An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1246


Filed: 2 August 2005


v .                                 Guilford County
                                    Nos. 02 CRS 102682
JAMES LEROY LATTIMORE                     02 CRS 102683

    Appeal by defendant from judgments entered 7 April 2004 by Judge Judson D. DeRamus, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 22 April 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for the State.

    L. Jayne Stowers for defendant appellant.

    McCULLOUGH, Judge.

    Defendant (James Leroy Lattimore) appeals from conviction and judgment for carrying a concealed gun and possession of a firearm by a felon. We affirm.

    Defendant was indicted for carrying a concealed gun and possession of a firearm by a felon on 3 March 2003. Defendant appeared in open court on 17 April 2003 and waived his right to court-appointed counsel with respect to these charges. On 6 April 2004, the charges were called for trial. When his cases were called, defendant appeared without counsel. He had not returned to court to request a court-appointed attorney despite being advisedof his right to do so, and had not procured representation for himself. After discussing the representation issue with defendant, the trial court found that defendant had forfeited his right to assistance. Defendant proceeded with the trial pro se.
    Defendant presented the testimony of three witnesses at trial. While examining one of his witnesses, defendant asked questions designed to demonstrate that the officer who arrested him had “been harassing [him] for years.” Pursuant to an objection by the prosecutor the trial court inquired as to whether defendant was trying to raise harassment as a defense to the charges for which he was on trial. Upon being answered in the affirmative, the trial court sustained the objection and admonished defendant, in the jury's presence, that “[h]arassment is not necessarily a defense to the charges [he was] facing at . . . trial.” When defendant continued with his line of questioning, he was again informed that his “contention that [he was] harassed over a period of time by a particular officer is not a defense to the[] charges [he was facing].”
    After he was finished questioning the third defense witness, defendant informed the trial court that he had no more witnesses. Defendant had not taken the stand himself. Thereafter, during the charge conference, defendant asked the court whether he would have an opportunity to talk to the jury. The trial court informed defendant that he would be able to make a closing argument but that he had waived his right to testify by not calling himself as awitness at trial. Defendant exercised his right to make a closing argument.
    The jury convicted defendant as charged. Neither the State nor defendant presented evidence of aggravating or mitigating factors. The trial court imposed consecutive sentences within the presumptive range: fifteen to eighteen months' imprisonment for the conviction of possession of a firearm by a felon and sixty days' imprisonment for the conviction of carrying a concealed gun. From these convictions and judgments, defendant now appeals.
    In his first argument on appeal, defendant contends that the trial court erred by failing to appoint counsel or standby counsel for him or to conduct an appropriate inquiry into whether defendant desired to represent himself. We are not persuaded.
    The right to counsel is guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I, sec. 11 of the North Carolina Constitution. State v. McFadden, 292 N.C. 609, 611, 234 S.E.2d 742, 743 (1977). If a defendant is an indigent person entitled to counsel, he has a right to have the State “provide him with counsel and the other necessary expenses of representation.” N.C. Gen. Stat. § 7A-450(b) (2003); Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799 (1963). Likewise, an indigent defendant also has a right to refuse court-appointed counsel and to represent himself in a criminal proceeding. State v. Thacker, 301 N.C. 348, 354, 271 S.E.2d 252, 256 (1980).    “[T]he waiver of counsel . . . must be knowing and voluntary, and the record must show that the defendant was literate and competent, that he understood the consequences of his waiver, and that, in waiving his right, he was voluntarily exercising his own free will.” Id. Accordingly, before permitting a defendant to represent himself, a trial judge must
        make[] thorough inquiry and [be] satisfied that the defendant: (1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled; (2) Understands and appreciates the consequences of this decision; and (3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.

N.C. Gen. Stat. § 15A-1242 (2003). “[C]ompliance with the dictates of G.S. 15A-1242 fully satisfies the constitutional requirement that waiver of counsel must be knowing and voluntary.” Thacker, 301 N.C. at 355, 271 S.E.2d at 256. “When a defendant executes a written waiver which is in turn certified by the trial court, the waiver of counsel will be presumed to have been knowing, intelligent, and voluntary . . . .” State v. Warren, 82 N.C. App. 84, 89, 345 S.E.2d 437, 441 (1986).
    “'Once given, a waiver of counsel is good and sufficient until the proceedings are terminated or until the defendant makes known to the court that he desires to withdraw the waiver and have counsel assigned to him.'” State v. Kinlock, 152 N.C. App. 84, 88, 566 S.E.2d 738, 741 (2002) (citation omitted), aff'd, 357 N.C. 48, 577 S.E.2d 620 (2003). Thus, where the inquiry required by N.C. Gen. Stat. § 15A-1242 has been made during a preliminary proceedingby a different judge, it is not necessary for the trial judge to repeat the statutory inquiry. Id. at 89-90, 566 S.E.2d at 741-42. “[T]he burden of showing the change in the desire of the defendant for counsel rests upon the defendant.” State v. Watson, 21 N.C. App. 374, 379, 204 S.E.2d 537, 540-41, cert. denied, 285 N.C. 595, 206 S.E.2d 866 (1974).
    If a defendant has waived court-appointed counsel and wishes to hire his own attorney, he must be granted a reasonable time in which to obtain counsel. McFadden, 292 N.C. at 614-15, 234 S.E.2d at 746-47. However, the “right to be defended by chosen counsel is not absolute,” and a defendant who has waived his right to court- appointed counsel may be required to represent himself “'where defendant is inexcusably dilatory in securing legal representation.'” Id. at 612-13, 234 S.E.2d at 745 (citation omitted).
    The present defendant appeared before Judge Dennis J. Winner in Guilford County Superior Court on 17 April 2003 and waived his right to a court-appointed defense attorney. On that date, defendant also executed a written waiver of counsel, which contained a certification by Judge Winner and an acknowledgment by defendant, that he
    [was] fully informed in open court of the charges against [him], the nature of and the statutory punishment for each charge, and the nature of the proceedings against [him] and [his] right to have counsel assigned by the court and [his] right to have the assistance of counsel to represent [him] in this action; that [he] comprehend[ed] the nature of the charges and proceedings and the range of punishments; that [he] underst[ood] and appreciate[d] the consequences of [his] decision and that[he] . . . voluntarily, knowingly and intelligently elected in open court to be tried . . . without the assignment of counsel.

On 6 April 2004, the charges were called for trial before Judge Judson D. DeRamus, Jr., who had the following discussion with defendant about representation:
    THE COURT:    [Y]ou understand it looks as if from the file, that you waived your right to a court-appointed attorney a long time ago . . . , almost a year ago. I take it you wanted to hire your own attorney and didn't do so?

    DEFENDANT:    I couldn't afford it.

    THE COURT:    Well, it was explained to you back in April of 2003, if you couldn't afford an attorney you would get one appointed by the Court, if you wanted one?

    DEFENDANT:    That was explained to me. But I'm confused, because I've come to court a couple of times before with a public defender, and I didn't get treated right, so I kind of lost some confidence.

    THE COURT:    Are you ready to represent yourself at this time?

    DEFENDANT:    Are we going to have a trial now?

    THE COURT:    Yes, sir. The State is calling for a trial on the charges of felony possession of firearm by a felon, and also the charge, misdemeanor charge of carrying a concealed weapon. . . . [T]hey've asked to try also a driving while revoked charge, but the Court has found that's a separate charge that can't be joined with the trial . . . . Do you understand that?

    DEFENDANT:    Yes.

    THE COURT:    All right. So they're asking that those two charges, possession of firearm by a felon and carrying a concealed weaponcharges, come to trial at this time. Yours is the first case scheduled for trial this week.

    DEFENDANT:    Well, I'm hearing what you're saying, but I don't understand . . . what [the prosecutor]'s saying. I thought when I come up here I would be tried by a jury.

    THE COURT:    Yes, sir, you would be tried by a jury. Are you ready to represent yourself on trial by jury on those two charges?

    DEFENDANT:    Yes, sir, I guess. I, my understanding was that I was coming here to get a bond reduced.

    THE COURT:    No, sir. You're on the calender here for trial this week. . . . How old are you, Mr. Lattimore?

    DEFENDANT:    Fifty-five.

    THE COURT:    What's the last grade you completed in school?

    DEFENDANT:    High school, twelfth.

    THE COURT:    Do you have_-I see you do have some physical problems, apparently, by being in [a] wheelchair. Do you have any physical or mental problems with respect to your ability to adequately represent yourself?

    DEFENDANT:    Not mentally, no.

    THE COURT:    Okay. Anything about the physical problems that you do have?

    DEFENDANT:    No, sir, nothing, but, uh, I need to get to a doctor 'cause my knee has been infected . . . .

    THE COURT:    . . . Can you move around adequately to represent yourself at this time?

    DEFENDANT:    Move around, sure. I got the wheelchair.

    THE COURT:    Very well. I do find you forfeited your right to . . . an attorney by not hiringone within a reasonable time after you waived [a] court-appointed attorney back in April of last year. And you understand, by representing yourself, I can't ask [sic] as your attorney, and you'll be held to the same standards as an attorney . . . ?

    DEFENDANT:    Okay. Yes. Uh, the reason I couldn't afford one is because these same charges now, I've paid . . . bonds on these things, and its taken my money to pay the bondsman.

    THE COURT:    Did you come in and ask for a court- appointed attorney at any time--

    DEFENDANT:    No, sir.

    THE COURT:    _since April 2003?

    DEFENDANT:    No.

    THE COURT:    And the Court had informed you at that time that you would be provided a court- appointed attorney if you could not afford one, did he not?

    DEFENDANT:    Yeah, they did.

    THE COURT:    Okay. Well, I think you've forfeited your right to counsel by not securing one in a timely fashion, and you need to represent yourself.

Accordingly, defendant proceeded pro se.
    Thus, the record indicates that defendant made a knowing, intelligent, and voluntary waiver of his right to counsel on 17 April 2003 and that he never evinced a desire to withdraw the waiver and have counsel assigned to him. Furthermore, in the year between his waiver of court-appointed counsel and the time of his trial, defendant had neither procured private representation or sought to have an attorney appointed for him. No excuse wasoffered for defendant's failure to act. Given these facts and circumstances, the trial court properly ruled that defendant forfeited his right to counsel at trial.
    This assignment of error is overruled.
    In his second argument on appeal, defendant contends that he was improperly denied the right to testify where he expressed a desire to do so after the close of all of the evidence but prior to submission of the case to the jury. This contention lacks merit.
    A defendant does have a constitutional right to testify if he chooses to do so. State v. Smith, 357 N.C. 604, 618-19, 588 S.E.2d 453, 463 (2003), cert. denied, __ U.S. __, 159 L. Ed. 2d 819 (2004). However, absent an indication defendant wished to testify, “it cannot be said that the trial court denied defendant [this] right.” Id. A trial court is not required “to inform a defendant of his right to testify or to make an inquiry on the record regarding his waiver of the right to testify.” Id. However, even where defendant has waived his right to testify by failing to take the stand prior to the close of all of the evidence, “[t]he judge in his discretion may permit any party to introduce additional evidence at any time prior to verdict.” N.C. Gen. Stat. § 15A-1226 (2003).
    In the instant case, defendant called and questioned three witnesses and then stated, “I don't have any more witnesses.” The State did not present rebuttal evidence. After the jury was excused for the lunch recess, the trial court asked if there wereany other matters to be discussed prior to the charge conference, and defendant responded, “I guess not, your Honor.” Then, during the charge conference, the following colloquy ensued:
    DEFENDANT:    . . . I guess we have an opportunity to talk to the jury?

    THE COURT:    Yes, you'll have a chance to argue to the jury based upon the evidence that's been presented.

    DEFENDANT:    So before I do that, can I instruct the jury or tell the jury--

    THE COURT:    You can argue to the jury, but you can't testify to the jury, you understand? You have had a chance to testify, but you decided not to take it. You did not testify at this trial. You understand that?

    DEFENDANT:    I guess. Can I speak for myself?

    THE COURT:    You can argue the evidence that's been presented under oath here at trial, but you can't testify in your argument; do you understand that? I'm telling you that right now.

    DEFENDANT:    I guess I understand what you're saying.
Defendant did not request that he be allowed to introduce additional evidence.
    On these facts, the trial court properly concluded that defendant had waived his right to testify by failing to take the stand prior to the close of all of the evidence. Likewise, given that defendant did not make a request to introduce additional evidence, the trial court did not abuse its discretion by declining to permit defendant to take the stand after the court had already begun the charge conference.    This assignment of error is overruled.
    In his third argument on appeal, defendant contends that the trial court erred by expressing an opinion with respect to the evidence in the presence of the jury. Specifically, defendant insists that the trial court improperly stated that a pattern of harassment by the arresting officer was not a defense to the crimes for which defendant was being tried. This contention lacks merit.
    In the presence of the jury, a trial judge is precluded from expressing an opinion “on any question of fact to be decided by the jury.” N.C. Gen. Stat. § 15A-1222 (2003). As a general rule, “a trial court . . . is not impermissibly expressing an opinion when it makes ordinary rulings during the course of the trial.” State v. Weeks, 322 N.C. 152, 158, 367 S.E.2d 895, 899 (1988). “[A]n alleged improper statement will not be reviewed in isolation, but will be considered in light of the circumstances in which it was made.” Id. Furthermore, a defendant must show that he was prejudiced by the judge's remark. Id.
    In the instant case, defendant was questioning a witness for the stated purpose of showing that the arresting officer “ha[d] been harassing [him] for years.” The prosecution objected on the ground that the evidence being offered by defendant was irrelevant, and the trial court sustained this objection. When defendant persisted in his attempts to elicit evidence of harassment, the trial court repeatedly informed him, in the jury's presence, that harassment was not a defense to the charges for which he was ontrial. Thus, the trial court made a legal ruling on the admissibility of defendant's harassment evidence that did not constitute an impermissible comment by the court on any question of fact to be decided by the jury.
    This assignment of error is overruled.
    In his fourth argument on appeal, defendant challenges the presumptive sentence imposed by the trial court. Specifically, defendant contends that the trial court erred by failing to find, as a mitigating factor, that he voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer at an early stage of the criminal process. N.C. Gen. Stat. § 15A- 1340.16(c) (2003) requires a trial court to make findings with respect to aggravating and mitigating sentencing factors “only if, in its discretion, [the court] departs from the presumptive range of sentences. . . .” Accordingly, a trial court need not make findings as to a mitigating factor if it imposes a term within the presumptive range of sentences. State v. Ramirez, 156 N.C. App. 249, 258-59, 576 S.E.2d 714, 721, disc. review denied, 357 N.C. 255, 583 S.E.2d 286, cert. denied, 540 U.S. 991, 157 L. Ed. 2d 388 (2003). As the present defendant received a presumptive sentence, the trial court was not required to make a finding with respect to the existence of any mitigating factors. This assignment of error is overruled.

    Finally, we note that defendant raised an assignment of error challenging the trial court's denial of his motions to dismiss, but has failed to brief this issue. As such, this assignment of error has been abandoned. N.C. R. App. P. 28(b)(6) (2005) (“Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.”).
    No error.
    Judges TIMMONS-GOODSON and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***