Summary
analyzing the defendant's argument under Ali and noting that "[d]isagreement over trial tactics, without more, does not equate to ineffective assistance of counsel"
Summary of this case from State v. LaneOpinion
No. COA11–841.
2012-05-1
STATE of North Carolina v. Jerome Demond WRIGHT.
Attorney General Roy Cooper, by Special Deputy Attorney General John J. Aldridge, III, for the State. Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for defendant.
Appeal by defendant from judgments entered 27 September 2010 by Judge Jack W. Jenkins in Wayne County Superior Court. Heard in the Court of Appeals 25 January 2012. Attorney General Roy Cooper, by Special Deputy Attorney General John J. Aldridge, III, for the State. Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for defendant.
STEELMAN, Judge.
Where the defendant failed to establish he received ineffective assistance of counsel, the argument that the trial court erred by denying his second appointed counsel's motion to withdraw is without merit. The trial court did not abuse its discretion in dismissing a juror. The trial court did not err in refusing to instruct on a lesser included offense because the evidence did not negate an element of the greater offense.
I. Factual and Procedural Background
On the night of 8 June 2008, Goldsboro Police Officer Jimmy Hales pulled over a Chevrolet Malibu during a traffic stop in Goldsboro. Jerome Demond Wright (“defendant”) was the driver. Officer Hales testified at trial that, during the stop, defendant pulled out a pistol and “stuck it” to the officer's forehead. An altercation ensued. According to Officer Hales, defendant fired his weapon first. Two shots fired by defendant struck Officer Hales in his protective vest and just below the vest. The men exchanged several rounds of fire. Two shots fired by Officer Hales struck defendant in the buttocks. Neither individual was fatally wounded.
Defendant was charged with one count of attempted first-degree murder, two counts of assault with a deadly weapon with intent to kill inflicting serious injury, two counts of assault with a firearm on a law enforcement officer, one count of possession of a firearm by a convicted felon, one count of feloniously carrying a concealed weapon, and one count of misdemeanor possession of a controlled substance. Prior to defendant's trial, defendant's first court appointed attorney, Carrol Turner, was permitted to withdraw from representation. After taking over the case, defendant's second appointed attorney, Will Bland, also moved to withdraw. The trial court denied that motion. During defendant's trial, the trial court removed a juror, over defendant's objection, on the ground that inappropriate contact had occurred between the juror and a person associated with defendant. At the jury instruction conference, the trial court denied defendant's request for an instruction on assault with a deadly weapon inflicting serious injury as a lesser included offense.
The jury found defendant not guilty of attempted first-degree murder and guilty of all other charges. The trial court arrested judgment on one of the two convictions of assault with a deadly weapon with intent to kill inflicting serious injury and one of the two convictions for assault with a deadly weapon on a law enforcement officer. The trial court found defendant to be a prior record level IV for felony structured sentencing and imposed active sentences totaling 207 to 268 months in prison to run at the conclusion of the sentence he was then serving in federal prison.
Defendant appeals.
II. Denial of Defense Counsel's Motion to Withdraw
In his first argument, defendant contends that he is entitled to a new trial because the trial court erred in denying his second appointed lawyer's motion to withdraw. We disagree.
A. Standard of Review
We review the denial of a motion to withdraw for abuse of discretion. See State v. Thomas, 350 N.C. 315, 329, 514 S.E.2d 486, 495 (1999).
B. Analysis
Defendant's second lawyer, Mr. Bland, moved that the trial court allow him to withdraw, citing, among other things, the antagonistic conduct by defendant's family. N.C. Gen.Stat. § 15A–144 (2011) provides that the trial court “may allow an attorney to withdraw from a criminal proceeding upon a showing of good cause.” In order to obtain a new trial as a result of the denial of a motion to withdraw, the defendant must demonstrate that he received ineffective assistance of counsel. Thomas, 350 N.C. at 328, 514 S.E.2d at 495. To establish ineffective assistance of counsel,
the defendant must first show that counsel's performance fell below an objective standard of reasonableness as defined by professional norms. This means that defendant must show that his attorney made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, once defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error. Thus, 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) (citations omitted) (some internal quotation marks omitted).
Defendant argues that Mr. Bland's representation fell below professional norms because there was a conflict between defendant and Mr. Bland. Prior to trial, Mr. Bland met with defendant and his mother, brother, and girlfriend to discuss a plea offer by the State. Defendant's mother and brother questioned whether Mr. Bland was committed to representing defendant. They stated that the racial overtones of the case prevented defendant from obtaining a fair trial. His family argued that because defendant, an African–American, was charged with shooting a white police officer, defendant could not obtain adequate representation from a white lawyer (Mr. Bland). Defendant did not voice these racial concerns. The meeting deteriorated; defendant's brother eventually exclaimed, “I hate white people. I hate white people.”
At a subsequent meeting with Mr. Bland, defendant disavowed his brother's hostile comments. He did, however, state that he was concerned over Mr. Bland's relationship with the Goldsboro Police Department. Mr. Bland had been previously employed in the district attorney's office, but he had not had significant contact with Officer Hales. A computer technician who occasionally serviced computers at Mr. Bland's office was Officer Hales' roommate. At the hearing on Mr. Bland's motion, defendant addressed the court. He told the court that Mr. Bland could not represent him adequately and stated, “We can't agree on hardly nothing about the case.” He also stated that they had not spoken enough about the case given the serious nature of the charges.
A trial court properly denies a defendant's request to appoint substitute counsel “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.” State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980). We are not persuaded that the discord reflected in the record of this case rendered Mr. Bland incompetent or ineffective to represent defendant. The acrimony displayed by defendant's family members may have injured the relationship between defendant and Mr. Bland, but defendant disavowed his brother's inimical conduct, indicating the outburst did not poison the attorney-client relationship.
Defendant also stated that he and Mr. Bland disagreed over trial tactics. “[W]hen counsel and a fully informed criminal defendant client reach an absolute impasse as to such tactical decisions, the client's wishes must control....” State v. Ali, 329 N.C. 394, 404, 407 S.E.2d 183, 189 (1991). Defendant does not argue that Mr. Bland overruled any of defendant's tactical directives. Disagreement over trial tactics, without more, does not equate to ineffective assistance of counsel. See id. at 404, 407 S.E.2d at 189–90 (concluding defendant was not deprived of effective assistance of counsel despite disagreement between defendant and counsel on trial tactics).
Defendant might have preferred a different lawyer, but an indigent defendant is not entitled to the counsel of his choice. Thacker, 301 N.C. at 351–52, 271 S.E.2d at 255. Defendant does not point to any specific deficiency in Mr. Bland's advocacy at trial, and our review of the record has not revealed one. Defendant has failed to demonstrate that Mr. Bland's “performance fell below an objective standard of reasonableness as defined by professional norms.” Lee, 348 N.C. at 491, 501 S.E.2d at 345 (stating standard for ineffective assistance of counsel).
This argument is without merit.
III. Removal of Juror
In defendant's second argument, he contends that he is entitled to a new trial because the trial court erred in removing a juror for having inappropriate contact with an individual who was attending defendant's trial. We disagree.
A. Standard of Review
We review the trial court's decision to excuse a juror and substitute an alternate for abuse of discretion. State v. Nelson, 298 N.C. 573, 593, 260 S.E.2d 629, 644 (1979).
B. Analysis
During defendant's trial, Bailiff Chris Braswell notified the court that he observed an individual (the “spectator”) attempting to speak with a juror (“Juror Number 1”) on two separate occasions, both inside and outside the courthouse. The trial court questioned Juror Number 1 in the presence of Mr. Bland and the prosecutor. The juror stated that the spectator, whom he “knew from Mt. Olive,” wanted a ride home and a cigarette. According to Juror Number 1, the two men did not discuss the case. Juror Number 1 informed the trial court that the contact with the spectator would not impair his ability to be fair and impartial. He also stated that he was acquainted with defendant's grandmother but that he was not close with her, nor did he know any of defendant's other family members. Juror Number 1 did not disclose this information during jury selection, but he was not asked whether he knew defendant's family members.
Officer Braswell informed the court that he told the spectator that he could not speak with Juror Number 1 when he first attempted to do so in the courthouse. Officer Braswell then observed him speaking to Juror Number 1 outside of the courthouse for two or three minutes. He also informed the court that the spectator arrived at the trial with defendant's mother and sister. It is unclear from the record whether Juror Number 1 was present when Officer Braswell admonished the spectator about speaking with the juror.
The trial court noted that it was concerned that Juror Number 1 was on notice not to have contact with the individual and nevertheless had proceeded to speak with him outside of the courthouse. The court removed Juror Number 1, replacing him with an alternate juror.
Defendant argues the trial court abused its discretion because the court's reasoning that Juror Number 1 was warned not to speak to the spectator is not supported by the record. He contends that he was prejudiced because Juror Number 1 was African–American and the replacement juror was white, depriving him of his right to a jury composed of a fair cross-section of the community.
The trial court explained the reasoning behind its decision: “My concern is that the juror was on notice not to have contact with this individual and proceeded to go straight outside and have contact with him for two or three minutes. And to me, that in and of itself is enough to create problems.” The trial court also noted that the spectator was affiliated with defendant's family. Mr. Bland objected to the juror's removal, but did not give a specific reason, stating that he simply wanted “to preserve whatever issues may be in the trial.”
Prior to this incident, the trial had court warned the jurors not to speak with anyone about the case:
I know you've heard them several times, and I just want to make sure you remember them. Do not talk about the case among yourselves. Do not talk about the case with anyone else, including members of your family, if you go back home or if you go to work, coworkers and the like. Do not form or express any opinions about the case. Do not talk or communicate with anyone involved in the case.
The record does not indicate that Juror Number 1 was personally warned not to speak with the spectator, and it is unclear whether Juror Number 1 overheard the bailiff warning the spectator not to speak to the juror. “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) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). The trial court was informed that the spectator accompanied defendant's family into the courtroom. And the spectator made contact with Juror Number 1 for two to three minutes after being instructed not to do so. Juror Number 1 was acquainted with defendant's family. There was a rational basis for the trial court's decision even if the trial court did not warn Juror Number 1 not to speak to the spectator. We cannot fault the court for acting out of an abundance of caution under these facts. We conclude that the trial court did not abuse its discretion.
This argument is without merit.
IV. Lesser Included Offense
In defendant's third argument, he contends that the trial court erred in refusing to instruct on a lesser included offense of assault with a deadly weapon with intent to kill inflicting serious injury—assault with a deadly weapon inflicting serious injury. We disagree.
A. Standard of Review
A trial court's decision not to give a requested lesser included offense instruction is reviewed de novo on appeal. State v. Debiase, –––N.C.App. ––––, ––––, 711 S.E.2d 436, 441,disc. review denied,365 N.C. 335, ––––, 717 S.E.2d 399, 400 (2011).
B. Analysis
Defendant argues that the trial court improperly denied his request to instruct on assault with a deadly weapon inflicting serious injury, which is a lesser included offense of assault with a deadly weapon with intent to kill inflicting serious injury. State v. Cromartie, 177 N.C.App. 73, 76, 627 S.E.2d 677, 680 (2006). The distinction between these crimes is that there is no need to establish intent to kill for the lesser offense. Id. The trial court must instruct on a lesser included offense “only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002). “If the State's evidence is sufficient to fully satisfy its burden of proving each element of the greater offense and there is no evidence to negate those elements other than defendant's denial that he committed the offense, defendant is not entitled to an instruction on the lesser offense.” State v. Smith, 351 N.C. 251, 267–68, 524 S.E.2d 28, 40 (2000). However, “[w]hen there is conflicting evidence of the essential elements of the greater crime and evidence of a lesser included offense, the trial judge must instruct on the lesser included offense even where there is no specific request for such instruction.” State v. Brown, 300 N.C. 41, 50, 265 S.E.2d 191, 197 (1980).
Defendant contends that he was entitled to the instruction on assault with a deadly weapon inflicting serious injury because there was evidence tending to show he did not intend to kill Officer Hales. Officer Hales testified that after defendant put the pistol to his head while defendant was sitting in the car, he attempted to grab the weapon. The two struggled over the firearm, and when Officer Hales determined he could not wrest it from defendant, the officer shoved it towards the windshield and retreated to the rear of defendant's vehicle. Officer Hales testified that as he made his way towards the rear of the car, he glanced over his shoulder and saw defendant clearing the chamber of the pistol. By the time Officer Hales arrived at the rear of the vehicle and began drawing his sidearm, defendant stood and fired two rounds, each striking the officer. The men then fired back and forth at each other several times. Eventually, defendant was wounded, and Officer Hales placed him under arrest.
In his attempt to call the element of intent to kill into question, defendant relies chiefly on the testimony of two witnesses for the State. Stephanie Wooten testified that as she was driving by, she saw Officer Hales struggling with defendant, who was seated in a car. “It looked like the officer was probably trying to stop him from getting the gun or whatever he was fixing to pull out,” according to Wooten. She testified, “[Defendant] had to shoot first, because when they were struggling it had to have been a gun. When he shot, the officer backed up. Because the officer was already shot, he was backing up, trying to get his gun to shoot back .” Wooten also stated that Officer Hales was shot while he and defendant were “struggling sort of inside the car.” William Warren, who was a passenger in Wooten's vehicle, also witnessed portions of the incident. He testified that he heard shots, but did not witness the initial shots being fired.
Defendant's argument on appeal conflicts with his theory of the case below. At trial, defendant testified as follows. He was uncomfortable with Officer Hales because they had argued during a prior encounter. He began to get out of the car, but sat back down. Officer Hales attempted to pull him out of the car. Defendant “snatch[ed his] arm loose” and slammed the car door shut. According to defendant, Officer Hales retreated to behind the car and began firing into the vehicle. Defendant was shot when he exited the car. Defendant walked around to the rear of the car. A bullet fell out of his gun, and he reloaded it. Officer Hales was standing in a yard on the side of the road. The two men exchanged gunfire across the rear of the car, and Officer Hales was struck twice. Defendant testified that he shot Officer Hales intentionally but did not intend to kill him. Defendant claimed that he was acting in self-defense at the time.
Proof of an assault with a deadly weapon inflicting serious injury not resulting in death does not, as a matter of law, establish a presumption of intent to kill. Instead, the intent to kill must be found as fact from the evidence. A defendant's intent is seldom provable by direct evidence and must usually be proved through circumstantial evidence. However, the nature of the assault, the manner in which it was made, the weapon, if any, used, and the surrounding circumstances are all matters from which an intent to kill may be inferred. The surrounding circumstances include the foreseeable consequences of a defendant's deliberate actions as a defendant must be held to intend the normal and natural results of his deliberate act.
State v. Liggons, 194 N.C.App. 734, 739, 670 S.E.2d 333, 337–38 (2009) (citations omitted) (internal quotation marks omitted).
We conclude that the evidence presented at trial did not tend to negate the evidence tending to show defendant intended to kill Officer Hales. The State's evidence tended to show that defendant intentionally shot Officer Hales when the officer was retreating from the struggle over the firearm. When Wooten's testimony is viewed in the light most favorable to defendant, it does not suggest that defendant did not intend to kill Officer Hales. There is a conflict in the evidence as to how the shooting occurred. But there is no dispute that defendant shot Officer Hales intentionally. He so stated in his own testimony. Whether defendant was acting in self-defense, which might excuse the assault, is a different question from his intent to kill.
Intent to kill “may be inferred from the nature of the assault, the manner in which it is made, the conduct of the parties, and other relevant circumstances.” State v. Revels, 227 N.C. 34, 36, 40 S.E.2d 474, 475 (1946). In this case, both defendant's and Officer Hales' testimony indicates that defendant intentionally pointed his firearm at Officer Hales, shot at him, and struck him twice. Even if the shooting occurred while the two men were near the driver's door of the car, as Wooten's and Warren's testimony suggests, this does not indicate that defendant did not intend to kill Officer Hales.
Defendant also points to his testimony at trial that he did not intend to kill Officer Hales. However, a defendant's denial that he committed the greater offense, standing alone, does not entitle him to an instruction on the lesser offense. Smith, 351 N.C. at 267–68, 524 S.E.2d at 40.
This argument is without merit.
V. Conclusion
Defendant received a fair trial, free from error.
NO ERROR. Judges GEER and HUNTER, JR., ROBERT, N. concur.
Report per Rule 30(e).