State v. Alderman

212 S.E.2d 205 (1975)

25 N.C. App. 14

STATE of North Carolina v. Dana ALDERMAN et al.

No. 748SC955.

Court of Appeals of North Carolina.

March 5, 1975.

Certiorari Denied and Appeal Dismissed May 6, 1975.

*207 Atty. Gen. Rufus L. Edmisten by Associate Atty. Robert P. Gruber, Raleigh, for the State.

Farris, Thomas & Farris by Robert A. Farris, Wilson, for defendant Dana Alderman.

Turner & Harrison by Fred W. Harrison, Kingston, for defendant Eddie Whitaker.

I. Joseph Horton, Snow Hill, for defendant Charles Leak.

William R. Jenkins, Snow Hill, for defendant Ernest Markham.

Certiorari Denied and Appeal Dismissed by Supreme Court May 6, 1975.

CLARK, Judge.

The right to assistance of counsel and the right to face one's accusers and witnesses and other testimony are guaranteed by the Sixth Amendment of the Federal Constitution, which is made applicable to the states by the Fourteenth Amendment and by Article I, Sections 19 and 23 of the Constitution of North Carolina. White v. Ragen, 324 U.S. 760, 65 S. Ct. 978, 89 L. Ed. 1348 (1945); State v. Gibson, 229 N.C. 497, 50 S.E.2d 520 (1948).

The right to be represented by an attorney necessarily includes a reasonable time for counsel to prepare defendants' cases. Ordinarily, a motion for continuance is addressed to the sound discretion of the trial judge and his ruling thereon is not subject to review on appeal, except in a case of manifest abuse. However, when the motion is based on a right guaranteed by the Federal and State Constitutions, the question presented is one of law and the order of the court is reviewable. State v. Phillip, 261 N.C. 263, 134 S.E.2d 386 (1964).

The right to the assistance of counsel includes the right of counsel to have a reasonable opportunity in the light of all the attendant circumstances to investigate, prepare and present his defense. State v. Speller, 230 N.C. 345, 53 S.E.2d 294 (1949).

Ordinarily, continuances should not be granted unless the reasons therefore are fully established and the motion is supported by an affidavit showing sufficient ground. State v. Gibson, supra. However, in this case, counsel were notified of their appointment to represent four indigent defendants, each charged with two felony crimes on different dates, on the first day of the session. On that same day, before the appointed counsel had had an opportunity to confer with their clients, the trial court, over the objection of the appointed counsel, granted the motion of the State for a speedy trial of all defendants, ordering the consolidation of all charges for trial, and calling the cases for trial on the following day. In these circumstances, the appointed counsel were relieved of the burden of filing affidavits showing sufficient grounds for continuance resisting the State's motion for a speedy trial, particularly since counsel had no opportunity to file affidavits and the grounds for delay in trial were obvious and known to the court. See, Edgerton v. State of North Carolina, 315 F.2d 676 (1963); and Fields v. Peyton, 375 F.2d 624 (1967).

*208 The evidence for the State tends to show that the defendants forced the victims, one on the night of 16 May 1974, and the other on the night of 19 May 1974, to submit to intercourse per anus in the reception center dormitory where more than fifty inmates occupied double-decked bunks in rows about one and one-half feet apart. There was a dim ceiling light in the dormitory and a guard sat at a desk just outside the door, which was constructed of iron bars spaced about six inches apart.

Defendants testified that they had not committed any sexual acts with Thaxton, Clark or any other males.

It is not ipso facto a denial of effective assistance because counsel were notified of their appointment and on the same day learned that the cases would be called for trial the following day. However, taking into consideration the ages of the defendants, the multiple charges on different dates, the probable transfer of possible witnesses from the reception center to other correctional units, and all the other circumstances, we find that the appointed counsel did not have a reasonable opportunity to investigate, prepare and present their defenses which is a violation of the constitutional guarantee of the right to counsel.

The convictions and sentences of all defendants are vacated and the actions are remanded for

New Trial.

BROCK, C. J., and BRITT, J., concur.