Opinion
No. COA12–42.
2012-11-6
STATE Of North Carolina v. Justin Nahshon IRIZARRY, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General V. Lori Fuller, for the State. Daniel F. Read for defendant-appellant.
Appeal by defendant from judgment entered 24 August 2011 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 6 June 2012. Attorney General Roy Cooper, by Special Deputy Attorney General V. Lori Fuller, for the State. Daniel F. Read for defendant-appellant.
GEER, Judge.
Defendant Justin Nahshon Irizarry appeals from his conviction of robbery with a dangerous weapon. Defendant argues, among other contentions, that the trial court erred in allowing him to represent himself. Defendant's written waiver of counsel when combined with the trial court's extensive inquiry regarding defendant's understanding of his right to counsel, the consequences of representing himself, and the possible punishment is sufficient to establish that defendant made a knowing and voluntary waiver of counsel, and the trial court did not err in allowing him to proceed pro se.
Facts
The State's evidence at trial tended to show the following facts. On 21 January 2010, Elizabeth Ann Perez pulled her car into her Charlotte, North Carolina apartment complex at 2:40 a.m. A grey Dodge pulled up behind her and blocked her vehicle. A man exited the passenger side of the Dodge and pointed a gun at Ms. Perez' face. Ms. Perez gave the man her purse, which contained her cell phone, a GPS device, debit cards, and a credit card. The man then got back into the Dodge, and the car left the parking lot.
The police were called and arrived within five minutes. While Ms. Perez did not see the driver of the Dodge, she described the car and told the police that her assailant was a black male, roughly 5'10? tall, who was dressed in all black. He had a black and white bandana covering the bottom half of his face and wore his hair in dreadlocks.
A police officer pulled over a car matching Perez' description at about 3:00 a.m., and Perez was taken to the car. She identified defendant, who was the sole passenger in the pulled over vehicle, as her assailant. Defendant was wearing black pants and a black tee shirt and had his hair in dreadlocks. Ms. Perez identified a pistol found partially concealed under the front passenger seat and a bandana found in the side compartment of the passenger seat as items used by defendant when robbing her. The police found Perez' stolen belongings in the car's glove compartment.
Defendant was indicted for robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and carrying a concealed weapon. Although defendant was appointed counsel on 22 January 2010, he signed a waiver of counsel form on 22 September 2010 waiving his right to all assistance of counsel.
Subsequently, the State elected not to proceed with the charge of carrying a concealed weapon.
Defendant subsequently filed a document entitled “Affidavit of Fact” challenging the trial court's jurisdiction over him. Defendant claimed he was a “Secured Party Member of Council [sic] The Great Sealed National Association of Moorish Affairs” in the “Kannapolis Territory.” Based on defendant's behavior in court, the trial court ordered an evaluation of defendant's capacity to stand trial. Defendant was subsequently determined to be competent to stand trial.
The case proceeded to trial with defendant appearing pro se. On 1 April 2011, the trial court declared a mistrial after a juror conducted internet research at home about defendant.
At the second trial, defendant again sought to appear pro se. Before starting the trial, the trial court conducted a colloquy with defendant and concluded defendant had made a knowing waiver of his right to counsel.
At trial, defendant testified on his own behalf, but did not call any other witnesses. Defendant claimed that he did not participate in the robbery, but rather was in the car because he had gotten a ride from the driver in order to go see his newborn son. Defendant testified that he did not know about the robbery or see the stolen items in the car. Using a MapQuest printout, defendant demonstrated that the location of the robbery was only 10 minutes away from where he was arrested, but the arrest took place 20 minutes after the robbery. Defendant was apparently contending that after the robbery, his friend drove 10 minutes away from the crime scene to pick defendant up and then drove 10 minutes back to where the car was stopped by the police. Defendant asserted that had he participated in the robbery, he would have already been home by the time of his arrest.
At the close of the evidence, the trial court dismissed the conspiracy charge for insufficient evidence. The jury found defendant guilty of the remaining charge of robbery with a dangerous weapon. The trial court sentenced defendant to a presumptive-range term of 54 to 74 months imprisonment. Defendant timely appealed to this Court.
I
Defendant first argues that the trial court did not sufficiently establish that defendant's waiver of counsel at the second trial was a knowing waiver. As this Court has recognized, “ ‘[i]mplicit in this right to counsel is the constitutional right to refuse the assistance of counsel and proceed pro se.’ “ State v. Leyshon, ––– N.C.App. ––––, ––––, 710 S.E.2d 282, 286 (quoting State v. Jackson, 128 N.C.App. 626, 628, 495 S.E.2d 916, 918 (1998)), appeal dismissed,365 N.C. 338, 717 S.E.2d 566 (2011). However, a defendant must express any waiver of counsel “ ‘clearly and unequivocally,’ “ and the trial court must determine whether defendant “knowingly, intelligently, and voluntarily waive[d] the right to ... counsel.” State v. Thomas, 331 N.C. 671, 673–74, 417 S.E.2d 473, 475–76 (1992).
Specifically, N.C. Gen.Stat. § 15A–1242 (2011) mandates that a trial court, in considering a defendant's waiver of counsel, must determine 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.
In this case, defendant points to the following exchange between the trial court and defendant as evidence that the trial court failed to properly determine that defendant's waiver was knowing:
Q. Is it now your desire to waive your right to the assistance of a lawyer?
A. Well, I don't waive any rights because I haven't accepted any lawyer from him. So I'm here to represent myself
Q. Right.
A.—and I'm proceeding through this trial.
Defendant argues that his response in this exchange suggested he was confused and, under Thomas, required that the trial court engage in further inquiry, especially in light of defendant's “Affidavit of Fact” asserting that the trial court lacked jurisdiction over defendant.
In Thomas, 331 N.C. at 675–76, 417 S.E.2d at 476–77, the defendant, in front of one judge, repeatedly asked to appear pro se, but also asked that he be appointed assistant counsel, although he wanted his current counsel discharged. When the defendant refused to sign a written waiver of counsel, insisted that he needed legal assistance, and said that he only waived assistance by his originally-appointed counsel, while still insisting that he proceed pro se, the trial court ordered that defendant be evaluated for his competency to stand trial. Id. at 676, 417 S.E.2d at 477. After the defendant was found competent and the State declared that it was proceeding capitally, the trial judge denied the defendant's request to represent himself, denied his request to appear as co-counsel, removed the original counsel, and appointed two other attorneys to represent the defendant. Id.
Prior to trial on the capital charges, the defendant appeared before a second judge. His new counsel requested leave to withdraw, and the defendant moved to have his counsel dismissed. Id. The defendant argued that he had a constitutional right to appear as “ ‘co-counsel’ “ at his trial. Id. The trial judge then denied the motion to withdraw and the motion to dismiss counsel. Id. The next court date, the defendant referred to himself as “ ‘leading attorney’ “ and his attorneys as his “ ‘assistants.’ “ Id. at 677, 417 S.E.2d at 477. After a brief inquiry that did not clarify the defendant's options, the trial judge interpreted the defendant's statements as a request to proceed pro se, which the judge granted. Id.
Given these facts, our Supreme Court concluded that the “defendant did not ‘clearly and unequivocally’ state a desire to proceed in propria persona. Instead, he was confused about the choices available to him. From the beginning, defendant sought to proceed to trial as lead counsel of a defense team which was to include licensed, appointed attorneys.” Id. at 675, 417 S.E.2d at 476. The Court ultimately held “that defendant's repeated requests here to appear as ‘leading attorney’ at the head of ‘assistant’ counsel did not amount to clear and unequivocal expressions of a desire to proceed pro se. The trial court thus erred in allowing him to do so.” Id. at 678, 417 S.E.2d at 478.
In contrast, in this case, defendant, prior to the first trial, signed a written waiver of all counsel that he never withdrew. See State v. Hyatt, 132 N.C.App. 697, 700, 513 S.E.2d 90, 93 (1999) (“Once given, a waiver of counsel is good and sufficient until the proceedings are terminated or until the defendant makes known to the court that he desires to withdraw the waiver....”). A waiver of counsel signed by a defendant and certified by the trial court is “ ‘presumed to have been knowing, intelligent, and voluntary, unless the rest of the record indicates otherwise.’ “ State v. Sorrow, –––N.C.App. ––––, ––––, 713 S.E.2d 180, 182 (2011) ( quoting State v. Warren, 82 N.C.App. 84, 89, 345 S.E.2d 437, 441 (1986)).
The trial court also went through an extensive inquiry regarding defendant's education, his understanding of his right to have an attorney, his understanding of what he would be required to do during the trial if representing himself, the fact that defendant had represented himself in the prior trial, and the maximum punishment defendant faced. The trial court asked defendant a total of 32 questions, which included the 14 model questions (with some minor variation) that our Supreme Court has said should guide trial courts in making a “thorough inquiry.” See State v. Moore, 362 N.C. 319, 328, 661 S.E.2d 722, 727 (2008) (“While these specific questions are in no way required to satisfy the statute, they do illustrate the sort of ‘thorough inquiry’ envisioned by the General Assembly ... and could provide useful guidance for trial courts when discharging their responsibilities under N.C.G.S. § 15A–1242.”).
Further, contrary to defendant's assertion on appeal, the trial court did not end its inquiry after the exchange quoted above, but rather the trial court continued to question defendant in order to clarify what defendant meant:
Q. Right. I mean, what you're telling me though is that you want to represent yourself rather than having a lawyer do it.
A. Yes. I'm here representing myself.
Q. Okay. So you're not wanting a lawyer to help you?
A. No.
Q. Okay. You're wanting to be your own lawyer and represent yourself?
A. Yes; on my own.
Q. And so that also means you don't want me to appoint a counsel to represent you?
A. No.
In contrast to Thomas, the trial court's inquiry established defendant's unambiguous desire to represent himself.
Defendant, however, points to his “Affidavit of Fact” as suggesting that he did not fully appreciate the consequences of his decision:
[W]hile [the Affidavit of Fact] appears to be intelligent and reasonably 0well written, [it] posits a legal reality quite different from that of the Superior Court of Mecklenburg County which is where this case was tried. The trial court did not explain that regardless of his religious claims or claims of national identity the only law that would apply to Defendant was the law of the State of North Carolina.
However, defendant filed the affidavit prior to the first trial. Thus, he had already represented himself at one trial, and, therefore, there is no indication that defendant misunderstood what law would apply to his case in the second trial.
While defendant also points to inadequacies in his self-representation, those inadequacies—a failure to object to being tried in his jail jumpsuit and a failure to move to dismiss—are not sufficient to indicate that defendant did not make a proper waiver of counsel. The trial court, therefore, did not err in allowing defendant to represent himself. See State v. Whitfield, 170 N.C.App. 618, 621–22, 613 S.E.2d 289, 291–92 (2005) (holding that defendant's interrupted statement—“ ‘Excuse me. I cannot hire my own lawyer because I [.]”—was not sufficient to suggest a lack of knowing waiver of counsel when court conducted inquiry required under N.C. Gen.Stat. § 15A–1242, and defendant orally and in writing waived counsel).
II
Next, defendant contends that the trial court erred by overruling defendant's objection to the State's characterization of defendant's “story” as a “fantasy” during closing arguments. The prosecutor first argued, over defendant's objection, that defendant is “asking you to suspend reality and believe the story, the fantasy, that he's come up with.” The State, without objection, twice more used the word “fantasy,” asserting that defendant “is the one who had a reason to get up there and tell you a fantasy” and that the jury should “[d]raw [its] conclusions from [the facts] and not from a fantasy story.” Defendant argues that the trial court erred in failing to intervene ex mero motu with respect to the latter references.
It is well established that “counsel are given wide latitude in arguments to the jury and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence.” State v. Richardson, 342 N.C. 772, 792–93, 467 S.E.2d 685, 697 (1996). Nevertheless, N.C. Gen.Stat. § 15A–1230(a) (2011) provides:
During a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.
(Emphasis added.)
Defendant contends that the prosecutor, by referring to defendant's version of the facts as “fantasy,” improperly expressed a personal opinion that defendant was lying in violation of N.C. Gen.Stat. § 15A–1230(a). As our Supreme Court has stressed, “[i]t is improper for a lawyer in his argument to assert his opinion that a witness is lying. He can argue to the jury that they should not believe a witness, but he should not call him a liar .” State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 345 (1967).
Our courts have recognized that not all arguments are improper simply because they suggest that a defendant's testimony or version of events should not be believed. In State v. Bunning, 338 N.C. 483, 489, 450 S.E.2d 462, 464 (1994), the prosecutor told the jury: “ ‘You know, I contend to you. that a man that'll lie about his name and lie about as many things as he has, and given as many names as he has, will lie about anything.... And I contend to you that a person that'll lie about their name will lie about anything.’ “ The Supreme Court found this argument proper because the prosecutor “did not call the defendant a liar,” but rather “asked the jury to conclude the defendant was lying because he had lied about his name and other things.” Id., 450 S.E.2d at 464–65.
During the closing argument in State v. Lawson, 194 N.C.App. 267, 275, 669 S.E.2d 768, 774 (2008), the State described the defendant's testimony as a “ ‘work of fiction’ “ and compared it to the Friday the 13th movies. This Court held that “it was permissible for the prosecutor to argue to the jury as to why it should not believe defendant” and that “[i]t appear[ed] that the prosecutor was just giving reasons to the jury, in his closing argument as to why it should believe the State's evidence over defendant's testimony.” Id. at 275–76, 669 S.E.2d at 774. See also State v. Salem, 50 N.C.App. 419, 431, 274 S.E.2d 501, 508 (1981) (holding that district attorney could ask jury to consider who had reason to lie because “[i]t is not improper for the district attorney to suggest to the jury that the testimony of a defendant should be scrutinized, because a defendant has an interest in testifying falsely, if he believes the jury will give credence to the defendant's false testimony”).
In this case, defendant gave the first closing argument and told the jury: “I don't need a lawyer because I don't have to lie. I'm here to let you know what happened.” He claimed that he had sold his car and needed a ride, so he was picked up from another location and was on his way home when he was stopped and arrested. He argued: “If a robbery happens before I get picked up, how can I commit a robbery if it happened ten minutes before I can even get in a car ten minutes away in an opposite direction from where I'm stopped at 20 minutes later? That doesn't make any type of sense.... I had nothing to do with it because I don't know nothing about it. I couldn't even get there. The State's evidence, I told you, ain't got nothing to do with me. I don't know about it.”
The prosecutor began his closing argument by talking about the jury instruction explaining that the jury should, in determining whether to believe any witness, apply the same test of truthfulness that the jurors' use in their everyday affairs. He then argued: “What Mr. Irizarry is asking you to do is not find him not guilty based on a doubt supported by reason and common sense. He's asking you to suspend reality and believe the story, the fantasy, that he's come up with.” The prosecutor followed this statement by describing defendant's version of the facts and what additional improbable conclusions the jury would have to draw regarding who robbed the victim and how if defendant's version were true.
The prosecutor continued by referring to the jury instruction regarding interested witnesses. He contrasted defendant, whom he described as “the ultimate interested witness” with the State's witnesses, including Ms. Perez and the officers. He noted: “Mr. Irizarry is the one facing punishment for the crime he committed. He is the one who had a reason to get up there and tell you a fantasy.” He then referred to various pieces of evidence and concluded: “Draw your conclusions based on the facts, based on the facts of the case and the evidence you have to support those facts. Draw your conclusions from that and not from a fantasy story. And once you do that, I know that you're going to find Mr. Irizarry guilty of armed robbery.”
Based on our review of the closing arguments, the prosecutor did not stray across the line and express a personal opinion that defendant was lying or call defendant a liar. Instead, the prosecutor was urging the jury to scrutinize defendant's version of the facts, was providing reasons why that version should not be believed, and, as an advocate for the State, was arguing that defendant's version was not reality. The trial court, therefore, did not err in allowing the State to refer to defendant's version of the facts as fantasy.
III
Finally, defendant argues that the trial court committed plain error by giving an instruction regarding admissions by a defendant when, according to defendant, he made no admissions. Defendant further contends that the instruction suggested to the jury that the trial court had formed an opinion that defendant had in fact participated in the robbery.
Because defendant did not object at trial, the standard of review on appeal is plain error. The North Carolina Supreme Court recently addressed plain error review:
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]
State v. Lawrence, ––– N.C. ––––, ––––, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted).
The trial court gave the following jury instruction drawn verbatim from N.C.P.I.—Crim. 104.60 (2005):
If you find from the evidence that the defendant has admitted a fact relating to the crime charged in this case, then you should consider all of the circumstances under which it was made in determining whether it was a truthful admission and the weight you will give to it.
Defendant argues that this instruction was inapplicable because he only admitted that he was a passenger in the car on the night of the robbery, an essentially uncontested fact.
We note first that our Supreme Court has already rejected the argument that this pattern jury instruction constitutes an expression of opinion that the defendant committed the charged crime. See State v. McKoy, 331 N.C. 731, 733, 417 S.E.2d 244, 246 (1992) (holding with respect to admissions pattern jury instruction that “[a] trial court's use of the words ‘tends to show’ in reviewing the evidence does not constitute an expression of opinion on the evidence”).
In addition, an admission need not necessarily be an admission of a specific element of the charged offense. “An admission is a statement of pertinent facts which, in light of other evidence, is incriminating.” State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 879–80 (1986). Here, defendant admitted that he was in the passenger seat of the car 20 minutes after the robbery. Given that Ms. Perez testified that the robber got out of the passenger seat and given that a gun was found under the passenger seat, a bandana matching the one worn by the robber was found next to the passenger seat, and the stolen property was found in the glove compartment in front of the passenger seat, defendant's admission that he was riding in the passenger seat shortly after the robbery was incriminating. See State v. Barnett, 141 N.C.App. 378, 387, 540 S.E.2d 423, 429 (2000) (holding that defendant's statement to police placing him at crime scene and in company of victim was “in the nature of an admission”), aff'd per curiam,354 N.C. 350, 554 S.E.2d 644 (2001). The trial court, therefore, did not err in giving the instruction.
No error. Judges ROBERT C. HUNTER and BEASLEY concur.
Report per Rule 30(e).