State v. Keever
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e . NO. COA12-342 NORTH CAROLINA COURT OF APPEALS Filed: 16 October 2012 STATE OF NORTH CAROLINA v. Mecklenburg Nos. 08 CRS 08 CRS 08 CRS County 227700 06, 227712 16, 227720 27 GARY CLYDE KEEVER, Defendant. On writ of certiorari to review judgments entered 20 April 2011 by Judge Superior Court. H. William Constangy in Mecklenburg Heard in the Court of Appeals County 11 September 2012. Roy Cooper, Attorney General, by Harriet Assistant Attorney General, for the State. F. Worley, Charlotte Gail Blake, for defendant appellant. MARTIN, Chief Judge. Defendant Gary Clyde Keever sought review by petition for writ of certiorari of judgments entered upon jury verdicts finding him guilty of six counts of obtaining property by false pretenses in violation of N.C.G.S. § 14-100, seven counts of -2making untrue statements or omissions of a material fact in connection with the offer or sale of a security in violation of N.C.G.S. § 78A-8(2), six counts of engaging in fraud or deceit in connection with the offer or sale of a security in violation of N.C.G.S. § 78A-8(3), one count of transacting business as a dealer or salesman in this State who was not registered under the North Carolina Securities Act in violation of N.C.G.S. § 78A-36(a), and one count of selling a security in this State that was not registered under the North Carolina Securities Act in violation of N.C.G.S. § 78A-24. We find no error. The evidence presented at trial tended to show that between 2001 and 2007, defendant offered investment opportunities to seven individuals, each of whom was told that monies invested with defendant would be pooled with monies of other investors to buy mortgage notes at discounted rates, and that such notes would be serviced for a term of six months or one year, during which time each investor interest payments. would receive quarterly or annual Then, upon the expiration of the specified service terms of the notes, the formerly-discounted notes would be sold back to financial institutions at face value for a profit, which would be disbursed to the investors, along with each investor s individuals principal invested investment principal amounts stake. The seven with defendant ranging -3from $10,000.00 to $150,000.00 per investor. made at least one interest payment to Although defendant most of the seven investors whether nominal or in accordance with a portion of the returns that were promised at the time the investments were originally made defendant investments to any of the never seven returned individuals. the principal Additionally, defendant did not inform the investors that he would use their investment funds for his personal expenses. Further, defendant had not disclosed to any of the investors that he had a prior felony criminal conviction at the time each invested with him, and each investor stated that, if defendant had made such a disclosure, none of them would have chosen to invest with him. In February 2006, pursuant to a complaint filed with the securities division of the North Carolina Department of the Secretary of State, an investigation was initiated concerning allegations against defendant with respect to pooled investments purportedly used to buy mortgage notes. In late 2007, David Rose, a law enforcement agent with the securities division, took over the investigation. Although Agent Rose is not a forensic accountant, he reviewed bank records related to defendant for twelve accounts from three different banks for the years 2001 through 2007. By correlating the items of deposit, wire transfer confirmations, and checks written on the accounts with -4each of the twelve bank statements seized, Agent Rose concluded that only two of defendant s twelve accounts were related to the transactions that were the subject of the investors complaints. Agent Rose also determined that defendant was not registered to sell securities in the State of North Carolina, and that no securities had been registered to be sold with respect to jury for defendant in this State. In 2009, defendant was indicted by a grand multiple counts of securities fraud and obtaining property by false pretenses and, on 4 October 2010, the grand jury returned superseding indictments on the same charges. In June 2010, defendant s appointed counsel withdrew and another counsel was appointed in her place, at which time defendant s newly- appointed counsel was provided with all of the State s discovery to-date. On 14 December 2010, the prosecutor, defense counsel, and Agent Rose met for a pretrial readiness conference, at which time defense conducting an counsel was independent notified review that of Agent Rose defendant s would be financial records based on the materials that had already been provided to defendant in discovery on or before October 2010. For his review, the agent compiled a simple addition and subtraction spreadsheet for each of the two accounts at issue, tallying all -5deposits greater than or equal to $1,000.00 and all expenditures or debits greater than or equal to $500.00 for the specified time periods. He then classified each of the itemized transactions into different categories to describe the source of the funds for expenditure. each deposit and the destination of each As a result of his review, Agent Rose found no evidence that defendant used the funds he received from the seven individual investors between 2001 and 2007 to purchase, service, or sell any mortgage notes, and concluded that the funds defendant received from the investors were used to pay returns to [defendant s] other investors, personal and [and living were] expenses. . . . On used for 7 February 2011, Agent Rose provided a report to the State which detailed his findings; this same report was provided to defense counsel the following day. Although the matter was set for trial on 7 March 2011, upon defendant s motion, the matter was continued until 4 April 2011. On 4 April, defendant again moved to continue the proceedings, this time on the grounds that the forensic accountant who was helping the defense team prepare for trial resigned abruptly two weeks prior to the start additional time to prepare. motion. of trial and defendant needed The trial court denied defendant s On 20 April 2011, the jury returned guilty verdicts on -6twenty-one of the charged offenses and the trial court sentenced defendant to imprisonment. of three consecutive terms of 116 to 149 months This Court allowed defendant s petition for writ certiorari seeking review of the court s April 2011 judgments. _________________________ Defendant first contends the trial court deprived him of his right to effective assistance when it denied his 4 April 2011 motion to continue because defense counsel did not have the assistance of a forensic accountant to help him prepare [defendant s] defense with a full understanding of the financial records involved. Because the record before us belies defendant s claims, we disagree. In most circumstances, a motion to continue is addressed to the sound discretion of the trial court, and absent a manifest abuse of that discretion, the trial court s ruling is not reviewable. State v. Rogers, 352 N.C. 119, 124, 529 S.E.2d 671, 674 75 (2000), appeal after new trial on other grounds, 161 N.C. App. 345, 587 S.E.2d 906 (2003). If, however, a motion to continue is based on a constitutional right, then the motion presents a question of law which is fully reviewable on appeal. State v. Smith, 310 N.C. 108, 112, 310 S.E.2d 320, 323 (1984). To establish a constitutional violation, a defendant -7must show that he did not have ample time to confer with counsel and to investigate, prepare and present his defense. State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331, 337 (1993); see also State v. Searles, 304 N.C. 149, 153 54, 282 S.E.2d 430, 433 (1981) (providing that what constitutes a reasonable length of time for defense preparation must be determined upon the facts of each case ). To demonstrate that the time allowed was inadequate, the defendant must show how his case would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion. Tunstall, 334 N.C. at 329, 432 S.E.2d at 337 (quoting State v. Covington, 317 N.C. 127, 130, 343 S.E.2d 524, 526 (1986)). If the defendant shows that the time allowed his counsel to prepare for trial was constitutionally inadequate, he is entitled to a new trial unless the State shows that the error was harmless beyond a reasonable doubt. Id. We first note that, although the record contains a motion to continue, it does not contain the motion to continue that is the subject of defendant s issue on appeal. Instead, the motion included in the record before us is defendant s 22 February 2011 motion that sought to delay the start of the trial set to begin on 7 March 2011, which motion was granted by the trial court. Since neither the challenged motion to continue nor its -8accompanying affidavit is included in the record before us, our review of this issue on appeal is necessarily limited to a review of the transcript of the 4 April 2011 hearing on the motion. At the hearing, defense counsel alleged that Agent Rose used the[] work product of the forensic accountant who was originally assigned to the case from the Department Secretary of State to develop [his] opinion. of the Consequently, defendant asserted that, due to his accountant s resignation, he needed time to hire another forensic accountant to advise the defense with respect to its cross-examination of Agent Rose. However, Agent Rose testified on voir dire that he did not rely on any prior analyses of defendant s financial records to inform his own analysis of defendant s accounts, that he compared his results with those from the forensic accountant s 2008 report only after his own analysis was completed in February 2011, and that he planned to testify at trial only to the results of his own analysis based on the same information that was provided to defendant in discovery on or before October 2010. Defense counsel further opined at the hearing that, after the abrupt[] resignation of the defense team s forensic accountant two weeks before the beginning of defendant s trial on 4 April 2011, counsel could not wrap [his] brain around -9[defendant s effective defense 2011, financial] assistance counsel the of records in a way to counsel for [defendant]. that, before resigning concedes defense . . . team s forensic accountant provide However, on had 24 March worked on defendant s case for several months and reviewed everything, including all of defendant s financial records that were provided to defendant on or before October 2010, as well as Agent Rose s analysis that 8 February 2011. Moreover, analysis only was consisted provided of Agent Rose compiling a to defendant testified simple on that his addition and subtraction spreadsheet for two of defendant s bank accounts, which tallied deposits greater than or equal to $1,000.00 and expenditures or debits greater than or equal to $500.00, and organized the itemized transactions into four or five different categories of Agent Rose s own making to describe the source of each deposit and the destination of each expenditure. Thus, no skill other than the ability to perform simple arithmetic was necessary to understand Agent Rose s analysis. a close examination persuaded defendant s that, as forensic of the record a consequence accountant before of almost the three Therefore, after us, we are resignation weeks after not of the trial was originally set to begin, the trial court s denial of defendant s 4 April 2011 motion to continue caused his counsel -10to have inadequate time to prepare for trial. 334 N.C. at 332, 432 S.E.2d at 338. See Tunstall, Accordingly, we overrule this issue on appeal. Defendant jurisdiction next to contends enter its the trial judgments court against had defendant no on 20 April 2011, because the court session in which defendant s trial was heard was set to expire on 15 April 20111 and the trial court did not extend the court session in accordance with the requirements of N.C.G.S. § 15-167. We disagree. A trial court may extend a session of court at the trial judge s discretion [w]henever a trial for a felony is in progress on the last Friday of any session of court and it appears to the trial judge that it is unlikely that such trial can be completed before 5:00 P.M. on such Friday, the trial judge may extend the session as long as in his opinion it shall be necessary for the purposes of the case . . . . N.C. Gen. Stat. § 15-167 (2011). When a trial judge so decides to continue a session, in order to comply with the requirements of N.C.G.S. § 15-167, the judge shall cause an order to such 1 Although the original session of court for defendant s trial was set to expire on Friday, 8 April 2011, because the parties were not finished presenting their respective cases, the trial court recessed court and entered an order extending the court session to Friday, 15 April 2011, in accordance with the requirements of N.C.G.S. § 15-167. The court s extension of the original session from 8 April to 15 April is not challenged by defendant on appeal. -11effect to be entered in the minutes, which order may be entered at such time as the judge directs, either before or after he has extended the session. does not contain a Id. Nonetheless, even where a record written order specifically referencing [N.C.G.S. §] 15-167 and stating that the session was extended thereunder, a court can still effectively extend the court session. See State v. Locklear, 621 S.E.2d 254, 256 (2005). 174 N.C. App. 547, 550, This Court has determined that, where an examination of the record reveals that a trial court made repeated from defendant session, such announcements clearly statements in open court referenc[ing] are the sufficient without objection extension to comply of the with the requirements of N.C.G.S. § 15-167 and effectively extend the court session. See id. at 550 51, 621 S.E.2d at 256 57. In the present case, at the end of the day on Friday, 15 April 2011, although the parties had finished presenting their respective cases to the jury, the jury had not yet heard closing arguments, received its charge and instructions from the court, or began its deliberations. Thus, because the trial was still ongoing, the court decided to extend the session to allow the case to continue. did not enter a Although the parties agree that the court written order extending the session beyond 15 April 2011, our review of the transcripts reveals that the -12court made several statements in open court referenc[ing] its extension of the court session. 550, 621 S.E.2d at 256. clearly See id. at For instance, on Friday, 15 April, the court addressed the jury as follows: Ladies and gentlemen, the lawyers and I have been working diligently through the lunch hour that you ve all had. We still have more work to do on the record. We re not going to have time today to finish and get the jury instructions to you as well as the arguments of the lawyers to conclude this case. So we have a lot of work to do on the record which we ll be doing for the rest of the afternoon. We re going to let you all go home at this time. Come back at 10:00 o clock Monday morning. At that time you will hear the arguments, the closing arguments of the lawyers, the jury instructions from me, and then you will go back to select your foreperson and begin your deliberations in this case. . . . . . . . I hope you have a good weekend. Be back here at 10:00 o clock on Monday morning. We will start at 10:00 o clock with the closing arguments of the attorneys. Have a good weekend. A further review of the transcripts from Monday, 18 April, through Wednesday, 20 April, shows that, at the open and close of court, the court similarly referenced its extension of the court session each day in open court with counsel and the jury. Although it would have been the better practice for the trial court [in the present case] to expressly set forth in the -13minutes a formal order extending the court session after the session expired on 15 April 2011, as it had done the week prior, we hold that the trial court satisfied the requirements of N.C.G.S. § 15-167 by making its repeated announcements in open court without objection from defendant and effectively extend[ed] the session of court through 20 April 2011. Locklear, 174 N.C. App. at 550 51, 621 S.E.2d Accordingly, we overrule this issue on appeal. No error. Judges GEER and STROUD concur. Report per Rule 30(e). at See 256 57.
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