Opinion
No. 06-1439.
Filed July 17, 2007.
Madison County Nos. 05 CRS 50277-78, 06 CRS 1334.
Appeal by defendant from judgments entered 2 May 2006 and 3 May 2006 by Judge James L. Baker, Jr., in Madison County Superior Court. Heard in the Court of Appeals 23 May 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Derrick C. Mertz, for the State. Michael E. Casterline for defendant-appellant.
Steven Wayne Ballard ("defendant") was convicted of felony trafficking in opium, felony possession of Methamphetamine, and misdemeanor possession of Alprazolam ("Xanax"). Defendant appeals this conviction. After careful consideration, we find no error.
On 16 June 2005, the Madison County Sheriff's Department received a report of a suspicious vehicle operating on Big Pine Road in the Big Pine residential area. The vehicle, a gold Jeep Cherokee, was reportedly driving up and down the road. Detective Neil, Deputy Tweed, and Captain Harwood responded to the call. The officers observed a vehicle matching the description given by the caller pulled off to the side of the road but partially out in the roadway. They also observed two white males near a stream on the side of the roadway and made contact with the individuals.
Defendant was fishing and Robert Pendley ("Pendley") was watching nearby. Captain Harwood asked whether either individual had a fishing license. Pendley said that he did not but that he was only watching. Defendant stated that he did and provided the fishing license to Captain Harwood. Defendant also produced a North Carolina ID card, but was unable, after looking through his vehicle, to produce a North Carolina driver's license.
Defendant stated that he had been driving the vehicle and that it was his. Both men were asked to step near the roadway, and a pat-down search of defendant was conducted. After a few preliminary questions, Captain Harwood asked defendant for consent to search the vehicle. At trial, the State put on evidence that tended to show defendant consented to the vehicle search.
Captain Haywood and Deputy Tweed stayed with defendant and Pendley while Detective Neil began to search the vehicle. According to Detective Neil, the following items were found in defendant's car: (1) a set of digital scales; (2) an unlabeled pill bottle which contained approximately one hundred and fifty (150) white pills, later determined to be Methadone; (3) a cigarette box with twenty (20) more Methadone pills; (4) a small plastic box with seven and a half (7 1/2) tablets of Xanax; and (5) three plastic bags with Methamphetamine ice crystals. Defendant was arrested after the search but Pendley was not. After the car was impounded, two glass pipes were found that tested positive for Methamphetamine residue.
The collected items were sent to the State Bureau of Investigation ("SBI") for identification and weight. At the laboratory, the weight of the collective 170 white pills was thirty-four point three (34.3) grams. One of the white pills was tested and was positively identified as Methadone Hydrochloride. Methadone Hydrochloride is a Schedule II controlled substance and is a synthetic compound similar to Morphine with the same properties and addiction sustaining liability.
Of the original indictments against defendant, one was for trafficking in opium while possessing an amount of four (4) grams or greater but less than fourteen (14) grams of opium or an opiate. See N.C. Gen. Stat. § 90-95(h)(4)(a). The day before the scheduled court date, the State issued a superseding indictment against defendant based on an SBI lab report that elevated his trafficking charge to an amount of twenty-eight (28) grams or more. See N.C. Gen. Stat. § 90-95(h)(4)(c) (2005).
Defendant presents the following issues for review: (1) Did the trial court err in denying defendant's motion for a continuance; and (2) did the trial court commit plain error or structural error when it tendered a verdict sheet containing the term "Methadone."
I.
Defendant first argues that the trial court erred in denying his motion for a continuance. We disagree. Defendant alleges that the trial court's failure to grant his motion for a continuance raises a constitutional issue, in that he was denied the right to effective assistance of counsel. Specifically, he argues that his trial counsel was unable to adequately prepare a defense after the State issued a new indictment one day before trial.
It is well established that a motion to continue, even when timely filed, "is ordinarily left to the sound discretion of the trial judge whose ruling thereon is not subject to review absent an abuse of such discretion." State v. Pickard, 107 N.C. App. 94, 100, 418 S.E.2d 690, 693 (1992). It is also true, however, "that when a motion for a continuance 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 of each case." Id. Even when a motion to continue "raises a constitutional question, its denial 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. Accordingly, we must first determine whether the trial court committed error in denying defendant's motion to continue.
In the instant case, the State issued an indictment against defendant that included a charge of trafficking in opium, which makes illegal possession of an amount of four (4) grams or greater but less than fourteen (14) grams of opium or an opiate. See N.C. Gen. Stat. § 90-95(h)(4)(a). The indictment issued the day before the scheduled court date raised this charge to an amount of twenty-eight (28) grams or more. See N.C. Gen. Stat. § 90-95(h)(4)(c). The net effect of the new indictment was that the punishment level would rise from a Level 1 to a Level 3. In other words, with the new charge, defendant faced a potential sentence of 225-279 months rather than one of seventy to eighty-four months.
At a pre-trial hearing on the day the superseding indictment was returned, defendant's attorney stated that he was aware of the indictment and was prepared to try the case the following day. On the day of the trial, however, defendant's attorney sought a continuance on the grounds that the increase in penalty had not yet fully registered with his client. The trial court denied the motion because the new charges were based on the same set of facts as the original charge.
Constitutional guarantees of due process and assistance of counsel include the right of a defendant to have a reasonable time to investigate and prepare his case. State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). "No precise time limits are fixed, however, and what constitutes a reasonable length of time for the preparation of a defense must be determined upon the facts of each case." Id. at 104-05, 291 S.E.2d at 656.
Here, defendant and his counsel had notice for nearly a year that defendant was charged with trafficking in opiates. The discussion before the court indicated, and defense counsel agreed, that the superseding indictment did not change the facts and nature of the case. Additionally, defendant was aware of the possibility of a superseding indictment approximately five days before trial and had met with his counsel to discuss its implications. Accordingly, we hold that defendant had a reasonable time in which to prepare for his case and that the trial court did not err in denying defendant's motion to continue. See State v. Bunch, 106 N.C. App. 128, 132, 415 S.E.2d 375, 377-78, disc. review denied, 332 N.C. 149, 419 S.E.2d 575 (1992) (finding no abuse of discretion in denying motion to continue where counsel had approximately fifty-five (55) days to prepare for trial). Indeed, the transcript indicates that the sole reason for seeking a continuance was that the severity of the potential punishment had just sunk in with defendant the night before the trial. Our Supreme Court has already rejected the argument that "a natural reluctance to go to trial" in any way impairs defendant's rights to effective assistance of counsel or confrontation. State v. Cradle, 281 N.C. 198, 208, 188 S.E.2d 296, 303, cert. denied, 409 U.S. 1047, 34 L. Ed. 2d 499 (1972).
Furthermore, even assuming trial court error, we find that defendant was not prejudiced by the lack of a continuance. Defendant does not allege that his counsel was defective at trial or failed to adequately assist him. As to counsel's desire to speak to another attorney before trial, the record indicates that he was aware of the possibility of a superseding indictment and had ample time in which to speak to another attorney. Indeed, if that was a primary concern, defense counsel had an opportunity to inform the trial court of this at the preliminary hearing but instead stated that he was prepared to go ahead to trial. Finally, the record clearly establishes defendant's possession of the alleged amount of opiates, and defendant's guilt was found from that evidence. Thus, we reject defendant's assignments of error as to this issue.
II.
Defendant's final argument is that the variance between the verdict sheet and the indictment by the inclusion of the word "Methadone" constitutes plain error. We disagree.
Plain error analysis is the appropriate standard of review when an error is not preserved by objection at trial. N.C.R. App. P. 10(c)(4). Here, defendant did not object to the verdict sheet or jury instructions. "Normally, where the defendant appeals based on the content of the verdict sheet but failed to object when the verdict sheet was submitted to the jury, any error will not be considered prejudicial unless the error is fundamental." State v. Wiggins, 161 N.C. App. 583, 592, 589 S.E.2d 402, 409 (2003). An error is "plain error" if it
"can be said the claimed error is a ` fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or `where [the error] is grave error which amounts to a denial of a fundamental right of the accused,' or the error `"has resulted in a miscarriage of justice or in the denial to appellant of a fair trial" or where the error is such as to `seriously affect the fairness, integrity or public reputation of judicial proceedings' or where it can be fairly said `the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.'"
State v. Moore, 311 N.C. 442, 445, 319 S.E.2d 150, 152 (1984) (citations omitted). Before assessing whether there was plain error, we must determine whether there was error at all. State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468, cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986).
Our statutes "do not specify what constitutes a proper verdict sheet, [and] they contain `no requirement that a written verdict contain each element of the offense to which it refers.'" State v. Floyd, 148 N.C. App. 290, 295, 558 S.E.2d 237, 240 (2002) (quoting State v. Sanderson, 62 N.C. App. 520, 524, 302 S.E.2d 899, 902 (1983)). Verdict forms need not "match the specificity expected of the indictment." Floyd, 148 N.C. App. at 295, 558 S.E.2d at 241. This Court has "held that a verdict sheet is sufficient `if the verdict can be properly understood by reference to the indictment, evidence and jury instructions.'" Id. at 296, 558 S.E.2d at 241 (quoting State v. Connard, 81 N.C. App. 327, 336, 344 S.E.2d 568, 574 (1986).
In the instant case, the State requested that the jury be given the statutory definition of an opiate. The trial court granted the State's request over defense counsel's objection. The jury was informed that: "An opiate means any substance having an addiction forming or an addiction sustaining liability similar to morphine or being capable of conversion into a drug having addiction forming or addiction sustaining liability." (Emphasis added.) See N.C. Gen. Stat. § 90-87(18) (2005). Defense counsel did not object to the verdict form given to the jury identifying Methadone as an opiate. The following language was submitted to the jury: WE THE JURORS FIND AS OUR UNANIMOUS VERDICT, THE DEFENDANT STEVEN WAYNE BALLARD:
___ Guilty of Trafficking in Opium or an Opiate
(Methadone), by Possession, twenty-eight (28) grams or
more;
or
___ Not Guilty.
The evidence at trial tended to show that Methadone is a compound similar to Morphine in that it has addictive properties. The indictment alleged that defendant "possess twenty-eight (28) grams or more of opium or opiate, or salt, compound, derivative, or preparation of opium or opiate, or mixture containing such substance." The statutory definition of "opiate" includes those substances "similar to morphine." N.C. Gen. Stat. § 90-87(18). Accordingly, the verdict sheet and indictment are consistent with this State's statutory definition of opiate as a compound similar to Morphine. In light of the extensive evidence of defendant's guilt and the trial court's proper instructions to the jury, we do not believe the circumstances here amounted to error, much less plain error.
III.
Because we find no error in either the trial court's denial of defendant's motion to continue or in the verdict sheet, we reject defendant's assignments of error.
No error.
Judges ELMORE and GEER concur.
Report per Rule 30(e).