STATE OF NORTH CAROLINA
v. Robeson County
Nos. 02 CRS 050055-58
MICHAEL AARON NANCE
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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