State v. Johnson, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 1, 2020)

In this felony murder  and armed robbery case, the trial court did not err by denying the defendant’s motion for a continuance to allow time to review evidence the State intended to introduce to rebut the defendant’s expert testimony that he acted with diminished capacity, or in the alternative to not allow the State to introduce that rebuttal evidence.  The defendant made this motion on the first day of trial, one day after being informed of the state’s intent to use the rebuttal evidence, which consisted of jailhouse call recordings made around the time that he first met with his expert and which the State contended showed that he did not display signs of diminished capacity. 

The defendant was sentenced to life imprisonment for felony murder based on the jury’s finding that his killing of a store clerk was associated with the defendant’s commission of the felony of assault with a firearm on a law enforcement officer as the defendant left the scene of the crime.  Citing precedent establishing that diminished capacity is not a defense to a felony murder conviction based on that underlying general intent felony, the court found that any error by the trial court in denying the continuance was non-prejudicial as the expert testimony was not relevant to that conviction.

The jury also convicted the defendant of armed robbery and the trial court sentenced him to a term of imprisonment to run consecutively to his life sentence for felony murder.  Because armed robbery is a specific intent crime, the expert testimony on diminished capacity was relevant to the armed robbery conviction.  The State’s jailhouse recording rebuttal evidence went to the issue of the defendant’s mental ability around the time he met with his expert and generally showed that he was capable of making plans and adding up money.  Reviewing whether the denial of the motion deprived the defendant of his constitutional right to present a defense, the court noted that defense counsel knew of the existence of the recordings for “quite a while” before trial but did not request them and, largely because the recordings did not contradict the expert’s testimony, determined that the defendant was not prejudiced by the denial of his motion for a continuance.

Judge Stroud dissented, expressing the view that the trial court’s denial of the continuance erroneously denied the defendant his right to effective assistance of counsel because of defense counsel’s inability due to time constraints to review the jailhouse call recordings or prepare for their use at trial.  In Judge Stroud’s view, because the trial court’s error amounted to a violation of the defendant’s constitutional rights, it was presumptively prejudicial unless the State showed it was harmless beyond a reasonable doubt, a burden that the State did not meet.