IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1101
Filed: 21 May 2019
Mecklenburg County, Nos. 17CRS209358, 17CRS209361
STATE OF NORTH CAROLINA,
v.
ALPHONSO DAWKINS, JR., Defendant.
Appeal by Defendant from judgment entered 5 July 2018 by Judge Carla
Archie in Mecklenburg County Superior Court. Heard in the Court of Appeals 10
April 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Jane
Atmatzidis, for the State-Appellee.
The Epstein Law Firm PLLC, by Drew Nelson, for Defendant-Appellant.
COLLINS, Judge.
Defendant appeals from judgment entered upon jury verdicts finding him
guilty of possession of a firearm by a felon and misdemeanor possession of marijuana,
following a jury trial on 5 July 2018. Defendant contends that the trial court erred
by (1) rejecting Defendant’s trial counsel’s attempt to stipulate to the fact that
Defendant was a convicted felon and (2) allowing the State to introduce evidence of
Defendant’s prior felony conviction, which showed evidence of Defendant’s prior
misdemeanor convictions. Finding no error, we affirm.
STATE V. DAWKINS
Opinion of the Court
I. Background
On 10 March 2017, Defendant crashed his vehicle into the front yard of a
residence in Charlotte. Law enforcement officers arrived on the scene within minutes
in response to a call describing the scene and informing dispatch that the driver of
the vehicle had placed something inside a trash can next to the crashed vehicle.
Upon arrival, Defendant told the officers that he had lost control while driving.
The officers received consent from the owner of the residence to search her trash cans,
and found a half-empty bottle of alcohol and a firearm therein. The owner of the
residence said that neither item belonged to her. One of the officers ran Defendant’s
information through the police database and learned that Defendant was a convicted
felon, and arrested Defendant for possession of a firearm by a felon. After being
placed under arrest, Defendant admitted to the officers that the firearm belonged to
him and that he had placed it in the trash can.
The officers took Defendant to the police station and placed him in an interview
room, which was monitored with audio and visual recording equipment. Once alone
in the interview room, Defendant reached into his groin area, and the officers watched
as he removed something from his person and placed it into his mouth. The officers
reentered the interview room and demanded Defendant spit out what he had placed
into his mouth. Defendant complied, and spit out three small plastic bags containing
marijuana.
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Opinion of the Court
On 12 June 2017, Defendant was indicted for possession of a firearm by a felon,
a violation of N.C. Gen. Stat. § 14-415.1 (2017), and misdemeanor possession of
marijuana, a violation of N.C. Gen. Stat. § 90-95(d)(4) (2017). On 2 July 2018,
Defendant pled not guilty to all charges, and trial commenced.
Prior to the beginning of trial, the State and Defendant’s trial counsel agreed
to stipulate that Defendant had previously been convicted of a felony. Defendant’s
trial counsel conferred with Defendant and read him the proposed stipulation, and
then told the trial court that Defendant did not wish to sign the stipulation.
Defendant’s trial counsel stated that he believed the stipulation to be in Defendant’s
best interest, and that he believed the decision of whether to stipulate was his to
make, rather than Defendant’s. Ultimately, the trial court rejected the proposed
stipulation. The trial court noted that the State would be able to introduce the
Judgment and Commitment form for Defendant’s prior felony and misdemeanor
convictions (the “Form”) to prove Defendant’s status as a convicted felon. The trial
court also indicated that it might require certain portions of the Form to be redacted,
and recommended that the parties confer about proposed redactions.
The following day, the parties and the trial court again discussed the Form.
Defendant objected to the admission of the Form because it reflected Defendant’s
prior convictions for two misdemeanors, which Defendant argued would be
prejudicial to him. The trial court conducted a balancing analysis under N.C. Gen.
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Opinion of the Court
Stat. § 8C-1, Rule 403 (2018), and ruled that the evidence of the misdemeanors was
not “overly prejudicial.” Defendant did not specifically object to the evidence of the
two prior misdemeanors, nor move the trial court to redact the evidence of the
misdemeanors from the Form. The only content Defendant asked the trial court to
redact was the “sentence imposed” on the Form for the felony and misdemeanor
convictions combined, which the trial court declined to do because it found the
sentence not “overly prejudicial.” Defendant did not object further to the Form. The
trial court thus allowed the Form’s admission, subject to the redaction of the offenses
charged, the prior record level, and the prior record points, but not the evidence of
the misdemeanor convictions altogether.
At trial, the State called the Assistant Clerk of Superior Court of Mecklenburg
County as a witness, who identified the Form. The redacted Form was shown to the
jury, and the Assistant Clerk testified that it showed Defendant had been convicted
of a felony and two misdemeanors. Defendant did not object to the Form’s admission,
or to the Assistant Clerk’s testimony regarding the Form, when said evidence was
offered at trial.
On 5 July 2018, the jury convicted Defendant of both offenses charged, and the
trial court entered judgment sentencing Defendant to 22-36 months’ imprisonment.
Defendant timely appealed.
II. Appellate Jurisdiction
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Opinion of the Court
This Court has jurisdiction to hear Defendant’s appeal of the judgment under
N.C. Gen. Stat. § 7A-27(b)(1) (2018).
III. Analysis
Defendant contends that the trial court erred by (1) rejecting Defendant’s trial
counsel’s attempt to stipulate to the fact that Defendant was a convicted felon and (2)
allowing the State to introduce evidence of Defendant’s prior felony conviction, which
showed evidence of Defendant’s prior misdemeanor convictions. We address each
argument in turn.
a. Stipulation
Defendant first argues that the trial court erred by denying the stipulation
proposed by the State and Defendant’s trial counsel regarding Defendant’s status as
a convicted felon, a proposed stipulation that the record reflects Defendant refused to
sign when asked. By rejecting the stipulation proposed by his trial counsel,
Defendant argues, the trial court failed to heed Defendant’s trial counsel’s decision,
and as a result, Defendant was deprived of his right to effective counsel guaranteed
by the Sixth Amendment to the United States Constitution. Because the trial court
deprived Defendant of his right to effective counsel, the argument continues, the trial
court committed reversible error and Defendant’s subsequent convictions must be set
aside.
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STATE V. DAWKINS
Opinion of the Court
Defendant’s argument is premised upon the proposition that, where a
defendant and his lawyer reach an impasse regarding a tactical decision to be made
at trial—here, the decision of whether to require the State to prove that Defendant
was a convicted felon, or to stipulate to that fact—it is the defendant’s lawyer’s
desired tactical decision that controls, rather than the defendant’s. This premise has
been specifically rejected by our Supreme Court. In State v. Ali, 329 N.C. 394, 407
S.E.2d 183 (1991), the Court held:
While an attorney has implied authority to make
stipulations and decisions in the management or
prosecution of an action, such authority is usually limited
to matters of procedure, and, in the absence of special
authority, ordinarily a stipulation operating as a surrender
of a substantial right of the client will not be upheld. . . .
[W]hen counsel and a fully informed criminal defendant
client reach an absolute impasse as to such tactical
decisions, the client’s wishes must control; this rule is in
accord with the principal-agent nature of the attorney-
client relationship. In such situations, however, defense
counsel should make a record of the circumstances, her
advice to the defendant, the reasons for the advice, the
defendant’s decision and the conclusion reached.
Id. at 403-04, 407 S.E.2d at 189 (citation omitted).
The record reflects the following: (1) the circumstances leading to the
disagreement between Defendant and his trial counsel regarding the proposed
stipulation; (2) that, in conference with Defendant, Defendant’s trial counsel advised
Defendant to sign the proposed stipulation; (3) that Defendant’s trial counsel so
advised Defendant because the Form that the State otherwise would almost certainly
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Opinion of the Court
use to prove that Defendant was a convicted felon contained evidence which
Defendant’s trial counsel believed ran the risk of prejudicing Defendant, and
Defendant’s trial counsel thus believed stipulating was in Defendant’s best interest;
(4) that, after receiving his trial counsel’s advice, Defendant refused to sign the
proposed stipulation; (5) that Defendant’s trial counsel petitioned the trial court to
accept the proposed stipulation despite Defendant’s unwillingness to stipulate
(creating the “absolute impasse” contemplated by Ali); and (6) the trial court rejected
the proposed stipulation.
Defendant argues that Ali is inapplicable here because he was not “fully
informed” regarding the stipulation and because his “refusal to sign the stipulation
should be seen as a refusal to participate in the trial process and a knee-jerk refusal
of his counsel’s recommendation” rather than the “absolute impasse” between a
defendant and his trial counsel contemplated by Ali.
Defendant’s statement that he “refus[ed] his counsel’s recommendation”—in
“knee-jerk” fashion or otherwise—is a concession that Defendant understood his trial
counsel’s recommendation and that he could take it or leave it. If at that point
Defendant did not feel adequately informed by his trial counsel to make the decision
he faced, Defendant could have expressed a lack of understanding to his trial counsel
or to the trial court and sought further explanation. The record nowhere reflects that
Defendant had such a lack of understanding regarding the stipulation, that he asked
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Opinion of the Court
his trial counsel or the trial court for more information, or that he took any other
steps to inform himself. To the contrary, the record reflects that Defendant
specifically told his trial counsel that he did not want to sign the stipulation. It is
Defendant’s burden to demonstrate to this Court that his trial counsel was ineffective
and prejudiced his case, State v. Banks, 367 N.C. 652, 655, 766 S.E.2d 334, 337 (2014),
and without supporting evidence in the record, we cannot conclude that Defendant
was not “fully informed” within the meaning of Ali.
Defendant’s argument that his refusal to sign the stipulation was a “refusal to
participate in the trial process” rather than an impasse with his trial counsel is
unavailing. Defendant was faced with a choice: to heed his counsel’s recommendation
to sign the stipulation, or to reject his counsel’s recommendation and refuse to sign
the stipulation. Defendant chose the latter course, and because Defendant’s trial
counsel maintained his insistence upon the former, an impasse was created within
the meaning of Ali, which controls our analysis.
Because we hold that Defendant’s decision not to stipulate was controlling
under Ali, the trial court was required to abide by Defendant’s wishes and reject the
stipulation. State v. Freeman, 202 N.C. App. 740, 746, 690 S.E.2d 17, 22 (2010) (“It
was error for the trial court to allow counsel’s decision to control when an absolute
impasse was reached on this tactical decision, and the matter had been brought to
the trial court’s attention.”). We accordingly conclude that the trial court did not
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Opinion of the Court
violate Defendant’s Sixth-Amendment right to effective counsel or otherwise err by
rejecting the proposed stipulation sought by Defendant’s trial counsel.
b. Misdemeanors
Defendant also argues that by allowing the State to introduce the Form1 as
evidence of Defendant’s prior felony conviction, when the Form also contained
evidence of Defendant’s prior misdemeanor convictions, the trial court erred by
admitting irrelevant evidence that unfairly prejudiced Defendant.
The record reflects that Defendant objected to the Form’s admission on the day
of the trial on the grounds of prejudice, during a colloquy with the trial court and the
State that took place outside of the presence of the jury and before the Form was
offered into evidence, and that Defendant’s objection was overruled at that time. The
record does not reflect that Defendant (1) objected during the colloquy to the Form’s
admission on relevance grounds, or (2) objected to the Form’s admission on any
ground when it was actually offered into evidence.
Where a defendant objects to evidence at trial outside of the presence of the
jury, but fails to object when the evidence is actually admitted, the issue of the
1 In his arguments, Defendant fails to acknowledge that he objected only to the admission of
the Form as a whole during his preliminary colloquy with the trial court and the State. Defendant
never specifically objected to those portions of the Form reflecting the misdemeanor convictions, or
asked the trial court to redact those portions. Defendant’s argument on appeal that “the misdemeanor
convictions should have been redacted” because “[t]rial counsel for [Defendant] objected to the
inclusion of the misdemeanor convictions and requested that they be redacted from the form” fails both
for (1) Defendant’s failure to cite to any authority setting forth a duty to redact prejudicial evidence
from relevant documents admitted and (2) the fact that the record does not reflect that Defendant’s
trial counsel made the objection that Defendant suggests.
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Opinion of the Court
evidence’s admissibility is not preserved for appellate review. See State v. Oglesby,
361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007) (“a trial court’s evidentiary ruling on a
pre-trial motion is not sufficient to preserve the issue of admissibility for appeal
unless a defendant renews the objection during trial”); State v. Conaway, 339 N.C.
487, 521, 453 S.E.2d 824, 845 (1995) (“A motion in limine is insufficient to preserve
for appeal the question of the admissibility of evidence if the defendant fails to further
object to that evidence at the time it is offered at trial.”). Since Defendant failed to
object to the Form when it was offered into evidence, the issue of the Form’s
admissibility was not preserved.
We may review unpreserved evidentiary errors in criminal cases for plain
error. State v. Maddux, 371 N.C. 558, 564, 819 S.E.2d 367, 371 (2018). Under plain
error review, a defendant “must convince this Court not only that there was error,
but that absent the error, the jury probably would have reached a different result.”
Id. at 563, 819 S.E.2d at 370 (citation omitted). However, a defendant must
“specifically and distinctly” contend on appeal that the error amounted to plain error.
N.C. R. App. P. 10(a)(4) (2018). As the State argues, Defendant does not contend that
the trial court committed plain error, but merely states that Defendant was
prejudiced by the trial court’s purported error. By failing to “specifically and
distinctly” argue that the purported error amounted to plain error, Defendant has
waived plain error review. State v. Frye, 341 N.C. 470, 496, 461 S.E.2d 664, 677
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Opinion of the Court
(1995) (holding defendant “waived appellate review of [unpreserved] arguments by
failing specifically and distinctly to argue plain error”).
Finally, Defendant asks us to suspend the requirements of Appellate Rule 10
and consider the merits of his unpreserved objection to “prevent manifest injustice to
a party[.]” N.C. R. App. P. 2 (2018). But because the record shows that Defendant
was able but refused to stipulate that he was a convicted felon, and by so doing
effectively required the State to prove its case by publishing the Form (and potentially
the evidence of his prior misdemeanor convictions reflected thereupon) to the jury,
we discern no manifest injustice to prevent. See N.C. Gen. Stat. § 15A-1443(c) (2018)
(“A defendant is not prejudiced by the granting of relief which he has sought or by
error resulting from his own conduct.”); State v. Eason, 336 N.C. 730, 741, 445 S.E.2d
917, 924 (1994) (“When a party invites a course of action, he is estopped from later
arguing that it was error.”). We therefore decline to invoke Appellate Rule 2.
IV. Conclusion
Because Defendant refused to sign the proposed stipulation regarding his
status as a convicted felon, the trial court did not err in rejecting the proposed
stipulation. Defendant’s failure to object to the admission of the Form when it was
offered into evidence at trial means that his objection is unpreserved, and Defendant’s
failure to argue that the trial court’s admission of the Form had a probable impact
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Opinion of the Court
upon the jury’s decision to convict him constitutes a waiver of plain error review. We
accordingly find no error.
NO ERROR.
Judges BRYANT and STROUD concur.
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