State v. Cureton

• Decision Date: 06 November 2012
• Docket Number: No. COA12–147.,COA12–147.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Keith Lamar CURETON.

734 S.E.2d 572

STATE of North Carolina

v.Keith Lamar CURETON.

No. COA12–147.

Court of Appeals of North Carolina.

Nov. 6, 2012.

Appeal by defendant from judgments entered 16 June 2011 by Judge Eric L. Levinson in Mecklenburg County Superior Court. Heard in the Court of Appeals 16 August 2012.

Attorney General Roy Cooper, by Assistant Attorney General Jane Oliver, for the State.

Mary March Exum, for defendant appellant.

McCULLOUGH, Judge.

On 24 March 2011, a jury found Keith Lamar Cureton (“defendant”) guilty of six charges: resisting a public officer, felonious breaking or entering, larceny after breaking or entering, felonious possession of a stolen firearm, felonious possession of a firearm by a felon, and also of being an habitual felon. On appeal, defendant contends the trial court erred by: (1) admitting into evidence his statement made to police during a recorded interrogation at the police station, during which time he confessed to having possessed the weapons in question as well as to having committed various property crimes; (2) denying his Sixth Amendment right to counsel by forcing him to proceed pro se at his criminal trial; and (3) determining that defendant forfeited his right to court-appointed counsel. We hold defendant received a fair trial free of prejudicial error.

I. Background

On 17 July 2009, at around 8:35 p.m., Mecklenburg County police officers Morton and Kodad stopped and questioned defendant after observing him standing in the middle of the street, failing to yield to traffic. Defendant appeared agitated and gave the officers a false name. Officer Kodad, suspecting defendant may be dangerous, approached defendant to place him in handcuffs. Before Officer Kodad could reach him, defendant fled on foot toward the breezeway at the Johnson and Wales college dorms. Both officers pursued defendant. At one point during the chase, Officer Kodad rounded a corner and saw defendant moving his hands toward the ground while hunched down at the bottom of a fence. Officer Kodad yelled at defendant to stop, but defendant turned and jumped the fence. The officers continued their pursuit of defendant, and eventually captured him at the base of a brick fence.

After defendant was detained, Officer Morton retraced the path where defendant had fled on foot. At the exact location where Officer Kodad had observed defendant hunched down toward the ground moving his hands, Officer Morton discovered two loaded, silver handguns. One of the handguns was a Highpoint .380 with altered serial numbers. The other handgun was a Lorcin .380 with a serial number identifying it as a handgun that had recently been reported stolen from a residence in Perth Court.

Defendant was subsequently arrested and transported to the Mecklenburg County Jail. On 20 July 2009, at 9:27 a.m., Detectives Grande and Simmons arrived at the Mecklenburg County Jail to question defendant about the handguns as well as defendant's suspected connection to a robbery in Perth Court. At the beginning of the interrogation, Detective Simmons read through the “Waiver of Rights” form, which defendant refused to sign. When asked whether he understood the rights that had been read to him, defendant indicated that he was somewhat confused. Defendant asked the detectives several questions about his rights, particularly about his right to counsel. The detectives explained to defendant that it was his decision whether he wanted to speak to an attorney before answering any questions. Defendant never expressly requested the presence of an attorney. The detectives began interrogating defendant after he repeatedly indicated that he understood his rights and that he wanted to talk. Defendant ultimately confessed to having possessed both of the guns as well as to having committed three breaking or entering violations at Perth Court.

After being formally charged, defendant was appointed counsel on three separate occasions. Defendant's first court-appointed attorney, Gregory Tosi, met with defendant in February 2010. At their first meeting Tosi noticed that defendant appeared groggy and confused. Defendant claimed that he did not remember speaking with the police, nor did he understand why he was in jail. Concerned with defendant's capacity to stand trial, Tosi arranged to have defendant undergo psychological evaluations.

On 22 March 2010, Jennifer Kuehn, a certified forensic examiner, conducted an evaluation to determine whether defendant was capable of proceeding to trial. As a result of her examination, Kuehn concluded:

Mr. Cureton's inability to communicate, whether intentional or due to undetermined cognitive limitations rendered it impossible for this screening to establish his capacity to proceed. Based upon his presentation at the time of the interview, it is my opinion the defendant would not be able to assist his attorney and participate in a meaningful way in his defense at this time ...; his abnormally disengaged affect and communication demands deeper evaluation to discern if the cause is related to his medications, his mental health, or malingering.

Kuehn subsequently recommended that defendant undergo further evaluation at the Pre-trial Center at Central Regional Hospital in Raleigh to determine his capacity to proceed.

On 10 June 2010, defendant was admitted to the pretrial evaluation unit at Dorothea Dix Hospital, and remained there until 17 June 2010. While there, defendant was evaluatedby forensic psychologist Charles Vance, M.D., Ph.D. Dr. Vance's evaluation consisted of a thorough review of defendant's past medical and mental health records, numerous interviews with defendant, and ongoing observations of defendant's behavior while at Dorothea Dix. Defendant was described as “behaviorally cooperative but electively mute,” he “showed poor eye contact ... mumbled ... [and] at times made gestures ... to communicate his meaning.” While Dr. Vance found defendant's behavior “unusual,” he noted that defendant's “presentation ... does not readily conform to the clinical pictures typically encountered for any known mental illness.” In order to further clarify defendant's condition, Dr. Vance administered a modified version of the Competency Assessment for Standing Trial for Defendants with Mental Retardation test. Defendant provided incorrect answers to all but three of the twenty-six questions that he answered. Dr. Vance noted:

As each question on this test had only two possible choices, it could be said that a person would have a 50% chance of guessing any item correctly.... [A]n individual who is completely incompetent ... would still be expected to get approximately half of the items correct purely by guessing.

Dr. Vance believed there was “an overwhelming likelihood that [defendant] was ... intentionally performing badly on this test ... to make himself appear more impaired than was actually the case.” At the end of the week-long evaluation period, Dr. Vance's final conclusion was that defendant “voluntarily and willfully” “presents himself as being too impaired to proceed to trial” and diagnosed defendant as “malingering.” Dr. Vance further concluded, “based on his prior experiences with the legal system, and based on the mental health conditions he does and does not have” defendant was fully competent to stand trial.

On 30 June 2010, the Honorable Forrest D. Bridges entered an order finding defendant capable of proceeding to trial. Judge Bridges' ruling was based on Dr. Vance's forensic report, as well as defendant's demeanor while in court. Prior to the hearing on defendant's capacity to proceed, Defense Counsel Tosi met with defendant to report the results of Dr. Vance's evaluation. Once defendant was informed of Dr. Vance's diagnosis, his behavior towards Tosi was markedly different than it had been previously. Defendant became angry, aggressive, loud and threatening, and accused Tosi of not doing his job. Additionally, defendant refused to speak with Tosi about the evidence, charges, or possible defenses available. Tosi believed the relationship had deteriorated to the point where he could no longer effectively represent defendant, and he moved to withdraw as counsel. This motion was granted and defendant was appointed a second attorney, Christopher Sanders, on 7 July 2010.

Sanders met with defendant on three separate occasions. During the first two meetings, defendant was agitated and combative. Defendant refused to discuss the discovery with Sanders, and he spent the bulk of the second meeting complaining about the plea offer, which he believed was overly harsh. During the third meeting, defendant was extremely loud, combative and animated. Defendant was irrational, uncooperative and continuously shouted at Sanders. At one point, defendant threatened to kill Sanders and spat in his face. This incident caused Sanders to believe his life was in jeopardy, and he feared defendant would harm him if he had the opportunity. On 25 August 2010, Sanders told the Honorable Calvin E. Murphy, Superior Court Judge Presiding, that he wanted to withdraw as defendant's counsel on the grounds that he feared for his personal safety. Judge Murphy allowed Sanders to withdraw as counsel and subsequently advised defendant that he was willing to appoint new counsel to represent defendant, but if defendant's conduct induced this counsel to seek withdrawal, the court might not appoint another attorney to represent defendant.

On 30 August 2010, the court appointed Lawrence Hewitt as the third counsel to represent defendant. Initially, Hewitt and defendant had a cooperative and productive relationship. However, this relationship quickly deteriorated after defendant began mailing Hewitt angry, accusative letters. In one such letter, defendant accused Hewitt of lying to his aunt, and stated that he had turned Hewitt in to the North Carolina State Bar for lying. In another letter, defendant wrote, “Don't come with ... I no longer need you. I will represent...