State v. Hicks ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-491
Filed: 20 October 2015
Avery County, No. 12 CRS 50584
STATE OF NORTH CAROLINA
v.
ERIC DOUGLAS HICKS
Appeal by defendant from judgment entered 19 August 2014 by Judge Gary M.
Gavenus in Avery County Superior Court. Heard in the Court of Appeals 8 October
2015.
Attorney General Roy Cooper, by Special Deputy Attorney General Joseph E.
Herrin, for the State.
Charlotte Gail Blake for defendant-appellant.
TYSON, Judge.
Eric Douglas Hicks (“Defendant”) appeals from judgment entered after a jury
convicted him of manufacturing methamphetamine and maintaining a dwelling for
the purpose of keeping methamphetamine. We find no error in Defendant’s
conviction or in the judgment entered thereon.
I. Factual Background
A. State’s Evidence
STATE V. HICKS
Opinion of the Court
In the fall of 2012, school resource officer Timothy Winters (“Officer Winters”)
received information from several students, who reported Jennifer McCoury
(“McCoury”) was making methamphetamine and smoking marijuana with her high-
school-aged son. Officer Winters shared this information with Avery County Sheriff’s
Deputy Casey Lee (“Officer Lee”). Officers verified the tip by conducting a “meth
check,” which showed McCoury had made multiple purchases of Sudafed, which
contains pseudoephedrine, the precursor chemical to methamphetamine.
Officer Lee and others went to McCoury’s home to “[c]heck on the safety” of her
children on 12 October 2012. No one was present at the residence when officers
arrived. Officer Lee testified “[t]here were signs of a meth lab” outside McCoury’s
home. Officer Lee and others subsequently went to Defendant’s residence to locate
McCoury and her children. The officers knew Defendant was the father of McCoury’s
daughter, who was six or seven years old at the time.
Officers announced themselves and knocked on Defendant’s door for
approximately fifteen minutes. No one answered. Officer Lee walked around the
house to the side door and noticed in plain view a trash can with two plastic bottles
“sticking up, [with] a drilled hole in the top of one of them” in plain view. Officer Lee
testified he “believed those bottles to be used to manufacture meth[,]” based on his
training and experience. He also observed “a white granular substance” was present
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Opinion of the Court
inside the bottles and stated the substance “[was] consistent with meth
manufacture.”
Defendant eventually answered the door and allowed the officers to walk
through his home to look for his daughter. Defendant also gave his consent for the
officers to search his house and property. The officers did not find anything illegal
during this initial search. Officer Lee inquired about the two plastic bottles he had
observed outside. Defendant “denied any knowledge” about them. Defendant was
arrested and transported to jail.
Officer Lee contacted Detective Frank Catalano (“Detective Catalano”) and
requested a search warrant for Defendant’s residence the following day. Detective
Catalano’s search warrant application sought authorization to destroy any hazardous
materials, if found, after the materials were “documented, photographed, and labeled
samples obtained for analysis.” This request was based on Detective Catalano’s
sworn search warrant application, which stated:
The Affiant knows that some or all of these chemicals and
substances pose a significant health and safety hazard due
to their explosive, flammable, carcinogenic, or otherwise
toxic nature. Additionally, the affiant knows that the
handling of hazardous clandestine laboratory materials
without proper expertise, supervision, and facilities has
caused, in the past, explosions[,] fires, and other events
that have resulted in injuries and severe health problems.
The trial judge authorized the search warrant later that day. Despite
Detective Catalano’s request for authorization to destroy hazardous materials within
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the application, the warrant did not contain a destruction order, nor was a destruction
order subsequently entered.
The search warrant was executed the same day it was issued. The following
items were seized from Defendant’s residence: (1) five bottles with a white substance;
(2) two bottles with liquid and a white substance; (3) an ice compress; (4) an empty
pack of lithium batteries; (5) a Methadone bottle; (6) an allergy medicine pack
(commonly referred to as a “blister pack;” and, (7) a cell phone.
Officer Lee testified, based on his training and experience, plastic bottles, such
as the ones found on Defendant’s property, are commonly used in a method of
methamphetamine manufacture known as the “one pot” method. Officer Lee stated
a second plastic bottle is used in the “one pot” method, as the hydrochloric gas, or
HCL, generator. A white residue is left behind after an HCL generator is used.
Officer Lee testified the white residue he observed in the plastic bottles found on
Defendant’s property was consistent with the typical white residue left behind after
an HCL generator is used to manufacture methamphetamine.
Officer Lee testified he searched for Defendant’s name on the National
Precursor Log Exchange (“NPLEx”) database after he left Defendant’s residence.
NPLEx is a “federal public registry” used to track an individual’s pseudoephedrine
purchases. He explained pseudoephedrine is “the main ingredient of
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Opinion of the Court
methamphetamine.” NPLEx was established “to make sure that people don’t buy
more [pseudoephedrine] than their allowed limits every month.”
Officer Lee printed out the log of Defendant’s pseudoephedrine purchases from
the NPLEx website. The report was offered and admitted into evidence as a business
record, over Defendant’s hearsay objection. The report indicated Defendant had
purchased pseudoephedrine six times at various locations in North Carolina and
Tennessee between January and September 2012.
Chip Hughes (“Agent Hughes”), State Bureau of Investigation (“SBI”)
clandestine laboratory unit site safety officer, arrived on the scene to process the
purported methamphetamine lab discovered at Defendant’s residence. Agent Hughes
testified to the dangers of placing hazardous items seized from a methamphetamine
lab into evidence storage, stating:
[E]ven though the bottle itself is no[t] producing gas at that
time, if something were to spill on it in the evidence vault,
or decay it may still produce gas even though it is in a
Ziploc bag or paper bag . . . and the gas will leak or build
up in those things and expose people to gas or in a case of
flammables if they become hazardous, they could ignite.
He further stated the destruction of hazardous materials seized from
methamphetamine labs is “a common practice across the state because . . . local
agencies don’t have the facilities or equipment to . . . adequately store these [items]
and protect themselves or others.”
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Opinion of the Court
Mike Piwowar (“Mr. Piwowar”), a forensic scientist with the North Carolina
State Crime Lab, was called to Defendant’s home after the search warrant was
executed to prepare an inventory of possible items used in manufacturing
methamphetamine and to take samples back to the lab for analysis. Mr. Piwowar
testified the residue in the two plastic bottles recovered from Defendant’s trash can
both tested positive for an acidic pH. This pH was consistent with residue found
inside an HCL generator used to manufacture methamphetamine.
Mr. Piwowar also testified “the bottoms of the [five other] bottles were missing
which indicates there was a very strong acid in there that burned the bottoms off.”
Mr. Piwowar explained this finding was consistent with usage in a
methamphetamine lab, because the chemicals used in the methamphetamine
manufacturing process are corrosive. Mr. Piwowar stated the other items seized from
Defendant’s residence were also consistent with items commonly used in
manufacturing methamphetamine.
Agent Hughes prepared the items seized, with the exception of the cell phone,
for transport and destruction after the bottles were tested for acidic content and
subsequent neutralization. On 11 March 2013, a grand jury indicted Defendant for
manufacturing methamphetamine, maintaining a dwelling used to keep controlled
substances, and possession of an immediate precursor used to manufacture
methamphetamine.
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B. Defendant’s Pre-Trial Motions
A month after the seizure, Defendant filed a motion on 14 November 2012 for
preservation of evidence seized. The trial court granted Defendant’s motion in open
court on 29 November 2012 and entered its order on 6 December 2012.
Defendant also filed a motion for sanctions against the State for destruction of
evidence on 12 June 2014, in connection with the items seized pursuant to the search
warrant. Defendant alleged his Due Process rights were violated because the State
“apparently destroyed the evidence seized without offering Defendant any
opportunity to view or test the items,” and despite the fact that he had obtained an
order to preserve the evidence seized from destruction.
The trial court made the following relevant findings of fact:
11. Investigator Catalano drafted an application for a
search warrant for the defendant’s residence based upon
the information provided to him by Deputy Lee and in such
application also requested a destruction order for any
hazardous materials.
....
13. Judge Ginn authorized the search warrant . . . .
....
16. That despite the request for a destruction order
contained within the search warrant application[,] a
destruction order was not entered by the Honorable C.
Phillip Ginn on October 13, 2012[,] and no subsequent
destruction order was ever entered.
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Opinion of the Court
17. That with the exception of the cell phone, the
destruction process was initiated pursuant to the belief
that such a destruction order was actually entered by
Judge Ginn on October 13, 2012.
18. That the court is unable based upon all of the evidence
presented by both the State and the Defendant to
determine the date upon which the items were destroyed.
....
22. The SBI agents and the officers of the Avery County
Sheriff’s Department had a good faith belief that the items
were to be destroyed and did not act in bad faith when they
initiated that destruction process.
23. The Defendant filed a Motion for Order Requiring
Preservation of Evidence Seized . . . on or about November
14, 2012.
24. That this Motion was filed some 30 days after the
destruction of the evidence seized had been initiated by the
SBI.
....
27. That the filed order was served upon the State by letter
dated December 10, 2012, the actual date of service being
unknown by the court[,] but the court notes that an
envelope admitted into evidence in this case indicates a
postmark date of December 21, 2012.
28. HCL generators are not regularly preserved.
29. The only forensic testing done on the bottles seized was
to determine whether the contents were acidic. No further
testing could have determined what the generators were
used for, unless tubing was located therein. There was no
tubing found herein.
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Opinion of the Court
30. That the parties agree and the court finds that the
items seized were destroyed at an unknown date prior to
December 17, 2012.
31. That the substances contained in the seven bottles
seized represented by their nature significant health and
safety hazards in that they are acidic, potentially
carcinogenic[,] and potentially toxic.
....
34. There is no evidence that the seized items were in the
possession or control of the State on November 29, 2012[,]
the date of the purported preservation order or any date
subsequent thereto, and the court finds that these items
were not in the possession or control of the State on that
date.
Based on the foregoing, the trial court concluded the SBI “had a good faith
belief that the items were to be destroyed and did not act in bad faith when they
initiated that destruction process.” The trial court denied Defendant’s motion for
sanctions.
C. Defendant’s Plea Agreement and Motion to Continue
Defendant’s case came on for trial before a jury on 11 August 2014. On 12
August 2014, the State and counsel for Defendant presented their proposed plea
agreement to the trial judge. The plea agreement provided for Defendant to enter an
Alford plea to possession of a methamphetamine precursor and receive a suspended
sentence within the presumptive range. The State would dismiss the charges of
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Opinion of the Court
manufacturing methamphetamine, maintaining a dwelling for controlled substances,
and resisting a public officer.
The trial judge began to review the plea transcript with Defendant and asked
the attorneys to approach the bench. After an unrecorded bench conference,
Defendant told the trial judge he was “not comfortable changing the plea.” The trial
judge instructed the State to arraign Defendant on all the other charges. The
following dialogue occurred between the trial judge, the State, and counsel for
Defendant ensued:
MR. RUPP: Mr. Hedrick, how does your client . . . plead in
12 CRS 050584, Count 1, Manufacturing
Methamphetamine. And Count 3, maintaining a dwelling,
or place or vehicle for keeping controlled substances.
MR. HEDRICK: Pleads not guilty to those charges.
MR. RUPP: Does he agree to proceed with the bill of
information that we have just submitted to the court?
MR. HEDRICK: On those charges?
MR. RUPP: Yes sir.
MR. HEDRICK: We signed that correct?
THE COURT: Yes.
MR. HEDRICK: Yes.
MR. RUPP: Does he waive any sort of notice or
requirements and agree to proceed today to trial?
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Opinion of the Court
MR. HEDRICK: My question would be what about the
remaining charges?
MR. RUPP: The only charges that are on the information
are the manufacturing methamphetamine, the possession
of methamphetamine precursor and the maintaining a
dwelling.
MR. HEDRICK: My understanding you didn’t arraign him
on all those to my understanding. [sic]
THE COURT: As far as Count 2, Possession of
methamphetamine precursor, how does he plead?
MR. HEDRICK: Pleads not guilty.
THE COURT: The resisting is being dismissed?
MR. RUPP: The resisting is not on the information.
THE COURT: It is on the indictment.
MR. RUPP: I will dismiss the resisting.
THE COURT: All right, go ahead and bring in the jury.
On 18 August 2012, after the State had presented its case for two and one-half
days, counsel for Defendant moved for a continuance in order to present the plea
transcript and agreement to another court. The trial court denied Defendant’s
motion, stating “[w]e are too far along.” The trial court entered an order on
Defendant’s motion to continue, in which it made the following findings of fact:
3. That during the plea discussions, neither the State nor
counsel for the defendant advised the Court that the plea
was an Alford plea.
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Opinion of the Court
4. That when the [c]ourt was presented the plea transcript
in open court, the court discovered that the plea was an
Alford plea and immediately advised the parties that the
court would not accept the Alford plea.
5. That the State and the Defendant were given an
opportunity to modify the plea arrangement.
6. That thereafter, after discussing the matter with the
defendant, counsel for the defendant advised the court that
the defendant would not enter a plea of Guilty, whereupon
the defendant was arraigned and entered pleas of Not
Guilty to all three charges.
7. That upon the rejection of the Alford plea by the court,
the defendant by and through counsel did not move to
continue the case and specifically did not move to continue
the case pursuant to the provisions of N.C.G.S. [§] 15A-
1023(b).
8. Thereafter jury selection began and a jury of twelve and
two alternates was empaneled on August 13, 2014, almost
24 hours after the plea was rejected by the court.
9. That at no time during jury selection and at no time
prior to the jury being empaneled did the defendant move
to continue the case and specifically did not move to
continue the case pursuant to the provisions of N.C.G.S. [§]
15A-1023(b).
10. Evidence was offered by the State from Wednesday,
August 13 through Friday August 15, 2014 and at no time
during this period did the defendant move to continue this
matter and specifically did not move to continue the case
pursuant to the provisions of N.C.G.S. [§] 15A-1023(b).
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Opinion of the Court
The trial court concluded Defendant “by his silence from the time of the
rejection of the plea through jury selection and through approximately 2 ½ days of
trial has voluntarily waived his right to a continuance as provided in 15A-1023(b).”
The trial court dismissed the charge of possession of an immediate precursor
chemical at the close of all the evidence. The jury returned a verdict finding
Defendant guilty of manufacturing methamphetamine and maintaining a dwelling
used to keep controlled substances.
The trial court consolidated the convictions and sentenced Defendant to a term
of 83 to 112 months imprisonment.
Defendant gave timely notice of appeal to this Court.
II. Issues
Defendant argues the trial court erred by: (1) denying his motion for discovery
sanctions; (2) admitting Officer Lee’s testimony regarding information he had
received from a search on the NPLEx database regarding Defendant’s alleged
purchases of pseudoephedrine; and, (3) denying his motion to continue after the trial
court rejected his plea agreement.
III. Analysis
A. Motion for Sanctions
Defendant argues the trial court erred by denying his motion for discovery
sanctions after the State destroyed evidence seized from Defendant’s home, without
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Opinion of the Court
an order authorizing destruction, and despite a court order that the seized evidence
be preserved.
1. Standard of Review
“A trial court’s imposition of discovery sanctions is within the court’s sound
discretion and will not be reversed absent a showing of abuse of discretion.” State v.
Shedd, 117 N.C. App. 122, 124, 450 S.E.2d 13, 14 (1994) (citation omitted). “An
abuse of discretion occurs when the trial court’s ruling is so arbitrary that it could
not have been the result of a reasoned decision.” State v. Moore, 152 N.C. App. 156,
161, 566 S.E.2d 713, 716 (2002) (citations and internal quotation marks omitted).
2. Analysis
Defendant filed a motion for an order requiring preservation of evidence seized
from his home upon execution of the search warrant. Defendant contends he sought
to preserve the items seized in order to have the opportunity to review the items and
for his own witnesses to perform testing.
The Supreme Court of the United States held “unless a criminal defendant can
show bad faith on the part of the police, failure to preserve potentially useful evidence
does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S.
51, 58, 102 L. Ed. 2d 281, 289 (1988).
In its order denying Defendant’s motion for sanctions, the trial court found “the
destruction process was initiated pursuant to the belief that such a destruction order
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Opinion of the Court
was actually entered by Judge Ginn on October 13, 2012.” The trial court also noted
Defendant’s motion for an order requiring the preservation of evidence seized “was
filed some 30 days after the destruction of the evidence seized had been initiated by
the SBI” and “HCL generators are not regularly preserved.”
The record and trial testimony contain ample evidence to support the trial
court’s conclusion that law enforcement “had a good faith belief that the items were
to be destroyed and did not act in bad faith when they initiated that destruction
process.” Defendant has failed to carry his burden to show the trial court abused its
discretion in denying his motion for sanctions. This argument is overruled.
B. Officer Lee’s Testimony Regarding the NPLEx Database
Defendant argues the trial court erred by admitting Officer Lee’s testimony
regarding Defendant’s alleged pseudoephedrine purchases and State’s Exhibit 9.
Defendant asserts the State’s Exhibit 9 report was not properly authenticated and
was inadmissible hearsay.
1. Standard of Review
This Court reviews a trial court’s ruling on the admission of evidence over a
party’s hearsay objection de novo. State v. Miller, 197 N.C. App. 78, 87-88, 676 S.E.2d
546, 552, disc. review denied, 363 N.C. 586, 683 S.E.2d 216 (2009). “A trial court’s
determination as to whether a document has been sufficiently authenticated is
reviewed de novo on appeal as a question of law.” State v. Crawley, 217 N.C. App. 509,
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Opinion of the Court
515, 719 S.E.2d 632, 637 (2011) (citation omitted), disc. review denied, __ N.C. __, 722
S.E.2d 607 (2012).
“Under a de novo review, the court considers the matter anew and freely
substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362
N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citations and internal quotation marks
omitted).
2. Analysis
The North Carolina Rules of Evidence defines hearsay as “a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c)
(2013). Hearsay is generally inadmissible at trial, unless a recognized exception to
the hearsay rule applies. N.C. Gen. Stat. § 8C-1, Rule 802 (2013).
“The erroneous admission of hearsay testimony is not always so prejudicial as
to require a new trial, and the burden is on the defendant to show prejudice.” State v.
Allen, 127 N.C. App. 182, 186, 488 S.E.2d 294, 297 (1997) (citations omitted); see N.C.
Gen. Stat. § 15A-1443(a) (2013). Prejudicial errors occur when there is a reasonable
possibility that a different result would have been reached, had the error not been
committed. Allen, 127 N.C. App. at 186, 488 S.E.2d at 297.
N.C. Gen. Stat. § 8C-1, Rule 803(6) establishes an exception to the general
exclusion of hearsay for business records. A business record includes:
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Opinion of the Court
A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it
was the regular practice of that business activity to make
the memorandum, report, record, or data compilation, all
as shown by the testimony of the custodian or other
qualified witness, unless the source of information or the
method or circumstances of preparation indicate lack of
trustworthiness. The term “business” as used in this
paragraph includes business, institution, association,
profession, occupation, and calling of every kind, whether
or not conducted for profit.
N.C. Gen. Stat. § 8C-1, Rule 803(6) (2013).
Our Supreme Court held business records stored on computers are admissible
if:
(1) the computerized entries were made in the regular
course of business, (2) at or near the time of the transaction
involved, and (3) a proper foundation for such evidence is
laid by testimony of a witness who is familiar with the
computerized records and the methods under which they
were made so as to satisfy the court that the methods, the
sources of information, and the time of preparation render
such evidence trustworthy.
State v. Springer, 283 N.C. 627, 636, 197 S.E.2d 530, 536 (1973). “There is no
requirement that the records be authenticated by the person who made them.”
Crawley, 217 N.C. App. at 516, 719 S.E.2d at 637-38 (citation omitted). “The
authenticity of such records may be established by circumstantial evidence.” Id. at
516, 719 S.E.2d at 637 (citation omitted).
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Opinion of the Court
Defendant argues the State failed to lay a proper foundation for admission of
the report from the NPLEx database under the business record exception to the
hearsay rule. Defendant contends the State was required to present testimony from
someone associated with the NPLEx database, or the company responsible for
maintaining the database, regarding the methods used to collect, maintain and
review the data in the NPLEx database to ensure its accuracy. We disagree.
Officer Lee testified about his knowledge of, and familiarity with, the NPLEx
database. He explained: “[Pharmacy employees] are required to long [sic] into the
system, CVS for example they scan your ID [and] it goes straight into the system the
information does. And then the electronic signature is also put straight into the
system.”
Officer Lee testified he and other law enforcement officers regularly consult
the NPLEx database to look at pseudoephedrine purchases when investigating
individuals suspected of manufacturing methamphetamine. During voir dire, Officer
Lee explained he had attended training sessions on using the NPLEx website. He
stated he was unaware of any means or process by which he or any other individual
with access to the NPLEx database website could manipulate the electronic data.
Officer Lee thoroughly demonstrated his understanding of the NPLEx
database, the method by which the data was gathered, transmitted, and stored, and
the underlying basis for the report admitted into evidence. Officer Lee’s testimony
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Opinion of the Court
provided a sufficient foundation for the admission of the computer report from the
NPLEx database as a business record. See State v. Sneed, 210 N.C. App. 622, 630-31,
709 S.E.2d 455, 461 (2011) (holding detective who routinely used the NCIC database
in his regular course of business was sufficiently qualified to lay necessary foundation
for admission of NCIC information as a business record).
Presuming the report from the NPLEx database were not admissible under the
business record exception to the hearsay rule, admission of the report was harmless
error. The State introduced other ample evidence of guilt against Defendant at trial.
Defendant’s charge of possession of a precursor to methamphetamine, for which the
information contained in the report would have been most damaging, was dismissed
by the trial court at the close of all the evidence. Defendant has failed to carry his
burden to show a different outcome would have resulted had the report not been
admitted into evidence. This argument is overruled.
C. Motion to Continue
Defendant argues the trial court erred by denying his motion to continue after
rejecting his plea agreement. We disagree.
1. Standard of Review
“An alleged error in statutory interpretation is an error of law, and thus our
standard of review for this question is de novo.” Armstrong v. N.C. State Bd. of Dental
Exam’rs, 129 N.C. App. 153, 156, 499 S.E.2d 462, 466 (1998) (citations omitted).
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Opinion of the Court
“Under a de novo review, the court considers the matter anew and freely substitutes
its own judgment for that of the lower tribunal.” Williams, 362 N.C. at 632-33, 669
S.E.2d at 294 (citations and quotation marks omitted).
“Denial of a motion for a continuance, regardless of its nature, is, nevertheless,
grounds for a new trial only upon a showing by defendant that the denial was
erroneous and that his case was prejudiced thereby.” State v. Searles, 304 N.C. 149,
153, 282 S.E.2d 430, 433 (1981).
2. Analysis
Defendant argues he is entitled to a new trial because the trial court denied
his motion to continue after it rejected his plea agreement, in violation of his absolute
right to a continuance under N.C. Gen. Stat. § 15A-1023(b). We disagree.
N.C. Gen. Stat. § 15A-1023(b) provides:
Before accepting a plea pursuant to a plea arrangement in
which the prosecutor has agreed to recommend a particular
sentence, the judge must advise the parties whether he
approves the arrangement and will dispose of the case
accordingly. If the judge rejects the arrangement, he must
so inform the parties, refuse to accept the defendant’s plea
of guilty or no contest, and advise the defendant personally
that neither the State nor the defendant is bound by the
rejected arrangement. The judge must advise the parties
of the reasons he rejected the arrangement and afford them
an opportunity to modify the arrangement accordingly.
Upon rejection of the plea arrangement by the judge the
defendant is entitled to a continuance until the next session
of court.
N.C. Gen. Stat. § 15A-1023(b) (2013) (emphasis supplied).
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This statute gives a defendant an absolute right “to a continuance until the
next session of court” if and after the trial court rejects the proposed plea agreement.
Id.; see State v. Tyndall, 55 N.C. App. 57, 62-63, 284 S.E.2d 575, 578 (1981) (“By
adding the fourth sentence of G.S. 15A-1023(b), the legislature has clearly granted to
the defendant such an absolute right upon rejection of a proposed plea agreement at
arraignment.”). This Court held the trial court commits prejudicial error and the
defendant is entitled to a new trial where the trial court erroneously denies a motion
to continue after rejecting the plea agreement. Id.Our appellate courts have long recognized “it is a general rule that a defendant
may waive the benefit of statutory or constitutional provisions by express consent,
failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon
it.” State v. Gaiten, 277 N.C. 236, 239, 176 S.E.2d 778, 781 (1970) (citations omitted)
(emphasis supplied).
Here, Defendant and the State agreed Defendant would enter an Alford plea
to possessing a precursor chemical and receive a suspended sentence within the
presumptive range and be placed on probation. In exchange, the State would dismiss
the charges of manufacturing methamphetamine and maintaining a dwelling for
controlled substances.
The parties informed the trial court they had agreed to a plea arrangement,
prior to jury selection. The trial judge discovered the plea agreement contained
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Opinion of the Court
allowance for an Alford plea upon reviewing the plea transcript in open court. The
trial judge advised the parties he would not accept the Alford plea and afforded the
State and Defendant the opportunity to modify the plea agreement. See N.C. Gen.
Stat. § 15A-1023(b). Counsel for Defendant advised the trial court Defendant “[was]
not comfortable changing the plea.” Defendant failed to move for a continuance.
The trial court advised the State to arraign Defendant on the charges.
Defendant pled not guilty and expressly consented to proceed to trial that day. Jury
selection began, and Defendant did not move to continue the case prior to the jury
being empaneled. The State offered evidence for two and one-half days, and
Defendant’s trial recessed for the weekend. At no point up to or during this time did
Defendant move for a continuance.
The following Monday morning, as the parties entered the second week of trial,
counsel for Defendant moved for a continuance pursuant to N.C. Gen. Stat. § 15A-
1023(b). The trial court denied Defendant’s motion, and the trial resumed.
Defendant’s assertion that he had an absolute right to a continuance is a
correct interpretation of N.C. Gen. Stat. § 15A-1023(b). The record and trial
testimony clearly indicate Defendant voluntarily waived this right by: (1) expressly
consenting to being arraigned and proceeding to trial after the trial court rejected the
plea agreement; and (2) failing to assert the statutory right until jeopardy attached,
during the second week of trial, and after the State presented evidence for two and
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Opinion of the Court
one-half days. Defendant waived his right to a continuance by his “failure to assert
it in apt time.” Gaiten, 277 N.C. at 239, 176 S.E.2d at 781. This argument is
overruled.
IV. Conclusion
The trial court determined law enforcement had a good faith belief the evidence
seized was supposed to be destroyed. Defendant has failed to carry his burden to
show the trial court abused its discretion in denying his motion for discovery
sanctions.
Officer Lee testified concerning his knowledge of and familiarity with the
NPLEx database. He stated he regularly used the NPLEx database to assist with
investigations into methamphetamine manufacturing. The State provided a
sufficient foundation to admit the NPLEx database report. The trial court did not err
in admitting into evidence the report under the business record exception to the
hearsay rule. Defendant has failed to carry his burden to show how admission of the
report, if error, would have prejudiced him.
Defendant had an absolute statutory right to a continuance after the trial court
rejected his plea agreement. Defendant waived this right by failing to assert it in a
timely manner and expressly consenting to proceed to trial the same day the trial
court rejected the plea agreement and jeopardy attached.
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STATE V. HICKS
Opinion of the Court
Defendant received a fair trial free from prejudicial errors he preserved and
argued. We find no error in Defendant’s conviction nor the judgment entered thereon.
NO ERROR.
Judges McCULLOUGH and DIETZ concur.
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