State v. Bowen

287 S.E.2d 458 (1982)

STATE of North Carolina v. Anthony Armistead BOWEN.

No. 8128SC873.

Court of Appeals of North Carolina.

March 2, 1982.

*459 Atty. Gen., Rufus L. Edmisten by Associate Atty. Gen., Lemuel W. Hinton, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender, Malcolm R. Hunter, Jr., Raleigh, for defendant-appellant.

HILL, Judge.

The State's evidence tended to show that on 24 July 1980, defendant and Richard Keith Garren discussed using a purchase order from Stroupe Sheet Metal Works to get some tools to sell at the flea market. Kay Ballinger saw defendant sign the name "Ed Smith" on the purchase order; she later gave the purchase order to Garren along with a list of things to get from the Village True Value Hardware Store [hereinafter referred to as "the store"].

Upon receiving instructions from defendant, Garren and Ballinger went to the store on the morning of 25 July. The store clerk "got all the things that I asked for," Garren testified. Garren signed an invoice, "Ed Smith, V.S.S. Job," received the equipment and tools, and left with Ballinger to go to the Dream Land Flea Market. Defendant already was waiting for Garren and Ballinger, and "[a] substantial part of what had been bought at the store was sold at the flea market." Defendant kept the articles that were not sold. Defendant presented no evidence.

In his first argument, defendant contends that the indictment, quoted above, is insufficient to charge the offense of conspiracy and that he thereby was deprived of his constitutional rights to indictment and notice of the charges against him.

An indictment is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense. The indictment must also enable the court to know what judgment to pronounce in case of conviction.

State v. Lowe, 295 N.C. 596, 603, 247 S.E.2d 878, 883 (1978). See State v. Squire, 292 N.C. 494, 234 S.E.2d 563 (1977), cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493 (1978); State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970). "A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means.... As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is completed." State v. Bindyke, 288 N.C. 608, 615-16, 220 S.E.2d 521, 526 (1975). Accord, State v. Abernathy, 295 N.C. 147, 244 S.E.2d 373 (1978).

Taken as a whole, then, we must determine whether the indictment sub judice sufficiently charges the offense of conspiracy. See State v. Blanton, 227 N.C. 517, 42 S.E.2d 663 (1947). In so doing, as the State notes, we must find that the indictment clearly sets forth the purpose and object of the persons involved, "`as in these are to be found almost the only marks of certainty by which the parties accused may know what is the accusation they are to defend.'" State v. Van Pelt, 136 N.C. 633, 639, 49 S.E. 177, 180 (1904), quoting State v. Trammell, 24 N.C. (2 Ired.) 379, 386 (1842).

The indictment clearly charges that defendant conspired with Garren to obtain certain tools and equipment from the store by means of forging a signature to a purchase order. This information sets forth the purpose and object of defendant and Garren, and is sufficient to apprise defendant of the charge of conspiracy. This assignment of error is overruled.

Defendant's second argument alleges that the trial judge erred in denying his motion to replace his court-appointed counsel where he had shown a deteriorated relationship between them. The disagreement *460 between defendant and his attorney, defendant argues, denied him effective assistance of counsel. We do not agree.

The right to effective assistance of counsel, guaranteed by the Sixth Amendment to the United States Constitution, is made applicable to the states by the Fourteenth Amendment. Since there are no "hard and fast rules" that can be employed to determine a denial of this right, "each case must be examined on an individual basis so that the totality of its circumstances are considered." State v. Hutchins, 303 N.C. 321, 336, 279 S.E.2d 788, 798 (1981). See State v. Hensley, 294 N.C. 231, 240 S.E.2d 332 (1978).

An accused has the right to conduct his own defense without counsel but he does not have the right to have the attorney of his choice appointed by the court. [Citation omitted.] Neither does the right to competent court-appointed counsel include the privilege to insist that counsel be removed and replaced with other counsel merely because defendant becomes dissatisfied with his attorney's services.

State v. Sweezy, 291 N.C. 366, 371, 230 S.E.2d 524, 528 (1976). The decision to appoint a different lawyer for a defendant who is dissatisfied with his court-appointed counsel "is a matter committed to the sound discretion of the [trial judge]." United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973), quoted in State v. Sweezy, supra, 291 N.C. at 371-72, 230 S.E.2d at 529. A disagreement over trial tactics, however, generally does not render the assistance of counsel ineffective. State v. Thacker, 301 N.C. 348, 271 S.E.2d 252 (1980); State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976).

We do not propose to review completely the details of defendant's pretrial relationship with his court-appointed counsel; suffice it to say that defendant's complaints about him are based on matters of law and trial tacticsmatters in which counsel is specially trained. The record reveals that defendant was confused about the nature of the charge against him. Regarding the effectiveness of defendant's court-appointed counsel, the following colloquy took place when the trial judge heard defendant on a motion for speedy trial:

COURT: Well, do you have anything else to say to the Court? DEFENDANT: No sir. I'm completely dissatisfied with Mr. Harrell's representation. He's never questioned me about this charge or about any witness to appear in my behalf. COURT: Do you want to appear in your own behalf, then, without Mr. Harrell? DEFENDANT: I don't think I'm qualified without the opportunity to use the law library. COURT: I don't think you are either. If you'll have a seat, we'll call this case for trial, as soon as we get a jury.

Nothing in the record indicates the conflicts were in any way the fault of counsel; rather, it appears they could have been reconciled with the cooperation of defendant. Under these circumstances, we do not find that the trial judge abused his discretion by denying defendant's motion to replace his court-appointed counsel and proceeding with the trial.

It is not error for the trial judge to consider defendant's complaints about his court-appointed counsel without a formal hearing when defendant makes his "wishes and opinions known frequently and vociferously." State v. Sweezy, supra, 291 N.C. at 373, 230 S.E.2d at 529. Here, the judge clearly was made aware of those complaints.

For the reasons stated above, in defendant's trial, we find

No Error.

HEDRICK and BECTON, JJ., concur.