Opinion
No. COA10-820
Filed 3 May 2011 This case not for publication
Appeal by defendant from judgments entered 17 September 2009 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 26 January 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Robert M. Curran, for the State. Rudolf Widenhouse Fialko, by M. Gordon Widenhouse, Jr., for defendant.
Buncombe County No. 08 CRS 057085, 09 CRS 000044.
Furman Lester Mills (defendant) appeals from his conviction of attempted first degree murder, his conviction of assault with a deadly weapon with intent to kill inflicting serious injury, and his conviction of having attained the status of violent habitual felon. We find no error.
I. Background
On 11 June 2008, Lori Cropps returned from attending class at community college to the apartment Hillcrest Apartments in Asheville where she had been living for three or four months. The apartment belonged to defendant, whom Ms. Cropps had been dating off and on for four years. Sensing that she and defendant were about to fight, Ms. Cropps gathered her suitcases and left for the bus stop. When she returned to the apartment to retrieve an item that she forgot, defendant asked her what she was doing. Ms. Cropps replied that she was doing "nothing." When Ms. Cropps left again for the bus stop, defendant followed her. At the bus stop, Ms. Cropps told defendant she was leaving. Defendant pulled out a knife and began stabbing her. Ms. Cropps fled from the bus stop towards the administration building of the Hillcrest Apartments. She made it inside, but defendant followed. Defendant continued to stab Ms. Cropps until office employees yelled at him to stop. The police were called. By the time they arrived, defendant had left the scene, and Ms. Cropps had suffered potentially fatal stab wounds to her chest, back, and leg.
The police found defendant lying down on an embankment several hundred yards away and on the other side of a fence from the apartment complex. A locking blade knife was found in his pocket. While in custody, but before being questioned, defendant said, "I'm guilty for doing what I did. I'm going to tell you all about her crack dealings." He also said, "If you're guilty, you're guilty. If you're wrong, you're wrong." Defendant referred to Ms. Cropps as a "damn crackhead," and said, "I'm tired of her running on me like a dog — like I'm a dog. Every damn body will tell you she's no damn good. There ain't no damn school get out at five o'clock in the evening."
Defendant was indicted for attempted first degree murder and assault with a deadly weapon with intent to kill. Defendant was also indicted for having attained the status of violent habitual felon. At trial, defendant admitted to stabbing Ms. Cropps but argued that he lacked the intent to commit the charged crime because he "blacked out" before and during the attack on Ms. Cropps. In support of this theory, defendant testified that he had suffered from migraine headaches for many years and that he occasionally "blacked out." Defendant's son testified that he was aware of defendant's migraines, but that he was unaware of any "black outs."
The State presented evidence indicating that defendant had told Ms. Cropps prior to the 11 June attack that if she ever tried to leave him again, he would kill her. Over defense counsel's objection, the State also presented evidence that, in 1997, defendant had attacked another woman, Mary Ann Twitty, with a knife. The evidence consisted of the testimony of Ms. Twitty, Lieutenant Scott Lindsey of the Tryon Police Department, and Sergeant John Wilson, a former detective with the Tryon Police Department. Ms. Twitty testified that she and defendant dated, that she ended their relationship, and that he made threats to her such as "[i]f I can't have you, no one is going to have you." She further testified that defendant attacked her with a knife on 4 December 1997. Ms. Twitty also stated that defendant told people in a convenience store about this attack after it happened. Lieutenant Lindsey testified as to his observations of the crime scene, including Ms. Twitty's identification of the defendant as the perpetrator of the attack. Sergeant Wilson testified that Ms. Twitty suffered wounds to the chest, back, and buttocks and that defendant had a bloody locking blade knife in his possession at the time of his arrest. The trial court admitted the testimony as proffered proof of intent, motive, or absence of mistake, and gave a limiting instruction to the jury accordingly.
During the State's case-in-chief, defendant moved to discharge his trial counsel. Defendant alleged that his court-appointed attorney had failed to adequately visit him in jail, that he did not share discovery materials with him, that he had failed to obtain medical records concerning defendant's migraines and blackouts, and that he misinformed him of the potential life sentence associated with the charged offenses. After discussing defendant's motion with counsel, the trial court denied the motion.
The jury returned a verdict of guilty on the counts of attempted first degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. The jury also found that defendant had attained the status of violent habitual felon. For the conviction of attempted first degree murder, as a violent habitual felon, the trial court sentenced defendant to life imprisonment without parole. For the conviction of assault with a deadly weapon with intent to kill inflicting serious injury, as a violent habitual felon, the trial court sentenced defendant to life imprisonment without parole, to be served concurrently. Defendant now appeals.
II. Discussion
Defendant makes the following four arguments on appeal: (1) that the trial court erred in admitting testimony concerning defendant's 1997 stabbing of Ms. Twitty; (2) that the trial court erred when it denied defendant's motion to discharge counsel; (3) that the trial court lacked jurisdiction to treat defendant as a violent habitual felon because the indictment was defective; and (4) that the trial court erred in allowing the jury to convict defendant of attempted first degree murder and assault with a deadly weapon with intent to kill when both charges were based on the same conduct. We consider each argument in turn.
A. Ms. Twitty's trial testimony
Defendant first argues that the trial court erred in admitting testimony regarding his 1997 attack on Ms. Twitty because evidence of defendant's past crimes, wrongs, or acts was barred by Rule 404(b) of the North Carolina Rules of Evidence. Rule 404(b) provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2009). Our Supreme Court has noted that, "[w]hen evidence of a prior crime is introduced, the natural and inevitable tendency for a judge or jury is to give excessive weight to the vicious record of crime thus exhibited and either to allow it to bear too strongly on the present charge or to take the proof of it as justifying condemnation of the accused's guilt of the present charge." State v. Carpenter, 361 N.C. 382, 387-88, 646 S.E.2d 105, 109 (2007) (quotations and citations omitted). This "dangerous tendency" requires that the admissibility of such evidence "be subjected to strict scrutiny by the courts." Id. at 388, 646 S.E.2d at 110 (quotations and citation omitted). Nevertheless, "Rule 404(b) clearly provides that evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused." State v. Stager, 329 N.C. 278, 302, 406 S.E.2d 876, 889 (1991) (quotations, emphases, and citation omitted). Specifically, Rule 404(b) expressly states that such evidence is admissible if relevant to prove intent, motive, or absence of mistake. N.C. Gen. Stat. § 8C-1, Rule 404(b) (2009).
"`Relevant evidence' means any evidence having any tendency to make the existence of a fact of consequence to the determination of the action more probable or less probable than it would be without the evidence." State v. Capers, ___ N.C. App. ___, ___, 704 S.E.2d 39, 45 (2010) (citing N.C. Gen. Stat. § 8C-1, Rule 401). In Stager, our Supreme Court further defined relevant evidence as follows:
[I]n a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible. It is not required that evidence bear directly on the question in issue, and evidence is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known, to properly understand their conduct or motives, or if it reasonably allows the jury to draw an inference as to a disputed fact.
329 N.C. at 302, 406 S.E.2d at 890 (quotations and citation omitted). Furthermore, "[a]lthough we review a trial court's ruling on the relevance of evidence de novo, we give a trial court's relevancy rulings `great deference on appeal.'" Capers,___ N.C. App. at ___, 704 S.E.2d at 45 (quotations and citation omitted).
When an accused contends that he is not guilty for lack of the requisite criminal intent, "[e]vidence of similar acts may be offered to show that the act in dispute was not inadvertent, accidental, or involuntary." Stager, 329 N.C. at 304, 406 S.E.2d at 891 (citation omitted). This is because, "[b]ased on the doctrine of chances, `the more often a defendant performs a certain act, the less likely it is that the defendant acted innocently.'" State v. Boczkowski, 130 N.C. App. 702, 707, 504 S.E.2d 796, 799 (1998) (quoting Stager, 329 N.C. at 305, 406 S.E.2d at 891). Admissibility under Rule 404(b) therefore depends on "whether there was `substantial evidence tending to support a reasonable finding by the jury that the defendant committed a similar act or crime and [the evidence's] probative value is not limited solely to tending to establish the defendant's propensity to commit a crime such as the crime charged[.]'" Id. at 706-07, 504 S.E.2d at 799 (quoting Stager, 329 N.C. at 303-04, 406 S.E.2d at 894). Such evidence need not contain similarities that are "bizarre or uncanny; they simply must `tend to support a reasonable inference that the same person committed both the earlier and later acts.'" State v. Murillo, 349 N.C. 573, 593, 509 S.E.2d 752, 764 (1998) (quoting Stager, 329 N.C. at 304, 406 S.E.2d at 891).
The testimony of Ms. Twitty, Lieutenant Lindsey, and Sergeant Wilson shows several similarities between defendant's 1997 attack on Ms. Twitty and his 2008 attack on Ms. Cropps: Both victims of the attack were female, both victims suffered multiple stab wounds to the chest and back as a result of the attack, and in both instances defendant used as his weapon a locking blade knife. Neither woman died as a result of the attack. Both women had been in a romantic relationship with defendant: defendant attacked Ms. Twitty shortly after they broke up; defendant attacked Ms. Cropps when it appeared that she was leaving him; and defendant threatened both women prior to assaulting them. Following both attacks, defendant left the scene. Following both attacks, defendant identified himself as the attacker to a third party without being questioned by police. Finally, following both attacks, defendant was found in possession of a locking blade knife with blood on it.
Evidence of the 1997 stabbing is sufficient to support a reasonable finding that defendant intentionally committed a similar stabbing without a "black out." See Stager, 329 N.C. at 305-06, 406 S.E.2d at 892 (holding that evidence of the death of the defendant's prior husband was sufficiently similar to be admissible in the defendant's trial for the murder of her subsequent husband where the evidence showed that, inter alia, both husbands died of a single gunshot, both husbands were shot with a .25 caliber semi-automatic handgun, and the defendant benefited from insurance proceeds following both husbands' death). Such evidence makes it more likely that defendant had control of his actions when he stabbed Ms. Cropps. Id. at 305, 406 S.E.2d at 891 ("The recurrence or repetition of the act increases the likelihood of a mens rea or mind at fault.") (quotations and citation omitted). The evidence of Ms. Twitty's break-up with defendant before he stabbed her also could have aided the jury in determining whether defendant had motive to stab Ms. Cropps. Finally, the evidence could have aided the jury's determination as to whether defendant understood the potential lethality of a locking blade knife. See id. at 306, 406 S.E.2d at 892 (stating that evidence tending to prove that the defendant used a .25 caliber semi-automatic pistol in a prior shooting could be offered to prove his "knowledge and experience with the operation of and potentially lethal effect of .25 caliber semi-automatic pistols"). This evidence does more than tend to demonstrate defendant's propensity for committing attempted murder and assault, and therefore was properly admitted under Rule 404(b).
This is so despite the fact that defendant's attack on Ms. Twitty occurred eleven years prior to his attack on Ms. Cropps. Our courts have recognized that remoteness in time should be considered when determining whether to admit evidence under Rule 404(b). See, e.g., State v. Lynch, 334 N.C. 402, 412, 432 S.E.2d 349, 354 (1993) (stating that "[t]he admissibility of evidence under [Rule 404(b] is guided by two further constraints — similarity and temporal proximity") (citations omitted). Our Supreme Court has stated, however, that "`remoteness in time is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident; remoteness in time generally affects only the weight to be given such evidence, not its admissibility.'" Carpenter, 361 N.C. at 388, 646 S.E.2d at 110 (quoting Stager, 329 N.C. at 307, 406 S.E.2d at 893). Furthermore, "[w]hen the facts surrounding a prior act are sufficiently similar to those in a case at bar, it may be proper to admit the prior act evidence even if over ten years have passed." State v. Bullock, 178 N.C. App. 460, 468, 631 S.E.2d 868, 874 (2006) (citations omitted) (finding no error in a trial court's decision in a trial for criminal sexual conduct to admit evidence of other criminal sexual conduct that occurred nine years prior to trial because of the high degree of similarity between the earlier and later conduct). As discussed above, defendant's stabbing of Ms. Twitty in 1997 and his stabbing of Ms. Cropps in 2008 constitute very similar events. Given that degree of similarity, the fact that the attack on Ms. Twitty occurred eleven years before the attack on Ms. Cropps is not dispositive. The weight to be afforded the eleven-year-old evidence of this very similar attack was properly submitted for the jury's determination.
Defendant also argues that, even if Rule 404(b) does not bar the admission of the evidence, the evidence should not have been admitted because it presented a risk of unfair prejudice that substantially outweighed its probative value. Rule 403 of the North Carolina Rules of Evidence states that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." N.C. Gen. Stat. § 8C-1, Rule 403 (2009). Whether evidence should be excluded under Rule 403 is within the trial court's discretion. State v. Al-Bayyinah, 359 N.C. 741, 747, 616 S.E.2d 500, 506 (2005) . Evidence of past crimes, wrongs, or acts, even when admitted for a proper purpose under Rule 404(b), can have a high risk of unfair prejudice. See, e.g., State v. McClain, 240 N.C. 171, 174, 81 S.E.2d 364, 366 (1954) ("Proof that a defendant has been guilty of another crime equally heinous prompts to a ready acceptance of and belief in the prosecution's theory that he is guilty of the crime charged . . . and thus effectually [strips] him of the presumption of innocence."). However, even given the risk of unfair prejudice attributable to the testimony of Ms. Twitty, Lieutenant Lindsey, and Sergeant Wilson, the probative value of the testimony was also high. In Stager, our Supreme Court explained:
Where, as here, an accident is alleged, evidence of similar acts is more probative than in cases in which an accident is not alleged. The need for such proof is clear. . . . Rule 404(b) evidence "may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor's state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct."
329 N.C. at 304-05, 406 S.E.2d at 891 (quoting Huddleston v. United States, 485 U.S. 681, 686, 99 L. Ed. 2d 771, 780 (1988)). Defendant argued at trial that he "blacked out" during the attack on Ms. Cropps, and that he therefore lacked the requisite criminal intent for the charges levied against him. Such an argument makes evidence concerning defendant's state of mind critical to a jury's fair determination of the case. Furthermore, the similarity of the 1997 attack on Ms. Twitty and the 2008 attack on Ms. Cropps bolstered the testimony's probative value. That value was not substantially outweighed by the risk of unfair prejudice. For these reasons, the trial court did not abuse its discretion in overruling defendant's Rule 403 objection to the evidence of defendant's attack on Ms. Twitty.
B. The trial court's denial of defendant's motion to discharge counsel
Defendant next argues that the trial court erred in denying his motion to discharge counsel and that this error denied defendant his constitutional right to counsel. "A cardinal principle of the criminal law is that the sixth amendment to the United States Constitution requires that in a serious criminal prosecution the accused shall have the right to have the assistance of counsel for his defense." State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981) (citations omitted) . Therefore, a trial court must appoint substitute counsel when "representation by counsel originally appointed would amount to denial of defendant's rights to effective assistance of counsel." State v. Morgan, 359 N.C. 131, 146, 604 S.E.2d 886, 895 (2004) (quotations and citation omitted). In State v. Sweezy, our Supreme Court explained this duty as follows:
[T]o warrant a substitution of counsel during trial, the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict. If a court refuses to inquire into a seemingly substantial complaint about counsel when he has no reason to suspect the bona fides of the defendant, or if on discovering justifiable dissatisfaction a court refuses to replace the attorney, the defendant may then properly claim denial of his Sixth Amendment right.
291 N.C. 366, 372, 230 S.E.2d 524, 529 (1976) (quotations and citations omitted). On the other hand, "[w]hen a defendant makes a motion for new counsel, if it appears the present attorney is reasonably competent and there is no conflict between attorney and client that renders the attorney incompetent, the motion for new counsel must be denied." State v. Prevatte, 356 N.C. 178, 216, 570 S.E.2d 440, 461 (2002) (citation omitted).
Defendant did not present any information to the trial court which provided justification for the removal of his counsel. Defendant moved during trial to replace counsel on the grounds that his attorney had only met with him for five minutes in sixteen months, that he had not been provided discovery, that his attorney had failed to obtain medical documents concerning defendant's head injury, and that his attorney had inaccurately advised defendant that he could receive a thirty-year sentence if he was found guilty of the charges against him. Defendant contends that these facts should have put the trial court on notice that defendant's counsel was acting incompetently. At the outset, it should be noted that defendant's contentions contradict the statements of his counsel, who informed the trial court that he had only been appointed to represent defendant for several months and that he had gone over the discovery responses and the State's plea offer with both defendant and defendant's adult son.
Our Supreme Court has explained that "the effectiveness of representation cannot be gauged by the amount of time counsel spends with the accused; such a factor is but one consideration to be weighed in the balance." Hutchins, 303 N.C. at 335, 279 S.E.2d at 797 (citations omitted). In Hutchins, the Court further noted that "appointed counsel need not make perfunctory visits to the jail in order to render effective assistance." Id. at 336, 279 S.E.2d at 798 (holding that the lack of any indication that the defendant had been misinformed or that defense counsel's preparation had been adversely effected by a low frequency of jailhouse visits defeated the defendant's ineffective assistance of counsel argument). As in Hutchins, defense counsel in the instant case prepared a defense that was consistent with defendant's assertions regarding his conduct on the day in question. The amount of time defense counsel spent with defendant appears not to have affected the preparation of that defense.
Moreover, defense counsel's failure to obtain defendant's medical records also fails to establish a Sixth Amendment violation. "Ineffective assistance of counsel claims are not intended to promote judicial second-guessing on questions of strategy and trial tactics." State v. Taylor, 79 N.C. App. 635, 638, 339 S.E.2d 859, 861 (1986) (quotations and citation omitted). The decision to present certain evidence and call certain witnesses remains with the attorney after consultation with his client. State v. Milano, 297 N.C. 485, 495, 256 S.E.2d 154, 160 (1979) (holding that "`[t]he decisions on what witnesses to call, whether and how to conduct cross-examination, . . . and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client'") (quoting ABA Standards Relating to the Defense Function § 5.2(b) (App. Draft 1971)), overruled on other grounds by State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983) . Whether defense counsel in the instant case was able to obtain defendant's medical records or not, his decision to present defendant's testimony to establish defendant's medical problems, rather than offering defendant's medical records into evidence, was within defense counsel's discretion. Such a decision would not give the trial court "any substantial reason for the appointment of replacement counsel[.]" Hutchins, 303 N.C. at 335, 279 S.E.2d at 797 (citation omitted).
Finally, defendant's appellate counsel cites no authority for his argument that trial counsel's advice that a guilty verdict would result in a thirty year sentence rendered his assistance ineffective. Appellate counsel also ignores the fact that defendant was seventy-four years old when this advice was given. Such advice was not a misstatement. Rather, it was exactly the kind of practical advice a lawyer is encouraged to share with his client in such situations. See N.C. Rules of Prof'l Conduct, Rule 2.1, cmt. 2 (2011) ("Advice couched in narrowly legal terms may be of little value to a client, especially where practical considerations . . . are predominant.").
Therefore, even assuming the validity of defendant's contentions, the trial court's decision to deny defendant's motion to discharge counsel did not deny defendant his right to effective assistance of counsel, and was therefore not error.
C. Violent habitual felon indictment
Defendant argues that the trial court lacked jurisdiction to treat defendant as a violent habitual felon because the indictment was deficient. We disagree.
General Statute section 14-7.9 sets out the requirements of an indictment for the charge of being violent habitual felon. It states, in relevant part:
An indictment that charges a person who is a violent habitual felon within the meaning of G.S. 14-7.7 with the commission of any violent felony must, in order to sustain a conviction of violent habitual felon, also charge that the person is a violent habitual felon. The indictment charging the defendant as a violent habitual felon shall be separate from the indictment charging the defendant with the principal violent felony. An indictment that charges a person with being a violent habitual felon must set forth the date that prior violent felonies were committed, the name of the state or other sovereign against whom the violent felonies were committed, the dates of convictions of the violent felonies, and the identity of the court in which the convictions took place.
N.C. Gen. Stat. § 14-7.9 (2009).
To convict of the status of violent habitual felon, the State must prove beyond a reasonable doubt that the defendant has been convicted of two prior violent felonies. . . . The jury must determine whether the defendant who has just been convicted of the underlying substantive felony is the same person as the individual the State alleges has two prior violent felony convictions[.]
State v. Floyd, 148 N.C. App. 290, 296, 558 S.E.2d 237, 241 (2002) (quotations and citations omitted).
Here, defendant's violent habitual felon indictment met all of the requirements set out in N.C. Gen. Stat. § 14-7.9: The indictment was separate from the indictments charging defendant with the principal violent felonies, attempted first degree murder and assault with a deadly weapon with intent to inflict serious injury. The indictment set forth the dates that the prior violent felonies were committed, 25 July 1992 and 4 December 1997. The indictment set forth the name of the state in which the violent felonies were committed, North Carolina. The indictment set forth the dates of defendant's convictions of the violent felonies, 28 January 1993 and 15 March 2000. Finally, the indictment set forth the identity of the courts in which the convictions took place, Buncombe County Superior Court and Polk County Superior Court. Although defendant cites Floyd for the proposition that a violent habitual felon indictment must set forth the relative substantive charge, this language merely describes the contents of the indictments at issue in that case rather than delineating the attributes necessary for a valid habitual felon indictment. See id. at 295-96, 558 S.E.2d at 241 (stating that the violent habitual felon indictments were "sufficient" because "each one lists two prior convictions . . ., and each specifies a different one of the current offenses as the underlying substantive charge") . Accordingly, we find no error in the indictment, which fully complied with N.C. Gen. Stat. § 14-7.9.
D. Double jeopardy
Finally, defendant argues that his conviction of attempted first degree murder and assault with a deadly weapon with intent to kill is "contrary to the protection against double jeopardy, the merger rule, the rule of lenity, the legislative intent, and the common law." Our Supreme Court has rejected this argument. See State v. Tirado, 358 N.C. 551, 590-92, 599 S.E.2d 515, 541-42 (2004) (holding that a conviction of both attempted first degree murder and assault with a deadly weapon did not implicate double jeopardy even where the convictions were based on the same conduct, because the elments of the crimes do not coincide). Defendant admits as much, noting as a sole possible distinction that Tirado did not involve two life sentences. Instead, it involved a death sentence. Such a distinction would not have impacted the Tirado double jeopardy clause analysis. Tirado controls and defendant's argument fails.
III. Conclusion
For these reasons, we conclude that defendant received a trial free from error.
No error.
Judges STEELMAN and ERVIN concur.
Report per Rule 30(e).