Opinion
No. COA08-1203.
Filed May 5, 2009.
Cumberland County Nos. 06 CRS 54342; 06 CRS 55012; 06 CRS 59286; 07CRS 53565.
Appeal by defendant from judgments entered 30 April 2008 by Judge Jack A. Thompson in Cumberland County Superior Court. Heard in the Court of Appeals 20 April 2009.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Karen A. Blum, for the State. John Keating Wiles, for defendant-appellant.
Anthony Curtis Elliott ("defendant") was charged by indictment with possession with intent to manufacture, sell, or deliver cocaine. He was found guilty of the lesser included offense of felonious possession of cocaine. Defendant then pled guilty to (1) habitual felon status, (2) two counts of felony possession of stolen goods, (3) breaking and entering, and (4) possession of a stolen vehicle. He filed written notice of appeal from the judgments. For the reasons set forth below, we hold no error.
The State presented evidence tending to show that on 28 June 2006 two officers of the Fayetteville Police Department drove to 1516 Mazie Loop in Fayetteville, North Carolina for the purpose of serving papers on defendant. Defendant, who was standing alone outside the residence, turned and began to walk quickly when the officers' vehicle approached. One of the officers saw defendant remove a package from his left pocket and throw it onto the ground. As one officer detained defendant, the other officer retrieved the package that defendant had thrown onto the ground. After waiving his Miranda rights, defendant told the officer that he was holding the package for somebody else. The package subsequently was identified as containing 6.4 grams of crack cocaine and 3.4 grams of cocaine powder.
James Martin testified for the defense that he and defendant were outside filling buckets of water when the officers approached. Defendant did not run from the officers and did not throw anything onto the ground.
Two questions are presented by defendant: (1) whether the trial court erred by submitting the lesser included offense of felonious possession of cocaine; and (2) whether the trial court erred by denying defendant's pretrial motion to replace his appointed counsel. As to both questions presented, we hold no error.
As regards the first question on appeal, the record shows that during the charge conference the prosecutor requested the trial court to submit an instruction as to the lesser included offense of possession of cocaine. Over defendant's objection, the trial court instructed the jury as to the lesser included offense, and the jury returned a verdict finding defendant guilty of the offense. A lesser included offense is one in which all of its essential elements are contained in a greater offense. State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 378-79 (1982), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993). If there is evidence upon which a jury could find that a defendant committed a lesser included offense, the trial court must submit the lesser included offense to the jury. State v. Williams, 314 N.C. 337, 351, 333 S.E.2d 708, 718 (1985). "The sole factor determining the judge's obligation to give such an instruction is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense." State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981).
"To convict a defendant of cocaine possession with intent to sell or deliver, the State must prove the following elements: (1) knowing; (2) possession; (3) of cocaine; (4) with the intent to sell or deliver." State v. Bunn, 173 N.C. App. 729, 734, 619 S.E.2d 918, 921 (2005). A defendant is guilty of the lesser offense of felony possession if "(1) defendant (2) knowingly possesses (3) cocaine." State v. Burnette, 158 N.C. App. 716, 720, 582 S.E.2d 339, 342 (2003).
Here, one of the officers saw defendant throw the package containing cocaine to the ground. Defendant subsequently told the officer he was holding the package of cocaine for another person. Based upon the foregoing evidence, a jury could find that defendant knowingly possessed cocaine for the purpose of keeping it for another person and without the intent to sell or deliver. See Burnette, 158 N.C. App. at 720-21, 582 S.E.2d at 342-43 (holding the defendant could be found guilty of possession of cocaine based upon evidence that the defendant was seen throwing a package containing crack cocaine to the ground while running from a law enforcement officer). We hold the foregoing evidence supports the court's submission of the lesser included offense to the jury.
With respect to the second question on appeal, "[a] trial court is constitutionally required to appoint substitute counsel whenever representation by counsel originally appointed would amount to denial of defendant's right to effective assistance of counsel, that is, when the initial appointment has not afforded defendant his constitutional right to counsel." State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980). If it "appears to the trial court that the original counsel is reasonably competent to present defendant's case and the nature of the conflict between defendant and counsel is not such as would render counsel incompetent or ineffective to represent that defendant, denial of defendant's request for substitute counsel is entirely proper." Id. (emphasis omitted).
The record shows that, at the call of the case for trial, defendant's appointed counsel communicated to the court defendant's desire for another lawyer. The trial court remarked to defendant that his appointed counsel "has vast experience in defending a lot of cases. . . . [He] has been a defense attorney for some time and is experienced and knowledgeable about the strengths and weaknesses of cases and how juries react or don't react. He is a competent attorney." The trial court inquired of defendant as to his reasons for seeking another attorney. Defendant responded that he had spoken with his attorney only twice and that his attorney had not responded to his requests for "copies of [his] evidence and all [of his] stuff against [him]." Defendant also stated that he did not believe the attorney had devoted sufficient time in preparing a defense. Defendant stated that he had witnesses who could testify on his behalf, but the attorney would not permit the witnesses to testify because they had criminal records.
In response to defendant's allegations, defendant's attorney informed the trial court that he and defendant's first attorney reviewed with defendant the evidence against him in detail, but they did not provide defendant with a copy of the discovery materials because of a policy that did not allow for the copying of discovery materials. He also indicated that he had met with defendant twice, once for approximately one hour. He explained possible defenses to defendant. He stated that defendant did not provide him with specific names of potential witnesses, and that, regardless, defendant acknowledged these witnesses had significant criminal records.
The trial court then ruled that defendant had not stated sufficient grounds for removing the attorney. After hearing a proffer of the evidence against defendant, the trial court allowed defendant's attorney the opportunity to subpoena witnesses. We conclude this record supports determinations that counsel was reasonably competent to present defendant's case and that the nature of the conflict between defendant and counsel was not such as would render counsel incompetent or ineffective. "A mere disagreement between the defendant and his court-appointed counsel as to trial tactics is not sufficient to require the trial court to replace court-appointed counsel with another attorney." State v. Robinson, 290 N.C. 56, 66, 224 S.E.2d 174, 179 (1976). "Similarly, 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." State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981). Accordingly, we hold that the trial court did not err by denying the request.
No error.
Judges McGEE and Robert C. HUNTER concur.
Report per Rule 30(e).