STATE OF NORTH CAROLINA
v. Durham County
Nos. 98 CRS 38495
99 CRS 18397
JAMES GORDON JONES
Attorney General Roy Cooper, by Assistant Attorney General
Robert M. Curran, for the State.
Paul Pooley, for defendant-appellant.
CAMPBELL, Judge.
Defendant was indicted for possession of heroin with intent to
sell or deliver within 300 feet of school property in violation of
N.C. Gen. Stat. §§ 90-95(a)(1) and 90-95(e)(8), and resisting a
public officer in violation of N.C. Gen. Stat. § 14-223. In a
separate indictment, defendant was charged with being an habitual
felon in violation of N.C. Gen. Stat. § 14-7.1. Defendant was
tried at the 6 November 2000 Criminal Session of Durham County
Superior Court. Defendant was found guilty of possession of heroin
and resisting a public officer. Following a separate jury
proceeding, defendant was also found guilty of being an habitual
felon. Defendant was sentenced to a minimum of 116 months and amaximum of 149 months in prison.
The State's evidence at trial tended to show that on 15
December 1998 Deputy Raheem Abdul Aleem (“Deputy Aleem”) and
Sergeant D.J. O'Mary (“Sergeant O'Mary”) of the Durham County
Sheriff's Department were engaged in drug interdiction efforts in
an area around Burton Elementary School (“the school”) known for
its high level of drug trafficking. Sergeant O'Mary approached
several individuals in a park near the school, while Deputy Aleem
watched from across the park. Deputy Aleem observed defendant
walking in the direction of Sergeant O'Mary. Deputy Aleem saw
defendant stop walking, take something from his pocket, bend down
to the ground, drop the item from his pocket, cover the item, and
then resume walking towards Sergeant O'Mary. Deputy Aleem then
approached defendant and asked if he had any drugs. Defendant
answered that he did not and consented to being searched by Deputy
Aleem. Deputy Aleem's search of defendant did not uncover any
drugs.
Defendant then accompanied Deputy Aleem to the area of the
park where defendant had dropped the item from his pocket. As
Deputy Aleem bent over to pick up what appeared to be a paper bag,
defendant pushed him and ran away. Deputy Aleem pursued defendant
but was unable to catch him. Deputy Aleem and Sergeant O'Mary then
retrieved the paper bag, which contained what was later determined
to be 0.5 grams of heroin. Deputy Aleem testified that the heroin
was found within 300 feet of the school's property line.
In the habitual felon proceeding, the State's evidence tendedto show that defendant had prior felony convictions for larceny
from the person, possession of cocaine with intent to sell or
deliver, and possession of heroin.
We first note that several of defendant's assignments of error
are not presented and discussed in his brief, and are thus deemed
abandoned pursuant to N.C. R. App. P. 28(a).
Defendant's first contention is that the trial court erred in
instructing the jury on possession of heroin with intent to sell or
deliver and simple possession of heroin. Defendant maintains that
he waived his right to have the trial court submit these lesser
included offenses to the jury, and that the trial court was
required to honor this waiver and only submit to the jury the
greater offense charged in the indictment, which was possession of
heroin with intent to sell or deliver within 300 feet of school
property. Defendant's argument lacks merit.
In determining whether to charge the jury on lesser included
offenses, the trial judge must make two determinations. “The first
is whether the lesser offense is, as a matter of law, an included
offense of the crime for which defendant is indicted.” State v.
Thomas, 325 N.C. 583, 590, 386 S.E.2d 555, 559 (1989). The
pertinent statute, N.C. Gen. Stat. § 15-170, provides:
Upon the trial of any indictment the
prisoner may be convicted of the crime charged
therein or of a less degree of the same crime,
or of an attempt to commit the crime so
charged, or of an attempt to commit a less
degree of the same crime.
N.C.G.S. § 15-170 (2000). Under N.C.G.S. § 15-170, the rule in
this jurisdiction has long been as follows: “When a defendant is indicted for a criminal
offense, he may be convicted of the charged
offense or a lesser included offense when the
greater offense charged in the bill of
indictment contains all of the essential
elements of the lesser, all of which could be
proved by proof of the allegations in the
indictment.”
State v. Hudson, 345 N.C. 729, 732-33, 483 S.E.2d 436, 438-39
(1997) (citations omitted). The second determination to be made
“is whether there is evidence in the case which will support a
conviction of the lesser included offense.” Thomas, 325 N.C. at
591, 386 S.E.2d at 559. It is settled that a defendant is entitled
to have the jury consider all lesser included offenses supported by
the indictment and raised by the evidence. See id.
Defendant in the instant case was indicted for possession with
intent to sell or deliver heroin within 300 feet of school
property. The essential elements of the lesser offenses that were
submitted to the jury--possession of heroin with intent to sell or
deliver and simple possession of heroin--are clearly contained
within the offense charged in the indictment. Therefore, these
lesser offenses are, as a matter of law, lesser included offenses
of the crime for which defendant was indicted. Further, defendant
does not argue that the evidence in this case is insufficient to
support a conviction for the lesser included offenses submitted to
the jury. Thus, we conclude that defendant was entitled to have
the jury consider the lesser included offenses submitted by the
trial court.
Nonetheless, defendant contends that he knowingly,
intelligently, and voluntarily waived his right to have the juryinstructed on lesser included offenses by requesting that those
instructions not be given, and that his right to not have the jury
instructed on lesser included offenses was abridged by the trial
court when it instructed the jury on possession of heroin with
intent to sell or deliver and simple possession of heroin. In
support of the proposition that a defendant has a right to not have
the jury instructed on lesser included offenses raised by the
evidence, defendant relies on State v. Sierra, 335 N.C. 753, 440
S.E.2d 791 (1994), State v. Williams, 333 N.C. 719, 430 S.E.2d 888
(1993), State v. Robinson, 115 N.C. App. 358, 444 S.E.2d 475
(1994), and State v. Liner, 98 N.C. App. 600, 391 S.E.2d 820
(1990).
However, the cases cited by defendant do not support the
proposition that a defendant has a right to not have lesser
included offenses raised by the evidence submitted to the jury.
Rather, Sierra, Williams, Robinson, and Liner, all stand for the
following proposition:
[A] defendant who knowingly, intelligently,
and voluntarily waives his right to have the
trial judge submit to the jury possible
verdicts of lesser included offenses and
instructions thereon may not thereafter assign
as error on appeal the judge's failure to
submit such possible verdicts of lesser
included offenses even though the evidence at
trial gave rise to possible verdicts of lesser
included offenses.
Liner, 98 N.C. App. at 609, 391 S.E.2d at 825 (emphasis added); see
also N.C. Gen. Stat. § 15A-1443(c) (2000) (“A defendant is not
prejudiced . . . by error resulting from his own conduct.”). This
proposition, and the cases in support thereof cited by defendant,do not compel the conclusion that a defendant has a right to not
have lesser included offenses raised by the evidence submitted to
the jury.
Defendant has failed to present any authority to support the
proposition that a defendant has a right to avoid instructions on
lesser included offenses raised by the evidence. Likewise, our
research has failed to disclose any case law or statutory authority
for that proposition. Therefore, we conclude that a defendant has
no such right. Accordingly, we conclude that the jury was properly
instructed on the lesser included offenses of possession of heroin
with intent to sell or deliver and simple possession of heroin.
Defendant's first assignment of error is overruled.
Defendant next contends that he was denied the right to
proceed pro se due to the trial court's failure to conduct a
hearing pursuant to N.C. Gen. Stat. § 15A-1242 to determine whether
defendant wished to represent himself after defendant stated to the
court that he was dissatisfied with his court-appointed attorney.
Based on the record summarized below, we find that defendant did
not clearly and unequivocally request to proceed pro se. Having
failed to properly assert the right to represent himself, defendant
cannot successfully claim that he was denied that right.
The record discloses several occasions during the course of
defendant's trial where defendant expressed disagreement or
dissatisfaction with the representation being provided by his
court-appointed attorney, Ms. Williams. At the close of cross-
examination of one of the State's witnesses, defendant interruptedhis attorney, and indicated that there were further questions that
needed to be asked of the witness. The trial court removed the
jury from the courtroom, and following a discussion with defendant
and counsel, the trial court offered defendant the choice of
representing himself or proceeding with his attorney. Defendant
responded, “I want Ms. Williams to represent me.”
Later in the trial the following exchange took place between
the trial court and defendant outside the presence of the jury:
THE COURT: Now, let me just ask this. There
was some disagreement between you and your
lawyer, but it appears that you have been
talking in a civilized tone to her and
apparently she has responded by asking
questions after you converse with her. Are
you satisfied with her legal services at this
point?
[DEFENDANT]: I have always basically been
satisfied.
THE COURT: You've always been basically
satisfied with Ms. Williams' legal services,
is that correct?
[DEFENDANT]: Yes.
During jury deliberations, defendant asked to be heard by the
trial court concerning Ms. Williams' potential representation of
him on appeal. During this exchange, defendant told the court,
“She ain't doing what she should be doing to help me.” Following
the jury's verdict, defendant again asked to be heard, and the
following exchange took place:
THE COURT: Now, you have complained about Ms.
Williams several times during this trial. So,
for the record, are you satisfied with her
services or not satisfied?
[DEFENDANT]: No, sir, I'm not satisfied.
The trial court responded by finding that Ms. Williams had provided
defendant with effective representation. The judge then questioned
defendant whether he requested a jury trial on the habitual felon
charge, and whether he wished to testify in the habitual felon
proceeding. The trial court requested a member of the public
defender's staff, “as a friend of the Court,” to accompany
defendant and Ms. Williams to a conference room to discuss
defendant's options for the habitual felon proceeding.
After two or three minutes, during which the court heard
defendant “cursing and using foul language,” defendant was brought
back into the courtroom and asked how he wished to proceed.
Defendant requested a jury trial on the habitual felon charge and
attempted to address the court concerning the disagreement between
he and his attorney in the conference room. The court warned
defendant not to disrupt the court once the jury returned or he
would be chained down with his mouth taped shut.
Defendant asserts that his statement that he was not satisfied
with his attorney constituted a clear and unequivocal request to
represent himself, and in order to protect his right to proceed pro
se the trial court was required to advise him of that right and
ascertain whether he wished to exercise it by following the
procedures outlined in N.C. Gen. Stat. § 15A-1242. In the
alternative, defendant suggests that he was prevented from making
an unequivocal request to represent himself because the court
ordered him silenced. A criminal defendant has a federal constitutional right to the
assistance of counsel in his defense, which implicitly includes the
right to refuse the assistance of counsel and to conduct his own
defense. State v. Johnson, 341 N.C. 104, 110, 459 S.E.2d 246, 249
(1995) (citing Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d
562 (1975)). In North Carolina, this right of self-representation
is also guaranteed by Article I, Section 23 of the North Carolina
Constitution and by N.C.G.S. § 15A-1242. State v. Legrande, 346
N.C. 718, 725, 487 S.E.2d 727, 730 (1997). “If a defendant desires
to proceed pro se, he or she may not be forced to accept
representation by unwanted counsel.” Johnson, 341 N.C. at 110, 459
S.E.2d at 250.
N.C.G.S. § 15A-1242 sets forth the prerequisites necessary
before a defendant may waive his constitutional right to counsel
and represent himself at trial as follows:
A defendant may be permitted at his
election to proceed in the trial of his case
without the assistance of counsel 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 (2000).
However, a formal hearing in accordance with N.C.G.S. § 15A-
1242 is not required whenever a defendant indicates to the trial
court that he is dissatisfied with his counsel. State v. Gerald,
304 N.C. 511, 519, 284 S.E.2d 312, 317 (1981). Unlike the right to
counsel, the right to self-representation does not arise until
asserted. State v. Williams, 334 N.C. 440, 454, 434 S.E.2d 588,
596 (1993), vacated on other grounds, North Carolina v. Bryant, 511
U.S. 1001, 128 L. Ed. 2d 42 (1994). To properly assert the right
to self-representation, the defendant must “clearly and
unequivocally” request to represent himself. Id. (quoting Faretta,
422 U.S. at 835, 45 L. Ed. 2d at 582). In Gerald, the Supreme
Court stated:
that although the better practice when a
defendant indicates problems with his counsel
is for the court to inquire whether defendant
wishes to conduct his own defense, it is not
reversible error for the court not to do so
when there has been no intimation that
defendant desired to represent himself. Each
case, therefore, must be considered on its own
merits.
Gerald, 304 N.C. at 518, 284 S.E.2d at 317. “Only if a defendant
clearly expresses his desire to have counsel removed and to proceed
pro se is the trial court obligated to make further inquiry
pursuant to N.C.G.S. § 15A-1242 to determine if defendant
understands the consequences of his decision and voluntarily and
intelligently wishes to waive his right to the representation of
counsel.” Johnson, 341 N.C. at 111, 459 S.E.2d at 250. In the
absence of a clear expression by the defendant of a desire to
proceed pro se, a trial judge faced with a claim of conflictbetween defendant and his attorney “must determine only that the
defendant's present counsel is able to render competent assistance
and that the nature of the conflict will not render such assistance
ineffective.” Id.
In the instant case, defendant never requested that he be
allowed to represent himself at trial. While defendant expressed
disagreement with his attorney on multiple occasions during the
course of the trial, and indicated after the jury returned its
verdict that he was not satisfied with her services, at no time did
he request that Ms. Williams be removed from his case and that he
be allowed to represent himself. Thus, the trial court's
determination that defendant's counsel had provided competent
assistance was sufficient. Under the facts of this case, no
further inquiry was necessary. None of the factors that would
trigger a hearing in accord with N.C.G.S. § 15A-1242 were present.
We also find no merit in defendant's contention that the trial
court prevented him from making an unequivocal request to represent
himself by ordering him to be silent when the jury returned to the
courtroom. Based on the foregoing, defendant's assignment of error
is overruled.
In his last argument, defendant contends that the trial court
erred in denying his motion to dismiss the charge of possession of
heroin with intent to sell or deliver within 300 feet of school
property. Defendant asserts that the State failed to present
substantial evidence that defendant's alleged possession of heroin
occurred within 300 feet of school property. In ruling on a motion to dismiss, the question for the trial
court is whether there is substantial evidence (a) of each
essential element of the offense charged, or of a lesser offense
included therein, and (b) of the defendant's being the perpetrator
of the offense. State v. Bruce, 315 N.C. 273, 281, 337 S.E.2d 510,
515 (1985). “The trial court is to view all of the evidence in the
light most favorable to the State and give the State all reasonable
inferences that may be drawn from the evidence supporting the
charges against the defendant. Id.
We first note that although defendant was charged with
possession of heroin with intent to sell or deliver within 300 feet
of school property, he was actually convicted of simple possession
of heroin. Thus, any alleged error in denying defendant's motion
to dismiss was harmless.
In order to uphold the trial court's denial of defendant's
motion to dismiss, we need only find substantial evidence of the
crime charged in the indictment or a lesser included offense of the
crime charged. See N.C.G.S. § 15-170 (“Upon the trial of any
indictment the prisoner may be convicted of the crime charged
therein or of a less degree of the same crime . . . .”). As we
earlier stated, possession of heroin is a lesser included offense
of possession of heroin with intent to sell or deliver within 300
feet of school property. “'Felonious possession of a controlled
substance has two essential elements. The substance must be
possessed and the substance must be knowingly possessed.'” State
v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985) (quotingState v. Rogers, 32 N.C. App. 274, 278, 231 S.E.2d 919, 922
(1977)). The record here shows that Deputy Aleem saw defendant
place an object on the ground. When Deputy Aleem picked up the
object, it contained a substance later determined to be heroin.
Thus, there is substantial evidence that defendant knowingly
possessed heroin. Accordingly, defendant's motion to dismiss was
properly denied.
For the foregoing reasons, we find no error in defendant's
trial. However, we do find a clerical error in defendant's
judgment that needs to be corrected. The judgment incorrectly
indicates that defendant was convicted of sale or delivery of a
controlled substance within 300 feet of school property, a Class E
felony. In fact, defendant was convicted of possession of heroin
in violation of N.C.G.S. § 90-95(a)(3), a Class I felony. Since
defendant was sentenced as an habitual felon, this amendment to the
judgment does not require a new sentencing hearing, only a
correction of the clerical error.
No error at trial; remanded for correction of clerical error.
Chief Judge EAGLES and Judge McCULLOUGH concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***