{
  "id": 8552690,
  "name": "STATE OF NORTH CAROLINA v. EDWARD THOMAS HARRIS",
  "name_abbreviation": "State v. Harris",
  "decision_date": "1975-07-02",
  "docket_number": "No. 7514SC58",
  "first_page": "371",
  "last_page": "375",
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    "name_abbreviation": "N.C. Ct. App.",
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    "name": "North Carolina Court of Appeals"
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      "category": "reporters:state_regional",
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      "year": 1975,
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      "cite": "287 N.C. 178",
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
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    {
      "cite": "281 N.C. 198",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1972,
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        "/nc/281/0198-01"
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  "last_updated": "2023-07-14T16:59:13.418266+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge Brock and Judge Arnold concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. EDWARD THOMAS HARRIS"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nDefendant first assigns error to denial of his motion for a continuance. Such a motion is ordinarily addressed to the discretion of' the trial judge and his ruling thereon is. not subject to review absent a showing of abuse of discretion. However, when the motion is based on a right guaranteed by the Federal and State Constitutions, the question presented is one of law and not of discretion, and the decision of the trial judge is reviewable.. State v. Cradle, 281 N.C. 198, 188 S.E. 2d 296 (1972). Defendant contends that denial of his motion deprived him of his constitutional rights to have effective assistance of counsel at his trial and to confront his accusers with other testimony. The record does not,support this contention.\nThe record di\u00e1closes the following: Defendant was arrested on 1 August 1973 -upon a warrant charging the offense for which he was tried'; Shortly thereafter counsel was appointed to defend him. The indictment on which he was tried was returned as a true bill by the grand jury at the 13 August 1973 session of Superior Court. On 3 October 1973 a court calendar was published showing this case was scheduled for trial on 8 October 1973. Defendant\u2019s counsel had previously informed the court that it was necessary for him to be out of the State for' a few days' at the end of September but that he expected to' return to Durham on or about 2 October 1973. Because of \u201cfamily needs,\u201d defendant\u2019s counsel delayed his return and arrived in Durham about 9:00 a.m. oh 8 October 1973. Trial of defendant\u2019s case commenced that afternoon. In denying the motion for con-tinuanc\u00e9, the trial judge advised defendant\u2019s attorney that if the State rested its case during the afternoon, a recess would be granted until the following morning. The trial actually continued until the following day, witnesses were presented for the defense, and, so far as the record reveals, only one witness of all those which defendant desired to present, was. not available. This witness was a sixteen-year-old boy, Jerome Oliver. Defendant\u2019s attorney admitted he had not talked with this witness, and after, an extensive voir dire examination, the trial judge found that defendant\u2019s contention as to what this witness would testify to under oath was not believable and that this witness would not benefit the defendant if he were present.\nThe record thus shows that for approximately sixty days prior to the trial defendant was represented by the same counsel who appeared and represented him at his trial. It further shows that defendant was given ample opportunity to present witnesses to testify in his defense. We therefore find no deprivation of any constitutional rights resulted from the denial of his motion for a continuance nor has any abuse of the trial judge\u2019s dicrer tion been shown. Accordingly, defendant\u2019s assignment of error directed to denial of his motion for a continuance is overruled.\nDefendant next contends that reversible error occurred when the court denied his motion to be furnished free' copies of the transcripts of two trials of one Thomas Lee Parker, who was accused in a separate indictment of participating in the same robbery for which defendant was convicted. After defendant was found guilty, the trial judge entered an order dated 12 October 1973 continuing prayer for judgment. Prayer for judgment was thereafter continued from term to term until 3 October 1974, when the State prayed for judgment in the case. During the time between the date of defendant\u2019s trial and the date sentence was imposed, Thomas Lee Parker was twice brought to trial on the separate indictment against him, both of these trials resulting in mistrials when the jury ;could not agree. When defendant appeared for sentencing on 8 October 1974, his attorney made a motion that defendant be furnished free copies. of the transcript of these trials of Thomas Lee Parker. He contends that denial of this motion resulted in depriving him of adequate appellate review of his own trial in that, so defendant\u2019s counsel contends, these transcripts would show that the witness, Jerome Oliver, appeared at the trials of Parker and that defendant had need of the transcripts of Parker\u2019s trials in order to demonstrate to the appellate court what the testimony of the witness, Oliver, would: have: been had that witness been available at defendant\u2019s trial. He further contends that because he was indigent, the State was obligated to furnish him the requested transcripts free of charge. We do not. agree.\nThe transcripts requested were not of any prior proceedings in defendant\u2019s case. They were of proceedings which occurred after defendant\u2019s trial and in which defendant was not a party. Their only possible use to defendant would have been to show on this appeal what the testimony of the missing witness would have been had the witness been available at defendant\u2019s trial. An affidavit of the witness would have served the same purpose, yet defense counsel made no effort to obtain one. At defendant\u2019s trial in October 1973 defendant\u2019s counsel admitted that, though he had been appointed to represent defendant some sixty days previously, he had never talked with this witness. At the sentencing hearing which took place a year later, in October 1974, defense counsel still had not interviewed this witness whose testimony he contends was so important to his client\u2019s defense. A readily available alternative method for obtaining the information sought by the transcripts was never utilized by defendant\u2019s attorney. We find ho error in the denial of his motion that defendant be furnished free copies of the transcripts of the Parker trials. See State v. McAllister, 287 N.C. 178, 214 S.E. 2d 75 (1975).\nFollowing return of the verdict finding him guilty, defendant moved in arrest of judgment on the ground that he had not been properly arraigned. In support of this motion, defense counsel contended \u201c[t]here never was a plea in this matter entered.\u201d In this connection the record shows that upon the call of the case for trial the prosecuting attorney read the bill of indictment and asked how defendant pled. At that point defense counsel, before entering a plea, made his motion for a continuance. That motion was denied, the jury was selected, sworn and impaneled, and the trial proceeded. The record before us showing the proceedings in the trial court does not disclose that a formal plea was entered except for the recitation in the order signed by the trial judge by which prayer for judgment was continued. That order contains the recitation that \u201cthe defendant through his attorney, Jerry Clayton, and in his own proper person plead [sic] not guilty.\u201d In any event, we find that defendant has suffered no deprivation of any substantial right because the minutes of the trial court may not otherwise reflect the formal entry of a not guilty plea. The record before us makes abundantly clear that defendant, represented by counsel, was present in court when his case was called, when the indictment against him was read, when he was called upon to plead, when the jury was selected and impaneled, and thereafter throughout all of the trial proceedings at which witnesses for the State and for the defense were examined and cross-examined. In submitting the case to the jury, the trial judge instructed the jury that \u201c[t]o the charge in the bill of indictment the defendant has entered a plea of not guilty and under our law this raises in his behalf a presumption of innocence.\u201d\nHad defendant stood mute when called upon to plead, a plea of not guilty would have been entered for him. The trial here proceeded in all respects as though such a plea had been formally entered. We find no error in the court\u2019s denial of defendant\u2019s motion in arrest of judgment.\nNo error.\nChief Judge Brock and Judge Arnold concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten by Associate Attorney Robert R. Reilly for the State.",
      "Clayton, Myrick, McCain & Oettinger by Jerry B. Clayton and Kenneth B. Oettinger for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. EDWARD THOMAS HARRIS\nNo. 7514SC58\n(Filed 2 July 1975)\n1. Criminal Law \u00a7 91 \u2014 continuance \u2014 discretionary matter unless constitutional rights denied\nA motion for continuance is ordinarily addressed to the discretion of the trial judge and his ruling thereon is not subject to review absent a showing of abuse of discretion; however, when the motion is based on a right guaranteed by the Federal and State Constitutions, the question presented is one of law and not of discretion, and the decision of the trial judge is reviewable.\n2. Criminal Law \u00a7 91 \u2014 attorney absent from State \u2014 return on day of trial \u2014 continuance denied\nWhere defendant was arrested on 1 August 1973 upon a warrant charging the offense for which he was tried, shortly thereafter counsel was appointed to defend him, defendant\u2019s counsel left the State at the end of September and returned on 8 October 1973, and trial of defendant\u2019s case commenced that afternoon, defendant was not denied any of his constitutional rights by the court\u2019s denial of his motion to continue, since for 60 days prior to trial defendant was represented by the same counsel who appeared and represented him at trial and defendant was given ample opportunity to present witnesses to testify in his defense.\n3. Criminal Law \u00a7 40 \u2014 transcripts of separate trials \u2014 testimony of absent witness \u2014 affidavit proper\nThe trial court did not err in denying defendant\u2019s motion that he be furnished free transcripts of two trials of one Parker who was accused in a separate indictment of participating in the same robbery for which defendant was convicted, since their only possible use to defendant would have been to show on this appeal what the testimony of a missing witness would have been had the witness been available at defendant\u2019s trial, and an affidavit of the witness, which defense counsel made no effort to obtain, would have served the same purpose.\n4. Criminal Law \u00a7 22\u2014 entry of formal plea not in record \u2014 evidence that plea was entered\nThe trial court did not err in denying defendant\u2019s motion in arrest of judgment made on the ground that he had not been properly arraigned, though the record does not show that a formal plea was entered, where the record does show that defendant, represented by counsel, was present in court when his case was called, when the indictment against him was read, when he was called upon to plead, when the jury was selected and impaneled, and thereafter throughout all of the trial proceedings, the trial court instructed the jury that defendant entered a plea of not guilty, and the order signed by the trial judge by which prayer for judgment was continued recited that defendant entered a plea of not guilty.\nAppeal by defendant from Braswell, Judge. Judgment entered 3 October 1974 in Superior Court, Durham County. Heard in the Court of Appeals 20 March 1975.\nDefendant was tried on an indictment, proper in form, charging him with armed robbery of William D. Buck. The State\u2019s evidence showed: On the afternoon of 4 June 1973, Buck, an insurance company employee, went to the home of Mrs. Jane Caldwell to collect an account. While he waited in the house for Mrs. Caldwell to get her purse, two men walked into the house. Mrs. Caldwell returned to the room, and as Buck was marking the account book, one of the men said, \u201cThis is a robbery.\u201d Buck turned and was confronted by one of the men, whom Buck identified at the trial as the defendant, holding a knife. Defendant said, \u201cWe\u2019re going to take your money.\u201d Defendant held the knife next to Buck\u2019s ribs while the other man took Buck\u2019s wallet, which contained about $420.00. The two men then ran out the back door.\nMrs. Caldwell testified and identified defendant as one of the men who robbed Buck. She testified that she knew defendant because she \u201cwent with him for four and one-half years,\u201d but had quit going with him about three months before the robbery and had a new boyfriend when the robbery occurred.\nDefendant testified and denied taking part in the robbery. He testified that he had previously gone with Jane Caldwell but'had broken up with her, and he testified that one Jerome Oliver, had told him on the day of the robbery that Jane Caldwell and her new boyfriend had planned the robbery and that the new boyfriend and Oliver had carried it out.\nThe jury found defendant guilty, as charged, and from judgment imposing\u25a0\u25a0 a prison sentence, defendant appealed.\nAttorney General Edmisten by Associate Attorney Robert R. Reilly for the State.\nClayton, Myrick, McCain & Oettinger by Jerry B. Clayton and Kenneth B. Oettinger for defendant appellant."
  },
  "file_name": "0371-01",
  "first_page_order": 399,
  "last_page_order": 403
}