State v. Johnson ( 2020 )


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  •                 IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA19-191
    Filed: 16 June 2020
    Durham County, Nos. 15CRS02048, 2049, 55891
    STATE OF NORTH CAROLINA
    v.
    DMARLO LEVONNE FAULK JOHNSON, Defendant.
    Appeal by Defendant from judgment entered 12 May 2017 by Judge Rebecca
    W. Holt in Durham County Superior Court. Heard in the Court of Appeals 16 October
    2019.
    Attorney General Joshua H. Stein, by Special Deputy Attorney General Sandra
    Wallace-Smith, for the State.
    Rudolf Widenhouse, by M. Gordon Widenhouse, Jr., for Defendant.
    DILLON, Judge.
    Defendant Dmarlo Johnson appeals from a final judgment entered in superior
    court finding him guilty of first degree (felony) murder and robbery with a dangerous
    weapon. After careful review, we conclude that Defendant received a fair trial, free
    from reversible error.1
    I. Background
    1 We note that Defendant, himself, filed a Motion for Appointment of Counsel with our Court.
    But since he is represented by counsel and his appointed counsel had already filed briefs and a record
    with this Court, we dismiss his motion.
    On 4 July 2015, Defendant robbed a convenience store, fatally shot the store
    clerk, and then assaulted a law enforcement officer with his gun as he was exiting
    the store. There is no dispute that Defendant was the perpetrator or that Defendant
    was legally sane that day. Rather, Defendant claims he acted with diminished
    capacity.
    Prior to the 2015 robbery/shooting, Defendant was identified as a man of
    below-average intelligence, who suffered from bipolar disorder and depression.
    On 3 July 2015, the day before the robbery/shooting, Defendant drove
    recklessly by “doing donuts” near a crowd of people and then eluding police. He was
    cited later that day for the incident.
    On 4 July 2015, in the early morning hours, Defendant entered a convenience
    store with his face covered. Much of what transpired while he was there was recorded
    by security cameras. Defendant threatened the customers inside, ordering them to
    leave. The store clerk, Amer Mahmood, remained in the store. Defendant stole
    money from the cash register, items from the store, and Mr. Mahmood’s wallet. At
    some point Mr. Mahmood recognized Defendant, calling him “Marlo.” Shortly after
    being recognized by Mr. Mahmood, Defendant shot Mr. Mahmood six times, mortally
    wounding him.
    Defendant exited the store and placed stolen items in his car. He then returned
    to shoot out surveillance cameras.       As Defendant was returning to his car, he
    encountered police officers. He refused orders to drop his gun, pointing the gun at
    one of the officers. A series of gunshots from Defendant and the officers ensued.
    Defendant was subdued after being struck. Defendant was taken to the hospital,
    where he was treated for his wounds.
    Days later, Defendant was formally arrested and held in custody while
    awaiting trial.
    On 13 August 2015, about six weeks after the robbery/shooting, Defendant was
    first examined by a Dr. Corvin, his expert who would testify at trial concerning his
    diminished capacity.      Over the course of the next several months, Dr. Corvin
    developed his diagnosis that Defendant suffered from bipolar disorder, which caused
    Defendant to act with diminished capacity when Defendant killed Mr. Mahmood.
    On 23 April 2017, the day before the trial was to begin, the State informed
    Defendant of its intent to introduce certain evidence to rebut Dr. Corvin’s testimony.
    This rebuttal evidence consisted of recordings of certain jailhouse calls made by
    Defendant around the time he first met with Dr. Corvin in August 2015, which the
    State contended demonstrated that Defendant showed no signs of diminished
    capacity.
    The next day, on the first day of trial, Defendant’s counsel sought a
    continuance to allow time to review the rebuttal evidence or, in the alternative, a
    ruling not to allow the State to introduce the recordings as rebuttal evidence. The
    trial court denied Defendant’s requests.
    The trial lasted several weeks. On 9 May 2017, after Dr. Corvin testified
    concerning Defendant’s bipolar disorder, the State introduced the recordings in
    rebuttal to Dr. Corvin’s testimony over Defendant’s objection.
    On 12 May 2017, the jury returned guilty verdicts for felony murder and for
    armed robbery. The trial court sentenced Defendant to life without parole on the
    murder conviction and a term of years on the robbery conviction, to run consecutively
    with his life sentence.
    Defendant timely appealed.
    II. Argument
    On appeal, Defendant argues that the trial court erred in denying his request
    for a continuance made at the start of trial. Further, Defendant argues that the trial
    court’s error was a constitutional error in that Defendant’s trial counsel was denied
    the opportunity to prepare an adequate defense to respond to the State’s rebuttal
    evidence:
    Finally, the gravity of harm [Defendant] would suffer
    without the continuance was substantial. He faced a
    sentence of life without parole. His capacity at the time of
    the crimes was central to the case. The telephone calls
    were introduced to undermine [Defendant’s] mental health
    defense. Denying counsel time to prepare to deal with
    these telephone calls was untenable.
    We address Defendant’s argument as it pertains to each of his convictions in turn.
    A. Felony Murder Conviction
    As explained below, based on controlling jurisprudence, we must conclude that
    Defendant is not entitled to a new trial on his felony murder conviction. Specifically,
    because the underlying felony supporting the jury’s felony murder conviction was a
    “general intent” crime, Dr. Corvin’s testimony concerning Defendant’s diminished
    capacity was not relevant to this conviction.
    The jury was presented with three theories by which they could convict
    Defendant of first degree murder for fatally shooting Mr. Mahmood. The jury rejected
    the State’s theory that Defendant killed Mr. Mahmood based on premeditation and
    deliberation. However, the jury found Defendant guilty based on the two other
    theories, each of which is based on the felony murder rule. First, the jury determined
    that Mr. Mahmood’s death was sufficiently associated with Defendant’s commission
    of armed robbery. Second, the jury determined that Mr. Mahmood’s death was
    sufficiently associated with Defendant’s assault on a law enforcement officer with a
    deadly weapon as he was exiting the convenience store.
    The trial court sentenced Defendant to a term of life imprisonment for felony
    degree murder based on the jury’s finding that the killing was sufficiently associated
    with Defendant’s assault on a law enforcement officer with a deadly weapon. The
    jury separately convicted Defendant of this underlying felony; however, since that
    felony was used to elevate the killing to felony murder, the trial court arrested
    judgment on that underlying conviction.
    Our Supreme Court has held that the felony of assault with a firearm upon a
    law enforcement officer is a general intent crime for which the diminished capacity
    defense2 is not available:
    [A]ssault with a firearm upon a law enforcement officer in
    the performance of his duties . . . may be described as a
    general-intent offense.
    * * *
    Accordingly, we now hold that the diminished-capacity
    defense is not available to negate the general intent
    required for a conviction of assault with a deadly weapon
    on a government officer.
    State v. Page, 
    346 N.C. 689
    , 700, 
    488 S.E.2d 225
    , 232 (1997). And our Supreme Court
    further held that diminished capacity is not a defense to a felony murder conviction
    based on that underlying general intent felony:
    2  We note that the jury was not instructed on the defense of insanity, which would be a
    complete defense to all the charges for which Defendant was convicted, even a conviction for general
    intent crimes. Indeed, Defendant made no argument before the jury nor makes any argument on
    appeal that he was legally insane when he killed Mr. Mahmood and stole from him and the store.
    Defendant merely asserts that he acted with diminished capacity when he committed those acts, and
    it was this defense on which the jury was instructed.
    We allow defendants to assert diminished mental capacity
    as a defense to a charge of premeditated and deliberate
    murder because we recognize that some mental conditions
    may impede a defendant’s ability to form a specific intent
    to kill. This reasoning is not applicable to the knowledge
    element of the felony of assault with a deadly weapon on a
    government officer.
    Id. at 699,
    488 S.E.2d at 232 (citation omitted).
    Here, Defendant makes no argument on appeal concerning his conviction for
    the felony of assault with a deadly weapon on a law enforcement officer or the use of
    that felony to support his felony murder conviction. Therefore, based on Supreme
    Court precedent, we must conclude that any error by the trial court in not allowing
    Defendant time to prepare for the State’s rebuttal of his defense is non-prejudicial,
    no matter our standard of review.
    B. Armed Robbery Conviction
    The jury convicted Defendant of armed robbery. The trial court sentenced
    Defendant to a term of imprisonment to run consecutively to his life sentence for the
    felony murder conviction.
    Armed robbery is a specific intent crime. See State v. Lunsford, 
    229 N.C. 229
    ,
    231, 
    49 S.E.2d 410
    , 412 (1948) (explaining that the State must prove that the
    defendant had the specific intent to steal).        Therefore, diminished capacity is a
    defense to this felony. Accordingly, Defendant’s arguments on appeal regarding the
    State’s rebuttal evidence to Dr. Corvin’s testimony are relevant to his armed robbery
    conviction, and we address them below.
    On appeal, Defendant argues that he was prejudiced when the State was
    allowed to introduce recordings of nine (9) jailhouse phone calls he made around the
    time he met with Dr. Corvin. Defendant also argues that he was prejudiced when
    the trial court denied his motion for a continuance to allow his counsel time to prepare
    to respond to those nine (9) calls. For the reasoning stated below, we conclude that
    the trial court did not err in denying Defendant’s motion to continue or in overruling
    Defendant’s objection to the State’s rebuttal evidence.
    The circumstances regarding the introduction of the State’s rebuttal evidence
    are as follows:
    Dr. Corvin first met with Defendant on 13 August 2015, weeks following the
    killing, while Defendant was in custody. During that time, Defendant had made a
    number of jailhouse phone calls, some to his girlfriend, who would be a witness for
    him at trial. Defendant and his counsel were aware that these calls were being
    recorded. In any event, many months prior to trial, Defendant’s counsel noticed their
    intent to assert various diminished capacity defenses.
    Shortly before trial, the State came into possession of the 835 recorded phone
    calls Defendant had been a party to while in custody. These calls were made available
    to Defendant’s counsel. The State considered using some of the jailhouse calls made
    by Defendant to his girlfriend, but then decided against it. Defendant’s defense team
    decided not to review any of the calls or ask for a continuance for more time to review
    the calls to see if there was evidence helpful to Defendant’s diminished capacity
    defense.
    However, just before the day of trial, after previously telling Defendant’s
    counsel that they did not intend to use any of the recordings, the State prosecutors
    determined that they did intend to use some of the calls as rebuttal to any testimony
    Dr. Corvin might give; specifically, certain calls made the day before, the day of, and
    the day after Dr. Corvin’s first examination of Defendant. The prosecution indicated
    that the calls were relevant to show Defendant’s mental capacity during the time
    Defendant was examined by Dr. Corvin. Upon learning of the State’s intent to use
    these calls (fewer than thirty) as rebuttal evidence, Defendant’s counsel sought a
    continuance on the first day of trial to be allowed to listen to all 835 calls made by
    Defendant over the period of several months. The trial court denied the motion.
    The trial began and centered largely on Defendant’s state of mind around the
    time he killed Mr. Mahmood. The State put on evidence of Defendant’s theft and
    killing at the convenience store, including video evidence from the surveillance
    cameras that caught much of Defendant’s actions. This evidence tended to show that
    Defendant ordered customers out of the store, he ordered the store clerk Mr.
    Mahmood to remain behind the counter, he shot Mr. Mahmood when Mr. Mahmood
    called Defendant by name, and he shot out a surveillance video camera.
    Defendant put on evidence which tended to show Defendant had below average
    intelligence, that he had suffered and had been treated for mental disorders, that he
    was acting rashly in the days and hours leading up to the killing, and that he was
    under the influence of alcohol and drugs at the time of the killing.
    Defendant called Dr. Corvin, who testified concerning his evaluation of
    Defendant, including his initial meeting with Defendant on 13 August 2015. Dr.
    Corvin testified that Defendant was very moody during their first encounter. He
    testified that this initial meeting alone did not reveal to him a man who suffered from
    bipolar disorder, but rather a man with
    an antisocial personality disorder, the kind of guy who
    takes advantage of people, et cetera[.] Not that much we
    can really do about that. And trust me, as a forensic
    psychiatrist, I spend a lot of my time in prison. We see
    plenty of those folks, and it is what it is, and knowing
    nothing more other than what I saw of him in August of
    2015, that’s kind of what I [and the other doctors treating
    Defendant] thought[.]
    He testified that over time after his initial meeting and after reviewing Defendant’s
    medical records, he opined that Defendant suffered from bipolar disorder.           He
    testified that Defendant’s disorder combined with Defendant’s ingestion of alcohol
    and drugs on the day of the shooting caused Defendant to act with diminished
    capacity.
    The State, in rebuttal, presented a court-appointed expert, who testified that
    Defendant had below average intelligence; that Defendant was not bipolar but rather
    suffered from alcohol and cocaine substance abuse disorder; that though Defendant
    was intoxicated during the shooting, he was not impaired (based on her viewing of
    the surveillance video); and that Defendant had the ability to form the specific intent
    to kill during the shooting.
    The State, in rebuttal, also introduced nine (9) jailhouse calls – the calls which
    are the subject matter of Defendant’s arguments on appeal – that Defendant made
    around the time he first met with his expert Dr. Corvin. The State introduced these
    calls to show Defendant’s mental ability around the time he met with Dr. Corvin.
    Quoting Defendant’s brief, “[t]he calls indicated he was planning things, such as
    trying to make bond. He discussed a bond with his mother. He spoke to a bondsman.
    He added up money correctly.”
    The case was given to the jury, which found Defendant guilty of felony murder,
    felony assault on an officer with a deadly weapon, and armed robbery.
    Ordinarily, “a motion for a continuance is . . . addressed to the sound discretion
    of the trial judge” and will not be disturbed on appeal “absent gross abuse.” State v.
    Searles, 
    304 N.C. 149
    , 153, 
    282 S.E.2d 430
    , 433 (1981) (citations omitted). However,
    “when such a motion raises a constitutional issue, the trial court’s action upon it
    involves a question of law which is fully reviewable by an examination of the
    particular circumstances of each case.”
    Id. at 153,
    282 S.E.2d at 433 (citation
    omitted). And “the constitutional guarantees . . . include the right of a defendant to
    have a reasonable time to investigate and prepare his case.”
    Id. at 153-54,
    282 S.E.2d
    at 433 (citations omitted). See State v. Rogers, 
    352 N.C. 119
    , 124, 
    529 S.E.2d 671
    , 675
    (2000) (stating that defense counsel “shall have a reasonable time to investigate,
    prepare, and present his defense”); see also State v. Tunstall, 
    334 N.C. 320
    , 328, 
    432 S.E.2d 331
    , 336 (1993).
    Here, we conclude that the trial court’s denial of a continuance did not deprive
    Defendant of his constitutional right to present his defense for a number of reasons.
    First, Defendant’s counsel knew for quite a while that recordings of these calls
    existed. Counsel had plenty of time to request the recordings if they thought there
    was any evidence contained therein tending to bolster their defense that Defendant
    suffered from bipolar disorder. Such evidence (if it exists) did not suddenly become
    relevant to Defendant’s case when the State informed Defendant’s counsel that they
    planned to use some of the calls as rebuttal to Dr. Corvin’s testimony. Such evidence
    was relevant all along in Defendant’s case. If Defendant’s counsel thought there
    might be evidence on those calls, recordings which involved Defendant and
    Defendant’s family and which Defendant’s counsel knew existed for many months,
    they should have been more diligent in seeking a continuance, not waiting until the
    eve of trial. See 
    Tunstall, 334 N.C. at 328
    , 432 S.E.2d at 336.
    Second, Defendant has failed to show any prejudice. See Searles, 304 N.C. at
    
    153, 282 S.E.2d at 433
    (“Denial of a motion for a continuance, [even a motion raising
    a constitutional issue], is, nevertheless, grounds for a new trial only upon a showing
    by defendant that [he] was prejudiced thereby.”).
    Here, Dr. Corvin testified that he did not pick up on Defendant’s bipolar
    disorder during his meeting in August 2015, but initially thought Defendant was
    antisocial and also a person who takes advantage of others. He only later concluded
    that Defendant was bipolar, indicating that Defendant suffered from mood swings
    that, at times, caused him to act impulsively or without specific intent. But the
    State’s introduction of the phone calls made around the day Dr. Corvin met with
    Defendant did not contradict what Dr. Corvin testified he saw of Defendant during
    their initial meeting, a person who could plan. And these calls do not contradict Dr.
    Corvin’s testimony that Defendant suffers from bipolar disorder and could act with
    diminished capacity at times, especially during extreme manic periods heightened by
    being under the influence of impairing substances. That is, Dr. Corvin did not testify
    that Defendant’s bipolar disorder caused Defendant to act with legal diminished
    capacity at the time he first met him in August. He testified that due to his bipolar
    disorder and being under the influence of impairing substances, Defendant acted with
    diminished capacity, unable to form a specific intent, when he shot and stole from
    Mr. Mahmood.
    Also, the State’s focus during its closing focused more on the evidence
    concerning Defendant’s state of mind when he was in the convenience store, as
    exhibited on the surveillance tapes, rather than on what Defendant’s mental capacity
    was on the day of his meeting with Dr. Corvin. That is, the jury made its finding that
    Defendant did not act with diminished capacity based on what they saw on the
    surveillance tapes of the crime rather than how Defendant sounded on some phone
    calls six weeks later.
    And finally, Defendant has not made any showing that any of the 835 calls
    would have actually been helpful in addressing the State’s rebuttal evidence. Indeed,
    in Searles, our Supreme Court held that the trial court did not constitutionally err in
    denying a motion to continue to allow the defendant’s counsel to review newly-
    discovered evidence where the defendant failed to show on appeal what this evidence
    would show and how it would, in fact, be material. See 
    Searles 304 N.C. at 154
    , 282
    S.E.2d at 434. See also State v. Phillip, 
    261 N.C. 263
    , 267, 
    134 S.E.2d 386
    , 390 (1964)
    (stating that “a postponement is [only] proper where there is a belief that material
    evidence will come to light and such belief is reasonably grounded on known facts”).
    III. Conclusion
    We conclude that Defendant received a fair trial, free from reversible error.
    Defendant fails to make any argument showing reversible error in his conviction for
    felony murder where the underlying felony is a general intent crime.
    As to Defendant’s conviction for armed robbery, a specific intent crime, we
    conclude that the trial court did not commit reversible error in denying Defendant’s
    motion for a continuance or otherwise allowing the State to offer its rebuttal evidence.
    There was strong contradictory evidence offered by both the State and Defendant’s
    counsel as to whether Defendant acted with diminished capacity. The jury heard the
    evidence and made their decision.
    NO ERROR.
    Judge BERGER concurs.
    Judge STROUD dissents, writing separately.
    No. COA19-191 – State v. Johnson
    STROUD, Judge, dissenting.
    I respectfully dissent because the majority fails to apply the correct standard
    of review, and, under that standard, Defendant is entitled to a new trial. Defendant
    asserted both at trial and on appeal constitutional arguments to support his motion
    to continue. “A violation of the defendant’s rights under the Constitution of the
    United States is prejudicial unless the appellate court finds that it was harmless
    beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a
    reasonable doubt, that the error was harmless.” N.C. Gen. Stat. § 15A-1443(b) (2017).
    The majority shifts this burden to Defendant and finds the phone calls used by the
    State were merely “rebuttal evidence.”      But the importance of evidence is not
    determined by whether it is in the case in chief or rebuttal; indeed, rebuttal evidence
    can be the most significant, particularly when a defendant has no opportunity to
    respond to it. As Defendant’s brief accurately noted, by using the phone calls as
    rebuttal, “the state made sure the disputed telephone calls were the very last items
    of evidence the jury heard and considered before it began its deliberations.” And
    because Defendant presented evidence at trial, the State also had the benefit of the
    final argument to the jury, leaving Defendant with no opportunity to respond to the
    State’s arguments regarding the jail calls. See Gen. Rules of Practice for the Super.
    & Dist. Ct., R. 10, 
    276 N.C. 735
    , 738 (1970) (“In all cases, civil and criminal, if no
    evidence is introduced by the defendant, the right to open and close the argument to
    the jury shall belong to him.”).
    STATE V. JOHNSON
    STROUD, J., dissent
    The issue at trial, and in this appeal, is not whether Defendant was the person
    who robbed the convenience store and fatally shot the clerk. The only real issues at
    trial were Defendant’s capacity and state of mind at the time of the shooting, 4 July
    2015. Those issues are relevant to the jury’s determination of his intent and the exact
    crimes for which he could be convicted. Even assuming the jury would have convicted
    Defendant of some crime, the difference between a sentence for first degree murder
    and second degree is not insignificant.3 The jury found Defendant not guilty of first
    degree murder based on malice, premeditation, and deliberation, but guilty of first
    degree murder based on the felony murder rule based upon robbery with a firearm
    and assault with a firearm on a law enforcement officer.
    I.     Factual Background on State’s Intent to Use Jail Calls as Evidence and
    Defendant’s Objections
    The majority glosses over the actual timing of the production of the phone calls
    and the State’s repeated assurances it did not intend to use any of the phone calls.
    The majority also relies upon the State’s evidence of Defendant’s commission of the
    crimes, especially the video surveillance tapes, which it states show “Defendant’s
    state of mind when he was in the convenience store[.]” The majority does not explain
    how a video can show a “state of mind” as relevant to this case. A video of a person
    shooting in a convenience store would not necessarily look any different whether the
    3Based upon Defendant’s intellectual disability, mental illness, and impairment by alcohol and drugs,
    his trial counsel argued at trial that Defendant should be convicted only of second degree murder.
    2
    STATE V. JOHNSON
    STROUD, J., dissent
    shooting was committed by a person suffering from a severe mental illness or
    incapacity as opposed to a person of average intelligence and unimpaired mental
    capacity. But even if the video may show indications of “state of mind” as relevant to
    Defendant’s alleged incapacity, the video surveillance from the convenience store was
    interpreted differently by the two expert witnesses testifying about their evaluations
    of Defendant. The video surveillance alone does not weaken or eliminate Defendant’s
    arguments. The differing interpretations of the video by Defendant’s expert and the
    State’s expert actually strengthens Defendant’s arguments on appeal, since the State
    used the phone calls solely to attack the evaluation by Defendant’s expert.
    Around 6:00 PM on the Sunday evening before trial was to begin, the State
    notified Defendant’s counsel it would be using twenty-three phone calls as evidence.
    Before the trial began, Defendant moved to exclude the phone calls or continue the
    trial so his counsel would have an opportunity to prepare for trial by listening to the
    phone calls. Defendant’s “first request” was that the trial court “exclude those phone
    calls and allow us to proceed[;]” in the alternative, he requested “to continue the
    matter so that I can prepare this case like it should be prepared. It’s a first-degree
    murder case, and we’re dealing with a lot of complicated mental health issues here.”
    Defendant’s counsel argued, “My client’s right to due process will be violated by the
    admission of these phone calls. He has a right to an effective assistance to counsel is
    [sic] going to be affected. His right to confront witnesses is going to be affected.”
    3
    STATE V. JOHNSON
    STROUD, J., dissent
    Defendant’s counsel invoked his right under both the United States and North
    Carolina Constitutions. See U.S. Const. amends. V, VI, XIV; N.C. Const. art. I, §§ 19,
    23. He raised his constitutional objections and motion to continue both before trial
    and again after jury selection. He also renewed the objections when the phone call
    evidence was presented.
    A full understanding of the relevance of the phone calls used by the State and
    the potential prejudice to Defendant requires some background information
    regarding Defendant’s psychiatric evaluation.                Defendant was evaluated by Dr.
    George Corvin, a general forensic psychiatrist, on 13 August 2015, about a month and
    a half after the shooting. At this time, Defendant was not yet on medication for his
    mental illness, although he had previously been diagnosed and treated prior to the
    shooting.4 Dr. Corvin diagnosed Defendant with Bipolar I disorder; cannabis, alcohol,
    and cocaine use disorders; mild intellectual developmental disorder; and
    neurodevelopmental disorder (fetal alcohol syndrome) related to his mother’s known
    use of alcohol during her pregnancy with Defendant. On 19 July 2016, Defendant
    filed his notice of defense under North Carolina General Statutes §§ 15A-905, 959:
    1) Mental infirmity and diminished capacity under GS
    15A-959 (b); and
    2) Mental infirmity and insanity under GS 15A-959 (a); and
    3) Voluntary intoxication
    4 By the time the State’s expert witness evaluated Defendant, he had been on medication for months.
    At trial, Dr. Laney, a psychologist, testified that she did not believe Defendant was actually suffering
    from bipolar disorder, despite his prior diagnosis by other psychiatrists and continued treatment for
    the disorder.
    4
    STATE V. JOHNSON
    STROUD, J., dissent
    These defenses are based upon the defendant’s state of
    mind at the time of the offense including a mood disorder,
    his use of alcohol and drugs, and his impaired
    neurocognitive functioning and intellectual disabilities.
    Around the same time, Defendant also provided the State with Dr. Corvin’s report.
    Almost a year after the State received Dr. Corvin’s report, trial was set to begin
    on 24 April 2017. On Thursday, 13 April 2017, the State disclosed to Defendant’s
    counsel written summaries of interviews with some potential new witnesses it
    intended to call to testify and a disc which the prosecutor “represented . . . were jail
    phone calls allegedly from [Defendant] to various people.”        Neither Defendant’s
    counsel nor his investigator were able to open the disc due to the file format. 14 April
    2017 was Good Friday, a state holiday.
    On Monday, 17 April, Defendant’s counsel contacted the prosecutor and got a
    disk with a different file format. His investigator opened the disk and discovered it
    contained approximately 335 recorded telephone calls Defendant made from jail. At
    9:28 AM on Tuesday, 18 April, Defendant’s counsel emailed the prosecutor regarding
    the phone calls:
    Yesterday afternoon we received a copy of the jail call disc
    in a format that we could open and I will not have time to
    listen to them and do not think I have anyone in my office
    that can assist. Please let me know if there are any calls
    which you believe are somehow relevant to your case.
    5
    STATE V. JOHNSON
    STROUD, J., dissent
    At 12:50 PM the same day, the prosecutor responded to the email, assuring
    Defendant’s counsel “I haven’t listen [sic] to most of [the phone calls]” and “[a]t this
    time I do not intend to use any of those calls, and I am no longer requesting anyone to
    continue listening to the calls.” (Emphasis added.)
    On Thursday, 20 April 2017, the State provided to Defendant’s counsel another
    disc with “550 +” additional phone calls. At 11:13 AM, Defendant’s counsel emailed
    the prosecutor again:
    My office just picked up the disc with 550 + phone calls. I
    am assuming that your earlier email applies and these
    were just more calls from your earlier request. Let me
    know if my assumption is incorrect.
    At 6:25 PM the same day, the prosecutor responded, confirming his prior email
    stating that the State did not intend to use any of the phone calls:
    I do not intend to introduce any of the jail calls. These calls
    were requested at a different time from the other calls;
    however, the delay in receiving the calls was even greater
    than the delay related to the prior calls that were delivered
    to you.
    Based upon this assurance, Defendant’s counsel and his investigator stopped
    listening to the phone calls to focus on other information provided by the State that
    same week. Along with the phone calls, the prosecutor also provided to Defendant’s
    counsel information regarding a new witness, Mr. Saeed, the decedent’s former
    roommate. Defendant’s counsel determined he would need to talk to Mr. Saeed and
    “spent a good part of [the week prior to trial] . . . maybe even a day and a half, two
    6
    STATE V. JOHNSON
    STROUD, J., dissent
    days, looking for Mr. Saeed.” Then later in the week, the State provided yet another
    more detailed statement from Mr. Saeed and a statement from another new witness,
    Mr. Chaudry. Police officers had talked to Mr. Chaudry, the owner of the convenience
    store, the night of the shooting. Defendant’s counsel noted that although the police
    “had plenty of contact with Mr. Chaudry 20 some months ago, and now we’re getting
    statements from Mr. Chaudry.”5 In his argument to the trial court, Defendant’s
    counsel noted that
    all these statements came about approximately 21 to 22
    months after this offense occurred, statements by a witness
    that people knew but nobody ever bothered to talk to. . . .
    and that’s kind of going on the same time as these phone
    calls being given to me.
    Thursday, 20 April 2017, was the last day Defendant’s investigator, Mr. McGough,
    was available to assist with trial preparation “because he was pretty sick and didn’t
    come to work the next day.” He was out with pneumonia until “sometime after trial
    began.”
    On Sunday, 23 April 2017, the prosecutors6 were working on the case and as
    Assistant District Attorney Dornfried explained to the trial court, he suddenly had
    an idea of a way to attack Dr. Corvin’s evaluation of Defendant:
    5The State identified 45 potential witnesses at the start of the trial, and 21 witnesses testified for the
    State.
    6The State had two attorneys working on the case and both were present for the entire trial.
    Defendant had only one court-appointed attorney.
    7
    STATE V. JOHNSON
    STROUD, J., dissent
    it just had dawned on me we do have recordings or we
    might. I didn’t know if we did or not, but we might have
    recordings of the defendant, which is the jail calls that had
    been pulled not for the purposes of determining what is
    condition was like around the time Dr. Corvin was
    interviewing him and evaluating him[.7]
    At 5:50 PM, the prosecutor emailed Defendant’s counsel to inform him that contrary
    to his prior email, he now intended to use some of the phone calls. The email also
    explained the potential relevance and importance of the particular phone calls the
    State intended to use.
    After we confirmed yesterday that Dr. Corvin did not make
    any recordings of the Defendant on the day that he saw him
    exhibiting unusual behaviors, we didn’t think more of the
    issue. Today, it occurred to us that there are recordings of
    the Defendant on that day, although not with Dr. Corvin.
    The recordings are of the jail calls. We have listened to some
    jail calls and decided that they are relevant material to his
    state of mind as well as his memory of the night of the
    murder.
    The jail calls that are from August 12 - August 14, 2015 are
    calls numbered 251 - 274. We do not intend to use the calls
    that only constitute phone sex or involve the Defendant’s
    child. You can tell the call numbers by clicking on the icon
    and going to properties and index. You can print the call
    log at the very bottom of the folder to line the call numbers
    up with the phone numbers date and time.
    (Emphasis added.) The twenty-three phone calls the prosecutor initially identified
    as calls which may be used as evidence lasted approximately three and a half hours.
    7The State had gotten the recordings to see if Defendant had discussed the events with his girlfriend
    but were unable to find any such conversations.
    8
    STATE V. JOHNSON
    STROUD, J., dissent
    In the hearing before trial, after arguments from Defendant and the State, the
    trial court denied Defendant’s motion to continue and ordered the State could
    introduce only the twenty-three phone calls identified in the Sunday night email but
    only during rebuttal and not as part of its case-in-chief, in accord with how the State
    had announced it intended to use the calls. The trial court did not limit the Defendant
    in using the phone calls, but since Defendant’s sole attorney was representing him in
    trial, his counsel had no meaningful opportunity to listen to even twenty-three phone
    calls—and certainly not over 800 calls—or to prepare to use them. Based upon the
    estimates of the average length of each call, it would take between 95 and 140 hours
    to listen to all the phone calls.
    Jury selection ended on Friday 28 April at 11:28 AM. Defendant’s counsel
    requested to adjourn until Monday so he could have an opportunity to listen to the
    phone calls over the weekend before opening statements. He wanted a chance to
    consult with his “mental health professionals” about the calls as well. The State
    opposed Defendant’s request because it had a witness from out of state and hoped to
    complete the witness’s testimony so he could take a flight home that afternoon. The
    trial court denied Defendant’s motion, immediately empaneled the jury, and
    proceeded to opening statements.
    Defendant again renewed his objections to the State’s use of the jail phone calls
    before the State’s presentation of the evidence on rebuttal. Defendant’s counsel noted
    9
    STATE V. JOHNSON
    STROUD, J., dissent
    that he had still not had time to prepare for the State’s use of the calls on rebuttal or
    to prepare any surrebuttal.      He had listened to some of the calls but had no
    opportunity to go over the calls with his expert witnesses or to determine how to use
    any calls.
    Although the majority does not appreciate the significance of Defendant’s need
    to listen to the calls and to prepare for the rebuttal evidence identified by the State
    the evening before trial, the State’s brief does, and the State attempts to explain why
    Defendant was not prejudiced by his counsel’s inability to prepare. The State argues
    others assisting Defendant’s counsel could have listened to the calls during the trial.
    The State’s brief repeatedly refers to the “defense team” but cites to only one portion
    of the transcript in support of this assertion. For example, the State argues, “Where
    the record shows that the defense team consisted of two investigators and three
    attorneys, there was ample time for his team to review the telephone calls in question
    and confer with their mental health expert about them.” But the record does not
    show a “defense team” with several attorneys available to provide assistance during
    trial. Defendant accurately points out that “the record belies this argument. Defense
    counsel did not have co-counsel. The other attorneys who were periodically in court
    with him were either new to the office or just observing. The lead investigator had
    10
    STATE V. JOHNSON
    STROUD, J., dissent
    been sidelined by pneumonia and the other investigator was merely providing rote
    assistance.”8
    The State also argues that “Defendant was personally aware of the content of
    the calls he made.” The State seeks to compare Defendant’s awareness of his phone
    calls to the defendant’s knowledge of two brief oral statements in State v. Tunstall:
    The record does show that the defendant’s counsel received
    tardy notice—less than a week before the defendant’s trial
    began—of two oral statements made by the defendant.
    These statements consisted of (1) the defendant’s
    statement to Deputy J.A. McCowan, “I shot the mother f––
    –er, he’s over there dead” and (2) the defendant’s statement
    to Auxiliary Deputy Ronnie Baskett, “I hope I killed the
    mother f–––er.” The defendant’s counsel had at least three
    days between notification of these statements and the
    beginning of jury selection in the defendant’s trial in which
    to investigate the circumstances under which the
    statements were made. The defendant has not shown that
    additional time would have enabled his counsel to better
    confront the witnesses who testified that the defendant
    made these statements.
    
    334 N.C. 320
    , 332, 
    432 S.E.2d 331
    , 338 (1993). There was no need for an expert
    witness to address the relevance of those two brief statements. In addition, the two
    8 During Defendant’s argument renewing his objections prior to the State’s presentation of rebuttal
    evidence, the trial court inquired about other members of the “defense team” in the courtroom during
    portions of the trial. Defendant’s counsel explained that one attorney sat in “helping me with voir
    dire” but did not “know anything about the case.” Another attorney was a “brand-new lawyer in our
    office” who was only there to observe. Mr. McGough was the primary investigator for Defendant’s
    counsel, and his absence due to pneumonia had already been noted at the beginning of the trial. The
    other investigator was Ms. Winston, who “had very limited involvement in this case. Really last week
    was probably -- she got involved helping me when Mr. McGough came down with pneumonia.” The
    State did not refute any of Defendant’s arguments regarding the nonexistence of a “defense team” at
    trial. The transcript and record confirm that only one attorney appeared as trial counsel for
    Defendant, from appointment of counsel until his notice of appeal.
    11
    STATE V. JOHNSON
    STROUD, J., dissent
    statements in Tunstall were presented during the State’s evidence—not during
    rebuttal—so the defendant’s counsel had the opportunity to address the late
    disclosure of the statements and “reveal the weaknesses” in the testimony of the
    officers, as noted by the Supreme Court:
    On cross-examination, both McCowan and Baskett
    admitted that they had not told the prosecutor about the
    defendant’s statements until the week before his trial. Both
    witnesses also admitted that they had not reduced the
    defendant’s statements, made nearly eleven months
    earlier, to writing. Far from being unprepared to confront
    these witnesses, the defendant’s attorney skillfully
    revealed to the jury the weaknesses in their testimony.
    Id. Tunstall is
    inapposite to this case. The State’s argument assumes Defendant,
    despite his uncontested intellectual disability and illiteracy, could recall over 800
    phone calls and could also appreciate and explain to his counsel the potential
    relevance of the particular calls identified by the State in the context of Dr. Corvin’s
    psychiatric evaluation of his mental capacity.9 Defendant’s counsel had no co-counsel
    to assist during the trial by listening to the calls or developing any additional evidence
    based upon the calls and his primary investigator was sick during the times he might
    have been able to provide meaningful assistance. But again, the trial court denied
    all of Defendant’s objections to the State’s use of the phone calls on rebuttal.
    9The State’s expert witness agreed with Defendant’s expert witnesses as to his intellectual disability.
    Defendant never learned to read or write and functioned at second-grade level.
    12
    STATE V. JOHNSON
    STROUD, J., dissent
    In summary, the State had notice of Dr. Corvin’s report, and the dates of his
    evaluations of Defendant, for over a year before trial. The State assured Defendant’s
    counsel—who was trying to prepare for a murder trial where the State had identified
    45 potential witnesses—it would not use any of the jail phone calls during the trial.
    The prosecutor specifically stated, “I am no longer requesting anyone to continue
    listening to the calls” on the Tuesday before trial and confirmed this again on
    Thursday evening. But on the very eve of trial, the State changed its position and
    stated it would use some of the phone calls as evidence.
    I also note I am baffled by one the majority’s arguments which states, “If
    Defendant’s counsel thought there might be evidence on those calls, recordings which
    involved Defendant and Defendant’s family and which Defendant’s counsel knew
    existed for many months, they should have been more diligent in seeking a
    continuance, not waiting until the eve of trial.” The State does not dispute the
    timeline described above. Certainly, Defendant was aware he made phone calls while
    he was in jail, but even the State had been unable to get access to these recordings
    until shortly before trial. Actually, the State waited until Sunday evening—the day
    before trial—to advise Defendant it planned to use some of the approximately 800
    phone calls, after specifically advising his counsel, twice, it would not use any of the
    calls. Defendant could not have requested a continuance based upon the State’s
    13
    STATE V. JOHNSON
    STROUD, J., dissent
    intended use of the phone calls a moment sooner than he did, as he made his motion
    immediately upon the inception of the case on Monday morning.
    II.    Standard of Review
    The majority states “any error by the trial court by not allowing Defendant
    time to prepare to address the State’s rebuttal of his diminished-capacity defense is
    non-prejudicial, no matter our standard of review.”          Our Supreme Court has
    established the correct standard of review for this issue:
    It is well established that a motion to continue is
    ordinarily addressed to the trial judge’s sound discretion
    and his ruling thereon will not be disturbed except upon a
    showing that he abused that discretion. However, when a
    motion to continue is based on a constitutional right, the
    question presented is a reviewable question of law. The
    denial of defendant’s motion in this case presents
    constitutional questions.
    State v. McFadden, 
    292 N.C. 609
    , 611, 
    234 S.E.2d 742
    , 744 (1977) (emphasis added)
    (citations omitted).
    In this situation, the trial court’s ruling on the motion to continue is reviewed
    as a “question of law that is fully reviewable on appeal by examination of the
    particular circumstances presented in the record.” State v. Blakeney, 
    352 N.C. 287
    ,
    301-02, 
    531 S.E.2d 799
    , 811 (2000). The majority fails to review the ruling as a
    question of law or to examine the “particular circumstances presented in the record.”
    Id. Our Courts
    have also noted the “particular importance” of the “reasons for the
    requested continuance presented to the trial judge at the time the request is denied.”
    14
    STATE V. JOHNSON
    STROUD, J., dissent
    State v. Barlowe, 
    157 N.C. App. 249
    , 254, 
    578 S.E.2d 660
    , 663 (2003) (quoting State
    v. Roper, 
    328 N.C. 337
    , 349, 
    402 S.E.2d 600
    , 607).
    III.   Analysis
    Because Defendant preserved his constitutional arguments regarding his right
    to effective assistance of counsel, due process, and confrontation of witnesses, I will
    analyze the trial court’s denial of his motion to continue de novo. First, the reason
    for the request was the State’s last-minute decision to use evidence it had until the
    eve of trial assured Defendant’s counsel it would not use. See
    id. Where Defendant’s
    motion to continue raised constitutional issues of
    confrontation and effective assistance of counsel, “the trial court’s ruling is ‘fully
    reviewable by an examination of the particular circumstances of each case.’” State v.
    Rogers, 
    352 N.C. 119
    , 124, 
    529 S.E.2d 671
    , 675 (2000) (quoting State v. Searles, 
    304 N.C. 149
    , 153, 
    282 S.E.2d 430
    , 433 (1981)). The Supreme Court in State v. Rogers
    explained the proper analysis for this motion to continue:
    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. However, when a motion to continue raises
    a constitutional issue, as in the instant case, the trial
    court's ruling is “fully reviewable by an examination of the
    particular circumstances of each case.” Generally, the
    denial of a motion to continue, whether a constitutional
    issue is raised or not, is sufficient grounds for the granting
    of a new trial only when the defendant is able to show that
    the denial was erroneous and that he suffered prejudice as
    a result of the error.
    15
    STATE V. JOHNSON
    STROUD, J., dissent
    The rights to effective assistance of counsel, to
    confrontation of accusers and witnesses, and to due process
    of law are guaranteed in the Fifth, Sixth, and Fourteenth
    Amendments to the Constitution of the United States and
    Sections 19 and 23 of Article I of the Constitution of North
    Carolina. “It is implicit in the constitutional guarantees of
    assistance of counsel and confrontation of one's accusers
    and witnesses against him that an accused and his counsel
    shall have a reasonable time to investigate, prepare and
    present his defense.” A defendant must “be allowed a
    reasonable time and opportunity to investigate and
    produce competent evidence, if he can, in defense of the
    crime with which he stands charged and to confront his
    accusers with other testimony.” This Court has previously
    recognized and discussed the United States Supreme
    Court’s analysis of these claims:
    In addressing the propriety of a trial
    court’s refusal to allow a defendant’s attorney
    additional time for preparation, the Supreme
    Court of the United States has noted that the
    right to effective assistance of counsel “is
    recognized . . . because of the effect it has on
    the ability of the accused to receive a fair
    trial.” While a defendant ordinarily bears the
    burden of showing ineffective assistance of
    counsel, prejudice is presumed “without
    inquiry into the actual conduct of the trial”
    when “the likelihood that any lawyer, even a
    fully competent one, could provide effective
    assistance” is remote. A trial court’s refusal
    to postpone a criminal trial rises to the level
    of a Sixth Amendment violation “only when
    surrounding circumstances justify” this
    presumption of ineffectiveness.
    “To establish a constitutional violation, a defendant
    must show that he did not have ample time to confer with
    counsel and to investigate, prepare and present his
    defense.”
    Id. at 124-25,
    529 S.E.2d at 674-75 (alteration in original) (citations omitted).
    16
    STATE V. JOHNSON
    STROUD, J., dissent
    The majority opinion assumes no prejudice to Defendant from the trial court’s
    denial of continuance or disallowing use of the jail calls by the State, again failing to
    apply the proper standard. It is correct that even when the defendant raises a
    constitutional basis for the motion to continue, a new trial may be granted only if
    “denial was erroneous and that [defendant] suffered prejudice as a result of the error.”
    Id. at 124,
    529 S.E.2d at 675. But the Rogers court then explains that prejudice is
    presumed if
    “the likelihood that any lawyer, even a fully competent one,
    could provide effective assistance” is remote. A trial court’s
    refusal to postpone a criminal trial rises to the level of a
    Sixth Amendment violation “only when surrounding
    circumstances justify” this presumption of ineffectiveness.
    Id. (citation omitted)
    (quoting 
    Tunstall, 334 N.C. at 329
    , 432 S.E.2d at 336).
    Here, no lawyer of any level of competence could listen to the approximately
    three and a half hours of phone calls, and certainly not all 90 to 140 hours of calls,
    during a fifteen day murder trial, and then do any needed investigation based on the
    calls, and discuss the relevance of particular calls with expert witnesses to prepare
    for the rebuttal evidence. There are not enough hours in a day, and even competent
    counsel must sleep occasionally. Prejudice must be presumed because there was no
    likelihood Defendant’s counsel could provide effective assistance. But Defendant does
    not rely just on a presumption of prejudice.          His argument demonstrates the
    particular prejudice based upon the jury’s verdict:
    17
    STATE V. JOHNSON
    STROUD, J., dissent
    Absent the inadmissible evidence from the nine telephone
    calls,10 which the prosecutor played as its last evidence and
    emphasized in its closing argument, the jury might well
    have rejected robbery with a firearm and felony murder
    based on this underlying felony. In this way, the admission
    of the nine telephone calls, over defendant’s continuous
    objections, likely prejudiced the jury on these other issues.
    The state certainly cannot show this error was harmless
    beyond a reasonable doubt.
    In State v. Barlowe, this Court held the trial court erred by denying the
    defendant’s motion to continue based upon his constitutional right to effective
    assistance of counsel where the State disclosed evidence of blood spatter and an
    expert report of bloodstain pattern analysis nine days before trial, 10 September
    2001. 
    157 N.C. App. 249
    , 
    578 S.E.2d 660
    . Trial was to begin on 19 September 2001.
    Id. at 255,
    578 S.E.2d at 664. Defendant’s counsel made a motion to continue on 13
    September 2001, noting his substantial but unsuccessful efforts to find a qualified
    expert available to review the blood-spattered pants and report before trial.11
    Id. This Court
    explained the correct analysis:
    The North Carolina Supreme Court has summarized the
    analysis applied by federal courts in reviewing refusals to
    grant a continuance where a constitutional right is
    implicated:
    Courts have discussed numerous
    10The State limited the number of phone calls it would be using in rebuttal from twenty-three to nine
    on Monday May 8, which was day eleven of Defendant’s fifteen-day trial.
    11 The defendant’s counsel’s effort to have expert review was also impaired because there was at the
    relevant time “no commercial air traffic in the United States [due to the events of 11 September 2001]
    by which evidence and documents may be delivered to and from the expert that defendant selects.”
    Barlowe, 157 N.C. App. at 
    255, 578 S.E.2d at 664
    (alteration in original).
    18
    STATE V. JOHNSON
    STROUD, J., dissent
    factors which are weighed to determine
    whether the failure to grant a continuance
    rises to constitutional dimensions. Of
    particular importance are the reasons for the
    requested continuance presented to the trial
    judge at the time the request is denied.
    Id. at 253-54,
    578 S.E.2d at 663 (quoting State v. Roper, 
    328 N.C. 337
    , 349, 
    402 S.E.2d 600
    , 607 (1991)).
    North Carolina courts have followed suit in
    analyzing similar alleged violations under our state
    constitution. Some of the factors considered by North
    Carolina courts in determining whether a trial court erred
    in denying a motion to continue have included (1) the
    diligence of the defendant in preparing for trial and
    requesting the continuance, (2) the detail and effort with
    which the defendant communicates to the court the
    expected evidence or testimony, (3) the materiality of the
    expected evidence to the defendant’s case, and (4) the
    gravity of the harm defendant might suffer as a result of a
    denial of the continuance.
    Id. at 254,
    578 S.E.2d at 663.
    Thus, this Court has a duty to consider the factors as noted in Barlowe. First
    is the “the diligence of the defendant in preparing for trial and requesting the
    continuance.”
    Id. The State
    informed Defendant’s counsel on the evening before trial
    of its intent to use evidence it had twice assured him it would not use to attack
    Defendant’s only defense, his mental capacity at the time of the shooting.
    Defendant’s counsel had reasonably relied upon the State’s repeated written
    assurances it would not be using the phone calls and continued instead to prepare for
    19
    STATE V. JOHNSON
    STROUD, J., dissent
    the 45 witnesses the State had identified, including several disclosed just before trial.
    Defendant was diligent in preparing for trial and requested continuance as soon as
    humanly possible, when trial started. Defendant also requested in the alternative
    that the State not be permitted to use the phone calls; this would have allowed the
    trial to proceed with all of the evidence the State had planned to use until the Sunday
    evening before trial and with no disadvantage to Defendant. Defendant’s counsel
    then requested additional time after jury selection to review the calls before opening
    statements; this request was also denied. Defendant then renewed his objections
    before presentation of the rebuttal evidence and explained why he was still not
    prepared to address the evidence.
    The second factor is “the detail and effort with which the defendant
    communicates to the court the expected evidence or testimony.”
    Id. Defendant’s counsel
    went into great detail and effort in his objections to the jail calls, as noted
    above. But Defendant’s counsel could not possibly have listened to over 100 hours of
    calls while also representing Defendant in a murder trial continuously for fifteen
    days, nor could he arrange to have an expert listen to them, discuss the issues with
    the expert, and be prepared to respond. Defendant could not inform the court of what
    evidence he may discover based on the phone calls or what his expert witness’s
    response would be, just as the defendant in Barlowe could not inform the court of
    what opinion another expert may have upon reviewing the blood spatter and the
    20
    STATE V. JOHNSON
    STROUD, J., dissent
    State’s report. But the defendant in Barlowe was entitled to have time to get a review
    by a blood spatter expert so he could prepare for trial. Barlowe did not require the
    defendant to demonstrate the requested review by a blood spatter expert would be
    favorable to his case; such a standard would be impossible.
    The third factor is “the materiality of the expected evidence to the defendant’s
    case.”
    Id. On the
    Sunday evening before trial, the State recognized that one of the
    most effective ways to rebut Dr. Corvin’s testimony regarding Defendant’s lack of
    capacity would be to attack the evaluation itself. The State could not legitimately
    refute that Defendant was intellectually disabled; its own expert agreed. The State
    attempted to refute Defendant’s diagnosis of bipolar disorder, despite the fact that he
    had been diagnosed and treated for bipolar disorder before the shooting and his
    treatment resumed while he was in jail and continued through the time of trial.12
    The State could not refute that Defendant was impaired by alcohol, cocaine, and
    Benzodiazepine at the time of the shooting. The State could refute only the credibility
    and reliability of Dr. Corvin’s report and his opinion on effects of these factors on
    Defendant’s mental capacity. By attacking Dr. Corvin’s evaluation with jail calls Dr.
    Corvin never had an opportunity to hear or respond to, the State sought to attack
    Defendant’s only defense. The fact that the calls were used only as rebuttal evidence
    entirely eliminated Defendant’s ability to respond.
    12At sentencing, the trial court also recommended that Defendant “receive the benefit of mental
    healthcare treatment within the Department of Adult Corrections.”
    21
    STATE V. JOHNSON
    STROUD, J., dissent
    The last factor is the “the gravity of the harm defendant might suffer as a result
    of a denial of the continuance.”
    Id. Defendant was
    unable to respond to the jail calls
    used to attack Dr. Corvin’s evaluation.      Because the evidence was presented in
    rebuttal, and Defendant’s counsel had no opportunity to prepare any surrebuttal
    evidence, the State was able to attack his only defense. The majority does not appear
    to appreciate the potential significance of Defendant’s inability to respond.
    Prejudice is presumed if the likelihood that “‘any lawyer, even a fully
    competent one, could provide effective assistance’ is remote.” Rodgers, 352 N.C. at
    
    124, 529 S.E.2d at 675
    (quoting 
    Tunstall, 334 N.C. at 329
    , 432 S.E.2d at 336).
    Defendant’s counsel was fully competent, but he could not listen to over 100 hours of
    jail calls while he was the sole counsel of record representing Defendant in a jury
    trial. Nor could he do any investigation those calls may require or discuss the calls
    with Dr. Corvin or any other expert. No attorney could provide effective assistance
    under these circumstances.      The only thing Defendant’s attorney could do was
    preserve the issue for appellate review by objecting strenuously to the State’s use of
    the jail calls, stating the constitutional basis for those objections, and renewing those
    objections at every opportunity during the trial. He did exactly that.
    Under the correct standard of review, reviewing de novo the legal issue based
    upon all of the circumstances presented, I would hold the trial court erred in denying
    Defendant’s motion to bar the State from using the jail calls identified as evidence
    22
    STATE V. JOHNSON
    STROUD, J., dissent
    the evening before the trial started, or, in the alternative, to continue the trial.
    Defendant was denied his right to effective assistance of counsel by his counsel’s
    inability to review the jail calls or prepare for their use as needed for all stages of the
    trial: jury selection, opening arguments, examination of witnesses, preparing for the
    rebuttal evidence, and potential surrebuttal evidence. Because “the error amounts
    to a violation of defendant’s constitutional rights, it is prejudicial unless the State
    shows the error was harmless beyond a reasonable doubt.” 
    Barlowe, 157 N.C. App. at 253
    , 578 S.E.2d at 662-63 (citing N.C. Gen. Stat. § 15A-1443(b) (2002)). “The
    burden is upon the State to demonstrate, beyond a reasonable doubt, that the error
    was harmless.” N.C. Gen. Stat. § 15A-1443(b).
    The State has not even attempted to address its burden of showing the error
    was harmless beyond a reasonable doubt. Instead, the State argues that “[u]nless
    defense can show that the prosecution acted in bad faith in not providing the phone
    calls earlier, such ‘failure to preserve potentially useful evidence does not constitute
    a denial of due process of law.’ State v. Graham, 
    200 N.C. App. 204
    , 209, 
    683 S.E.2d 437
    , 441 (2009).” Defendant has not argued the State acted in bad faith, and State v.
    Graham deals with an issue of sanctions for an alleged discovery violation where the
    State impounded the defendant’s car in 1996 but “lost” it at some point before trial.
    Here, the State candidly admitted it did not obtain the jail calls for the purpose
    of addressing incapacity but instead was attempting to find information regarding a
    23
    STATE V. JOHNSON
    STROUD, J., dissent
    particular witness, Defendant’s girlfriend. Once the prosecutor determined that “we
    were not going to get any useful information” regarding the girlfriend, he “instructed
    people to stop listening to them” and informed Defendant’s counsel he did not intend
    to use the jail calls. But on the Sunday before trial, it “dawned on” the prosecutor
    that “we do have recordings or we might” of Defendant on the day of his evaluation
    by Dr. Corvin. It took “quite a while” for the prosecutors to “figure out these jail calls
    as far as the dates that they were made” because the calls were in a different format
    than they have previously received. The State is correct there is no indication it acted
    in “bad faith” in changing its position as to use of the jail calls at the last minute, but
    the absence of bad faith does not change Defendant’s counsel’s ability to provide
    effective representation. In Barlowe, there was no indication of bad faith by the State
    in its failure to provide the blood-spattered pants or report regarding the evidence to
    defendant a few days before trial. 
    157 N.C. App. 249
    , 
    578 S.E.2d 660
    . The relevant
    inquiry was not why the State failed to produce the evidence earlier but the
    defendant’s “lack of opportunity to refute this evidence by informed cross-
    examination of Agent Garrett, rebuttal of his testimony by someone qualified to
    express an opinion, or to provide other explanations for the presence of blood spatter
    on the pants[.]”
    Id. at 257,
    578 S.E.2d at 665.
    I therefore respectfully dissent and would hold the trial court erred in denying
    Defendant’s motion to bar the State’s use of the jail calls or in the alternative to
    24
    STATE V. JOHNSON
    STROUD, J., dissent
    continue the trial to allow counsel time to prepare for the use of the jail calls. I would
    grant Defendant a new trial.
    25