State v. Silver

Full title: STATE OF NORTH CAROLINA v. EDDIE LEE SILVER, JR.

Court: NORTH CAROLINA COURT OF APPEALS

Date published: Jan 15, 2013

NO. COA12-479 (N.C. Ct. App. Jan. 15, 2013)

Opinion

NO. COA12-479

01-15-2013

STATE OF NORTH CAROLINA v. EDDIE LEE SILVER, JR.

Attorney General Roy Cooper, by Assistant Attorney General Tammy A. Bouchelle, for the State. William D. Spence for defendant-appellant.

BRYANT

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Edgecombe County

Nos. 11 CRS 50402, 50406

Appeal by defendant from judgment entered 8 November 2011 by Judge Walter H. Godwin, Jr., in Edgecombe County Superior Court. Heard in the Court of Appeals 26 September 2012.

Attorney General Roy Cooper, by Assistant Attorney General Tammy A. Bouchelle, for the State.

William D. Spence for defendant-appellant.

BRYANT, Judge.

Where the trial court did not err in failing to intervene ex mero motu during the State's closing argument, in denying defendant's request for substitute counsel, and in instructing the jury after they returned to deliberate, we hold no error. We vacate and remand to the trial court for resentencing.

Facts and Procedural History

On 13 February 2011 at approximately 1:58 a.m., Officer Booker Graham of the Rocky Mount Police Department responded to a dispatch at 750 Park Avenue in the City of Rocky Mount. Upon arrival, Officer Graham saw three vehicles: a Camaro, Pontiac, and Chevy Suburban. The Camaro's engine was running and the driver's side door was open. The Chevy Suburban's driver's side window was "broken out and the door was closed." Officer Graham observed the interior of the Pontiac and noticed that the passenger side window had been shattered by a large concrete block, the glove box was open, and papers were strewn across the floorboard. Officer Graham testified that "the vehicle appeared to be rummaged through." Defendant Eddie Lee Silver, Jr., was observed sitting in the back seat of the Pontiac, wearing a pair of gardening gloves. Officer Graham placed defendant under arrest.

Defendant was charged with two counts of breaking and entering a motor vehicle, two counts of misdemeanor larceny, and one count of being an habitual felon. On 8 November 2011, a jury found defendant guilty on all charges, and defendant admitted his status as an habitual felon. Defendant was sentenced to two consecutive, active terms of 146 to 185 months. Defendant appeals.

Defendant presents the following issues on appeal: whether the trial court erred (I) in failing to intervene ex mero motu during the State's closing argument; (II) by refusing to appoint substitute counsel; (III) by sentencing defendant on each conviction as a Class C felon; (IV) by violating section 15A-1234 of the North Carolina General Statutes.

I

Defendant argues that the trial court erred by failing to intervene ex mero motu during the State's closing argument. Defendant, although he did not object at trial, contends that the State's closing argument "improperly paint[ed] defendant's prior convictions as substantive evidence upon which they should base a verdict of guilt rather than evidence affecting [defendant's] credibility." We disagree.

"[W]e will not find error in a trial court's failure to intervene in closing arguments ex mero motu unless the remarks were so grossly improper they rendered the trial and conviction fundamentally unfair." State v. Taylor, 362 N.C. 514, 536, 669 S.E.2d 239, 259 (2008) (citation omitted).

The State stated the following during its closing argument:

We don't need people like [defendant] who likes to break and enter motor vehicles [to]
get away with stuff like this. He's been convicted several times already of doing the very thing he did this night.
This man was not out there peeing or whatever he claims he was doing. He was out there caught literally head first in the vehicle in one of - in close proximity to a second vehicle whose window had been busted out.
The property in a running vehicle and I contend to you the state says that what he was going to do is beat feet out of there, if he hadn't been caught by [Officer] Booker red-handed.

In the instant case, defendant testified during direct examination that he had a "bad criminal background." Defense counsel asked defendant, "Have you been previously convicted of breaking and entering motor vehicles?" to which defendant replied, "Yes, I have. Years ago I was on trial for the same thing, years ago." The State also cross-examined defendant on his previous convictions. See State v. Lynch, 334 N.C. 402, 408-09, 432 S.E.2d 349, 352 (1993) ("When a defendant chooses to testify, evidence of prior convictions is admissible for the purpose of impeaching his credibility under Rule 609(a).").

Furthermore, defendant had attacked the credibility of the State's witnesses, particularly Officer Booker. Defendant testified to the following:

The officers that stated that I was inside
the vehicle is not true.
. . .
[Officer Booker is] not telling the truth, though. He's not telling the truth.

Based on the foregoing, the State's closing argument was merely a summary of defendant's testimony regarding his previous convictions and a rebuttal to defendant's attacks on the credibility of Officer Booker. Therefore, considering the closing argument as a whole, the prosecutor's statements were not "so grossly improper they rendered the trial and conviction fundamentally unfair." Taylor, 362 N.C. at 536, 669 S.E.2d at 259. Defendant's argument is overruled.

II

In his second argument, defendant contends the trial court erred by denying his request for substitute counsel.

The denial of a defendant's request for substitute counsel is reviewed for abuse of discretion. State v. Sweezy, 291 N.C. 366, 371-72, 230 S.E.2d 524, 529 (1976) (citation omitted). "The constitutional right of an indigent defendant in a criminal action to have the effective assistance of competent counsel, appointed by the court to represent him, does not include the right to insist that competent counsel, so assigned and so assisting him, be removed and replaced with other counsel merely because the defendant has become dissatisfied with his services." State v. Robinson, 290 N.C. 56, 65-66, 224 S.E.2d 174, 179 (1976).

"In order to be granted substitute counsel, the defendant must show good cause, such as 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 quotations omitted). "A disagreement over trial tactics does not, by itself, entitle a defendant to the appointment of new counsel. . . . 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) (citations omitted).

Here, the record indicates that the trial court allowed defendant to state his concerns and explain his request for substitute counsel. Prior to trial and outside the presence of the jury, defendant complained that he believed his counsel did not have his "best interest [sic] at heart, as far as a jury." Defendant also alleged that he had spoken with his counsel "approximately ten minutes altogether and we never discussed a defense for my case."

Thereafter, the trial court asked defense counsel for a response and defense counsel stated the following:

[Defendant] and I did speak on the phone a couple of times after I was appointed to the case and that was before the discovery evidence had been made available.
We had discussed in general concepts the facts of these cases at that time. We did not specifically discuss any defenses because I didn't know what the police reports were going to say.
I mailed him his discovery evidence to his home address before I realized that he had been placed back into the Department of Corrections. He didn't request a copy of that at any point after that point.

Further, defense counsel added that after their initial phone conversations, he had not talked to defendant other than the weekend before trial "concerning his case and what potentials for pleas might be. And even though [they] didn't specifically talk about defenses, [they] did talk about the fact that [defense counsel] didn't believe there were any."

Defendant argues that the trial court erred when it failed to obtain sufficient information from defendant and his counsel to "properly exercise his discretion and make a reasonable decision on the propriety and necessity of a replacement lawyer." Defendant also argues that the trial court's inquiry reflected that neither defendant nor his counsel was prepared for trial. We disagree.

The record reflects that defendant's concerns were specifically addressed by defense counsel's response: no defenses were discussed because defense counsel did not believe there were any applicable to defendant's case; although defendant did not believe defense counsel had his best interests in mind, defense counsel stated that he "would do everything [he] could on [defendant's] behalf at a trial in front of a jury[;]" and, defense counsel referenced the different times he had had contact with or spoken to defendant. Further, although defendant argues that his counsel was unable to "render competent assistance to defendant," his assertion is based on the mere fact that he has only spoken to counsel on the phone for approximately ten minutes. As stated above, the amount of time counsel spent with defendant is only a factor to be considered and is not determinative of whether substitute counsel should be appointed. Hutchins, 303 N.C. at 335, 279 S.E.2d at 797 (citations omitted).

Defendant has failed to show "good cause, such as conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust verdict" such that his request for substitute counsel should have been granted. Gary, 348 N.C. at 516, 501 S.E.2d at 62 (citation and quotations omitted). Based on the foregoing, the trial court did not abuse its discretion by denying defendant's request for substitute counsel. Defendant's argument is overruled.

III

In his third argument, defendant asserts that the trial court erred in sentencing defendant on each conviction as a "Class C" felon because the trial court entered a judgment on 8 November 2011, stating that prayer for judgment on defendant's habitual felon case was "continued until the cases on appeal to the North Carolina Court of Appeals are heard." We agree.

A review of the record reveals the following: On 8 November 2011, a jury found defendant guilty of two counts of felonious breaking and entering a motor vehicle, a Class I felony, and two counts of misdemeanor larceny. Defendant pled guilty to having attained habitual felon status. The trial court found, and defendant stipulated, that he was a prior record level VI for felony sentencing purposes and sentenced defendant as a Class C felon. The trial court entered two judgments sentencing defendant to two consecutive sentences of 146 to 185 months imprisonment as an habitual felon. However, also on 8 November 2011, the trial court entered a prayer for judgment¹ "to be continued until the cases on appeal to the North Carolina Court of Appeals are heard." Although the document reflecting entry of prayer for judgment is in the record, the transcript of defendant's sentencing hearing is devoid of any reference to the order entering prayer for judgment.

1 We note that "[i]t is well established that a prayer for judgment continued is not a final judgment, therefore, it is not appealable." State v. Bryant, 23 N.C. App. 373, 374, 208 S.E.2d 723, 724 (1974) (citation and quotations omitted).

The judgments sentencing defendant as an habitual felon are in direct conflict with the 8 November 2011 order entering prayer for judgment. Because the trial court acted inconsistently in sentencing defendant, the judgments are vacated and remanded to the trial court for resentencing.

IV

In his last argument, defendant contends that the trial court erred by violating N.C. Gen. Stat. § 15A-1234.

N.C.G.S. § 15A-1234 provides that:

(a) After the jury retires for deliberation, the judge may give appropriate additional instructions to:

(1) Respond to an inquiry of the jury made in open court; or
(2) Correct or withdraw an erroneous instruction; or

(3) Clarify an ambiguous instruction; or
(4) Instruct the jury on a point of law which should have been covered in the original instructions.

. . .
(c) Before the judge gives additional instructions, he must inform the parties generally of the instructions he intends to give and afford them an opportunity to be heard. . . .
(d) All additional instructions must be given in open court and must be made a part of the record.

N.C.G.S. 15A-1234 (a), (c), and (d) (2011) (emphasis added). "N.C.G.S. 15A-1234 provides a trial judge with discretion in instructing a jury." State v. Bromfield, 332 N.C. 24, 45, 418 S.E.2d 491, 502 (1992) (citation omitted).

Here, after deliberations had begun, the following exchange occurred:

THE COURT: All right, Mr. Silver, you and your lawyer come back around, please. All right, the jury has asked who is the owner of the Camaro car. I think I'll respond to them that the Camaro is not listed in either one of the bills of indictment and not for their consideration.
[Defendant]: To recall the evidence as best they can.
THE COURT: All right. I'm going to tell them that the Camaro is not listed in either bill of indictment and they are to recall the
evidence. All right, Sheriff.

The trial court then sent a written response on the same piece of paper as the jury's question, marked as Court's Exhibit #1, back to the jury that stated "[t]he camaro is not listed in either bill of indictment and you are to recall the evidence."

Defendant argues that the trial court erred by "failing to bring the jurors back into the courtroom, go over their question in open court, and then giving them the additional instruction in open court." Had the jury been brought back into the courtroom, defendant asserts that they would "probably have reached a different verdict on at least some, if not all, of the charges against defendant." We disagree.

In State v. Corum, 176 N.C. App. 150, 625 S.E.2d 889 (2006), the jury sent a written question to the trial court after deliberations had begun. The question read, "Was photo of [the defendant] included in lineup for Ms. Crouse?" Id. at 158, 625 S.E.2d at 894.

[The] [d]efendant's counsel requested the trial court to instruct the jurors to "rely on their own recollections" and the trial court agreed. The trial court said it would prefer to send a written response to the jurors rather than having the jurors return to the courtroom, and asked defendant's counsel and the State if they had any objections to that procedure.
Both defendant's counsel and the State agreed to the shorthand procedure. . . . The trial court then wrote its response on the same piece of paper on which the jury's question was written, as follows: "You must rely on your own recollection as to what the evidence showed." The trial court
instructed the bailiff to deliver the note to the jury.

Id. Our Court held that because it was "clear that defendant's counsel approved of the substance of the communication because defendant's counsel requested the trial court to make the instruction to the jury[,]" there was no reversible error. Id.

As in Corum, defense counsel did not object to the trial court's procedure in answering the jury's written question. It is also clear here that defense counsel approved of the substance of the trial court's response to the jury as defense counsel specifically requested the trial court to use the language, "[t]o recall the evidence as best they can." Moreover, the trial court agreed and included defense counsel's suggested additional language. Defendant's argument is overruled.

No error in part; judgment vacated and remanded for resentencing.
Judges HUNTER, Robert C., and STEELMAN concur.
Report per rule 30(e).