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State v. Forte

Court of Appeals of North Carolina

July 3, 2018

JIMMY LEE FORTE, JR., Defendant.

          Heard in the Court of Appeals 22 March 2018.

          Appeal by Defendant from judgment entered 27 July 2016 by Judge Robert F. Johnson in Wilson County Nos. 15 CRS 1614-15, 15 CRS 50196, 15 CRS 50200, 15 CRS 50204, 15 CRS 50247, 15 CRS 50473 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Grady L. Balentine, Jr., for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Hannah H. Love, for defendant-appellant.

          Robert N. HUNTER, JR., Judge.

         Jimmy Lee Forte, Jr. ("Defendant") appeals from judgments entered upon jury verdicts finding him guilty of seven counts of larceny of a firearm, two counts of breaking and entering, two counts of larceny after breaking and entering, and one count each of breaking and entering a motor vehicle, misdemeanor larceny, and possession of firearm by a felon. The jury also found Defendant attained habitual felon status. On appeal, Defendant contends the trial court erred by (1) allowing Defendant to represent himself because he forfeited his right to counsel; (2) entering judgment for eight counts of felony larceny where all of the property was stolen in a single transaction; and (3) failing to dismiss the misdemeanor larceny charge where the evidence at trial failed to comport with the indictment. Defendant also contends the trial court lacked jurisdiction to sentence him as a habitual felon because the indictment was fatally defective. The State concedes the trial court erred in entering judgment for eight counts of felony larceny when the property was all stolen in a single transaction. Accordingly, we vacate seven of the eight counts of felony larceny and remand for sentencing on one count of felony larceny. We also conclude the habitual felon indictment is fatally defective and therefore vacate Defendant's habitual felon status. We otherwise find no error.

         I. Factual and Procedural History

         On 12 October 2015, a grand jury indicted Defendant on seven counts of larceny with a firearm, three counts of breaking and entering, three counts of larceny after breaking and entering, and one count each of breaking and entering a motor vehicle, misdemeanor larceny, felonious possession of burglary tools, possession of a firearm by a felon, habitual breaking and entering, and having attained habitual felon status.

         On 18 July 2016, Defendant's case came on for trial. Darryl Smith ("Smith") represented Defendant. Prior to motions in limine, the trial court addressed Smith's motion to withdraw due to "irreconcilable differences" with Defendant.

         Smith explained his relationship with Defendant began with a "little difficulty" because Defendant wanted to go to trial within two to three weeks of Smith's appointment. Smith felt he and Defendant had a productive relationship initially, but the relationship deteriorated over discovery disputes. Additionally Smith stated:

[Defendant] has refused to answer questions about the case, frequently interrupts when we discuss the case. He argues about issues that are not in dispute between him and the State or as far as I know between him and me. States he will present evidence to the Court but refuses to tell me the substance of what it is he wants to present to the Court. . . .
He says that he has said a couple of times he doesn't believe what I have said about the law that applies to the case, has written numerous letters to District Court and Superior Court judges, couple of which have included, which I have not discussed with him, but that his handwriting and he can say no telling what he will do next time he sees me.

         Defendant told the court Smith made false statements and had not received complete discovery. Defendant also stated if Smith did receive complete discovery, he had not shared it with him. After hearing from Smith and Defendant, the following occurred:

THE COURT: Listen to me. Time for you to stop talking.
[DEFENDANT]: He told me - -
THE COURT: Listen to me. Listen to me.
[DEFENDANT]: Yes, sir.
THE COURT: You have a right to be represented by an attorney in trial.
[DEFENDANT]: I haven't had my Motion For
Discovery, sir. I keep saying that over 18 months. It's not a fair trial. It's irreparable prejudice.
THE COURT: Sir, I have told you to stop talking.
You have a right to be represented by an attorney. If you cannot afford an attorney, the Court will appoint one. The Court has appointed an attorney for you. As a matter of fact, Mr. Smith is the third attorney.
[DEFENDANT]: He hasn't given my Motion For Discovery, sir.
THE COURT: Listen to me. Sir - -
[DEFENDANT]: He still ain't answering my question.
THE COURT: Sir, sir, you are making, you are making life tough for yourself.
[DEFENDANT]: Sir, I'm entitled to this. It's a copy right here, Defendant is entitled to the order. So if he got it, I don't have it. I'm entitled to have it, sir. That is prejudice to my case. I'm not going to go up here and - -
THE COURT: Mr. Smith, is this the kind of problems that you've experienced with this client?
MR. SMITH: Yes, sir.
[DEFENDANT]: I have a copy right here.
THE COURT: In other words, when you're trying to talk to him he interrupts? Is that what you've been experiencing?
MR. SMITH: Yes, sir.
THE COURT: He's not been cooperating with you as counsel?
MR. SMITH: That's correct.
THE COURT: Have you explained to him what waiver of counsel, waiver of his right to counsel is, in other words, voluntary waiver and he can go to trial and without the benefit of counsel - -
[DEFENDANT]: I didn't voluntary waiver.
THE COURT: - - by continuing to be uncooperative and continuing to interrupt? Have you talked to him about that kind of thing?

         The trial court directed Smith to take Defendant to a conference room and advise Defendant his behavior could result in Defendant "involuntarily waiving" or "forfeiting his right to counsel." The trial court stated if Defendant is "forfeiting his right to counsel then he's going to be on his own representing himself." Defendant disagreed and stated, "I'm right in front of you and I'm saying I'm not forfeiting my right." The trial court explained "that is a determination that I will make as the judge in the case and not one that he as the Defendant will make." Defendant and Smith then exited the courtroom.

         Upon their return, Smith summarized his conversation with Defendant for the trial court and stated "[t]here still might be a misunderstanding." Smith also told the court Defendant did not want Smith to represent him, and asked the court to "appoint another lawyer to represent [Defendant]." Here, Defendant again interrupted the trial court, and the court stated:

Mr. Forte, one of the problems that you have is you keep interrupting. We follow a procedure in court and right now Mr. Smith is addressing the Court. I want to hear what he has to say. When I give you an opportunity I'll give you an opportunity to speak but you need to understand something else. When I'm trying to speak to you or advise you or anything else, you need to listen and not be interrupting and not be trying to argue so right now - -

         Defendant interrupted the trial court again.

         Later, Defendant addressed the trial court regarding his problems with discovery and stated, "If I would have had a chance, if I may approach the bench, I can let you see all the discovery I have." The trial court responded, "Why don't you take the paper work that you have there, hand it to Mr. Smith and, Mr. Smith, you bring it up to me." Defendant then stated, "I been having such a hard time just to get this part, sir, it's like I'm kind of shell shocked. I hate to get this out of my hands without standing there watching. Can I stand up and see?" The trial court refused Defendant's request. Defendant said, "I don't feel comfortable putting paper work in his hands. I don't feel comfortable." Here, the trial court said, "You don't feel comfortable handing it to your lawyer in the courtroom who's less than 20 feet from me and have him bring it up to me on the bench." Defendant then stated, "There you go, sir. . . . It's been hard enough for me to get these copies that's what being, you know, kind of my behavior, sir." The trial court then concluded, "Well, I'll be honest with you, Mr. Forte, it appears to me your behavior in the court, something as simple for you to hand it to your lawyer and have him hand it up, appears to me to be obstructive."

         Further into the hearing, the trial court tried to understand why Defendant had issues with his second and third counsel, and review with Defendant his right to counsel. The trial court stated, "Mr. Forte - - I want the record to reflect that Mr. Forte continuously interrupts the Court. He has for the last two hours, that Mr. Forte continuously refuses to listen to the questions and answer the questions as the Court is trying to go through his rights to counsel."

         Ultimately, the trial court stated:

This Court finds . . . the Defendant continuously refuses to cooperate fully with his lawyer, continues to be argumentative not only with his counsel but also with this Court. The Court finds that the Defendant's actions are willful, that they are intentional and they are designed to obstruct and delay the orderly trial court proceedings. The Court ...

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