in the Court of Appeals 22 March 2018.
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.
N. HUNTER, JR., Judge.
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
Factual and Procedural History
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
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.
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.
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
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
[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,
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?
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.
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 - -
interrupted the trial court again.
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."
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."
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