State v Webb, (03-971) 05/04/2004

Appeal by defendant from judgments entered 19 February 2003 by Judge Charles H. Henry in Greene County Superior Court. Heard in the Court of Appeals 19 April 2004.

Attorney General Roy Cooper, by Assistant Attorney General Elizabeth J. Weese, for the State.

Geoffrey W. Hosford for defendant appellant.

McCULLOUGH, Judge.

    Defendant Chaumon Marte Webb was charged with two counts of robbery with a dangerous weapon (armed robbery). The State's evidence tends to show that two Greene County convenience stores were robbed at gunpoint. The first robbery occurred at the 264 Convenient Mart on the night of 25 February 2002. Ray Holloman, the clerk on duty, was preparing to close the store on the evening in question when he heard an automobile with a loud muffler go by the store heading west. Holloman looked out of a window and observed the vehicle turn around and stop briefly. The car sped off before Holloman could lock the door, and two or three minutes later a masked robber, brandishing a silver handgun, entered the store. The assailant demanded money, and Holloman gave him all ofthe money (approximately $739.00) from the store's cash register. The suspect then left the store on foot and traveled in the direction of a junkyard located just east of the store.
    The second robbery occurred around 11:00 p.m. on 5 March 2002 at the Creekside Convenient Mart. A man, with a black t-shirt covering the bottom half of his face ran into the store and began to demand money. He approached the clerk on duty, Rebecca Pusen, and threatened her with a gray-colored or titanium handgun. The man took approximately $434.00 from the store's cash register before fleeing the scene on foot. Pusen recognized the robber as a man who had been in the store twice on that evening. Pusen and a customer who was in the store at the time of the robbery identified the robber from a photographic lineup as Michael McCotter.
    The Greene County Sheriff's Department subsequently arrested McCotter on 11 April 2002, and based upon information in McCotter's statement to the investigating officer, defendant was also arrested. Defendant later confessed to driving the vehicle that dropped off and picked up McCotter during the 25 February and 5 March 2002 convenience store robberies. Defendant acknowledged that he received money from McCotter for his assistance in the robberies.
    After hearing the evidence and arguments of counsel, a jury found defendant guilty as charged. The trial court sentenced defendant to consecutive terms of 84-110 months in prison. Defendant appeals.     On appeal, defendant, who did not make a motion to dismiss at trial, asserts that the trial court committed plain error when it submitted the cases to the jury because there was insufficient evidence to show that he committed the offenses charged. The instant issue, however, is not properly before the Court.
    It is well established that under N.C.R. App. P. 10(b)(3) the defendant must move to dismiss the charge(s) based upon insufficient evidence at the close of the State's evidence and/or at the close of all evidence, if he chooses to present evidence at trial. If he fails to do so, he “may not assign as error the insufficiency of the evidence to prove the crime charged.” N.C.R. App. P. 10(b)(3). Further, while N.C.R. App. P. 10(c)(4) provides that plain error analysis may be used in instances where a criminal defendant has otherwise failed to preserve an issue, the North Carolina Supreme Court has noted that plain error analysis is reserved for errors in jury instructions or in the admissibility of evidence. State v. Steen, 352 N.C. 227, 536 S.E.2d 1 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001).
    Even assuming that the issue was properly before the Court, we conclude that there was sufficient evidence to show defendant committed the offenses charged. The State presented evidence which tended to show that two convenience stores were robbed by Michael McCotter, that defendant drove McCotter to the stores before the robbery and picked up McCotter thereafter, and that McCotter shared the robbery proceeds with defendant. Accordingly, defendant's argument that there was insufficient evidence to support hisconvictions fails.
    Defendant next argues that the trial court abused its discretion in denying defendant's motion to replace counsel. We disagree.
    When a defendant seeks to remove his attorney, it is the trial court's duty to inquire into defendant's reasons for so moving and to determine whether those reasons are legally sufficient to require counsel's discharge. State v. Anderson, 350 N.C. 152, 167, 513 S.E.2d 296, 305-06, cert. denied, 528 U.S. 973, 145 L. Ed. 2d 326 (1999). If it appears that counsel is reasonably competent and there is no conflict between the attorney and the client that renders counsel incompetent, the motion for new counsel must be denied. Id. at 167, 513 S.E.2d at 305-06. Whether to allow a defendant's motion to remove counsel is a matter committed to the sound discretion of the trial court, and the court's ruling will not be disturbed absent a showing that defendant's Sixth Amendment right to effective assistance of counsel was violated. State v. Skipper, 146 N.C. App. 532, 537, 553 S.E.2d 690, 693-94 (2001).
    To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy a two-prong test. In State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985), our Supreme Court adopted the test first set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984):
            “First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors soserious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland, 466 U.S. 687, 80 L. Ed. 2d 693). Mere allegations surrounding matters of trial tactics, without more, are not sufficient to meet the test set forth in Strickland and its progeny. State v. Piche, 102 N.C. App. 630, 638, 403 S.E.2d 559, 564 (1991).
    Immediately before trial, defendant attempted to remove counsel based upon his dissatisfaction with the number of times counsel met with him before trial and her alleged failure to communicate with him about the case. After thoroughly questioning defendant and counsel regarding these complaints, the trial court denied the motion. In State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981), our Supreme Court explained that a defendant does not have the right to remove counsel merely because he has become dissatisfied with the present attorney's services or because of a disagreement over trial tactics. Moreover, the Court noted that the amount of time counsel spends with the defendant is not an appropriate measure of effective representation. Id.
    Defendant's conclusion that counsel was not “on [his] side” and was working with the prosecutor, does not require counsel's discharge. Defendant's concern about “not having a case” also does not warrant the removal of his attorney. Accordingly, the trialcourt did not abuse its discretion in denying defendant's motion to remove counsel. We also reject defendant's claim that he subsequently received ineffective assistance of counsel because the trial court failed to remove trial counsel.
    In his brief, defendant alleges that counsel was ineffective because counsel failed to preserve the issue of the sufficiency of the evidence for appellate review. Counsel did not move to dismiss and failed to properly support an oral motion to suppress with an affidavit as required by N.C. Gen. Stat. § 15A-977 (2003). This resulted in the motion being summarily denied. Defendant, however, ignores the fact that counsel met with defendant several times before trial and discussed the case with him. Counsel also researched the legal issues and negotiated a plea offer for defendant, a proposal which defendant chose to reject. In addition, when defendant insisted on going to trial, counsel arranged for defendant's codefendant, Michael McCotter, to be transported to court to testify if necessary. Counsel frankly discussed the consequences of defendant's decision to testify. Further, when the trial court denied the motion to suppress defendant's statement containing his admissions to committing the instant crimes, counsel zealously challenged the accuracy and voluntariness of the statement.
    When considering all of the evidence in the record, we cannot conclude that counsel's errors are “'so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'” Braswell, 312 N.C. at 562, 324 S.E.2d at 248(quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693). Further, even assuming that defendant could meet the first prong of the Braswell test, he cannot show how that performance prejudiced his case. As noted above, even if the issue of the sufficiency of the evidence was properly preserved, there was adequate evidence to show that defendant committed the offenses charged. Similarly, even if the motion to suppress had been properly filed and heard by the trial court, defendant cannot show that the court erred in denying the motion. Accordingly, defendant cannot make the necessary showing to prevail on an ineffective assistance of counsel claim.
    In his final argument, defendant asserts that the trial court erred in denying his motion to suppress his statement to law enforcement. While defendant concedes that the trial court was acting within its power to summarily deny the motion to suppress under N.C. Gen. Stat. § 15A-977 (2003), he submits that he should not be penalized for trial counsel's failure to file the necessary affidavit in support of the motion. Defendant suggests that this was a matter that was outside of his control.
    We note that defendant has provided no authority for his contention that he should be excepted from the ambit of N.C. Gen. Stat. § 15A-977. Further, defendant cannot show that full consideration of his motion to suppress would have yielded a different result. We, therefore, conclude that the trial court did not err in summarily denying defendant's motion to suppress pursuant to N.C. Gen. Stat. § 15A-977. See, e.g., State v. Harris,71 N.C. App. 141, 321 S.E.2d 480 (1984) holding that a motion to suppress that does not include an affidavit containing facts supporting the motion may be summarily dismissed).
    We conclude that defendant received a fair trial, free from prejudicial error.
    No error.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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