An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 December 2005
STATE OF NORTH CAROLINA
v. Cabarrus County
No. 03 CRS 3875
WYLIE WILLIAM ELDER
Appeal by defendant from judgment entered 15 January 2004 by
Judge W. David Lee in Cabarrus County Superior Court. Heard in the
Court of Appeals 2 December 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Tina Lloyd Hlabse, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
Wylie William Elder (defendant) appeals from a judgment
entered 15 January 2004 after a jury found him to be guilty of
operating a motor vehicle to elude arrest. We find no error.
The State's evidence tended to show on 2 March 2003 Cabarrus
County Sheriff's Deputy Steven Derrick Wagoner (Deputy Wagoner)
was dispatched to an address on A Street where a suspect was
fighting with fire and emergency medical services personnel and
family members. After Deputy Wagoner arrived on the scene and
exited from his patrol vehicle, the dispatcher advised him that the
suspect was leaving in a gray S-10 pickup truck. Deputy Wagoner
saw the truck turning onto the eastbound lane of Franklin Streetabout a block away and activated his blue lights and siren. He
then angled his vehicle to partially block the eastbound lane of
Franklin Street. Although other vehicles stopped, the truck
approached Deputy Wagoner's vehicle and went around it.
As Deputy Wagoner pursued the truck, it accelerated and passed
another vehicle on a double-yellow line. The oncoming vehicle
pulled onto the shoulder of the road and Deputy Wagoner continued
the pursuit for about six-tenths of one mile. He opined that the
truck was traveling at sixty-five miles per hour in a fifty-five
mile per hour zone before it slowed and pulled into a residence and
used car lot. Deputy Wagoner got out of his vehicle and ran up to
the truck as defendant was exiting it. He told defendant to place
his hands on the truck. Deputy Wagoner asked defendant why he did
not stop, and defendant said he was trying to get to his friend's
house. When the State asked if [a]t this point did [defendant]
ever attempt to say he didn't see or wasn't aware you were trying
to stop him[,] Deputy Wagoner responded, [n]ot at that time.
Deputy Wagoner had no further conversations with defendant
regarding why he did not stop prior to placing him under arrest.
Deputy Wagoner cited defendant for operating a vehicle on a
highway while fleeing or attempting to flee law enforcement. At
the close of the State's evidence, defendant moved to dismiss the
charge for insufficiency of the evidence. The trial court denied
Defendant testified in his own defense and stated that he was
going to buy cigarettes on the date in question when he saw sevenor eight volunteer emergency vehicles in front of his mother's
house. He said the sight of these vehicles kind of upset him.
After identifying himself to an emergency worker as her son, he
asked one of the men at the scene what was wrong with his mother.
Defendant followed the man up the steps of the house, but he was
attacked. He was then picked up and pushed out of the door and his
leg was injured when he was thrown against the railing baluster.
As defendant was getting back into his truck, this EMS guy, the
one who told me to come up on the porch, grabbed the door and tore
the door off -- the hinge off the door trying to open the door and
I was trying to pull off --.
Defendant left to find help for himself and to take out some
warrants. He admitted seeing the rear of a police vehicle with its
backup lights illuminated as it was backing up out of A Street,
but he said the police vehicle was not blocking the road. He did
not see any lights until he was turning into his friend's driveway
and thought the siren was for an ambulance coming to pickup his
mother. Defendant denied speeding and passing a vehicle on a
Defendant further testified after he stopped his truck, the
deputy got out of his vehicle with his gun drawn and said, Don't
move. Defendant stated the only thing he told Deputy Wagoner was
that he was hurting. On rebuttal, Deputy Wagoner testified
approximately twenty minutes elapsed between the time of his
arrival and when defendant first mentioned any injury to him.
Defendant renewed his motion to dismiss the charge at the close ofall the evidence, and the trial court again denied the motion. The
trial court submitted the charge to the jury.
On 24 April 2003, defendant filed an affidavit of indigency
and was appointed counsel to represent him. Following his
conviction in district court on 7 August 2003 on the charge of
fleeing to elude arrest in a motor vehicle, defendant appealed to
superior court for trial de novo.
On 2 December 2003, defense counsel filed a motion to withdraw
as counsel and a motion for appointment of a forensic examiner to
determine defendant's capacity to proceed.
Prior to the start of trial on 14 January 2004, defense
counsel asked the trial court to verify that defendant wanted her
representation. The following exchange then occurred:
THE COURT: Do you want this lady to be your
DEFENDANT: I'd rather not.
. . . .
THE COURT: Well, would you rather take it on
your own; you want to go on your own?
DEFENDANT: No, I can't afford to do that.
THE COURT: Well, you know, you don't get - -
you don't get a lawyer that happens to match
your karma, you know, just somebody that I
don't like this one, I'll take the next one.
That's not how it works.
Now I'll allow her to proceed with your
consent to represent you or I'll let you
represent yourself. But I'm going to limit
you to those two choices, and I'm going to
tell you that the wiser course in most
instances is to have someone trained in the
law to represent you. Ready to go?
DEFENDANT: Yes, sir.
THE COURT: All right, are you going to tell me
now you're going to fully cooperate with her
or do y'all want to discuss your case, and
you're going to do what's necessary to --
DEFENDANT: Yes, sir.
THE COURT: [T]ry this. And you're ready to
DEFENDANT: Yes, sir.
After the trial court found that defendant had consented to have
defense counsel represent him, a jury was selected and impaneled.
On 15 January 2004, the jury convicted defendant of operating
a motor vehicle to elude arrest. The trial court imposed a
sentence of 120 days, suspended the sentence, and placed defendant
on supervised probation for eighteen months. Defendant appeals.
The issues on appeal are whether the trial court erred by:
(1) denying defendant's motion to dismiss for insufficiency of the
evidence; (2) limiting defendant to accept appointed counsel or
proceeding pro se violating his due process right to retain counsel
of his own choosing; and (3) allowing the State to ask Officer
Wagoner questions implying defendant's guilt due to his silence at
the time of arrest.
III. Motion to Dismiss
Defendant first contends the trial court erred by denying his
motion to dismiss for insufficiency of the evidence. He argues the
State failed to prove that he was operating his motor vehicle for
the purpose of fleeing or attempting to elude a law enforcementofficer. We disagree.
When ruling on a defendant's motion to dismiss, the trial
court must consider the evidence in the light most favorable to the
State. State v. Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189
(1989). The State is entitled to every reasonable inference which
can be drawn from the evidence presented, and all contradictions
and discrepancies are resolved in the State's favor. Id. If
there is substantial evidence - whether direct, circumstantial, or
both - to support a finding that the offense charged has been
committed and that defendant committed it, a case for the jury is
made and nonsuit should be denied. State v. McKinney, 288 N.C.
113, 117, 215 S.E.2d 578, 582 (1975).
The elements of speeding to elude arrest are: (1) operation
of a motor vehicle (2) on a highway or public vehicular area (3)
while fleeing or attempting to elude a law enforcement officer who
is lawfully performing his or her duties. N.C. Gen. Stat. § 20-
141.5(a) (2003). Here, defendant only challenges the sufficiency
of the evidence to support the third element of the offense. When
viewed in the light most favorable to the State, the testimony of
Deputy Wagoner is substantial evidence from which a reasonable
juror could find defendant knew he was fleeing or attempting to
elude a law enforcement officer who was lawfully performing his
duties. Deputy Wagoner testified he activated his vehicle's siren
and blue lights and partially blocked defendant's lane with his
patrol vehicle, as defendant was approaching Franklin Street.
After defendant went around Deputy Wagoner's vehicle, his truckaccelerated. As Deputy Wagoner pursued him, defendant passed
another vehicle on a double-yellow line. At one point, defendant's
truck was traveling sixty-five miles per hour in a fifty-five mile
per hour zone. This testimony was substantial evidence of the
challenged element. The trial court did not err in denying
defendant's motion to dismiss. This assignment of error is
IV. Appointed Counsel
Defendant next contends the trial court erred by expressly
limiting him either to accepting appointed counsel or to proceeding
pro se. He argues the trial court's limitation violated his due
process right to use retained counsel. We disagree.
A defendant's right to select his own counsel cannot be
insisted upon in a manner that will obstruct an orderly procedure
in courts of justice, and deprive such courts of the exercise of
their inherent powers to control the same. State v. Poole, 305
N.C. 308, 318, 289 S.E.2d 335, 342 (1982) (citing Lee v. United
States, 235 F.2d 219 (D.C. Cir. 1956)). Our review of the colloquy
between defendant and the trial court compels the conclusion that
defendant was requesting the appointment of substitute counsel.
From his counsel's 2 December 2003 motion to withdraw, it is
apparent that defendant had expressed dissatisfaction with
appointed counsel's representation almost six weeks prior to his
trial. Defendant neither mentioned to the trial court any efforts
on his part to retain counsel nor did he request a continuance for
that purpose. In his affidavit of indigency, defendant stated hehad been unemployed since 1996 and had no monthly income. From the
evidence before the trial court and the record, it appears
defendant was not in a financial position to employ counsel of his
own choosing and had made no efforts to retain counsel.
When a defendant is assigned appointed counsel, he may not
demand counsel of his choice. State v. Anderson, 350 N.C. 152,
167, 513 S.E.2d 296, 305, cert. denied, 528 U.S. 973, 145 L. Ed. 2d
326 (1999). Nor does a defendant have the right to insist upon the
appointment of new counsel merely because he has become
dissatisfied with the services of his appointed counsel. Id. at
167-68, 513 S.E.2d at 306. In the absence of any substantial
reason for the appointment of replacement counsel, an indigent
defendant must accept counsel appointed by the court, unless he
wishes to present his own defense. State v. Hutchins, 303 N.C.
321, 335, 279 S.E.2d 788, 797 (1981). Defendant has not shown good
cause for substitution of his appointed counsel, such as a conflict
of interest, a complete breakdown in communication, or an
irreconcilable conflict. State v. Gary, 348 N.C. 510, 516, 501
S.E.2d 57, 62 (1998). The trial court's decision not to present
the third option of retaining counsel is supported by defendant's
failure to provide a showing of necessity for substitution of new
counsel or to show any prejudice resulting from the representation
of defendant's appointed counsel. The record also shows defendant
expressly agreed to proceed with appointed counsel. See Poole, 305
N.C. at 319, 289 S.E.2d at 342-43. This assignment of error is
V. Implied Guilt
In his final argument, defendant contends the trial court
committed plain error by allowing the State to ask a law
enforcement witness questions which expressly implied his guilt
from his silence at arrest. He argues, the State's attempted use
of [his] failure to immediately deny an accusation not yet made
amounts to an unconstitutional effort to manufacture an involuntary
confession. We disagree.
When a defendant fails to object, he has the burden of showing
that the error constituted plain error. State v. Bishop, 346 N.C.
365, 385, 488 S.E.2d 769, 779 (1997). Although defendant correctly
asserts that a defendant's exercise of his constitutionally
protected right to remain silent . . . may not be used against him
at trial[,] he did not choose to remain silent at the time of his
arrest regarding the facts of the incident. State v. Elmore, 337
N.C. 789, 792, 448 S.E.2d 501, 502 (1994). The in-court
questioning of Deputy Wagoner about the extent of defendant's
statements violated neither his federal nor his state
constitutional right against compelled self-incrimination. See
State v. Alkano, 119 N.C. App. 256, 262, 458 S.E.2d 258, 262
(1995). In addition, there is no evidence in the record that the
State directly commented on defendant having exercised his
constitutional right to remain silent. See id. Defendant has not
shown error, much less plain error, by the trial court's failure to
intervene ex mero motu during the line of questioning. This
assignment of error is overruled.
Substantial evidence was presented to show defendant was
operating a motor vehicle to elude arrest. The trial court did not
err in denying defendant's motion to dismiss. The trial court did
not violate defendant's due process right to use retained counsel
by limiting him to choose between his appointed counsel or acting
where defendant had ample opportunity to retain counsel of
his choice. The trial court did not commit error by not
intervening ex mero moto
in the questioning of Deputy Wagoner.
Defendant failed to show any plain error by the trial court.
Defendant received a fair trial free from the errors he assigned
Judges MCCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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