Opinion
No. 07-912.
Filed March 4, 2008.
Forsyth County Nos. 05CRS64949; 06CRS11511.
Appeal by defendant from judgment entered 22 February 2007 by Judge A. Moses Massey in Forsyth County Superior Court. Heard in the Court of Appeals 6 February 2008.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Kathryn J. Thomas, for the State. Glenn, Mills Fisher, P.A., by Carlos E. Mahoney, for defendant-appellant.
Mark Anthony Wood ("defendant") appeals from judgment entered 22 February 2007 upon jury verdicts finding him guilty of common law robbery, financial card theft, and attaining the status of an habitual felon. For the following reasons, we hold no error.
On the afternoon of 14 September 2005, Joyce Engstrom ("Engstrom"), then seventy-six years old, was in a grocery store parking lot in Clemmons, North Carolina. After placing the groceries she had purchased in her vehicle, she entered the vehicle, started it, and lowered the driver's side window. A bright blue car pulled up next to her vehicle, facing the opposite direction, and a man with brown hair, a brown mustache, and wearing a white t-shirt and jeans, got out of the car. The man asked Engstrom if she had a pen, and after telling him that she did not have a pen, the man stated, "Well, I'll take your billfold." Engstrom replied, "No, you won't," at which point the man reached through Engstrom's window and stated, "I have a gun and I will shoot you." Engstrom did not see a gun, but she was frightened. The man grabbed Engstrom's arm and took the billfold, containing six to ten dollars and several credit cards, from her purse. Engstrom unsuccessfully attempted to move the purse away from her assailant, and she beeped her vehicle's horn, trying to get someone's attention, until she saw that the man was gone. After the man left, Engstrom drove home and called the police.
On 19 September 2005, Detective Phillip Spainhour ("Detective Spainhour") was provided defendant's name as a possible suspect. Detective Spainhour generated a photographic lineup, but Engstrom was unable to identify her assailant from the lineup.
On 5 October 2005, Engstrom contacted the police again after reviewing her credit card statement and discovering three charges made on 14 September 2005 for which neither she nor her husband could account. Engstrom explained that she had not given anyone permission to use the credit card, and the credit card company removed the charges and issued a corrected statement.
On 7 December 2005, defendant presented to a hospital for spinal disc surgery under the assumed name of "Randall Burcham." On 8 December 2005, defendant was taken into custody on an unrelated matter and transported from the hospital to the Greensboro Police Department, where he was interviewed by Detective Matthew Allred ("Detective Allred"). After being informed of his Miranda rights, defendant confessed to his involvement in the robbery of Engstrom. At trial, defendant testified that he was in extreme pain and severely nauseated at the time, and that he confessed to taking Ergstrom's purse only to stop the interrogation. In contrast, Detective Allred testified that although defendant informed him during the interview that he was experiencing some pain, defendant was lucid and coherent. Detective Allred further testified that (1) defendant's speech was not slurred; (2) defendant made no mention of nausea; and (3) defendant had no difficulty in communicating with Detective Allred or understanding his surroundings. Following the interrogation, Detective Allred relayed defendant's confession to Detective Spainhour. Defendant subsequently was arrested, and on 5 June 2006, defendant was indicted for common law robbery, obtaining property by false pretenses, and attaining the status of an habitual felon.
At a pre-trial status conference on 3 July 2006, defendant indicated that he had not asked for a court-appointed attorney and that he did not wish to be represented by the court-appointed attorney. The trial court ruled that the court-appointed attorney would not be permitted to withdraw at that time, but that if defendant later decided that he did not wish to be represented by the court-appointed attorney, he should inform the court and the attorney would make a motion to withdraw. On 30 October 2006, superceding indictments were issued, charging defendant with common law robbery, financial transaction card theft, and being an habitual felon. The indictments alleged as an aggravating factor that the victim "was very old, or mentally infirm or physically infirm." On 21 February 2007, a jury found defendant guilty of all charges as well as the existence of the alleged aggravating factor. The trial court sentenced defendant as a prior record level VI offender to 180 to 225 months imprisonment. Thereafter, defendant gave timely notice of appeal.
On appeal, defendant first contends that the trial court erred by denying his request to represent himself pro se. We disagree.
"It is well-settled that de novo review is ordinarily appropriate in cases where constitutional rights are implicated." State v. Thorne, 173 N.C. App. 393, 396, 618 S.E.2d 790, 793 (2005) (citing Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 338, 554 S.E.2d 331, 332 (2001)).
"The right to counsel provided by the Sixth Amendment to the United States Constitution also provides the right to self-representation." State v. White, 349 N.C. 535, 563, 508 S.E.2d 253, 270.71 (1998), cert. denied, 527 U.S. 1026, 144 L. Ed. 2d 779 (1999). "Even before the United States Supreme Court recognized the federal constitutional right to proceed pro se . . ., it was well settled in North Carolina that a defendant `has a right to handle his own case without interference by, or the assistance of, counsel forced upon him against his wishes.'" State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992) (quoting State v. Mems, 281 N.C. 658, 670.71, 190 S.E.2d 164, 172 (1972)). A defendant's "waiver of the right to counsel and election to proceed pro se must be expressed `clearly and unequivocally.'" Id. (quoting State v. McGuire, 297 N.C. 69, 81, 254 S.E.2d 165, 173 (1979)). "Once a defendant clearly and unequivocally states that he wants to proceed pro se, the trial court, to satisfy constitutional standards, must determine whether the defendant knowingly, intelligently, and voluntarily waives the right to in-court representation by counsel." Id. at 674, 417 S.E.2d at 476. When a defendant clearly indicates that he wishes to proceed pro se, North Carolina General Statutes, section 15A-1242 provides that he may proceed pro se only after
the trial judge makes thorough inquiry and is satisfied that the defendant:
(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
(2) Understands and appreciates the consequences of this decision; and
(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.
N.C. Gen. Stat. § 15A-1242 (2005). "The provisions of [section] 15A-1242 are mandatory where the defendant requests to proceed pro se." State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002).
In the case sub judice, a status conference was held on 3 July 2006, at which the following colloquy took place:
DEFENDANT: . . . I'm trying to figure out how do I have him as an attorney?
THE COURT: He was appointed to represent you.
DEFENDANT: I never asked for an appointed attorney.
THE COURT: Do you want a lawyer?
DEFENDANT: No, sir.
THE COURT: You going to represent yourself?
DEFENDANT: Yes, sir.
THE COURT: You going to hire your own lawyer?
DEFENDANT: Yes, sir.
THE COURT: You don't want a lawyer at all?
DEFENDANT: No, sir.
THE COURT: You don't want a lawyer to represent you?
DEFENDANT: No, sir. I've never asked for an attorney.
THE COURT: Well, what do you want to do about your case then.
DEFENDANT: I haven't talked to anybody.
THE COURT: Well, you don't want a court appointed lawyer? If you don't know what you're going — I'm not going — I think you need to sit down and talk to a lawyer about the case. This man was appointed to represent you.
. . . .
DEFENDANT: Well, when will I talk to him?
(Emphases added). The trial court then ruled that defense counsel was not permitted to withdraw at that time, but informed defendant, "If later you decide you don't want [the court-appointed attorney], let us know, and he'll make a motion to withdraw." Our Supreme Court has held that "[s]tatements of a desire not to be represented by court-appointed counsel do not amount to expressions of an intention to represent oneself." State v. Hutchins, 303 N.C. 321, 339, 279 S.E.2d 788, 800 (1981). Based upon the quoted exchange between defendant and the court, it is apparent that defendant was dissatisfied with the amount of communication he had with his court-appointed attorney prior to the status conference. Defendant, however, did not clearly express a desire and intention to proceed pro se, and the trial court, therefore, was not required to make the inquiry outlined in section 15A-1242.
Later in the trial proceedings and near the end of the State's presentation of its case-in-chief, defendant stated, " I've just found out recently that I do have a right to retain my own counsel, and I would like a chance to do that. . . . I'm not comfortable with what's happening and I would like the chance to retain my own counsel." (Emphases added).
Again, defendant did not express a desire to proceed pro se, but instead, defendant expressed dissatisfaction with his court-appointed attorney and a desire to hire alternate counsel. Accordingly, defendant's assignment of error is overruled.
Defendant next contends that the trial court erred by sentencing him as an habitual felon in violation of his constitution rights pursuant to the Double Jeopardy Clause. We disagree. The constitutional protection against double jeopardy provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V; see also State v. Cooley, 47 N.C. App. 376, 384 n. 5, 268 S.E.2d 87, 92 ("The Law of the Land Clause of the North Carolina Constitution, N.C. Const. art. 1, § 19, has also been held to embrace the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution."), appeal dismissed and disc. rev. denied, 301 N.C. 96, 273 S.E.2d 442 (1980). As one commentator has summarized, the Double Jeopardy Clause
encompasses several related protections. First, it bars the government from prosecuting a person a second time for the same offense after he has already been tried and acquitted. Second, it prohibits the government from prosecuting a person a second time for the same offense after he has already been convicted. Third, it forbids the government from imposing multiple punishments upon a person for the same offense in successive proceedings. Finally, in some circumstances, it bars the government from prosecuting a person a second time for the same offense after a judge prematurely terminated his first trial, either by declaring a mistrial or by dismissing the charge against him before the fact-finder reached a verdict in the case.
David S. Rudstein, A Brief History of the Fifth Amendment Guarantee Against Double Jeopardy, 14 Wm. Mary Bill Rts. J. 193, 193.95 (2005) (footnotes omitted); accord State v. Strohauer, 84 N.C. App. 68, 72, 351 S.E.2d 823, 826 (1987).
In the case sub judice, defendant contends that he previously was punished for the underlying convictions used to support his conviction for attaining the status of an habitual felon. Defendant, however, acknowledges that our case law does not support his argument and concedes that he raises this issue "as a matter of issue preservation." This Court frequently has observed that "recidivist statutes, or repeat-offender statutes, survive constitutional challenges in regard to double jeopardy challenges because they increase the severity of the punishment for the crime being prosecuted; they do not punish a previous crime a second time." State v. Massey, 179 N.C. App. 803, 808, 635 S.E.2d 528, 531 (2006) (emphasis in original) (quoting State v. Vardiman, 146 N.C. App. 381, 383, 552 S.E.2d 697, 699 (2001), appeal dismissed, 355 N.C. 222, 559 S.E.2d 794, cert. denied, 537 U.S. 833, 154 L. Ed. 2d 51 (2002)), disc. rev. denied, 361 N.C. 224, 643 S.E.2d 15 (2007); accord State v. Artis, 181 N.C. App. 601, 603.04, 641 S.E.2d 314, 314.15, disc. rev. denied, 361 N.C. 430, 648 S.E.2d 846, cert. denied, ___ U.S. ___, 169 L. Ed. 2d 381 (2007); State v. Bradley, 181 N.C. App. 557, 559.60, 640 S.E.2d 432, 435 (2007). Therefore, defendant's assignment of error is overruled.
Next, defendant argues that the trial court erred by imposing a sentence that was disproportionate to his crimes in violation of the Eighth Amendment. Defendant, however, failed to object at trial, and "`[i]t is well settled that this Court will not review constitutional questions that were not raised or passed upon in the trial court.'" State v. McGee, 175 N.C. App. 586, 590, 623 S.E.2d 782, 785 (quoting State v. Carpenter, 155 N.C. App. 35, 41, 573 S.E.2d 668, 673 (2002)), appeal dismissed and disc. rev. denied, 360 N.C. 542, 634 S.E.2d 891 (2006). Additionally, "[a]lthoughdefendant assigns plain error to this issue, it is well-settled that `plain error analysis applies only to instructions to the jury and evidentiary matters.'" State v. Freeman, ___ N.C. App. ___, ___, 648 S.E.2d 876, 881 (2007) (quoting State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578, cert. denied, 531 U.S. 1041, 148 L. Ed. 2d 543 (2000)), appeal dismissed, ___ N.C. ___, ___ S.E.2d ___ (Jan. 7), reconsideration denied, ___ N.C. ___, ___ S.E.2d ___ (Jan. 18, 2008) (No. 475A07). Defendant, therefore, has failed to preserve his Eighth Amendment argument, and accordingly, we dismiss this assignment of error. See Freeman, ___ N.C. App. at ___, 648 S.E.2d at 881; McGee, 175 N.C. App. at 590, 623 S.E.2d at 785.
In his final assignment of error, defendant contends that he received ineffective assistance of counsel in violation of his rights under the Sixth Amendment. In the alternative, defendant requests that this Court dismiss his claim without prejudice so that he may raise it in a subsequent motion for appropriate relief.
"[Ineffective assistance of counsel] claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing." State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). In the instant case, the record is sufficient to allow review of defendant's claim without the development of additional evidence. In order to satisfy his burden of demonstrating that he received ineffective assistance of counsel in violation of his Sixth Amendment right to counsel, defendant must satisfy a two-part test:
"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (emphasis in original) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). "[R]elief based upon such claims should be granted only when counsel's assistance is `so lacking that the trial becomes a farce and mockery of justice.'" State v. Montford, 137 N.C. App. 495, 502, 529 S.E.2d 247, 252 (quoting State v. Pennell, 54 N.C. App. 252, 261, 283 S.E.2d 397, 403 (1981), disc. rev. denied, 304 N.C. 732, 288 S.E.2d 804 (1982)), cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000).
In the instant case, defendant contends he received ineffective assistance of counsel based upon, in part, his trial counsel's failure or refusal (1) to present an argument during his motion to suppress with respect to Detective Allred's credibility; (2) to cross-examine Detective Allred on alleged conflicting testimony; (3) to subpoena or call Dr. Moira Artigues ("Dr. Artigues") to testify concerning defendant's possible mental state at the time of his confession; and (4) to interview, subpoena, or call certain alibi witnesses. It is well-established, however, that counsel are accorded substantial deference in such matters:
[T]he decisions on what witnesses to call, whether and how to conduct cross-examination, . . . what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client. Trial counsel are necessarily given wide latitude in these matters. Ineffective assistance of counsel claims are not intended to promote judicial second-guessing on questions of strategy as basic as the handling of a witness.
State v. Milano, 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979) (internal quotation marks and citation omitted), overruled on other grounds, State v. Grier, 307 N.C. 628, 645, 300 S.E.2d 351, 361 (1983). At trial, defense counsel expressly informed the court that his decision not to call Dr. Artigues was a strategic decision. Additionally, it is well-settled "we do not substitute our judgment for that of trial counsel as to whether other alibi witnesses, if available, would have been helpful." State v. Lowery, 318 N.C. 54, 69, 347 S.E.2d 729, 739 (1986). Accordingly, we decline to hold that defendant's trial counsel's performance was objectively unreasonable and prejudicial based upon his failure or refusal to challenge Detective Allred's credibility, present testimony from a doctor concerning defendant's possible mental state at the time of his confession, or present testimony from alibi witnesses, assuming there were any such witnesses.
Defendant further contends that his trial counsel was ineffective because his counsel failed or refused to request that the trial court record jury selection, opening statements, and closing arguments. However, this Court recently explained "that a defendant cannot establish ineffective assistance of counsel for failure to request recordation of the jury selection . . . where no specific allegations of error were made and no attempts were made to reconstruct the transcript." State v. Thomas, ___ N.C. App. ___, ___, 651 S.E.2d 924, 928 (2007). Additionally, North Carolina General Statutes, section 15A-1241(a) does not require recordation of, inter alia, (1) jury selection in noncapital cases, (2) opening statements, or (3) closing arguments. See N.C. Gen. Stat. § 15A-1241(a) (2005). As this Court has explained, "a defendant cannot establish prejudice as a result of defense counsel's failure to request recordation of those items specifically exempted from the recording statute." Thomas, ___ N.C. App. at ___, 651 S.E.2d at 928.
Finally, defendant contends that his counsel was ineffective as a result of failing to make an opening statement prior to trial or prior to the presentation of defendant's case-in-chief. However, our Supreme Court has declined to "hold that failure to make an opening statement is per se unreasonable under prevailing professional norms, especially when it is common practice in this State to waive the opening statement." State v. Swann, 322 N.C. 666, 687, 370 S.E.2d 533, 545 (1988). Additionally, the burden is on defendant not only to show that his counsel's actions were objectively unreasonable but also that he was prejudiced by his counsel's deficient performance. See Braswell, 312 N.C. at 562, 324 S.E.2d at 248. Defendant, however, has failed to argue — either in his brief or reply brief — how he was prejudiced by the lack of an opening statement, and therefore, defendant has failed to meet his burden under the second requirement of an ineffective assistance of counsel claim. See id.
Accordingly, after a careful review of the record, we reject defendant's contention that he received ineffective assistance of counsel in violation of his Sixth Amendment right to counsel. Therefore, defendant's assignment of error is overruled.
In his brief, defendant expressly abandoned his remaining assignments of error. Therefore, we need not address these matters. See State v. Reynolds, 164 N.C. App. 406, 409, 595 S.E.2d 788, 790 (2004).
No error.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).