State v. Minshew

CLARK, Judge.

Defendant first assigns error to the denial of his motion for continuance. Defendant contends that the denial deprived him of his right under the Sixth Amendment to the Federal Constitution and Article I, Sections 19 and 23 of the State Constitution to effective counsel for the following reasons: (1) the best interests of the defendant would have been served by one line of defense in a joint trial and a completely different line of defense in a separate trial; and (2) there could have been witnesses available who would have testified at a trial of defendant alone, but not at a trial of both defendant and Wilkins, in particular Wilkins himself.

Ordinarily the grant or denial of a motion for continuance is within the discretion of the trial court. However, when such a motion involves a right guaranteed by the Federal and State Constitutions, the question is one of law and not of discretion, and the ruling of the trial court on such a motion is reviewable. State v. Harris, 290 N.C. 681, 228 S.E. 2d 437 (1976). Implicit in the constitutional right at issue herein is that an accused and his counsel shall have a reasonable time to investigate, prepare, and present the defense. Whether there has been a denial of due process depends upon the circumstances of each case. State v. Vick, 287 N.C. 37, 213 S.E. 2d 335 (1975).

The circumstances in the present case reveal no denial of defendant’s right to effective counsel. Nowhere has defendant shown how the “line of defense” offered at the trial which occurred differed from that which would have been offered at a joint trial. It is a non sequitur to say that defendant was prejudiced by a solitary trial since Wilkins had a defense of entrapment at a joint trial which was not available to defendant. Defendant has failed to explain how the defenses available to Wilkins affected in any way the “line of defense” available to defendant.

Defendant has similarly failed to show that the denial affected the use of witnesses in his defense. The record reveals that the following was all that occurred relative to the motion:

“At the commencement of the trial of Gary Lee Min-shew the following motion was made out of the hearing of the jury:

Mr. Vickory : I make a motion for continuance on the grounds that the state has made a motion to try the defendant, Minshew with Steve Wilkins, his codefendant. I learned this morning, the 16th day of August, 1976 that the State was not going to try Wilkins with Minshew and I need more time to prepare the case for Minshew to be tried by himself.

Court: Denied.”

Where the absence of witnesses is the basis for a motion to continue, and where neither the names of the witnesses nor the substance of their testimony has been divulged, there is no error in the denial of the motion. State v. Smathers, 287 N.C. 226, 214 S.E. 2d 112 (1975); State v. Stepney, 280 N.C. 306, 185 S.E. 2d 844 (1972).

Since the State made a motion to consolidate the trials of defendant and Wilkins, defendant may have expected a joint trial. However, any number of circumstances could have operated to defeat such expectation, e.g., the death of the codefend-ant, a guilty plea by the codefendant, or denial of the motion due to oppositon from the codefendant. It is the duty of the defendant to be prepared for trial. We must conclude, in the absence of any showing that the withdrawal of the motion to consolidate in any way prejudiced defendant’s case and denied him his right to effective counsel, that there was no error in the denial of the motion to continue. We find no merit to this assignment of error.

Defendant’s remaining assignments of error are considered abandoned under Rule of Appellate Procedure 28(b) (3). Contrary to the statement in defendant’s brief, assignments of error do not “speak for themselves.” The standards set forth in Rule 28(b) (3) must be followed if the purported error is to be considered.

We note that the entire charge of the trial judge was included in the record on appeal, even though no error was assigned to the charge. This is in violation of Rule of Appellate Procedure 9(b) (3) (vi). We also note that the list of assignments of error at the conclusion of the record includes those portions of the record to which the assignments are directed. This is not necessary under Rule 10(c). Counsel will be taxed with the unnecessary printing costs. Rule 9(b) (5).

No error.

Judges Morris and Parker concur.