IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-499
Filed: 17 November 2015
Carteret County, No. 14 CRS 50372; 14 CRS 50376-77
STATE OF NORTH CAROLINA
v.
DUSTIN JAMAL WARREN
Appeal by defendant from judgment entered 10 September 2014 by Judge
Benjamin G. Alford in Carteret County Superior Court. Heard in the Court of
Appeals 22 October 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth
Leonard McKay, for the State.
James R. Parish, for defendant-appellant.
TYSON, Judge.
Dustin Jamal Warren (“Defendant”) appeals from a jury’s verdict finding him
guilty of possessing precursor chemicals with the intent to manufacture
methamphetamine, manufacturing methamphetamine, and conspiracy to
manufacture methamphetamine. We find no error in part, and dismiss Defendant’s
remaining arguments without prejudice to pursue them through a motion for
appropriate relief.
I. Background
STATE V. WARREN
Opinion of the Court
Shortly before 12:00 p.m. on 29 January 2014, Defendant drove his gold Buick
to the Seashore Motel in Atlantic Beach, North Carolina. Accompanying Defendant
was Heather Kennon (“Kennon”), an acquaintance Defendant knew through his
brother.
Defendant pulled up to the motel office, Kennon alighted the car, and went into
the office to register for a room. Scott Way (“Way”), the manager of the Seashore
Motel, watched as Kennon alighted from the front passenger seat. Kennon filled out
a registration card and paid for a room for the night. On the registration card,
Kennon listed her name and the license plate of Defendant’s gold Buick. Way
accepted the registration and payment and gave her a key to room 9. After checking
in, Way testified Kennon and Defendant stayed in the car for a “little while,” and then
proceeded into the room.
Approximately two hours after checking in, Kennon returned to the motel
office and asked for an extra space heater. Snow was on the ground that day, and it
was very cold outside. Carla Thomas (“Carla”), an assistant manager at the Seashore
Motel, explained to Kennon the motel is old and another space heater would likely
blow the circuit breaker.
Way brought extra blankets to room 9 and offered them in lieu of a second
space heater. Way testified a man opened the door roughly two or three inches and
“announced that they were in, you know, in – not decent,” and did not want the extra
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Opinion of the Court
blankets. Way testified he heard a male voice, and did not observe any males enter
or exit room 9 except for Defendant.
The next morning, Way and Carla began the process of checking out guests
and cleaning rooms previously rented. Around 9:00 or 9:30 a.m., Carla knocked on
the door of room 9 to ascertain whether Kennon and Defendant needed anything or
would like to register for another night.
After no answer, Carla announced her identity and that she was about to enter
the room. Carla unlocked the door and entered the room. She noticed a black bag
which contained, inter alia, a mask and a glue gun. Carla also noticed a pickle jar
turned upside-down with a dried white reside at the bottom. After viewing the
contents of room 9, Carla informed Way of her findings. Together, they determined
the police needed to be summoned. Way called 911.
A. Kennon’s Testimony
Kennan testified that on 28 January 2014, she met Defendant at the
DoubleTree Hotel in Atlantic Beach, North Carolina. Kennan and Defendant shared
a room at the hotel, where they injected and inhaled methamphetamine, respectively.
Defendant had already obtained the materials to make methamphetamine, with the
exception of cold packs. Kennon and Defendant stopped by Cassie Flowers’
(“Flowers”) residence to obtain cold packs.
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STATE V. WARREN
Opinion of the Court
On 29 January 2014, Kennon accompanied Defendant to the Seashore Motel.
After registering and paying for the room, Defendant parked the gold Buick in front
of room 9. Kennon testified Defendant brought a black suitcase into the room, which
contained the precursors to, and various supplies necessary to manufacture,
methamphetamine. Defendant began removing the precursors and supplies from the
suitcase and arranging them in preparation to make methamphetamine.
While Defendant prepared the supplies, Kennan injected herself with
methamphetamine she had received from Defendant the previous day. Kennan
attempted to assist Defendant in making methamphetamine. Defendant became
dissatisfied with Kennan’s assistance and manufactured the methamphetamine
alone, as Kennon looked on. Kennon testified the manufacturing process yielded
approximately 4.5 grams of methamphetamine.
After Defendant finished, he left the supplies in room 9 at the Seashore Motel
and they traveled to Anique Pittman’s (“Pittman”) residence. Pittman was
Defendant’s girlfriend. Kennon testified she, Defendant, Pittman, and Mark Thomas
(“Thomas”) drank beers, ingested methamphetamine, and spent the night. Kennon
testified Defendant had the key to room 9 and intended to return to the Seashore
Motel to retrieve the black suitcase and supplies prior to check out.
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STATE V. WARREN
Opinion of the Court
The next morning, Defendant left Kennon at Pittman’s house to retrieve the
materials left in room 9. Kennon testified while Defendant was gone, Thomas texted
Pittman’s phone “saying the law got [Defendant].”
B. Law Enforcement Investigation
In the midmorning hours of 30 January 2014, Atlantic Beach Police Lieutenant
Brian Prior (“Lieutenant Prior”) received a call regarding a potentially hazardous
chemicals and HAZMAT situation at the Seashore Motel. Upon arrival, Lieutenant
Prior made contact with Carla, who told him about the items she had discovered
inside room 9.
Lieutenant Prior entered the room, and observed: (1) a 7-up two liter bottle
with an unknown “red slushy residue” at the bottom; (2) plastic tubing; (3) a soda cap
that had been “hollowed out” with a tube placed though the cap and secured with
glue; (4) a funnel; (5) a face mask; (6) a glass jar with an unknown white powdery
substance at the bottom; (7) Coleman fuel; (8) cardboard containers with salt in them;
and (9) a used syringe located in the trashcan. Lieutenant Prior determined these
items were consistent with items in a methamphetamine lab, based on his training
and experience. Lieutenant Prior secured the room and obtained a search warrant.
After the search warrant was issued, room 9 was processed by North Carolina State
Bureau of Investigation (”SBI”) agents.
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STATE V. WARREN
Opinion of the Court
SBI Special Agent Kelly Ferrell (“Agent Farrell”) was in charge of responding
to clandestine laboratories found in the eastern portion of the state as a “Site Safety
Officer.” Agent Farrell was called to room 9 of the Seashore Motel to process a
suspected methamphetamine laboratory on 30 January 2014. Agent Farrell
documented the items located in room 9.
Agent Farrell analyzed the red slushy residue found in the bottom of the 7-up
bottle, which tested positive for hydrochloric acid, a precursor chemical for
methamphetamine. Agent Farrell also observed a bottle of Floweasy drain cleaner,
which contains sulfuric acid, and a Walgreens cold pack, which contains ammonium
nitrate. Agent Farrell testified both sulfuric acid and ammonium nitrate are
precursor chemicals for methamphetamine. Agent Farrell also observed various
other trappings of a methamphetamine laboratory in room 9, including: (1) masks;
(2) burnt aluminum foil; (3) a hot glue gun; (4) coffee filters; (5) green rubber gloves;
(6) a bottle of hydrogen peroxide; and (7) a two pack of Energizer brand batteries of
advanced lithium.
Agent Kennon testified the materials found in room 9 were “typical of what [is]
see[n]” at a methamphetamine lab using the “one-pot cook” method. Agent Farrell
testified: (1) it took her “less than a minute” to determine the materials found in room
9 were a clandestine methamphetamine laboratory; and (2) the precursor chemicals
found in room 9 were in fact used to produce methamphetamine.
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STATE V. WARREN
Opinion of the Court
Atlantic Beach Police Officer David Ennis (“Officer Ennis”) arrived at the
Seashore Motel and assisted Lieutenant Prior. Officer Ennis briefly looked inside
room 9 and sealed off the crime scene to ensure no one entered or exited except those
authorized to do so. Officer Ennis reviewed the registration card Kennon had filled
out at the time of check in. Officer Ennis ran the vehicle license plate number Kennon
listed on the registration card, and found the plate was issued to a Buick vehicle
registered to Defendant.
While Officer Ennis remained on the scene, he noticed a gold Buick enter the
Seashore Motel parking lot. Officer Ennis made contact with Defendant, the driver
of the car, and asked him why he was at the motel. Defendant replied he was “just
driving around.”
While talking to Defendant, Officer Ennis noticed two blue pills located in “the
grip of the driver’s side door” handle of Defendant’s vehicle. Defendant admitted the
pills were Adderall, a controlled substance. Officer Ennis instructed Defendant to
exit his vehicle, handcuffed him, and placed him under arrest for possession of a
controlled substance. Thomas was inside the car at the time of Defendant’s arrest
and was also arrested on unrelated charges.
Officer Ennis performed a pat down of Defendant and a key fell “from the lower
half of his body.” Officer Ennis picked up and examined the key, issued to room 9 at
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STATE V. WARREN
Opinion of the Court
the Seashore Motel. Defendant was transported to the Carteret County Detention
Center for processing.
C. Defendant’s Indictment and Pre-Trial Motions
Defendant was indicted with (1) possession and distribution of a
methamphetamine precursor; (2) manufacturing methamphetamine; and (3)
conspiracy to manufacture methamphetamine on 24 February 2014. Defendant
retained counsel approximately twenty-seven days after his arrest. Defendant was
represented by attorney Rodney Fulcher (“Fulcher”). At some point prior to 3
September 2014, Defendant, though counsel, made a motion to continue his case,
which was granted.
On 3 September 2014, Fulcher moved to withdraw as counsel. In support of
his motion, Fulcher stated “[a]s we've kind of gone along with it, I don't think
[Defendant] and I see eye-to-eye on everything. I don't think I can zealously represent
him at a trial based on the evidence, the conversations we've had.” Fulcher also
mentioned Defendant was unable to “continue finish hiring” him.
Defendant made a statement to the court at the motion hearing. Defendant
stated Fulcher had not talked to “none of [his] witnesses” and had not obtained “none
of the evidence.” Defendant stated he felt as if he was “being railroaded,” and “ask[ed]
for [Fulcher] to withdraw from [the] case, and we just proceed toward trial.”
Defendant also stated he would need “enough time to prepare for trial, and a lawyer
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Opinion of the Court
who’s going to do the job I asked him to do.” After hearing from Fulcher, Defendant,
and the State, the trial court denied both the motion to withdraw and motion to
continue.
That same day, Defendant, through counsel, made an “Application and Writ of
Habeas Corpus ad Testificandum” to secure the testimony of two defense witnesses,
Flowers and Thomas, who were in prison in North Carolina. On 4 September 2014,
Judge Benjamin Alford issued the writ and ordered the Carteret County Sheriff to
serve the writ and make Flowers and Thomas available for testimony at trial.
Defendant’s case was called for trial on 8 September 2014. Defendant made
another motion to continue. In support of his motion, Defendant stated defense
witnesses were subpoenaed on 3 September 2014, and many of the subpoenas had
not yet been served. Defendant argued Flowers and Thomas were material
witnesses, and Defendant would be prejudiced if they were not available to testify.
The State replied “the witnesses, some of them, are in custody, and we’ll get them
here.” The trial court denied Defendant’s motion to continue. Defendant then made
a motion to suppress the evidence found in room 9 as illegally obtained. The trial
court denied Defendant’s motion to suppress.
D. Defendant’s Trial and Sentencing
Defendant’s case proceeded to trial on 8 September 2014. At the close of State’s
evidence, on 9 September 2014, Defendant moved to dismiss the three charges, which
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STATE V. WARREN
Opinion of the Court
was denied. The court asked if Defendant would present any witnesses or evidence,
and Defendant indicated he would. Regarding the testimony of Flowers and Thomas,
Defendant’s counsel stated “I do not know if Mark Thomas had been writted back or
Cassie Flowers either. But I plan to call Lisa -- Richard Willis, and Anique Pittman.
All the other ones I am certain are here to testify.”
Defendant then called three witnesses on his behalf: Lisa Turner, Richard
Willis, and Anique Pittman. Before the closing of Defendant’s evidence, the following
exchange occurred between the Court and Defendant’s counsel:
THE COURT: . . . Anything from the defendant?
[Defendant’s Counsel]: Yes, Your Honor. We would bring
a couple questions about witnesses.
THE COURT: Yes, sir.
[Defendant’s Counsel]: Your Honor, if I may approach on
one witness?
THE COURT: Yes.
(Discussion off the record at the bench.)
THE COURT: All right. Mr. Fulcher, you have some
motion you want --
[Defendant’s Counsel]: I do, Your Honor. We would -- I
would like to call one witness, a Brandon Elps, for the
purposes of testifying to the truth of Ms. Kennon. He's over
in custody in our jail. It would be limited to the fact -- of
testimony, that she had, in previous occasions, gotten him
in trouble, went to the law on him and all that. So that
would be my motion, to have him over here.
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STATE V. WARREN
Opinion of the Court
And the other two witnesses would be -- and the
other two would be for Cassie Flowers in the Department
of Corrections, and Mark Thomas. They, too, would be
witnesses to show -- testify to the untruthfulness of Ms.
Kennon and things that she had said and done in the past.
And I would make a motion to continue, to get those
witnesses here.
...
THE COURT: It would appear to the Court that any writ
. . . that was issued by this Court was done last Thursday,
September the 4th, and the trial was scheduled -- was due
to start the 8th, and the person, Ms. Flowers, is not
currently in the Carteret County jail and neither is Mark
Thomas, is my understanding.
As to the other one, testifying about some alleged
bad act of Heather Kennon at some earlier time without
any connection to this case, would -- this Court does not
believe would have relevance to the charges for which the
defendant stands trial in this case, and would not grant a
continuance for that.
If you want to make an offer of proof as to that -- who
is it that’s in the Carteret County jail?
[Defendant’s Counsel]: Brandon Elps. But I don't think I
can do anything other than specific instances --
THE COURT: I understand. If you want to make an offer
of proof as to that, I’ll be happy to have the Sheriff bring
him over.
Following this exchange, Defendant testified on his own behalf. No other evidence or
testimony or offer of proof was presented by Defendant. The jury returned verdicts
finding Defendant guilty of each of the three charges.
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STATE V. WARREN
Opinion of the Court
During sentencing, the trial court determined Defendant had 15 prior record
level points, and had attained a prior record level 5 for sentencing purposes. The
court then consolidated file number 14 CRS 050372, possession and distribution of a
methamphetamine precursor, with file number 14 CRS 050376, manufacture of
methamphetamine, for judgment. The trial court determined the charges were Class
F and Class C felonies, respectively, and sentenced Defendant to an active minimum
term of 127 months and a maximum of 165 months in prison on the consolidated
judgment.
In file number 14 CRS 050377, conspiracy to manufacture methamphetamine,
the trial court determined the offense was a Class C felony, and sentenced Defendant
to an active minimum term of 127 months and a maximum of 165 months to run
consecutively at the expiration of his sentence in the first judgment.
Defendant gave notice of appeal in open court.
II. Issues
Defendant argues the trial court erred by: (1) denying trial counsel’s motion to
withdraw from the case and asserts Defendant’s trial counsel rendered ineffective
assistance in three discreet ways; (2) denying Defendant’s motion to continue and
excluding negative character testimony against State’s witness Kennon by Flowers
and Thomas; and (3) determining the conspiracy to manufacture methamphetamine
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Opinion of the Court
charge was a Class C felony, because the felony is properly classified as a Class D
felony.
III. Motion to Withdraw and Ineffective Assistance of Counsel
Defendant argues the trial court erred in denying defense counsel’s motion to
withdraw from the case. He contends he received ineffective assistance of counsel
following the trial court’s denial of defense counsel’s motion to withdraw.
A. Standard of Review
We review the denial of a motion to withdraw for abuse of discretion. State v.
Thomas, 350 N.C. 315, 329, 514 S.E.2d 486, 495 (1999).
In order to show ineffective assistance of counsel, a defendant must satisfy the
two-prong test announced by the Supreme Court of the United States in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, (1984). This test for
ineffective assistance of counsel has also been explicitly adopted by the Supreme
Court of North Carolina for state constitutional purposes. State v. Braswell, 312 N.C.
553, 562-63, 324 S.E.2d 241, 248 (1985). Pursuant to Strickland:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings, it
cannot be said that the conviction. . . resulted from a
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Opinion of the Court
breakdown in the adversary process that renders the result
unreliable.
466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; accord Braswell, 312 N.C. at
561-62, 324 S.E.2d at 248.
Our Supreme Court has stated, “this Court engages in a presumption that trial
counsel’s representation is within the boundaries of acceptable professional conduct”
when reviewing ineffective assistance of counsel claims. State v. Roache, 358 N.C.
243, 280, 595 S.E.2d 381, 406 (2004) (citation omitted). We “ordinarily do not consider
it to be the function of an appellate court to second-guess counsel’s tactical
decisions[.]” State v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986).
B. Analysis
N.C. Gen. Stat. § 15A-144 provides: “[t]he court may allow an attorney to
withdraw from a criminal proceeding upon a showing of good cause.” N.C. Gen. Stat.
§ 15A-144 (2013). In this case, Defendant’s counsel requested the court allow him to
withdraw from representing Defendant in this case. Defendant’s counsel stated he
did not “see eye-to-eye on everything” with Defendant and that he did not think he
could “zealously represent [Defendant] at a trial based on the evidence” and the
conversations they had. Defendant’s counsel also mentioned Defendant was unable
to “continue finish hiring” him.
Our Supreme Court has held in order to “establish prejudicial error arising
from the trial court’s denial of a motion to withdraw, a defendant must show that he
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Opinion of the Court
received ineffective assistance of counsel.” State v. Thomas, 350 N.C. 315, 328, 574
S.E.2d 486, 445 (citation omitted), cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 318
(1999).
In general, “claims of ineffective assistance of counsel should be considered
through motions for appropriate relief and not on direct appeal.” State v. Stroud, 147
N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001). However, an ineffective assistance
of counsel claim brought on direct review “will be decided on the merits when the cold
record reveals that no further investigation is required[.]” State v. Fair, 354 N.C. 131,
166, 557 S.E.2d 500, 524 (2001). “[O]n direct appeal, the reviewing court ordinarily
limits its review to material included in the record on appeal and the verbatim
transcript of proceedings, if one is designated.” Id. at 167, 557 S.E.2d at 524-25
(citation omitted). “[S]hould the reviewing court determine that [ineffective
assistance of counsel] claims have been prematurely asserted on direct appeal, it shall
dismiss those claims without prejudice to the defendant’s right to reassert them
during a subsequent [motion for appropriate relief (“MAR”)] proceeding.” Id. at 167,
557 S.E.2d at 525.
Here, Defendant asserts he received ineffective assistance from his trial
counsel in three ways: (1) when the trial court denied his motion to continue to allow
him to secure witnesses on his behalf; (2) when defense counsel failed to request the
court to produce a witness, Elps, from the jail to make an offer of proof of his
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Opinion of the Court
testimony; and (3) when, after Writs were issues, defense counsel did not have
Flowers and Thomas brought from the Department of Correction to impeach
Kennon’s truthfulness. We discuss each in turn.
1. Trial Court’s Denial of Defendant’s Motion to Continue
Defendant contends he received ineffective assistance of counsel and his due
process rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the
Constitution of the United States were violated when the trial court denied his motion
to continue immediately prior to the commencement of Defendant’s trial. We
disagree.
In State v. Rogers, 352 N.C. 119, 529 S.E.2d 671 (2000), our Supreme Court
discussed the appropriate inquiry where ineffective assistance of counsel is alleged
due to a denial of a motion to continue:
While a defendant ordinarily bears the burden of showing
ineffective assistance of counsel [under the Strickland
standard], prejudice is presumed “without inquiry into the
actual conduct of the trial” when “the likelihood that any
lawyer, even a fully competent one, could provide effective
assistance” is remote. A trial court’s refusal to postpone a
criminal trial rises to the level of a Sixth Amendment
violation “only when surrounding circumstances justify”
this presumption of ineffectiveness. “To establish a
constitutional violation, a defendant must show that he did
not have ample time to confer with counsel and to
investigate, prepare and present his defense.”
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352 N.C. at 125, 529 S.E.2d at 675 (quoting United States v. Cronic, 466 U.S. 648,
659-62, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d. 657, 668-70 (1984); State v. Tunstall, 334
N.C. 320, 329, 432 S.E.2d 331, 336-37 (1993)).
The record shows Defendant had sufficient time to investigate, prepare and
present his defense. Defendant was arrested on 30 January 2014, and indicted on 24
February 2014. Defendant testified he retained trial counsel “twenty-seven days
after” being arrested. The trial court previously continued the case for one month,
and Defendant’s trial began on 8 September 2014, more than seven months after
Defendant was arrested and roughly six months after he had retained counsel.
Prior to trial, Defendant’s counsel filed two Writs of Habeas Corpus ad
Testificandum, and argued a motion to suppress. During trial, Defendant’s counsel
cross-examined each of the State’s witnesses, and presented the testimony of four
witnesses on Defendant’s behalf, including Defendant’s own testimony.
Defendant had ample time to investigate, prepare, and present his defense. Id.
Defendant has failed to show he received ineffective assistance of counsel by the trial
court’s denial of his motion to continue. The trial court did not err in denying
Defendant’s motion to withdraw or to continue on this ground.
2. Failure to Make Offer of Proof Regarding Elps’ Testimony
Defendant contends he received ineffective assistance of counsel when his trial
counsel failed to request the trial court bring Elps from the jail to make an offer of
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Opinion of the Court
proof of his testimony. We hold the cold record is insufficient for us to rule on this
claim. We dismiss the claim without prejudice to Defendant’s right to re-assert the
claim.
As noted, a defendant alleging ineffective assistance of counsel must show that
counsel’s performance was deficient and the deficiency was “so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at
687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Grooms, 353 N.C. 50, 64,
540 S.E.2d 713, 722 (2000). A defendant must demonstrate a reasonable probability
that the trial result would have been different absent counsel’s error. Strickland, 466
U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
The trial court stated its belief that Elps’ testimony would not be relevant, but
nonetheless offered to allow Defendant to make an offer of proof regarding Elps’
testimony:
THE COURT: [T]his Court does not believe [Elps’
testimony] would have relevance to the charges for which
the defendant stands trial in this case, and would not grant
a continuance for that.
...
If you want to make an offer of proof as to that, I'll be happy
to have the Sheriff bring [Elps] over.
Defendant’s counsel did not make an offer of proof as to Elps’ testimony. Defendant’s
counsel stated “he [did not] think [he] would be able to do anything other than specific
instances” of prior untruthful statements or conduct by Kennon.
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Opinion of the Court
From the record and transcript, we are unable to determine whether failure to
make an offer of proof under these facts constitutes ineffective assistance of counsel.
No affidavit tends to show what Elps would have testified to. Although Defendant’s
trial counsel stated he believed Elps could only testify as to specific instances of
Kennon’s untruthfulness, we are unable to ascertain whether Elps’ testimony would
have been relevant and admissible. We are also unable to determine whether trial
counsel’s failure to make an offer of proof of Elps’ testimony made his conduct
deficient, nor whether the deficiency, if present, was “so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687,
104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Grooms, 353 N.C. at 64, 540 S.E.2d at 722.
Because we determine Defendant has prematurely asserted an ineffective
assistance of counsel claim as to this ground, we “dismiss [the] claim[] without
prejudice to [Defendant’s] right to reassert [it] during a subsequent MAR proceeding.”
Fair, 354 N.C. at 167, 557 S.E.2d at 525 (citation omitted).
3. Failure to Offer Flowers’ and Thomas’ Testimony
Defendant argues he received ineffective assistance of counsel when his trial
counsel failed to call Flowers and Thomas as witnesses to testify regarding the
untruthfulness of Kennon. The record and transcript are again insufficient for us to
rule on this claim. We dismiss this ground without prejudice to Defendant’s right to
reassert the claim in a subsequent MAR proceeding.
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Opinion of the Court
The first step to an ineffective assistance of counsel claim is to show the
counsel’s performance was deficient. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064,
80 L. Ed. 2d at 693. Defendant claims his counsel was deficient with regard to the
offering of Flowers’ and Thomas’ testimony in two ways: first, Defendant claims there
is “no indication defense counsel even took the effort to apply for Writs of Habeas
Corpus ad Testificandum for [Flowers and Thomas].” Second, Defendant claims his
counsel’s failure to call Flowers and Thomas as witnesses constituted deficient
performance, because these witnesses would have provided testimony as to the
untruthfulness of Kennon, the State’s “most crucial witness.”
We find no merit in Defendant’s initial assertion. The record contains an
Application and Writ of Habeas Corpus ad Testificandum for both Flowers’ and
Thomas’ testimony. Defense counsel was not deficient in failing to apply for Writs of
Habeas Corpus ad Testificandum. The record shows defense counsel did in fact apply
for such writs, they were issued by the trial court, and delivered to the Sheriff for
service.
As to Defendant’s second assertion, on the record before us, we are unable to
determine whether defense counsel’s failure to call Flowers and Thomas to testify
constituted trial strategy or ineffective assistance of counsel. No offer of proof
regarding Flowers’ and Thomas’ testimony was presented. The record does not
contain affidavits revealing what Flowers and Thomas would have testified to.
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Opinion of the Court
We are unable to determine whether defense counsel’s failure to call Flowers
and Thomas as witnesses was trial strategy or deficient performance, or whether the
deficiency, if present, was “so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d
at 693; Grooms, 353 N.C. at 64, 540 S.E.2d at 722.
Because we determine Defendant prematurely asserted an ineffective
assistance of counsel claim on this ground, we also “dismiss [this] claim[] without
prejudice to [Defendant’s] right to reassert [it] during a subsequent MAR proceeding.”
Fair, 354 N.C. at 167, 557 S.E.2d at 525 (citation omitted).
IV. Motion to Continue
Defendant argues the trial court erred by denying two motions to continue: one
immediately preceding trial, and the other immediately preceding his own testimony.
Defendant based both motions on the premise that two of his witnesses, Flowers and
Thomas, were not available to testify despite writs being issued to ensure their
attendance at trial. Defendant asserts Flowers’ and Thomas’ testimony as to the
untruthfulness of a key State’s witness, Kennon, would likely have resulted in
Defendant’s acquittal.
A. Standard of Review
A trial court may allow or deny a motion to continue in its sound discretion.
Its decision will not be overturned absent a gross abuse of discretion. State v. Jones,
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172 N.C. App. 308, 311-12, 616 S.E.2d 15, 18 (2005) (citations omitted). An abuse of
discretion “results where the court’s ruling is manifestly unsupported by reason or is
so arbitrary that it could not have been the result of a reasoned decision.” State v.
Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted).
Where the trial court’s denial of a motion to continue raises a constitutional
issue, it is “fully reviewable [on appeal] by examination of the particular
circumstances presented by the record on appeal of each case.” State v. Branch, 306
N.C. 101, 104, 291 S.E.2d 653, 656 (1982) (citation omitted). “To establish [the denial
of a motion to continue rises to] a constitutional violation, a defendant must show
that he did not have ample time to . . . investigate, prepare, and present his defense.”
State v. Williams, 355 N.C. 501, 540, 565 S.E.2d 609, 632 (2002) (citation and
quotation marks omitted).
B. Analysis
As explained supra, the trial court did not err in denying Defendant’s motion
to continue immediately prior to trial. Defendant had ample time to investigate,
prepare and present his defense after receiving a prior continuance. We examine
Defendant’s argument regarding the trial court’s denial of Defendant’s motion to
continue made immediately prior to Defendant’s testimony.
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Opinion of the Court
During Defendant’s case at trial, Defendant made two consecutive motions to
continue. One motion concerned the testimony of Elps, and the other concerned the
testimony of Flowers and Thomas:
THE COURT: All right. [Defendant’s counsel], you have
some motion you want --
[Defendant’s Counsel]: I do, Your Honor. We would -- I
would like to call one witness, a Brandon Elps, for the
purposes of testifying to the truth of Ms. Kennon. He's over
in custody in our jail. It would be limited to the fact -- of
testimony, that she had, in previous occasions, gotten him
in trouble, went to the law on him and all that. So that
would be my motion, to have him over here.
And the other two witnesses would be -- and the
other two would be for Cassie Flowers in the Department
of Corrections, and Mark Thomas. They, too, would be
witnesses to show -- testify to the untruthfulness of Ms.
Kennon and things that she had said and done in the past.
And I would make a motion to continue, to get those
witnesses here.
After the motions were made, the trial court discussed Flowers and Thomas, but only
issued a ruling denying Defendant’s motion to continue regarding Elps’ testimony:
THE COURT: It would appear to the Court that any writ
. . . that was issued by this Court was done last Thursday,
September the 4th, and the trial was scheduled -- was due
to start the 8th, and the person, Ms. Flowers, is not
currently in the Carteret County jail and neither is Mark
Thomas, is my understanding.
As to the other one, testifying about some alleged
bad act of Heather Kennon at some earlier time without
any connection to this case, would -- this Court does not
believe would have relevance to the charges for which the
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STATE V. WARREN
Opinion of the Court
defendant stands trial in this case, and would not grant a
continuance for that.
The trial court offered to allow Defendant to make an offer of proof regarding Elps’
testimony, which Defendant failed to do. The court did not make a ruling on
Defendant’s motion to continue to allow for Flowers’ and Thomas’ testimony.
Defendant failed to ask the court for a ruling on the issue.
Under the North Carolina Rules of Appellate Procedure, “[i]n order to preserve
an issue for appellate review, a party must have presented to the trial court a timely
request, objection, or motion[.] . . . It is also necessary for the complaining party to
obtain a ruling upon the party’s request, objection, or motion.” N.C. R. App. P.
10(a)(1). Because Defendant “did not obtain a ruling by the trial court on this issue,
it is not properly preserved for appeal.” Lake Toxaway Cmty. Ass'n v. RYF Enters.,
LLC, ___ N.C. App. ___, ___, 742 S.E.2d 555, 562 (2013) (citation omitted); see also
State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995), cert. denied, 518 U.S. 1024, 135
L. Ed. 2d 1080 (1996). Pursuant to N.C. R. App. P. 10(a)(1), we dismiss Defendant’s
argument as partially unpreserved.
V. Conspiracy to Manufacture Methamphetamine Sentencing
Defendant contends the trial court erred determining the proper felony class
of conspiracy to manufacture methamphetamine charge. He asserts that although
conspiracy to manufacture methamphetamine is a Class C felony, he should have
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STATE V. WARREN
Opinion of the Court
been sentenced to a felony one class lower than was committed pursuant to N.C. Gen.
Stat. § 14-2.4(a) (2013). We disagree.
A. Standard of Review
“When a defendant assigns error to the sentence imposed by the trial court our
standard of review is whether the sentence is supported by evidence introduced at
the trial and sentencing hearing.” State v. Chivers, 180 N.C. App. 275, 278, 636 S.E.2d
590, 593 (2006) (citation and brackets omitted), disc. rev. denied, 361 N.C. 222, 642
S.E.2d 709 (2007).
B. Analysis
N.C. Gen. Stat. § 14-2.4(a) provides: “Unless a different classification is
expressly stated, a person who is convicted of a conspiracy to commit a felony is guilty
of a felony that is one class lower than the felony he or she conspired to commit[.]”
N.C. Gen. Stat. § 14-2.4(a) (emphasis supplied). Here, Defendant was found guilty of
conspiracy to manufacture methamphetamine in violation of N.C. Gen. Stat. § 90-
95(b)(1a) (2013). N.C. Gen. Stat. § 90-95(b)(1a) “expressly” provides, in relevant part:
“The manufacture of methamphetamine shall be punished as a Class C felony[.]” N.C.
Gen. Stat. § 90-95(b)(1a).
N.C. Gen. Stat. § 90-95(b)(1a) is a part of Article 5 of Chapter 90 of the General
Statues, designated by our General Assembly as the North Carolina Controlled
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STATE V. WARREN
Opinion of the Court
Substances Act (“CSA”). See N.C. Gen. Stat. § 90-86 (2013). N.C. Gen. Stat. § 90-98,
another section of the CSA, provides:
Except as otherwise provided in this Article, any person
who attempts or conspires to commit any offense defined in
this Article is guilty of an offense that is the same class as
the offense which was the object of the attempt or
conspiracy and is punishable as specified for that class of
offense and prior record or conviction level in Article 81B
of Chapter 15A of the General Statutes.
N.C. Gen. Stat. § 90-98 (2013). N.C. Gen. Stat. § 90-95(b)(1a) does not provide a lesser
sentence for a person convicted of conspiracy to manufacture methamphetamine.
Under N.C. Gen. Stat. § 90-98, it is “expressly stated” that a defendant convicted of
conspiracy to manufacture methamphetamine is properly to be sentenced to the same
class of felony as a defendant convicted of the manufacture of methamphetamine.
The trial court did not err in sentencing Defendant as a Class C felon upon his
conviction for conspiracy to manufacture methamphetamine in violation of N.C. Gen.
Stat. § 90-95(b)(1a). N.C. Gen. Stat. § 90-98. Defendant’s argument is overruled.
VI. Conclusion
Defendant had ample time to investigate, prepare, and present his defense and
received a prior continuance. The trial court did not err in declining to grant
Defendant’s motion to continue immediately prior to trial, and he did not receive
ineffective assistance of counsel on this issue.
From the cold record, we are unable to determine whether defense counsel’s
failure to make an offer of proof regarding Elps’ testimony or defense counsel’s failure
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STATE V. WARREN
Opinion of the Court
to call Flowers and Thomas to testify regarding Kennon’s untruthfulness constituted
trial strategy or conduct that may rise to ineffective assistance of counsel. We dismiss
these arguments without prejudice to Defendant’s right to pursue these claims in a
subsequent MAR proceeding.
The trial court did not abuse its discretion in denying Defendant’s motion to
continue immediately prior to trial. This argument is overruled. Defendant failed to
obtain a ruling by the trial court on his motion to continue immediately prior to his
testimony. We dismiss this argument as unpreserved.
The trial court did not err in sentencing Defendant as a Class C felon on the
charge of conspiracy to manufacture methamphetamine. Id.
Defendant received a fair trial, free from prejudicial errors he preserved and
argued. Defendant’s claims of ineffective assistance of counsel on Elps’ offer of proof
and failure to call Flowers and Thomas to testify are dismissed without prejudice.
NO ERROR IN PART; DISMISSED IN PART
Judges McCULLOUGH and DIETZ concur.
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