State v. Jones

898 S.E.2d 784

STATE of North Carolina

v.Mose Coleman JONES

No. COA23-647

Court of Appeals of North Carolina.

Filed February 20, 2024

Appeal by defendant from judgment entered 3 November 2022 by Judge Carla Archie in Davidson County Superior Court. Heard in the Court of Appeals 24 January 2024. Davidson County, No. 20CRS54440

Attorney General Joshua H. Stein, by Assistant Attorney General Jodi P. Carpenter, for the State.

Phoebe W. Dee, for the defendant-appellant.

TYSON, Judge.

Mose Coleman Jones ("Defendant") appeals from judgment entered upon a jury’s verdict of guilty of felony fleeing to elude arrest. Our review discerns no error.

I. Background

Thomasville Police Officer Ryan Amos was routinely patrolling in a marked patrol car while wearing his police uniform. Officer Amos observed Defendant driving a motorcycle and turning onto James Avenue. The motorcycle did not display a license plate.

Officer Amos activated his lights and siren and attempted to conduct a traffic stop. Instead of stopping, Defendant motioned with his hand for Officer Amos to pass him. Officer Amos stayed behind Defendant with his lights and siren activated. Defendant crossed the center line and attempted to speak with Officer Amos about going around him. When Defendant slowed to approximately five to ten miles per hour, Officer Amos rolled his window down and told Defendant to pull over. Defendant repeatedly asserted his "right of a traveler" to Officer Amos, and claimed he was not required to display a license plate.

When Defendant stopped at a stop sign, Officer Amos attempted to exit his patrol car and remove Defendant from the motorcycle. Defendant drove off before Officer Amos could stop him. Officer Jonathan Caldwell joined Officer Amos in pursuit. Officers Caldwell and Amos attempted a rolling roadblock, but Defendant went into the opposite lane of travel to avoid the roadblock. Defendant drove his motorcycle through a residential property on Pineywood Road. Officer Caldwell exited his vehicle and tried to restrain Defendant around his head and neck, but Defendant accelerated the motorcycle and sped off, knocking Officer Caldwell to the ground.

Sergeant Rusty Fritz joined the pursuit while Officer Amos attended to Officer Caldwell. Sergeant Fritz observed Defendant make a right hand turn at too great a speed, lose control, and flip the motorcycle. Following a struggle, officers handcuffed Defendant. Defendant was charged with felony fleeing to elude a law enforcement officer, assault on a law enforcement officer causing physical injury, and possession with intent to sell or deliver a schedule VI-controlled substance. The State dismissed the possession with intent to sell or deliver a schedule VI-controlled substance prior to trial.

Defendant was convicted of felony fleeing to elude arrest and was acquitted of assault on a law enforcement officer causing injury. Defendant was sentenced to an active sentence of 5 to 15 months of imprisonment. Defendant appeals.

II. Jurisdiction

Defendant gave his oral notice of appeal during the sentencing hearing prior to the trial court imposing sentence. Appellate entries were filed, and the Appellate Defender was appointed to represent Defendant on appeal.

Rule 4 of the North Carolina Rules of Appellate Procedure provides that notice of appeal from a criminal action may be taken by: "(1) giving oral notice of appeal at trial, or (2) filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within fourteen days after entry of the judgment[.]" N.C. R. App. P. 4(a). Defendant prematurely entered an oral notice of appeal before entry of the final judgment, in violation of Rule 4 of our Rules of Appellate Procedure. See State v. Lopez, 264 N.C. App. 496, 503, 826 S.E.2d 498, 503 (2019). Defendant recognizes this error and has filed a petition for writ of centiorari. In the exercise of our discretion, we allow Defendant’s petition for writ of certiorari to reach the merits of his appeal.

III. Issues

Defendant argues the trial court erred by finding he had waived or forfeited his right to counsel and committed plain error by allowing the State to introduce foundationless expert testimony.

IV. Waiver of Counsel

Defendant argues the trial court erred by finding Defendant had waived his right to counsel. This Court previously articulated two means by which a defendant may lose his right to be represented by counsel: (1) a knowing and voluntary waiver after being fully advised under N.C. Gen. Stat. § 15A-1242; and, (2) forfeiture of the right by serious misconduct in State v. Blakeney, 245 N.C. App. 452, 459-61, 782 S.E.2d 88, 93-94 (2016), holding:

First, a defendant may voluntarily waive the right to be represented by counsel and instead proceed pro se. Waiver of the right to counsel and election to proceed pro se must be expressed clearly and unequivocally. Once a defendant clearly and unequivocally states that he wants to proceed pro se, the trial court must determine whether the defendant knowingly, intelligently, and voluntarily waives the right to in-court representation by counsel. A trial court’s inquiry will satisfy this constitutional requirement if conducted pursuant to N.C.G.S. § 15A-1242.

….

The second circumstance under which a criminal defendant may no longer have the right to be represented by counsel occurs when a defendant engages in such serious misconduct that he forfeits his constitutional right to counsel. Although 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, in some situations a defendant may lose this right:

Although the loss of counsel due to defendant’s own actions is often referred to as a waiver of the right to counsel, a better term to describe this situation is forfeiture. Unlike waiver, which requires a knowing and intentional relinquishment of a known right, forfeiture results in the loss of a right regardless of the defendant’s knowledge thereof and irrespective of whether the defendant intended to relinquish the right. A defendant who is abusive toward his attorney may forfeit his right to counsel.

Id. (internal citations, ellipses, alterations, and quotation marks omitted).

This Court in Blakeney also describes a third manner, a mixture of waiver and forfeiture, in which a defendant may lose the right to counsel:

Finally, there is a hybrid situation (waiver by conduct) that combines elements of waiver and forfeiture. Once a defendant has been warned that he will lose his attorney if he engages in dilatory tactics, any misconduct thereafter may be treated as an implied request to proceed pro se and, thus, as a waiver of the right to counsel. Recognizing the difference between forfeiture and waiver by conduct is important. First, because of the drastic nature of the sanction, forfeiture would appear to require extremely dilatory conduct. On the other hand, a waiver by conduct could be based on conduct less severe than that sufficient to warrant a forfeiture. This makes sense since a waiver by conduct requires that a defendant be warned about the consequences of his conduct, including the risks of proceeding pro se. A defendant who engages in dilatory conduct having been warned that such conduct will be treated as a request to proceed pro se cannot complain that a court is forfeiting his right to counsel.

Id. at 464-65, 782 S.E.2d at 96 (citation, ellipses, and quotation marks omitted).

A. Standard of Review

[1] This Court "reviews conclusions of law pertaining to a constitutional matter de novo." State v. Bowditch., 364 N.C. 335, 340, 700 S.E.2d 1, 5 (2010) (citation omitted); see State v. Wallington, 216 N.C. App. 388, 393-94, 716 S.E.2d 671, 675 (2011) ("Prior cases addressing waiver of counsel under N.C. Gen. Stat. § 15A-1242 have not clearly stated a standard of review, but they do, as a practical matter, review the issue de novo. We … review this ruling de novo.") (citations omitted)).

[2] Whether a defendant was entitled to, waived, or forfeited counsel is also reviewed de novo. State v. Poole, 305 N.C. 308, 318, 289 S.E.2d 335, 341-42 (1982) (citations omitted); Blakeney, 245 N.C. App. at 459, 782 S.E.2d at 93.

B. Waiver of Counsel

Both the Constitution of the United States and the North Carolina Constitution expressly recognize criminal defendants have a right to assistance of counsel. U.S. Const. Amend. VI.; N.C. Const. Art I, §§ 19, 23; see also Powell v. Alabama, 287 U.S. 45, 66, 53 S.Ct. 55, 63, 77 L.Ed. 158, 169 (1932); State v. McFadden, 292 N.C. 609, 611, 234 S.E.2d 742, 744 (1977) (citations omitted); State v. Montgomery, 138 N.C. App. 521, 524, 530 S.E.2d 66, 68 (2000).

[3] Criminal defendants also have the absolute right to waive counsel, represent themselves, and make trial strategy decisions without the assistance of counsel. State v. Mems, 281 N.C. 658, 670-71, 190 S.E.2d 164, 172 (1972).

[4] Before a defendant is allowed to waive counsel, a trial court must conduct a statutorily-required colloquy to determine that "constitutional and statutory safeguards are satisfied." State v. Moore, 362 N.C. 319, 322, 661 S.E.2d 722, 724 (2008) (citation omitted). Courts "must determine whether the defendant knowingly, intelligently and voluntarily waives the right to in-court representation by counsel." Id. (citation omitted).

[5] The statutory procedure to waive counsel is codified in N.C. Gen. Stat. § 15A-1242 (2023). Courts may only enter an order to allow defendants to waive their right to counsel after being satisfied the movant: (1) has been clearly advised of his rights to the assistance of counsel, including his right to the assignment of appointed counsel when he is so entitled; (2) understands and appreciates the consequences of the decision; and, (3) comprehends the nature of the charges and proceedings and the range of permissible punishments. Id. (citation omitted). A "trial court must...