An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1060


Filed: 2 September 2003


v .                              Northampton County
                                     No. 01 CRS 51313

    Appeal by defendant from judgment entered 2 May 2002 by Judge J. Richard Parker in Northampton County Superior Court. Heard in the Court of Appeals 3 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Joyce S. Rutledge, for the State.

    Ligon and Hinton, by Lemuel W. Hinton, for defendant appellant.

    McCULLOUGH, Judge.

    The defendant was indicted for first-degree burglary on 18 February 2002 and tried during the 29 April 2002 Term of Criminal Court in Northampton County. The evidence at trial tended to show that around midnight on 19 December 2001, defendant came to the mobile home of Lillie High with a knife and black gloves. Defendant burst through her door and threatened to kill Lillie and her daughter, his estranged wife. At this point Ms. High shot defendant in the arm and defendant ran from the house where he encountered Deputy Sheriff George Reed on his way to the disturbance. Deputy Reed stated he heard shouting and a single shot before he met defendant. Deputy Reed interviewed Ms. High andboth of her daughters, including Peggy Peters, defendant's estranged wife. The daughters corroborated Ms. High's account of the incident. The next day Lt. Stainback of the Roanoke Rapids Police Department, arrested defendant in possession of a knife which was identified by one of the daughters as the knife carried by defendant the previous evening.
    After a jury trial defendant was convicted and sentenced to a minimum term of 133 months and a maximum term of 169 months. From this sentence defendant appeals arguing that the trial court should have allowed his motion to replace his appointed counsel and that the trial court erred in allowing to be admitted into evidence the details of his prior convictions involving past threats to and assaults on Ms. High and his estranged wife. For the reasons set forth herein, we disagree with defendant's contentions and uphold his conviction.

I. Denial of Motion for New Counsel

    Prior to trial the trial court asked whether there were any motions. Defendant stated he wanted to “strip” his appointed lawyer from his case stating:
        Yes, because I -- me and him, like you see, he ain't represent me the best way I know how. And I have that right to have a lawyer to handle my case in a better way. Me and him can't see eye to eye. These are serious allegation. When you consider the allegation, I think by law I have a right to have an attorney that we have eye to eye.

The court responded:

        Well, I've already found Mr. Collins to be an experienced attorney. I've tried some seriouscases with him, I think he's very competent to handle your case and I'm going to deny your motion to have him withdraw.

    While it is true that defendant has a constitutional right to counsel, Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530 (1972), he does not have a right to have counsel of his choice. State v. Flowers, 347 N.C. 1, 489 S.E.2d 391 (1997). There is no right to a continuance on the day of trial to seek other counsel unless there is some valid justification. State v. Hyatt, 355 N.C. 642, 566 S.E.2d 61 (2002), cert. denied, ___ U.S. ___, 154 L. Ed. 2d 823 (2003).
    The right to counsel is not absolute. State v. Hammonds, 105 N.C. App. 594, 414 S.E.2d 55 (1992) (Defendant's complaint that counsel had not spent enough time with defendant and was not concerned about his case does not require the court to appoint new counsel.).
    As our Supreme Court stated in State v. Gary, 348 N.C. 510, 501 S.E.2d 57 (1998),
        [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. In order to be granted substitute counsel, “the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust verdict.”

Id. at 516, 501 S.E.2d at 62 (citations omitted).
    Dissatisfaction with his attorney does not justify the appointment of new counsel. State v. Hutchins, 303 N.C. 321, 279S.E.2d 788 (1981). In the case sub judice, the trial court informed defendant that his counsel had tried serious cases before the court and handled them competently. Accordingly, the court had no further duty to inquire into counsel's competence. Defendant's statements that he and his lawyer did not see “eye to eye” showed only that they disagreed over trial tactics or that defendant was dissatisfied with his appointed lawyer's representation. Those grounds do not warrant the appointment of new counsel. State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976). This assignment of error is overruled.

II. Admissibility of Details of Past Offenses

    Defendant was cross-examined at trial about his nine convictions for communicating threats to the victims, his two assault on a female convictions (the assaults being on his ex-wife) and the violation of a protective order entered to protect his former wife. Defendant maintains that Rule 609 dealing with impeachment does not permit the admission of the fact that the past crimes had the same victims as does the instant case.
    Even if not admissible under Rule 609, if relevant to the crimes charged, such evidence can be admitted under Rule 404(b). State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993). Prior assaults on the same victim have the logical relevance to allow for the admission of this information. State v. Sexton, 336 N.C. 321, 444 S.E.2d 879, cert. denied, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994).    Here the fact that defendant had threatened and assaulted Ms. High and her daughter, his former wife, in the past, is a highly relevant circumstance and goes to motive, intent, plan and absence of mistake. The admission of this information pursuant to Rule 404(b) was not error. State v. Wilkerson 148 N.C. App. 310, 559 S.E.2d 5, rev'd, 356 N.C. 418, 571 S.E.2d 583 (2002).
    Accordingly, this assignment of error is also overruled.
    We hold that defendant received a fair trial free from error.
    No error.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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