STATE OF NORTH CAROLINA
v. Wayne County
No. 03CRS59688
DECARLO TAVARIS GODWIN,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Michelle B. McPherson, for the State.
Geoffrey W. Hosford for defendant-appellant.
WYNN, Judge.
North Carolina Rule of Evidence 404(b) provides that relevant
evidence of other crimes, wrongs or acts “may . . . be admissible
for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake,
entrapment or accident.” N.C. Gen. Stat. § 8C-1, Rule 404(b)
(2004). In this case, the police officer's testimony regarding an
encounter with Defendant two months after the date at issue, was
offered for the purpose of proving intent, a common plan, purpose,
or scheme. Therefore, the trial court did not err in admitting
this testimony. We further find no error by the trial court in
denying his motions to discharge his attorney and to continue hiscase.
Defendant Decarlo Tavaris Godwin was charged with possession
with intent to sell and deliver a controlled substance, keeping and
maintaining a motor vehicle for the use of controlled substances,
misdemeanor driving while license revoked, and having obtained the
status of habitual felon. The State's evidence tended to show
that: Officer Karen Powers of the Goldsboro Police Department was
on patrol on the night of 27 October 2003. Officer Powers was
parked at the intersection of George and Grantham Streets
completing some paperwork, when another Goldsboro Police Officer,
Officer Clint Hales, who was off duty at the time, pulled alongside
her patrol car. Officer Hales told Officer Powers about some
things that had occurred during his shift the night before. Most
notably, Officer Hales informed Officer Powers that Defendant had
been stopped for driving while his license was revoked, during
which time Defendant was found to be in possession of marijuana.
While the two officers were conversing, Defendant approached and
stopped at the intersection in a van. Defendant was approximately
fifteen to twenty feet away from the location where Officers Hales
and Powers were parked.
Based upon the information she had just received from Officer
Hales, Officer Powers initiated a stop of Defendant's van. After
Defendant pulled over, Officer Powers approached his vehicle and
asked if he had a license. Defendant admitted that his license had
been revoked. Officer Powers then placed Defendant under arrest
for driving while his license was revoked. The officer handcuffedDefendant and searched for weapons and/or other contraband.
Defendant had $692.00 -- four $100 bills, one fifty dollar bill,
four twenty dollar bills, nine ten dollar bills, nine five dollar
bills, thirteen two dollar bills, and a one dollar bill -- on his
person. After placing Defendant in her patrol car, Officer Powers
also searched Defendant's van. There, she found a balled up T-
shirt, which contained what appeared to be a bag of marijuana.
There was also marijuana residue throughout the van, and a plastic
sandwich bag, with a missing corner, lying on the van's floor.
At trial, Officer Powers explained that drug dealers commonly
use a bag with one corner cut off as a funnel to fill smaller bags
with marijuana in preparation for individual sale. She also
explained that marijuana is typically sold in five-dollar, ten-
dollar, and twenty-five-dollar bags, and that based on her training
and experience, the denominations of bills seized from Defendant
comported with the sale of marijuana. The quantity of marijuana
also led the officer to believe that Defendant was engaged in the
sale of marijuana. Officer Powers explained that Defendant had
just under 1.5 ounces of marijuana in his possession when arrested
on the night of 27 October 2003. The officer testified that in her
training and experience, this quantity was a quantity too great for
personal use. She noted, however, that dealers generally carried
this quantity of marijuana to prevent being charged with a felony.
Officer Hales testified at trial in conformity with Officer
Powers about events leading to Defendant's arrest on 27 October
2003. He also testified that he was familiar with Defendant andhis van in that Officer Hales had seen Defendant in the same van
(most often parked at the intersection of Walnut and Carolina
Streets) at least every other day during the month before
Defendant's 27 October 2003 arrest.
Two other Goldsboro Police Officers, David Wilson and Stephen
Powers (husband of Officer Karen Powers), testified about
Defendant's previous arrests for the same and/or similar charges.
Officer Wilson testified to having arrested Defendant during the
early morning hours of 27 October 2003. Officer Wilson noted that
he had first come into contact with Defendant and two other men
standing in front of Defendant's van, and had warned the three men
about drinking in the street. Officer Wilson instructed the men to
go inside the house to drink. Some time later, Officer Wilson
observed Defendant driving his van and executed a traffic stop.
While speaking with Officer Wilson, Defendant pulled a small
plastic bag containing marijuana from his pocket and dropped it on
the ground. The bag was about 2.5 inches and was rolled up with
one corner tied. Officer Wilson charged Defendant with possession
of marijuana at that time. A subsequent search of Defendant's van
yielded about twenty-five small (one inch by one inch) plastic
bags, commonly used for packaging drugs for sale, inside the front
console motor cover. Due to the small quantity, Officer Wilson
only wrote Defendant a citation for possessing marijuana and drug
paraphernalia, and driving while his license was revoked.
Officer Stephen Powers testified, over Defendant's objection,
about an encounter that occurred on 17 December 2003--approximatelytwo months after Defendant's arrest on the instant charges on 27
October 2003. Officer Stephen Powers remarked that, at that time,
Defendant was driving the same van previously described by his
wife, and Officers Hales and Wilson. During the 17 December 2003
encounter with Defendant, Officer Stephen Powers found a bag
containing five to ten grams of marijuana, and a cigar under the
front passenger seat of the van. Officer Stephen Powers testified
that marijuana users often removed the tobacco from cigars and
filled them with marijuana, to create marijuana cigars. Officer
Stephen Powers, therefore, seized the cigar as contraband.
Defendant did not present any evidence. Defendant moved to
dismiss the charges against him for insufficient evidence, which
was denied. In response to Defendant's continued objection to the
evidence concerning the 17 December 2003 encounter with Officer
Stephen Powers, the trial court noted on the record that counsel
for Defendant and the district attorney had previously discussed
the issue in chambers. At that time, the trial court had cautioned
the prosecutor that a proper foundation would have to be laid and
the proper predicates entered into evidence before the trial court
would allow such testimony. The trial court noted that the
prosecution had done as cautioned, and the trial court was
satisfied that the testimony was admissible.
Prior to the jury charge, Defendant pled guilty to driving
while license was revoked. During the plea colloquy, Defendant
stated that he was satisfied with the services of his attorney, was
making the plea voluntarily, was making the plea because he was infact guilty, and understood that the maximum sentence on the charge
was 120 days. The trial court accepted the plea, noting that
“despite his earlier contention, at this point in time
[defendant's] expressed satisfaction with the services of his
lawyer.”
After being properly instructed, the jury found Defendant
guilty of possession with intent to deliver and sell marijuana, and
maintaining a vehicle for keeping or selling marijuana. The jury
was dismissed, and before sentencing on the drug-related charges,
Defendant admitted to having attained habitual felon status.
Again, Defendant stated that he had no objections or concerns about
his attorney's services. After finding some five mitigating
factors, the trial court sentenced Defendant to a mitigated
sentence of seventy-two to ninety-six months imprisonment.
Defendant appealed.
__________________________________________
On appeal, Defendant first argues that the trial court erred
in allowing the testimony of Officer Stephen Powers regarding a
stop made approximately two months after his arrest on the instant
charges. Defendant contends the evidence was unnecessary and
misleading to the jury. We disagree.
The admissibility of evidence regarding “other crimes, wrongs,
or acts” is determined by application of Rules 404(b), 402, 401,
403, 104(b) and 105 of the North Carolina Rules of Evidence. State
v. Haskins, 104 N.C. App. 675, 679, 411 S.E.2d 376, 380 (1991),
disc. review denied, 331 N.C. 287, 417 S.E.2d 256 (1992). “Thatis, the evidence must be offered for a proper purpose, must be
relevant, must have probative value that is not substantially
outweighed by the danger of unfair prejudice to the defendant, and,
if requested, must be coupled with a limiting instruction.” Id.
North Carolina Rule of Evidence 404(b) provides that relevant
evidence of other crimes, wrongs or acts “may . . . be admissible
for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake,
entrapment or accident.” N.C. Gen. Stat. § 8C-1, Rule 404(b). Rule
404(b) has been noted to be a rule of inclusion, and not exclusion.
State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
Rule 404(b) evidence is “subject to the weighing of probative value
versus unfair prejudice mandated by Rule 403.” State v. Agee, 326
N.C. 542, 549, 391 S.E.2d 171, 175 (1990). To that end, our
Supreme Court noted in Coffey, that evidence which is probative of
the State's case is necessarily prejudicial to the defendant; “the
question is one of degree.” 326 N.C. at 281, 389 S.E.2d at 56.
“Whether to exclude evidence under Rule 403 is a matter left to the
sound discretion of the trial court.” Id.
In the case sub judice, Defendant takes issue with the trial
court allowing the State to offer the testimony of Officer Stephen
Powers regarding an encounter with him in December 2003. Officer
Powers' testimony was strikingly similar to the testimony of other
Goldsboro Police Officers about their arrests of Defendant on 27
October 2003. Notably, Defendant was in his Chevrolet conversion
van in the same area of Goldsboro, which was noted as being a highdrug area. Further, Defendant, on each occasion, had marijuana in
the van.
In the instant case, the trial court specifically found that
the evidence was “not offered to prove the character of the
Defendant.” Instead, the trial court determined that the evidence
was offered for the limited purpose to prove
that the Defendant had in his mindset [sic]
the intent, a common plan, purpose, scheme, to
participate in narcotic activity and use this
vehicle to facilitate that purpose. That he
had a design to use this vehicle for illegal
narcotic activity. That he had the
opportunity to use this vehicle for illegal
drug activity, and that he was able to
continue to use this van and exercise dominion
and control over the same as required by the
statute for maintaining a vehicle to keep or
sell controlled substance. The evidence was
admitted for that limited purpose.
The trial court went on to give the jury a limiting instruction, in
keeping with his findings.
We conclude that the trial court's findings are proper in that
Officer Powers' testimony regarding his December 2003 encounter was
indeed relevant to show the existence of a plan or design to commit
the drug-related offenses charged. Although the encounter was
approximately two months after Defendant's arrest on the instant
charges, it does not affect its admissibility. See State v.
Parker, 354 N.C. 268, 287, 553 S.E.2d 885, 899 (2001) (“remoteness
in time between evidence of other crimes, wrongs, or acts and the
charged crime is less significant when the prior conduct is used to
show intent, motive, knowledge, or lack of accident. Indeed,
'remoteness in time generally affects only the weight to be given
such evidence, not its admissibility.'”), cert. denied, 535 U.S.1114, 153 L. Ed. 2d 162 (2002). Moreover, while necessarily
prejudicial, we conclude that the probative value of this evidence
far outweighed any prejudice to Defendant. Accordingly, this
evidence was properly admitted into evidence by the trial court.
Defendant next argues that the trial court erred in denying
his request to dismiss court-appointed counsel, and to represent
himself or hire substitute counsel to represent him. Again, we
disagree.
The record tends to show that this case had been pending since
27 October 2003. In June 2004, Defendant's court-appointed
attorney filed a motion for speedy trial, whereupon the matter was
set for trial before Judge Kenneth F. Crow on 23 August 2004. On
the morning that trial was scheduled to begin, court-appointed
counsel informed the court that Defendant wanted to discharge him
and hire private counsel. The trial court then allowed Defendant
to explain why he wanted to discharge his court-appointed attorney.
Defendant told the trial court that counsel had been appointed
on or about 8 June 2004, and had visited him in jail at least three
times since that time. Defendant, however, appeared to take
exception to the fact that, on the morning of the trial, counsel
reminded him that a previously rejected plea offer from the State
was still available. Defendant explained that in his mind,
appointed counsel's reminder about the plea offer showed “that
that's not-- he's not showing interest into my case, and I . . . I
would like . . . to relieve him.”
After hearing from Defendant, the trial court noted that thecase had been pending for nearly one year and had been on the trial
calendar for several weeks. The trial judge, therefore, stated
that he was not inclined to remove the case from the trial
calendar. The trial court went on to explain, in detail, to
Defendant his rights concerning discharging appointed counsel. The
trial court also explained to Defendant how favorable the terms of
the State's plea offer were. Defendant reiterated that he just did
not feel that his court-appointed attorney would be handling his
case in his best interest. Defendant asked the trial court why the
court could not arrange things where he could “get [him] a lawyer
where [he could] feel like [he] could be comfortable.” The trial
court assured Defendant that during trial, the trial court would be
watchful and that if the trial court got the impression that
counsel was not representing him “in a fashion that zealously
safeguards [his] interest, then [he would] so let the record
reflect.” The trial court concluded that it was still inclined to
proceed with the trial as scheduled. The trial court made the
appropriate findings, noting that Defendant had rejected the
State's plea offer, and adjourned for lunch.
After lunch, Defendant's court appointed attorney informed the
trial court that Defendant had decided during the break to accept
the plea offer. The State informed the trial court that the
original offer was no longer available, but the State would offer
the original deal, amended to exclude disposition of the
misdemeanor cases pending in district court. Defendant rejected
the offer and jury selection began. Jury selection was completedand court was adjourned at 5:00 p.m. until the next day.
On the following morning, Defendant's attorney informed the
trial court that the State had made another plea offer --
essentially the last offer made the day before. Counsel noted that
he had recommended that Defendant accept the offer, given the
charges that Defendant faced. Counsel also alluded to the fact
that Defendant had been told by his aunt on the previous evening
and was convinced that he had “an appellate issue because the Court
denied him his right to hire a lawyer.” Further, counsel told the
trial court that Defendant was still dissatisfied with his
representation and wished to be heard. The trial court, therefore,
invited Defendant to speak on that issue. At this point, Defendant
explained his reasons for wanting to discharge court-appointed
counsel: “I just - I just want to state that my lawyer's - it's a
conflict of interest, Man, he don't - I mean it's like he - like
he's not - he's not - he's not there. I mean the same thing he's
doing I could do.” The trial court responded,
Okay. Well, I appreciate that, but I'm not
going to discharge Mr. Gomulka. If you want to
discharge him I will certainly allow Mr.
Gomulka to sit here as of counsel and give you
advice, if you think that you might need it,
but what I will not do is discharge him and
appoint you other counsel.
Now if you're _ or you decide to hire an
attorney during the course of these
proceedings, there is nothing to restrict from
you hiring an attorney at any time to get
independent counsel, and I'm satisfied that
Mr. Gomulka would probably welcome that
proposition, but in my experience, and in my
discretion, at this point in time I'm not
going to remove Mr. Gomulka from his duties
and responsibilities of representing you. Ifyou're adamant about discharging him I'll
allow you to discharge him, but I'm going to
still require that he sit there and be of
counsel to you, in the event that you think
that you might need to call on his advice
during the course of these proceedings. So
would you like to have him represent you or
not?
Defendant failed to respond to the question. Instead, Defendant
asked, “But isn't that going against my Constitutional right?” The
trial court responded, “Well, I appreciate that response, but now
I want to remind you of my question. Do you want me to discharge
him and have him sit there and just give you advice when you call
on him, or do you wish to have him continue to represent you?”
Again, instead of answering the trial court's question, Defendant
suggested that the trial court's ruling violated his constitutional
rights. At that point, the trial court ended the colloquy and had
the jury brought in.
The Sixth Amendment to the United States Constitution, made
applicable to the various states by the Fourteenth Amendment, and
Article I, §§ 19 and 23 of the North Carolina Constitution
guarantee an indigent defendant the right to court-appointed
counsel. It is well-settled that the right to court-appointed
counsel does not extend to the right to have court appointed
counsel of the defendant's choice. State v. Thacker, 301 N.C. 348,
352, 271 S.E.2d 252, 255 (1980). In instances in which a defendant
moves to have his attorney removed, the court is required to
“inquire into defendant's reasons for wanting to discharge his
attorney[] and to determine whether those reasons were legally
sufficient to require the discharge of counsel.” State v.Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981); see 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 client that renders counsel incompetent, the
motion is properly denied. Anderson, 350 N.C. at 167, 513 S.E.2d
at 305-06. Our Supreme Court has stated that 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. State v. Robinson,
290 N.C. 56, 66, 224 S.E.2d 174, 179 (1976).
A defendant may waive his right to appointed counsel and
represent himself. State v. Carter, 338 N.C. 569, 581, 451 S.E.2d
157, 163 (1994), cert. denied, 515 U.S. 1107, 132 L.Ed.2d 263
(1995). That waiver, however, must be clear and unequivocal. Id.
To be entitled to relief based upon the improper denial of a
request to represent oneself, a defendant must show that he was
materially prejudiced by denial of his request, i.e., he must show
that he received ineffective assistance of counsel. State v. Cole,
343 N.C. 399, 411, 471 S.E.2d 362, 367 (1996), cert. denied, 519
U.S. 1064, 136 L. Ed. 2d 624 (1997).
Again, the instant case had been pending for almost a year,
and was the subject of a speedy trial motion. The trial court
twice inquired into Defendant's dissatisfaction with court-
appointed counsel. Defendant mentioned the fact that counsel had
only visited him three times since being appointed just two monthspreviously. Defendant was also unhappy that counsel reminded him
of the State's plea offer just prior to trial. Defendant believed
that counsel was not acting in his best interests in reminding him
about the State's plea offer. Nothing in the record shows the
requisite conflict between counsel and Defendant that would render
counsel incompetent. Indeed, the record tends to show a mere
disagreement involving the approach to defending against the
present charges. See Robinson, 290 N.C. at 66, 224 S.E.2d at 179
(stating that disagreement over trial tactics generally does not
render the assistance of the counsel ineffective). Notably, after
proceeding to trial after his requests for substitute counsel had
been denied, Defendant pled guilty to misdemeanor driving while
license revoked, and admitted to having attained habitual felon
status -- each time noting, while under oath, his satisfaction with
appointed counsel. We, therefore, reject Defendant's argument that
the trial court erred in denying his motion to discharge appointed
counsel.
As to Defendant's request to represent himself, we note that
the transcript pages cited by Defendant fail to show a “clear and
unequivocal” request in that regard. Moreover, on this record,
Defendant fails to show how he was prejudiced by the trial court's
failure to allow him to represent himself. Indeed, the record
shows that counsel was most zealous in representing Defendant,
despite Defendant's attempts to have him discharged from the case.
As Defendant presented no legitimate grounds to have counsel
removed from his case, and failed to “clearly and unequivocally”ask the trial court to let him represent himself, Defendant's
argument fails.
Finally, Defendant argues that the trial court erred in
denying his motion to continue his trial so that he could retain
substitute counsel. We are, however, unable to find any motion for
continuance made by Defendant in the record on appeal.
Accordingly, this matter does not appear to be properly before the
Court on appeal. To the extent that the Court could construe
Defendant's motion to discharge appointed counsel and obtain
substitute counsel as a motion to continue, we conclude that
Defendant failed to show that the trial court abused its discretion
in failing to continue this matter.
In sum, Defendant's case had been pending for almost a year
and was the subject of a speedy trial motion. Moreover,
Defendant's motions were made on the day of trial, and he gave no
reason for not making his motion to discharge counsel beforehand.
State v. Searles, 304 N.C. 149, 155, 282 S.E.2d 430, 434 (1981)
(upholding the trial court's denial of the defendant's motion to
continue because the “defendant's oral motion . . . made on the
date set for trial, was not supported by some form of detailed
proof indicating sufficient grounds for further delay”). Finally,
the reasons that Defendant gave for discharging appointed counsel
were not sufficient to entitle him to the requested relief. See
State v. McCullers, 341 N.C. 19, 32, 460 S.E.2d 163, 170 (1995)
(“'[C]ontinuances should not be granted unless the reasons therefor
are fully established. Hence, a motion for a continuance should besupported by an affidavit showing sufficient grounds.'” (citations
omitted)).
Having so concluded, we hold that Defendant received a fair
trial, free from prejudicial error.
No error.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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