STATE OF NORTH CAROLINA
v. Guilford County
No. 00 CRS 87331
CHRISTOPHER CHARLES BROWN,
Defendant-Appellant.
Attorney General Roy Cooper, by Assistant Attorney General
Richard J. Votta, for the State.
Walter L. Jones for defendant-appellant.
BRYANT, Judge.
Defendant appeals his conviction for robbery with a firearm.
We find no error.
Sejui D'Almeida testified that he was robbed of his wallet at
gunpoint at an ATM machine on West Market Street in Greensboro,
North Carolina on the night of 25 April 2000. While he was using
the ATM, a car containing three men arrived. Two men stepped out
of the car and waited for him to complete his transaction. As
D'Almeida walked back to his car, the men approached him. One
opened the front passenger's side door to D'Almeida's car and sat
down inside; the second told D'Almeida, “Get in your car. Get in
your car.” When D'Almeida sat down in the driver's seat, the mansitting next to him drew a small black handgun. The man standing
outside by D'Almeida's door demanded D'Almeida's wallet. D'Almeida
surrendered the wallet, and the two men returned to their car.
They followed D'Almeida briefly down West Market Street before
turning left onto Edwardia Street. D'Almeida drove to a
convenience store and called the police.
Greensboro Police Officer Bateman testified that he was
dispatched to respond to D'Almeida's call. D'Almeida told Bateman
that he was robbed by two men in a “white hardtop sport[] utility
vehicle” (SUV). Police soon located a vehicle matching the
description. Bateman drove D'Almeida to Mosby Drive, where he
identified the vehicle and the driver, Aubrey Gorham, as involved
in the robbery. Police found loose .22 caliber bullets and a box
of bullets in the vehicle. Gorham told police that he had recently
dropped off Zavandah Barnes and another man. Police found Barnes
“pacing up and down” on High Point Road approximately fifty yards
from where they had stopped the white vehicle. Defendant was
subsequently found walking in the rain down High Point Road and was
taken into custody. Defendant gave a statement admitting his
participation in the robbery. Specifically, he stated he “came up
behind [D'Almeida] on the driver's side” and asked for his wallet.
He drew police a map to show where he had discarded his handgun,
near Auto Masters on High Point Road. Defendant emphasized to
police that the gun had been unloaded. The following day, police
recovered a silver-colored handgun from the location.
Defendant testified that he, Barnes and Gorham had driven fromDanville, Virginia to Greensboro hoping to borrow rent money from
a friend. Defendant brought his .32 caliber chrome pistol with him
to serve as collateral for the loan. After they were unable to
locate the friend, Barnes informed defendant that they did not have
enough gasoline to make it back home. To resolve this problem,
they decided to commit the robbery. Defendant stated that he and
Gorham had exited their vehicle at the ATM machine and waited for
D'Almeida. Gorham sat down in D'Almeida's passenger seat, while
defendant stood at the driver's side door. Defendant told
D'Almeida, “Calm down. Take a seat[,]” and then demanded his
wallet. He then told D'Almeida to drive away. Defendant insisted
he had left his gun in the SUV during the robbery and that he told
police in his statement that he had not used the gun to rob
D'Almeida. Although defendant did not believe Gorham had a gun, he
admitted he did not see what had transpired in D'Almeida's car.
The State re-called D'Almeida to ask him about the silver-
colored gun. He repeated that the robber who sat down in his
passenger's seat had a black gun. However, he affirmed he had no
doubt that the man had pointed a gun at him. D'Almeida clarified
that he had not seen a gun on the man who stood at his car door and
demanded his wallet.
Defendant first challenges the trial court's denial of
counsel's motion to withdraw and defendant's request for
replacement counsel. In support of his motion to withdraw, counsel
explained to the trial judge that defendant was dissatisfied with
his opinion regarding the likely outcome of a trial. Counselbriefly summarized the State's evidence, including defendant's
inculpatory statement to police and the directions he provided
which led police to his discarded handgun. Despite this evidence,
defendant had rejected counsel's advice to accept a State's offer
to plead guilty in exchange for a mitigated sentence. Counsel
further reported that defendant's father believed his son should be
allowed to plead guilty to common law robbery and receive
probation, rather than active imprisonment. Feeling that counsel
had failed his son, defendant's father lunged at counsel in the
courtroom hallway and had to be restrained. Counsel expressed
concern for his physical welfare if he continued to represent
defendant.
Defendant told the court that he did not believe counsel had
spent sufficient time on his case to successfully “exonerate” him
at trial. When pressed by the court about what information counsel
had failed to learn, defendant explained that he was guilty of
common law robbery but not armed robbery, because he had left his
handgun in the SUV during the incident.
The court denied the motion to withdraw, finding it was
brought “too close in time for trial[.]” The court further found
that counsel was “a capable and competent attorney who zealously
represents his clients.” The court gave defendant the option of
continuing with counsel's representation or dismissing counsel and
representing himself. The court advised defendant against self-
representation but emphasized “that is a right you have to proceed
to trial [by] representing yourself.” Defendant chose to proceedto trial with his counsel. The court ordered defendant's father
not to “threaten, harass, assault or even communicate” with counsel
or come within fifty yards of counsel outside of the courtroom.
An additional disagreement surfaced during the trial when
counsel notified the court, outside the jury's presence, that
defendant wanted to testify. Counsel stated that he had advised
defendant not to testify and expressed to the court his concern
that defendant might not tell the truth. The court explained to
defendant the potential advantages and disadvantages of testifying
but made clear the decision was his. After a recess, defendant
informed the court that he wanted to testify. Counsel performed
both a direct and re-direct examination, allowing defendant both to
deny using his firearm in the robbery and to explain the presence
of the bullets found in the SUV.
In assigning error to the denial of counsel's motion to
withdraw, defendant asserts that counsel's urging of a guilty plea,
his concession that the State had a “slam dunk” case, and his fear
of defendant's father were “entirely inconsistent with the duty of
zealous representation.” Defendant cites counsel's unwarranted
belief that he would commit perjury as evidence of the lack of
communication between them. Finally, he characterizes counsel's
performance at trial as “perfunctor[]y” and concludes that “a bit
more zealous, positive attitude” from counsel might have resulted
in a conviction for the lesser offense of common law robbery.
Under N.C.G.S. § 15A-144 (1999), "[t]he court may allow an
attorney to withdraw from a criminal proceeding upon a showing ofgood cause." However, “[i]n order to establish prejudicial error
arising from the trial court's denial of a motion to withdraw, a
defendant must show that he received ineffective assistance of
counsel.” State v. Thomas, 350 N.C. 315, 328-29, 514 S.E.2d 486,
495, cert. denied by Thomas v. North Carolina, 528 U.S. 1006, 145
L. Ed. 2d 388 (1999). Such a showing requires proof both that
counsel's performance fell below an objective standard of
reasonableness and that this deficiency was so severe as to create
a reasonable probability that it adversely affected the outcome at
trial. See State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d
241, 248 (1985). An indigent defendant's right to appointed
counsel “does not include the right to insist that competent
counsel . . . be removed and replaced with other counsel merely
because the defendant has become dissatisfied with his services.”
State v. Robinson, 290 N.C. 56, 66, 224 S.E.2d 174, 179 (1976). A
disagreement between a defendant and his appointed counsel on
matters of trial tactics does not necessitate counsel's replacement
with a new attorney. Id.
Defendant has failed to establish ineffective assistance by
his appointed counsel. The transcript reflects that counsel was
actively engaged throughout the trial in the face of compelling
evidence of defendant's guilt, including (1) defendant's statement
to police admitting to the robbery and disclosing the location of
his gun, (2) defendant's trial testimony admitting to the robbery,
(3) the police's recovery of defendant's handgun based on a map he
drew the night of the robbery, and (4) D'Almeida's account of beingrobbed at gunpoint by the man seated in his car. Defendant offers
no specific suggestion of how counsel should have conducted his
defense, beyond displaying “a bit more zealous, positive
attitude[.]” By his own admission, defendant's entire defense was
that he did not use his gun and was thus guilty only of common law
robbery. It seems clear from the State's evidence, however, that
defendant was convicted based on Gorham's use of a gun, not his
own. D'Almeida unequivocally testified that the gun was brandished
not by defendant, who stood outside and demanded D'Almeida's
wallet, but by the man who sat in his passenger's seat. Moreover,
D'Almeida insisted that the gun used in the robbery was black, not
silver or chrome as was defendant's gun. As the trial court
instructed the jury, defendant was accountable for Gorham's acts
during the robbery. See State v. Joyner, 297 N.C. 349, 357-58, 255
S.E.2d 390, 395-96 (1979).
Moreover, defendant has not alleged any facts reflecting a
true conflict of interest limiting counsel's ability to represent
him. In State v. Robinson, defense counsel moved to withdraw,
informing the trial court that he believed defendant planned to
call a witness who would offer perjured testimony. The court
denied counsel's motion to withdraw and defendant's numerous
requests for replacement of counsel. Instead, the court allowed
counsel simply to call defendant's witness to the stand without
questioning her. After the witness gave her account of events,
defendant was permitted to conduct a direct examination in
counsel's stead. The Supreme Court upheld the denial of the motionto withdraw and for appointment of new counsel, finding that this
dispute over tactics was a “conflict of wills” not a “conflict of
interest” requiring counsel's replacement. Defendant was awarded
a new trial, however, based on the trial court's failure to give
defendant the option of dismissing his attorney and representing
himself. Robinson, 290 N.C. at 63-64, 66-67, 224 S.E.2d at 175-76,
178-80.
As in Robinson, the disagreements between counsel and
defendant regarding trial strategy did not amount to a conflict of
interest. Although counsel advised defendant to plead guilty, he
honored defendant's wishes to proceed to trial and was actively
engaged in objecting to evidence and in cross-examining the State's
witnesses. Similarly, counsel advised against defendant's desire
to testify but honored his election to do so. As shown by
Robinson, counsel's expression of concern that his client might
give false testimony did not mandate his removal from the case.
The transcript reflects no deficiencies in counsel's representation
in this regard. Although he believed defendant was ill-served by
taking the witness stand, counsel facilitated defendant's testimony
through direct and re-direct examination designed to underscore
defendant's claim that he did not use his gun in the robbery.
Unlike the defendant in Robinson, defendant was given the option of
dismissing his attorney and representing himself.
Contrary to defendant's claim, counsel never conceded
defendant's guilt in any relevant sense. Counsel did not disclose
his opinion of the State's case or concede defendant's guilt to thejury. See State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504,
507-08 (1985), cert. denied by North Carolina v. Harbison, 476 U.S.
1123, 90 L. Ed. 2d 672 (1986). Counsel did encourage defendant to
accept a plea offer prior to trial, believing the State had a “slam
dunk” case. This belief was well-supported by the evidence and was
borne out by the jury's verdict. In offering defendant a candid
assessment of his case, counsel acted well within his role as
advocate.
Finally, counsel's professed concern for his safety based on
the threatening conduct of defendant's father did not, standing
alone, compel his replacement. See Thomas, 350 N.C. at 328-29, 514
S.E.2d at 495. Absent a showing that counsel's concerns left him
unable to carry out his duties in a competent manner, the trial
court did not abuse its discretion by refusing to allow him to
withdraw. Id. As discussed above, nothing in the trial transcript
reflects any constitutional deficiencies in counsel's performance.
we further note that the trial court took decisive action to keep
defendant's father away from counsel.
In his second assignment of error, defendant faults the trial
court for allowing police witnesses to testify about receiving
defendant's name as a possible suspect in the robbery. The State
responds that this evidence was offered not for the truth of the
matter asserted, but to explain the officers' subsequent conduct in
seeking out defendant. Because defendant admitted his
participation in the robbery to the jury from the witness stand,
any error, if any, in admitting the testimony was completelyharmless. See State v. Lloyd, __ N.C. __, __, 552 S.E.2d 596, 618
(2001).
No error.
Judges WYNN and THOMAS concur.
Report per Rule 30(e).
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