{ "id": 4357555, "name": "STATE OF NORTH CAROLINA v. MONTARIO ANTWOND GLENN", "name_abbreviation": "State v. Glenn", "decision_date": "2012-06-05", "docket_number": "No. COA11-1488", "first_page": "143", "last_page": "155", "citations": [ { "type": "official", "cite": "221 N.C. App. 143" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "662 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641336 ], "year": 2008, "pin_cites": [ { "page": "561", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/662/0559-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 }, { "cite": "333 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "746-47" } ], "opinion_index": 0 }, { "cite": "314 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4693655 ], "year": 1985, "pin_cites": [ { "page": "437-38" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0432-01" ] }, { "cite": "277 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "415", "parenthetical": "stating that \"a party has the right to appear in propria persona or, in the alternative, by counsel\" but \"[t]here is no right to appear both in propria persona and by counsel.\"" } ], "opinion_index": 0 }, { "cite": "303 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571388 ], "year": 1981, "pin_cites": [ { "page": "61", "parenthetical": "stating that \"a party has the right to appear in propria persona or, in the alternative, by counsel\" but \"[t]here is no right to appear both in propria persona and by counsel.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0055-01" ] }, { "cite": "151 L.Ed. 2d 54", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "534 U.S. 838", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9117696, 9117539, 9117635, 9117510, 9117672, 9117610, 9117586, 9117779, 9117492, 9117653, 9117716, 9117559, 9117528, 9117750 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/534/0838-11", "/us/534/0838-04", "/us/534/0838-08", "/us/534/0838-02", "/us/534/0838-10", "/us/534/0838-07", "/us/534/0838-06", "/us/534/0838-14", "/us/534/0838-01", "/us/534/0838-09", "/us/534/0838-12", "/us/534/0838-05", "/us/534/0838-03", "/us/534/0838-13" ] }, { "cite": "540 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "721", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135728 ], "year": 2000, "pin_cites": [ { "page": "61", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0050-01" ] }, { "cite": "84 S.E. 278", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1915, "pin_cites": [ { "page": "279" }, { "parenthetical": "alteration in original" }, { "page": "376-77" } ], "opinion_index": 0 }, { "cite": "168 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658971 ], "year": 1915, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/nc/168/0277-01" ] }, { "cite": "164 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "195" } ], "opinion_index": 0 }, { "cite": "274 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560773 ], "year": 1968, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0498-01" ] }, { "cite": "320 S.E.2d 916", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "919", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 674", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524418 ], "year": 1984, "pin_cites": [ { "page": "677", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0674-01" ] }, { "cite": "547 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135841, 135938, 135760, 135894, 135895 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0396-04", "/nc/353/0396-05", "/nc/353/0396-03", "/nc/353/0396-01", "/nc/353/0396-02" ] }, { "cite": "540 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2000, "pin_cites": [ { "page": "402", "parenthetical": "footnote omitted" }, { "page": "403" }, { "page": "403" }, { "page": "403" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441303 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "376-77" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0354-01" ] }, { "cite": "191 N.C. App. 224", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159864 ], "year": 2008, "pin_cites": [ { "page": "227", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0224-01" ] }, { "cite": "547 S.E.2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135749, 135883, 135973, 135941 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0382-04", "/nc/353/0382-03", "/nc/353/0382-01", "/nc/353/0382-02" ] }, { "cite": "541 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "496", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442441 ], "year": 2000, "pin_cites": [ { "page": "617", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0610-01" ] }, { "cite": "175 L.Ed. 2d 362", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2009, "opinion_index": 0 }, { "cite": "678 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "639" } ], "opinion_index": 0 }, { "cite": "363 N.C. 10", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151736 ], "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0010-01" ] }, { "cite": "155 L.Ed. 2d 681", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "538 U.S. 986", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9065569, 9065057, 9065826, 9065096, 9065164, 9065006, 9065680, 9065617, 9065941, 9065237, 9065367, 9065755, 9065308, 9065502 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/538/0986-09", "/us/538/0986-02", "/us/538/0986-13", "/us/538/0986-03", "/us/538/0986-04", "/us/538/0986-01", "/us/538/0986-11", "/us/538/0986-10", "/us/538/0986-14", "/us/538/0986-05", "/us/538/0986-07", "/us/538/0986-12", "/us/538/0986-06", "/us/538/0986-08" ] }, { "cite": "570 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "461", "parenthetical": "noting that \"[a]n indigent defendant has no right to replace appointed counsel merely because the defendant is dissatisfied with the present attorney's work or because of a disagreement over trial tactics.\"" }, { "page": "461" } ], "opinion_index": 0 }, { "cite": "356 N.C. 178", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511396 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "216", "parenthetical": "noting that \"[a]n indigent defendant has no right to replace appointed counsel merely because the defendant is dissatisfied with the present attorney's work or because of a disagreement over trial tactics.\"" }, { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0178-01" ] }, { "cite": "341 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703613 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0350-01" ] }, { "cite": "333 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "501", "parenthetical": "citations omitted" }, { "page": "501" }, { "page": "501" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 371", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527298 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "373", "parenthetical": "citations omitted" }, { "page": "373" }, { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0371-01" ] }, { "cite": "271 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1980, "pin_cites": [ { "page": "255", "parenthetical": "citations and footnote omitted" }, { "page": "255", "parenthetical": "citations omitted" }, { "page": "255" }, { "page": "255", "parenthetical": "emphasis added" }, { "page": "353" }, { "page": "256" }, { "page": "256" } ], "opinion_index": 0 }, { "cite": "301 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566259 ], "weight": 5, "year": 1980, "pin_cites": [ { "page": "351-52", "parenthetical": "citations and footnote omitted" }, { "page": "352" }, { "page": "352" }, { "page": "353" }, { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0348-01" ] }, { "cite": "372 U.S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765333 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/372/0335-01" ] }, { "cite": "279 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "798", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "303 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573792 ], "year": 1981, "pin_cites": [ { "page": "336", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0321-01" ] }, { "cite": "696 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "185" } ], "opinion_index": 0 }, { "cite": "205 N.C. App. 254", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3733699 ], "year": 2010, "pin_cites": [ { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/nc-app/205/0254-01" ] }, { "cite": "111 L. Ed. 2d 777", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "497 U.S. 1021", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6268812, 6267060, 6268214, 6267352, 6267610, 6266778, 6268507, 6267902 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/497/1021-08", "/us/497/1021-02", "/us/497/1021-06", "/us/497/1021-03", "/us/497/1021-04", "/us/497/1021-01", "/us/497/1021-07", "/us/497/1021-05" ] }, { "cite": "381 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "654" } ], "opinion_index": 0 }, { "cite": "325 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487626 ], "year": 1989, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0001-01" ] }, { "cite": "689 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "868", "parenthetical": "quoting State v. Huff, 325 N.C. 1, 33, 381 S.E.2d 635, 654 (1989), sentence vacated on other grounds, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990)" } ], "opinion_index": 0 }, { "cite": "363 N.C. 841", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150721 ], "year": 2010, "pin_cites": [ { "page": "844", "parenthetical": "quoting State v. Huff, 325 N.C. 1, 33, 381 S.E.2d 635, 654 (1989), sentence vacated on other grounds, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0841-01" ] }, { "cite": "188 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "302", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "281 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574551 ], "year": 1972, "pin_cites": [ { "page": "207", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0198-01" ] }, { "cite": "713 S.E.2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "114" } ], "opinion_index": 0 }, { "cite": "183 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "646" } ], "opinion_index": 0 }, { "cite": "279 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569495 ], "year": 1971, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0442-01" ] }, { "cite": "62 L.Ed. 2d 102", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "444 U.S. 874", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11370144, 11370364, 11369992, 11369514, 11370058, 11369710, 11369904, 11369777, 11370289, 11369845, 11369564, 11369631 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/444/0874-10", "/us/444/0874-12", "/us/444/0874-08", "/us/444/0874-01", "/us/444/0874-09", "/us/444/0874-04", "/us/444/0874-07", "/us/444/0874-05", "/us/444/0874-11", "/us/444/0874-06", "/us/444/0874-02", "/us/444/0874-03" ] }, { "cite": "253 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "894" } ], "opinion_index": 0 }, { "cite": "297 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566992 ], "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0100-01" ] } ], "analysis": { "cardinality": 1159, "char_count": 30706, "ocr_confidence": 0.743, "pagerank": { "raw": 2.1790681608985203e-07, "percentile": 0.7720932764805979 }, "sha256": "e3f2b859c72cb5ce7573701c505a18f1ee79f2001be3b3b45bd0eb93095d0ac7", "simhash": "1:032ad46a76632878", "word_count": 5009 }, "last_updated": "2023-07-14T16:36:11.101860+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C. and ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MONTARIO ANTWOND GLENN" ], "opinions": [ { "text": "STROUD, Judge.\nMontario Antwond Glenn (\u201cdefendant\u201d) appeals from convictions for felony possession of cocaine and attaining the status of habitual felon. For the following reasons, we find no error in defendant\u2019s trial.\nI. Background\nOn 27 August 2007, defendant was indicted for one count of felony possession with intent to sell and/or deliver cocaine, committing an offense while on pretrial release, and attaining the status of habitual felon. Defendant was tried on these charges at the 6 June 2011 Session of Criminal Court, Rowan County. The State\u2019s evidence tended to show that on 9 January 2007 Detective C.M. Walker with the Kannapolis Police Department went to defendant\u2019s residence to serve a warrant for defendant\u2019s arrest. Detective Walker knocked on the door, identified himself to defendant, and defendant opened the front door and \u201cthen [defendant] just kind of nonchalantly turned and walked away from [Detective Walker]_walked into the apartment away from [him].\u201d While talking with defendant, Detective Walker followed defendant into the apartment. While Detective Walker explained to defendant that he had a warrant for his arrest, he noticed that defendant was moving something around in his hand, which led Detective Walker to believe defendant was trying to conceal something. As he approached defendant, Detective Walker told defendant to put his hands behind his back, but defendant began \u201cflail[ing] his arms, not as if he was trying to hurt [Detective Walker] but as if he were trying to prevent [him] from placing [defendant] under arrest.\u201d Detective Walker got defendant to the ground and radioed for assistance. He was then able to put handcuffs on defendant and place him under arrest. Before the struggle, Detective Walker thought he heard \u201ca rustling noise[,]\u201d like a plastic baggie in defendant\u2019s hand but, once defendant was in custody, he could not locate anything on the floor around defendant. Detective Roth arrived at the scene about five minutes after Detective Walker\u2019s call for assistance. Detective Walker explained the situation to him and they both could not locate anything on the floor around defendant in the apartment. Detective Walker then sat defendant in a chair, asked him to open his mouth, and noticed something in defendant\u2019s mouth. Detective Roth then told defendant that if he did not open his mouth he would spray him with pepper spray. Defendant then spit two plastic baggies out of his mouth, containing what appeared to be cocaine. It was Detective Walker\u2019s concern that if defendant ingested drugs he would become sick or die. Detective Roth then collected the two baggies, put them in a sealed plastic bag, and Detective Walker turned the plastic bag over to the police station\u2019s evidence property storage area. The plastic baggies were sent for analysis. Jennifer Lindley, a forensic drug chemist with the North Carolina State Bureau of Investigation, testified that the packages taken from defendant contained 0.03 grams of cocaine hydrochloride..\nDefendant did not present any evidence at trial. On 8 June 2011, a jury found defendant guilty of felony possession of cocaine. On 9 June 2011, a jury found that defendant had attained the status of habitual felon. On the same day, the trial court sentenced defendant to a term of 80 to 105 months imprisonment. Defendant gave notice of appeal in open court. On appeal, defendant contends that (1) the trial court erred in denying his motions to dismiss for insufficiency of the evidence; (2) the trial court failed to conduct a meaningful inquiry into his complaints regarding his trial counsel and erroneously denied his requests to remove his court-appointed attorney; (3) the trial court erred in not declaring a mistrial; and (4) his habitual felon status should be declared void since the underlying conviction for felony possession of cocaine was in error.\nII. Motion to dismiss\nDefendant contends that the trial court erred in denying his motions to dismiss, as there was insufficient evidence to support his conviction for felony possession of cocaine. Defendant argues that there was a \u201cfatal variance\u201d in the indictment, as it alleged that he \u201cdid possess .1 grams of Cocaine\u201d and the State\u2019s evidence which showed that he was in possession of only 0.03 grams of cocaine. Defendant contends that even though this fact was not necessary for a conviction for possession of cocaine, the State chose to allege it in their indictment, the State was required to and failed to prove this fact, and therefore, the trial court erred in denying his motion to dismiss.\nWe note that defense counsel raised a motion to dismiss at the close of the State\u2019s evidence but when asked whether he wanted to be heard on that motion, defense counsel stated, \u201cI\u2019ll rest my argument on the evidence heard by the Court, Your Honor.\u201d The trial court denied defendant\u2019s motion. Defense counsel stated that defendant would not be presenting any evidence. Out of the presence of the jury, the State made the following statement regarding the indictment:\n[The STATE]: Yes. Your Honor, there\u2019s \u2014 in the court file I see there\u2019s an indictment in this case. The body \u2014 language of the indictment is possession of cocaine, which is what he is charged with. But there\u2019s surplusage in the title. It is not possession with intent. It\u2019s just possession of cocaine. I want to make sure that everybody is aware of that and that\u2019s just a mistake. But the actual body and language of the indictment is correct. It is just possession of cocaine.\nTHE COURT: Okay. Which would be a Class I felony?\n[THE STATE]: Yes. And the calendar reflects incorrectly, also, because it\u2019s reflecting that title. So it\u2019s really just possession of cocaine.\nTHE COURT: Yes, sir.\nIn response, defense counsel made the following statement:\n[DEFENSE COUNSEL]: Judge, I think the substantive language of the indictment indicates the underlying \u2014 -just the possession of cocaine. I don\u2019t believe there has been any evidence of possession with intent. If the State were to elect to proceed with \u2014on a possession with intent, we\u2019d have a motion regarding the language of the indictment. But I think they can overcharge in an indictment. I just don't think they can undercharge and try to charge \u2014 [.]\nThe trial court informed the parties that he was allowing the indictment to be amended \u201cto reflect the Class I possession of a controlled substance.\u201d Defendant did not raise any objection to this amendment. Defense counsel then renewed his motion to dismiss at the close of all evidence, stating that he was \u201crely[ing] on the same facts of the case, Your Honor.\u201d The trial court again denied his motion and moved to the jury charge conference.\n\u201c[A] fatal variance between the indictment and proof is properly raised by a motion for judgment as of nonsuit or a motion to dismiss, since there is not sufficient evidence to support the charge laid in the indictment.\u201d State v. Faircloth, 297 N.C. 100, 107, 253 S.E.2d 890, 894 (citations omitted), cert. denied, 444 U.S. 874, 62 L.Ed. 2d 102 (1979). \u201cA motion to dismiss [for a variance] is in order when the prosecution fails to offer sufficient evidence the defendant committed the offense charged.\u201d State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971). \u201cA variance between the criminal offense charged and the offense established by the evidence is in essence a failure of the State to establish the offense charged.\u201d Id. Here, the record does not contain any argument at trial by defense counsel that the charges should be dismissed because there was a fatal variance between the indictment and evidence presented. We have recently stated that\n[generally, \u201cerror may not be asserted upon appellate review unless the error has been brought to the attention of the trial court by appropriate and timely objection or motion.\u201d N.C. Gen. Stat. \u00a7 15A-1446(a) (2009); N.C.R. App. P. (10)(a)(l). Objections must \u201cstat[e] the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\u201d N.C.R. App. P. (10)(a)(l). \u201cFailure to make an appropriate and timely motion or objection constitutes a waiver of the right to assert the alleged error on appeal . . . .\u201d N.C. Gen. Stat. \u00a7 15A-1446(b).\nState v. Edmonds, _N.C. App. _, _, 713 S.E.2d 111, 114 (2011). As the above portions of the transcript show, defense counsel\u2019s only objection regarding the indictment was .whether the State was going to pursue the charge of possession with intent, which the State ultimately did not pursue. Since defendant failed to raise a specific argument regarding dismissal based on a fatal variance at trial, those arguments have been waived on appeal. See id. However in our discretion, we have reviewed this issue and find it has no merit.\nIII. Substitute counsel\nDefendant next contends that \u201cthe trial court erred when it failed to conduct a meaningful inquiry and denied [his] repeated requests to remove his court-appointed attorney.\u201d\nIn State v. Covington, our Supreme Court stated that\n[t]he right to the assistance of counsel and the right to face one\u2019s accusers and witnesses with other testimony are guaranteed by the Sixth Amendment to the Federal Constitution which is made applicable to the States by the Fourteenth Amendment, and by Article I, Sections 19 and 23 of the Constitution of North Carolina. The right to the assistance of counsel includes the right of counsel to confer with witnesses, to consult with the accused and to prepare his defense.\nState v. Cradle, 281 N.C. 198, 207, 188 S.E.2d 296, 302 (1972) (citations omitted). Errors arising pursuant to the United States Constitution are presumed prejudicial unless the appellate court finds that the error was harmless beyond a reasonable doubt. N.C. Gen. Stat. \u00a7 15A-1443(b) (2007). \u201cThe burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.\u201d Id. Our Supreme Court applies this principle to errors arising pursuant to the North Carolina Constitution. State v. Bunch, 363 N.C. 841, 844, 689 S.E.2d 866, 868 (2010) (quoting State v. Huff, 325 N.C. 1, 33, 381 S.E.2d 635, 654 (1989), sentence vacated on other grounds, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990)).\n205 N.C. App. 254, 256, 696 S.E.2d 183, 185 (2010). \u201cAbsent a showing of a [S]ixth [Ajmendment violation\u201d, we review the denial of a motion to appoint substitute counsel under an abuse of discretion standard. State v. Hutchins, 303 N.C. 321, 336, 279 S.E.2d 788, 798 (1981) (citation omitted).\nWhile it is a fundamental principle that an indigent defendant in a serious criminal prosecution must have counsel appointed to represent him, Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed. 2d 799 (1963), an indigent defendant does not have the right to have counsel of his choice appointed to represent him. This does not mean, however, that a defendant is never entitled to have new or substitute counsel appointed. A trial court is constitutionally required to appoint substitute counsel whenever representation by counsel originally appointed would amount to denial of defendant\u2019s right to effective assistance of counsel, that is, when the initial appointment has not afforded defendant his constitutional right to counsel.\nState v. Thacker, 301 N.C. 348, 351-52, 271 S.E.2d 252, 255 (1980) (citations and footnote omitted) (emphasis in original). \u201cSubstitute counsel is required and must be appointed when defendant shows good cause, such as a conflict of interest or a complete breakdown in communications.\u201d State v. Nelson, 76 N.C. App. 371, 373, 333 S.E.2d 499, 501 (1985) (citations omitted), aff\u2019d as modified on other grounds, 316 N.C. 350, 341 S.E.2d 561 (1986). On the other hand,\nwhen it appears to the trial court that the original counsel is reasonably competent to present defendant\u2019s case and the nature of the conflict between defendant and counsel is not such as would render counsel incompetent or ineffective to represent that defendant, denial of defendant\u2019s request to appoint substitute counsel is entirely proper.\nThacker, 301 N.C. at 352, 271 S.E.2d at 255 (citations omitted) (emphasis in original). General dissatisfaction or disagreement over trial tactics is not a sufficient basis to appoint new counsel. See State v. Prevatte, 356 N.C. 178, 216, 570 S.E.2d 440, 461 (2002) (noting that \u201c[a]n indigent defendant has no right to replace appointed counsel merely because the defendant is dissatisfied with the present attorney\u2019s work or because of a disagreement over trial tactics.\u201d), cert. denied, 538 U.S. 986, 155 L.Ed. 2d 681 (2003).\nSpecifically, defendant contends that he repeatedly informed the judge that his defense counsel was not \u201cdoing a good job representing his interests, and that he had had very little contact with [defense counsel] before trial\u201d and \u201che wasn\u2019t sure [defense counsel] had his best interest at heart.\u201d Defendant contends that \u201c[t]he trial court did not conduct a serious and focused inquiry into the nature of the conflict between\u201d defendant and defense counsel and \u201cwas unable to ascertain whether the conflict was so severe that it would render counsel incompetent or ineffective to represent that defendant.\u201d (emphasis omitted). Defendant concludes that this failure to investigate amounted to an abuse of discretion, this violation of his constitutional rights was presumed prejudicial, and his conviction should be reversed as the State cannot show that this error was \u201charmless beyond a reasonable doubt.\u201d\nHere, defendant makes no argument regarding any conflict of interest. See Nelson, 76 N.C. App. at 373, 333 S.E.2d at 501. The trial transcript shows that at two separate times during his trial defendant voiced his desire to hire new counsel and have his appointed counsel dismissed. However, a thorough review of the transcript shows that a majority of defendant\u2019s complaints were directed towards defense counsel\u2019s choice of trial strategy or defendant\u2019s general dissatisfaction with defense counsel. As to trial strategy, defendant complained that defense counsel was trying to coerce him into taking a plea bargain, had only spent 50 hours working on his case, and, on the second day, it appears that he was unhappy with defense counsel\u2019s cross-examination of Detective Walker. In voicing his general dissatisfaction, defendant stated that he felt defense counsel \u201chasn\u2019t really been representing me the best way that his \u2014 that I feel like he can[;]\u201d defense counsel did not have \u201chis best interest at heart[;]\u201d and defendant felt the \u201che [had not] really done nothing [sic] for [him].\u201d As noted above, complaints regarding defendant\u2019s dissatisfaction with a defendant\u2019s trial counsel\u2019s work or trial strategy are not a sufficient basis for the appointment of substitute counsel. See Prevatte, 356 N.C. at 216, 570 S.E.2d at 461.\nAs to defendant\u2019s complaints regarding a lack of communication with his trial counsel, we note that defendant on the first day of trial complained that he had not seen his counsel prior to trial \u201clike once every eight months.\u201d On the second day of trial, there was an outburst by defendant in open court while he was conferring with defense counsel during the cross-examination of Detective Walker, indicating that there were some communication difficulties between defendant and his trial counsel. Even so, we find nothing in the record to show that \u201cthe nature of the conflict between defendant and counsel [was] . . . such as would render counsel incompetent or ineffective to represent\u201d defendant. See Thacker, 301 N.C. at 352, 271 S.E.2d at 255. The transcript shows that after defendant voiced his complaints there were several instances where the trial court stopped the trial or recessed the trial early so that defendant could confer with defense counsel. Even after defendant complained during cross examination of Detective Walker that he was not receiving \u201ca fair trial,\u201d the trial court stopped the trial and gave defendant time to talk with defense counsel before bringing in the jury; when cross-examination resumed, defense counsel indicated that after conferring with defendant he had specific questions from defendant to ask the witness. Therefore, we cannot say that there was a \u201ccomplete breakdown in communications\u201d[,] see Nelson, 76 N.C. App. at 373, 333 S.E.2d at 501, which would justify the appointment of substitute counsel.\nAs to defendant\u2019s arguments regarding the trial court\u2019s inquiry into defendant\u2019s request for substitute counsel, we note that the Thacker Court expressly rejected the defendant\u2019s argument \u201cthat failure to make a detailed inquiry [into an alleged conflict with appointed counsel] amounts to a per se violation of defendant\u2019s right to counsel.\u201d 301 N.C. at 353, 271 S.E.2d at 255 (emphasis added). Our Supreme Court held that \u201cwhen faced with a claim of conflict and a request for appointment of substitute counsel, the trial court must satisfy itself only that present counsel is able to render competent assistance and that the nature or degree of the conflict is not such as to render that assistance ineffective.\u201d Id. at 353, 271 S.E.2d at 256. Here, as noted above, defendant twice requested substitute counsel. In the first instance, defendant\u2019s concerns were based on a disagreement as to defense counsel\u2019s trial strategy, a lack of communication between defendant and defense counsel, and defendant\u2019s general dissatisfaction with defense counsel. After hearing defendant\u2019s concerns, the State argued that appointment of substitute counsel would not be appropriate as defense counsel had been \u201cwork[ing] diligently\u201d on defendant\u2019s case, including filing motions on his behalf, and another attorney would just delay the case. We note that defense counsel had filed two pre-trial motions on behalf of defendant. The trial court agreed with the comments from the State, and further noted that the case was five years old, that he had handled many cases with defense counsel, and that defense counsel was \u201cvery experienced\u201d and \u201cvery competent.\u201d The trial court denied defendant\u2019s motion and gave them an opportunity to \u201ctalk among yourselves.\u201d\nOn the second day of trial, defendant again voiced his dissatisfaction with defense counsel\u2019s representation, stated that he wanted to hire his own lawyer, claimed that he was not getting a fair trial, and disagreed with defense counsel\u2019s trial strategy regarding the questions defense counsel was asking Detective Walker on cross-examination. The trial court, after listening to defendant\u2019s concerns, told defendant that defense counsel had \u201ctried a lot of cases, and he\u2019s practiced law a long time. So I do want to encourage you to listen to his advice about what can be asked and what can\u2019t be asked.\u201d The trial court then stopped the trial and gave defendant time to talk with defense counsel before bringing in the jury. In both instances, the trial court made sufficient inquiry to determine that the nature of the conflicts were defendant\u2019s general dissatisfaction with defense counsel, communication problems, and trial strategy. None of the circumstances surrounding these complaints, as determined above, were such as to render defense counsel\u2019s assistance ineffective. The trial court also voiced his confidence in defense counsel, noting his competence, trial experience, and diligent work on defendant\u2019s case. Therefore, having learned \u201cthat present counsel [was] able to render competent assistance and that the nature or degree of the conflict [was] not such as to render that assistance ineffective[,]\u201d see Thacker, 301 N.C. at 353, 271 S.E.2d at 256, the trial court did not abuse its discretion in denying defendant\u2019s motions for substitute counsel.\nIV. Mistrial\nDefendant next contends that \u201cthe trial court erred in not declaring a mistrial when three law enforcement officers walked through the jury assembly room in the presence of some jurors.\u201d Defendant argues that the trial court should have conducted an inquiry with jurors pursuant to N.C. Gen. Stat. \u00a7 15A-1211(b) to determine if the contact by the officers had been prejudicial to defendant, as these were three witnesses for the State. Defendant concludes that it was error for the trial court not to grant his motion for a mistrial \u201cbecause the integrity of this verdict is in doubt\u201d due to these officers \u201cmarching through [the] jury room\u201d and there \u201cwas no way to know what the impact of this event might be on the objectivity of the jurors.\u201d\nGenerally, \u201cthe trial court possesses broad discretionary powers to conduct a fair and just trial.\u201d State v. Garcell, 363 N.C. 10, 44, 678 S.E.2d 618, 639 (citation and quotation marks omitted), cert. denied, _U.S. _, 175 L.Ed. 2d 362 (2009). N.C. Gen. Stat. \u00a7 15A-1061 states, in pertinent part, that\n[u]pon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial. The judge must declare a mistrial upon the defendant\u2019s motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant\u2019s case.\nN.C. Gen. Stat. \u00a7 15A-1061 (2007). But \u201c[n]ot every disruptive event which occurs during trial automatically requires the court to declare a mistrial.\u201d State v. Allen, 141 N.C. App. 610, 617, 541 S.E.2d 490, 496 (2000) (citation omitted), disc. review denied and appeal dismissed, 353 N.C. 382, 547 S.E.2d 816 (2001). \u201cOur standard of review when examining a trial court\u2019s denial of a motion for mistrial is abuse of discretion.\u201d State v. Simmons, 191 N.C. App. 224, 227, 662 S.E.2d 559, 561 (2008) (citation omitted). We find that the case before us is analogous to State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388 (2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001).\nIn Washington, the defendant argued that \u201cthe trial court erred by not declaring a mistrial sua sponte after a bailiff entered the jury room during deliberations.\u201d Id. at 375, 540 S.E.2d at 402 (footnote omitted). This Court stated that\n[ajppellate courts are deferential to the trial court\u2019s exercise of discretion in this area because a \u201c \u2018trial judge is in a better position to investigate any allegations of misconduct, question witnesses and observe their demeanor and make appropriate findings.\u2019 \u201d State v. Rutherford, 70 N.C. App. 674, 677, 320 S.E.2d 916, 919 (1984) (citation omitted).\n\u201cMisconduct must be determined by the facts and circumstances of each case . . . .\u201d Id. \u201c \u2018The circumstances must be such as not merely to put suspicion on the verdict, because there was opportunity and a chance for misconduct, but that there was in fact misconduct. When there is merely matter of suspicion, it is purely a matter in the discretion of the presiding judge.\u2019 \u201d [State v. Sneeden, 274 N.C. 498, 504, 164 S.E.2d 190, 195 (1968)](quoting Lewis v. Fountain, 168 N.C. 277, 279, 84 S.E. 278, 279 (1915)).\nThe great weight of authority sustains the rule that... a verdict will not be disturbed because of a conversation between a juror and a stranger when it does not appear that such conversation was prompted by a party, or that any injustice was done to the person complaining, and he is not shown to have been prejudiced thereby, and this is true of applications for new trial by the accused in a criminal case as well as of applications made in civil actions. . . . [A]nd if a trial is really fair and proper, it should not be set aside because of mere suspicion or appearance of irregularity which is shown to have done no actual injury. Generally speaking, neither the common law nor statutes contemplate as ground for a new trial a conversation between a juror and a third \u2022 person unless it is of such a character as is calculated to impress the case upon the mind of the juror in a different aspect than was presented by the evidence in the courtroom, or is of such a nature as is calculated to result in harm to a party on trial. The matter is one resting largely within the discretion of the trial judge.\nId. (alteration in original) (citation omitted).\nId. at 376-77, 540 S.E.2d at 403. In concluding that there was no abuse of discretion as \u201cthere was no misconduct affecting the jury\u201d and overruling the defendant\u2019s argument, this Court stated that\nthe evidence showed that when the intrusion by the bailiff became known to the court, the trial judge put the bailiff under oath, determined that the bailiff had, without authorization of the court, knocked on the door of the jury room, that he did so because another bailiff had asked him to retrieve some magazines for defendant, that the bailiff said nothing to the jurors and the jurors said nothing to him, and that he heard no deliberations and had no other contact with the jurors. Neither the State nor defendant accepted the court\u2019s invitation to make further inquiry of the bailiff, and defendant did not then seek a mistrial.\nId. at 377, 540 S.E.2d at 403.\nLikewise here, the record shows no misconduct affecting the jury. Defense counsel raised a motion for mistrial on the second day of trial stating that three police officers and witnesses in the trial, Detective Walker, Detective Roth and Officer Ruth Steward, had walked through the jury assembly room on their way to court that morning and two members of the jury were in that room. After hearing arguments from both sides, the trial court stated that the contact with jurors was \u201cinadvertent\u201d as there was no conversation between the officers and the jurors and denied the motion for mistrial. Subsequently, defense counsel requested that the officers tell what happened under oath. The officers stated that they were told to be in the courtroom by 9:15 a.m. to talk with the prosecutor but because the courtroom door was locked, the officers sought access to the courtroom through what they thought was the grand jury room. However, this room, which had previously been used as the grand jury room, was now being used as the jury assembly room; they did not notice the sign indicating that it was the jury assembly room. There was no conversation with jurors and, even though they noticed a woman coming out of the bathroom and another man standing in the room, they did not make eye contact with them and quickly exited the room. Like the baliff in Washington, the officers here said nothing to the jurors, the jurors made no comments to the officers, and the officers did not even make eye contact with the jurors. The contact was inadvertent, brief, and ultimately harmless. Also, we note that unlike Washington, in which the contact was made during jury deliberations, here the contact was in the jury assembly room before trial on the second day. Because defendant\u2019s arguments point to a \u201cmere suspicion or appearance of irregularity\u201d but the record shows \u201cno actual injury\u201d by the officers\u2019 contact with the jurors, see Washington, 141 N.C. App. at 376-77, 540 S.E.2d at 403, we will not set aside the verdict and hold that the trial court did not abuse its discretion in denying defendant\u2019s motion for a mistrial. We need not address defendant\u2019s argument regarding his habitual felon status as that argument is based on errors in his conviction for possession of cocaine. However, we find no error in defendant\u2019s trial for possession of cocaine.\nFor the foregoing reasons, we find no error in defendant\u2019s trial.\nNO ERROR.\nJudges HUNTER, Robert C. and ERVIN concur.\n. On 26 April 2012, defendant filed a pro se motion \u201cfor appropriate relief from his current sentence.\u201d However, as noted above, defendant is represented by appellate counsel in this appeal. Our Supreme Court has stated that \u201c[h]aving elected for representation by appointed defense counsel, defendant cannot also file motions on his own behalf or attempt to represent himself. Defendant has no right to appear both by himself and by counsel.\u201d State v. Grooms, 353 N.C. 50, 61, 540 S.E.2d 713, 721 (2000) (citations omitted), cert. denied, 534 U.S. 838, 151 L.Ed. 2d 54 (2001); see State v. Parton, 303 N.C. 55, 61, 277 S.E.2d 410, 415 (1981) (stating that \u201ca party has the right to appear in propria persona or, in the alternative, by counsel\u201d but \u201c[t]here is no right to appear both in propria persona and by counsel.\u201d), overruled on other grounds by State v. Freeman, 314 N.C. 432, 437-38, 333 S.E.2d 743, 746-47 (1985); N.C. Gen. Stat. \u00a7 1-11 (2007). As there is no indication in the record that defendant\u2019s appellate counsel has withdrawn from his representation of defendant, we dismiss defendant\u2019s pro se motion.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Special Deputy Attorney General E. Burke Haywood, for the State.", "Michael E. Casterline, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MONTARIO ANTWOND GLENN\nNo. COA11-1488\n(Filed 5 June 2012)\n1. Appeal and Error \u2014 preservation of issues \u2014 failure to raise specific argument\nThe trial court did not err in a felony possession of cocaine case by denying defendant\u2019s motion to dismiss for insufficient evidence. Although the indictment alleged that defendant possessed .1 grams of cocaine while the State\u2019s evidence showed that defendant possessed only .03 grams of cocaine, defendant failed to raise a specific argument at trial regarding dismissal based on a fatal variance and the argument was waived on appeal. Further, in its discretion, the Court of Appeals reviewed the argument and found it had no merit.\n2. Attorneys \u2014 request to remove court-appointed attorney\u2014 complaints not sufficient for removal \u2014 sufficient inquiry\u2014 no ineffective assistance\nThe trial court did not abuse its discretion in a possession of cocaine case by failing to conduct a meaningful inquiry into defendant\u2019s complaints regarding his court-appointed attorney and denying defendant\u2019s requests to remove his attorney. Defendant\u2019s complaints regarding his dissatisfaction with his attorney\u2019s work and trial strategy were not a sufficient basis for the appointment of substitute counsel. None of the circumstances surrounding these complaints were such as to render defense counsel\u2019s assistance ineffective.\n3. Jury \u2014 contact with police officer witnesses \u2014 inadvertent, brief, and harmless \u2014 motion for mistrial properly denied\nThe trial court did not err by denying defendant\u2019s motion for a mistrial in a felony possession of cocaine case where three law enforcement officers who were witnesses in the case walked through the jury assembly room in the presence of some jurors. The contact was inadvertent, brief, and ultimately harmless.\nAppeal by defendant from amended judgment entered on or about 9 June 2011 by Judge Joseph N. Crosswhite in Superior Court, Rowan County. Heard in the Court of Appeals 4 April 2012.\nAttorney General Roy A. Cooper, III, by Special Deputy Attorney General E. Burke Haywood, for the State.\nMichael E. Casterline, for defendant-appellant." }, "file_name": "0143-01", "first_page_order": 153, "last_page_order": 165 }