State v. Hicks

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-491

Filed: 20 October 2015

Avery County, No. 12 CRS 50584

STATE OF NORTH CAROLINA

v.

ERIC DOUGLAS HICKS

Appeal by defendant from judgment entered 19 August 2014 by Judge Gary M.

Gavenus in Avery County Superior Court. Heard in the Court of Appeals 8 October

2015.

Attorney General Roy Cooper, by Special Deputy Attorney General Joseph E.

Herrin, for the State.

Charlotte Gail Blake for defendant-appellant.

TYSON, Judge.

Eric Douglas Hicks (“Defendant”) appeals from judgment entered after a jury

convicted him of manufacturing methamphetamine and maintaining a dwelling for

the purpose of keeping methamphetamine. We find no error in Defendant’s

conviction or in the judgment entered thereon.

I. Factual Background

A. State’s Evidence

STATE V. HICKS

Opinion of the Court

In the fall of 2012, school resource officer Timothy Winters (“Officer Winters”)

received information from several students, who reported Jennifer McCoury

(“McCoury”) was making methamphetamine and smoking marijuana with her high-

school-aged son. Officer Winters shared this information with Avery County Sheriff’s

Deputy Casey Lee (“Officer Lee”). Officers verified the tip by conducting a “meth

check,” which showed McCoury had made multiple purchases of Sudafed, which

contains pseudoephedrine, the precursor chemical to methamphetamine.

Officer Lee and others went to McCoury’s home to “[c]heck on the safety” of her

children on 12 October 2012. No one was present at the residence when officers

arrived. Officer Lee testified “[t]here were signs of a meth lab” outside McCoury’s

home. Officer Lee and others subsequently went to Defendant’s residence to locate

McCoury and her children. The officers knew Defendant was the father of McCoury’s

daughter, who was six or seven years old at the time.

Officers announced themselves and knocked on Defendant’s door for

approximately fifteen minutes. No one answered. Officer Lee walked around the

house to the side door and noticed in plain view a trash can with two plastic bottles

“sticking up, [with] a drilled hole in the top of one of them” in plain view. Officer Lee

testified he “believed those bottles to be used to manufacture meth[,]” based on his

training and experience. He also observed “a white granular substance” was present

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Opinion of the Court

inside the bottles and stated the substance “[was] consistent with meth

manufacture.”

Defendant eventually answered the door and allowed the officers to walk

through his home to look for his daughter. Defendant also gave his consent for the

officers to search his house and property. The officers did not find anything illegal

during this initial search. Officer Lee inquired about the two plastic bottles he had

observed outside. Defendant “denied any knowledge” about them. Defendant was

arrested and transported to jail.

Officer Lee contacted Detective Frank Catalano (“Detective Catalano”) and

requested a search warrant for Defendant’s residence the following day. Detective

Catalano’s search warrant application sought authorization to destroy any hazardous

materials, if found, after the materials were “documented, photographed, and labeled

samples obtained for analysis.” This request was based on Detective Catalano’s

sworn search warrant application, which stated:

The Affiant knows that some or all of these chemicals and

substances pose a significant health and safety hazard due

to their explosive, flammable, carcinogenic, or otherwise

toxic nature. Additionally, the affiant knows that the

handling of hazardous clandestine laboratory materials

without proper expertise, supervision, and facilities has

caused, in the past, explosions[,] fires, and other events

that have resulted in injuries and severe health problems.

The trial judge authorized the search warrant later that day. Despite

Detective Catalano’s request for authorization to destroy hazardous materials within

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Opinion of the Court

the application, the warrant did not contain a destruction order, nor was a destruction

order subsequently entered.

The search warrant was executed the same day it was issued. The following

items were seized from Defendant’s residence: (1) five bottles with a white substance;

(2) two bottles with liquid and a white substance; (3) an ice compress; (4) an empty

pack of lithium batteries; (5) a Methadone bottle; (6) an allergy medicine pack

(commonly referred to as a “blister pack;” and, (7) a cell phone.

Officer Lee testified, based on his training and experience, plastic bottles, such

as the ones found on Defendant’s property, are commonly used in a method of

methamphetamine manufacture known as the “one pot” method. Officer Lee stated

a second plastic bottle is used in the “one pot” method, as the hydrochloric gas, or

HCL, generator. A white residue is left behind after an HCL generator is used.

Officer Lee testified the white residue he observed in the plastic bottles found on

Defendant’s property was consistent with the typical white residue left behind after

an HCL generator is used to manufacture methamphetamine.

Officer Lee testified he searched for Defendant’s name on the National

Precursor Log Exchange (“NPLEx”) database after he left Defendant’s residence.

NPLEx is a “federal public registry” used to track an individual’s pseudoephedrine

purchases. He explained pseudoephedrine is “the main ingredient of

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Opinion of the Court

methamphetamine.” NPLEx was established “to make sure that people don’t buy

more [pseudoephedrine] than their allowed limits every month.”

Officer Lee printed out the log of Defendant’s pseudoephedrine purchases from

the NPLEx website. The report was offered and admitted into evidence as a business

record, over Defendant’s hearsay objection. The report indicated Defendant had

purchased pseudoephedrine six times at various locations in North Carolina and

Tennessee between January and September 2012.

Chip Hughes (“Agent Hughes”), State Bureau of Investigation (“SBI”)

clandestine laboratory unit site safety officer, arrived on the scene to process the

purported methamphetamine lab discovered at Defendant’s residence. Agent Hughes

testified to the dangers of placing hazardous items seized from a methamphetamine

lab into evidence storage, stating:

[E]ven though the bottle itself is no[t] producing gas at that

time, if something were to spill on it in the evidence vault,

or decay it may still produce gas even though it is in a

Ziploc bag or paper bag . . . and the gas will leak or build

up in those things and expose people to gas or in a case of

flammables if they become hazardous, they could ignite.

He further stated the destruction of hazardous materials seized from

methamphetamine labs is “a common practice across the state because . . . local

agencies don’t have the facilities or equipment to . . . adequately store these [items]

and protect themselves or others.”

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Opinion of the Court

Mike Piwowar (“Mr. Piwowar”), a forensic scientist with the North Carolina

State Crime Lab, was called to Defendant’s home after the search warrant was

executed to prepare an inventory of possible items used in manufacturing

methamphetamine and to take samples back to the lab for analysis. Mr. Piwowar

testified the residue in the two plastic bottles recovered from Defendant’s trash can

both tested positive for an acidic pH. This pH was consistent with residue found

inside an HCL generator used to manufacture methamphetamine.

Mr. Piwowar also testified “the bottoms of the [five other] bottles were missing

which indicates there was a very strong acid in there that burned the bottoms off.”

Mr. Piwowar explained this finding was consistent with usage in a

methamphetamine lab, because the chemicals used in the methamphetamine

manufacturing process are corrosive. Mr. Piwowar stated the other items seized from

Defendant’s residence were also consistent with items commonly used in

manufacturing methamphetamine.

Agent Hughes prepared the items seized, with the exception of the cell phone,

for transport and destruction after the bottles were tested for acidic content and

subsequent neutralization. On 11 March 2013, a grand jury indicted Defendant for

manufacturing methamphetamine, maintaining a dwelling used to keep controlled

substances, and possession of an immediate precursor used to manufacture

methamphetamine.

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Opinion of the Court

B. Defendant’s Pre-Trial Motions

A month after the seizure, Defendant filed a motion on 14 November 2012 for

preservation of evidence seized. The trial court granted Defendant’s motion in open

court on 29 November 2012 and entered its order on 6 December 2012.

Defendant also filed a motion for sanctions against the State for destruction of

evidence on 12 June 2014, in connection with the items seized pursuant to the search

warrant. Defendant alleged his Due Process rights were violated because the State

“apparently destroyed the evidence seized without offering Defendant any

opportunity to view or test the items,” and despite the fact that he had obtained an

order to preserve the evidence seized from destruction.

The trial court made the following relevant findings of fact:

11. Investigator Catalano drafted an application for a

search warrant for the defendant’s residence based upon

the information provided to him by Deputy Lee and in such

application also requested a destruction order for any

hazardous materials.

....

13. Judge Ginn authorized the search warrant . . . .

....

16. That despite the request for a destruction order

contained within the search warrant application[,] a

destruction order was not entered by the Honorable C.

Phillip Ginn on October 13, 2012[,] and no subsequent

destruction order was ever entered.

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Opinion of the Court

17. That with the exception of the cell phone, the

destruction process was initiated pursuant to the belief

that such a destruction order was actually entered by

Judge Ginn on October 13, 2012.

18. That the court is unable based upon all of the evidence

presented by both the State and the Defendant to

determine the date upon which the items were destroyed.

....

22. The SBI agents and the officers of the Avery County

Sheriff’s Department had a good faith belief that the items

were to be destroyed and did not act in bad faith when they

initiated that destruction process.

23. The Defendant filed a Motion for Order Requiring

Preservation of Evidence Seized . . . on or about November

14, 2012.

24. That this Motion was filed some 30 days after the

destruction of the evidence seized had been initiated by the

SBI.

....

27. That the filed order was served upon the State by letter

dated December 10, 2012, the actual date of service being

unknown by the court[,] but the court notes that an

envelope admitted into evidence in this case indicates a

postmark date of December 21, 2012.

28. HCL generators are not regularly preserved.

29. The only forensic testing done on the bottles seized was

to determine whether the contents were acidic. No further

testing could have determined what the generators were

used for, unless tubing was located therein. There was no

tubing found herein.

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Opinion of the Court

30. That the parties agree and the court finds that the

items seized were destroyed at an unknown date prior to

December 17, 2012.

31. That the substances contained in the seven bottles

seized represented by their nature significant health and

safety hazards in that they are acidic, potentially

carcinogenic[,] and potentially toxic.

....

34. There is no evidence that the seized items were in the

possession or control of the State on November 29, 2012[,]

the date of the purported preservation order or any date

subsequent thereto, and the court finds that these items

were not in the possession or control of the State on that

date.

Based on the foregoing, the trial court concluded the SBI “had a good faith

belief that the items were to be destroyed and did not act in bad faith when they

initiated that destruction process.” The trial court denied Defendant’s motion for

sanctions.

C. Defendant’s Plea Agreement and Motion to Continue

Defendant’s case came on for trial before a jury on 11 August 2014. On 12

August 2014, the State and counsel for Defendant presented their proposed plea

agreement to the trial judge. The plea agreement provided for Defendant to enter an

Alford plea to possession of a methamphetamine precursor and receive a suspended

sentence within the presumptive range. The State would dismiss the charges of

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Opinion of the Court

manufacturing methamphetamine, maintaining a dwelling for controlled substances,

and resisting a public officer.

The trial judge began to review the plea transcript with Defendant and asked

the attorneys to approach the bench. After an unrecorded bench conference,

Defendant told the trial judge he was “not comfortable changing the plea.” The trial

judge instructed the State to arraign Defendant on all the other charges. The

following dialogue occurred between the trial judge, the State, and counsel for

Defendant ensued:

MR. RUPP: Mr. Hedrick, how does your client . . . plead in

12 CRS 050584, Count 1, Manufacturing

Methamphetamine. And Count 3, maintaining a dwelling,

or place or vehicle for keeping controlled substances.

MR. HEDRICK: Pleads not guilty to those charges.

MR. RUPP: Does he agree to proceed with the bill of

information that we have just submitted to the court?

MR. HEDRICK: On those charges?

MR. RUPP: Yes sir.

MR. HEDRICK: We signed that correct?

THE COURT: Yes.

MR. HEDRICK: Yes.

MR. RUPP: Does he waive any sort of notice or

requirements and agree to proceed today to trial?

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Opinion of the Court

MR. HEDRICK: My question would be what about the

remaining charges?

MR. RUPP: The only charges that are on the information

are the manufacturing methamphetamine, the possession

of methamphetamine precursor and the maintaining a

dwelling.

MR. HEDRICK: My understanding you didn’t arraign him

on all those to my understanding. [sic]

THE COURT: As far as Count 2, Possession of

methamphetamine precursor, how does he plead?

MR. HEDRICK: Pleads not guilty.

THE COURT: The resisting is being dismissed?

MR. RUPP: The resisting is not on the information.

THE COURT: It is on the indictment.

MR. RUPP: I will dismiss the resisting.

THE COURT: All right, go ahead and bring in the jury.

On 18 August 2012, after the State had presented its case for two and one-half

days, counsel for Defendant moved for a continuance in order to present the plea

transcript and agreement to another court. The trial court denied Defendant’s

motion, stating “[w]e are too far along.” The trial court entered an order on

Defendant’s motion to continue, in which it made the following findings of fact:

3. That during the plea discussions, neither the State nor

counsel for the defendant advised the Court that the plea

was an Alford plea.

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Opinion of the Court

4. That when the [c]ourt was presented the plea transcript

in open court, the court discovered that the plea was an

Alford plea and immediately advised the parties that the

court would not accept the Alford plea.

5. That the State and the Defendant were given an

opportunity to modify the plea arrangement.

6. That thereafter, after discussing the matter with the

defendant, counsel for the defendant advised the court that

the defendant would not enter a plea of Guilty, whereupon

the defendant was arraigned and entered pleas of Not

Guilty to all three charges.

7. That upon the rejection of the Alford plea by the court,

the defendant by and through counsel did not move to

continue the case and specifically did not move to continue

the case pursuant to the provisions of N.C.G.S. [§] 15A-

1023(b).

8. Thereafter jury selection began and a jury of twelve and

two alternates was empaneled on August 13, 2014, almost

24 hours after the plea was rejected by the court.

9. That at no time during jury selection and at no time

prior to the jury being empaneled did the defendant move

to continue the case and specifically did not move to

continue the case pursuant to the provisions of N.C.G.S. [§]

15A-1023(b).

10. Evidence was offered by the State from Wednesday,

August 13 through Friday August 15, 2014 and at no time

during this period did the defendant move to continue this

matter and specifically did not move to continue the case

pursuant to the provisions of N.C.G.S. [§] 15A-1023(b).

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Opinion of the Court

The trial court concluded Defendant “by his silence from the time of the

rejection of the plea through jury selection and through approximately 2 ½ days of

trial has voluntarily waived his right to a continuance as provided in 15A-1023(b).”

The trial court dismissed the charge of possession of an immediate precursor

chemical at the close of all the evidence. The jury returned a verdict finding

Defendant guilty of manufacturing methamphetamine and maintaining a dwelling

used to keep controlled substances.

The trial court consolidated the convictions and sentenced Defendant to a term

of 83 to 112 months imprisonment.

Defendant gave timely notice of appeal to this Court.

II. Issues

Defendant argues the trial court erred by: (1) denying his motion for discovery

sanctions; (2) admitting Officer Lee’s testimony regarding information he had

received from a search on the NPLEx database regarding Defendant’s alleged

purchases of pseudoephedrine; and, (3) denying his motion to continue after the trial

court rejected his plea agreement.

III. Analysis

A. Motion for Sanctions

Defendant argues the trial court erred by denying his motion for discovery

sanctions after the State destroyed evidence seized from Defendant’s home, without

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Opinion of the Court

an order authorizing destruction, and despite a court order that the seized evidence

be preserved.

1. Standard of Review

“A trial court’s imposition of discovery sanctions is within the court’s sound

discretion and will not be reversed absent a showing of abuse of discretion.” State v.

Shedd, 117 N.C. App. 122, 124, 450 S.E.2d 13, 14 (1994) (citation omitted). “An

abuse of discretion occurs when the trial court’s ruling is so arbitrary that it could

not have been the result of a reasoned decision.” State v. Moore, 152 N.C. App. 156,

161, 566 S.E.2d 713, 716 (2002) (citations and internal quotation marks omitted).

2. Analysis

Defendant filed a motion for an order requiring preservation of evidence seized

from his home upon execution of the search warrant. Defendant contends he sought

to preserve the items seized in order to have the opportunity to review the items and

for his own witnesses to perform testing.

The Supreme Court of the United States held “unless a criminal defendant can

show bad faith on the part of the police, failure to preserve potentially useful evidence

does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S.

51, 58, 102 L. Ed. 2d 281, 289 (1988).

In its order denying Defendant’s motion for sanctions, the trial court found “the

destruction process was initiated pursuant to the belief that such a destruction order

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Opinion of the Court

was actually entered by Judge Ginn on October 13, 2012.” The trial court also noted

Defendant’s motion for an order requiring the preservation of evidence seized “was

filed some 30 days after the destruction of the evidence seized had been initiated by

the SBI” and “HCL generators are not regularly preserved.”

The record and trial testimony contain ample evidence to support the trial

court’s conclusion that law enforcement “had a good faith belief that the items were

to be destroyed and did not act in bad faith when they initiated that destruction

process.” Defendant has failed to carry his burden to show the trial court abused its

discretion in denying his motion for sanctions. This argument is overruled.

B. Officer Lee’s Testimony Regarding the NPLEx Database

Defendant argues the trial court erred by admitting Officer Lee’s testimony

regarding Defendant’s alleged pseudoephedrine purchases and State’s Exhibit 9.

Defendant asserts the State’s Exhibit 9 report was not properly authenticated and

was inadmissible hearsay.

1. Standard of Review

This Court reviews a trial court’s ruling on the admission of evidence over a

party’s hearsay objection de novo. State v. Miller, 197 N.C. App. 78, 87-88, 676 S.E.2d

546, 552, disc. review denied, 363 N.C. 586, 683 S.E.2d 216 (2009). “A trial court’s

determination as to whether a document has been sufficiently authenticated is

reviewed de novo on appeal as a question of law.” State v. Crawley, 217 N.C. App. 509,

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Opinion of the Court

515, 719 S.E.2d 632, 637 (2011) (citation omitted), disc. review denied, __ N.C. __, 722

S.E.2d 607 (2012).

“Under a de novo review, the court considers the matter anew and freely

substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362

N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citations and internal quotation marks

omitted).

2. Analysis

The North Carolina Rules of Evidence defines hearsay as “a statement, other

than one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c)

(2013). Hearsay is generally inadmissible at trial, unless a recognized exception to

the hearsay rule applies. N.C. Gen. Stat. § 8C-1, Rule 802 (2013).

“The erroneous admission of hearsay testimony is not always so prejudicial as

to require a new trial, and the burden is on the defendant to show prejudice.” State v.

Allen, 127 N.C. App. 182, 186, 488 S.E.2d 294, 297 (1997) (citations omitted); see N.C.

Gen. Stat. § 15A-1443(a) (2013). Prejudicial errors occur when there is a reasonable

possibility that a different result would have been reached, had the error not been

committed. Allen, 127 N.C. App. at 186, 488 S.E.2d at 297.

N.C. Gen. Stat. § 8C-1, Rule 803(6) establishes an exception to the general

exclusion of hearsay for business records. A business record includes:

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Opinion of the Court

A memorandum, report, record, or data compilation, in any

form, of acts, events, conditions, opinions, or diagnoses,

made at or near the time by, or from information

transmitted by, a person with knowledge, if kept in the

course of a regularly conducted business activity, and if it

was the regular practice of that business activity to make

the memorandum, report, record, or data compilation, all

as shown by the testimony of the custodian or other

qualified witness, unless the source of information or the

method or circumstances of preparation indicate lack of

trustworthiness. The term “business” as used in this

paragraph includes business, institution, association,

profession, occupation, and calling of every kind, whether

or not conducted for profit.

N.C. Gen. Stat. § 8C-1, Rule 803(6) (2013).

Our Supreme Court held business records stored on computers are admissible

if:

(1) the computerized entries were made in the regular

course of business, (2) at or near the time of the transaction

involved, and (3) a proper foundation for such evidence is

laid by testimony of a witness who is familiar with the

computerized records and the methods under which they

were made so as to satisfy the court that the methods, the

sources of information, and the time of preparation render

such evidence trustworthy.

State v. Springer, 283 N.C. 627, 636, 197 S.E.2d 530, 536 (1973). “There is no

requirement that the records be authenticated by the person who made them.”

Crawley, 217 N.C. App. at 516, 719 S.E.2d at 637-38 (citation omitted). “The

authenticity of such records may be established by circumstantial evidence.” Id. at

516, 719 S.E.2d at 637 (citation omitted).

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Opinion of the Court

Defendant argues the State failed to lay a proper foundation for admission of

the report from the NPLEx database under the business record exception to the

hearsay rule. Defendant contends the State was required to present testimony from

someone associated with the NPLEx database, or the company responsible for

maintaining the database, regarding the methods used to collect, maintain and

review the data in the NPLEx database to ensure its accuracy. We disagree.

Officer Lee testified about his knowledge of, and familiarity with, the NPLEx

database. He explained: “[Pharmacy employees] are required to long [sic] into the

system, CVS for example they scan your ID [and] it goes straight into the system the

information does. And then the electronic signature is also put straight into the

system.”

Officer Lee testified he and other law enforcement officers regularly consult

the NPLEx database to look at pseudoephedrine purchases when investigating

individuals suspected of manufacturing methamphetamine. During voir dire, Officer

Lee explained he had attended training sessions on using the NPLEx website. He

stated he was unaware of any means or process by which he or any other individual

with access to the NPLEx database website could manipulate the electronic data.

Officer Lee thoroughly demonstrated his understanding of the NPLEx

database, the method by which the data was gathered, transmitted, and stored, and

the underlying basis for the report admitted into evidence. Officer Lee’s testimony

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Opinion of the Court

provided a sufficient foundation for the admission of the computer report from the

NPLEx database as a business record. See State v. Sneed, 210 N.C. App. 622, 630-31,

709 S.E.2d 455, 461 (2011) (holding detective who routinely used the NCIC database

in his regular course of business was sufficiently qualified to lay necessary foundation

for admission of NCIC information as a business record).

Presuming the report from the NPLEx database were not admissible under the

business record exception to the hearsay rule, admission of the report was harmless

error. The State introduced other ample evidence of guilt against Defendant at trial.

Defendant’s charge of possession of a precursor to methamphetamine, for which the

information contained in the report would have been most damaging, was dismissed

by the trial court at the close of all the evidence. Defendant has failed to carry his

burden to show a different outcome would have resulted had the report not been

admitted into evidence. This argument is overruled.

C. Motion to Continue

Defendant argues the trial court erred by denying his motion to continue after

rejecting his plea agreement. We disagree.

1. Standard of Review

“An alleged error in statutory interpretation is an error of law, and thus our

standard of review for this question is de novo.” Armstrong v. N.C. State Bd. of Dental

Exam’rs, 129 N.C. App. 153, 156, 499 S.E.2d 462, 466 (1998) (citations omitted).

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“Under a de novo review, the court considers the matter anew and freely substitutes

its own judgment for that of the lower tribunal.” Williams, 362 N.C. at 632-33, 669

S.E.2d at 294 (citations and quotation marks omitted).

“Denial of a motion for a continuance, regardless of its nature, is, nevertheless,

grounds for a new trial only upon a showing by defendant that the denial was

erroneous and that his case was prejudiced thereby.” State v. Searles, 304 N.C. 149,

153, 282 S.E.2d 430, 433 (1981).

2. Analysis

Defendant argues he is entitled to a new trial because the trial court denied

his motion to continue after it rejected his plea agreement, in violation of his absolute

right to a continuance under N.C. Gen. Stat. § 15A-1023(b). We disagree.

N.C. Gen. Stat. § 15A-1023(b) provides:

Before accepting a plea pursuant to a plea arrangement in

which the prosecutor has agreed to recommend a particular

sentence, the judge must advise the parties whether he

approves the arrangement and will dispose of the case

accordingly. If the judge rejects the arrangement, he must

so inform the parties, refuse to accept the defendant’s plea

of guilty or no contest, and advise the defendant personally

that neither the State nor the defendant is bound by the

rejected arrangement. The judge must advise the parties

of the reasons he rejected the arrangement and afford them

an opportunity to modify the arrangement accordingly.

Upon rejection of the plea arrangement by the judge the

defendant is entitled to a continuance until the next session

of court.

N.C. Gen. Stat. § 15A-1023(b) (2013) (emphasis supplied).

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This statute gives a defendant an absolute right “to a continuance until the

next session of court” if and after the trial court rejects the proposed plea agreement.

Id.; see State v. Tyndall, 55 N.C. App. 57, 62-63, 284 S.E.2d 575, 578 (1981) (“By

adding the fourth sentence of G.S. 15A-1023(b), the legislature has clearly granted to

the defendant such an absolute right upon rejection of a proposed plea agreement at

arraignment.”). This Court held the trial court commits prejudicial error and the

defendant is entitled to a new trial where the trial court erroneously denies a motion

to continue after rejecting the plea agreement. Id.

Our appellate courts have long recognized “it is a general rule that a defendant

may waive the benefit of statutory or constitutional provisions by express consent,

failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon

it.” State v. Gaiten, 277 N.C. 236, 239, 176 S.E.2d 778, 781 (1970) (citations omitted)

(emphasis supplied).

Here, Defendant and the State agreed Defendant would enter an Alford plea

to possessing a precursor chemical and receive a suspended sentence within the

presumptive range and be placed on probation. In exchange, the State would dismiss

the charges of manufacturing methamphetamine and maintaining a dwelling for

controlled substances.

The parties informed the trial court they had agreed to a plea arrangement,

prior to jury selection. The trial judge discovered the plea agreement contained

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allowance for an Alford plea upon reviewing the plea transcript in open court. The

trial judge advised the parties he would not accept the Alford plea and afforded the

State and Defendant the opportunity to modify the plea agreement. See N.C. Gen.

Stat. § 15A-1023(b). Counsel for Defendant advised the trial court Defendant “[was]

not comfortable changing the plea.” Defendant failed to move for a continuance.

The trial court advised the State to arraign Defendant on the charges.

Defendant pled not guilty and expressly consented to proceed to trial that day. Jury

selection began, and Defendant did not move to continue the case prior to the jury

being empaneled. The State offered evidence for two and one-half days, and

Defendant’s trial recessed for the weekend. At no point up to or during this time did

Defendant move for a continuance.

The following Monday morning, as the parties entered the second week of trial,

counsel for Defendant moved for a continuance pursuant to N.C. Gen. Stat. § 15A-

1023(b). The trial court denied Defendant’s motion, and the trial resumed.

Defendant’s assertion that he had an absolute right to a continuance is a

correct interpretation of N.C. Gen. Stat. § 15A-1023(b). The record and trial

testimony clearly indicate Defendant voluntarily waived this right by: (1) expressly

consenting to being arraigned and proceeding to trial after the trial court rejected the

plea agreement; and (2) failing to assert the statutory right until jeopardy attached,

during the second week of trial, and after the State presented evidence for two and

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Opinion of the Court

one-half days. Defendant waived his right to a continuance by his “failure to assert

it in apt time.” Gaiten, 277 N.C. at 239, 176 S.E.2d at 781. This argument is

overruled.

IV. Conclusion

The trial court determined law enforcement had a good faith belief the evidence

seized was supposed to be destroyed. Defendant has failed to carry his burden to

show the trial court abused its discretion in denying his motion for discovery

sanctions.

Officer Lee testified concerning his knowledge of and familiarity with the

NPLEx database. He stated he regularly used the NPLEx database to assist with

investigations into methamphetamine manufacturing. The State provided a

sufficient foundation to admit the NPLEx database report. The trial court did not err

in admitting into evidence the report under the business record exception to the

hearsay rule. Defendant has failed to carry his burden to show how admission of the

report, if error, would have prejudiced him.

Defendant had an absolute statutory right to a continuance after the trial court

rejected his plea agreement. Defendant waived this right by failing to assert it in a

timely manner and expressly consenting to proceed to trial the same day the trial

court rejected the plea agreement and jeopardy attached.

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STATE V. HICKS

Opinion of the Court

Defendant received a fair trial free from prejudicial errors he preserved and

argued. We find no error in Defendant’s conviction nor the judgment entered thereon.

NO ERROR.

Judges McCULLOUGH and DIETZ concur.

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