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  "name": "STATE OF NORTH CAROLINA v. TYRONE DAVID WILLIAMS",
  "name_abbreviation": "State v. Williams",
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    "judges": [
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    "parties": [
      "STATE OF NORTH CAROLINA v. TYRONE DAVID WILLIAMS"
    ],
    "opinions": [
      {
        "text": "ARROWOOD, Judge.\nTyrone David Williams (Defendant) appeals from judgments entered 12 December 2006, convicting him of assault with a firearm on a law enforcement officer as a violent habitual felon, assault with a deadly weapon inflicting serious injury as a violent habitual felon, larceny of a firearm, and possession of a firearm by a convicted felon. We find no error.\nAt approximately 10:00 P.M. on 10 September 2005, Officer Mitchell .Anderson (Officer Anderson) of the Rose Hill Police Department, responded to a domestic dispute in Duplin County, North Carolina. Defendant and his girlfriend, Tania Brown (Brown) were \u201cfighting in the street[.]\u201d When Officer Anderson arrived, he observed Brown on the ground and Defendant standing over her. Defendant ran when he saw Officer Anderson\u2019s patrol vehicle. Brown was distressed but she had no visible injuries; Officer Brown pursued Defendant on foot, believing he had assaulted Brown.\nOfficer Anderson caught up with Defendant in a dark area, after Defendant had fallen in the chase; thereafter, Defendant stood up and approached Officer Anderson, and the two men wrestled, falling into nearby bushes. Officer Anderson told Defendant to stop resisting, but Defendant instead pronounced, \u201cLet me go.\u201d Officer Anderson then attempted to use pepper spray to subdue Defendant; however, Defendant broke the cap off of the cannister, rendering the pepper spray inoperable. After again demanding that Officer Anderson let him go, Defendant declared, \u201cFine, I\u2019m going for your gun then.\u201d Officer Anderson placed his hand over his gun to prevent Defendant from removing it from the safety holster. After Defendant continued to struggle, Officer Anderson realized his pistol was not in its holster, and Defendant again demanded that Officer Anderson let him go. Officer Anderson refused, and thereafter, he felt Defendant\u2019s hand near the side of his chest and saw the top of his gun. He saw the gun flash as it fired, and Defendant ran. The bullet lodged in Officer Anderson\u2019s left side between his rib cage and his back; and as a result of his injuries, Officer Anderson had only partial use of his left arm and shoulder.\nPolice discovered Defendant inside a mobile home in Onslow County, hiding underneath a bed. He later told the deputy that \u201c[t]he gun\u2019s . . . under the bed where they found me.\u201d\nDefendant\u2019s trial on the charges of assault with a firearm on a law enforcement officer, larceny of a firearm, felonious possession of a stolen firearm, assault with a deadly weapon with intent to kill inflicting serious injury, possession of a firearm by a convicted felon, and attaining both habitual felon and violent habitual felon status, began on 27 November 2006. On 8 December 2006,. a jury found Defendant guilty of assault with a deadly weapon inflicting serious injury, assault with a firearm on a law enforcement officer, larceny of a firearm, felonious possession of a stolen firearm, and possession of a firearm by a convicted felon. On 11 December 2006, the jury found Defendant to be a violent habitual felon, and on 12 December 2006,. the jury found Defendant to be a habitual felon. On 12 December 2006, the trial court entered judgment based on the foregoing verdicts, sentencing Defendant to concurrent terms of life imprisonment without parole for assault with a firearm on a law enforcement officer as a violent habitual felon, life imprisonment without parole for assault with a deadly weapon inflicting serious injury as a violent habitual felon, 116-149 months imprisonment for larceny of a firearm as an habitual felon, and 116-149 months imprisonment for possession of a firearm by a convicted felon as an habitual felon. From these judgments, Defendant appeals.\nPeremptory Challenges\nIn his first argument, Defendant contends that the trial court violated Defendant\u2019s Sixth Amendment rights, as set forth in State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991), by prohibiting him from making final decisions about peremptory challenges when there was an absolute impasse between Defendant and defense counsel regarding peremptory challenges. We disagree.\n\u201c[T]actical decisions \u2014 such as which witnesses to call, which motions to make, and how to conduct cross-examination \u2014 normally lie within the attorney\u2019s province.\u201d State v. Brown, 339 N.C. 426, 434, 451 S.E.2d 181, 187 (1994). \u201c \u2018However, when counsel and a fully informed criminal defendant client reach an absolute impasse as to such tactical decisions, the client\u2019s wishes must control; this rule is in accord with the principal-agent nature of the attorney-client relationship.\u2019 \u201d Id. at 434, 451 S.E.2d at 186 (quoting Ali, 329 N.C. at 404, 407 S.E.2d at 189). \u201cThe attorney is bound to comply with her client\u2019s lawful instructions, \u2018and her actions are restricted to the scope of the authority conferred.\u2019 \u201d Ali, 329 N.C. at 403, 407 S.E.2d at 189 (quoting People v. Wilkerson, 123 Ill. App. 3d 527, 532, 463 N.E.2d 139, 143-44 (1984)). \u201cIn such situations ... defense counsel should make a record of the circumstances, her advice to the defendant, the reasons for the advice, the defendant\u2019s decision and the conclusion reached. Ali, 329 N.C. at 404, 407 S.E.2d at 189.\nIn State v. McCarver, 341 N.C. 364, 462 S.E.2d 25 (1995), our Supreme Court distinguished Ali, reasoning that a disagreement between counsel and the defendant did not rise to the level of an \u201cabsolute impasse.\u201d In McCarver, the testimony of one witness \u201chad a profound effect upon [the defendant,]\u201d McCarver, 341 N.C. at 384, 462 S.E.2d at 36, after which the defendant \u201cspoke privately with defense counsel, who . . . stated that defendant \u2018will not speak.\u2019 \u201d Id. Counsel for the defendant then explained the following to the court:\nTwo or three times this morning [the defendant] wanted me to stop the trial and I refused. Frankly, I was on the edge of my seat wondering if [the defendant] would simply get up and walk out. I\u2019m not saying he\u2019s violent or anything like that, but he\u2019s just having a hard time hearing it.\nI would like the Court to know that, if I may. I will not let [the defendant] run this case. He knows that. He does not control the defense, he can make suggestions. But if his state is so bad, Your Honor, I may stand up at a point and say, \u201cMay we have a short recess?\u201d\nId. at 385, 462 S.E.2d at 36. Our Supreme Court reasoned that \u201c[although defense counsel in the present case may have employed a better choice of words in describing the situation at the time, we find no indication in the record of \u2018an absolute impasse\u2019 between the client and the defense team as it concerned trial tactics.\u201d Id.\nHere, too, we believe the record does not indicate \u201c \u2018an absolute impasse\u2019 between the client and the defense team as it concerned trial tactics.\u2019\u2019 Id. at 384, 462 S.E.2d at 36 (emphasis added). The evidence concerning an \u201cabsolute impasse\u201d cited by Appellant centered on Defendant\u2019s dissatisfaction with the fact that Defendant was required stand trial at all, rather than a specific disagreement regarding an exact choice of peremptory challenges.\nFrom the commencement of the trial, Defendant displayed aggressive and abrasive behavior toward the court and his attorney, regarding the trial process, itself. Specifically, during voir dire hearings, Defendant expressed dissatisfaction with defense counsel because he was formerly a prosecutor and because he attempted to persuade Defendant to take a plea bargain. Defendant addressed the court: \u201cYour Honor, they can go ahead and grant my time. I\u2019ll come back on appeal[.] ... Just give me my time now[.]\u201d Regarding the plea bargain, defense counsel explained, \u201c[Defendant] does not want to do the strategy where he would plead guilty [to two charges] . . . [and e]ven though I think it\u2019s a good strategy decision, he has the right, the final right on a plea of guilty[.]\u201d The trial court denied Defendant\u2019s motion for the discharge or substitution of his court appointed counsel, after which Defendant became violent, declaring, \u201cYour Honor, let me say this for the record; if the man comes near me, I\u2019m going to f\u2014 him up; that\u2019s point blank. I\u2019m just telling you, if he comes back over here, I\u2019m going to f\u2014 him up. He come [sic] back here, I\u2019m going to f\u2014 him up.\u201d Defendant then cleared the defense table with his hands and threw a laptop computer into the wooden portion of the bar, leaving a significant mar in the wood approximately three inches in diameter. Defendant yelled, \u201cI [will] f\u2014 that mother f-up. Man, just give me my mother f--time. Give me my mother f-time. .. . Give me a life sentence. You ain\u2019t [sic] scaring me with a life sentence.\u201d Defense counsel then stated, \u201cJudge my whole trial is on that laptop and it\u2019s gone. My whole trial.\u201d After Defendant was taken into custody, he continued to be aggressive, and he was involved in an affray in which he broke his hand. Thereafter, the court \u201crequir[ed] that throughout the trial. . . the defendant [will] have leg shackles on under his pants so that he will not be able to move about[.]\u201d\nWhen court resumed the next day, Defendant again declared, \u201cI don\u2019t want to have a trial. I don\u2019t want to have the trial period.\u201d Defendant stated, \u201cThe law don\u2019t state [sic] I have to be here because you stated you'can run a trial without me being here.\u201d Repeatedly, Defendant argued with the court, stating, \u201cyou all run the trial without me being here, you know, that\u2019s how I feel. . . . Your Honor, I feel I don\u2019t want to be here.\u201d Defendant then abruptly stood up, and the bailiff ordered Defendant, \u201cYou can have a seat. Sit down[;] sit down. Sit down.\u201d Rather than sitting down, Defendant became aggressive and was forced into his seat by several bailiffs; Defendant declared, \u201cHey, get off me, man.\u201d\nAfter a short discussion, the court asked Defendant whether he would \u201cpromise not to be disruptive[,]\u201d advising, \u201c[t]his is your trial; your trial, Mr. Williams.\u201d Defendant replied, \u201cThis y\u2019all [sic] trial.\u201d Again, Defendant said, \u201c[n]o, I don\u2019t want to have no [sic] trial. ... I ain\u2019t \u2014 I ain\u2019t [sic] coming. I don\u2019t want to be here. I don\u2019t want to talk no more [sic] about this case period.\u201d\nThe following interaction between the court, defense counsel and Defendant, was put forward by Defendant as evidence of their disagreement regarding peremptory challenges:\nCourt: All right; so are we ready to bring the jurors in?\n[Defense Counsel]: Judge, there\u2019s one thing I need to double check before you announce the \u2014 before we announce here. I want to make sure I don\u2019t mess up my\u2014\nCourt: Well, you\u2019re the one that\u2019s going to announce the jurors you want excused.\n[Defense Counsel]: Yes, sir.\nDefendant: Hey, Your Honor, I need to talk to you. You were saying that \u2014 when I was talking to my lawyer, he told me I don\u2019t have no say-so over picking a jury. He told me\u2014\n[Defense Counsel]: I asked him who he wanted to take off and he said\u2014\nDefendant: No, he didn\u2019t.\nCourt: No, that\u2019s why we had a recess.\nDefendant: I mean, it\u2019s like this; I\u2019m not going in front of no jury more dominate Caucasian. I don\u2019t want to have a trial. I don\u2019t want to have the trial period. I\u2019m not going up in front of no jury if I can\u2019t have no say-so who I pick, [sic] . . . That\u2019s point blank. You got 132 people out there and it\u2019s more dominate Caucasian; you know what I\u2019m saying? If I ain\u2019t [sic] satisfied with them or comfortable with them, you know, what I\u2019m saying? It should be everybody have a chance. . . .\nCourt: Well, I\u2019ll give you an opportunity.\nDefendant: The State got their chance to pick.\nCourt: Mr. Williams, let me finish before you interrupt me, please. I took a recess now, because your lawyer wanted to talk to you about the challenges since he\u2019s finished his initial voir dire of this panel. And have you discussed these potential jurors with your client, [Defense Counsel]?\n[Defense Counsel]: Judge, I told him that I was going to take off four of the jurors and that I always save \u2014 I\u2019ve been stung before in cases where I have exhausted all of my challenges at the beginning. He asked me to take off ten of the jurors. I told him I could only take off six. I told him strategically that I felt I should only take off four. . . .\nCourt: The law says you have six challenges. You can use them however you want to use them throughout the voir dire process, and your lawyer and you need to discuss this and, you know, decide how many of these six you want to use at this particular point in the voir dire.\nPrimarily, we note that at this point in the voir dire, a final decision regarding peremptory challenges had not been made by either defense counsel or Defendant. Rather, Defendant abrasively ordered defense counsel to dismiss ten jurors \u2014 a legal impossibility \u2014 and defense counsel strategically advised Defendant that he could dismiss at most six, and that he would advise dismissing only four, saving the remaining two peremptory challenges for later use. This is not evidence, as Defendant argues, of an absolute impasse, because a decision regarding peremptory challenges had not yet been made. After defense counsel advised Defendant that he only had six peremptory challenges, the court again explained to Defendant, \u201c[t]he law says you have six challenges. You can use them however you want to use them throughout the voir dire process.\u201d A few minutes later, the court again explained, \u201cyou can\u2019t take ten off; you\u2019re limited to six[,]\u201d after which Defendant stated, \u201cI don\u2019t want them [sic] six.\u201d The record does not reflect to which six Defendant specifically referred, or whether Defendant, in fact, actually referred to six specific jurors. The court then again counseled Defendant that he was limited to six peremptory challenges, and \u201cwhy don\u2019t you discuss [whether to use all six] with [your lawyer].\u201d Defendant replied, referring to Paramour, \u201c[w]hatever six he [sic] talking about, I don\u2019t want them[,]\u201d deferring the decision to defense counsel. Despite Defendant\u2019s continued combativeness, the court then stated, \u201cI\u2019ll give you some time [to talk], if you . . . want it.\u201d Defendant twice stated, \u201cNo,' sir[,]\u201d even though defense counsel asked for \u201c[j]ust one second, Judge.\u201d\nDefendant again became disruptive and was escorted from the courtroom, after which the court stated the following for the record:\n[T]he jury selection continued with the absence of the defendant. The jury was passed by the State to complete the panel of 12.... [T]he defendant\u2019s counsel, with the absence of the defendant, questioned these four new jurors and hasn\u2019t passed on them yet, but I\u2019m going to give [defense counsel] a chance to go and discuss this selection back with his client, who does not want to be here[.]\nIn the Defendant\u2019s absence, defense counsel excused four jurors. The court stated, \u201cnow, again, the counsel will have an occasion to talk to the defendantf,]\u201d but Defendant declared that \u201che didn\u2019t want to say anything to [his attorney] about this last four[.]\u201d Defendant was then escorted back into the courtroom, and the court stated, \u201cyour lawyer has questioned the four new jurors, but he hasn\u2019t made any decision yet as to who he wants to exclude because ... he wanted to have a chance to talk with you[.]\u201d The court asked, \u201cdo you want to talk to your lawyer about the exclusion of these four new jurors?\u201d Defendant replied, \u201cNo, sir.\u201d When asked a second time, Defendant again said, \u201cNo, sir.\u201d\nOur Supreme Court has held that Ali does not apply where there is no indication of an absolute impasse. See McCarver, 341 N.C. at 385, 462 S.E.2d at 36. Certainly, we do not dispute that there was an absolute impasse in the instant between Defendant, his attorney and the court. However, we do not believe that the record indicates \u201c \u2018an absolute impasse\u2019 between the client and the defense team as it concerned trial tactics.\u201d Rather, the foregoing evidence of record tends to show that the absolute impasse concerned Defendant\u2019s ill will toward his attorney and the court regarding the fact that Defendant must stand trial at all. Defendant certainly disagreed with defense counsel\u2019s advice regarding the jury selection, but specific disagreement did not rise to the level of an absolute impasse because Defendant ultimately deferred the decision to defense counsel.\nWe conclude that the following evidence tends to show that Defendant\u2019s aggressive, violent and abrasive behavior did not rise to the level of an absolute impasse regarding the specific decision as to peremptory challenges. First, Defendant did not advise defense counsel which six jurors he desired to excuse; in fact, Defendant did not advise defense counsel as to any particular juror he desired to excuse; Defendant tended to show displeasure with the process itself, rather instead of any particular juror in the voir dire proceedings; when asked to elaborate in the jury selection process as to which jurors to excuse, Defendant had nothing to add, but deferred to defense counsel. After Defendant was escorted from the courtroom, due to his disruptive behavior, defense counsel excused only four jurors. The court again stated, \u201cnow, again, the counsel will have an occasion to talk to the defendant [regarding which jurors to excuse,]\u201d but given the opportunity to speak, Defendant did not dispute defense counsel\u2019s use of four peremptory challenges instead of six, and \u201cdidn\u2019t want to say anything to [his attorney] about this last four[,]\u201d again deferring decisions in the selection process to defense counsel. After Defendant was escorted back into the courtroom, the court directly stated, \u201cyour lawyer has questioned the four new jurors, but he hasn\u2019t made any decision yet as to who he wants to exclude because ... he wanted to have a chance to talk with you[.]\u201d When asked whether he \u201cwant[ed] to talk to [his] lawyer about the exclusion of these four new jurors[,]\u201d Defendant replied, \u201cNo, sir[,]\u201d deferring the decision defense counsel. In fact, Defendant repeatedly deferred to defense counsel's decision with regard to peremptory challenges, beginning with his initial statement:' \u201c[w]hatever six he [sic] talking about, I don\u2019t want them[.]\u201d When either defense counsel or the court asked for Defendant\u2019s further input in the selection process, Defendant stated multiple times, in his usual combative and contentious manner, that he did not wish to further discuss the selection process at all, thus, deferring the decision to defense counsel.\nWe conclude that even though the foregoing evidence undoubtedly demonstrates an absolute impasse between Defendant and defense counsel as concerned the necessity, to Defendant\u2019s chagrin, that Defendant stand trial at all, the evidence does not demonstrate an impasse \u201cas it concerned trial tactics.\u201d McCarver, 341 N.C. at 384, 462 S.E.2d at 36. This assignment of error is overruled. .\nEven assuming that an absolute impasse concerning trial tactics existed, Ali, 329 N.C. at 403, 407 S.E.2d at 189, further states that \u201cwhen counsel and a fully informed criminal defendant client reach an absolute impasse as to such tactical decision . . . [t]he attorney is [only] bound to comply with her client\u2019s lawful instructions[,]\u201d and Defendant\u2019s strategy for exercising peremptory challenges was unlawfully discriminatory. See Georgia v. McCollum, 505 U.S. 42, 46, 120 L. Ed. 2d 33, 43 (1992) (stating that \u201cthe Constitution prohibits a criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges\u201d); State v. Locklear, 349 N.C. 118, 141, 505 S.E.2d 277, 290 (1998) (stating that \u201cdiscriminatory use of peremptory challenges on the basis of race is forbidden regardless of the respective races of the defendant and of the challenged jurors\u201d); see also State v. Robbins, 319 N.C. 465, 491, 356 S.E.2d 279, 295 (1987) (stating that the excusal of even a single juror for a racially discriminatory reason is impermissible).\nHere, Defendant repeatedly stated, \u201cI mean, it\u2019s like this; I\u2019m not going in front of no jury more dominate Caucasian[;]\u201d and \u201c[y]ou got 132 people out there and it\u2019s more dominate Caucasian; you know what I\u2019m saying?\u201d At a later point in the voir dire, Defendant informed the court, \u201cI said [to] my counsel... I don\u2019t feel represented right [sic] and I could not pick my jury because there wasn\u2019t [sic] enough African-Americans up there; half and half, that\u2019s what I said.\u201d When asked \u201cwhat [other words] do you want to put in\u201d the waiver of Defendant\u2019s right to an appearance before a jury, Defendant stated, \u201cthere\u2019s not enough African-Americans on the jury.\u201d Defendant also stated, \u201cI\u2019m not coming back for no [sic] conviction[,]\u201d after which the court advised, \u201c[you] don\u2019t know what\u2019s going to happen.\u201d Defendant retorted, \u201cYeah; I know it with ten whites.\u201d This statement is especially telling because of Defendant\u2019s initial demand that ten jurors be peremptorily challenged.\nDefendant essentially concedes racially discriminatory intent in his recommendations to the trial court and to defense counsel regarding the exercise of peremptory challenges. Defense counsel could not have lawfully complied with Defendant\u2019s requests, even assuming arguendo that the disagreement reached the level of absolute impasse. Locklear, 349 N.C. at 141, 505 S.E.2d at 290; Robbins, 319 N.C. at 491, 356 S.E.2d at 295. This assignment of error is overruled.\nMotion to Dismiss\nIn his next argument, Defendant contends that the trial court erred in denying Defendant\u2019s motion to dismiss the habitual felon indictment. Defendant argues that his habitual felon indictment subjected him to double jeopardy because it resulted in the State\u2019s use of 2004 conviction for possession cocaine for two purposes \u2014 namely, to support Defendant\u2019s current conviction for possession of a firearm by a felon and to support Defendant\u2019s sentencing as a habitual felon. Defendant admits that \u201cthe Court has decided this issue against him in State v. Crump, 178 N.C. App. 717, 722, 632 S.E.2d 233, 235 (2006) [,]\u201d yet nonetheless argues \u201cfor preservation for future appellate review.\u201d In State v. Crump, this Court rejected precisely the same argument Defendant makes in the instant case, holding that the use of a single prior felony conviction as an underlying conviction for a charge of possession of a firearm by a felon and for having attained habitual felon status does not constitute double jeopardy, explaining that \u201cthe mere reliance on the 1998 conviction to establish that defendant was a recidivist for sentencing purposes does not implicate double jeopardy concerns.\u201d Id. at 722, 632 S.E.2d at 235. This Court is bound by our Court\u2019s holding in Crump. The trial court did not err by denying Defendant\u2019s motion to dismiss the habitual felon indictment. This assignment of error is overruled.\nFor the foregoing reasons, we find no error.\nNo Error.\nChief Judge MARTIN and Judge BRYANT concur.",
        "type": "majority",
        "author": "ARROWOOD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General, Charles E. Reece for the State.",
      "Appellate Defender Staples Hughes, by Assistant Appellate Defender, Benjamin Dowling-Sender, for Defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. TYRONE DAVID WILLIAMS\nNo. COA07-1304\n(Filed 17 June 2008)\n1. Constitutional Law\u2014 Sixth Amendment \u2014 jury selection\u2014 impasse with attorney \u2014 trial tactics not the issue\nThe trial court did not violate defendant\u2019s Sixth Amendment rights by prohibiting him from making final decisions about peremptory challenges when there was an alleged absolute impasse between defendant and defense counsel regarding peremptory challenges. The impasse concerned the necessity of defendant standing trial, not an impasse concerning trial tactics. Even assuming an impasse concerning trial tactics, defendant\u2019s strategy for exercising peremptory challenges was unlawfully discriminatory and defense counsel could not have complied with defendant\u2019s requests.\n2. Constitutional Law\u2014 double jeopardy \u2014 use of prior . conviction\nThe trial court did not err by denying defendant\u2019s motion to dismiss a habitual felon indictment where it resulted from a prior conviction used to support both a current conviction for possession of a firearm by a felon and defendant\u2019s sentencing as a habitual felon.\nAppeal by Defendant from judgment entered 12 December 2006 by Judge Jay D. Hockenbury in Duplin County Superior Court. Heard in the Court of Appeals 28 April 2008.\nAttorney General Roy Cooper, by Assistant Attorney General, Charles E. Reece for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender, Benjamin Dowling-Sender, for Defendant."
  },
  "file_name": "0096-01",
  "first_page_order": 128,
  "last_page_order": 138
}
