State v. Wiggins

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure. NO. COA13-233 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2013 STATE OF NORTH CAROLINA v. Nash County Nos. 10 CRS 53168, 53170-71, 53182, 53298 DELASIO TIYEZ WIGGINS Appeal by defendant from judgments entered 10 October 2012 by Judge Walter H. Godwin, Jr. in Nash County Superior Court. Heard in the Court of Appeals 29 August 2013. Attorney General Roy Cooper, by Assistant Attorney General Benjamin J. Kull, for the State. Reece & Reece, appellant. by Michael J. Reece, for defendant- CALABRIA, Judge. Delasio Tiyez Wiggins ( defendant ) appeals from judgments entered upon jury verdicts finding him guilty of five counts of breaking and entering ( B&E ), four counts of larceny after B&E, and larceny of a firearm. We find no error. I. Background In May and June 2010, in Nash County, North Carolina, six similar break-ins were reported to the Nash County Sheriff s -2Department ( NCSD ). Items were stolen during the break-ins. Among the items stolen were electronics, cash, jewelry, safes, legal documents and firearms. NCSD questioned Cameron Baines ( Baines ), one of the victims neighbors. Baines saw a gold Camry ( the Camry ) in the driveway of one of her neighbors homes the morning that breakins were reported. Baines noticed that the trunk of the Camry was not properly closed, as if it would not close all the way. Baines also saw two younger black men, both possibly over six-foot getting into the Camry. Baines also noticed one of the men had dreadlocks and the other was clean-cut. On Robbins 16 June ( Deputy 2010, Nash Robbins ) County responded Sheriff s to a Deputy call Stanley regarding a suspicious tannish brown vehicle occupied by two black males. Deputy Robbins located the vehicle and noticed the trunk was not fastened and was flapping. When Deputy Robbins stopped the vehicle because the windows were illegally tinted, the passenger jumped out and ran. Defendant, who was driving, remained in the vehicle. Another officer pursued and detained the passenger. Property was seized from the vehicle and later identified as stolen property from one of the break-ins. -3After Deputy Robbins arrested defendant and took him into custody, he was transported to the NCSD interview room. Deputy Land Robbins turned ( Investigator defendant Land ) for defendant his Miranda rights. over to Investigator questioning, he did Since Darrell not Subsequently, Investigator A. J. Finch ( Investigator Finch ) joined Investigator Land in interview room. read Defendant answered Investigator the Finch s questions, did not ask for an attorney, and agreed to go with the investigators to identify the houses. Over a period of two or three hours, defendant provided the investigators with the addresses of the houses and a list of the items he had taken from each house. After questioning defendant, the Nash County Sheriff s Department transferred defendant to officers with the Rocky Mount Police Department. While defendant was in custody, attorney, David Clapsadl ( Clapsadl ). he was assigned an Before trial, defendant moved to suppress statements made to law enforcement officers since he claimed he was not properly advised of his Miranda rights. his The trial court denied defendant s motion to suppress statements. The Superior Court, meeting, defendant day Clapsadl became after met trial with upset, began in defendant. threw a Nash County During notebook, the broke a -4chair, turned over a table, and hit Clapsadl in the knee with a chair. Although Clapsadl sustained an injury requiring medical attention, defendant denied flinging a chair at Clapsadl. Clapsadl mistrial. moved to withdraw as counsel and requested a Although the State did not oppose Clapsadl s motion to withdraw, the State did oppose the motion for a mistrial. The State argued that previous mistrials had delayed the case and that the court should avoid further delay. When the court asked defendant for his thoughts regarding whether the court should grant or deny a mistrial, defendant answered, What do can [sic] I say? I don t know. The court found that defendant hit Clapsadl with a chair, granted Clapsadl s motion to withdraw as counsel and concluded that defendant had forfeited through his conduct. his right appointed counsel The court denied the motion for a mistrial and did not appoint standby counsel. se. to Defendant proceeded pro The jury returned verdicts finding defendant guilty of five counts of B&E, four counts of larceny after B&E, and larceny of a firearm. The trial consecutive sentences of court sentenced a minimum of defendant fourteen to ten months and a maximum of seventeen months in the custody of the North Carolina Division of Adult Correction. Defendant appeals. -5- II. Forfeiture of Right to Counsel Defendant argues that the trial court erred by determining that he had forfeited his right to counsel. We disagree. As an initial matter, defendant failed to object when the trial court ordered that defendant had forfeited his right to counsel. This Court has held that a defendant does not have to object to a court s ruling when the defendant has forfeited his or her right to counsel in order to preserve the issue for appeal. See State v. Wray, 206 N.C. App. 354, 355, 698 S.E.2d 137, 139 (2010). on the In Wray, the Court based part of its decision defendant s himself. mental incapacity to Id. at 355-56, 698 S.E.2d at 139. properly represent The State contends that since defendant did not suffer from a mental illness, the Wray Court s reasoning does not apply here. Court recognized that denying appellate However, the Wray review of forfeiture cases would prevent review by this State s appellate courts of a trial court s decision to deny appointed counsel, even though the right to counsel is a fundamental right under the Sixth Amendment of the United Carolina Constitution. omitted). States Constitution and the North Id. at 356, 698 S.E.2d at 139 (citation -6Because of this more general concern about the fundamentality of the right to counsel, defendant should not be barred from raising the forfeiture issue on appeal. Unlike waiver, which requires a knowing and intentional relinquishment of a known right, forfeiture results in the loss of a right regardless of the defendant s knowledge thereof and irrespective of whether Wray, the 206 N.C. omitted). defendant App. intended at 357, to 698 relinquish S.E.2d at the 140 right. (citation Therefore, we will address the merits of defendant s appeal. The right Fourteenth to counsel Amendments of is the guaranteed United by States Article I of the North Carolina Constitution. the Sixth and Constitution and A part of this right includes the right of an indigent defendant to appointed counsel. State v. Montgomery, 138 N.C. App. 521, 524, 530 S.E.2d 66, 68 (2000) (citations omitted). It is well settled that de novo review is ordinarily appropriate in cases where constitutional rights are implicated. Wray, 206 N.C. App. at 356, 698 S.E.2d at 140 (citation omitted). A forfeiture results maintaining an orderly negligence, indifference, when trial or the schedule possibly [S]tate's and the interest in defendant's purposeful delaying -7tactic, combine[ ] to justify a forfeiture of defendant's right to counsel[.] Montgomery, 138 N.C. App. at 524, 530 S.E.2d at 69 (citation omitted). [T]he federal and state courts that have addressed forfeiture have restricted it to instances of severe misconduct. 141. of Wray, 206 N.C. App. at 359, 698 S.E.2d at [A]n accused may forfeit his right to counsel by a course serious misconduct towards counsel that illustrates that lesser measures to control defendant are insufficient to protect counsel and appointment of successor counsel is futile . . . . Id. at 360, 698 S.E.2d at 142 (citation omitted). Whether a defendant s conduct is characterized as severe misconduct that should result in forfeiture of the right to counsel depends upon the facts of each case. In the instant case, defendant physically injured Clapsadl in a pre-trial counsel. meeting and Clapsadl moved to Defendant denied assaulting Clapsadl. withdraw as When the court asked defendant what he had to say about Clapsadl withdrawing as his counsel, he responded, Nothing. Clapsadl s request to withdraw and The trial court granted held that defendant had forfeited his right to appointed counsel through his conduct. Generally, courts have found that a defendant s assault and battery on their counsel constitutes serious misconduct -8resulting in Montgomery, the 138 forfeiture N.C. App. of at the 523, right 525, to 530 counsel. S.E.2d at See 68-69 (holding that defendant s assault on his counsel by throwing water on him in court constituted forfeiture and that [s]uch purposeful orderly conduct processes condoned ). and of tactics our to trial Purposefully delay courts delaying and frustrate simply trial cannot or the be otherwise mistreating counsel can also constitute serious misconduct. See State v. Cureton, ___ N.C. App. ___, ___, 734 S.E.2d 572, 577-78 (2012) (holding that defendant forfeited his right to counsel by shouting with, at, and threatening, writing angry being combative letters to his and uncooperative three successive attorneys). Just as this Court determined in State v. Montgomery that the defendant s assault constituted severe misconduct, in the instant case, defendant s assault on his counsel can also be characterized as severe misconduct sufficient to support the trial court s decision that he forfeited his right to counsel. Defendant s assault was even more severe than the assault in Montgomery because Clapsadl required medical care for his injuries as a result of the assault, whereas the attorney in Montgomery did not sustain physical injury from the assault. -9Nonetheless, defendant contends that counsel should be a court s last resort. at 360, 698 S.E.2d at 142. [f]orfeiture of Wray, 206 N.C. App. Defendant specifically points to the Wray Court s holding that the defendant had not forfeited his right to counsel in part because the defendant had not been given an opportunity to participate in the forfeiture hearing. See Wray, 206 N.C. App. at 362-63, 698 S.E.2d at 143. was concerned about the summary nature of the ruling and evidence. particularly Id. at the 369, 698 absence S.E.2d of at The Court trial sworn 147. court s testimony In or addition, [d]efendant had no chance to respond to his counsel s motion to withdraw, and was provided no opportunity to testify or otherwise participate in the hearing before the trial court s order. Id.; see also Cureton, ___ N.C. App. at ___, 734 S.E.2d at 578 (holding that defendant had forfeited right to counsel after counsel testified in a hearing). In the instant case, defendant s attorney made his motion to withdraw and described to the court the incident between himself and defendant. Defendant was questioned regarding the incident, and he denied hitting his attorney with a chair. The court gave defendant the chance to object to his attorney s withdrawal, to which defendant responded, Nothing. The court -10also asked defendant if he had anything to say about his attorney s motion for a mistrial, but defendant only said, What do can [sic] I say? I don t know. Wray is distinguishable because to here defendant hearing on forfeiture. lack of sworn had a chance participate in the While there was a lack of evidence and a testimony at the hearing, defendant had the opportunity to respond to the court and raise any concerns at the time of his attorney s withdrawal. Therefore, while the better practice would have been for the trial court to take sworn testimony, the trial court did not err by holding that defendant had forfeited his right to counsel. III. Miranda Rights Defendant also argues that the trial court erred by denying his motion to suppress statements made to law enforcement officers since he claimed he was not properly advised of his Miranda rights. Since defendant failed to preserve this issue for appellate review, we will not address this issue. An order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction[.] N.C. Gen. Stat. ยง 15A-979 (2013). In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion[.] N.C.R. -11App. P. 10(a)(1) consistently (2013). interpreted North current Carolina North courts Carolina have Rule of Appellate Procedure 10(a)(1) to provide that a trial court's evidentiary ruling on a pretrial motion is not sufficient to preserve the issue of admissibility for appeal defendant renews the objection during trial. unless a State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007) (discussing former N.C.R. App. P. 10(b)(2), amended 1 Oct. 2009). However, in criminal cases, an issue not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error. N.C.R. App. P. 10(a)(4) (2013). In the instant case, the trial court denied defendant s pre-trial motion to suppress his statements to law enforcement, finding During defendant his had trial, voluntarily defendant did waived not his renew Investigators Land and Finch s testimonies. Miranda his rights. objection to Therefore, the only way to review the issue on appeal would be for defendant to allege plain error. allege plain error. However, on appeal, defendant failed to Since plain error must be specifically and -12distinctly contended, defendant s statement that [t]he trial court erred is insufficient to allege plain error. Therefore, defendant has waived this issue for appeal. Assuming, arguendo, that defendant had properly preserved the issue for appeal, his claim still falls short. Supreme Court has held that testimony from law Our state enforcement officers that the defendant was read his rights and acknowledged understanding those rights was sufficient to support a trial court s finding that the defendant had properly been advised of his rights. State v. Swift, 290 N.C. 383, 397-98, 226 S.E.2d 652, 663 (1976). and Finch In the instant case, both Investigators Land testified to the NCSD s policy regarding reading suspects rights, and Investigator Finch specifically testified suspects were advised of their rights every time they were interrogated in custody. Investigator Finch also indicated that during the time defendant identified the houses he had broken into to law enforcement, defendant did not indicate he did not understand his questions. rights or Investigator that Land he wanted provided to stop answering unequivocal testimony that there was no doubt in his mind he had advised defendant of his Miranda rights. According to Swift, the testimony of Investigators Land and Finch, together with defendant s conduct -13indicating his understanding of his rights, is sufficient to support the trial court s finding that defendant had been properly advised of his Miranda rights and voluntarily waived them. Id. IV. Conclusion Since defendant physically injured his attorney and this type of conduct is characterized as severe misconduct, we hold that the trial court did not forfeited his right to counsel. err by finding that defendant Defendant failed to preserve appellate review of the trial court s denial of his motion to suppress and failed to argue plain error therefore, he has waived this issue on appeal. No error. Judges STROUD and DAVIS concur. Report per Rule 30(e). on appeal and