STATE OF NORTH CAROLINA
Martin County
v. Nos. 00 CRS 3835
01 CRS 379
DONNELL PITTMAN 01 CRS 1949
Attorney General Roy Cooper, by Special Deputy Attorney
General Norma S. Harrell, for the State
Paul T. Cleavenger for defendant-appellant.
EAGLES, Chief Judge.
Donnell Pittman (“defendant”) appeals from judgments entered
on jury verdicts finding him guilty of first degree murder, robbery
with a dangerous weapon, felonious breaking and entering of a motor
vehicle, and misdemeanor larceny. After careful review of the
briefs and record, we discern no error.
The State's evidence tended to show that on 11 December 2000,
Don Milton Baker (“the victim”) was found dead in his home. The
cause of death was determined to be a stab wound to the neck that
penetrated the jugular vein. The victim also suffered from several
other stab wounds, abrasions and incisions. The victim's blood was
found throughout his home, including bloodstains and smears on thefloor all around him, the interior side of the doorknob on the
kitchen door which lead out of the house, the curtain on the door,
the stove, kitchen table, refrigerator, television and washing
machine. Also found were several shoe impressions which appeared
to be in blood. Police also recovered a blood stained hammer.
Another hammer and a knife were found on the couch near the victim.
Finally, police recovered two plastic bottles from the top of the
television set which contained remnants of a white powder later
determined to be cocaine.
Later that evening defendant turned himself in to police and
handed the police a written statement. Defendant wrote that he had
gone to the victim's home and that once inside, the victim grabbed
half of a bat and swung it at him. Defendant was able to catch
part of the bat with his hand and the victim swung again.
Defendant stated that he grabbed a hammer off the table and hit the
victim with it but the victim kept swinging the bat. Defendant hit
the victim several more times with the hammer before grabbing a
knife off the table and swinging it at the victim. Defendant wrote
that he hit the victim in the neck area and then the victim fell.
Defendant got scared, grabbed the victim's car keys and drugs off
of a table, and drove away in the victim's car. Defendant claimed
that the victim attacked him because he owed the victim $80 from a
previous drug purchase. When defendant was arrested, investigators
noticed that defendant's shoes had blood on them. The blood was
later determined to be that of the victim. Defendant gave another statement to investigators on 12
December 2000. Defendant again claimed that the victim had swung
a bat at him. Defendant claimed that he swung at the victim twice
with a knife and hit the victim in the head with a hammer while
defending himself. Defendant claimed that the victim fell when
defendant struck him in the throat with the knife. Defendant
stated that he then sat in a chair for several minutes before
taking the victim's car keys and driving away. Defendant also took
$200 to $300 worth of “crack rocks” from plastic bottles in the
victim's house.
On 25 June 2001, defendant was indicted for the murder of Don
Milton Baker, robbery with a dangerous weapon, felonious breaking
and entering of a motor vehicle, and misdemeanor larceny. The case
was tried at the 29 October 2001 Criminal Session of Martin County
Superior Court. On the day of trial, defendant asked the trial
court to continue his case for the term because he felt that his
lawyer was not “representing me to the best of my interests.”
Defendant complained that counsel had not adequately investigated
his case, contested his hiring of a private investigator, and had
discussed his case with another lawyer. Counsel denied the charges
although he admitted discussing the case with another lawyer
without violating defendant's confidentiality. Counsel stated that
he was aware of defendant's dissatisfaction and informed defendant
that he had the right to hire a new lawyer. Counsel stated that he
advised defendant that it was “highly unlikely at this stage of the
proceedings for another lawyer to be appointed.” Counsel furtherstated that he was unaware of any efforts by defendant to retain
new counsel. Counsel indicated he was prepared to try the case.
The trial court denied defendant's motion for a continuance.
The jury returned guilty verdicts on all charges. The trial
court entered judgment and sentenced defendant to life imprisonment
without parole for the first degree murder conviction.
Additionally, defendant was sentenced to consecutive terms of 103
to 133 months for the robbery conviction and six to eight months
imprisonment for the breaking and entering and misdemeanor larceny
convictions. Defendant appeals.
On appeal, defendant contends that the trial court erred: by
arraigning him on the same day as his trial; by denying his motion
for a continuance; and in denying his motion to dismiss for
insufficiency of the evidence. Defendant also contends that he
received ineffective assistance of counsel. After careful
consideration of the briefs and record, we discern no error.
Defendant first argues that the trial court erred by
arraigning him on the same day as his trial in violation of G.S. §
15A-943. However, G.S. § 15A-943 applies specifically to counties
“in which there are regularly scheduled 20 or more weeks of trial
sessions of superior court at which criminal cases are heard, and
in other counties the Chief Justice designates.” G.S. § 15A-
943(a). We take judicial notice that Martin County is not a county
that regularly schedules twenty or more weeks of criminal sessions
a year, thereby making this statute inapplicable. See State v.
Sellars, 52 N.C. App. 380, 388, 278 S.E.2d 907, 914 (takingjudicial notice that Chatham County did not meet criteria of G.S.
§ 15A-943), disc. review denied and appeal dismissed, 304 N.C. 200,
285 S.E.2d 108 (1981). Accordingly, the assignment of error is
overruled.
We next consider whether defendant received ineffective
assistance of counsel and whether the trial court erred by denying
his motion for a continuance. Defendant sought a continuance
before the trial because he felt counsel was not representing his
best interests. Specifically, defendant complained that counsel
had not adequately investigated the case and had discussed the case
with another attorney which violated his right to confidentiality.
Defendant contends that counsel argued against the motion to
continue the case, stating that he was prepared to proceed with the
trial. Thus, defendant contends that the trial court should have
continued the case to consider whether new counsel should have been
appointed. Defendant asserts that he was prejudiced by having to
go to trial with an attorney who he had attempted to discharge but
had refused to withdraw. We are not persuaded.
This Court has stated:
A trial court's ruling on a motion to
continue ordinarily will not be disturbed
absent a showing that the trial court abused
its discretion, but the denial of a motion to
continue presents a reviewable question of law
when it involves the right to effective
assistance of counsel.
In re Bishop, 92 N.C. App. 662, 666, 375 S.E.2d 676, 679 (1989).
Here, defendant argues that the issue presents a question of law
because he did not receive effective assistance of counsel. Specifically, defendant contends that it was clear that he was
dissatisfied with counsel, noting that he and counsel were arguing
against each other when counsel should have been supporting his
motion for a continuance. However, defendant was not entitled to
a continuance. The bases for defendant's dissatisfaction with
counsel were general and unsupported allegations that counsel was
not acting in defendant's best interests. “Nothing in the record
indicates that [counsel] was not qualified to represent defendant
in this case. Nor is there any evidence that [counsel] did not
serve as a zealous advocate for defendant throughout the entire
time in which he represented [him].” State v. Anderson, 350 N.C.
152, 167, 513 S.E.2d 296, 306, cert. denied, 528 U.S. 973, 145 L.
Ed. 2d 326 (1999). Furthermore, we note that “a defendant does not
'have the right to insist that new counsel be appointed merely
because he has become dissatisfied with the attorney's services.'”
Id. at 167-68, 513 S.E.2d at 306 (quoting State v. Hutchins, 303
N.C. 321, 335, 279 S.E.2d 788, 797 (1981)). Additionally,
“'[w]hile it is a fundamental principle that an indigent defendant
in a serious criminal prosecution must have counsel appointed to
represent him, an indigent defendant does not have the right to
have counsel of his choice appointed to represent him.'” Id. at
166-67, 513 S.E.2d at 305 (citation omitted) (emphasis in original)
(quoting State v. Thacker, 301 N.C. 348, 351-52, 271 S.E.2d 252,
255 (1980)).
Furthermore, defendant has failed to show how “he was
materially prejudiced by the denial of his motion.” State v.Covington, 317 N.C. 127, 130, 343 S.E.2d 524, 526 (1986). Counsel
indicated he was prepared to proceed to trial and defendant cites
no error by counsel “so serious as to deprive the defendant of a
fair trial.” State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241,
248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80
L. Ed. 2d 674, 693 (1984)). Accordingly, we conclude that the
trial court did not err by denying the motion for continuance and
defendant received effective assistance of counsel.
Defendant finally argues that there was insufficient evidence
to support the conviction. Defendant contends that the State
failed to prove the specific intent necessary to convict him of
first degree murder. Although the State relied on the “felled
victim” theory, defendant argues that while the victim received a
number of wounds, they were superficial and not life threatening.
Furthermore, there was no evidence that defendant continued the
attack after the fatal wound was inflicted. Defendant additionally
argues that the evidence did not support a conviction under the
felony murder rule because the evidence shows that he formulated
the decision to search for the drugs only after the fight had
occurred, not before. Thus, defendant asserts that the evidence
shows that he was not engaged in a robbery when the victim was
killed. We are not persuaded.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434
(1997). “'Substantial evidence is relevant evidence that areasonable mind might accept as adequate to support a conclusion.'”
Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C.
557, 564, 411 S.E.2d 592, 595 (1992)).
Defendant was charged with first degree murder on the basis of
premeditation and deliberation pursuant to the “felled victim”
theory and the felony murder rule. “'[T]he premise of the “felled
victim” theory of premeditation and deliberation is that when
numerous wounds are inflicted, the defendant has the opportunity to
premeditate and deliberate from one [blow] to the next.'” State v.
Leazer, 353 N.C. 234, 239, 539 S.E.2d 922, 926 (2000) (quoting
State v. Austin, 320 N.C. 276, 295, 357 S.E.2d 641, 653, cert.
denied, 484 U.S. 916, 98 L. Ed. 2d 224 (1987)).
Here, the victim was struck 50 times, including 21 blunt force
injuries and 29 sharp force injuries. Blunt force injuries are
injuries caused by a blunt object striking a body while sharp force
injuries are injuries caused by an object such as a knife. Several
of the victim's injuries were described as “defense wounds” which
resulted from the victim grabbing a sharp instrument. The
existence of “defense wounds” belies defendant's contention that
the victim was wielding a bat because the victim would have to have
his hand free to grab the object. Moreover, no blood was recovered
from the bat found in the victim's residence although blood was
found spattered throughout the home. The bat was found where the
victim kept it hidden which was in a small area wedged between the
refrigerator and the wall. We also note that the victim had
previously suffered a stroke and did not have complete use of hisleft hand or left leg. Additionally, the blows to the head likely
rendered the victim “semiconscious or certainly not as coherent as
they would be were they wide awake.” One of the injuries to the
back of the victim's head was not consistent with an attacker
striking the victim while facing him. Finally, the victim did not
die instantly and prompt medical attention may have saved his life.
See State v. Beck, 346 N.C. 750, 755, 487 S.E.2d 751, 755 (1997)
(leaving the victim to die was evidence of premeditation and
deliberation). Accordingly, in the light most favorable to the
State, a reasonable mind could conclude from this evidence that
defendant murdered the victim with premeditation and deliberation.
Defendant also argued that there was insufficient evidence to
support his first degree murder conviction under the felony murder
rule. We note that the evidence was sufficient to sustain the
conviction on this alternative theory as well. Defendant contends
that the intent to commit robbery must precede the murder. We
disagree. Our Supreme Court has stated:
The evidence is sufficient to support a charge
of felony murder based on the underlying
offense of armed robbery where the jury may
reasonably infer that the killing and the
taking of the victim's property were part of
one continuous chain of events. Neither the
commission of armed robbery . . . nor the
commission of felony murder based on armed
robbery depends upon whether the intention to
commit the taking of the victim's property was
formed before or after the killing. Under
N.C.G.S. § 14-17, a killing is committed in
the perpetration of armed robbery when there
is no break in the chain of events between the
taking of the victim's property and the force
causing the victim's death, so that the taking
and the homicide are part of the same series
of events, forming one continuous transaction.State v. Handy, 331 N.C. 515, 529, 419 S.E.2d 545, 552 (1992)
(citations omitted) (emphasis added). Thus, whether defendant
formed the intent to rob the victim before or after he killed him
is not dispositive. Here, it is undisputed that defendant remained
in the victim's home after killing him, and then stole his drugs,
took his keys and drove away in the victim's car. Accordingly, in
the light most favorable to the State, a jury could properly infer
that the killing and the robbery were part of one continuous
transaction.
No error.
Judges McCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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