Opinion
No. COA05-297
Filed 1 November 2005 This case not for publication
Appeal by Defendant from judgment entered 25 August 2004 by Judge Kenneth F. Crow in Superior Court, Wayne County. Heard in the Court of Appeals 10 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General Michelle B. McPherson, for the State. Geoffrey W. Hosford for defendant-appellant.
Wayne County No. 03CRS59688.
North Carolina Rule of Evidence 404(b) provides that relevant evidence of other crimes, wrongs or acts "may . . . be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident." N.C. Gen. Stat. § 8C-1, Rule 404(b) (2004). In this case, the police officer's testimony regarding an encounter with Defendant two months after the date at issue, was offered for the purpose of proving intent, a common plan, purpose, or scheme. Therefore, the trial court did not err in admitting this testimony. We further find no error by the trial court in denying his motions to discharge his attorney and to continue his case.
Defendant Decarlo Tavaris Godwin was charged with possession with intent to sell and deliver a controlled substance, keeping and maintaining a motor vehicle for the use of controlled substances, misdemeanor driving while license revoked, and having obtained the status of habitual felon. The State's evidence tended to show that: Officer Karen Powers of the Goldsboro Police Department was on patrol on the night of 27 October 2003. Officer Powers was parked at the intersection of George and Grantham Streets completing some paperwork, when another Goldsboro Police Officer, Officer Clint Hales, who was off duty at the time, pulled alongside her patrol car. Officer Hales told Officer Powers about some things that had occurred during his shift the night before. Most notably, Officer Hales informed Officer Powers that Defendant had been stopped for driving while his license was revoked, during which time Defendant was found to be in possession of marijuana. While the two officers were conversing, Defendant approached and stopped at the intersection in a van. Defendant was approximately fifteen to twenty feet away from the location where Officers Hales and Powers were parked.
Based upon the information she had just received from Officer Hales, Officer Powers initiated a stop of Defendant's van. After Defendant pulled over, Officer Powers approached his vehicle and asked if he had a license. Defendant admitted that his license had been revoked. Officer Powers then placed Defendant under arrest for driving while his license was revoked. The officer handcuffed Defendant and searched for weapons and/or other contraband. Defendant had $692.00 — four $100 bills, one fifty dollar bill, four twenty dollar bills, nine ten dollar bills, nine five dollar bills, thirteen two dollar bills, and a one dollar bill — on his person. After placing Defendant in her patrol car, Officer Powers also searched Defendant's van. There, she found a balled up T-shirt, which contained what appeared to be a bag of marijuana. There was also marijuana residue throughout the van, and a plastic sandwich bag, with a missing corner, lying on the van's floor.
At trial, Officer Powers explained that drug dealers commonly use a bag with one corner cut off as a funnel to fill smaller bags with marijuana in preparation for individual sale. She also explained that marijuana is typically sold in five-dollar, ten-dollar, and twenty-five-dollar bags, and that based on her training and experience, the denominations of bills seized from Defendant comported with the sale of marijuana. The quantity of marijuana also led the officer to believe that Defendant was engaged in the sale of marijuana. Officer Powers explained that Defendant had just under 1.5 ounces of marijuana in his possession when arrested on the night of 27 October 2003. The officer testified that in her training and experience, this quantity was a quantity too great for personal use. She noted, however, that dealers generally carried this quantity of marijuana to prevent being charged with a felony. Officer Hales testified at trial in conformity with Officer Powers about events leading to Defendant's arrest on 27 October 2003. He also testified that he was familiar with Defendant and his van in that Officer Hales had seen Defendant in the same van (most often parked at the intersection of Walnut and Carolina Streets) at least every other day during the month before Defendant's 27 October 2003 arrest.
Two other Goldsboro Police Officers, David Wilson and Stephen Powers (husband of Officer Karen Powers), testified about Defendant's previous arrests for the same and/or similar charges. Officer Wilson testified to having arrested Defendant during the early morning hours of 27 October 2003. Officer Wilson noted that he had first come into contact with Defendant and two other men standing in front of Defendant's van, and had warned the three men about drinking in the street. Officer Wilson instructed the men to go inside the house to drink. Some time later, Officer Wilson observed Defendant driving his van and executed a traffic stop. While speaking with Officer Wilson, Defendant pulled a small plastic bag containing marijuana from his pocket and dropped it on the ground. The bag was about 2.5 inches and was rolled up with one corner tied. Officer Wilson charged Defendant with possession of marijuana at that time. A subsequent search of Defendant's van yielded about twenty-five small (one inch by one inch) plastic bags, commonly used for packaging drugs for sale, inside the front console motor cover. Due to the small quantity, Officer Wilson only wrote Defendant a citation for possessing marijuana and drug paraphernalia, and driving while his license was revoked.
Officer Stephen Powers testified, over Defendant's objection, about an encounter that occurred on 17 December 2003 — approximately two months after Defendant's arrest on the instant charges on 27 October 2003. Officer Stephen Powers remarked that, at that time, Defendant was driving the same van previously described by his wife, and Officers Hales and Wilson. During the 17 December 2003 encounter with Defendant, Officer Stephen Powers found a bag containing five to ten grams of marijuana, and a cigar under the front passenger seat of the van. Officer Stephen Powers testified that marijuana users often removed the tobacco from cigars and filled them with marijuana, to create marijuana cigars. Officer Stephen Powers, therefore, seized the cigar as contraband.
Defendant did not present any evidence. Defendant moved to dismiss the charges against him for insufficient evidence, which was denied. In response to Defendant's continued objection to the evidence concerning the 17 December 2003 encounter with Officer Stephen Powers, the trial court noted on the record that counsel for Defendant and the district attorney had previously discussed the issue in chambers. At that time, the trial court had cautioned the prosecutor that a proper foundation would have to be laid and the proper predicates entered into evidence before the trial court would allow such testimony. The trial court noted that the prosecution had done as cautioned, and the trial court was satisfied that the testimony was admissible.
Prior to the jury charge, Defendant pled guilty to driving while license was revoked. During the plea colloquy, Defendant stated that he was satisfied with the services of his attorney, was making the plea voluntarily, was making the plea because he was infact guilty, and understood that the maximum sentence on the charge was 120 days. The trial court accepted the plea, noting that "despite his earlier contention, at this point in time [defendant's] expressed satisfaction with the services of his lawyer."
After being properly instructed, the jury found Defendant guilty of possession with intent to deliver and sell marijuana, and maintaining a vehicle for keeping or selling marijuana. The jury was dismissed, and before sentencing on the drug-related charges, Defendant admitted to having attained habitual felon status. Again, Defendant stated that he had no objections or concerns about his attorney's services. After finding some five mitigating factors, the trial court sentenced Defendant to a mitigated sentence of seventy-two to ninety-six months imprisonment. Defendant appealed.
On appeal, Defendant first argues that the trial court erred in allowing the testimony of Officer Stephen Powers regarding a stop made approximately two months after his arrest on the instant charges. Defendant contends the evidence was unnecessary and misleading to the jury. We disagree.
The admissibility of evidence regarding "other crimes, wrongs, or acts" is determined by application of Rules 404(b), 402, 401, 403, 104(b) and 105 of the North Carolina Rules of Evidence. State v. Haskins, 104 N.C. App. 675, 679, 411 S.E.2d 376, 380 (1991), disc. review denied, 331 N.C. 287, 417 S.E.2d 256 (1992). "That is, the evidence must be offered for a proper purpose, must be relevant, must have probative value that is not substantially outweighed by the danger of unfair prejudice to the defendant, and, if requested, must be coupled with a limiting instruction." Id. North Carolina Rule of Evidence 404(b) provides that relevant evidence of other crimes, wrongs or acts "may . . . be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident." N.C. Gen. Stat. § 8C-1, Rule 404(b). Rule 404(b) has been noted to be a rule of inclusion, and not exclusion. State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). Rule 404(b) evidence is "subject to the weighing of probative value versus unfair prejudice mandated by Rule 403." State v. Agee, 326 N.C. 542, 549, 391 S.E.2d 171, 175 (1990). To that end, our Supreme Court noted in Coffey, that evidence which is probative of the State's case is necessarily prejudicial to the defendant; "the question is one of degree." 326 N.C. at 281, 389 S.E.2d at 56. "Whether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court." Id.
In the case sub judice, Defendant takes issue with the trial court allowing the State to offer the testimony of Officer Stephen Powers regarding an encounter with him in December 2003. Officer Powers' testimony was strikingly similar to the testimony of other Goldsboro Police Officers about their arrests of Defendant on 27 October 2003. Notably, Defendant was in his Chevrolet conversion van in the same area of Goldsboro, which was noted as being a high drug area. Further, Defendant, on each occasion, had marijuana in the van.
In the instant case, the trial court specifically found that the evidence was "not offered to prove the character of the Defendant." Instead, the trial court determined that the evidence
was offered for the limited purpose to prove that the Defendant had in his mind set [sic] the intent, a common plan, purpose, scheme, to participate in narcotic activity and use this vehicle to facilitate that purpose. That he had a design to use this vehicle for illegal narcotic activity. That he had the opportunity to use this vehicle for illegal drug activity, and that he was able to continue to use this van and exercise dominion and control over the same as required by the statute for maintaining a vehicle to keep or sell controlled substance. The evidence was admitted for that limited purpose.
The trial court went on to give the jury a limiting instruction, in keeping with his findings.
We conclude that the trial court's findings are proper in that Officer Powers' testimony regarding his December 2003 encounter was indeed relevant to show the existence of a plan or design to commit the drug-related offenses charged. Although the encounter was approximately two months after Defendant's arrest on the instant charges, it does not affect its admissibility. See State v. Parker, 354 N.C. 268, 287, 553 S.E.2d 885, 899 (2001) ("remoteness in time between evidence of other crimes, wrongs, or acts and the charged crime is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident. Indeed, `remoteness in time generally affects only the weight to be given such evidence, not its admissibility.'"), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). Moreover, while necessarily prejudicial, we conclude that the probative value of this evidence far outweighed any prejudice to Defendant. Accordingly, this evidence was properly admitted into evidence by the trial court.
Defendant next argues that the trial court erred in denying his request to dismiss court-appointed counsel, and to represent himself or hire substitute counsel to represent him. Again, we disagree.
The record tends to show that this case had been pending since 27 October 2003. In June 2004, Defendant's court-appointed attorney filed a motion for speedy trial, whereupon the matter was set for trial before Judge Kenneth F. Crow on 23 August 2004. On the morning that trial was scheduled to begin, court-appointed counsel informed the court that Defendant wanted to discharge him and hire private counsel. The trial court then allowed Defendant to explain why he wanted to discharge his court-appointed attorney.
Defendant told the trial court that counsel had been appointed on or about 8 June 2004, and had visited him in jail at least three times since that time. Defendant, however, appeared to take exception to the fact that, on the morning of the trial, counsel reminded him that a previously rejected plea offer from the State was still available. Defendant explained that in his mind, appointed counsel's reminder about the plea offer showed "that that's not — he's not showing interest into my case, and I . . . I would like . . . to relieve him."
After hearing from Defendant, the trial court noted that the case had been pending for nearly one year and had been on the trial calendar for several weeks. The trial judge, therefore, stated that he was not inclined to remove the case from the trial calendar. The trial court went on to explain, in detail, to Defendant his rights concerning discharging appointed counsel. The trial court also explained to Defendant how favorable the terms of the State's plea offer were. Defendant reiterated that he just did not feel that his court-appointed attorney would be handling his case in his best interest. Defendant asked the trial court why the court could not arrange things where he could "get [him] a lawyer where [he could] feel like [he] could be comfortable." The trial court assured Defendant that during trial, the trial court would be watchful and that if the trial court got the impression that counsel was not representing him "in a fashion that zealously safeguards [his] interest, then [he would] so let the record reflect." The trial court concluded that it was still inclined to proceed with the trial as scheduled. The trial court made the appropriate findings, noting that Defendant had rejected the State's plea offer, and adjourned for lunch.
After lunch, Defendant's court appointed attorney informed the trial court that Defendant had decided during the break to accept the plea offer. The State informed the trial court that the original offer was no longer available, but the State would offer the original deal, amended to exclude disposition of the misdemeanor cases pending in district court. Defendant rejected the offer and jury selection began. Jury selection was completed and court was adjourned at 5:00 p.m. until the next day.
On the following morning, Defendant's attorney informed the trial court that the State had made another plea offer — essentially the last offer made the day before. Counsel noted that he had recommended that Defendant accept the offer, given the charges that Defendant faced. Counsel also alluded to the fact that Defendant had been told by his aunt on the previous evening and was convinced that he had "an appellate issue because the Court denied him his right to hire a lawyer." Further, counsel told the trial court that Defendant was still dissatisfied with his representation and wished to be heard. The trial court, therefore, invited Defendant to speak on that issue. At this point, Defendant explained his reasons for wanting to discharge court-appointed counsel: "I just — I just want to state that my lawyer's — it's a conflict of interest, Man, he don't — I mean it's like he — like he's not — he's not — he's not there. I mean the same thing he's doing I could do." The trial court responded,
Okay. Well, I appreciate that, but I'm not going to discharge Mr. Gomulka. If you want to discharge him I will certainly allow Mr. Gomulka to sit here as of counsel and give you advice, if you think that you might need it, but what I will not do is discharge him and appoint you other counsel.
Now if you're — or you decide to hire an attorney during the course of these proceedings, there is nothing to restrict from you hiring an attorney at any time to get independent counsel, and I'm satisfied that Mr. Gomulka would probably welcome that proposition, but in my experience, and in my discretion, at this point in time I'm not going to remove Mr. Gomulka from his duties and responsibilities of representing you. If you're adamant about discharging him I'll allow you to discharge him, but I'm going to still require that he sit there and be of counsel to you, in the event that you think that you might need to call on his advice during the course of these proceedings. So would you like to have him represent you or not?
Defendant failed to respond to the question. Instead, Defendant asked, "But isn't that going against my Constitutional right?" The trial court responded, "Well, I appreciate that response, but now I want to remind you of my question. Do you want me to discharge him and have him sit there and just give you advice when you call on him, or do you wish to have him continue to represent you?" Again, instead of answering the trial court's question, Defendant suggested that the trial court's ruling violated his constitutional rights. At that point, the trial court ended the colloquy and had the jury brought in.
The Sixth Amendment to the United States Constitution, made applicable to the various states by the Fourteenth Amendment, and Article I, §§ 19 and 23 of the North Carolina Constitution guarantee an indigent defendant the right to court-appointed counsel. It is well-settled that the right to court-appointed counsel does not extend to the right to have court appointed counsel of the defendant's choice. State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980). In instances in which a defendant moves to have his attorney removed, the court is required to "inquire into defendant's reasons for wanting to discharge his attorney and to determine whether those reasons were legally sufficient to require the discharge of counsel." State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981); see State v. Anderson, 350 N.C. 152, 167, 513 S.E.2d 296, 305-06, cert. denied, 528 U.S. 973, 145 L. Ed. 2d 326 (1999). If it appears that counsel is reasonably competent and there is no conflict between the attorney and client that renders counsel incompetent, the motion is properly denied. Anderson, 350 N.C. at 167, 513 S.E.2d at 305-06. Our Supreme Court has stated that a disagreement between the defendant and his court-appointed counsel over trial tactics is not sufficient to require the trial court to replace court-appointed counsel with another attorney. State v. Robinson, 290 N.C. 56, 66, 224 S.E.2d 174, 179 (1976).
A defendant may waive his right to appointed counsel and represent himself. State v. Carter, 338 N.C. 569, 581, 451 S.E.2d 157, 163 (1994), cert. denied, 515 U.S. 1107, 132 L.Ed.2d 263 (1995). That waiver, however, must be clear and unequivocal. Id. To be entitled to relief based upon the improper denial of a request to represent oneself, a defendant must show that he was materially prejudiced by denial of his request, i.e., he must show that he received ineffective assistance of counsel. State v. Cole, 343 N.C. 399, 411, 471 S.E.2d 362, 367 (1996), cert. denied, 519 U.S. 1064, 136 L. Ed. 2d 624 (1997).
Again, the instant case had been pending for almost a year, and was the subject of a speedy trial motion. The trial court twice inquired into Defendant's dissatisfaction with court-appointed counsel. Defendant mentioned the fact that counsel had only visited him three times since being appointed just two months previously. Defendant was also unhappy that counsel reminded him of the State's plea offer just prior to trial. Defendant believed that counsel was not acting in his best interests in reminding him about the State's plea offer. Nothing in the record shows the requisite conflict between counsel and Defendant that would render counsel incompetent. Indeed, the record tends to show a mere disagreement involving the approach to defending against the present charges. See Robinson, 290 N.C. at 66, 224 S.E.2d at 179 (stating that disagreement over trial tactics generally does not render the assistance of the counsel ineffective). Notably, after proceeding to trial after his requests for substitute counsel had been denied, Defendant pled guilty to misdemeanor driving while license revoked, and admitted to having attained habitual felon status — each time noting, while under oath, his satisfaction with appointed counsel. We, therefore, reject Defendant's argument that the trial court erred in denying his motion to discharge appointed counsel.
As to Defendant's request to represent himself, we note that the transcript pages cited by Defendant fail to show a "clear and unequivocal" request in that regard. Moreover, on this record, Defendant fails to show how he was prejudiced by the trial court's failure to allow him to represent himself. Indeed, the record shows that counsel was most zealous in representing Defendant, despite Defendant's attempts to have him discharged from the case. As Defendant presented no legitimate grounds to have counsel removed from his case, and failed to "clearly and unequivocally" ask the trial court to let him represent himself, Defendant's argument fails.
Finally, Defendant argues that the trial court erred in denying his motion to continue his trial so that he could retain substitute counsel. We are, however, unable to find any motion for continuance made by Defendant in the record on appeal. Accordingly, this matter does not appear to be properly before the Court on appeal. To the extent that the Court could construe Defendant's motion to discharge appointed counsel and obtain substitute counsel as a motion to continue, we conclude that Defendant failed to show that the trial court abused its discretion in failing to continue this matter.
In sum, Defendant's case had been pending for almost a year and was the subject of a speedy trial motion. Moreover, Defendant's motions were made on the day of trial, and he gave no reason for not making his motion to discharge counsel beforehand. State v. Searles, 304 N.C. 149, 155, 282 S.E.2d 430, 434 (1981) (upholding the trial court's denial of the defendant's motion to continue because the "defendant's oral motion . . . made on the date set for trial, was not supported by some form of detailed proof indicating sufficient grounds for further delay"). Finally, the reasons that Defendant gave for discharging appointed counsel were not sufficient to entitle him to the requested relief. See State v. McCullers, 341 N.C. 19, 32, 460 S.E.2d 163, 170 (1995) ("`[C]ontinuances should not be granted unless the reasons therefor are fully established. Hence, a motion for a continuance should be supported by an affidavit showing sufficient grounds.'" (citations omitted)).
Having so concluded, we hold that Defendant received a fair trial, free from prejudicial error.
No error.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).