State v. King, 227 N.C. App. 390 (May. 21, 2013)

In this murder case the trial court did not abuse its discretion by denying the defendant’s motion to continue. The defendant sought the continuance so that he could procure an expert to evaluate and testify regarding the State’s DNA evidence. The court rejected the defendant’s argument that by denying his motion to continue, the trial court violated his right to the effective assistance of counsel. The State provided discovery, including all SBI-generated reports and data 9 June 2011. It produced one DNA analysis report in hard copy and included a second on a CD containing other material. Defense counsel did not examine the CD until around 5 March 2012, when he e-mailed the prosecutor and asked if he had missed anything. The prosecutor informed him that the CD contained a second DNA report. Trial was set for 9 April 2012. However, after conferring with a DNA expert, the defendant filed a motion to continue on 16 March 2012. At a hearing on the motion, defense counsel explained his oversight and an expert said that he needed approximately 3-4 months to review the material and prepare for trial. The trial court denied defendant’s motion to continue. The court concluded:

Although the trial court might have justifiably granted defendant’s motion and could have avoided a potential question of ineffective assistance of counsel by doing so, we cannot say that where defendant had been provided the DNA report nearly a year before trial the trial court erred or violated defendant’s constitutional rights in denying his motion to continue in order to secure an expert witness for trial.

The court went on to dismiss the defendant’s claim of ineffective assistance without prejudice to him being able to raise it through a MAR.