Opinion
No. COA11–1523.
2012-08-7
STATE of North Carolina v. David Paul BANKERT.
Attorney General Roy A. Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. Russell J. Hollers III, for defendant-appellant.
Appeal by defendant from judgment entered 14 April 2011 by Judge Craig Croom in Wake County Superior Court. Heard in the Court of Appeals 6 June 2012. Attorney General Roy A. Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. Russell J. Hollers III, for defendant-appellant.
BRYANT, Judge.
Where defendant's witness was arrested outside the court room and outside the presence of the jury, the trial court's denial of defendant's motion for mistrial was proper. Where defendant clearly indicated he wanted to represent himself with the assistance of standby counsel whom defendant used throughout his trial, there was no error in the trial court's order for defendant to pay attorney's fees for his standby counsel.
Facts and Procedural History
On 21 January 2007 at 1:15 a.m., defendant David Paul Bankert was driving on Capital Boulevard in Raleigh, North Carolina when Officer A.M. Holmes of the Raleigh Police Department stopped defendant's vehicle. Officer Holmes had observed defendant's vehicle swerving within its lane, switching lanes without using a turn signal, and speeding at fifty-eight miles per hour in a forty-five miles per hour zone.
Officer Holmes pulled defendant over, approached defendant's vehicle, and saw that defendant was the driver and there were three other passengers in the vehicle. Officer Holmes testified that he observed indicators of possible alcohol impairment from defendant—a strong odor of alcohol coming from defendant and defendant's eyes being “bloodshot and glassy.” Defendant informed Officer Holmes that he had consumed three drinks, the last one consumed forty-five minutes before being stopped. After conducting several field sobriety tests on defendant, Officer Holmes “formed the opinion that the defendant had consumed a sufficient amount of alcohol to appreciably affect his mental or physical faculties or both.” Defendant was arrested for driving while impaired and transported to the Wake County Public Safety Center where a chemical breath analysis indicated an alcohol concentration of 0.11.
On 19 February 2008, defendant was found guilty of impaired driving in Wake County District Court. Defendant was sentenced to sixty days, suspended for eighteen months of supervised probation upon completion of substance abuse assessment and treatment, surrender of his driver's license, payment of costs and fines, and community service. Defendant appealed to Wake County Superior Court.
On 13 April 2011, Wake County Superior Court jury found defendant guilty of driving while impaired. Defendant was sentenced to sixty days, suspended for thirty-six months of supervised probation upon obtaining a substance abuse assessment and all recommended education or treatment, surrendering his driver's license, completing community service, and paying fines, costs, and fees including attorney's fees in the amount of $3,502.50. From this judgment, defendant appeals.
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Defendant advances the following issues on appeal: whether the trial court erred by (I) denying defendant's motion for a mistrial and (II) ordering defendant to pay attorney's fees.
I
In his first argument, defendant contends that the trial court erred by denying his motion for a mistrial. We disagree.
“Whether to grant a motion for mistrial is within the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion.” State v. Jaaber, 176 N.C.App. 752, 756, 627 S.E.2d 312, 314 (2006) (citation omitted). However, “[t]he judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.” State v. McCollum, 157 N.C.App. 408, 415, 579 S.E.2d 467, 471 (2003) (citation omitted).
Prior to trial, the trial court conducted a voir dire hearing on defendant's motion to suppress for lack of probable cause and reasonable suspicion. During the hearing, defendant called Patricia Magdars (“Magdars”) as a witness. The district attorney questioned Magdars about her record and the outstanding warrants for her arrest. After Magdars completed her testimony and other witnesses testified, the trial court denied defendant's motion to suppress.
Just prior to jury selection the Sheriff's Department was informed of Magdars' outstanding orders for arrest. Magdars, who was sitting on the back bench behind the jury pool, was escorted out of the courtroom by a deputy sheriff. After she was outside the presence of the jury pool, she was placed under arrest.
Defendant contends that the act of escorting Magdars from the courtroom by a uniformed deputy while the jury pool was in the courtroom resulted in substantial and irreparable prejudice to defendant. Defendant argues that the trial court erred by failing to “find out whether the jury had seen [Magdars'] arrest” and by failing to give a curative instruction to the jury.
In the present case, defendant fails to show that the witness, Magdars, was “arrested” in front of the jury; only that she was escorted out of the courtroom. Defendant cites to no authority which holds that taking custody of a witness outside the presence of a jury results in substantial and irreparable prejudice to a defendant's case. It is well established in our case law that when a trial court orders a defendant into custody during a trial, “[t]here is no prejudicial error so long as that discretion is not exercised in a manner which would convey, either expressly or implicitly, to the jury the slightest intimation that the court had any opinion regarding defendant's credibility as a witness or the strength of his case.” State v. Collins, 19 N.C.App. 553, 555–56, 199 S.E.2d 491, 493 (1973) (citations omitted).
Here, the evidence in the record indicates Magdars was led outside of the courtroom and no handcuffs were placed on her while she was in the courtroom. It was only after she was outside of the courtroom, and outside the presence of the jury, that Magdars was placed under arrest. Further, in ruling on defendant's motion for a mistrial, the trial court found that although she was arrested, Magdars was thereafter released and able to serve as a witness at defendant's trial. The trial court stated that “there was no conduct inside or outside the courtroom that resulted in substantial and irreparable prejudice to the defendant's case, but especially based on the assurances that the Court has made to the defendant [sic].” The trial court then denied defendant's motion for mistrial.
Here, defendant is unable to demonstrate the existence of any conduct that resulted in substantial and irreparable prejudice to defendant's case. Accordingly, we hold that the trial court did not abuse its discretion by denying defendant's motion for mistrial. Defendant's argument is overruled.
II
In his second and final argument, defendant asserts that because he had waived his right to counsel and never requested court-appointed counsel, the trial court erred by ordering him to pay attorney's fees.
Pursuant to North Carolina General Statutes, section 15A1243,
[w]hen a defendant has elected to proceed without the assistance of counsel, the trial judge in his discretion may determine that standby counsel should be appointed to assist the defendant when called upon and to bring to the judge's attention matters favorable to the defendant upon which the judge should rule upon his own motion. Appointment and compensation of standby counsel shall be in accordance with rules adopted by the Office of Indigent Defense Services.
N.C. Gen.Stat. § 15A–1243 (2011). “[A]ppointment of standby counsel is a discretionary matter for the trial judge. Thus, our standard of review is abuse of discretion.” State v. Seraphem, 90 N.C.App. 368, 371–72, 368 S.E.2d 643, 645 (1988) (citation omitted).
When defendant's trial commenced on 11 April 2011, defendant informed the trial court judge that he wanted to proceed pro se. The following exchange occurred:
THE COURT: Okay. I'm going to make sure I go through all of the questions in 15A–1242. Sir, you understand you have the right to have an attorney represent you in this matter?
THE DEFENDANT: Yes, I do.
THE COURT: Okay. Sir, do you also understand that you're here charged with driving while impaired? It is a—well, we treat it for purposes of our statute as a Class I misdemeanor. But you can receive up to two years in prison for that. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Sir, do you understand that—do you understand that you will be treated the same as I treat [the Assistant District Attorney] in terms of knowing the rules of evidence, knowing all the rules of procedure and that you'll be treated no differently than any attorney that will stand right there who will represent you?
THE DEFENDANT: Yes, sir.
THE COURT: You understand that. And, sir, in light of that, do you still want to go forward and represent yourself?
THE DEFENDANT: With [Michael Dye, from the public defender's office] as my stand-by attorney, yes, Your Honor.
THE COURT: Okay now, let me make sure you understand the rules of stand-by counsel. Stand-by counsel is just that. It's standby. You're doing everything, okay?
THE DEFENDANT: Okay.
After defendant was convicted, the trial court ordered defendant to pay $3,502.50 in attorney's fees. The trial court found that Michael Dye's assistance to defendant as standby counsel totaled 46.7 hours.
As the record reflects, the trial court explained to defendant the role standby counsel would play at his trial. Thereafter, defendant clearly communicated to the trial court that he wanted to represent himself with the assistance of Michael Dye serving as standby counsel. Further, the record reflects that defendant benefitted from Dye's assistance throughout his trial. For instance, near the conclusion of defendant's hearing on his motion to suppress, when asked if he had any additional evidence to present, defendant stated, “[n]o, but I have a question for Mr. Dye” and defendant then proceeded to confer with Dye as his standby counsel. Defendant also conferred with Dye regarding the submission of a witness as an expert and his motion to dismiss based on insufficiency of the evidence. Dye advised defendant on jury instructions and on making a motion for a mistrial.
Based on the foregoing, there is nothing to indicate that the trial court abused its discretion by appointing defendant standby counsel and by ordering defendant to pay the corresponding attorney's fees. Defendant's argument is overruled.
No error. Judges STEPHENS and THIGPEN concur.
Report per rule 30(e).