Opinion
NO. COA10-154 0 Harnett County No. 09 CRS 53835; 53869 Harnett County No. 10 CRS 526-527
08-16-2011
STATE OF NORTH CAROLINA v. DENNIS MICHAEL WILLIAMS
Attorney General Roy Cooper, by Special Deputy Attorney General James A. Wellons, for the State. Parish & Cooke, by James R. Parish, for Defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e) (3) of the North Carolina Rules of Appellate Procedure.
Appeal by Defendant from Judgments entered 12 May 2010 by Judge Lindsay R. Davis, Jr., in Harnett County Superior Court. Heard in the Court of Appeals 27 April 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General James A. Wellons, for the State.
Parish & Cooke, by James R. Parish, for Defendant-appellant.
HUNTER, JR., Robert N., Judge.
Dennis Michael Williams ("Defendant") appeals from Judgments entered after return of jury verdicts finding him guilty of robbery with a dangerous weapon, attempted common law robbery, and attaining habitual felon status and habitual violent felon status. We find no error in part, and dismiss without prejudice, in part.
I. Facts and Procedural History
On 6 August 2009 at approximately 3:30 p.m., Defendant entered the I-Mart BP service station at 501 Spring Branch Road in Dunn, North Carolina. The cashier, Judy Carolyn Miller ("Miller"), greeted Defendant, but he did not reply. Defendant shook hands with some customers and left without purchasing any items. Miller's boyfriend, Floyd Barefoot ("Barefoot"), arrived at the store to keep Miller company and planned to stay with Miller until the station closed at 10:00 p.m.
Defendant re-entered the store at approximately 9:40 p.m., approached the cash register, and stood behind another customer in line. Miller testified that after the other customer left, Defendant pulled a white sock concealing a long object from under his shirt, pointed it at Barefoot, and told him to "hit the floor." He then ordered Miller to open the cash register. Miller asked Defendant if he was joking, and he repeated his previous instructions. Defendant asked Miller to open the register a third time, and Miller pointed out the surveillance cameras in the store to Defendant. When two other customers entered the store, Defendant left without taking anything. Shortly after Defendant left the store, Miller contacted the police.
Later that evening at approximately 10:00 p.m., Defendant approached the front desk of the Hampton Inn in Dunn, North Carolina, where Linda Carol McCann ("McCann") was working alone. After all other guests left the lobby, Defendant approached McCann and asked her how much a room would cost. When she began to recite the room prices, Defendant placed something "long and shiny" cloaked in a sock on the counter. McCann then asked Defendant if he was committing a robbery, and he replied affirmatively. Defendant pointed the sock-cloaked object at McCann, who opened her cash drawer and gave it to Defendant. Defendant took the cash drawer, which contained approximately $700 in cash and $200 in gas cards, and left the premises. McCann then contacted the police and her supervisor provided the police with a surveillance video recorded during the incident.
Detective Regina Autry of the Dunn Police Department arrested Defendant on 12 August 2009. No gun was found during the arresting officer's investigation. On 13 August 2009, Defendant was declared indigent and Marshall Miller was appointed as Defendant's counsel. Although the record does not provide a reason, Defendant's first court- appointed attorney was replaced by Jeff Stall in a 15 December 2009 Order. On 22 February 2010, a Harnett County Grand Jury indicted Defendant for robbery with a dangerous weapon and attempted robbery with a dangerous weapon, pursuant to N.C. Gen. Stat. §§ 14-87 and 14-2.5, and for attaining the status of a habitual felon and violent habitual felon, pursuant to N.C. Gen. Stat. §§ 14-7.1 and 14-7.7. The State made a plea offer to Defendant, which he rejected contrary to Stall's advice.
On 15 March 2010, Stall filed a Motion to Withdraw as Counsel of Record after Defendant wrote him a letter stating he no longer wanted Stall as his attorney. On 27 April 2010, the trial court heard arguments on the Motion at a pretrial motions hearing. Stall stated he and Defendant had a "difference in opinion" regarding the law.
When asked by the trial court why he sought new counsel, Defendant claimed his counsel lied to him on several occasions. The trial court inquired further, and Defendant alleged Stall lied to him every time he visited Defendant. Defendant specifically said, "He told me he was going to get my bond reduction. He was going to come back and see me. Told me three or four different times he would come see me, do things, but he never done either one of them." After listening to these explanations from Stall and Defendant, the judge denied the Motion to Withdraw.
On 10 May 2010, Defendant's case came on for trial in Harnett County Superior Court. At the conclusion of the State's evidence, Defendant made a Motion to Dismiss. The trial court denied the Motion as to 09 CRS 93835, robbery with a dangerous weapon of McCann. The trial court allowed the Motion as to 09 CRS 53869, attempted robbery with a dangerous weapon of Miller and Barefoot, but allowed the case to proceed on the lesser-included offense of attempted common law robbery.
During closing arguments, which are not reported in the transcript, Defendant's counsel allegedly admitted Defendant's guilt as to the first element of robbery with a dangerous weapon. Immediately after closing arguments, the trial judge asked the jury to leave the courtroom. He then asked Defendant's counsel if he had "admitted to element number one[.]" Counsel answered that he believed he had and apologized. The trial court then asked Defendant whether he agreed with his counsel's "concession of element number one of the charge, robbery with a deadly weapon[.]" Defendant replied, "Yes, sir. I agree with that. I'm guilty of the crime, not of the robbery with a dangerous weapon." Defendant's counsel then stated he intended to concede Defendant's guilt to common law robbery. When asked if he agreed with that decision, Defendant stated, "Yes, sir. He's the lawyer, whatever he thinks is best."
After the jury re-entered the courtroom, the judge promptly asked the jury to leave again and held an unrecorded bench conference with Defendant's attorney and the prosecutor. After the bench conference, the judge asked if he understood correctly that Defendant was choosing not to admit the charge of common law robbery. Defendant's attorney responded affirmatively. The judge then instructed the jury to disregard any arguments from Defendant's counsel that could be construed as an admission of any element of an offense. After eight minutes of deliberation, the jury returned guilty verdicts as to robbery with a dangerous weapon and attempted common law robbery. In a second phase of the trial, the jury found Defendant guilty of attaining the status of habitual felon and violent habitual felon. The trial court sentenced Defendant to life imprisonment without parole. Defendant gave oral notice of appeal in open court.
II. Jurisdiction and Standard of Review
This Court has jurisdiction over the present matter pursuant to N.C. Gen. Stat. § 7A-27(b) (2009). We examine a trial court's decision on a counsel's motion to withdraw for abuse of discretion. State v. Skipper, 146 N.C. App. 532, 537, 553 S.E.2d 690, 693 (2001). A trial court abuses its discretion if its determination is "manifestly unsupported by reason and is so arbitrary that it could not have been the result of a reasoned decision." State v. Cummings, 361 N.C. 438, 447, 648 S.E.2d 788, 794 (2007) (citation and quotation marks omitted).
When a claim of ineffective assistance of counsel is brought on direct review, it "will be decided on the merits when the cold record reveals that no further investigation is required." State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001). "[O]n direct appeal, the reviewing court ordinarily limits its review to material included in the record on appeal and the verbatim transcript of proceedings, if one is designated." Id. at 167, 557 S.E.2d at 524-25 (citation and quotation marks omitted); see N.C. R. App. P. 9(a) (2011) (stating our "review is solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, and any other items filed pursuant to this Rule 9").
The trial court's findings of fact are conclusive on appeal if they are supported by competent evidence. Powers v. Tatum, 196 N.C. App. 639, 648, 676 S.E.2d 89, 95, disc. rev. denied, 363 N.C. 583, 681 S.E.2d 784 (2009). Additionally, "findings of fact to which [the appellant] has not assigned error and argued in his brief are conclusively established on appeal." Static Control Components, Inc. v. Vogler, 152 N.C. App. 599, 603, 568 S.E.2d 305, 308 (2002). The trial court's legal conclusions receive de novo review. State v. Newman, 186 N.C. App. 382, 386, 651 S.E.2d 584, 587 (2007).
III. Analysis
On appeal, Defendant argues that he was denied effective assistance of counsel as guaranteed by the Sixth Amendment of the U.S. Constitution and Article I of the North Carolina Constitution. Specifically, Defendant first contends he was denied effective assistance of counsel when the trial court denied his attorney's 15 March 2010 Motion to Withdraw. Defendant further argues he was denied effective assistance of counsel because his attorney admitted Defendant's guilt in closing arguments. We find no error as to the first claim, and dismiss the second claim without prejudice to Defendant's right to file a motion for appropriate relief.
A. Defense Counsel's Motion to Withdraw
Defendant argues he did not receive effective assistance of counsel when the trial court denied defense counsel's Motion to Withdraw as Counsel of Record. We disagree.
The North Carolina Supreme Court has held that "[a]bsent a showing of a sixth amendment violation, the decision of whether appointed counsel shall be replaced is a matter committed to the sound discretion of the trial court." State v. Hutchins, 303 N.C. 321, 336, 279 S.E.2d 788, 798 (1981). We examine the trial court's decision to determine whether it engaged in an abuse of discretion "manifestly unsupported by reason." State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998) (citation and quotation marks omitted).
In order to establish that counsel provided ineffective assistance of counsel, Defendant must show that (1) his trial counsel was deficient and that (2) this deficient performance prejudiced him. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)); see State v. Thomas, 350 N.C. 315, 328, 514 S.E.2d 486, 495 (1999) (holding that a defendant must show he received ineffective assistance of counsel in order to establish prejudicial error arising from a trial court's denial of a motion to withdraw). Generally, when making a claim of ineffective assistance of counsel, the "defendant must show that the error committed was so grave that it deprived him of a fair trial because the result itself is considered unreliable." State v. Lee, 348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998).
Disagreements between a defendant and court-appointed counsel regarding tactics at trial are not sufficient to require the trial court to replace court-appointed counsel. State v. Robinson, 290 N.C. 56, 66, 224 S.E.2d 174, 179-80 (1976). To be granted new counsel, a defendant "must show good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust verdict. State v. Gary, 348 N.C. 510, 516, 501 S.E.2d 57, 62 (1998) (citation and quotation marks omitted). Further, the constitutional right to assistance of counsel does not "guarantee the best available counsel, errorless counsel, or satisfactory results for the accused." State v. Sneed, 284 N.C. 606, 612, 201 S.E.2d 867, 871 (1974).
In the present case, Defendant rejected the State's plea offer against the advice of his appointed counsel. Stall, Defendant's appointed attorney, filed a motion to withdraw from the case, stating he and Defendant had a "difference of opinion" regarding the law. We do not believe the trial court abused its discretion in denying defense counsel's Motion because differences of opinion do not constitute grounds for substitution of counsel. Robinson, 290 N.C. at 66, 224 S.E.2d at 179 (stating that a defendant is not entitled to new appointed counsel "merely because the defendant has become dissatisfied with his services") .
Additionally, during the 27 April 2010 motions hearing, Defendant made vague statements to the court that indicated his mistrust of his court-appointed counsel. For instance, Defendant asserted that appointed counsel only met with him "about twice." Defendant also asserted his attorney lied to him "[e]very time he come to see me [sic]." However, when prompted by the court for specific examples, Defendant only offered that his attorney said he would get a bond reduction, but failed to do so. Nonetheless, counsel does not need to make "perfunctory visits to the jail in order to render effective assistance," Hutchins, 303 N.C. at 336, 279 S.E.2d at 798, and the benefit of appointed counsel does not guarantee satisfactory results, Sneed, 284 N.C. at 612, 201 S.E.2d at 871.
Absent evidence of a Sixth Amendment violation, the trial court is given broad discretion when determining whether counsel should be replaced. Hutchins, 303 N.C. at 336, 279 S.E.2d at 798. We find no evidence of a violation of the Sixth Amendment prior to the trial court's denial of the Motion to Withdraw as Counsel of Record, and we conclude the trial court did not abuse its discretion in denying Stall's Motion.
B. Alleged Admission of Guilt
Defendant next argues he was denied effective assistance of counsel when his court-appointed attorney admitted Defendant's guilt of common law robbery during closing arguments, without Defendant's consent. We dismiss this issue without prejudice to Defendant's right to file a motion for appropriate relief.
As discussed above, in order to establish ineffective assistance of counsel, Defendant must prove his trial counsel was deficient and this deficient performance prejudiced him. Braswell, 312 N.C. at 562, 324 S.E.2d at 248. To show deficiency of counsel, a defendant must prove trial counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. (citation omitted).
Our Supreme Court has held that ineffective assistance of counsel is established in criminal cases where the defendant's counsel admits the defendant's guilt without the defendant's consent. State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985) (holding counsel's admission of defendant's guilt without defendant's consent establishes ineffective assistance of counsel, a per se violation of the Sixth Amendment of the United States Constitution), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672-73 (1986); see also State v. Maready, __N.C. App. ___, ___, 695 S.E.2d 771, 778 ("Because our Supreme Court has not overruled Harbison . . . we are bound by this precedent."), rev. denied, rev. dismissed, 364 N.C. 329, 701 S.E.2d 247 (2010). Such alleged admissions must be viewed contextually to determine whether counsel actually conceded defendant's guilt of a crime, State v. Hinson, 341 N.C. 66, 78, 459 S.E.2d 261, 268 (1995) (concluding that "nowhere in the record did defense counsel concede that defendant himself committed any crime whatsoever"), and whether it was merely a lapsus linguae, or misstatement by counsel. State v. Goss, 361 N.C. 610, 624-25, 651 S.E.2d 867, 876 (2007) (clarifying that an admission which "was accidental and went unnoticed" did not constitute error under the Harbison test), cert. denied, __U.S. __, 172 L. Ed.2d 58 (2008). Furthermore, in order for a defendant to consent to defense counsel's admission of guilt, the Harbison test "requires more than implicit consent based on an overall trial strategy." State v. Matthews, 358 N.C. 102, 108, 591 S.E.2d 535, 540 (2004).
When there is a lapsus linguae counsel may correct the misstatement and the trial court may issue a limiting instruction to the jury. See State v. Harrington, 171 N.C. App. 17, 34, 614 S.E.2d 337, 350 (stating the defendant was not prejudiced because the trial court and the defendant's counsel took adequate measures to correct any prejudicial effect of the misstatement by the defendant's counsel), disc. rev. denied. sub nom., State v. Rattis, 360 N.C. 70, 623 S.E.2d 35 (2005). In Harrington, a Harbison inquiry was conducted and no admission of guilt was found; the court further found that even if an admission was made, the limiting instructions provided by defense counsel and the trial court "took adequate measures to correct any prejudicial effects of counsel's statement." Id. The Harrington court clearly articulated that because the defendant was not prejudiced, he did not have a valid claim for ineffective assistance of counsel. Id.
In the present case, we review Defendant's ineffective assistance of counsel claim on direct appeal, without a motion for appropriate relief filed by Defendant. However, we are presented with insufficient evidence to determine whether defense counsel's statements in closing arguments constitute ineffective assistance of counsel. See Fair, 354 N.C. at 166, 557 S.E.2d at 524 (stating that we may only decide an ineffective assistance of counsel claim on direct appeal based on the merits "when the cold record reveals that no further investigation is required").
When deciding an ineffective assistance of counsel claim made on direct appeal, we must examine the context of the events at issue. See State v. Buckner, 351 N.C. 401, 412, 527 S.E.2d 307, 314 (2000) ("[T]he State must rely on information provided by defendant to trial counsel, as well as defendant's thoughts, concerns, and demeanor.").
Because the trial transcript in this case does not include defense counsel's closing argument or the subsequent bench conference, we are unable to determine the contextual circumstances of defense counsel's remarks. Fair, 354 N.C. at 166, 557 S.E.2d at 524-25 (holding that when deciding an ineffective assistance of counsel claim on direct appeal, our review is limited "to material included in the record on appeal and the verbatim transcript of proceedings, if one is designated" (citation and quotation marks omitted)). Although Defendant made statements expressing his agreement with defense counsel's strategy at trial, we are unable to determine whether these statements constitute explicit consent to counsel's alleged admission of guilt or mere "implicit consent based on an overall trial strategy." Matthews, 358 N.C. at 108, 591 S.E.2d at 540. Without a transcript of the closing arguments, we also cannot determine whether defense counsel's alleged admission of Defendant's guilt was only lapsus linguae or was instead a significant misunderstanding between Defendant and his counsel.
Thus, since necessary evidence is omitted from the record and trial transcript, this Court cannot decide on direct appeal whether ineffective assistance of counsel was rendered "because we cannot determine the context upon which the assignment of error is premised." State v. Mills, ___N.C. App. ___, ____, 696 S.E.2d 742, 749 (2010), cert. denied, ____N.C. ____, 706 S.E.2d 482 (2011). Nonetheless, we acknowledge that "[i]n general, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal." State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001).
While we have the authority to remand this issue to the trial court on our own motion, we refrain from doing so. N.C. Gen. Stat. § 15A-1420(d) (2009) ("At any time that a defendant would be entitled to relief by motion for appropriate relief, the court may grant such relief upon its own motion."); see State v. Carter, 167 N.C. App. 582, 585, 605 S.E.2d 676, 678-79 (2004) (choosing to address defendant's argument upon the Court's own motion for appropriate relief). Rather, we dismiss the assignment of error without prejudice to Defendant's right to file a motion for appropriate relief. See State v. Streater, 197 N.C. App. 632, 649, 678 S.E.2d 367, 378 ("[T]he proper action is to dismiss this assignment of error without prejudice, allowing defendant to file a motion for appropriate relief with the trial court. The trial court is in the best position to review defendant's counsel's performance."), rev. denied, 363 N.C. 661, 687 S.E.2d 293, rev. dismissed, 363 N.C. 661, 687 S.E.2d 294 (2009); State v. Pulley, 180 N.C. App. 54, 69, 636 S.E.2d 231, 242 (2006) ("[T]his Court may dismiss the claim without prejudice, allowing the defendant to reassert the claim during a subsequent motion for appropriate relief proceeding.").
Should Defendant file his own motion for appropriate relief, we trust the trial court will diligently investigate the matter and make additional factual determinations on whether Defendant's counsel conceded Defendant's guilt; if so, the charge or elements thereof to which counsel conceded guilt; and the scope of Defendant's consent to his counsel's concession of guilt, including the nature and extent of Defendant's consultation with his counsel prior to the concession. See State v. Thompson, 359 N.C. 77, 117-21, 604 S.E.2d 850, 878-80 (2004) (describing how a defendant's on-the-record consent to his counsel's argument meets the Harbison criteria); Matthews, 358 N.C. at 106-09, 591 S.E.2d at 538-41; State v. McDowell, 329 N.C. 363, 385-88, 407 S.E.2d 200, 212-14 (1991). Consequently, we dismiss Defendant's second argument without prejudice to Defendant's right to file a motion for appropriate relief with the trial court.
IV. Conclusion
For the reasons stated above, we find no error with regard to Defendant's claim that he did not receive effective assistance of counsel because the trial court denied his attorney's Motion to Withdraw as Counsel of Record. As to Defendant's argument that he did not receive effective assistance of counsel because his attorney conceded Defendant's guilt to one of the charges against him, we dismiss without prejudice to Defendant's right to file a motion for appropriate relief.
No error, in part, dismissed without prejudice, in part.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).