Criminal Practice — Constitutional – Continuance Denied – Harmless Error – General Intent Crime

Constitutional – Continuance Denied – Harmless Error – General Intent Crime

The prosecutor had assured defense counsel that the state would not use recordings of defendant’s jailhouse phone calls at trial, so counsel and his investigator focused on other elements of the defense. But the evening before jury selection started, the prosecutor told defense counsel that the state would use 23 of the more than 800 calls. The trial court erred when it denied defense counsel’s motion to continue so that counsel could review the calls.

However, this was harmless error with respect to defendant’s felony murder because the calls were admitted as rebuttal evidence to defendant’s evidence of lack of specific intent. The felony underlying defendant’s felony murder conviction was the general intent crime of assault with a firearm on a government official.

We affirm the Court of Appeals’ decision to uphold defendant’s felony murder conviction. We reverse the Court of Appeals’ decision upholding defendant’s conviction for the specific intent crime of armed robbery. We remand for a new trial on the charge of robbery with a dangerous weapon.

State v. Johnson (Lawyers Weekly No. 010-165-21, 17 pp.) (Tamara Barringer, J.) (Philip Berger, J., not participating) Appealed from Durham County Superior Court (Rebecca Holt, J.) On appeal from the Court of Appeals. Zachary Dunn for the state; Marilyn Ozer for defendant. 2021-NCSC-165