Heard in the Court of Appeals May 21, 2014.
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Attorney General Roy Cooper, by Special Deputy Attorney General Iain M. Stauffer, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for defendant-appellant.
GEER, Judge. Judges BRYANT and CALABRIA concur.
Appeal by defendant from judgments entered 28 June
2013 by Judge David L. Hall in Guilford County Superior Court Nos. 11 CRS
96203-06, 12 CRS 66930-31.
Defendant Zebedee Brown was convicted of multiple counts of robbery with a dangerous weapon (" RWDW" ) arising out of a string of robberies that took place in 2011. On appeal, defendant primarily argues that the trial court erred in allowing defendant to proceed pro se. However, because defendant engaged in repeated conduct designed to delay and obfuscate the proceedings, including refusing to answer whether he wanted the assistance of counsel, we hold -- consistent with the opinions in State v. Leyshon, 211 N.C.App. 511, 710 S.E.2d 282 (2011), and State v. Mee,
__ N.C.App. __, 756 S.E.2d 103 (2014) -- that defendant forfeited his right to the assistance of counsel. Consequently, the trial court did not err in failing to appoint counsel for defendant.
The State's evidence tended to show the following facts. On 12 September 2011, three individuals, including defendant and Tamarquis Merritt, entered an internet sweepstakes business at J& W Business Center in Greensboro, North Carolina and robbed it. The individuals' faces were covered, and one of them pointed a gun at the employee and demanded money. The individuals took about $900.00 in cash and ran out of the store.
On 17 September 2011, another internet sweepstakes business on Cone Boulevard in Greensboro was robbed by two individuals wearing masks. One of the robbers had dreadlocks and pointed a gun at an employee of the business and demanded money. The robbers took between $4,000.00 and $5,000.00.
On 27 September 2011, Mr. Merritt, defendant, and another individual robbed Lucky Nine Sweepstakes in Greensboro. Two of the robbers were wearing hoodies and masks, and one of the masked robbers had dreadlocks. That robber pointed a gun at a Lucky Nine employee and demanded money. The robbers took about $1,000.00 from Lucky Nine.
On 3 October 2011, Mr. Merritt, defendant, and two other men went to the Click It Internet Sweepstakes in Greensboro at night. Mr. Merritt knocked on the front door and, after an employee, Paul Beal, unlocked it, defendant and two other men rushed in from behind Mr. Merritt into the business. Defendant and the other men wore masks and hoodies, and each one carried a gun. While inside Click It, one armed robber directed Mr. Beal to go behind the counter, and the robbers took between $7,000.00 and $9,000.00 in cash. Another one of the armed men pointed the gun at another employee, Larry Beal, forcing him to hand over the money in his pockets, as well as his cell phone. Two of the men also took money and cell phones from two customers, Mitchell Baker and Barry Gregory, before the robbers left.
On 15 October 2011, Mr. Merritt, defendant, and two other men went to Wendover Internet Services around 2:00 a.m. Mr. Merritt knocked on the door, and, after an employee, Lori Tuttle, unlocked and opened the door, defendant and the other two men rushed in behind Mr. Merritt. Defendant and the other two men were wearing masks and each carried a gun. Everyone in the store was forced to lie down on the floor. Before leaving, one of the armed robbers took $1,200.00 from the business and a handgun belonging to Ms. Tuttle, while another took a purse belonging to a customer, Jolenda Morgan. At the time of the robberies, Mr. Merritt did not have dreadlocks.
Defendant was arrested and charged with nine counts of RWDW, among other charges. Prior to trial, on 5 March 2013, defendant had a hearing before Judge Richard W. Stone in the Guilford County Superior Court concerning his right to counsel for the charges of RWDW. Judge Stone concluded that defendant waived his right to court-appointed counsel in connection with the RWDW charges. On 11 March 2013, defendant and Anne Littlejohn, defendant's counsel for other charges, appeared before Judge Ronald E. Spivey in Guilford County Superior Court concerning Ms. Littlejohn's motion to withdraw as defendant's counsel. Judge Spivey ordered a forensic evaluation of defendant before he would rule on Ms. Littlejohn's motion. Following the evaluation, defendant was found competent to proceed pro se. After a hearing on 8 April 2013, Ms. Littlejohn's motion to withdraw was allowed, and defendant declined all counsel.
On 25 June 2013, defendant appeared without counsel before Judge David L. Hall in Guilford County Superior Court for jury selection. At that hearing, defendant requested standby counsel, but Judge Hall denied that request and ruled that defendant had forfeited his right to proceed with any counsel.
Defendant was tried for nine counts of RWDW. At the close of the State's evidence, defendant made a motion to dismiss that the trial court denied. Defendant then put on two witnesses, and the State presented a rebuttal witness. At the close of all the evidence, defendant renewed his motion to dismiss, which the trial court again denied. The jury returned guilty verdicts for six robbery charges -- for robbing Paul and Larry Beal, Mr. Baker, Mr. Gregory, Ms. Tuttle, and Ms. Morgan -- and " not guilty" verdicts for the other three charges.
On 28 June 2013, Judge Hall sentenced defendant to four consecutive terms of 90 to 120 months imprisonment and two additional terms of 90 to 120 months imprisonment to be served concurrently with the last consecutive term of imprisonment. Defendant gave oral and written notice of appeal. On or about 28 August 2013, the trial court entered corrected judgments setting the maximum term of imprisonment as 117 months for each sentence.
Defendant argues that he is entitled to a new trial because the trial court erroneously allowed him to proceed pro se in violation of his Sixth Amendment rights. Defendant first contends that the trial court erred in finding that he waived his right to counsel. " The right to counsel is guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I of the North Carolina Constitution." State v. Montgomery, 138 N.C.App. 521, 524, 530 S.E.2d 66, 68 (2000). " Given the fundamental nature of the right to counsel, we ought not to indulge in the presumption that it has been waived by anything less than an express indication of such an intention." State v. Hutchins, 303 N.C. 321, 339, 279 S.E.2d 788, 800 (1981). Consequently, mere " [s]tatements of a desire not to be represented by court-appointed counsel do not amount to expressions of an intention to represent oneself." Id.
On 5 March 2013, defendant had the following exchange with Judge Stone regarding whether defendant wished to have court-appointed counsel:
THE COURT: Well, . . . let me interrupt you, Mr. Brown. Can you tell me whether or not you want a lawyer appointed to represent you?
THE DEFENDANT: No. I am my proper self. I do not need no representation.
THE COURT: You do not want a lawyer to represent you on these other charges.
THE DEFENDANT: That's correct.
THE COURT: Okay. You're charged with assault on a female that's punishable by up to 150 days in prison, assault by ...