State v. Wood, No. COA07-912 (N.C. App. 3/4/2008)
| Decision Date | 04 March 2008 |
| Docket Number | No. COA07-912,COA07-912 |
| Parties | STATE OF NORTH CAROLINA v. MARK ANTHONY WOOD |
| Court | North Carolina Court of Appeals |
Glenn, Mills & Fisher, P.A., by Carlos E. Mahoney, for defendant-appellant.
Mark Anthony Wood ("defendant") appeals from judgment entered 22 February 2007 upon jury verdicts finding him guilty of common law robbery, financial card theft, and attaining the status of an habitual felon. For the following reasons, we hold no error.
On the afternoon of 14 September 2005, Joyce Engstrom ("Engstrom"), then seventy-six years old, was in a grocery store parking lot in Clemmons, North Carolina. After placing the groceries she had purchased in her vehicle, she entered the vehicle, started it, and lowered the driver's side window. A bright blue car pulled up next to her vehicle, facing the opposite direction, and a man with brown hair, a brown mustache, and wearing a white t-shirt and jeans, got out of the car. The man asked Engstrom if she had a pen, and after telling him that she did not have a pen, the man stated, "Well, I'll take your billfold." Engstrom replied, "No, you won't," at which point the man reached through Engstrom's window and stated, "I have a gun and I will shoot you." Engstrom did not see a gun, but she was frightened. The man grabbed Engstrom's arm and took the billfold, containing six to ten dollars and several credit cards, from her purse. Engstrom unsuccessfully attempted to move the purse away from her assailant, and she beeped her vehicle's horn, trying to get someone's attention, until she saw that the man was gone. After the man left, Engstrom drove home and called the police.
On 19 September 2005, Detective Phillip Spainhour ("Detective Spainhour") was provided defendant's name as a possible suspect. Detective Spainhour generated a photographic lineup, but Engstrom was unable to identify her assailant from the lineup.
On 5 October 2005, Engstrom contacted the police again after reviewing her credit card statement and discovering three charges made on 14 September 2005 for which neither she nor her husband could account. Engstrom explained that she had not given anyone permission to use the credit card, and the credit card company removed the charges and issued a corrected statement.
On 7 December 2005, defendant presented to a hospital for spinal disc surgery under the assumed name of "Randall Burcham." On 8 December 2005, defendant was taken into custody on an unrelated matter and transported from the hospital to the Greensboro Police Department, where he was interviewed by Detective Matthew Allred ("Detective Allred"). After being informed of his Miranda rights, defendant confessed to his involvement in the robbery of Engstrom. At trial, defendant testified that he was in extreme pain and severely nauseated at the time, and that he confessed to taking Ergstrom's purse only to stop the interrogation. In contrast, Detective Allred testified that although defendant informed him during the interview that he was experiencing some pain, defendant was lucid and coherent. Detective Allred further testified that (1) defendant's speech was not slurred; (2) defendant made no mention of nausea; and (3) defendant had no difficulty in communicating with Detective Allred or understanding his surroundings. Following the interrogation, Detective Allred relayed defendant's confession to Detective Spainhour. Defendant subsequently was arrested, and on 5 June 2006, defendant was indicted for common law robbery, obtaining property by false pretenses, and attaining the status of an habitual felon.
At a pre-trial status conference on 3 July 2006, defendant indicated that he had not asked for a court-appointed attorney and that he did not wish to be represented by the court-appointed attorney. The trial court ruled that the court-appointed attorney would not be permitted to withdraw at that time, but that if defendant later decided that he did not wish to be represented by the court-appointed attorney, he should inform the court and the attorney would make a motion to withdraw. On 30 October 2006, superceding indictments were issued, charging defendant with common law robbery, financial transaction card theft, and being an habitual felon. The indictments alleged as an aggravating factor that the victim "was very old, or mentally infirm or physically infirm." On 21 February 2007, a jury found defendant guilty of all charges as well as the existence of the alleged aggravating factor. The trial court sentenced defendant as a prior record level VI offender to 180 to 225 months imprisonment. Thereafter, defendant gave timely notice of appeal.
On appeal, defendant first contends that the trial court erred by denying his request to represent himself pro se. We disagree.
"It is well-settled that de novo review is ordinarily appropriate in cases where constitutional rights are implicated." State v. Thorne, 173 N.C. App. 393, 396, 618 S.E.2d 790, 793 (2005) (citing Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 338, 554 S.E.2d 331, 332 (2001)). "The right to counsel provided by the Sixth Amendment to the United States Constitution also provides the right to self-representation." State v. White, 349 N.C. 535, 563, 508 S.E.2d 253, 270.71 (1998), cert. denied, 527 U.S. 1026, 144 L. Ed. 2d 779 (1999). "Even before the United States Supreme Court recognized the federal constitutional right to proceed pro se . . ., it was well settled in North Carolina that a defendant `has a right to handle his own case without interference by, or the assistance of, counsel forced upon him against his wishes.'" State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992) (quoting State v. Mems, 281 N.C. 658, 670.71, 190 S.E.2d 164, 172 (1972)). A defendant's "waiver of the right to counsel and election to proceed pro se must be expressed `clearly and unequivocally.'"Id. (quoting State v. McGuire, 297 N.C. 69, 81, 254 S.E.2d 165, 173 (1979)). "Once a defendant clearly and unequivocally states that he wants to proceed pro se, the trial court, to satisfy constitutional standards, must determine whether the defendant knowingly, intelligently, and voluntarily waives the right to in-court representation by counsel." Id. at 674, 417 S.E.2d at 476. When a defendant clearly indicates that he wishes to proceed pro se, North Carolina General Statutes, section 15A-1242 provides that he may proceed pro se only after
the trial judge makes thorough inquiry and is satisfied that the defendant:
(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
(2) Understands and appreciates the consequences of this decision; and
(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.
N.C. Gen. Stat. § 15A-1242 (2005). "The provisions of [section] 15A-1242 are mandatory where the defendant requests to proceed pro se." State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002).
In the case sub judice, a status conference was held on 3 July 2006, at which the following colloquy took place:
. . . .
DEFENDANT: Well, when will I talk to him?
(Emphases added). The trial court then ruled that defense counsel was not permitted to withdraw at that time, but informed defendant, "If later you decide you don't want [the court-appointed attorney], let us know, and he'll make a motion to withdraw." Our Supreme Court has held that "[s]tatements of a desire not to be represented by court-appointed counsel do not amount to expressions of an intention to represent oneself." State v. Hutchins, 303 N.C. 321, 339, 279 S.E.2d 788, 800 (1981). Based upon the quoted exchange between defendant and the court, it is apparent that defendant was dissatisfied with the amount of communication he had with his court-appointed attorney prior to the status conference. Defendant, however, did not clearly express a desire and intention to proceed pro se, and the trial court, therefore, was not required to make the inquiry outlined in section 15A-1242.
Later in the trial proceedings and near the end of the State's presentation of its case-in-chief, defendant stated, (Emphases added). Again, defendant did not express a desire to proceed pro se, but instead, defendant expressed dissatisfaction with his court-appointed attorney and a desire to hire alternate counsel. Accordingly, defendant's assignment of error is overruled.
Defendant next contends that the trial court erred by...
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