Opinion
NO. COA10-1284
09-06-2011
STATE OF NORTH CAROLINA v. RICHARD BEVERLY MARTIN, JR., Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Creecy Johnson, for the State. Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Alamance County
Nos. 10 CRS 3371
10 CRS 50245
Appeal by defendant from judgment entered 9 June 2010 by Judge Paul Gessner in Alamance County Superior Court. Heard in the Court of Appeals 9 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General Creecy Johnson, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for defendant-appellant.
GEER, Judge.
Defendant Richard Beverly Martin, Jr. appeals from his conviction of felony breaking and entering. Defendant primarily argues on appeal that the trial court erred when it refused to allow his appointed counsel to withdraw as counsel of record. He contends that a conflict of interest existed, and there had been a complete breakdown in communication with his counsel. We hold that no abuse of discretion occurred when (1) any potential conflict of interest arose out of defense counsel's subsequent appointment to represent a possible co-defendant in an unrelated case, (2) the communications related to defendant's unwillingness to accept the State's plea offers and differences as to strategy, and (3) defendant has made no argument that counsel was in any way ineffective at trial.
Facts
The State's evidence tended to show the following facts. Robert Butcher owned a mechanical shop called Robert's Transmission Service, located at 607 East Hanover Road in Graham, North Carolina. On 27 December 2009, Mr. Butcher went to check on his shop and found everything to be in order. He returned to his shop the next day and noticed that things in the office had been moved around, a filing cabinet was open, equipment and tools were missing, and the back garage door had been "busted in." He called the police.
Officer Benjamin Haynes of the Graham Police Department responded to Mr. Butcher's call about a break-in. Mr. Butcher showed him the garage door and how he had tried to secure the door with a piece of sheet metal because of previous robberies at the store. Mr. Butcher told him about a few items that were missing, including a three-ton jack and tools.
Mr. Butcher showed Officer Haynes a video surveillance system set up in his shop that had one camera focusing on the garage door. Mr. Butcher had owned the system for three years, but it was operative only intermittently. Mr. Butcher testified at trial that the date on the camera was wrong because he had never learned how to set it. Officer Haynes testified that he did not take the surveillance tape with him at that time because Mr. Butcher had not viewed it yet.
Later that day, Mr. Butcher viewed the tape and discovered that the camera had been operating on the night of 27 December 2009. Mr. Butcher recognized defendant as the person on the video. Mr. Butcher had known defendant since defendant was a child because he had lived with and had a relationship with defendant's mother for approximately 30 years. Defendant had been to Mr. Butcher's shop on occasion over the years in order to work on his friends' vehicles and to borrow tools. Mr. Butcher called Officer Haynes the following day to inform him that he had viewed the tape and that the tape showed defendant inside his shop.
Mr. Butcher took the surveillance tape to the police department. Detective Wynonna Dunnagan of the Graham Police Department viewed the surveillance video and had still pictures made from the footage that ultimately were admitted into evidence at trial.
On 15 January 2010, Detective Dunnagan went with another detective to defendant's home. They asked defendant to ride with them to the police station and speak with them about their investigation. Defendant voluntarily went with the officers and, when interviewed at the station, denied that he was at Robert's Transmission on 27 December 2009. He claimed that he had not been to the shop at night in 15 years.
Defendant was subsequently indicted on 8 March 2010 for felonious breaking or entering and felonious larceny and on 19 April 2010 for being a habitual felon. While defendant was in jail, the telephone calls he made were recorded. In the recordings, defendant suggested that he should marry his girlfriend and enter a mental health facility in order to help his case.
When defendant's case was called for trial on 7 June 2010, defendant's counsel asked to withdraw, after summarizing the history of the case for the court, including various plea offers that defendant rejected. Defendant's counsel explained that he believed he was not successfully communicating with defendant, stating: "I hate to see [defendant] exposed to the time that he could be exposed to if this goes to trial and I can't communicate to him in a way that -- to convince him to take the plea." The State opposed counsel's request to withdraw but recognized that the issue was "completely in [the court's] discretion."
The trial court denied the motion to withdraw, finding that there was no compelling reason or hardship requiring withdrawal. Defendant then asked to speak on his own behalf. Defendant explained that he viewed his lawyer's saying to him that the State was going to give him "three habitual sentences" as a "threat to [his] person and [his] life." He then told the court:
I'm asking, based on those grounds of the threat that I feel is [a] verbal threat that the District Attorney in question be removed from my case, attorney in question be removed from my case for the simple fact that my family has been to his office, talked to his secretary, set up an appointment to come over there and give him depositions. No one was there.Defendant also complained that he had been to see his counsel numerous times, but he had not been there; that he had asked counsel's secretary to have him go see defendant, but he had not done so until trial, three months later; and counsel had not set up a court date to allow him to take a "plea of 16 to 20."
The trial court denied defendant's motion to have the prosecutor and defense counsel removed from the case, finding that defendant had not provided any basis that would support the removal. Defense counsel then asked if the trial court would order a psychological evaluation of defendant. The trial court denied the request because it was not a formal motion and no basis had been presented that would permit the court to determine that a psychological evaluation was appropriate. The court also denied defense counsel's request, in the alternative, for a chance to have defendant forensically evaluated.
At trial, defendant called several witnesses on his behalf. Defendant's mother testified that defendant and Mr. Butcher had a bad relationship. She testified that on the date of the alleged break-in, she was with defendant, her granddaughter (Lisa Jo Craven), and Ms. Craven's husband and two children. She testified that Mr. Butcher had left his keys inside the shop and that he told defendant to get his keys out -- defendant went through the back of the shop to get them. In addition, defendant's mother explained that she and her family wanted to retrieve some items that they had been storing at the shop while they were in the process of moving. According to defendant's mother, the garage door would not raise up or down and had been broken for more than six months.
Defendant's niece, Lisa Jo Craven, similarly testified that on 27 December 2009, she was with defendant, her husband, two children, her grandmother, and Mr. Butcher. They went to Mr. Butcher's shop to pick up some of the items they were storing there while defendant's mother and Mr. Butcher were in the process of moving. She testified that defendant went in the shop through a hole in the back door because Mr. Butcher had locked the key to the front door inside the shop and the back door would not open because it had been broken for years. She told the jury that they took out some of their personal items, such as clothes and dishes, but also borrowed tools and a jack to work on her van that had broken down. She returned the jack to Mr. Butcher several weeks later.
Defendant's sister testified that defendant and Mr. Butcher had never gotten along. She also testified that her mother and family had moved their belongings to Mr. Butcher's shop and that the back door to the shop had been broken for several years.
The State called Mr. Butcher in rebuttal. He denied having gone to his shop with defendant on 27 or 28 December 2009, denied that any of defendant's family had gone to the shop on those days, and denied giving defendant permission to be in his shop on either of those days. He also denied that he had locked his keys inside the shop or that he asked defendant to get them.
The jury found defendant guilty of felonious breaking or entering and misdemeanor larceny. The trial court arrested judgment on the misdemeanor larceny conviction. Defendant pled guilty to habitual felon status, causing him to be sentenced as a Class C felon. The trial court found one mitigating factor -- that defendant had family support -- and no aggravating factors. The trial court nonetheless sentenced defendant to a presumptive-range term of 120 to 153 months imprisonment. Defendant timely appealed to this Court.
I
Defendant contends the trial court erred when it refused to allow his appointed counsel to withdraw. We review a trial court's decision on a motion to withdraw for abuse of discretion. State v. Skipper, 146 N.C. App. 532, 537, 553 S.E.2d 690, 693 (2001). Pursuant to N.C. Gen. Stat. § 15A-144 (2009), "[t]he court may allow an attorney to withdraw from a criminal proceeding upon a showing of good cause."
"Substitute counsel is required and must be appointed when defendant shows good cause, such as a conflict of interest or a complete breakdown in communications." State v. Nelson, 76 N.C. App. 371, 373, 333 S.E.2d 499, 501 (1985), aff'd as modified on other grounds, 316 N.C. 350, 341 S.E.2d 561 (1986). On the other hand, "when 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 to appoint substitute counsel is entirely proper." State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980). As the trial court stated in this case, a disagreement over trial tactics is not a sufficient basis on its own to appoint new counsel. See State v. Prevatte, 356 N.C. 178, 216, 570 S.E.2d 440, 461 (2002) ("An indigent defendant has no right to replace appointed counsel merely because the defendant is dissatisfied with the present attorney's work or because of a disagreement over trial tactics.").
Here, defendant, pointing to a statement by defense counsel, first contends that there was a conflict of interest requiring replacement of counsel. At trial, after defense counsel explained to the trial court about his inability to communicate effectively with defendant regarding the State's plea offers and counsel's desire to withdraw for that reason, defense counsel then stated: "And I found out since that time there's a possible co-defendant in one of the cases that has been appointed to me." Although defendant argues on appeal that the trial court did nothing to explore the extent of this potential conflict of interest, it is apparent from the record that the "possible co-defendant" was not a co-defendant in this particular case, and defense counsel was appointed to represent the co-defendant in the other case only after he had already been representing defendant in this case. While a conflict may have existed in counsel's representing the possible co-defendant, defendant does not explain why that fact might have required withdrawal from defendant's representation rather than withdrawal from the representation of the co-defendant.
Defendant's reliance on State v. Yelton, 87 N.C. App. 554, 361 S.E.2d 753 (1987), and Thacker to support his contention that further inquiry was necessary is misplaced. Yelton required a hearing only when counsel was engaging in "dual representation" of two co-defendants in the same trial. Id. at 557, 361 S.E.2d at 755. In Thacker, 301 N.C. at 353, 271 S.E.2d at 255-56, however, our Supreme Court refused to adopt the "unnecessary and stringent requirement" of "a set of criteria by which a trial court must determine whether a valid conflict exists." The Supreme Court recognized that in some instances a hearing and detailed findings of fact are necessary and, in some others, they are not.
"[W]hen faced with a claim of conflict and a request for appointment of substitute counsel, the trial court must satisfy itself only that present counsel is able to render competent assistance and that the nature or degree of the conflict is not such as to render that assistance ineffective." Id., 271 S.E.2d at 256. Defendant cites no other authority suggesting an inquiry is necessary upon the subsequent appointment of counsel to represent a person in an unrelated case, and he provided no factual explanation to the trial court or this Court as to why withdrawal might be necessary in light of that appointment. The bare statement by counsel regarding the subsequent appointment was not sufficient to trigger the need for additional inquiry.
Defendant also contends that there was a complete breakdown in communication between defendant and his counsel which required appointment of new counsel. He points to counsel's remarks about his inability to convince defendant to accept the State's plea offers. Rule 1.2(a)(1) of the North Carolina Revised Rules of Professional Conduct specifically states that "the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered . . . ." Defendant here chose to plead not guilty rather than take a plea bargain after receiving advice from his attorney. The fact that counsel was not able to convince defendant to take the plea bargain does not constitute a complete breakdown in communication as it is defendant's choice whether to accept the plea bargain.
Defendant also points to his own statements regarding his lack of contact with defense counsel, as well as his family members' inability to meet with counsel. As pointed out by the State, 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." State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981). Defendant's statement that he had not seen his counsel in person for three months prior to the trial is not, therefore, determinative.
Defendant at no point argues that his counsel's performance at trial was in any way deficient. He only points to his lack of interaction with counsel before trial. Without a showing that counsel's performance was inadequate or that defendant was in any way prejudiced by counsel's performance, this Court cannot find that the trial court abused its discretion in denying counsel's motion to withdraw. See State v. Thomas, 350 N.C. 315, 328, 514 S.E.2d 486, 495 (1999) ("In order to establish prejudicial error arising from the trial court's denial of a motion to withdraw, a defendant must show that he received ineffective assistance of counsel.").
II
Defendant next contends that the trial court erred when it sustained the State's objection after defense counsel asked defendant's mother, whether, as far as she knew, Mr. Butcher had given defendant permission to go into the building. "[T]he control of examination of witnesses is a matter of discretion vested in the trial court, reviewable only for an abuse of discretion." State v. McNeil, 47 N.C. App. 30, 36, 266 S.E.2d 824, 827-28 (1980). See also State v. Lanier, 165 N.C. App. 337, 349, 598 S.E.2d 596, 604 (2004) ("Persons accused of crimes are entitled by the North Carolina and United States constitutions to confront the witnesses against them and to present a defense. U.S. Const. Amend. VI, XIV; N.C. Const. Art. 1, §§ 19, 23. However, the trial court has control over the presentation of evidence and the scope of the testimony allowed during cross-examination.").
Defendant contends that the standard of review is de novo because his constitutional right to present a defense was denied to him when the court sustained the State's objection. Because defendant did not raise the constitutional issue below, it is not before us, and the constitutional standard of review does not apply.
The following exchange occurred between defense counsel and defendant's mother at trial:
Q And did Mr. -- as far as you know, did Mr. Butcher give him permission to go in there?After the trial court sustained the State's objection, defendant made no offer of proof regarding what defendant's mother would have said.
[THE STATE]: Objection.
THE COURT: Sustained.
Q (By [defense counsel]) You said that Mr. Butcher had left his keys some place?
"'To prevail on a contention that evidence was improperly excluded, either a defendant must make an offer of proof as to what the evidence would have shown or the relevance and content of the answer must be obvious from the context of the questioning.'" State v. Stiller, 162 N.C. App. 138, 142, 590 S.E.2d 305, 307 (2004) (quoting State v. Geddie, 345 N.C. 73, 95, 478 S.E.2d 146, 157 (1996)). To the extent defendant believes the likely answer was obvious, defendant still has not shown prejudice given the witness' testimony that Mr. Butcher asked defendant to get the keys that Mr. Butcher had left in the shop -- that request necessarily means Mr. Butcher gave defendant permission to enter the shop. See State v. Moore, 194 N.C. App. 754, 758, 671 S.E.2d 545, 548 ("[T]rial judges may properly sustain objections to witness examination where they find an inquiry to be repetitious or unnecessary."), appeal dismissed and disc. review denied, 363 N.C. 379, 679 S.E.2d 840 (2009), reversed and remanded on other grounds, 363 N.C. 793, 688 S.E.2d 447 (2010). We, therefore, conclude the trial court did not abuse its discretion.
III
Defendant has also filed a petition for writ of certiorari asking this Court to review his sentence. He contends the trial court abused its discretion when it sentenced him in the presumptive range despite finding the existence of a mitigating factor. Because defendant's sentence was in the presumptive range, he is not entitled to appeal this issue as a matter of right. See N.C. Gen. Stat. § 15A-1444(a1) (2009) (providing that defendant is entitled to appeal his sentence "only if the minimum sentence of imprisonment does not fall within the presumptive range . . . ."). Defendant may, however, petition this Court for review by filing a petition for writ of certiorari. Id. See also State v. Daniels, __ N.C. App. _, ___ , 691 S.E.2d 78, 81 (2010) (quoting N.C. Gen. Stat. § 15A-1444(a1) and declining review where defendant made no petition for writ of certiorari).
The State, however, contends that this Court does not have authority to grant review under N.C.R. App. P. 21(a)(1), which permits issuance of the writ "when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review pursuant to N.C.G.S. § 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief." See State v. Pimental, 153 N.C. App. 69, 77, 568 S.E.2d 867, 872 (2002) (holding that Rules of Appellate Procedure control over N.C. Gen. Stat. § 15A-1444(e)'s authorization of petition for writ of certiorari to review guilty plea).
Yet, in State v. Cain, 79 N.C. App. 35, 50, 338 S.E.2d 898, 907 (1986), when defendant appealed his presumptive-range sentence (entered even though the trial court had found two mitigating factors), this Court elected to treat defendant's appeal as a petition for writ of certiorari and allowed it. See also State v. Bivens, 155 N.C. App. 645, 648, 573 S.E.2d 259, 261 (2002) (allowing petition for writ of certiorari to consider sentencing where mitigated factors outweighed aggravating factors but trial court sentenced defendant in presumptive range). We are bound by Cain and Bivens.
Defendant, however, in arguing that the trial court erred when imposing a presumptive-range sentence despite the support of defendant's family, does not provide any reason that this sentence was an abuse of discretion, apart from complaining that the trial court gave no reason for the sentence other than the court's belief that it was "justified." Defendant cites no authority requiring a trial court to provide a more detailed explanation. Under these circumstances, in our discretion, we deny defendant's petition for writ of certiorari.
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).