Appeal by defendant from judgments dated 15 July 2004 by Judge
Zoro J. Guice, Jr., in Superior Court, Macon County. Heard in the
Court of Appeals 14 November 2005.
Attorney General Roy Cooper, by Assistant Attorney General Jay
L. Osborne, for the State.
Melrose, Seago & Lay, P.A., by Nathan J. Earwood, for
Donald Rorie Chapman (defendant) was convicted by a jury on 15
July 2004 of: (1) felony larceny, (2) first degree burglary, (3)
possession of property stolen pursuant to a breaking or entering,
(4) assault inflicting serious bodily injury, (5) first degree
kidnapping, (6) felonious breaking or entering, (7) injuring wires
or other fixtures of a telephone, and (8) robbery with a dangerous
weapon. The trial court also found two aggravating factors and
sentenced defendant in the aggravated range. Defendant appeals.
The State's evidence at trial tended to show that defendant
had violated his probation and wanted to leave town in order to
avoid going to jail, but that he lacked transportation. Defendant
decided to steal his eighty-three-year-old grandmother's car on 25December 2003. Defendant tried to lure his grandmother out of her
house so that he could sneak into the house and take her car keys,
but he was unsuccessful. Defendant made a second attempt to take
his grandmother's car keys on the morning of 27 December 2003.
Defendant broke a window near the back deck, kicked open the back
door, and entered his grandmother's house. Defendant ripped the
telephone off the wall, and took seven dollars and his
grandmother's car keys from her purse. Defendant drove his
grandmother's car to Statesville, where he played pool with several
people. Defendant told an acquaintance he thought he had killed
his grandmother, and the acquaintance called police. That evening,
after a high speed chase, defendant was apprehended by police.
Defendant's grandmother was found locked in her bathroom on 27
December 2003. She had been badly beaten and had severe bruising
and a punctured lung. She also had a ruptured airway which
resulted in permanent damage to her voice, and a liver laceration.
She was hospitalized for more than five months because of her
At trial, defendant testified he never entered his
grandmother's room, and never touched her after breaking into her
house. Defendant claimed an acquaintance named "Chris" was
responsible for his grandmother's injuries. Defendant also claimed
that he and Chris were heavily under the influence of
methamphetamine during much of the time in question. However, at
least four witnesses testified at trial that, at some point after
the robbery, defendant confessed to either killing or injuring afamily member. None of the four witnesses recalled defendant's
mentioning anyone named Chris. In addition, police were never able
to locate anyone matching defendant's description of Chris.
The State contended there were three aggravating factors: (1)
defendant induced others to participate in the offense, (2) the
victim was very old, and (3) the offense was especially heinous,
atrocious or cruel. Defense counsel asked the trial court to
consider that defendant had lived on his own since age fourteen and
had fallen into a "rut" because of his hard life. The trial court
found two aggravating factors: (1) the victim was very old, and (2)
the victim suffered serious injury that was permanent and
debilitating. The trial court found no mitigating factors.
Finding that the aggravating factors outweighed the mitigating
factors, the trial court sentenced defendant in the aggravated
range. On appeal, defendant argues six assignments of error.
Defendant's first assignment of error is that the trial court
committed plain error by failing to instruct the jury on diminished
capacity based on defendant's drug use. Under Rule 10(b)(2) of the
North Carolina Rules of Appellate Procedure, a party may not assign
as error any jury instruction, or lack thereof, unless the party
objected at trial. Defendant failed to request an instruction on
diminished capacity at trial and failed to object to the lack of
such an instruction. When a defendant does not object at trial,
our review of the issue is limited to plain error. N.C.R. App. P.
10(c)(4). To find plain error, an appellate court must examine theentire record and determine that the instruction, or lack thereof,
"had a probable impact on the jury's finding of guilt." State v.
, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983).
In this case, defendant has failed to show that the jury
probably would have reached a different result had the diminished
capacity instruction been given. An instruction on diminished
capacity is warranted when "the evidence of [a] defendant's mental
condition is sufficient to cause a reasonable doubt in the mind of
a rational trier of fact as to whether the defendant has the
ability to form the necessary specific intent." State v. Connell
127 N.C. App. 685, 692, 493 S.E.2d 292, 296 (1997), disc
, 347 N.C. 579, 502 S.E.2d 602 (1998).
Defendant argues that
because he was under the influence of methamphetamine and other
illegal substances for much of the time, he lacked the specific
intent necessary to commit the offenses charged. We disagree.
Diminished capacity can only serve as a defense to specific
intent crimes. See
, State v. Page
, 346 N.C. 689, 698, 488
S.E.2d 225, 231 (1997) (stating that diminished capacity cannot
serve as a defense to second-degree murder because no specific
intent is required for a second-degree murder conviction). In the
present case, two of the eight crimes of which defendant was
convicted are not specific intent crimes: assault inflicting
serious bodily injury and injuring wires or other fixtures of a
telephone. We therefore only consider defendant's argument in
terms of the specific intent crimes of which he was convicted.
We note that later in this opinion we reverse defendant'sconviction for robbery with a dangerous weapon and remand to the
trial court with the instruction to enter judgment on the offense
of common law robbery. Common law robbery is also a specific
intent crime. State v. Lunsford
229 N.C. 229, 231, 49 S.E.2d 410,
412 (1948). The specific intent required for both common law
robbery and robbery with a dangerous weapon is that the defendant
must intend to steal the property. See
, State v. Harmon
N.C. App. 508, 510, 204 S.E.2d 883, 885 (1974) (quoting State v.
, 265 N.C. 528, 530, 144 S.E.2d 572, 574 (1965)) (stating that
to be convicted of armed robbery, a defendant must have possessed
intent "'to deprive the owner of his property
permanently and to convert it to the use of the [defendant].'");
State v. Bailey
, 4 N.C. App. 407, 411, 167 S.E.2d 24, 26 (1969)
(defining the elements of common law robbery as, inter alia
taking with the intent to steal). Because the specific intent
required is the same, the reversal of defendant's conviction does
not affect our analysis.
Defendant's own testimony tends to show that at the time of
commission, defendant possessed the specific intent necessary for
each offense. He rationalized his actions and recounted his plan
to steal his grandmother's car at trial. Defendant testified that
while he was "getting high and tweaked out," he formulated a
DEFENDANT: I was like, "Look dude, this is
what we're going to do. I'm going to bust the
window out the back door. . . . I'm going to
grab the keys. When I grab the keys I'm going
to run outside and I'm going to get in the
car. When I honk the horn that means the carstarted, I'll be back up the driveway and
Defendant took a tool from a backyard shed which he used to
break a window in his grandmother's house. Once inside the house,
defendant had the presence of mind to rip a telephone off the wall,
presumably to prevent his grandmother from calling police.
Defendant testified that after he took the car keys and the seven
dollars, he left his grandmother's house because he "wasn't trying
to rob [his] grandmother for money, credit cards or anything. [He]
was in there to get the car and leave."
Defendant did not demonstrate that his intoxication rendered
him incapable of forming the necessary intent. Rather, defendant's
own testimony shows that he possessed the specific intent necessary
to commit the offenses, even if he was voluntarily under the
influence of drugs. In light of defendant's testimony and other
overwhelming evidence of defendant's intent, defendant has failed
to show that the jury would have reached a different result had the
diminished capacity instruction been given. Accordingly, we hold
that the trial court did not commit plain error.
Defendant's second assignment of error is that the trial court
committed plain error by instructing the jury as to the charge of
robbery with a dangerous weapon. The trial court instructed the
jury that it could consider defendant's hands as dangerous weapons
for the charge of robbery with a dangerous weapon, based on "the
nature of . . . defendant's hands, the manner in which they were
used, and the size and strength of . . . defendant as compared tothe victim." Defendant contends the instruction constituted plain
error because, without being able to consider defendant's hands as
dangerous weapons, the jury could consider only the lesser charge
of common law robbery, and therefore would have reached a different
Under N.C. Gen. Stat. § 14-87 (2005), possessing, using, or
threatening to use any firearms or other dangerous weapon during
the course of a robbery, whereby the life of a person is endangered
or threatened, constitutes the offense of robbery with a dangerous
weapon. Although hands, feet and fists may be considered deadly
weapons in the context of some assault cases, see, e.g., State v.
, 104 N.C. App. 766, 771, 411 S.E.2d 407, 410 (1991), as
this Court recently pointed out, we have not held that hands, feet
and fists can be considered dangerous weapons under N.C. Gen. Stat.
§ 14-87. State v. Duff
, ___ N.C. App.
, 615 S.E.2d 373,
380, disc. review denied
, 619 S.E.2d 853 (2005). In
, holding that an individual's bare hands, fists and feet are
not considered dangerous weapons for the purposes of N.C. Gen.
Stat. § 14-87, we reasoned that
[c]ommon sense and the clear intent of N.C.
Gen. Stat. § 14-87 lead us to conclude that an
individual cannot possess, use, or threaten to
use a dangerous weapon during a robbery where
that individual is not possessing, using, or
threatening to use some external weapon or
instrument during the robbery. The "critical
difference" between armed and common law
robbery "is that the former is accomplished by
the use or threatened use of a dangerous
weapon whereby the life of a person is
endangered or threatened." State v. Peacock
313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985).
Were an individual's bare hands, fists, andfeet considered dangerous weapons for the
purposes of N.C. Gen. Stat. § 14-87, that
"critical difference" would be erased, and the
crime of common law robbery would in effect
merge with the crime of robbery with a
N.C. App. at
, 615 S.E.2d at 381. Accordingly, in the
present case, the trial court erred in instructing the jury on
robbery with a dangerous weapon. Without the instruction, the
jury's verdict necessarily would have been different. Thus, the
instruction constitutes plain error, and we reverse defendant's
armed robbery conviction. Because the evidence supports all of the
elements of the lesser included offense of common law robbery, we
remand this matter to the trial court with instructions to enter
judgment on the offense of common law robbery. See Id
S.E.2d at 381 (reversing the defendant's conviction for armed
robbery and remanding the matter to the trial court with
instructions to enter judgment for common law robbery because
hands, feet and fists cannot be considered dangerous weapons for
the offense of robbery with a dangerous weapon).
Defendant's third assignment of error is that the trial
court's denial of defendant's motion to remove his attorney was a
violation of defendant's constitutional right to effective counsel.
Whether to allow a defendant's motion to remove counsel is a matter
committed to the discretion of the trial court. State v. Skipper
146 N.C. App. 532, 537, 553 S.E.2d 690, 693-94 (2001). Absent a
showing that a defendant's Sixth Amendment right to effective
assistance of counsel was violated, the trial court's ruling willstand. Id
The trial court, in determining a request to withdraw counsel,
"is to make sufficient inquiry into [a] defendant's reasons to the
extent necessary to determine whether [the] defendant will receive
effective assistance of counsel." State v. Poole
, 305 N.C. 308,
312, 289 S.E.2d 335, 338 (1982). This Court has found "sufficient
inquiry" when a trial court simply asked a defendant a few
questions concerning his reasons for requesting new counsel. State
, 105 N.C. App. 594, 597, 414 S.E.2d 55, 57 (1992).
In the present case, the trial court's inquiry consisted of
DEFENDANT: I'd like to fire my lawyer.
THE COURT: Motion denied. You do not have the
right to pick and choose lawyers. You asked
for a court-appointed lawyer and you got one.
While we do not condone the trial court's inquiry, we find
the trial court did not abuse its discretion in denying defendant's
motion to remove counsel. To disturb such a ruling, a defendant
must show that his Sixth Amendment right to effective assistance of
counsel was violated. In order to meet this burden, a defendant
must satisfy the two-prong test articulated in Strickland v.
, 466 U.S. 668, 80 L. Ed. 2d 674, reh'g denied
, 467 U.S.
1267, 82 L. Ed. 2d 864 (1984). Quoting Strickland
, our Supreme
Court has explained:
"First the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
'counsel' guaranteed the defendant by the
Sixth Amendment. Second, the defendant mustshow 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
State v. Braswell
, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)
(emphasis added) (quoting Strickland
, 466 U.S. at 687, 80 L. Ed. 2d
Defendant offers no evidence that defense counsel's
performance was deficient or that the deficient performance
prejudiced defendant. Defendant merely states that "[d]efendant's
trial counsel made blatant errors throughout the course of the
trial, errors that when viewed in totality are highly persuasive of
incompetent counsel." There is not evidence of any deficiency in
the record. A general accusation of "blatant errors," without
more, is not sufficient to meet the two-prong test from Strickland
Accordingly, we find that the trial court did not abuse its
discretion in denying defendant's motion to remove counsel.
Defendant's fourth assignment of error is that the trial
court's finding of two aggravating factors, which caused defendant
to be sentenced in the aggravated range, violated his right to a
trial by jury. During the sentencing phase of defendant's trial,
the trial court found two aggravating factors pursuant to N.C. Gen.
Stat. § 15A-1340.16: (1) that the victim was very old, and (2) that
the victim suffered a permanent and debilitating injury.
In Blakely v. Washington
, the United States Supreme Court held
that without a plea of guilt or a jury finding on additionalaggravating factors, only a sentence within the standard range is
authorized by law. Blakely
, 542 U.S. 296, 303-05, 159 L. Ed. 2d
403, 413-15 (2004). The North Carolina Supreme Court has held that
harmless error analysis does not apply to Blakely
State v. Allen
, 359 N.C. 425, 449, 615 S.E.2d 256, 272 (2005).
Such violations are structural and therefore reversible per se
. In the present case, the trial court found two aggravating
factors without submitting those factors to the jury for proof
beyond a reasonable doubt. Pursuant to Allen
, the trial court
committed reversible error. We therefore remand defendant's case
to the trial court for re-sentencing.
Defendant's fifth assignment of error is that the trial court
erred in sentencing defendant as a Level IV offender rather than a
Level III. Under North Carolina's structured sentencing
guidelines, a defendant is subject to enhanced sentencing based on
his prior convictions. N.C. Gen. Stat. §§ 15A-1340.14, 15A-1340.21
In the case before us, it is clear from the record that
defense counsel, the State, and the trial court overlooked a
mathematical miscalculation when completing the Prior Record Level
Worksheet. The total was mistakenly recorded as thirteen points
(Prior Record Level IV) when it should have been seven points
(Level III). We therefore remand to recalculate defendant's prior
record level pursuant to N.C. Gen. Stat. §§ 15A-1340.14 and 15A-
1340.21, and to re-sentence defendant accordingly.
Defendant's final assignment of error is that defendant's
trial and sentencing were unfair and prejudicial based on an
aggregate of the aforementioned errors. As discussed above, any
errors in sentencing will be remedied when (1) defendant's case is
remanded for re-sentencing pursuant to Blakely
; and (2) defendant
is re-sentenced at the correct prior record level under N.C. Gen.
Stat. §§ 15A-1340.14 and 15A-1340.21.
The sole non-sentencing error occurred at the end of the
trial, when the trial court instructed the jury on robbery with a
dangerous weapon. This error will be remedied when defendant's
judgment for armed robbery is reversed, and the trial court enters
judgment for the offense of common law robbery.
No error in part; remanded in part.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).
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