State v. Davis

217 S.E.2d 131 (1975)

26 N.C. App. 696

STATE of North Carolina v. Marvin T. DAVIS et al.

No. 757SC239.

Court of Appeals of North Carolina.

August 6, 1975.

Certiorari Denied October 7, 1975.

*132 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Conrad O. Pearson, Raleigh, for the State.

Farris, Thomas & Farris by Robert A. Farris, Wilson, for defendants-appellants.

Certiorari Denied by Supreme Court October 7, 1975.

PARKER, Judge.

Defendants first assign error to the denial of their motion for a one-week recess in the trial. This motion was made after the State commenced introduction of evidence and after the trial had been in progress for some time. The reason stated for the motion was that the defendants had discovered on the preceding evening that a witness who would testify to establish an alibi was employed by the Federal government in Washington, D.C., beyond the reach of a subpoena, and that defendants desired the recess for the purpose of having this witness in court to testify on their behalf.

It is well settled that a motion for a continuance is ordinarily addressed to the sound discretion of the trial judge and that his ruling thereon is not subject to review absent a showing of abuse of discretion. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972). The same rule applies to motions *133 for a recess in a trial which is already in progress. In the present case there was no showing of any abuse of the trial judge's discretion in denying the motion for a recess in the trial. The defendants had been arrested on 13 October 1973. The indictments against them were returned as true bills in November 1973. Their trial took place in August 1974. For some time prior to trial their trial counsel had been appointed to represent them. The motion for a recess was not supported by an affidavit. The record fails to disclose what efforts, if any, were made prior to trial to obtain the attendance of the absent witness and it does not show why defendants discovered only after the trial commenced that he was not then available. The name of the absent witness was not shown nor was there any showing that his attendance at trial could be obtained if the recess was granted. Defendants' first assignment of error is overruled.

Defendants' motions for nonsuit were properly denied. The victim of the robbery testified at the trial and positively identified Doiley and Phillips as the two persons who pointed pistols at him when the robbery occurred. His testimony also disclosed that some third person, whom he could not identify, was driving the automobile in which Doiley and Phillips were then seated. There was evidence to show that earlier on the night of the robbery the defendant, Davis, had been driving the same automobile and that shortly after the robbery Davis, with Doiley and Phillips as passengers, was still driving the car. Viewing all of the evidence in the light most favorable to the State, it is a reasonable inference which the jury could legitimately draw that Davis was present, driving the car and aiding and abetting Doiley and Phillips, when the robbery occurred.

Defendants assign error to the court's admitting evidence concerning the two pistols found under the back seat of the automobile, contending that these were found as result of an illegal search. Prior to admitting this evidence the trial judge conducted a voir dire examination concerning the circumstances under which the search was made. Evidence presented at this examination discloses that after the defendants were apprehended by the police, they and the car in which they had been riding were taken to the police station. There it was determined that Phillips was the owner of the car. The officers then asked Phillips if he would consent to a search of his car, at the same time informing him that he had a right to deny his consent and that if he did so a search warrant would be obtained. Phillips then consented to the search, and the search was then conducted in his presence. Phillips testified at the voir dire hearing and admitted signing a written consent to the search. The evidence at the voir dire hearing fully supported the court's findings that Phillips's consent to the search "was freely, voluntarily and intelligently given without any coercion, duress or fraud practiced upon the defendant in any respect." There is no merit in Phillips's contention that his consent was coerced because the officers told him that if he did not consent they could get a search warrant. The officers had ample grounds to obtain a valid search warrant, and there was nothing improper in their informing Phillips that they were prepared to do so. We agree with the trial court's conclusion that the search was lawful.

The State rested its case just prior to the evening recess. Upon the reconvening of court on the following morning, the State was permitted over defendants' objections to reopen its case by briefly recalling two of its witnesses. This was a matter within the discretion of the trial judge. State v. Shutt, 279 N.C. 689, 185 S.E.2d 206 (1971). No abuse of discretion has been shown.

*134 We have examined defendants' remaining assignments of error, all of which relate either to the court's rulings upon the admission of evidence or to its instructions to the jury, and find no prejudicial error.

No error.

BRITT and VAUGHN, JJ., concur.