Opinion
No. 07-1140.
Filed March 18, 2008.
Davidson County Nos. 06CRS5225, 53156.
Appeal by Defendant from judgment entered 8 May 2007 by Judge W. Erwin Spainhour in Davidson County Superior Court. Heard in the Court of Appeals 10 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General P. Bly Hall, for the State William D. Auman, for Defendant.
Mitchell Joseph Harb, Jr. (Defendant) appeals a judgment entered upon his conviction for felony possession of cocaine and being an habitual felon. We find no error.
On 8 May 2006, Defendant was indicted for felony possession of cocaine and being an habitual felon. On 26 June 2006, Defendant was appointed counsel to represent him at trial. The matter was scheduled for trial on 7 May 2007. Just prior to the start of the trial, Defendant asked to address the trial court. Defendant and the trial court then engaged in the following colloquy:
THE COURT: . . . what is on your mind?
THE DEFENDANT: I'm totally dissatisfied with my representation in this matter. I mean, he ain't talked to me but about five minutes about the case.
THE COURT: That doesn't mean that he's not prepared for trial.
THE DEFENDANT: On top of that, I give him several witnesses that I wanted to subpoena, neither one of them has been subpoenaed.
THE COURT: We can solve that very quickly. In fact, [counsel] has spoken with me previously in the presence of the District Attorney just prior to opening court stating that you were dissatisfied because he did not want to subpoena certain witnesses that, in his opinion, he felt that they would not be beneficial to your case. Now, if you want them subpoenaed, I assured him we could get those people here. He says they are local people and they could be subpoenaed and he has been instructed to draw a subpoena and we will get them served.
THE DEFENDANT: Like I say, I'm facing a substantial amount of time. In my opinion, I feel like it would be beneficial to my case.
THE COURT: That's fine. We will get them here.
THE DEFENDANT: At the time that he was appointed to me, [counsel] was appointed, I couldn't afford an attorney, but I am prepared to hire another attorney if it would be at all possible.
THE COURT: Well, this case is on the calendar for trial. It has probably been in court how many times, can you tell me from the record?
[DISTRICT ATTORNEY]: This case has been in Superior Court, I believe this would be the eighth time this case has been in Superior Court, approximately.
THE COURT: Now, on the moments before the trial is to begin, you inform the Court that finally you are prepared to hire an attorney, sir?
THE DEFENDANT: Well, I didn't have the money until recently.
THE COURT: The fact of the matter is this case is going forward today.
THE DEFENDANT: Right.
THE COURT: I will extend to you every courtesy as I can. I will make sure that you have a fair trial. I told [counsel] any witnesses he wants subpoenaed we will have those subpoenas served. I want to let you know, sir, because you disagree with your attorney with trial strategy does not mean you are right and he's wrong. If it's his professional judgment that a witness is not going to be beneficial, that witness may very well turn out to be harmful to you. I don't know anything about your case at all, period. I don't know anything about it. If an attorney believes that a person is not going to be beneficial to your case, you might consider seriously what he has to say. I don't know what the facts are, what the jury might believe or disbelieve, but now is the time we are going to have this case tried. It has gone on long enough.
The trial court then denied Defendant's oral motion to replace his counsel. Defendant was convicted on both counts and sentenced to a term of 120 to 153 months imprisonment. Defendant appeals.
On appeal, Defendant first argues that the trial court erred by denying his motion to remove counsel and to continue his case. Defendant contends that he should have been allowed to retain counsel of his choosing. We are not persuaded.
When a defendant moves to have his attorney removed, the trial court is required to "inquire into defendant's reasons for wanting to discharge his attorney? and to determine whether those reasons were legally sufficient to require the discharge of counsel." State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981). If it appears that counsel is reasonably competent and there is no conflict between the attorney and client that renders counsel incompetent, the motion is properly denied. State v. Anderson, 350 N.C. 152, 167, 513 S.E.2d 296, 306 (1999).
Defendant's proffered reasons for wanting to discharge his appointed counsel were because he was unhappy with the amount of time counsel spent with him prior to trial, and because counsel did not subpoena certain witnesses the defendant wanted to appear at trial. However, "the effectiveness of representation cannot be gauged by the amount of time counsel spends with the accused; such a factor is but one consideration to be weighed in the balance." Hutchins, 303 N.C. at 335, 279 S.E.2d at 797. Similarly, "[a] disagreement over trial tactics does not, by itself, entitle a defendant to the appointment of new counsel." Id. (citing State v. Thacker, 301 N.C. 348, 271 S.E.2d 252 (1980); State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976)).
In the case sub judice, the trial court attempted to allay Defendant's concerns regarding his proposed witnesses by affording him an opportunity to subpoena those witnesses. Regarding the amount of time counsel spent with Defendant, there is nothing in the record to show that counsel was not prepared for trial. See Hutchins, 303 N.C. at 336, 279 S.E.2d at 798 ("only reason defendant had articulated for wishing to have his attorneys discharged was because of his stated belief that they had not visited him enough to discuss the case with him; and that there was nothing to show that defendant's attorneys were failing to prepare themselves for trial."). To the extent Defendant argues that the trial court erred in denying his motion to continue his trial so that he could retain substitute counsel, we are unable to find any motion for continuance made by defendant in the record. To the extent that we could construe defendant's motion to discharge appointed counsel and obtain substitute counsel as a motion to continue, we conclude that Defendant failed to show that the trial court abused its discretion in failing to continue this matter. First, Defendant's oral motion to replace counsel was made on the day of trial. See State v. Searles, 304 N.C. 149, 155, 282 S.E.2d 430, 434 (1981) (upholding the trial court's denial of the defendant's motion to continue because the "defendant's oral motion . . . made on the date set for trial, was not supported by some form of detailed proof indicating sufficient grounds for further delay").
Second, Defendant's trial had been pending for a year, he had appeared in court on eight separate occasions, and he never expressed dissatisfaction with appointed counsel until the moment just before the trial was set to begin. Moreover, Defendant was free on bond the week before the trial was scheduled to begin, and thus had the opportunity to hire substitute counsel of his own choice, but failed to do so. Accordingly, we find no abuse of discretion.
Defendant next argues that the trial court erred by failing to dismiss the charge of possession of cocaine because there was insufficient evidence to prove the offense. We decline to review this assignment of error. "Appellate Rule 10(b)(3) states when defendant presents evidence at trial, he waives his right on appeal to assert the trial court's error in denying the motion to dismiss at the close of the State's evidence." State v. Barfield, 127 N.C. App. 399, 401, 489 S.E.2d 905, 907 (1997) (citing State v. Davis, 101 N.C. App. 409, 411, 399 S.E.2d 371, 372 (1991)). Furthermore, defendant failed to renew his motion to dismiss at the close of the evidence. "[A] defendant who fails to make a motion to dismiss at the close of all of the evidence may not attack on appeal the sufficiency of the evidence at trial." State v. Spaugh, 321 N.C. 550, 552, 364 S.E.2d 368, 370 (1988). Accordingly, Defendant has failed to preserve this issue for our review. Furthermore, even if the assignment had been properly preserved, we believe there is sufficient evidence to support the trial court's denial of the motion.
Defendant next argues that the Habitual Felon Act violates the double jeopardy clause of the United States Constitution, constitutes cruel and unusual punishment, and also violates the separation of powers clause of the North Carolina Constitution. We initially note that Defendant did not raise these issues at trial. "[A] constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal." State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988) (internal quotations omitted). Nevertheless, Defendant's arguments are without merit. In State v. Williams, 149 N.C. App. 795, 561 S.E.2d 925 (2002), this Court held that "`our courts have held the procedures set forth in the Habitual Felon Act comport with a criminal defendant's federal and state constitutional guarantees.'" Id. at 802, 561 S.E.2d at 929 (quoting State v. Wilson, 139 N.C. App. 544, 550, 533 S.E.2d 865, 870 (2000)). We are bound by prior decisions of this Court. See In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (where one panel of Court of Appeals "has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court"). Accordingly, we find no error.
No error.
Judges McGEE and STROUD concur.
Report per Rule 30(e).