Criminal Practice – Mistrial Motion – Witnesses in Jury Assembly Room — Cocaine Possession – Indictment – Assistance of Counsel

State v. Glenn (Lawyers Weekly No. 12-07-0597, 22 pp.) (Donna S. Stroud, J.) Appealed from Rowan County Superior Court. (Joseph N. Crosswhite, J.) N.C. App. Full-text opinion.

Holding: Three police officers, who were witnesses in defendant’s trial, walked through the jury assembly room (which they mistakenly believed was still the grand jury room) on their way to court on the second day of defendant’s trial. Although two of the jurors on defendant’s case were in the assembly room, the officers had no contact – not even eye contact – with them and quickly exited the room. The record shows no actual injury by the officers’ contact with the jurors, so the trial court did not abuse its discretion in denying defendant’s motion for a mistrial.

We find no error in defendant’s convictions of felony possession of cocaine and attaining the status of habitual felon.

Defense counsel’s only objection regarding the indictment concerned the state’s intention to pursue a 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 between the alleged and actual weights of cocaine seized from defendant, any such argument has been waived.

A majority of defendant’s complaints about his trial attorney were directed towards defense counsel’s choice of trial strategy or defendant’s general dissatisfaction with defense counsel. Such complaints are not a sufficient basis for the appointment of substitute counsel. As to defendant’s complaints regarding a lack of communication with his trial attorney, we find nothing in the record to show that the nature of the conflict between defendant and defense counsel was such as would render counsel incompetent or ineffective to represent defendant.