State v. Davis

248 S.E.2d 883 (1978) 38 N.C. App. 672

STATE of North Carolina
v.
Roland DAVIS and Donald Gene Wolfe.

No. 7815SC612.

Court of Appeals of North Carolina.

November 21, 1978.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Archie W. Anders, Raleigh, for the State.

Ridge, Roberson & Richardson by R. Nelson Richardson, Graham, for defendant-appellant Roland Davis.

Mitchell M. McEntire, Graham, for defendant-appellant Donald Wolfe.

HARRY C. MARTIN, Judge.

Defendant Davis assigns as error the trial court's denial of his motion for continuance on the day of his arraignment, in violation of N.C.Gen.Stat. 15A-943(b).

§ 15A-943. Arraignment in superior court—required calendaring.—(a) In counties in which there are regularly scheduled 20 or more weeks of trial sessions of superior court at which criminal cases are heard, and in other counties the Chief Justice designates, the prosecutor must calendar arraignments in the superior court on at least the first day of every other week in which criminal cases are heard. No cases in which the presence of a jury is required may be calendared for the day or portion of a day during which arraignments are calendared.

(b) When a defendant pleads not guilty at an arraignment required by subsection (a), he may not be tried without his consent in the week in which he is arraigned.

In State v. Shook, 293 N.C. 315, 319, 237 S.E.2d 843, 846 (1977), the Supreme Court construed the statute to give the defendant a statutory right, "``not [to] be tried without his consent in the week in which he is arraigned.'" The Court further stated:

[T]he provision vests a defendant with a right, for by its terms it requires his consent before a different procedure can be used. To require a defendant to show prejudice when asserting the violation of this statutory right which he has insisted upon at trial would be manifestly contrary to the intent of the legislature, which has provided that the week's time between arraignment and trial must be accorded him unless he consents to an earlier trial. Prejudice under these circumstances must necessarily be presumed.

At trial, defendant Davis did not move for a continuance under N.C.Gen.Stat. 15A-943(b), but moved for a continuance on the very narrow ground that a subpoena had been issued but not served on an essential defense witness.

"[I]t 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); State v. Young, 291 N.C. 562, 231 S.E.2d 577 (1977). In State v. Shook, supra, the North Carolina Supreme Court concluded the defendant had not waived his statutory right under N.C.Gen.Stat. 15A-943(b) and stated that he "asserted the right and raised the issue before the trial court—a prerequisite for his assertion of the right on appeal." Davis did not raise this issue before the trial court.

The statute requires the defendant's consent before he may be tried the week of his arraignment. Defendant Davis consented by failing to assert his right under the statute in the trial court. After the denial of the motions to continue on the ground that a witness was unavailable and in the alternative, to dismiss, the trial judge asked if there were any other pretrial motions. Defendants' attorneys responded in the negative. We hold defendant Davis waived his statutory right not to be tried the week he was arraigned. With this holding, we do not reach the intriguing question as to the constitutionality of the statute. Defendant Wolfe did not challenge this ruling on appeal.

Defendants Davis and Wolfe assign as error the trial court's denial of their motions to continue because of the unavailability of an essential witness, Mr. T. The continuance was requested "until we . . locate this witness." The trial court inquired about knowledge of the whereabouts of the witness. The inquiry yielded that no one had seen the witness in six months, nor knew of his whereabouts. Continuance was requested for an indefinite time. Counsel did not support this motion with an affidavit showing sufficient grounds. Counsel did not show what they expected to prove by the witness or how the lack of the testimony would be prejudicial to them. There is no evidence that the absent witness would ever be present for trial.

A motion for continuance is ordinarily addressed to the discretion of the trial judge, and his ruling is not subject to review absent abuse of discretion. Continuances should not be granted unless the reasons therefor are fully established. Motions for continuance should be supported by an affidavit showing sufficient grounds. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972). No such abuse of discretion is shown. The assignment of error is overruled.

Defendant Davis assigns as error the trial court's denial of his motions for judgment as of nonsuit on the ground the evidence established entrapment as a matter of law. Mere initiation, instigation, invitation, or the exposure to temptation by enforcement officers without fraud or persuasion is not sufficient to constitute the defense of entrapment. State v. Love, 229 N.C. 99, 47 S.E.2d 712 (1948).

[A] verdict of not guilty should be returned if an officer or his agent, for the purpose of prosecution, procures, induces or incites one to commit a crime he otherwise would not commit but for the persuasion, encouragement, inducement, and importunity of the officer or agent. If the officer or agent does nothing more than afford to the person charged an opportunity to commit the offense, such is not entrapment. The courts do not attempt to draw a definite line of demarcation between what is and what is not entrapment. Each case must be decided on its own facts.

State v. Caldwell, 249 N.C. 56, 59, 105 S.E.2d 189, 191 (1958). The evidence falls far short of establishing entrapment as a matter of law. This assignment of error is overruled.

Defendant Davis assigns as error the trial court's denial of his motion to vacate and set aside the verdict of the jury as contrary to the evidence and the law. This assignment of error is without merit and is overruled.

Defendant Donald Wolfe assigns as error the trial court's allowing the foreman of the jury to change the verdict on the charge of possession of marijuana with intent to sell after he had announced the verdict in open court. Defendant Wolfe contends this denied him his constitutionally protected right against double jeopardy. The following dialogue occurred between the trial court and the jury foreman:

COURT: All right. In the case in which Donald Gene Wolfe is charged with possession of marijuana with the intent to sell it, do you find the defendant, Donald Gene Wolfe, guilty of possession of marijuana with the intent to sell the marijuana or do you find him guilty of possession of more than one ounce of marijuana or do you find him not guilty?

FOREMAN: Guilty, sir.

COURT: You find the defendant, Donald Gene Wolfe, guilty of what offense?

FOREMAN: Of having in excess of one ounce.

COURT: All right. Now,—

FOREMAN: I'm sorry. Now, would you restate that?

COURT: All right, sir. In the case in which he is charged with possession of marijuana with intent to sell it, do you find him guilty of possession of marijuana with intent to sell it or do you find him guilty of possession of more than one ounce of marijuana or do you find him not guilty?

FOREMAN: Guilty of possession with intent to sell.

COURT: All right. You find the defendant, Donald Gene Wolfe, guilty of possession of marijuana with the intent to sell it?

FOREMAN: Yes, sir.

COURT: This is your verdict and so say you all?

(Jurors answered in the affirmative.)

In State v. Webb, 265 N.C. 546, 548, 144 S.E.2d 619, 620-21 (1965), a similar case, the Supreme Court said:

A jury has full control of its verdict up until the time it is finally delivered to the court and ordered recorded by the judge. Accordingly, if the foreman makes a mistake in announcing it, he may correct himself or any one of the jurors may correct him. To preclude mistake, the Clerk's inquiry "So say you all?" is directed to the panel immediately after their spokesman has declared the verdict. State v. Young, 77 N.C. 498. Even if all 12 jurors nod their assent, either the solicitor or counsel for defendant may then and there require that the jury be polled. The dissent of any juror at that time would be effectual. State v. Dow, 246 N.C. 644, 99 S.E.2d 860; State v. Cephus, 241 N.C. 562, 86 S.E.2d 70.

In the present case, as in State v. Webb, supra, the foreman merely made a slip of the tongue which he immediately corrected before the verdict was accepted by the court and ordered recorded. The jury was then polled. The true verdict was confirmed by the affirmative response of the jury when polled. We find no error in this assignment.

We have examined defendants' other assignments of error and find in them no merit.

No error.

CLARK and WEBB, JJ., concur.