State v. Spinks

• Decision Date: 18 May 2021
• Docket Number: No. COA20-541,COA20-541
• Citation: 860 S.E.2d 306
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Daris Lamont SPINKS

860 S.E.2d 306

STATE of North Carolina

v.Daris Lamont SPINKS

No. COA20-541

Court of Appeals of North Carolina.

Filed May 18, 2021

Attorney General Joshua H. Stein, by Special Deputy Attorney General Scott T. Slusser, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Candace Washington, for defendant-appellant.

ZACHARY, Judge.

¶ 1 Defendant Daris Lamont Spinks appeals from a judgment entered upon a jury's verdict finding him guilty of taking indecent liberties with a child, and from an order imposing lifetime satellite-based monitoring. After careful review, we hold that Defendant received a fair trial, free from error. However, because we conclude that Defendant received ineffective assistance of counsel at the satellite-based monitoring hearing, we reverse the order and remand for a new hearing on the State's application for lifetime satellite-based monitoring.

Background

Factual Background

¶ 2 In April of 2011, six-year-old K.S.¹ attended a sleepover birthday party for her best friend Keasia along with several other children, including Defendant's daughter Tootie. The party was held at the home of Keasia's mother, Defendant's half-sister. K.S. met Defendant at the party; he told her to call him "Uncle Lamont." At some point, Tootie was injured on the trampoline, and Defendant took her to his grandmother's house, where Defendant resided. Tootie's mother picked up Tootie there, and Defendant went to a nightclub with his cousin. Defendant returned to Keasia's home later that night.

¶ 3 After the children jumped on a trampoline in the front yard, Keasia and K.S. went inside and watched television in Keasia's bedroom. Eventually, the two girls fell asleep in Keasia's bed. K.S. awoke when she heard someone enter the room. Defendant began touching K.S.’s back. Defendant then pulled down K.S.’s pants, "pulled his private part out and put it in [K.S.’s] behind." Defendant stopped after approximately ten minutes and left the room. Keasia was in the bed with K.S. during the encounter.

¶ 4 The next morning, K.S. and Keasia told Keasia's mother that Defendant had raped K.S., but no one told K.S.’s mother. One year later, in March of 2012, K.S. told her mother and her aunt that Defendant had raped her.

¶ 5 On 25 June 2012, Defendant was arrested.

Procedural History

¶ 6 On 1 April 2013, a Guilford County grand jury returned indictments charging Defendant with first-degree sex offense of a child by an adult and taking indecent liberties with a child. Defendant was first represented by public defender Wayne Baucino. Upon his withdrawal, the trial court appointed attorney Joe Floyd to represent Defendant. Mr. Floyd represented Defendant for approximately three years, at which point Defendant sought to discharge him. On 15 September 2015, the trial court appointed attorney Alec Carpenter to represent Defendant.

¶ 7 On 22 August 2016, Mr. Carpenter moved to withdraw as Defendant's counsel. The trial court granted the motion and appointed attorney Aaron Wellman to represent Defendant.

¶ 8 Despite being represented by counsel, on 13 October 2016, Defendant filed a pro se motion for speedy disposition pursuant to N.C. Gen. Stat. § 15A-711. Defendant's case was thereafter calendared for trial for the week of 13 February 2017. However, on 1 February 2017, Defendant moved to continue trial of this matter, which the trial court granted. At the same hearing, the trial court also denied Defendant's 13 October 2016 motion for speedy disposition, concluding that the State had complied with its obligations pursuant to N.C. Gen. Stat. § 15A-711 by calendaring the matter for trial for 13 February 2017. The court further concluded that "all days from February 13th, 2017 through such date that Defendant, through Attorney Wellman, and the State ... designate as an agreed-upon trial date shall not count against the six month period in which the State was required to proceed upon the filing of Defendant's motion dated October 13th, 2016."

¶ 9 While still represented by Mr. Wellman, on 1 May 2017, Defendant filed another pro se motion and request for dismissal, alleging a violation of his right to a speedy trial on the grounds that more than six months had elapsed since the filing of Defendant's motion for speedy disposition pursuant to § 15A-711.

¶ 10 On 22 October 2018, Defendant appeared with Mr. Wellman in Guilford County Superior Court before the Honorable Jerry Cash Martin, and made an oral motion to have Mr. Wellman removed "for cause." The trial court denied the motion to remove defense counsel for cause, but permitted Mr. Wellman to withdraw. Defendant then waived his right to the appointment of counsel, and the trial court allowed Defendant to proceed pro se , with Mr. Wellman serving as standby counsel.

¶ 11 On 13 November 2018, Defendant filed a pro se motion to dismiss the charges against him, alleging a violation of his constitutional right to a speedy trial. On 25 March 2019, Defendant filed another pro se motion to dismiss on the same basis.

¶ 12 The matter came on for trial at the 13 May 2019 criminal session of Guilford County Superior Court, the Honorable Michael D. Duncan presiding. On 14 May 2019, the trial court heard Defendant's motion to dismiss on the ground that his Sixth Amendment right to a speedy trial had been violated. Defendant argued that he had been prejudiced by the delay because "a lot of the people that was ready to testify, it's hard for us to get in contact with them now." In particular, Defendant explained that he had intended to call his cousin, a truck driver, as an alibi witness, but "[i]t's hard to get in touch with truck drivers[.]" Furthermore, he stated that he had not seen his daughter since these allegations arose seven years prior.

¶ 13 The trial court made the following findings in open court regarding Defendant's motion to dismiss for a speedy-trial violation:

[The] Court does find that over a period of time, [Defendant] has had numerous attorneys that -- because of the attorneys -- each new attorney being appointed and having to be brought up to speed, that there has been delay in this matter. The Court does find that that delay has been primarily as a result of [D]efendant's request for new attorneys. That is not totally the reason for all the delays, but that is partially the reason for delays[.]

....

[T]he Court does find that the Honorable Jerry Cash Martin signed an order back on October 22nd, 2018; that [D]efendant had previously been appointed Aaron Wellman; that present for the State, Assistant [District] Attorney Mr. Hubbard; that [D]efendant at that time made an oral motion to have Mr. Wellman removed; that after hearing evidence, the Court in its discretion denied removing the attorney, but did allow Mr. Wellman to be discharged; that [D]efendant would be allowed to represent himself; that Mr. Wellman would remain as standby counsel.

Again, the Court finds that the lead officer investigator in this case had a serious health condition. For a period of time, she was unable to be present for court. The Court has listened carefully to the arguments of [Defendant], and [Defendant] has indicated that -- or he claims that he's been prejudiced by the fact of this taking so long to be tried that a lot of the witnesses, although they are still around; that one is a long-distance truck driver and they're hard to get up with; that other witnesses are hard to get up with. The Court didn't hear that any of them are not available or that he subpoenaed any of them and that they were unable to be served or anything of that nature.

The Court does find that without any evidence that the [D]efendant[ has] failed to show any prejudice in this matter as far as the length and delay. As a result, many of the continuances were based upon the fact that attorneys had to be appointed and given time to catch up to speed. The Court does note that it is [an] abnormal length of time from the date of the indictments and these cases till the date of this trial; however, based upon the totality of all the circumstances and the finding that the Court's made that there have been no prejudice, the Court is going to deny [D]efendant's motion to dismiss.

¶ 14 Defendant noted his objection for the record. Defendant then requested that the trial court appoint his standby counsel to represent him at trial. The trial court reappointed Mr. Wellman to serve as defense counsel.

¶ 15 On 17 May 2019, during jury deliberations, the trial court received a note from the jury foreperson, stating:

One of the jurors spoke to his mother during lunch.

He said "he did not discuss the case" but he "did get her opinion."

He did change his vote on count #2.

He did say this openly.

(Capitalization omitted). "Nathan Mercado" was written above the phrase "one of the jurors."

¶ 16 Defendant moved for a mistrial based on juror misconduct. The trial court questioned Mr. Mercado regarding the alleged misconduct. Mr. Mercado indicated that his conversation with his mother did not influence his opinion:

THE COURT: ... First of all, first question will be who is it that you spoke to when it says "his mother"?

JUROR MERCADO: My mother.

THE COURT: Okay.... What I do want to know is whether or not the discussion with your mother in any way changed your ultimate decision in this case.

JUROR MERCADO: No. I was talking about one of her old cases. That's what we kind of -- we neared off to when she went to High Point about one of her cases. It wasn't -- I just asked her how she carried herself when she was in there.

THE COURT: Okay.... So let me ask this. Whatever conversation or discussion that you may have had with your own mother, did it in any way change the ultimate decision in your -- as how you voted in this case?

JUROR MERCADO: No, sir.

THE COURT: Secondly, did you base your decision, whatever it may have been in this case, on anything other than the evidence that was presented here this week, the facts that were brought out in court that you find the

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