An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-886


Filed: 6 April 2004


         v.                        Robeson County
                                Nos. 02 CRS 050055-58

    Appeal by defendant from judgments entered 16 January 2003 by Judge Jack A. Thompson in Robeson County Superior Court. Heard in the Court of Appeals 15 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State.

    Edwin L. West, III, P.L.L.C., by Heather Wells, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant was found guilty of two counts of assault with a deadly weapon with intent to kill inflicting serious injury, robbery with a dangerous weapon, and larceny of a motor vehicle. He was sentenced to consecutive sentences of 116-149 months for each assault, 103_133 months for robbery, and 10-12 months for larceny.
    The State presented evidence tending to show that on 6 January 2002, defendant's brother delivered defendant to the home of his uncle, Herbert Collins, in St. Pauls, North Carolina. Collins transported defendant in his truck to a drugstore. As Collins purchased asthma medication for defendant, he displayed a large sum of cash, approximately $500, in his wallet. Collins and defendantthen returned to the home Collins shared with a female companion, Katherine Quinn. Collins and defendant sat in the living room and talked. Collins fell asleep while seated in his recliner. As she stood in the kitchen area, Quinn heard “something like a pipe wrench slinging” and heard the noise again. She then saw defendant approach her holding a pipe wrench. Defendant hit her with the pipe wrench until she passed out. After she regained consciousness, she called to Collins for help. When he did not answer, she walked over to his recliner and saw Collins, unconscious and bleeding from his forehead, lying on the floor. She looked out the window and saw that Collins' truck was gone. Quinn called 911 and reported that defendant had beaten them and taken Collins' truck. Both Quinn and Collins were taken to a hospital and then transferred to Duke Medical Center, where both were hospitalized and treated for multiple skull fractures and traumatic brain injury.
    Collins' truck was subsequently located in Harnett County. Collins' wallet was lying on the seat. Blood was also found on the seat.
    Defendant was located and arrested on 8 January 2002 at Moore Regional Hospital. After defendant was read his rights by Captain Thomas Espey of the St. Pauls Police Department, defendant greeted Thomas Hagans, Chief of Police of the Town of St. Pauls, and made small talk with Chief Hagans. Defendant picked up an infant child from a car seat and asked the police chief, “This child will be grown before I get out of prison for this, won't she?” During thisconversation with defendant, Chief Hagans received a call regarding the towing of Collins' truck from Harnett County. As a result of this call, the police chief asked defendant if he knew where the keys to the truck were located. Defendant responded, “I left them in it.”
    Defendant testified that two men followed him into Collins' home. He heard noises and subsequently saw one of the two men run past him. The other man drove Collins' truck. Defendant got into the truck with the man. The man subsequently exited the truck and went into a house. Defendant then drove the truck to Harnett County and parked it at a store where his wife picked him up and drove him the rest of the way to his father's residence.
    Defendant brings forward three assignments of error.
    First, he contends the court erred by failing to make adequate inquiry into his request to be “represented by competent counsel.” The record shows that after a lunch recess during the State's presentation of evidence, the following transpired:
            THE COURT: Any matter before we proceed?
            MR. JACOBSON: Yes, sir. The defendant would like to speak to the Court about a matter.
            THE COURT: Mr. Nance, before you speak to me, I want to let you know that anything you say and do can be held against you. You don't have to speak to me if you don't want to. You don't have to speak to me without talking with your lawyer. But anything you say to me is on the record. Do you understand?
            THE DEFENDANT: Yes, sir.
            THE COURT: What do you need to ...    
            THE DEFENDANT: Sir, I don't really think right now at this time that I'm being represented fairly in a way by my attorney. Because I've had him since _ if I'm not badly mistaken, I've had him since July. And since July until now, we've, maybe, had 20 minutes together to talk about this trial. And that was Friday when he come up to me with these [sic] motion of discovery. And in these [sic] motion of discovery there was some stuff that was mentioned that I told him back in July when we talked. And in the motion of discovery when I talked to him awhile ago and I told him I didn't feel like I was being treated fairly by this, he said, oh, because you looked through your motion of discovery. I said, “How could I have done that when I told you in July what happened, and you just now gave me these Friday.”

            He's not trying to represent me fairly, sir, and I don't feel that I'm being represented fairly. I would appreciate if he could just start now. I would like to keep him, but I would appreciate it if he could just start representing me fairly. Show me something. He's killing me.
            THE COURT: Mr. Nance, what has been presented in open court at this point so far are two people, the alleged victims in the case, who have known you since you were born who have testified in open court. One testified _ Ms. Quinn testified that you assaulted her. There is evidence that you assaulted Herbert Collins because you were, apparently, the only person in the house that Ms. Quinn saw prior to her losing consciousness. That upon regaining consciousness, both of them had severe injuries about the head and property was stolen. That's what the evidence is before the Court at this point, before the jury. I'm not asking you to comment on it. I'm just detailing what is before the jury up to this point.
            I don't know what conversation you had with your attorney, but I _ here are the choices that you have left. You can have himto continue to represent you in this matter and he will do what he feels like is in your best interest, or, you can proceed without an attorney. But we're in the middle of a trial. I'm not going to stop the trial or continue the trial because you, all of a sudden in the middle of the trial, decide you don't like what your attorney has done or not done.
            Now, as I understand it, previously to this _ well, I won't go there.
            Do you want to continue with this attorney at this time?
            THE DEFENDANT: If he can show professional --
            THE COURT: There can't be any “ifs” about it. Are you going to continue for him to represent you in this matter in the completion of this trial or are you going to represent yourself?

            THE DEFENDANT: I don't have the knowledge to finish representing myself, sir.

            THE COURT: I understand that. That's why I would strongly recommend that you continue on with an attorney because he does know the rules.

            THE DEFENDANT: True.

            THE COURT: Now, what do you want to do?

            THE DEFENDANT: It looks like I don't have a choice but to finish with him, then.

            THE COURT: No. I'm asking you what do you want to do. Do you want to continue with him as your attorney of record?

            THE DEFENDANT: Yes, sir.

            THE COURT: All right. Thank you, very much. Is the State ready to proceed or continue?

            MS. BURTON: Yes, sir.
The prosecutor then resumed with the presentation of the State's case.
    Defendant argues that the “inadequacy of the trial court's inquiry” prevented him from “having meaningful appellate review.” He submits that “[w]ithout having the full substance of [defendant's] complaints regarding trial counsel in the record, this court cannot determine whether Mr. Nance was prejudiced by the trial court's refusal to substitute counsel[.]”
    When presented with a request to discharge counsel, the court “must satisfy itself only that present counsel is able to render competent assistance and that the nature or degree of the conflict is not such as to render that assistance ineffective.” State v. Thacker, 301 N.C. 348, 353, 271 S.E.2d 252, 256 (1980). “The trial court's sole obligation when faced with a request that counsel be withdrawn is to make sufficient inquiry into defendant's reasons to the extent necessary to determine whether defendant will receive effective assistance of counsel.” State v. Poole, 305 N.C. 308, 312, 289 S.E.2d 335, 338 (1982). If, after making this inquiry, it appears to the trial court that counsel is reasonably competent and the nature of the conflict between defendant and counsel is not such as would render counsel incompetent or ineffective, the court acts properly in denying the request to dismiss counsel. 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). The trial court is not required to grant an ex parte hearing unless the defendant makes an adequate showing that issues of an intensely personal or sensitivenature are involved. State v. Prevatte, 356 N.C. 178, 216-17, 570 S.E.2d 440, 461-62 (2002), cert. denied, U.S. , 155 L. Ed. 2d 681 (2003).
    We conclude the trial court acted properly. The court allowed defendant to state his reasons for seeking withdrawal of counsel. Nothing in the record indicates that defendant had reasons for seeking the dismissal of counsel other than the ones he articulated to the court. Defendant did not request an ex parte hearing or make any showing which would have required such hearing. This assignment of error is overruled.    
    Second, defendant contends the court erred by admitting statements of defendant made during custodial interrogation after he had asserted his right to counsel. Specifically, he argues the court erred by admitting into evidence his statements (1) regarding the infant child being grown up by the time he would get out of prison, and (2) relating he had left the keys in Collins' truck.
    Defendant did not object to the admission of either statement into evidence. Consequently, appellate review of the admission of these statements is under the “plain error” standard. Plain error is defined as    
        “a 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or 'where [the error] is grave error which amounts to a denial of a fundamental right of the accused,' or the error has 'resulted in a miscarriage of justice or in the denial to appellant of a fair trial,' or where the error is such as to 'seriously affect the fairness, integrity or public reputation of judicial proceedings' or where it can be fairly said 'the instructionalmistake had a probable impact on the jury's finding that the defendant was guilty.'”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982). Plain error is not present in the case at bar. The statement defendant made in relation to the infant child was volunteered and not made in response to any questioning or interrogation by the police chief. “Volunteered statements are competent evidence and their admission is not barred under any theory of the law, state or federal.” State v. Haddock, 281 N.C. 675, 682, 190 S.E.2d 208, 212 (1972). By testifying and admitting that he drove and abandoned his uncle's truck, defendant waived any objection he may have had to the admission of his response that he left the keys in the truck.
    Third, defendant contends the court erred by denying his motion to dismiss the charges for insufficient evidence. He argues the evidence is insufficient because Collins could not identify defendant as his attacker and Ms. Quinn did not initially identify him as the perpetrator.
    Upon a motion to dismiss, the trial court determines whether there is substantial evidence to establish each element of the offense charged and to identify defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). "The trial court's function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged." State v. Vause, 328 N.C. 231, 237, 400 S.E.2d57, 61 (1991). All of the evidence must be considered in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). "If there is substantial evidence -- whether direct, circumstantial, or both -- to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied." State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382-83 (1988).
    We hold the court properly denied the motion to dismiss. Ms. Quinn identified defendant as the person who beat her unconscious with a pipe wrench. Immediately prior to being assaulted by defendant, she heard the sound of a “pipe wrench slinging” in another room. After she regained consciousness, she found Collins, bleeding from his forehead and lying unconscious on the floor of the adjacent living room. She did not see any other person in the house except defendant. She testified that every time a visitor came to the house, their dogs would bark and she did not hear the dogs bark on this occasion. Prior to the attack, defendant had seen Collins display a large sum of cash in his wallet. The perpetrator only took Collins' wallet and Collins' truck.
    In defendant's trial we find
    No error.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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