State v. Hurst, 8512SC854

• Decision Date: 15 July 1986
• Docket Number: No. 8512SC854,8512SC854
• Citation: 82 N.C.App. 1,346 S.E.2d 8
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Charles Alfred HURST.

Page 8

346 S.E.2d 8

82 N.C.App. 1

STATE of North Carolina v. Charles Alfred HURST.

No. 8512SC854.

Court of Appeals of North Carolina.

July 15, 1986.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Newton G. Pritchett, Jr., Raleigh, for the State.

James R. Parish, Fayetteville, for defendant-appellant.

BECTON, Judge.

From judgments imposing prison sentences totaling twenty years following his conviction of robbery with a dangerous weapon and felonious larceny, defendant, Charles Alfred Hurst, appeals.

I

On 6 October 1984, Ms. Shields, who was shopping in Fayetteville, North Carolina, returned to her car and locked two grocery bags and her pocketbook, containing personal property valued at more than $400.00, in the trunk. She then unlocked the driver's door to enter the car, but she felt someone behind her. A young man told her to move over. She screamed, and the man pointed a gun at her and threatened to shoot if she screamed again. She asked the man to let her go, and another man standing in front of the car said, "Let her go." She slid out of the car, with the car keys in her hand, screamed and fled, but the man with the gun took the keys from her hand before she got away. He then drove the car away.

The next day, Ms. Shields' abandoned car was discovered by the police. In the glove compartment, there was a wallet containing a high school identification card with the defendant's name and picture on it. On 8 October 1984, defendant was positively identified by Ms. Shields in a photographic line-up.

Two members of the Fayetteville Police Department went to defendant's high school and picked him up. They took defendant to the Law Enforcement Center, arrested him, and read him his Miranda rights. Defendant waived his right to remain silent and described to the officers the events of 6 October 1984 substantially in accordance with Ms. Shields' account. He named his two accomplices and said that he went riding around town. He also said that he had thrown Ms. Shields' pocketbook into a trash can at his school. Defendant took the officers to the trash can, but the contents had been emptied into a dumpster. Defendant helped to search the dumpster; they found only a check and some other papers belonging to Ms. Shields. After broadcasting over the high school's public announcement system a request for assistance in retrieving the pocketbook, the officers were contacted by a student who took them to her home where she had Ms. Shields' pocketbook. Along the way, defendant directed the officers to a friend's apartment where he retrieved Ms. Shields' car keys.

The officers took defendant back to the Law Enforcement Center, read him his rights again, and obtained another waiver. The defendant then gave a recorded account of the incidents of 6 October 1984. One of the officers later recovered the pistol used by defendant.

At trial, defendant's recorded statement was played, over objection, for the jury. The defendant testified that he was high on marijuana on the morning of 6 October 1984 and that he did not remember what happened that day until he "woke up" driving the car. He testified that his account of the day's events was a result of what the officers and his friends had told him.

The jury returned a verdict of guilty on both the robbery with a firearm and the felonious larceny counts. After a sentencing hearing at which the court found aggravating and mitigating factors, the court imposed a sentence greater than the presumptive term for the offenses.

II

Defendant presents ten arguments on appeal. In brief, he asserts that the trial court erred in (1) failing to conduct a full hearing upon defendant's request for the appointment of new trial counsel; (2) admitting a tape recording and transcript without proper authentication; (3) failing to grant a mistrial; (4) failing to dismiss the felonious larceny charge at the close of the evidence; (5) failing to instruct the jury on the defense of voluntary intoxication; (6) failing to strike portions of the prosecutor's closing arguments; (7) finding as an aggravating factor that defendant induced others to participate in the crime; (8) failing to find as a mitigating factor that defendant aided in the apprehension of another felon; and (9) failing to find as a mitigating factor that defendant voluntarily acknowledged wrongdoing at an early stage in the criminal process. Defendant's final argument is that this Court should arrest judgment on the felonious larceny conviction because he cannot be punished for both felonious larceny and armed robbery on the facts of this case. We agree with defendant on his final argument. Therefore, judgment on the felonious larceny conviction is arrested. Because (a) the two convictions were consolidated for judgment and sentencing, (b) a sentence greater than the presumptive term was imposed, and (c) the sentencing court did not indicate to which offense the additional years were added, the case is remanded for resentencing.

III

Defendant argues that when he moved the court to appoint substitute counsel, the court should have conducted a full hearing to determine whether substitution of counsel was appropriate. Defendant twice requested substitute counsel, the first time as follows:

THE DEFENDANT: Your Honor, I would like to make a motion, please, that I would like to have another attorney assigned to me because I don't believe this attorney right here is acting--I don't believe he is protecting me--I mean, defendant me in my best interest and everything. He shows no respect to my family. When he talks to me, he [is] always looking at me like I'm crazy. I do not wish to have this attorney and I wish the State to please give me another attorney.

COURT: Is there anything else you would like to say to the Court before I call the jury back in?

THE DEFENDANT: No, sir.

COURT: All right. Motion denied.

Some time later in the trial, defendant again requested new counsel:

THE DEFENDANT: Your Honor, I would like to say something. I know Mr. Britt, he is trying his best and everything. But I still wish that I could get another attorney because that tape right there, I don't believe it should have been admissible evidence because I done and talked to other lawyers and they said it shouldn't be admissible evidence because I was interrogated. I don't see why you keep--every time this man say something, you keep denying everything and saying sustained. The man ain't going to get to do his job....

An indigent defendant's right to competent counsel at trial does not encompass the right to choose a specific attorney. State v. Thacker, 301 N.C. 348, 271 S.E.2d 252 (1980). Mere dissatisfaction with appointed counsel's services is insufficient to trigger the right to substitute counsel. State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976); State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 [82 N.C.App. 6] (1976). In order to invoke this right, "defendant must show good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust verdict." Sweezy, 291 N.C. at 372, 230 S.E.2d at 528-29 (citations omitted) (quoting United States v. Young, 482 F.2d 993 (5th Cir.1973)). Defendant's right is based on the Sixth Amendment guaranty of effective assistance of counsel, but the defendant must raise an apparently substantial complaint regarding the representation provided. The trial court is required to assure that original counsel is reasonably competent and able to render effective assistance. Thacker, 301 N.C. at 352, 271 S.E.2d at 255.

Although generally it is better practice to inquire into defendant's objections the first time defendant raises serious and substantial complaints, the trial court is not required to conduct a detailed hearing to resolve the issue. Thacker; Sweezy. In the case at bar, defendant raised no issue of conflict of interest or irreconcilable conflict. He noted no instances of incompetency, lack of diligence, or even questionable judgment. See State v. Poole, 305 N.C. 308, 289 S.E.2d 335 (1982) (defendant raised issue of counsel's competence). It appears from defendant's second motion that he believed appointed counsel was "trying his best." Defendant was understandably dismayed at the introduction of the taped statement, but, as the trial court explained, the defense attorney was doing all that he could for defendant.

Each case in which effective assistance of counsel is questioned must be examined individually, and the decision to appoint substitute counsel is committed to the sound discretion of the trial court. State v. Hutchins, 303 N.C. 321, 336, 279 S.E.2d 788, 798 (1981); State v. Bowen, 56 N.C.App. 210, 287 S.E.2d 458, disc. rev. denied and appeal dismissed, 305 N.C. 588, 292 S.E.2d 7 (1982). We hold that it was not error for the trial court in the case at bar to consider defendant's request without a formal hearing. Thacker; Bowen. No abuse of discretion or ineffective assistance of counsel has been shown.

IV

Defendant's second and third arguments, which he presents together, are that the trial court erred in admitting into evidence a taped conversation and a transcript of the conversation without proper authentication and that, therefore, the trial court erred in failing to grant defendant's motion for a mistrial based on the admission of that evidence.

Even assuming the State failed to establish that the defendant's entire statement was recorded and that no unexplained changes, additions or deletions had been made--as is required under State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971)--and even though no witness for the State testified that the recorded statement was accurate or complete, the defendant has failed to demonstrate the prejudicial effect of the admission of the challenged evidence. There was overwhelming evidence that the defendant committed the crime as charged. For example, one officer's testimony recounted ...