Opinion
No. COA11–890.
2012-04-17
STATE of North Carolina v. Danita MITCHELL, Defendant.
Roy Cooper, Attorney General, by Dahr Joseph Tanoury, Assistant Attorney General, for the State. Richard E. Jester, for defendant-appellant.
Appeal by defendant from judgments entered 3 June 2010, 4 June 2010, and 8 June 2010 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 23 January 2012. Roy Cooper, Attorney General, by Dahr Joseph Tanoury, Assistant Attorney General, for the State. Richard E. Jester, for defendant-appellant.
MARTIN, Chief Judge.
Defendant, Danita Mitchell, appeals from judgments adjudicating her guilty of two counts of criminal contempt and entered upon jury verdicts finding her guilty of assault on a government employee and first-degree trespass. We find no error.
In July 2008, defendant was arrested outside the Mecklenburg County Sheriff's Office for first-degree trespass and assault on a government official. When charged, defendant retained an attorney. After her attorney withdrew in February 2009, defendant had eight different court-appointed attorneys, including Alicia Brooks, Thomas Blackwood, Christopher Sanders, LaVenettra Reaves, Kimberly Saxton, Devondria McClure, Corey Lawrence, and Dean Loven. During a hearing on 25 January 2010, the trial court allowed Mr. Loven to withdraw and entered an order finding and concluding that, by her actions, defendant had forfeited her right to court-appointed counsel. Defendant was given the option of either retaining counsel or proceeding to trial pro se, and defendant elected to proceed to trial pro se.
_________________________
Defendant brings forward the following issues on appeal: whether the trial court erred by (1) concluding she forfeited her right to appointed counsel; (2) revoking her bond; (3) failing to recuse; (4) failing to dismiss the charge of first-degree trespass; and (5) allowing the State's motion to amend the charge of first-degree trespass.
I.
Defendant first contends the trial court erred by concluding, following the 25 January 2010 hearing, that she had forfeited her right to court-appointed counsel. We disagree.
Although “it is the right of an indigent defendant to have competent counsel appointed to represent [her] at [her] trial,” State v. Sweezy, 291 N.C. 366, 371, 230 S.E.2d 524, 528 (1976) (citing Gideon v. Wainwright, 372 U.S. 335, 345, 9 L.Ed.2d 799, 806 (1963)), and a defendant “has the right to conduct [her] own defense without counsel,” a defendant “does not have the right to have the attorney of [her] choice appointed by the court.” Id . (citing State v. Robinson, 290 N.C. 56, 64–65, 224 S.E.2d 174, 179 (1976)). “Neither does the right to competent court-appointed counsel include the privilege to insist that counsel be removed and replaced with other counsel merely because defendant becomes dissatisfied with [her] attorney's services.” Id. Furthermore, a defendant may forfeit the right to court-appointed counsel by her own actions. State v. Montgomery, 138 N.C.App. 521, 524, 530 S.E.2d 66, 69 (2000). “A forfeiture results when the state's interest in maintaining an orderly trial schedule and the defendant's negligence, indifference, or possibly purposeful delaying tactic, combine[ ] to justify a forfeiture of defendant's right to counsel.” Id. (alteration in original) (internal quotation marks omitted). “[A] defendant who misbehaves in the courtroom may forfeit [her] constitutional right to be present at trial, and a defendant who is abusive toward [her] attorney may forfeit [her] right to counsel.” Id. at 525, 530 S.E.2d at 69 (first alteration in original) (internal quotation marks omitted).
In State v. Boyd, 200 N.C.App. 97, 103, 682 S.E.2d 463, 467 (2009), this Court concluded the defendant forfeited his right to court-appointed counsel by willfully obstructing and delaying trial court proceedings when he refused to cooperate with either of his appointed attorneys and insisted his case would not be tried. There, the defendant's original appointed counsel had been permitted to withdraw as a result of disagreements with the defendant including counsel's refusal to file a motion for recusal of a judge on the ground that various superior court judges were in collusion to fix the trial. Id. at 102, 682 S.E.2d at 467. The defendant's second appointed counsel initially moved to withdraw because he said the defendant did not want him as counsel and because he could not effectively communicate with the defendant, and moved to withdraw a second time because the defendant had been uncooperative to the extent that his counsel was unable to prepare any type of defense to the charges. Id. at 102–03, 682 S.E.2d at 467. The defendant repeatedly told his counsel that his case was not going to be tried. Id. at 103, 682 S.E.2d at 467.
Here, defendant also obstructed and delayed trial proceedings by her refusal to cooperate with counsel and the resulting continuous withdrawal and reappointment of successive counsel. Following her trial in district court, defendant sent an extensive e-mail message to Mr. Sanders, expressing her dissatisfaction with his representation, alleging he had “plotted and set [her] up,” and accusing him of lying to her and to the court and engaging in corruption. She requested that Mr. Blackwood be removed because he had “not do [ne] anything to prepare [her] case for trial.” Ms. Reaves moved to withdraw because she and defendant were unable to agree as to how the case should be handled, defendant did not trust her, defendant was impeding any progress, Ms. Reaves was unable to work with defendant under those conditions, and Ms. Reaves was unable to devote the time needed to handle defendant's matters. Defendant was also verbally abusive to at least one attorney, referring to Mr. Loven as a “f-king racist pig.” Defendant cited conflicts with Ms. Saxton and Mr. Lawrence, causing both of them to withdraw. Defendant also filed several pro se motions while represented by counsel. Based on these circumstances, we conclude defendant willfully obstructed and delayed trial court proceedings. The trial court did not err by concluding defendant forfeited her right to court-appointed counsel.
II.
Next, defendant argues the trial court erred in revoking her bond at the 2 October 2009 hearing because there was no good cause for doing so and because she was denied due process. This issue is entirely without merit.
“For good cause shown any judge may at any time revoke an order of pretrial release.” N.C. Gen.Stat. § 15A–534(f) (2011). “The presumption is that the court exercised a proper discretion in ordering the defendant into custody.” State v. Jefferson, 68 N .C.App. 725, 728, 315 S.E.2d 744, 746 (internal quotation marks omitted), disc. review denied and motion to dismiss appeal allowed, 311 N.C. 766, 321 S.E.2d 151 (1984).
During the hearing, the State described two incidents that had occurred that week as grounds for revoking defendant's bond. On Monday, defendant had been charged with assault on a government official after she went into the courthouse and hit a sergeant with some papers. The following day, defendant had been charged with disorderly conduct and resisting a public officer in the performance of his duties after she went to the courthouse again, became angry with another sergeant, acted belligerently, and impeded the public's access to the entrance.
After hearing from the State, defendant's attorney, and defendant, the trial court revoked defendant's bond and ordered that she be psychologically evaluated, reasoning the following:
[Defendant had] previously been ordered not to come into the courthouse unless [she] had prior permission to do so and ... [she] w[as] to be escorted by an officer. [Defendant] ha [d] also appeared before this Court and [her] conduct in prior proceedings or prior appearances before this Court gave the Court some concern as to mental stability. The allegations in the motion before the Court today add to those suspicions and concerns that the Court has.
....
This Court finds that the defendant poses a threat or danger to others; that she continues to disobey the orders of the Court and continues to have encounters with law enforcement. The Court, therefore, revokes the defendant's bond and orders that the defendant be psychologically evaluated ... for her mental health.
This does not demonstrate an abuse of discretion. See State v. Albert, 312 N.C. 567, 575, 324 S.E.2d 233, 238 (1985) (“The defendant's violation of a condition of her release was a legitimate reason for the trial court's exercise of its discretion to revoke her bond.”); State v. Brooks, 38 N.C.App. 445, 449, 248 S.E.2d 369, 371 (1978) (“In determining the conditions of release or the propriety of revoking a defendant's bond, the trial court may consider ... whether [the defendant] will appear for trial in such mental and physical condition as to be able to proceed.”).
As to defendant's assertion that she was denied due process, we note that defendant was notified of the State's motion to revoke her bond the night before the 2 October 2009 hearing and that, during the hearing, the trial court heard from defendant and her counsel. Furthermore, defendant was provided ample opportunity to discuss the State's motion with her attorney during the hearing, but refused. This issue is overruled.
III.
Next, defendant contends Judge Calvin E. Murphy erred in denying her request that he recuse himself from the 25 January 2010 hearing. This issue is also without merit.
On 13 August 2009, when defendant appeared before Judge Murphy on Ms. Reaves's motion to withdraw as counsel and defendant objected to Judge Murphy hearing the matter because of his representation of someone against her in 2005, Judge Murphy allowed defendant to put the matter before another judge. However, on 25 January 2010, when Mr. Loven's motion to withdraw as counsel was before Judge Murphy and defendant again objected to Judge Murphy hearing the matter, Judge Murphy responded, “I have no conflict with you.”
In arguing on appeal that Judge Murphy erred by refusing to recuse on 25 August 2010, defendant references North Carolina Code of Judicial Conduct Canon 3(C)(1)(b), which provides that,
(1) On motion of any party, a judge should disqualify himself/herself in a proceeding in which the judge's impartiality may reasonably be questioned, including but not limited to instances where:
....
(b) The judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it.
...
N.C.Code Judicial Conduct Canon 3C(1)(b), 2012 Ann. R. N.C. 542. However, Canon 3(C)(1)(b) does not address the purported conflict defendant identifies, which involves Judge Murphy's prior representation of a party adverse to defendant in a matter unrelated to the present criminal case. Defendant also asserts that Judge Murphy made a “summary ruling” on 25 August 2010 and “did not allow her to state or prove her case.” However, Judge Murphy was aware of the ground upon which defendant's objection to his hearing the matter was based, having heard the same objection on 13 August 2009. “Defendant has failed to show any bias, interest, or prejudice by the trial judge,” and “[a] reading of the transcript reveals nothing but an impartial hearing.” See State v. McRae, 163 N.C.App. 359, 365, 594 S.E.2d 71, 76,motion to dismiss appeal allowed and disc. review denied,358 N.C. 548, 599 S.E.2d 911 (2004). This issue is overruled.
IV.
Defendant also contends the trial court erred by not dismissing the charge of first-degree trespass. Defendant failed to move to dismiss the charge at the conclusion of the evidence and therefore did not preserve this issue for appellate review under N.C.R.App. P. 10(a)(3). However, “even assuming, arguendo, that the issue was preserved, our review of the record reveals that the evidence was more than adequate to submit the charge ... to the jury.” See State v. Neville, 202 N.C.App. 121, 124, 688 S.E.2d 76, 79,disc. review denied,364 N.C. 130, 696 S.E.2d 696 (2010).
When a defendant moves to dismiss, the trial court must determine “whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). “If so, the motion is properly denied.” Id. “Substantial evidence is relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987) (internal quotation marks omitted). In reviewing a motion to dismiss based on insufficiency of the evidence, this Court must
view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.... Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.
State v. Barnes, 334 N.C. 67, 75–76, 430 S.E.2d 914, 918–19 (1993) (alteration in original) (emphasis omitted) (internal quotation marks and citation omitted). N.C.G.S. § 14–159.12 provides that “[a] person commits the offense of first degree trespass if, without authorization, he enters or remains: (1) On premises of another so enclosed or secured as to demonstrate clearly an intent to keep out intruders; or (2) In a building of another.” N.C. Gen.Stat. § 14–159.12 (2011).
Defendant asserts that the State presented insufficient evidence that the area was “clearly enclosed or marked on all sides.” She contends the State's Exhibits 3 and 4 depict a vehicular entrance where pedestrians “can easily enter” with “no signs advising them otherwise.” However, defendant fails to acknowledge that the vehicular entrance contains a guard shack with metal bollard barriers on one side and a barrier on the other requiring activation by a guard to allow vehicular entry and that a gate located on the other side of the guard shack contained a sign saying “secure entrance only.” This is substantial evidence that defendant, without authorization, entered or remained on premises of another so enclosed or secured as to demonstrate clearly an intent to keep out intruders. This issue is overruled.
V.
Finally, defendant contends the trial court erred in allowing the State's motion to amend the charge of first-degree trespass. We disagree.
N.C.G.S. § 15A–922(f) provides that “[a] statement of charges, criminal summons, warrant for arrest, citation, or magistrate's order may be amended at any time prior to or after final judgment when the amendment does not change the nature of the offense charged .” N.C. Gen.Stat. § 15A–922(f) (2011). “This statute conforms to the long-held principle in this State that an amendment to a warrant under which a defendant is charged is permissible as long as the amended warrant does not charge the defendant with a different offense.” State v. Clements, 51 N.C.App. 113, 116, 275 S.E.2d 222, 225 (1981).
In Clements, the defendant was charged with death by vehicle in violation of N.C.G.S. § 20–141.4, which provided that “[w]hoever shall unintentionally cause the death of another person while engaged in the violation of any State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic shall be guilty of death by vehicle when such violation is the proximate cause of said death.” Id. The amendment to the warrant which was allowed by the trial court replaced the language “following too closely” with “failure to reduce speed to avoid an accident.” Id. This Court held that,
[a]lthough the death by vehicle statute contemplates that some violation of a motor vehicle statute or ordinance be specified in a warrant charging death by vehicle, it is not essential that the motor vehicle violation alleged in the warrant as originally issued be the same as the motor vehicle violation alleged in the warrant as considered by the jury where, as here, the substituted motor vehicle violation is substantially similar to that originally alleged.
Id. at 116–17, 275 S.E.2d at 225.
The warrant for defendant's arrest charged her with first-degree trespass, alleging she “did unlawfully, and willfully without authorization enter in a building of another, Mecklenburg County/Mecklenburg County Sheriff's Office, located at 700 East Fourth St. Charlotte, NC.” During trial, the State moved to amend the warrant by striking the language “in a building of another,” and replacing it with “or remaining on the premises of another so enclosed or secured as to demonstrate clearly the intent to keep out intruders.” Just as the amendment of the warrant in Clements did not change the nature of the offense of death by vehicle, the amendment here did not change the offense of first-degree trespass.
No error. Judges McGEE and CALABRIA concur.
Report per Rule 30(e).