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State v. Harvin

Court of Appeals of North Carolina

December 3, 2019

STATE OF NORTH CAROLINA
v.
CASHAUN K. HARVIN, Defendant.

          Heard in the Court of Appeals 7 August 2019.

          Appeal by Defendant from judgments entered 8 May 2018 by Judge Phyllis M. Gorham in New Hanover County No. 15CRS051193 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Ryan F. Haigh, for the State.

          Massengale & Ozer, by Marilyn G. Ozer, for the Defendant.

          BROOK, JUDGE.

         Cashaun K. Harvin ("Defendant") appeals from judgments entered upon jury verdicts finding him guilty of first-degree murder, attempted first-degree murder, attempted robbery with a dangerous weapon, assault with a deadly weapon with intent to kill inflicting serious injury ("AWDWIKISI"), robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. We hold that the trial court deprived Defendant of his right to counsel. Defendant is therefore entitled to a new trial.

         I. Background

         In this case, "[b]ecause the issue dispositive of [the] appeal does not relate to the facts surrounding the alleged crimes, a detailed recitation of the facts is unnecessary." State v. Dunlap, 318 N.C. 384, 385, 348 S.E.2d 801, 802 (1986). The charges of which Defendant was found guilty arise from a robbery arranged on the pretext of a marijuana sale by Robert Scott, Jr., to Tyler Greenfield and a shooting that took place during this robbery. Mr. Scott and his then-girlfriend sustained gunshot wounds during the event. Mr. Scott died from his wounds immediately afterwards. Defendant was seventeen years old at the time of the robbery.

         On 26 May 2015, Defendant was indicted for first-degree murder, attempted first-degree murder, attempted robbery with a dangerous weapon, and AWDWIKISI. A superseding indictment for the same charges was issued on 31 October 2016. On 20 March 2017, following the conclusion of Mr. Greenfield's trial for charges stemming from his involvement in the robbery and killing, an additional superseding indictment was issued, adding the charges of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon.[1]

         On 23 April 2018, in New Hanover County Superior Court, the Honorable Phyllis M. Gorham heard evidence and argument related to Defendant's competency to stand trial and whether Defendant had waived or forfeited his right to counsel. The following colloquy transpired:

THE COURT: Mr. Harvin, good morning.
MR. HARVIN: Good morning, Your Honor. There are some things that I would like to address before the Court today before we proceed with, you know, the trial motions and stuff. I would like to address the situation of ineffective assistance of counsel, Your Honor.
THE COURT: Let me stop you right there. You don't have an attorney so there is no ineffective assistance of counsel claim that you can raise.
MR. HARVIN: But having - have I not - is he not by stand [sic] counsel to provide me with assistance in things that I do not understand?
THE COURT: He is standby counsel but he is not your attorney. You have waived your right to all counsel.
MR. HARVIN: Yes, ma'am.
THE COURT: So Mr. Mediratta[, your standby counsel, ] is not your attorney, so what is your question?
MR. HARVIN: So if it was the decision that he was able to replace me or take over the case, like, that's what I was told by Judge Watts [sic]. He said if I wanted to, that he could take over my case at any time if I had decided.
THE COURT: If you decide that you no longer wish to represent yourself -
MR. HARVIN: Yes, ma'am.
THE COURT: - and you wish for counsel, that the Court has assigned a standby counsel to take over and try your case, that is correct.
MR. HARVIN: Yes, ma'am.
THE COURT: But until that happens, standby counsel is not your attorney.
. . .
MR. HARVIN: Your Honor, what I'm asking for is that if I am allowed - if I'm going to continue to proceed and, you know, go to trial and stuff like that, instead of, you know, waivering [sic] my rights and pleading out, I would ask that I be provided with effective assistance of counsel even if he not - you know, he's not actually, you know, representing me but, you know, if I come to him for advice that he provide me with substantial knowledge accordingly to the law, it's been times to where I ask him something specifically and he tells me that he don't know what I'm talking about or it doesn't exist but, you know, I have it, being provided with the statutory book, I can open it up and show him and then he has said, oh, I forgot this. Well, you know, right then and there it shows me that you're incompetent to, you know, provide me with assistance because if this is something that I can find, I can go in here and find it myself and you are not able to do it or you are not willing to help me, then that means that you are not willing to provide me with assistance.
THE COURT: Okay, all right, my question is what are you asking for?
MR. HARVIN: I'm asking for basically someone to replace him as standby counsel to provide me with assistance, someone adequate.
THE COURT: Now you represent yourself.
MR. HARVIN: Yes, ma'am.
THE COURT: And the Court doesn't have to provide you with standby counsel at all.
MR. HARVIN: Yes, ma'am.
THE COURT: Do you understand that?
MR. HARVIN: Yes, ma'am.
. . .
THE COURT: All right, let me ask you, Mr. Harvin, do you still wish to represent yourself at this trial?
MR. HARVIN: If it -
THE COURT: Let me ask you some questions.
MR. HARVIN: Yes, ma'am.
THE COURT: Are you able to hear and understand me?
MR. HARVIN: Yes, ma'am.
THE COURT: Are you now under the influence of any alcohol, narcotics, drugs, medicines, pills, or any other substance?
MR. HARVIN: No, ma'am.
THE COURT: How old are you?
MR. HARVIN: 21 at this time.
THE COURT: What is the highest grade you completed in school?
MR. HARVIN: The 10th grade, Your Honor.
THE COURT: And what grade level can you read and write?
MR. HARVIN: I would believe the 10th grade, Your Honor.
THE COURT: Do you presently suffer from any mental - suffer from any mental or physical disabilities?
MR. HARVIN: Your Honor, actually there were points to where -
THE COURT: I just need you to answer that question as of this day, this moment, yes or no.
MR. HARVIN: Yes, ma'am.
THE COURT: What do you say are those disabilities?
MR. HARVIN: I believe that I have attention deficit disorder, like I believe that has to be accommodated by, you know, medicine because I can only focus for a certain period of time, like I have a learning disability. I learn slower than others, like I'm not retarded, I'm intelligent, but it's that, you know, it takes me - it's difficult for me to, you know, grasp certain things. Like for a person to read something, it would take like just a page or two or something like that and actually grasp the concept of it, it would take them maybe 20 or 10 minutes, it would take me at least an hour, because I - like I could be focused on this and my thoughts would trail off.
THE COURT: Let me ask you a question.
When were you diagnosed with attention deficit disorder?
MR. HARVIN: I believe in like maybe about the fifth grade or something like that.
THE COURT: And you were taking medications?
MR. HARVIN: Yes, ma'am.
THE COURT: And when did you stop taking medications?
MR. HARVIN: When my mom - I can't remember exactly, but when my father had got locked up, my mom took it away because of our religious beliefs.
THE COURT: So you were still in school?
MR. HARVIN: Yes, ma'am.
THE COURT: And you say that you think you might suffer from learning disabilities. What is your learning disability?
MR. HARVIN: What is my learning disability?
THE COURT: Yes.
MR. HARVIN: At this point, it's something that I can't really tell you because I'm not a psychiatrist, Your Honor.
THE COURT: So you've never been diagnosed with a learning disability?
MR. HARVIN: Yes, ma'am.
THE COURT: When were you diagnosed?
MR. HARVIN: I believe I said the fifth grade.
THE COURT: So you had attention deficit disorder?
MR. HARVIN: Yes, ma'am.
THE COURT: And another specific learning disability?
MR. HARVIN: ADHD.
THE COURT: So just attention deficit disorder?
MR. HARVIN: Yes, ma'am.
THE COURT: All right.
MR. HARVIN: And a learning disability. I don't know if that's two different things but I know that -
THE COURT: All right, now do you understand that you have the right to be represented by an attorney?
MR. HARVIN: Yes, ma'am.
THE COURT: Do you understand that you may request a lawyer be appointed for you if you are unable to hire a lawyer?
MR. HARVIN: Yes, ma'am.
THE COURT: Do you understand that if you decide to represent yourself, you must follow the same rules of evidence and procedure that a lawyer here in this court must follow?
MR. HARVIN: Yes, ma'am.
THE COURT: Do you understand that if you decide to represent yourself, the Court will not give you legal advice concerning the defenses, jury instructions or other legal issues that may be raised in the trial?
MR. HARVIN: Does that also continue to standby counsel, they can't give me advice?
THE COURT: The Court cannot - the Court cannot give you any legal advice concerning the jury instructions or the legal issues.
MR. HARVIN: Can I ask Your Honor, when you say "Court" are you pertaining to -
THE COURT: I said the Court, I am the Court.
MR. HARVIN: Okay.
THE COURT: Do you understand ...

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