{ "id": 4149461, "name": "STATE OF NORTH CAROLINA v. RICHARD LIONEL COOK", "name_abbreviation": "State v. Cook", "decision_date": "2008-06-12", "docket_number": "No. 341A07", "first_page": "285", "last_page": "298", "citations": [ { "type": "official", "cite": "362 N.C. 285" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "647 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638954 ], "year": 2007, "opinion_index": -1, "case_paths": [ "/se2d/647/0433-01" ] }, { "cite": "184 N.C. App. 401", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8185940 ], "year": 2007, "opinion_index": -1, "case_paths": [ "/nc-app/184/0401-01" ] }, { "cite": "626 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635191 ], "weight": 7, "year": 2006, "pin_cites": [ { "page": "657" }, { "page": "657-58" }, { "page": "657" }, { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0655-01" ] }, { "cite": "647 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638954 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "439" }, { "page": "439-40", "parenthetical": "Wynn, J., dissenting" }, { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/se2d/647/0433-01" ] }, { "cite": "369 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "596", "parenthetical": "\"Assuming without deciding that the error complained of is of constitutional dimension, we are satisfied that the error was harmless beyond a reasonable doubt.\"" } ], "opinion_index": 0 }, { "cite": "322 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518818 ], "year": 1988, "pin_cites": [ { "page": "595", "parenthetical": "\"Assuming without deciding that the error complained of is of constitutional dimension, we are satisfied that the error was harmless beyond a reasonable doubt.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0591-01" ] }, { "cite": "291 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "656", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "306 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567546 ], "year": 1982, "pin_cites": [ { "page": "104", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0101-01" ] }, { "cite": "432 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "336", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "334 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532725 ], "year": 1993, "pin_cites": [ { "page": "328", "parenthetical": "citations and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0320-01" ] }, { "cite": "357 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "667", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "320 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723747 ], "year": 1987, "pin_cites": [ { "page": "336", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0328-01" ] }, { "cite": "457 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "872", "parenthetical": "citation omitted" }, { "page": "872" } ], "opinion_index": 0 }, { "cite": "340 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790199 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "317", "parenthetical": "citation omitted" }, { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0301-01" ] }, { "cite": "344 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696899, 4705096, 4700622, 4693330, 4702804 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0380-01", "/nc/316/0380-03", "/nc/316/0380-02", "/nc/316/0380-05", "/nc/316/0380-04" ] }, { "cite": "336 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "692-93", "parenthetical": "holding blood alcohol concentration retrograde analysis admissible when a \"qualified expert\" gave \"opinion testimony on scientific matters\" and noting the \"simple mathematical extrapolation\" performed" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 167", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520046 ], "year": 1985, "pin_cites": [ { "page": "168-69", "parenthetical": "holding blood alcohol concentration retrograde analysis admissible when a \"qualified expert\" gave \"opinion testimony on scientific matters\" and noting the \"simple mathematical extrapolation\" performed" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0167-01" ] }, { "cite": "547 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135924, 135628, 135820, 135989 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0386-01", "/nc/353/0386-04", "/nc/353/0386-03", "/nc/353/0386-02" ] }, { "cite": "526 U.S. 137", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11132917 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/0137-01" ] }, { "cite": "509 U.S. 579", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 355769 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/us/509/0579-01" ] }, { "cite": "542 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "241" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 81", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439554 ], "pin_cites": [ { "page": "89-90" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0081-01" ] }, { "cite": "145 L. Ed. 2d 87", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "528 U.S. 838", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9491360, 9491196, 9491302, 9490951, 9491111, 9491148, 9490991, 9491248, 9490835, 9491028, 9490934, 9490871, 9491065, 9490908 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/528/0838-14", "/us/528/0838-11", "/us/528/0838-13", "/us/528/0838-05", "/us/528/0838-09", "/us/528/0838-10", "/us/528/0838-06", "/us/528/0838-12", "/us/528/0838-01", "/us/528/0838-07", "/us/528/0838-04", "/us/528/0838-02", "/us/528/0838-08", "/us/528/0838-03" ] }, { "cite": "439 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "589" } ], "opinion_index": 0 }, { "cite": "335 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526577 ], "year": 1994, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0437-01" ] }, { "cite": "509 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "759", "parenthetical": "quoting State v. Patterson, 335 N.C. 437, 455, 439 S.E.2d 578, 589 (1994)" }, { "page": "759", "parenthetical": "emphasis added" }, { "page": "759" } ], "opinion_index": 0 }, { "cite": "349 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571595 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "585", "parenthetical": "quoting State v. Patterson, 335 N.C. 437, 455, 439 S.E.2d 578, 589 (1994)" }, { "page": "585" }, { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0573-01" ] }, { "cite": "429 U.S. 545", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6890 ], "weight": 6, "year": 1977, "pin_cites": [ { "page": "559", "parenthetical": "\"There is no general constitutional right to discovery in a criminal case, and Brady did not create one . . . .\"" }, { "page": "42", "parenthetical": "\"There is no general constitutional right to discovery in a criminal case, and Brady did not create one . . . .\"" } ], "opinion_index": 0, "case_paths": [ "/us/429/0545-01" ] }, { "cite": "157 L. Ed. 2d 382", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "540 U.S. 988", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8985632, 8985474, 8985763, 8985508, 8985542, 8985736, 8985609, 8985484, 8985710, 8985582, 8985520, 8985683, 8985653, 8985495, 8985561 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/540/0988-10", "/us/540/0988-01", "/us/540/0988-15", "/us/540/0988-04", "/us/540/0988-06", "/us/540/0988-14", "/us/540/0988-09", "/us/540/0988-02", "/us/540/0988-13", "/us/540/0988-08", "/us/540/0988-05", "/us/540/0988-12", "/us/540/0988-11", "/us/540/0988-03", "/us/540/0988-07" ] }, { "cite": "577 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "357 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491879 ], "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0001-01" ] }, { "cite": "176 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300839 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "107-08" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0104-01" ] }, { "cite": "184 N.C. App. 401", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8185940 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "410-11" }, { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0401-01" ] } ], "analysis": { "cardinality": 1148, "char_count": 35088, "ocr_confidence": 0.75, "pagerank": { "raw": 2.5158216128915093e-07, "percentile": 0.811007900460606 }, "sha256": "ae3fc80be94303cead3a5330aaf1ca4c9d7411c5520c7da2468806abbdcf909f", "simhash": "1:9b69646d065f25e1", "word_count": 5590 }, "last_updated": "2023-07-14T21:47:03.529976+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. RICHARD LIONEL COOK" ], "opinions": [ { "text": "EDMUNDS, Justice.\nIn this case, we consider whether the trial court should have allowed defendant\u2019s motion for continuance when the State failed to provide timely discovery to defendant. Although we conclude the trial court abused its discretion in failing to grant a continuance, we hold that the error was harmless beyond a reasonable doubt. We vacate the ruling of the Court of Appeals remanding this case to the trial court for a hearing concerning the trial court\u2019s denial of defendant\u2019s motion to continue and remand this case to the Court of Appeals for consideration of defendant\u2019s remaining assignments of error.\nAt trial, the State presented evidence that, on the evening of 28 October 2004, defendant was playing poker and drinking alcoholic beverages with friends and coworkers. Although he initially accepted an offer from one of the other players for a ride to the hotel in Burlington where he was staying, defendant drove away from the game in his own car. Two witnesses testified that they later observed defendant\u2019s automobile speeding and moving erratically moments before the crash, swerving around other vehicles and veering onto the shoulder. Shortly after midnight on 29 October 2004, defendant crashed his vehicle into a car parked on the shoulder of Interstate 40/85. Three men were sitting inside the parked car and as a result of the impact, Anibal Amaya Guevara was killed. The other two occupants, Adan Guerrero Rosales and Sergio Guerrero Rosales, suffered serious injuries.\nDefendant complained of pain at the scene and was taken to a hospital. A paramedic in the ambulance smelled alcohol on defendant\u2019s breath and was advised by defendant that he had consumed a couple of beers. At the hospital, an emergency department physician wrote on defendant\u2019s medical records that defendant was \u201cintoxicated.\u201d A blood sample drawn at 1:38 a.m. indicated that defendant had a blood alcohol concentration of 0.059 grams of alcohol per 100 milliliters of blood. The same toxicology screen also yielded a positive result for amphetamines and marijuana. A second blood sample, drawn at 3:00 a.m., showed defendant had a blood alcohol concentration of 0.03 grams of alcohol per 100 milliliters of blood. The hospital\u2019s medical records for defendant also included a 5:30 a.m. notation that defendant \u201c[a]dmits to [alcohol] and cannabis.\u201d\nOn 14 February 2005, defendant was indicted for second-degree murder and two counts of assault with a deadly weapon inflicting serious injury, as well as for several other charges that were withdrawn before trial. On 23 March 2005, defendant filed a \u201cRequest for Voluntary Disclosure\u201d pursuant to Article 48 of Chapter 15A of the North Carolina General Statutes, serving a copy on the Office of the District Attorney. In this request, defendant sought, among other things, the name and curriculum vitae of each expert witness the State intended to call, a concise and specific statement of each expert opinion the State intended to present, and the results of all reports of any scientific tests or studies made in connection with the case. Defendant filed a second similar discovery request on 19 January 2006.\nThe State retained Paul Glover as an expert witness in blood analysis and the effects of alcohol and drugs on human performance and behavior. Glover was a research scientist and training specialist employed by the Forensic Test for Alcohol Branch of the North Carolina Department of Health and Human Services. Before defendant\u2019s trial, Glover had testified approximately one hundred times in North Carolina courts regarding toxicology reports.\nIn a report dated 13 January 2006, Glover prepared a retrograde extrapolation of defendant\u2019s blood alcohol concentration at the time of the crash. Retrograde extrapolation is a mathematical analysis in which a known blood alcohol test result is used to determine what an individual's blood alcohol level would have been at a specified earlier time. The analysis determines the prior blood alcohol level on the bases of (1) the time elapsed between the occurrence of the specified earlier event (e.g., a vehicle crash) and the known blood test, and (2) the rate of elimination of alcohol from the subject\u2019s blood during the time between the event and the test. Glover\u2019s initial retrograde extrapolation report for defendant utilized defendant\u2019s 3:00 a.m. blood test along with an average blood alcohol elimination rate of 0.0172 grams of alcohol per 100 milliliters of blood per hour. This analysis indicated that defendant\u2019s blood alcohol concentration was 0.08 grams of alcohol per 100 milliliters of blood at the time of the crash.\nDefendant\u2019s trial had been set for Monday, 20 February 2006. On Wednesday, 15 February 2006, the State notified defendant that Glover would testify as an expert witness, supplying Glover\u2019s curriculum vitae but no other information. Two days later, on the afternoon of Friday, 17 February 2006, the State provided defendant with Glover\u2019s 13 January 2006 retrograde extrapolation report. The hearing transcript indicates that the prosecutor received the written report on that Friday.\nUpon receiving the report, defendant immediately filed a motion to continue the trial for at least sixty days. Citing N.C.G.S. \u00a7 15A-903(a)(2), which regulates discovery of expert testimony, defendant argued that the State had failed to notify him of Glover\u2019s expert opinion within a reasonable time before trial. Defendant\u2019s counsel averred in the motion that he was unfamiliar with blood alcohol concentration retrograde extrapolation and that, as a result of the late notice, he lacked sufficient time to find and consult an expert for defendant.\nThe trial court heard defendant\u2019s motion to continue the following Monday. Although defense counsel stated to the court that he sought a continuance because he needed time to retain an expert, the discussion among the court, defense counsel, and the prosecutor focused almost entirely on the admissibility of retrograde extrapolation testimony and whether Glover could be recognized as an expert. After the court instructed the prosecutor that he could not discuss Glover\u2019s proposed testimony in his opening statement, the court denied defendant\u2019s motion to continue and the trial began.\nGlover testified that he was able to calculate the specific rate at which defendant metabolized alcohol because defendant\u2019s blood was tested at two different times after the crash. Over defendant\u2019s objections, Glover testified that, by utilizing defendant\u2019s actual blood alcohol elimination rate of 0.0147 in lieu of an average blood alcohol elimination rate of 0.0172, he calculated defendant had a blood alcohol concentration of 0.07 at the time of the crash. This concentration level was lower than the 0.08 concentration Glover calculated in his January 2006 report, which had been based on a single blood test and an average rate of elimination. Glover further testified that the toxicology screen showed both amphetamines and marijuana in defendant\u2019s blood system. In Glover\u2019s expert opinion, the combination of alcohol, amphetamines, and marijuana in defendant\u2019s system could have a synergistic effect, increasing defendant\u2019s impairment.\nDefendant presented no evidence. The jury found defendant guilty of second-degree murder and both counts of assault with a deadly weapon inflicting serious injury. The trial court sentenced defendant to consecutive prison terms of 176 to 221 months for second-degree murder and 27 to 42 months for each count of assault. Defendant appealed his second-degree murder conviction to the Court of Appeals, arguing in part that the trial court abused its discretion by denying his motion to continue.\nIn a divided opinion, the Court of Appeals found no error in part and remanded in part. In its mandate remanding the case, the majority instructed the trial court to hold a hearing to make findings of fact and conclusions of law concerning, among other things, whether the State complied with N.C.G.S. \u00a7 15A-903 (\u201cDisclosure of evidence by the State-Information subject to disclosure\u201d) and N.C.G.S. \u00a7 15A-907 (\u201cContinuing duty to disclose\u201d) when it provided Glover\u2019s curriculum vitae and retrograde extrapolation report. State v. Cook, 184 N.C. App. 401, 410-11, 647 S.E.2d 433, 439 (2007). The dissenting judge believed this issue was controlled by a prior Court of Appeals opinion, State v. Fuller, 176 N.C. App. 104, 626 S.E.2d 655 (2006), and accordingly would have affirmed the trial court\u2019s denial of the motion to continue. Cook, 184 N.C. App. at 413, 647 S.E.2d at 439-40 (Wynn, J., dissenting). The majority preserved defendant\u2019s remaining assignments of error for consideration after the trial court\u2019s hearing and entry of order on remand. Id. at 411, 647 S.E.2d at 439.\nThe State appeals to this Court as of right on the basis of the dissent, arguing that the Court of Appeals erred by remanding the case for a hearing on the trial court\u2019s denial of defendant\u2019s motion to continue. In response, defendant initially contends that the State\u2019s appeal should be dismissed because the State\u2019s briefed arguments exceed the scope of the dissent, which focused on whether the Court of Appeals holding in Fuller controlled this case. In addition, defendant filed with this Court a separate \u201cMotion To Dismiss State\u2019s Appeal Or, In The Alternative, To Strike The State\u2019s Brief,\u201d repeating the arguments made in its brief concerning the scope of the State\u2019s appeal. Although Fuller is distinguishable from the case at bar, Fuller involved issues of unfair surprise and the trial court\u2019s denial of the defendant\u2019s motion to exclude evidence when the State unexpectedly advised on the day of trial that it would present an expert on retrograde extrapolation. We conclude that the State\u2019s arguments fall within the scope of the dissent and deny defendant\u2019s motion to dismiss the State\u2019s appeal.\nDefendant contends the State, within a reasonable time before trial, failed to provide sufficient notice that Glover would be called as an expert witness, failed to provide sufficient notice of the nature of Glover\u2019s expert testimony, and failed to provide a copy of Glover\u2019s retrograde extrapolation report. Defendant maintains that he was prejudiced both by the State\u2019s late provision of discovery and by the court\u2019s denial of his motion to continue. As to each issue, defendant presents arguments based on state and federal constitutional grounds and on statutory grounds.\nTurning first to defendant\u2019s contentions concerning the timeliness of the discovery, his rights to discovery are statutory. Constitutional rights are not implicated in determining whether the State complied with these discovery statutes. \u201cThere is no general constitutional or common law right to discovery in criminal cases.\u201d State v. Haselden, 357 N.C. 1, 12, 577 S.E.2d 594, 602 (citations omitted), cert. denied, 540 U.S. 988, 157 L. Ed. 2d 382 (2003); see also Weatherford v. Bursey, 429 U.S. 545, 559, 51 L. Ed. 2d 30, 42 (1977) (\u201cThere is no general constitutional right to discovery in a criminal case, and Brady did not create one . . . .\u201d). We will address defendant\u2019s constitutional arguments below when we consider whether he was prejudiced by the trial court\u2019s denial of his motion for a continuance.\nThe discovery process for criminal cases within the original jurisdiction of our superior courts is governed by Article 48 of Chapter 15A of the North Carolina General Statutes. N.C.G.S. \u00a7 15A-901 (2007). Before filing a motion for discovery \u201cbefore a judge,\u201d a defendant must make a written request for voluntary discovery from the State. Id. \u00a7 15A-902(a) (2007). If the State voluntarily complies with the discovery request, \u201cthe discovery is deemed to have been made under an order of the court,\u201d id. \u00a7 15A-902(b) (2007), and the State then has a continuing duty to disclose additional evidence or witnesses:\nIf a party, who is required to give or who voluntarily gives discovery pursuant to this Article, discovers prior to or during trial additional evidence or witnesses, or decides to use additional evidence or witnesses, and the evidence or witness is or may be subject to discovery or inspection under this Article, the party must promptly notify the attorney for the other party of the existence of the additional evidence or witnesses.\nId. \u00a7 15A-907 (2007).\nHere, defendant filed two requests for voluntary discovery. Because the record indicates that the State thereafter voluntarily provided some timely discovery pursuant to N.C.G.S. \u00a7 15A-902(a), it was obligated to provide discovery as to its expert witness and the expert\u2019s report, pursuant to N.C.G.S. \u00a7 15A-903(a)(2) and (b). Section 15A-903(a)(2) governs the State\u2019s disclosure of expert witnesses and any reports made by such witnesses. Specifically, the State must:\n(2) Give notice to the defendant of any expert witnesses that the State reasonably expects to call as a witness at trial. Each such witness shall prepare, and the State shall furnish to the defendant, a report of the results of any examinations or tests conducted by the expert. The State shall also furnish to the defendant the expert\u2019s curriculum vitae, the expert\u2019s opinion, and the underlying basis for that opinion. The State shall give the notice and furnish the materials required by this subsection within a reasonable time prior to trial, as specified by the court.\nId. \u00a7 15A-903(a)(2) (2007) (emphasis added). In discussing a previous version of this statute, we stated that \u201c \u2018[t]he purpose of discovery under our statutes is to protect the defendant from unfair surprise by the introduction of evidence he cannot anticipate.\u2019 \u201d State v. Murillo, 349 N.C. 573, 585, 509 S.E.2d 752, 759 (1998) (quoting State v. Patterson, 335 N.C. 437, 455, 439 S.E.2d 578, 589 (1994)), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999).\nWe conclude the State violated N.C.G.S. \u00a7 15A-903(a)(2) when it failed to furnish defendant with sufficient notice within a reasonable time prior to trial. Once the voluntary discovery process began when defendant made his first request for voluntary discovery on 23 March 2005 and the State initiated its response, a continuing duty arose and lasted throughout the trial requiring the State to disclose additional evidence or witnesses. N.C.G.S. \u00a7 15A-907 (stating the continuing duty to \u201cpromptly notify\u201d the opposing party of additional evidence or witnesses persists \u201cprior to or during trial\u201d). Although Glover\u2019s report was completed five weeks before trial was scheduled to begin, the State failed to provide notice that it planned to call Glover as a witness until five days before trial. Even then, the State provided only Glover\u2019s curriculum vitae, which was insufficient to put defendant on notice of the State\u2019s intent to use blood alcohol concentration retrograde extrapolation evidence at trial.\nNot until the afternoon of 17 February 2006 did the State furnish Glover\u2019s report to defendant. Although the prosecutor apparently provided the report as soon as it was received in the District Attorney\u2019s office, N.C.G.S. \u00a7 15A-903(a)(2) requires that the State\u2019s expert witnesses \u201cshall prepare, and the State shall furnish to the defendant, a report of the results of any examination or tests conducted by the expert.\u201d The record reveals that approximately five weeks elapsed between the preparation of the report and its disclosure to defendant the Friday before trial. Only upon receipt of the report did defendant learn he would be facing retrograde extrapolation testimony. Defendant then had just a weekend to find his own expert in this field and to decide whether to call such a witness to counter the State\u2019s evidence. Thus, under the facts of this case, the State\u2019s last-minute piecemeal disclosure of its expert\u2019s name, curriculum vitae, and written report was not \u201cwithin a reasonable time prior to trial\u201d as required by N.C.G.S. \u00a7 15A-903(a)(2).\nThe State nevertheless argues that this statute does not apply because it is \u201cunclear\u201d whether blood alcohol concentration retrograde extrapolation requires expert testimony since the extrapolation is performed by a \u201csimple mathematic formula.\u201d If the process does not require an expert, the result is not an examination or test subject to discovery under N.C.G.S. \u00a7 15A-903(a)(2).\nThis argument is undermined by the State\u2019s pretrial conduct. The State provided Glover\u2019s name, curriculum vitae, and report to defendant and filed a corresponding \u201cdiscovery certificate\u201d with the trial court, just as it would with any other expert witness. In addition, unlike its lay witnesses, the State qualified Glover on voir dire as an expert on \u201cblood alcohol physiology, pharmacology, and the effects of drugs on human performance and behavior\u201d and questioned Glover on direct examination regarding his \u201cspecialty\u201d and \u201cspecialized degrees or training experience.\u201d Moreover, North Carolina courts have consistently regarded blood alcohol retrograde extrapolation as the domain of expert witnesses. See, e.g., State v. Davis, 142 N.C. App. 81, 89-90, 542 S.E.2d 236, 241 (examining the \u201cexpert testimony\u201d of a toxicologist under the standard of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 125 L. Ed. 2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 143 L. Ed. 2d 238 (1999), and noting \u201c[w]e have accepted the reliability of extrapolation evidence since 1985\u201d), disc. rev. denied, 353 N.C. 386, 547 S.E.2d 818 (2001); State v. Catoe, 78 N.C. App. 167, 168-69, 336 S.E.2d 691, 692-93 (1985) (holding blood alcohol concentration retrograde analysis admissible when a \u201cqualified expert\u201d gave \u201copinion testimony on scientific matters\u201d and noting the \u201csimple mathematical extrapolation\u201d performed), disc. rev. denied, 316 N.C. 380, 344 S.E.2d 1 (1986).\nRelying on the dissent in the Court of Appeals, the State also argues that State v. Fuller, 176 N.C. App. 104, 626 S.E.2d 655 (2006), should have controlled. In Fuller, the defendant pled guilty in district court to driving while impaired, then appealed to the superior court for trial de novo. Id. at 107, 626 S.E.2d at 657. On the morning of trial, the State gave notice to the defendant that it intended to call an expert witness on blood alcohol concentration retrograde extrapolation. Id. The trial court denied the defendant\u2019s motion to prevent the State from calling the expert witness and the Court of Appeals found no error. 176 N.C. App. at 107-08, 626 S.E.2d at 657-58.\nFuller is distinguishable from the case at bar. The statutory discovery requirements at issue here were inapplicable in Fuller because, as the Fuller court itself noted, these discovery statutes apply only to cases within the original jurisdiction of the superior court. Id. at 107-08, 626 S.E.2d at 657; N-C.G.S. \u00a7 15A-901. Moreover, the defendant in Fuller attempted to have the expert\u2019s testimony excluded outright. Here, in contrast, defendant instead sought only a continuance to prepare for Glover\u2019s testimony. Accordingly, the Court of Appeals panel was not bound by the holding in Fuller.\nThe State points out that the Court of Appeals noted in Fuller that the defendant \u201cwas on notice that [extrapolation] evidence might be offered\u201d in the superior court trial because extrapolation evidence \u201chas been accepted in this State since 1985.\u201d Id. at 108, 626 S.E.2d at 657. The State now adopts this approach and argues defendant \u201cshould have known\u201d extrapolation evidence would be presented because the Court of Appeals in Catoe first approved admission of such evidence in 1985, and defendant \u201ccannot close his eyes and hope the State will not offer certain testimony.\u201d\nThis argument echoes our statement in Murillo that \u201c[t]he purpose of discovery under our statutes is to protect the defendant from unfair surprise by the introduction of evidence he cannot anticipate.\" 349 N.C. at 585, 509 S.E.2d at 759 (emphasis added). Here, defendant had no effective ability to \u201canticipate\u201d the evidence, as that term is used in Murillo. For example, while a defendant in a burglary or forgery case reasonably might anticipate the State will use fingerprint evidence, the defendant can do little to prepare to confront that evidence until he or she has seen the latent prints the State intends to use and copies of the report prepared by the State\u2019s expert. Similarly here, defendant\u2019s mere knowledge that the process of retrograde extrapolation existed did not require him to anticipate that the State would pursue this line of inquiry, retain an expert, and present such evidence. Even if defendant foresaw that the State would present such evidence, he had virtually no ability to prepare an effective response until he knew the result of the State\u2019s testing.\nDefendant argues that no statute under Article 48 provides exceptions under which the State can fail to comply with the discovery statutes and rely on defendant\u2019s educated guess as to what evidence the State will present. This argument is persuasive. The language of N.C.G.S. \u00a7 15A-903(a)(2) is mandatory, providing that once voluntary discovery is initiated, the State \u201cmust\u201d \u201c[g]ive notice to the defendant of any expert witnesses that the State reasonably expects to call as a witness at trial.\u201d Each expert witness \u201cshall prepare\u201d and the State \u201cshall furnish\u201d a report of any examinations or tests conducted by the expert. The State \u201cshall furnish\u201d an expert\u2019s curriculum vitae and opinion \u201cwithin a reasonable time prior to trial.\u201d The State\u2019s proposed exception to these statutory provisions, if accepted, would invite sandbagging.\nAlthough we conclude that the State violated the pertinent discovery statutes, defendant moved for a continuance without seeking more severe sanctions for the violation. The trial court has discretionary power under N.C.G.S. \u00a7 15A-910(a)(2) to \u201c[g]rant a continuance or recess\u201d if a party fails to comply with the discovery statutes. Id. \u00a7 15A-910(a)(2) (2007). \u201cDetermining whether the State failed to comply with discovery is a decision left to the sound discretion of the trial court.\u201d State v. Jackson, 340 N.C. 301, 317, 457 S.E.2d 862, 872 (1995) (citation omitted). \u201cThe trial court may be reversed for an abuse of discretion in this regard only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Carson, 320 N.C. 328, 336, 357 S.E.2d 662, 667 (1987) (citation omitted).\nAfter careful consideration, we conclude that the trial court\u2019s denial of defendant\u2019s motion to continue was an abuse of discretion. As noted above, defendant\u2019s motion was filed the Friday before trial and heard the day the trial was scheduled to begin. Defendant\u2019s written motion cited N.C.G.S. \u00a7 15A-903, and at the hearing defense counsel advised the trial court, \u201cI don\u2019t believe I had sufficient time ... to retain an expert on Mr. Cook\u2019s behalf.\u201d Nevertheless, the participants in the hearing focused almost entirely on whether Glover could be qualified as an expert and whether testimony based upon blood alcohol concentration retrograde extrapolation had been found admissible in previous cases. Distracted by these questions, the trial court made no mention during the hearing of the discovery statutes nor of the timeliness of the notice to defendant. Once the trial court determined that the evidence was admissible, it denied defendant\u2019s motion. We are satisfied that a continuance would have alleviated any \u201cunfair surprise\u201d to defendant, Murillo, 349 N.C. at 585, 509 S.E.2d at 759, and would have \u201cafforded the defense opportunity to meet [the State\u2019s] evidence,\u201d Jackson, 340 N.C. at 317, 457 S.E.2d at 872. Accordingly, we hold that the trial court abused its discretion in denying defendant\u2019s motion to continue.\nIn so holding, we are not establishing a bright line rule automatically mandating a continuance whenever a party is untimely in providing discovery. The pertinent statute itself only requires disclosure \u201cwithin a reasonable time prior to trial, as specified by the court.\u201d N.C.G.S. \u00a7 15A-903(a)(2). Often, as here, a party providing discovery only a short time before trial has just received it and is disclosing it immediately. We acknowledge that trial judges must have substantial latitude to deal with the myriad unforeseeable circumstances that arise during the course of litigation. The trial court here faced a familiar but difficult decision where the motion had to be considered while the jury pool waited. Nevertheless, the information was prepared by the State\u2019s expert weeks before trial but was only revealed to defendant at the eleventh hour. The hearing transcript indicates that, even before receiving Glover\u2019s written report, the prosecutor planned to use retrograde extrapolation analysis, though no notice had been provided to defendant. The furnishing to defendant of Glover\u2019s curriculum, vitae the Wednesday before trial was, standing alone, insufficient to put defendant on notice of the type of expert testimony he faced. While we are sympathetic to the trial court\u2019s dilemma, we believe that, in the absence of a satisfactory explanation in the record for the delay between the State\u2019s expert\u2019s preparation of the report and its provision to defendant by the prosecutor, the trial court should have allowed a continuance. In so holding, we express no opinion as to an appropriate duration, a matter best left to the discretion of the trial court.\nWe next consider whether defendant was prejudiced by the error. Defendant raises the constitutional issues noted above, contending that the denial of his motion to continue violated his due process and confrontation rights under the United States and North Carolina Constitutions because \u201c[i]mplicit in these constitutional provisions is the requirement that an accused have a reasonable time to investigate, prepare and present his defense.\u201d State v. Tunstall, 334 N.C. 320, 328, 432 S.E.2d 331, 336 (1993) (citations and internal quotation marks omitted). However, \u201c[t]he denial of a motion to continue, even when the motion raises a constitutional issue, 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.\u201d State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982) (citation omitted). Therefore, even though we have concluded that the trial court erred in denying defendant\u2019s motion to continue, the error is subject to harmless error analysis. \u201cA violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt.\u201d N.C.G.S. \u00a7 15A-1443(b) (2007).\nHere, even if we assume without deciding that defendant\u2019s constitutional rights were violated by the denial of a continuance, the record demonstrates that the error was harmless beyond a reasonable doubt. See State v. Gardner, 322 N.C. 591, 595, 369 S.E.2d 593, 596 (1988) (\u201cAssuming without deciding that the error complained of is of constitutional dimension, we are satisfied that the error was harmless beyond a reasonable doubt.\u201d). Defendant\u2019s continuance motion only sought more time to prepare a defense for Glover\u2019s testimony. However, even if a continuance had provided defendant sufficient time to muster resources to rebut Glover\u2019s testimony utterly, the State had abundant other admissible evidence of defendant\u2019s impairment, including witnesses who observed defendant\u2019s consumption of alcohol at the poker game; witnesses who saw defendant\u2019s erratic driving just before the crash; a paramedic in the ambulance who smelled alcohol on defendant\u2019s breath; defendant\u2019s admission to the paramedic that he had consumed alcohol; a physician\u2019s note on defendant\u2019s medical records that defendant was \u201cintoxicated\u201d; the results of two blood samples showing alcohol, amphetamines, and marijuana in defendant\u2019s system shortly after the wreck; and the notation in defendant\u2019s medical records on the morning after the crash that he admitted to alcohol and marijuana consumption. Glover\u2019s extrapolation testimony was but a thread in the web of evidence presented by the State.\nIn addition, the trial court\u2019s instructions to the jury on second-degree murder did not require the State to prove that defendant was impaired. The court followed the pattern instruction on second-degree murder by motor vehicle and listed impairment as one of several methods of satisfying the element of the offense that defendant violated a law governing the operation of a motor vehicle. The pertinent instructions were:\nNow, I charge you for you to find the defendant, Richard Cook, guilty of second degree murder, the State must prove six things beyond a reasonable doubt.\nFourth, that the defendant violated the following law or laws of this State governing the operation of the motor vehicle.\nThe .law of this State makes it unlawful to drive while impaired, to drive recklessly and [to] exceed the posted speed limit. For you to find the defendant guilty of impaired driving, the State must prove these things beyond a reasonable doubt. That the defendant was driving a vehicle. That he was driving the vehicle on a highway within the State. And that at the time the defendant was driving that vehicle, he was either: (A) Was under the influence of an impairing [substance]. Alcohol is an impairing substance. Amphetamines is an impairing substance. Marijuana is an impairing substance.\nOr (B) The defendant had consumed sufficient alcohol at any relevant time after the driving the defendant had an alcohol concentration of .08 or more grams of alcohol in his blood. . . .\nNow, for you to find the defendant guilty of reckless driving, the State must prove two things. That the defendant drove a vehicle on a highway. I-40/I-85 in Alamance County is a highway.\nAnd second, that he drove that vehicle on I-85/I-40 by speeding, running another vehicle off the road, and hitting a parked vehicle in the emergency lane. And in so doing, he acted carelessly and heedlessly in willful or wanton disregard to the rights or safety of others.\nAnd for you to find the defendant guilty, of exceeding the posted speed limit, the State must prove beyond a reasonable doubt that the defendant drove a vehicle on a highway in this State at a speed exceeding the posted speed limit.\nThus, to establish the fourth element, the State could prove either reckless driving or speeding as an alternative to impairment. As detailed above, numerous witnesses testified to defendant\u2019s erratic driving and speeding before the wreck. Accordingly, the State was not limited to proof that defendant was impaired to secure a conviction of second-degree murder by vehicle.\nWe find beyond a reasonable doubt that the trial court\u2019s denial of defendant\u2019s motion to continue was harmless error. Although the State violated N.C.G.S. \u00a7 15A-903(a)(2) when it failed to provide defendant with the required information \u201cwithin a reasonable time prior to trial,\u201d and the trial court abused its discretion in failing to grant defendant\u2019s motion to continue the trial, defendant suffered no prejudice.\nWe reverse the decision of the Court of Appeals as to the appeal-able issue of right, that is, whether the Court of Appeals erred in remanding this case to the trial court for a hearing on the trial court\u2019s denial of defendant\u2019s motion to continue, and we vacate the Court of Appeals remand to the trial court. The remaining issues addressed by the Court of Appeals in its opinion are not properly before this Court and its decision as to these issues remains undisturbed. This case is remanded to the Court of Appeals for consideration of defendant\u2019s remaining assignments of error.\nREVERSED IN PART AND REMANDED.", "type": "majority", "author": "EDMUNDS, Justice." } ], "attorneys": [ "Roy Cooper, Attorney General, by Isaac T. Avery, III, Special Counsel, for the State-appellant.", "Constance E. Widenhouse, Assistant Appellate Defender, and Staples S. Hughes, Appellate Defender, for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RICHARD LIONEL COOK\nNo. 341A07\n(Filed 12 June 2008)\n1. Appeal and Error\u2014 appealability \u2014 motion to dismiss\u2014 scope of dissent\nDefendant\u2019s motion to dismiss the State\u2019s appeal in a second-degree murder case is denied even though defendant contends the State\u2019s briefed arguments exceed the scope of the dissent, because: (1) although the case cited by the State is distinguishable from the instant case, it involved the issues of unfair surprise and the trial court\u2019s denial of defendant\u2019s motion to exclude evidence when the State unexpectedly advised on the day of trial that it would present an expert on retrograde extrapolation; and (2) the State\u2019s arguments fall within the scope of the dissent.\n2. Criminal Law\u2014 denial of motion to continue \u2014 abuse of discretion \u2014 harmless error\nAlthough the trial court abused its discretion in a second-degree murder case by failing to grant a continuance based on the State\u2019s failure to provide sufficient notice of an expert witness, failure to provide sufficient notice of the nature of the expert testimony, and failure to provide a copy of the expert\u2019s retrograde extrapolation report within a reasonable time before trial, the error was harmless beyond a reasonable doubt because: (1) defendant\u2019s continuance motion only sought more time to prepare a defense for the expert\u2019s testimony; (2) even if a continuance had provided defendant sufficient time to muster resources to rebut the expert\u2019s testimony, the State had abundant other admissible evidence of defendant\u2019s impairment including witnesses who observed defendant\u2019s consumption of alcohol at a poker game; witnesses who saw defendant\u2019s erratic driving just before the crash; a paramedic in the ambulance who smelled alcohol on defendant\u2019s breath; defendant\u2019s admission to the paramedic that he had consumed alcohol; a physician\u2019s note on defendant\u2019s medical records that defendant was intoxicated; the results of two blood samples showing alcohol, amphetamines, and marijuana in defendant\u2019s system shortly after the wreck; and the notation in defendant\u2019s medical records on the morning after the crash that he admitted to alcohol and marijuana consumption; and (3) the trial court\u2019s instructions to the jury on second-degree murder did not require the State to prove that defendant was impaired since the State could prove either reckless driving or speeding as an alternative to impairment, and numerous witnesses testified to defendant\u2019s erratic driving and speeding before the wreck. The ruling of the Court of Appeals remanding to the trial court for a hearing concerning the trial court\u2019s denial of defendant\u2019s motion to continue is vacated, and this case is remanded to the Court of Appeals for consideration of defendant\u2019s remaining assignments of error.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 184 N.C. App. 401, 647 S.E.2d 433 (2007), finding no error in part and remanding in part judgments entered 22 February 2006 by Judge J.B. Allen, Jr. in Superior Court, Alamance County. Heard in the Supreme Court 18 March 2008.\nRoy Cooper, Attorney General, by Isaac T. Avery, III, Special Counsel, for the State-appellant.\nConstance E. Widenhouse, Assistant Appellate Defender, and Staples S. Hughes, Appellate Defender, for defendant-appellee." }, "file_name": "0285-01", "first_page_order": 363, "last_page_order": 376 }