Opinion
No. COA11–1440.
2012-07-3
STATE of North Carolina v. Martin Dominiguez BERRUM, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State. Jonathan W.B. Leonard and David E. Shives, for defendant-appellant.
Appeal by defendant from judgments entered 20 June 2011 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 4 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State. Jonathan W.B. Leonard and David E. Shives, for defendant-appellant.
HUNTER, ROBERT C., Judge.
Martin Dominiguez Berrum (“defendant”) appeals from judgments entered after a jury found him guilty of: (1) trafficking in cocaine by unlawful transportation of 400 grams or more of cocaine; (2) trafficking in cocaine by unlawful possession of 400 grams or more of cocaine; and (3) feloniously conspiring to commit trafficking in cocaine by the unlawful possession of 400 grams or more of cocaine. Defendant contends that the trial court erred in denying his attorney's motion to withdraw and in denying defendant's motion to dismiss the charges for insufficient evidence. After careful review, we find no error.
Background
The State's evidence tended to establish the following. On 16 September 2010, Detective Duane James (“Detective James” or “James”) of the Greensboro Police Department was instructed by his superior officer to meet with an informant regarding a Mexican group that wanted to sell “kilo amounts of cocaine.”
That evening, Detective James wore a body microphone and drove to a prearranged location with the informant to execute the drug deal with $30,000 in cash. The informant made a phone call and directed the drug dealers to their location in a restaurant parking lot. Defendant then arrived in an SUV with a passenger named Mora and parked one space away from Detective James. Defendant got in the back seat of Detective James's vehicle. Speaking in English, defendant apologized for being late, stated that another individual would be arriving shortly, and made a phone call. Moments later, an individual named Garcia arrived and got into the back seat with defendant.
Detective James and defendant discussed cocaine using street slang and defendant asked if James wanted to buy the drugs. James called for an undercover officer to bring over the bag of $30,000 in cash so that James could show it to defendant. After seeing the money, defendant said he was not comfortable executing the deal in the parking lot and suggested they go to another location. A discussion ensued about the cocaine being in a concealed area of a vehicle for transportation. James suggested defendant go behind a building to extract the cocaine. After further discussion, it was agreed they would all meet at another location 400 yards away. Defendant told Detective James to stay where parked he was until defendant called to say he was ready to meet. Garcia and defendant then exited Detective James's car, got into a Pontiac sedan, and exited the parking lot; defendant was seated in the passenger seat. The SUV defendant arrived in remained at the original meeting place.
After receiving a call from defendant, James and the informant arrived at the new location and found defendant and Garcia standing next to the Pontiac. James asked where the cocaine was located, and Garcia indicated it was in the backseat of the Pontiac under a shirt on the floor. Detective James found the cocaine in the location Garcia had indicated and called for the other officers to arrest defendant and his accomplices. Mora, Garcia, and defendant fled the parking lot as the police arrived but were apprehended. Testing by the State Bureau of Investigation determined that the substance received by Detective James was one kilogram of cocaine.
Defendant was arrested and indicted for: (1) trafficking in cocaine by unlawful transportation of 400 grams or more of cocaine; (2) trafficking in cocaine by unlawful possession of 400 grams or more of cocaine; and (3) feloniously conspiring to commit trafficking in cocaine by the unlawful possession of 400 grams or more of cocaine. Defendant hired an attorney, Mr. Robert O'Hale, but later discharged him. The trial court then appointed an attorney, Mr. Tom Maddox, to represent defendant. However, defendant discharged Mr. Maddox and hired Mr. Jason Goins.
In late May 2011, defendant's family informed Mr. Goins that defendant no longer needed his services and that they were seeking new counsel for defendant. Mr. Goins advised defendant's family to retain other counsel quickly as defendant's trial would be held soon, and he gave them his discovery materials. Mr. Goins visited defendant in jail and defendant confirmed he did not want Mr. Goins to represent him. Mr. Goins asked defendant to sign an affidavit of indigency so that he could retain an interpreter, but defendant refused to do so. On 1 June 2011, Mr. Goins filed a motion to withdraw as counsel.
The matter came on for hearing on 13 June 2011 in Guilford County Superior Court, Judge R. Stuart Albright presiding. At the start of the hearing Mr. Goins informed the trial court that when he became aware that defendant had not hired new counsel he attempted to get the discovery materials back from defendant's family, but that defendant and his family refused to cooperate with him. He explained, “I'm in a position where I have basically nothing to work with in terms of preparing for trial.” Mr. Goins further explained that he had represented other inmates that were incarcerated with defendant and that defendant claimed these other clients got better results because they paid Mr. Goins more money.
When asked by the trial court why he wanted to discharge Mr. Goins, defendant stated: “Because I haven't [sic] tried to explain everything well to him, all the things, and because he explained my case better to other people, to other inmates that are there in jail than to myself.” Defendant further stated that Mr. Goins “tries to torment me,” does not explain things well, and talks “too much with the other inmates .... telling them many things, that first they have to condemn three other people so that he [sic] can be released[.]”
The trial court denied Mr. Goins's motion to withdraw finding that defendant's complaints amounted to a “conflict of wills” and did not rise to the level of a “fundamental conflict” of his “basic rights”; and that the defendant's refusal to cooperate with his attorney was unjustified, invited error, and was merely a delay tactic. The trial court appointed an interpreter and advised defendant to work with Mr. Goins to prepare for his trial. The next day, Mr. Goins made a second motion to withdraw stating that while in the courtroom that morning he received a call from an attorney asking about defendant's case. The other attorney told Mr. Goins that someone had approached him about defendant's case, but he did not know that the case was on for trial that day. The trial court noted this other attorney was not present in the courtroom, denied the motion to withdraw, and proceeded with defendant's trial.
At the close of all of the evidence defendant made a motion to dismiss all charges for insufficient evidence. The motion was denied. The jury returned guilty verdicts with respect to all three of defendant's charges. The trial court sentenced defendant to 175 to 219 months imprisonment and ordered defendant to pay court costs and a fine in the amount of $251,618.50 for one count of trafficking in cocaine. In a consecutive sentence, the trial court sentenced defendant to an additional 175 to 219 months imprisonment and ordered defendant to pay court costs and a fine in the amount of $250,253.50 for the second count of trafficking in cocaine and one count of conspiracy to traffic in cocaine. Defendant gave notice of appeal in open court.
Discussion
Defendant first argues the trial court erred in denying his counsel's motion to withdraw. We disagree.
The North Carolina Supreme Court has recognized that while a criminal defendant has a constitutional right to counsel of his choosing, a defendant's right to his choice of counsel is not absolute. State v. McFadden, 292 N.C. 609, 612, 615, 234 S.E.2d 742, 745–46 (1977) (“ ‘[T]he accused's ‘right to select his own counsel cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.’ “ (quoting with approval Lee v. United States, 235 F.2d 219, 221 (D.C.Cir.1956))). The McFadden Court noted a defendant's right to be represented by his chosen counsel may be denied without violating due process when a defendant has been “ ‘inexcusably dilatory in securing legal representation[.]’ “ Id. at 613, 234 S.E.2d at 745 (quoting People v. Brady, 275 Cal.App.2d 984, 993 (1969)).
After citing the above legal principles, the McFadden Court held that where the defendant's attorney was unavailable at trial and there was no evidence that the defendant had acted in any way to “disrupt or obstruct the orderly progress of the court[,]” it was error for the trial court to deny that defendant's motion for a continuance so that he would have a reasonable amount of time to retain counsel of his choosing. Id. at 615, 617, 234 S.E.2d at 746–47. However, the Court affirmed that “an accused may lose his constitutional right to be represented by counsel of his choice when he perverts that right to a weapon for the purpose of obstructing and delaying his trial.” Id. at 616, 234 S.E.2d at 747.
In State v. Little, 56 N.C.App. 765, 768, 290 S.E.2d 393, 395 (1982), this Court reaffirmed the principles cited in McFadden yet reached a different conclusion. There, the trial court denied the defendant's motion for a continuance, which was made so that the defendant could retain the counsel of his choice. Id. at 767,290 S.E.2d at 395. The record established that the defendant's trial date had been set two months earlier; that although the defendant had been assigned counsel, the defendant's family had been in communication with a private attorney for two to three weeks before the trial; and that the family had retained that attorney on the day of the trial. Id. at 768, 290 S.E.2d at 395. In determining that the trial court did not err by denying the defendant's motion, this Court concluded that “when balancing [the] defendant's right to have counsel of his choice with the need for speedy disposition of criminal charges and the orderly administration of the judicial process, it is clear that [the] defendant's constitutional rights have not been denied.” Id. at 768–69, 290 S.E.2d at 395–96.
As noted in McFadden, 292 N.C. at 611, 234 S.E.2d at 744, and Little, 56 N.C.App. at 767, 290 S.E.2d at 395, our review of the denial of a motion to continue is generally limited to a review for an abuse of discretion. However, because, in those instances, the defendants' motions were based on their constitutional right to be represented by counsel of their choosing, denial of the motions received de novo review. McFadden, 292 N.C. at 611, 234 S.E .2d at 744;Little, 56 N.C.App. at 767–68, 290 S.E.2d at 395. Similarly, here, as defense counsel's motion to withdraw was based on defendant's attempt to assert his constitutional right to counsel of his choice, the trial court's decision to deny the motion is reviewed de novo.
Pursuant to N.C. Gen.Stat. § 15A–144 (2011), a trial court “may allow an attorney to withdraw from a criminal proceeding upon a showing of good cause.” As our Supreme Court stated in State v. Thomas, 350 N.C. 315, 328, 514 S.E.2d 486, 495 (1999), to establish prejudice stemming from the denial of a motion to withdraw, a defendant must show that he received ineffective assistance of counsel as defined in Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693 (1984). To meet the test for ineffective assistance of counsel under Strickland, a defendant must establish (1) that his attorney made “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”; and (2) that these errors “were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. Here, defendant has failed to establish that his attorney committed any error in conducting his defense.
As for defendant's desire to have counsel of his choice, we conclude defendant forfeited that right by his own actions. Eight to nine months passed between defendant's arrest and trial. During this time defendant was represented by three attorneys: the first and third were of his own choosing and privately retained; the second was court-appointed. While the record does not reveal why defendant terminated his first and second attorneys, defendant argues there was a breakdown in communications with his third attorney. However, when asked by the trial court to explain his reasons for wanting new counsel defendant did not provide any substantive reason, complaining only that Mr. Goins “tormented” him and did not explain things well. He further complained that Mr. Goins explained his case better to other people and talked too much to other inmates. Yet, despite having at least two weeks to retain new counsel after telling Mr. Goins his representation was no longer wanted, defendant failed to retain a new attorney.
The trial court noted Mr. Goins was competent and had been participating in discovery for defendant. Upon confirming to Mr. Goins that his representation was no longer desired, defendant refused to communicate with Mr. Goins and rebuffed Mr. Goins's attempts to retain an interpreter. Given this behavior by defendant in conjunction with his termination of two previous attorneys, his lack of substantive complaints, and his failure to timely retain new counsel after he expressed his intent to do so, we conclude the trial court did not err in denying the motion to withdraw. See State v. Robinson, 330 N.C. 1, 11–12, 409 S.E.2d 288, 294 (1991) (holding that where the defendant claimed he did not trust his counsel and refused to cooperate with them, the trial court did not commit prejudicial error in refusing to permit the defendant's appointed counsel to withdraw as the defendant failed to demonstrate a “substantial reason” to justify replacement of counsel); State v. Quick, 179 N.C.App. 647, 650, 634 S.E.2d 915, 918 (2006) (holding the defendant's failure to retain counsel of his choice during the eight months following his waiver of right to appointed counsel amounted to an “obstruction and delay of the proceedings” and resulted in the loss of his right to proceed with the counsel of his choice). Defendant's argument is overruled.
Next, defendant argues the trial court erred in denying his motion to dismiss all charges for insufficient evidence. We disagree.
We review the trial court's denial of a motion to dismiss de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). A motion to dismiss for insufficient evidence is properly denied if there is “ ‘substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 913, 918 (1993)), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). All evidence, both competent and incompetent, and any reasonable inferences drawn therefrom, must be considered in the light most favorable to the State. State v. Rose, 339 N.C. 172, 192, 451 S .E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 132 L.Ed.2d 818 (1995). Additionally, circumstantial evidence may be sufficient to withstand a motion to dismiss when “ ‘a reasonable inference of defendant's guilt may be drawn from the circumstances.’ “ Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (quoting Barnes, 334 N.C. at 75, 430 S.E.2d at 919). If so, it is the jury's duty to determine if the defendant is actually guilty. Id.
Here, defendant was charged with trafficking in cocaine by possession and by transportation, pursuant to N.C. Gen.Stat. § 90–95(h)(3), and conspiracy to traffic in cocaine by possession pursuant to N.C. Gen.Stat. § 90–95(h)(i). A person may possess a controlled substance by either actual or constructive possession. State v. Jackson, 103 N.C.App. 239, 243, 405 S.E.2d 354, 357 (1991), aff'd,331 N.C. 113, 413 S.E.2d 798 (1992). In the absence of physical possession, constructive possession requires “the intent and the capability to maintain dominion and control over” the controlled substance. Id.
Defendant argues the State failed to prove that he had either actual or constructive possession of the cocaine. Defendant arrived at the first meeting place in an SUV that remained at that location. When Detective James arrived at the second location, defendant was already there, standing outside of the sedan that contained the cocaine. There was no evidence defendant drove, or had any control over, the sedan or its contents; defendant argues he was “merely present.”
However, the State produced substantial evidence that defendant participated in a criminal conspiracy to traffic in cocaine by possession and transportation. “A criminal conspiracy is an agreement between two or more people to do an unlawful act or to do a lawful act in an unlawful manner.” State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991). Evidence of a “mutual, implied understanding” is sufficient to establish a conspiracy and it is not necessary that the unlawful act be completed. Id. “A conspiracy generally is ‘established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy .’ “ State v. Sanders, –––N.C.App. ––––, ––––, 701 S.E.2d 380, 383 (2010) (quoting State v. Whiteside, 204 N.C. 710, 712, 169 S.E. 711, 712 (1933)). When the evidence establishes that a conspiracy exists, “the acts of a co-conspirator done in furtherance of a common, illegal design are admissible in evidence against all.” Morgan, 329 N.C. at 658, 406 S.E.2d at 835.
We find the facts of Jackson, 103 N.C.App. at 243, 405 S.E.2d at 357, to be similar to this case. In Jackson an undercover officer met with a dealer in a parking lot and negotiated the purchase of a quantity of cocaine. Id. The dealer left the parking lot and returned in a different car that was driven by the defendant. Id. The defendant remained in the car while the dealer exited the vehicle with the cocaine in his pocket in order to complete the transaction. Id. The defendant was charged with, and convicted of, trafficking in cocaine by possession and transportation and conspiracy to traffic in cocaine. Id. at 241, 405 S.E.2d 354–55. The Jackson Court concluded the “incriminating circumstances” of the transaction, coupled with the fact the defendant had guns in his car, were sufficient to permit the jury to infer the defendant “was present merely to ensure the safety of the cocaine” and sufficient to withstand his motion to dismiss. Id. at 244, 405 S.E.2d at 357.
Here, the State's evidence tended to establish that defendant drove to the original meeting place, got into the car with Detective James, asked James if he wanted to purchase the cocaine, made a phone call that resulted in the arrival of Garcia, explained that the cocaine was concealed in a vehicle for transportation, instructed James to wait a few minutes before coming to the second location, and left the meeting place in the car in which the drugs were found minutes later. At the second location, defendant was waiting with Garcia beside the car in which the cocaine was hidden, and Garcia directed James to the cocaine inside the car. As in Jackson, we conclude this is sufficient evidence from which a reasonable mind could conclude defendant entered into a conspiracy to traffic in cocaine by possession and transportation, and that he did so. The trial court did not err in denying defendant's motion to dismiss. Defendant's argument is overruled.
Conclusion
For the reasons stated above, we find no error.
No error. Judges STROUD and ERVIN concur.
Report per Rule 30(e).