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State v. Jernigan3/21/1995
formed the court that Atkinson would testify that defendant was not the driver of the truck and, in fact, was not in the truck.
A motion for a continuance is ordinarily addressed to the sound discretion of the trial court and is not subject to review absent a gross abuse of discretion. State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981). However, when such a motion raises a constitutional issue, the trial court's ruling involves a question of law and is fully reviewable by an examination of the particular circumstances of the case. Id. Defendant correctly states that the right to present witnesses to confront the evidence against him and the right to present a defense are rights protected by our Constitutions. See State v. Davis, 61 N.C. App. 522, 525, 300 S.E.2d 861, 863 (1983); State v. Tunstall, 334 N.C. 320, 328, 432 S.E.2d 331, 336 (1993). Denial of a motion for a continuance, regardless of its nature, is, however, grounds for a new trial only upon a showing by defendant that the denial was erroneous and that he was prejudiced thereby. Searles, 304 N.C. at 153, 282 S.E.2d at 433.
In the case at hand, trial was originally set for Monday, 28 June 1993, but was delayed until 30 June because defendant failed to appear. As of 28 June, Atkinson's whereabouts were unknown, and no subpoena for Atkinson had been issued prior to that day. Defense counsel stated to the court that Atkinson had "just sort of disappeared" and that if subpoenaed for another trial date, "he might not show up." Under these circumstances, we conclude that it was not error for the trial court to deny defendant's motion for a continuance. See State v. Horne, 21 N.C. App. 197, 200-01, 203 S.E.2d 636, 638 (1974) (no error where defense waited until day of trial to subpoena absent witness).
Furthermore, defendant suffered no prejudice from the denial of his motion. Defendant testified that he was not driving the truck, but was instead a passenger in another car, driven by Jasper Hollowuay. This testimony was supported by the testimony of Hollowuay, who testified that he picked defendant up on the side of the road and drove him home. The testimony of Charles Atkinson would not have added anything more than corroboration to the defense. Defendant has therefore failed to demonstrate that the lack of Atkinson's testimony was prejudicial to him. See State v. Highsmith, 74 N.C. App. 96, 99, 327 S.E.2d 628, 630 (no prejudice where absent witness's testimony would only have added corroboration), disc. review denied, 314 N.C. 119, 332 S.E.2d 486 (1985). Defendant is not entitled to a new trial based on the trial court's failure to grant his motion for a continuance.
We find that defendant received a fair trial free from prejudicial error.
No error.
Judges WYNN and McGEE concur.
Disposition
No error.
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