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North Carolina v. Bowen

Filed: March 2, 1982.


Appeal by defendant from Thornburg, Judge. Judgment entered 2 April 1981 in Superior Court, Buncombe County. Heard in the Court of Appeals 2 February 1982.

Hill, Judge. Judges Hedrick and Becton concur.


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 (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 unlwful 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.2d 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 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 ...

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