in the Court of Appeals 23 May 2019.
by Defendant from judgment entered 4 May 2018 by Judge
Jeffrey P. Hunt in Mecklenburg County Superior Court. Nos. 17
CRS 204615, 024833
Attorney General Joshua H. Stein, by Assistant Attorney
General T. Hill Davis, III, for the State.
& Smith, PLLC, by Sharon L. Smith, for
an indigent defendant requests a change of counsel from a
court-appointed attorney to a private attorney during a
pre-trial hearing, a trial court commits structural error
when it makes its decision based solely on the effective
assistance of the appointed attorney. Here, the trial court
committed a structural error when it denied Defendant's
request for new counsel using the standard for hearing an
ineffective assistance of counsel argument rather than the
standard for a counsel of choice argument. We reverse the
trial court's denial of the right to hire new counsel and
remand for a new trial.
February 2017 at approximately 1:00 A.M., Officer Taylor Lee
Hager ("Officer Hager") and his partner stopped a
vehicle when they observed it had an expired registration
tag. The vehicle contained Defendant in the front passenger
seat, the driver, and another passenger in the back seat. An
officer recognized the back-seat passenger as an individual
with several outstanding felony warrants and subsequently
the arrest, Officer Hager noticed an open beer bottle in the
vehicle and asked Defendant to step out. When Defendant
exited the vehicle, Officer Hager "smell[ed] an odor of
marijuana coming from his person." Officer Hager
performed a pat down on Defendant to ensure he was not armed.
During this pat down, Officer Hager felt a small metal
container used as a keychain in Defendant's pocket.
Relying on his prior experience in law enforcement, Officer
Hager suspected that the keychain hid controlled substances.
Officer Hager opened the container and found inside what was
later identified as Oxycodone and methamphetamine. Cocaine
was also found in the glove compartment of the vehicle.
was charged with possession of cocaine and possession of
methamphetamine. For the entirety of his trial, Denzil
Forrester ("Forrester") was Defendant's
court-appointed counsel. Forrester filed a motion to suppress
evidence of the drugs found on Defendant during Officer
Hager's pat down. However, Forrester omitted the required
affidavit for the motion to be treated as a motion to
suppress, thus making it a motion in limine, which
the trial court denied.
his motion in limine was denied-and immediately
prior to jury selection-Defendant requested new counsel,
explaining to the trial court that he believed Forrester was
not competent to represent him because they could not agree
on which witnesses to call and could not properly
communicate. Defendant also said he wanted to hire a private
attorney and could acquire the money to pay for one. In
response, Forrester moved to withdraw from his representation
of Defendant. The trial court denied Defendant's request
as well as Forrester's, stating, "The Court deems
there not to be an absolute impasse in regards to this case
continued as Defendant's counsel, and, at the trial's
conclusion, the jury found Defendant guilty of possession of
methamphetamine and not guilty of possession of cocaine.
Defendant was sentenced to an active sentence of 37-57 months
imprisonment. He timely appeals.
presents two arguments on appeal: (1) that the trial court
committed plain error when it admitted evidence obtained
during the search subsequent to the pat down and (2) that the
trial court committed a structural error when it denied his
request for new, chosen counsel. We first address the choice
of counsel issue, and conclude the trial court committed