State v. Gillis ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-1203
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
v. Cabarrus County
No. 09 CRS 003474
MARVA DENYSE GILLIS,
Defendant.
Appeal by defendant from judgment entered 5 June 2013 by
Judge Tanya T. Wallace in Cabarrus County Superior Court. Heard
in the Court of Appeals 17 February 2014.
Roy Cooper, Attorney General, by J. Joy Strickland,
Assistant Attorney General, for the State.
Jon W. Myers, for defendant-appellant.
MARTIN, Chief Judge.
Defendant Marva Denyse Gillis appeals from a judgment
entered upon a jury verdict finding her guilty of impaired
driving. For the reasons stated herein, we find no error in
defendant’s trial.
On 11 April 2009, defendant was arrested for impaired
driving in violation of N.C.G.S. § 20-138.1. The first trial in
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this case took place during the 7 March 2011 criminal session of
Cabarrus County Superior Court. Defendant filed three separate
motions to suppress evidence related to her detention and
arrest. After an evidentiary hearing, the trial court entered a
written order on 8 March 2011, denying defendant’s motions to
suppress evidence. The case proceeded to trial, and after
retiring for deliberations, the jury deadlocked and could not
reach a verdict. The trial court, therefore, declared a
mistrial on 10 March 2011.
The second trial in this case began on 4 June 2013. Before
jury selection, defendant requested permission to personally
address the trial court. Although defendant was represented by
appointed counsel, the court nonetheless allowed her request.
Defendant asked for a continuance in order to allow for the
opportunity to file new pretrial motions which her counsel had
failed to file. In addition, defendant requested that the court
either order her counsel to provide effective assistance or
appoint substitute counsel. In response, the court stated that
all of the pretrial motions had been ruled upon in the previous
trial, and the court agreed with the State that defendant was
thus not entitled to file new pretrial motions. The court then
denied defendant’s motion for a continuance, informed defendant
that only her counsel could speak to the court on her behalf,
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and stated that anyone who made mention of the previous trial
risked being found in contempt of court.
Despite the court’s threat of contempt, Sergeant Timothy
Russell made a remark during cross-examination by defense
counsel which alluded to a prior instance where he had heard
defendant testify. Defendant objected and moved to strike the
comment from the record. The court sustained the objection and
instructed the jury to disregard the comment. Once the State
rested its case, defendant moved for a mistrial, and the court
denied the motion.
On 5 June 2013, the jury returned a guilty verdict. At
sentencing, the trial court found no grossly aggravating,
aggravating, or mitigating factors and sentenced defendant to
Level Four punishment. Defendant appeals.
_________________________
On appeal, defendant argues the trial court erred by
failing to order her appointed counsel to abide by her wishes
regarding trial tactics and denying defendant’s request for the
appointment of substitute counsel. We disagree.
A trial court’s denial of a defendant’s request for the
appointment of substitute counsel will not be disturbed on
appeal absent an abuse of discretion. State v. Sweezy, 291 N.C.
366, 372, 230 S.E.2d 524, 529 (1976). Both the Sixth Amendment
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to the United States Constitution and the North Carolina
Constitution guarantee an indigent defendant the right to
appointed counsel in a criminal prosecution. State v. Taylor,
155 N.C. App. 251, 254, 574 S.E.2d 58, 61–62 (2002), cert.
denied, 357 N.C. 65, 579 S.E.2d 572 (2003). The right to
appointed counsel, however, does not include the “right to
replace appointed counsel merely because the defendant is
dissatisfied with the present attorney’s work or because of a
disagreement over trial tactics.” State v. Prevatte, 356 N.C.
178, 216, 570 S.E.2d 440, 461 (2002), cert. denied, 538 U.S.
986, 155 L. Ed. 2d 681 (2003).
A trial court must appoint substitute counsel “whenever
representation by counsel originally appointed would amount to
denial of defendant’s right to effective assistance of counsel.”
State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980).
“[T]actical decisions——such as which witnesses to call, which
motions to make, and how to conduct cross-examination——normally
lie within the attorney’s province.” State v. Brown, 339 N.C.
426, 434, 451 S.E.2d 181, 187 (1994), cert. denied, 516 U.S.
825, 133 L. Ed. 2d 46 (1995). Only when a “fully informed”
defendant and his or her counsel reach an “absolute impasse” as
to such tactical decisions, must the defendant’s wishes control.
State v. Ali, 329 N.C. 394, 404, 407 S.E.2d 183, 189 (1991).
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Nonetheless, “a disagreement over trial tactics generally does
not render the assistance of the original counsel ineffective.”
Thacker, 301 N.C. at 352, 271 S.E.2d at 255. Denial of a
defendant’s request to appoint substitute counsel is therefore
proper, “when it appears to the trial court that the original
counsel is reasonably competent to present defendant’s case and
the nature of the conflict between defendant and counsel is not
such as would render counsel incompetent or ineffective to
represent that defendant.” Id.In this case, defendant expressed to the trial court her
dissatisfaction with her counsel’s failure to file pretrial
motions and asked the court to either order counsel to provide
effective assistance or appoint substitute counsel. Defendant
asserts that because her counsel’s failure to file pretrial
motions constituted an absolute impasse between defendant and
her counsel as to trial tactics, the court erred by failing to
instruct counsel to abide by defendant’s wishes. Defendant
further contends that her counsel’s failure to file pretrial
motions also gave the court reason to doubt counsel’s competency
as an advocate, and thus, the court improperly denied
defendant’s request for the appointment of substitute counsel.
Defendant and her counsel, however, did not reach an
absolute impasse as to the filing of pretrial motions. Defense
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counsel informed the court that he had spoken with defendant
“extensively” the day before and that “[n]one of the issues that
have been addressed to the Court came up yesterday.” The
record, therefore, discloses no indication of any discussion,
much less an absolute impasse between defendant and her counsel
concerning the filing of pretrial motions. Because defendant
and her counsel did not reach an absolute impasse as to trial
tactics, the court was not required to order counsel to abide by
defendant’s wishes.
Moreover, defendant’s statements to the court merely showed
her dissatisfaction with her appointed counsel and a
disagreement over trial tactics and, thus, did not warrant the
appointment of substitute counsel. See Prevatte, 356 N.C. at
216, 570 S.E.2d at 461. While defendant may have disagreed with
her counsel over trial tactics and there may have been some
communication problem between them, the record before us reveals
no reason for the court to have doubted defense counsel’s
competency as an advocate. We therefore conclude that the trial
court’s denial of defendant’s request for the appointment of
substitute counsel was proper.
Defendant further argues the trial court erred by ruling
that defendant was not entitled to file new pretrial motions
after the motions had been ruled upon in the previous trial and
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denying defendant’s motion to continue the trial in order to
file new pretrial motions. We agree that defendant, in fact,
was entitled to file new pretrial motions because a mistrial had
been declared in the previous trial. See State v. Harris,
198 N.C. App. 371, 376, 679 S.E.2d 464, 468 (“When a defendant’s
trial results in a hung jury and a new trial is ordered, the new
trial is ‘[a] trial de novo, unaffected by rulings made therein
during the [original] trial.’” (alteration in original) (quoting
Burchette v. Lynch, 139 N.C. App. 756, 760, 535 S.E.2d 77, 80
(2000))), disc. review denied, 363 N.C. 585, 683 S.E.2d 211(2009). However, because defendant was represented by counsel,
she was not allowed to represent herself or file motions on her
own behalf. See State v. Grooms, 353 N.C. 50, 61, 540 S.E.2d
713, 721 (2000) (“Having elected for representation by appointed
defense counsel, defendant cannot also file motions on his own
behalf or attempt to represent himself. Defendant has no right
to appear both by himself and by counsel.”), cert. denied,
534 U.S. 838, 151 L. Ed. 2d 54 (2001). The trial court,
therefore, did not err by denying defendant’s pro se motion for
a continuance.
Defendant next contends the trial court erred by denying
defendant’s motion for mistrial in response to a remark made by
Sergeant Russell during the following exchange between defense
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counsel and Sergeant Russell on cross-examination:
[DEFENSE COUNSEL]: And you’d have no
knowledge of how she speaks?
[SERGEANT RUSSELL]: That’s correct.
[DEFENSE COUNSEL]: Now, the shoulder of the
road you stated is flat and level.
[SERGEANT RUSSELL]: That’s correct. Now, I
can say that since that time I have heard
her testify, and when I heard her testify,
her speech was not slurred as it was on this
night.
[DEFENSE COUNSEL]: I believe I’m going to
move that that [sic] be struck, that
response be struck from the record.
THE COURT: All right. Sustained. Ladies
and gentlemen, disregard that last comment
by the witness.
Defendant moved for a mistrial based on Sergeant Russell’s
allusion to a prior instance where he had heard defendant
testify. The court denied the motion, stating that the jury had
been instructed to disregard the comment. Defendant argues
Sergeant Russell’s comment was prejudicial to defendant’s case
and, as a result, a mistrial should have been granted. We
disagree.
We review a trial court’s denial of a defendant’s motion
for mistrial for abuse of discretion. State v. Bonney, 329 N.C.
61, 73, 405 S.E.2d 145, 152 (1991). “A trial court should grant
a defendant’s motion for mistrial only when there are
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improprieties in the trial so fundamental that they
substantially and irreparably prejudice the defendant’s case,
making it impossible for the defendant to receive a fair and
impartial verdict.” State v. Diehl, 147 N.C. App. 646, 650,
557 S.E.2d 152, 155 (2001), cert. denied, 356 N.C. 170,
568 S.E.2d 624 (2002). “Where a trial court sustains a
defendant’s objection to the answer of a witness, strikes same,
and instructs the jury not to consider it, the jury is presumed
to have heeded the instruction and any prejudice is removed.”
State v. Gregory, 37 N.C. App. 693, 697, 247 S.E.2d 19, 22
(1978). As a result, when a trial court sustains an objection
and instructs the jury to disregard the testimony, the court’s
denial of a defendant’s motion for mistrial ordinarily does not
constitute an abuse of discretion. State v. Hogan, 321 N.C.
719, 722–23, 365 S.E.2d 289, 290–91 (1988).
Sergeant Russell’s remark about the prior instance where he
had heard defendant testify was brief, oblique, and immediately
addressed by the trial court. The court sustained defendant’s
objection and specifically directed the jury to disregard the
testimony. Moreover, at the outset of the trial, the court
instructed the jury that “[i]f by chance the witness answers the
question before or at the same instant the objection is made and
I sustain the objection, do not consider the witness’s answer to
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the question. Disregard the answer and strike it from your
mind.” These general instructions, alone, were sufficient to
cure any prejudice to defendant’s case resulting from Sergeant
Russell’s testimony. See State v. Vines, 105 N.C. App. 147,
153, 412 S.E.2d 156, 160–61 (1992). We therefore conclude that
the trial court did not abuse its discretion in denying
defendant’s motion for mistrial.
Finally, defendant argues the trial court erred during
sentencing by failing to find that defendant had a safe driving
record as a mitigating factor pursuant to N.C.G.S.
§ 20-179(e)(4). We disagree.
Pursuant to N.C.G.S. § 20-179, the trial court must conduct
a sentencing hearing to determine whether any statutorily
enumerated aggravating or mitigating factors affect a
defendant’s sentence following a conviction for impaired
driving. N.C. Gen. Stat. § 20-179(a) (2013). While the State
must present the defendant’s driving record to the court for
consideration during the sentencing hearing, the defendant
“bears the burden of proving by a preponderance of the evidence
that a mitigating factor exists.” Id. Our review of the record
reveals that defendant failed to argue the safe driving record
mitigating factor at the sentencing hearing. Rather, defendant
only alleged that defendant’s driving was otherwise safe and
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lawful at the time of the offense, which is an unrelated
mitigating factor set forth under N.C.G.S. § 20-179(e)(3).
Because defendant did not meet her statutory burden of proving
the safe driving record mitigating factor, the trial court
committed no error in failing to find this mitigating factor.
No Error.
Judges ELMORE and HUNTER, JR. concur.
Report per Rule 30(e).