A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-706


Filed: 21 May 2002


v .                         Guilford County
                            Nos. 99 CRS 109266-69

    Appeal by defendant from judgments entered 15 June 2000 by Judge W. Douglas Albright in Guilford County Superior Court. Heard in the Court of Appeals 13 May 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for the State.

    Walter L. Jones for defendant-appellant.

    TYSON, Judge.

I. Facts

    The Guilford County grand jury indicted Ronny McNair a/k/a/ John Wilson (“defendant”) on charges of conspiracy to traffic in cocaine by possession, trafficking in cocaine by manufacturing, trafficking in cocaine by transportation, trafficking in cocaine by possession, and possession with intent to sell/deliver cocaine on 13 December 1999. A jury found defendant guilty of all five offenses on 15 June 2000. After consolidating two of the convictions for judgment, the trial court imposed four consecutive sentences of 175 to 219 months imprisonment. Defendant appeals.
    At the calendar call on 5 June 2000, T. O. Stokes, defendant's attorney, made a verbal motion to make a general appearance and toobtain a continuance. Defendant also sought to discharge his two privately-retained counsels. Following a hearing on the motions for 9 June 2000, the trial court found that:
    5. Attorneys [Don] Vaughan and [J. Darren] Byers have been heretofore privately retained by the defendant and have been actively engaged in the preparation of the defendant's case for trial . . . .

    6. The scheduling of this case for trial at this session has been long determined and is in no way a sudden surprise or mystery to any person. . . .
    7. Mr. Stokes had conversations sometime around mid May with the District Attorney and counsel about entering the case for either codefendant Bastian or for this defendant. Nothing came of that declared possibility until the calendar was published and the calendar call for this session was had on Monday, June 5, 2000, at which time Mr. Stokes appeared and made a verbal motion that he be permitted to enter the case by way of a general appearance, and further that the case be continued from the calendar.

    8. Inasmuch as the said motion was not in writing, was not in compliance with Chapter 15A of the General Statutes of North Carolina or in compliance with the local continuance policy, said motion was not well received by the Court, but out of respect for Mr. Stokes the Court scheduled a hearing on the matter so that due attention and appropriate consideration could be had and that hearing took place on June 9 as indicated.

    9. The defendant was permitted to address the Court and indicated to the Court that his family had hired new counsel and that he felt he could get “better representation” from the new attorney, and “feels” that he wants a new lawyer.

    10. Mr. Stokes indicated that he was not prepared to try the case, but nonetheless wanted to enter a general appearance and obtain a continuance.
    After finding that Mr. Vaughan and Mr. Byers were able and experienced attorneys who had been actively engaged in representing defendant over a period of months, and that Mr. Vaughan was ready to present defendant's case, the trial court found that Mr. Stokes,while also an able and experienced attorney, was not ready to try the case. The trial court found that allowing Mr. Stokes to enter the case would cause inordinate delay of the trial and the sentencing of other codefendants. Upon finding the motion was made irregularly and for the purpose of delay, the trial court denied the motion for a continuance and denied the motion to discharge Mr. Vaughan and Mr. Byers and to substitute Mr. Stokes. Because Mr. Stokes had indicated he was not prepared to try the case, the trial court denied his motion to enter a general appearance. In its discretion, the trial court indicated it would “permit Mr. Stokes to appear and participate together with Attorneys Vaughan and Byers in the trial of this case.”
    At trial the State presented evidence tending to show a drug interdiction unit approached five individuals as they disembarked from a flight from Atlanta on 24 November 1999. One individual had cocaine taped under her sweatshirt. A second individual fled on foot, and police found him without his shirt in a wooded area. Police subsequently discovered his shirt in the woods with cocaine, ace bandages, and duct tape. A third individual, Gary Sweeting (Sweeting), had cocaine taped to his lower legs. Although an officer searched defendant's bag, he did not search defendant because he was needed to chase the second individual. A chemist from the State Bureau of Investigation testified the seized cocaine had a weight of 8.4 pounds. Police arrested all five individuals.
    The State asked Sweeting, a codefendant and State's witness, on direct examination about the terms of his plea agreement. Sweeting agreed that he had pled guilty to five felonies with sentences totaling in excess of 900 months imprisonment. In return for providing substantial assistance in the subsequent trials of his codefendants, Sweeting would be sentenced to the judgment of the trial court. Sweeting thereafter testified that he and defendant were friends, and when requested by defendant, Sweeting would find individuals to take the drugs. He described the events leading up to his and defendant's arrest on 24 November 1999.
    During cross-examination, defendant asked Sweeting if he had “worked out a deal and a plea agreement[.]” Sweeting admitted pleading guilty, but stated “[i]t didn't sound like a deal to me.” When defendant asked if Sweeting had cocaine strapped to his body on the date in question, Sweeting stated that he did. He admitted having a 1992 conviction for another drug offense. When defendant asked if it would help Sweeting if defendant was convicted in this matter, Sweeting replied, “I don't know. I don't know.”
    During testimony by Detective Richard Melton (“Detective Melton”), the trial court asked if Detective Melton was familiar with the street value of cocaine and if he had an opinion as to the street value of the cocaine contained in the State's exhibits. Detective Melton stated in his opinion the cocaine had a value of “anywhere from a million to a million and a half.” The State then resumed its direct examination and asked additional questions as to the basis for Detective Melton's opinion of the cocaine's value. Defendant did not object during the trial court's questions or during the State's additional questions as to the cocaine's value. Defendant presented no evidence.
II. Issues

A. Ineffective Assistance of Counsel

    Defendant first contends he received ineffective assistance of counsel. He argues his trial counsel failed to conduct a meaningful cross-examination of Gary Sweeting, whom he describes as the only witness who offered direct evidence of his guilt.
    “Ineffective assistance of counsel claims are 'not intended to promote judicial second-guessing or questions of strategy as basic as the handling of a witness.'” State v. Pennell, 54 N.C. App. 252, 263, 283 S.E.2d 397, 404 (1981) (quoting Sallie v. North Carolina, 587 F.2d 636, 640 (4th Cir. 1978), cert. denied, 441 U.S. 911, 60 L. Ed. 2d 383 (1979)), appeal dismissed and disc. review denied, 304 N.C. 732, 288 S.E.2d 804 (1982). “'[T]he decisions on what witnesses to call, whether and how to conduct cross-examination, . . . and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.' Trial counsel are necessarily given wide latitude in these matters.” State v. Milano, 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979) (emphasis added) (citation omitted), overruled on other grounds by State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983).
    During defense counsel's cross-examination of Sweeting, he elicited that Sweeting had a plea arrangement with the State, that he had cocaine strapped on his body on the date in question, and that he had a 1992 conviction for another drug offense. Given thewide latitude accorded to counsel in conducting cross-examination, we conclude the lack of an explicit reference to substantial assistance during the cross-examination did not render defense counsel's assistance constitutionally defective. See State v. Montford, 137 N.C. App. 495, 503, 529 S.E.2d 247, 253, cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000); see also State v. Seagroves, 78 N.C. App. 49, 54, 336 S.E.2d 684, 688 (1985) (holding no ineffective assistance when defense counsel did not cross- examine a guard as to prior inconsistent statements), disc. review denied, 316 N.C. 384, 342 S.E.2d 905 (1986). Defendant has therefore failed to establish the deficient performance prong of the test for ineffective assistance of counsel. See State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). This assignment of error is overruled.
B. Court's Questioning of Witness

    Defendant next contends the trial court committed reversible error by conducting his own examination of a witness for the State. He argues the trial court's questions as to the street value of the cocaine placed irrelevant and inflammatory information before the jury. However, defendant has not preserved this question for appellate review, for he did not present the trial court with “a timely request, objection or motion” or obtain a ruling on such a request. N.C.R. App. P. 10(b)(1) (2001); see State v. Moore, 132 N.C. App. 197, 200-01, 511 S.E.2d 22, 25, disc. review denied and appeal dismissed, 350 N.C. 103, 525 S.E.2d 469 (1999). Nor did defendant “specifically and distinctly” contend in his assignmentof error that this judicial action amounted to plain error. N.C.R. App. P. 10(c)(4) (2001). Accordingly, defendant has waived even plain error review. See Moore, 132 N.C. App. at 201, 511 S.E.2d at 25.
C. New Counsel and Continuance

    In his final argument, defendant contends the trial court committed reversible error by refusing both to allow him to discharge his two attorneys of record and to allow new counsel to appear in the case.
    At the calendar call on 5 June 2000, defendant's new counsel, Mr. Stokes, sought to make a general appearance in the case. He indicated to the trial court that he was not prepared to try the case and requested a continuance. The trial court found that: (1) Mr. Vaughan had been actively engaged in representing defendant since his arraignment in January of 2000; (2) defendant had not demonstrated any deterioration of relationship with his two counsel of record; (3) defendant had not shown that his two counsel of record could not provide effective representation; and (4) Mr. Stokes' verbal motion for continuance was not in compliance with the statutory requirements or the local continuance policy. On the basis of these and other findings of fact, the trial court concluded defendant had failed to demonstrate good cause to discharge his attorneys of record and to substitute Mr. Stokes. The trial court also denied defendant's motion for continuance. Mr. Stokes indicated he was not prepared to try the case. The trial court denied his motion for a general appearance. In itsdiscretion, however, the trial court permitted Mr. Stokes to appear and participate with defendant's two attorneys of record.
    Defendant attempts to argue the trial court erred by denying his motion for a continuance. That question is not properly before this Court because he did not assign error to the trial court's ruling. N.C.R. App. P. 10(b)(1). We note parenthetically that “[a] defendant's right to select his own counsel cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.” State v. Poole, 305 N.C. 308, 318, 289 S.E.2d 335, 342 (1982)(citation omitted). Defendant's assignment of error is overruled. Defendant has abandoned his remaining assignments of error. See N.C.R. App. P. 28(b)(6) (2001).
    No error.
    Judges GREENE and HUDSON concur.
    Report per Rule 30(e).

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