a company garage. He also found footprints leading away from the garage into a path nearby. Weeds in the path had been trampled and a barbed wire fence had been stretched down. One tire missing from the garage was found in a creek near the path. Two days later the defendant and his brother were stopped by Deputy Robert Smith and Lieutenant Jackie Turner of the McDowell County Sheriff's Department. At the time they were stopped, the defendant and his brother were driving a truck which had been seen at the plant on the day of the larceny. The deputes also had received information that the same truck had been used by individuals trying to sell tires to a nearby business. The truck belonged to the defendant's father who was an employee at the Ethan Allen Plant. The deputies advised the defendant and his brother that they were wanted for questioning and took them to the offices of the McDowell County Sheriff's Department. The defendant was advised of his constitutional rights as prescribed in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d. 694, 86 S. Ct. 1602 (1966) at approximately 7:45 p.m. and signed a written waiver form. After talking with Deputy Smith for a few minutes, the defendant was allowed at his own request to talk privately with his brother in a hallway. When the defendant returned, Deputy Smith received a call and had to leave the office. Lieutenant Turner had been questioning the defendant's brother. When Deputy Smith left the offices, Lieutenant Turner conducted the questioning of the defendant. Lieutenant Turner began questioning the defendant at approximately 9:00 p.m. and did not readvise the defendant of his rights under Miranda. The defendant made a statement at that time in the nature of a confession.

During the trial the defendant objected to any evidence being admitted concerning his confession. The trial court conducted a voir dire hearing and made findings of fact and conclusions of law. The trial court concluded that the defendant's confession was freely, knowingly and intelligently made and overruled the defendant's objection to the admission of the confession into evidence. Lieutenant Turner then testified that the defendant stated that he and his brother stole the tires from Ethan Allen, Inc. and attempted to sell them in Spruce Pine, North Carolina. The defendant told Lieutenant Turner that his father was not involved in the theft, expressing his concern that his father might

be investigated and might lose his job at Ethan Allen, Inc. Other facts arising from the State's evidence are set forth hereinafter in this opinion where pertinent.

The defendant presented no evidence.

The defendant first assigns as error the failure of the trial court to allow his motion to continue the trial of his case until certain witnesses could be contacted. The defendant failed to file his motion to continue within the time required by G.S. 15A-952(c). This failure to file the motion within the required time constituted a waiver of the motion. G.S. 15A-952(e). Thus, the question before us is whether the trial court abused its discretion by failing to exercise the power granted it by G.S. 15A-952(e) to grant the defendant relief from his waiver of his right to move for a continuance. We hold that the trial court did not abuse its discretion in this regard.

A motion for continuance, even when filed in a timely manner pursuant to G.S. 15A-952, is ordinarily addressed to the sound discretion of the trial judge whose ruling thereon is not subject to review absent an abuse of such discretion. State v. Weimer, 300 N.C. 642, 268 S.E.2d 216 (1980). This rule requiring the defendant to make a showing of abuse by the trial court in denying his motion for a continuance should be applied with even greater vigor in cases such as this in which the defendant has waived his right to make a motion to continue by failing to file the motion within the time prescribed by G.S. 15A-952.

An equally well-established rule, however, is that when a motion raises a constitutional issue, the trial court's action upon it involves a question of law which is fully reviewable by an examination of the particular circumstances presented by the record on appeal of each case. State v. Searles, 304 N.C. 149, 282 S.E.2d 430 (1981). The denial of a motion to continue, even when the motion raises a constitutional issue, is grounds for a new trial only upon a showing by the defendant that the denial was erroneous and also that his case was prejudiced as a result of the error. Id. The constitutional guarantees of due process, assistance of counsel and confrontation of witnesses unquestionably include the right of a ...

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