An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                                NO. COA13-1203
                        NORTH CAROLINA COURT OF APPEALS

                               Filed:    20 May 2014


STATE OF NORTH CAROLINA

      v.                                   Cabarrus County
                                           No. 09 CRS 003474
MARVA DENYSE GILLIS,
     Defendant.


      Appeal by defendant from judgment entered 5 June 2013 by

Judge Tanya T. Wallace in Cabarrus County Superior Court.                       Heard

in the Court of Appeals 17 February 2014.


      Roy Cooper, Attorney General, by J.                        Joy    Strickland,
      Assistant Attorney General, for the State.

      Jon W. Myers, for defendant-appellant.


      MARTIN, Chief Judge.


      Defendant        Marva   Denyse    Gillis    appeals      from    a    judgment

entered    upon    a    jury   verdict   finding        her   guilty    of   impaired

driving.        For the reasons stated herein, we find no error in

defendant’s trial.

      On   11    April    2009,   defendant       was    arrested      for   impaired

driving in violation of N.C.G.S. § 20-138.1.                   The first trial in
                                          -2-
this case took place during the 7 March 2011 criminal session of

Cabarrus County Superior Court.                 Defendant filed three separate

motions      to   suppress    evidence       related     to    her   detention     and

arrest.      After an evidentiary hearing, the trial court entered a

written order on 8 March 2011, denying defendant’s motions to

suppress     evidence.       The     case    proceeded    to    trial,     and   after

retiring for deliberations, the jury deadlocked and could not

reach    a   verdict.        The     trial    court,     therefore,       declared   a

mistrial on 10 March 2011.

       The second trial in this case began on 4 June 2013.                       Before

jury    selection,       defendant    requested       permission     to   personally

address the trial court.             Although defendant was represented by

appointed counsel, the court nonetheless allowed her request.

Defendant asked for a continuance in order to allow for the

opportunity to file new pretrial motions which her counsel had

failed to file.       In addition, defendant requested that the court

either    order    her    counsel    to     provide    effective     assistance      or

appoint substitute counsel.            In response, the court stated that

all of the pretrial motions had been ruled upon in the previous

trial, and the court agreed with the State that defendant was

thus not entitled to file new pretrial motions.                      The court then

denied defendant’s motion for a continuance, informed defendant

that only her counsel could speak to the court on her behalf,
                                         -3-
and stated that anyone who made mention of the previous trial

risked being found in contempt of court.

    Despite the court’s threat of contempt, Sergeant Timothy

Russell   made     a    remark    during       cross-examination       by     defense

counsel which alluded to a prior instance where he had heard

defendant testify.         Defendant objected and moved to strike the

comment from the record.            The court sustained the objection and

instructed the jury to disregard the comment.                     Once the State

rested its case, defendant moved for a mistrial, and the court

denied the motion.

    On 5 June 2013, the jury returned a guilty verdict.                             At

sentencing,      the    trial    court     found    no    grossly     aggravating,

aggravating, or mitigating factors and sentenced defendant to

Level Four punishment.          Defendant appeals.

                          _________________________

    On    appeal,       defendant    argues      the     trial   court      erred   by

failing to order her appointed counsel to abide by her wishes

regarding trial tactics and denying defendant’s request for the

appointment of substitute counsel.              We disagree.

    A trial court’s denial of a defendant’s request for the

appointment   of       substitute    counsel     will     not    be   disturbed     on

appeal absent an abuse of discretion.              State v. Sweezy, 291 N.C.

366, 372, 230 S.E.2d 524, 529 (1976).                  Both the Sixth Amendment
                                           -4-
to   the    United     States      Constitution         and    the    North    Carolina

Constitution        guarantee      an    indigent       defendant      the    right    to

appointed counsel in a criminal prosecution.                         State v. Taylor,

155 N.C.     App.    251,    254,       574 S.E.2d      58,   61–62    (2002),    cert.

denied,     357 N.C.    65,     579 S.E.2d        572    (2003).       The    right    to

appointed     counsel,      however,       does   not     include     the     “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.”                  State v. Prevatte, 356 N.C.

178, 216, 570 S.E.2d 440, 461 (2002), cert. denied, 538 U.S.

986, 155 L. Ed. 2d 681 (2003).

     A     trial    court   must    appoint       substitute     counsel      “whenever

representation by counsel originally appointed would amount to

denial of defendant’s right to effective assistance of counsel.”

State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980).

“[T]actical decisions——such as which witnesses to call, which

motions to make, and how to conduct cross-examination——normally

lie within the attorney’s province.”                    State v. Brown, 339 N.C.

426, 434, 451 S.E.2d 181, 187 (1994), cert. denied, 516 U.S.

825, 133 L. Ed. 2d 46 (1995).                    Only when a         “fully informed”

defendant and his or her counsel reach an “absolute impasse” as

to such tactical decisions, must the defendant’s wishes control.

State v. Ali, 329 N.C. 394, 404, 407 S.E.2d 183, 189 (1991).
                                              -5-
Nonetheless, “a disagreement over trial tactics generally does

not render the assistance of the original counsel ineffective.”

Thacker,      301 N.C.     at    352,    271 S.E.2d      at    255.      Denial    of    a

defendant’s request to appoint substitute counsel is therefore

proper, “when it appears to the trial court that the original

counsel is reasonably competent to present defendant’s 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.”              Id.

       In this case, defendant expressed to the trial court her

dissatisfaction         with    her     counsel’s     failure    to     file   pretrial

motions and asked the court to either order counsel to provide

effective assistance or appoint substitute counsel.                            Defendant

asserts      that   because      her    counsel’s     failure     to    file   pretrial

motions constituted an absolute impasse between defendant and

her counsel as to trial tactics, the court erred by failing to

instruct      counsel    to     abide    by    defendant’s      wishes.        Defendant

further contends that her counsel’s failure to file pretrial

motions also gave the court reason to doubt counsel’s competency

as     an    advocate,        and     thus,     the   court      improperly       denied

defendant’s request for the appointment of substitute counsel.

       Defendant     and       her    counsel,      however,    did    not     reach    an

absolute impasse as to the filing of pretrial motions.                           Defense
                                         -6-
counsel informed the court that he had spoken with defendant

“extensively” the day before and that “[n]one of the issues that

have   been    addressed   to   the      Court    came   up   yesterday.”        The

record, therefore, discloses no indication of any discussion,

much less an absolute impasse between defendant and her counsel

concerning the filing of pretrial motions.                    Because defendant

and her counsel did not reach an absolute impasse as to trial

tactics, the court was not required to order counsel to abide by

defendant’s wishes.

       Moreover, defendant’s statements to the court merely showed

her    dissatisfaction       with        her     appointed     counsel     and    a

disagreement over trial tactics and, thus, did not warrant the

appointment of substitute counsel.                 See Prevatte, 356 N.C. at

216, 570 S.E.2d at 461.         While defendant may have disagreed with

her counsel over trial tactics and there may have been some

communication problem between them, the record before us reveals

no    reason   for   the   court    to    have    doubted     defense    counsel’s

competency as an advocate.          We therefore conclude that the trial

court’s denial of defendant’s request for the appointment of

substitute counsel was proper.

       Defendant further argues the trial court erred by ruling

that defendant was not entitled to file new pretrial motions

after the motions had been ruled upon in the previous trial and
                                           -7-
denying defendant’s motion to continue the trial in order to

file new pretrial motions.                We agree that defendant, in fact,

was entitled to file new pretrial motions because a mistrial had

been   declared       in    the     previous    trial.      See   State     v.   Harris,

198 N.C. App. 371, 376, 679 S.E.2d 464, 468 (“When a defendant’s

trial results in a hung jury and a new trial is ordered, the new

trial is ‘[a] trial de novo, unaffected by rulings made therein

during the [original] trial.’” (alteration in original) (quoting

Burchette v. Lynch, 139 N.C. App. 756, 760, 535 S.E.2d 77, 80

(2000))),     disc.        review    denied,     363 N.C.    585,       683 S.E.2d   211

(2009).     However, because defendant was represented by counsel,

she was not allowed to represent herself or file motions on her

own behalf.          See State v. Grooms, 353 N.C. 50, 61, 540 S.E.2d

713, 721 (2000) (“Having 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.”),        cert.   denied,

534 U.S.      838,    151 L. Ed. 2d        54     (2001).         The    trial   court,

therefore, did not err by denying defendant’s pro se motion for

a continuance.

       Defendant next contends the trial court erred by denying

defendant’s motion for mistrial in response to a remark made by

Sergeant Russell during the following exchange between defense
                                        -8-
counsel and Sergeant Russell on cross-examination:

            [DEFENSE COUNSEL]:      And you’d                 have    no
            knowledge of how she speaks?

            [SERGEANT RUSSELL]:         That’s correct.

            [DEFENSE COUNSEL]: Now, the shoulder of the
            road you stated is flat and level.

            [SERGEANT RUSSELL]: That’s correct. Now, I
            can say that since that time I have heard
            her testify, and when I heard her testify,
            her speech was not slurred as it was on this
            night.

            [DEFENSE COUNSEL]:   I believe I’m going to
            move that    that [sic]    be struck, that
            response be struck from the record.

            THE COURT:   All right.  Sustained. Ladies
            and gentlemen, disregard that last comment
            by the witness.

Defendant   moved     for    a   mistrial      based   on     Sergeant     Russell’s

allusion    to   a   prior    instance    where    he    had    heard      defendant

testify.    The court denied the motion, stating that the jury had

been   instructed    to     disregard    the    comment.        Defendant     argues

Sergeant Russell’s comment was prejudicial to defendant’s case

and, as a result, a mistrial should have been granted.                            We

disagree.

       We review a trial court’s denial of a defendant’s motion

for mistrial for abuse of discretion.              State v. Bonney, 329 N.C.

61, 73, 405 S.E.2d 145, 152 (1991).              “A trial court should grant

a   defendant’s      motion      for    mistrial       only    when      there   are
                                        -9-
improprieties        in     the     trial      so     fundamental     that     they

substantially and irreparably prejudice the defendant’s case,

making it impossible for the defendant to receive a fair and

impartial verdict.”             State v. Diehl, 147 N.C. App. 646, 650,

557 S.E.2d     152,       155     (2001),    cert.     denied,    356 N.C.     170,

568 S.E.2d     624    (2002).         “Where    a     trial   court   sustains     a

defendant’s objection to the answer of a witness, strikes same,

and instructs the jury not to consider it, the jury is presumed

to have heeded the instruction and any prejudice is removed.”

State   v.   Gregory,      37 N.C.    App.     693,    697,   247 S.E.2d     19,   22

(1978).      As a result, when a trial court sustains an objection

and instructs the jury to disregard the testimony, the court’s

denial of a defendant’s motion for mistrial ordinarily does not

constitute an abuse of discretion.                    State v. Hogan, 321 N.C.

719, 722–23, 365 S.E.2d 289, 290–91 (1988).

    Sergeant Russell’s remark about the prior instance where he

had heard defendant testify was brief, oblique, and immediately

addressed by the trial court.               The court sustained defendant’s

objection and specifically directed the jury to disregard the

testimony.      Moreover, at the outset of the trial, the court

instructed the jury that “[i]f by chance the witness answers the

question before or at the same instant the objection is made and

I sustain the objection, do not consider the witness’s answer to
                                          -10-
the question.          Disregard the answer and strike it from your

mind.”     These general instructions, alone, were sufficient to

cure any prejudice to defendant’s case resulting from Sergeant

Russell’s testimony.           See State v. Vines, 105 N.C. App. 147,

153, 412 S.E.2d 156, 160–61 (1992).                    We therefore conclude that

the    trial     court   did    not       abuse       its     discretion           in     denying

defendant’s motion for mistrial.

       Finally,     defendant    argues       the      trial     court        erred       during

sentencing by failing to find that defendant had a safe driving

record      as     a     mitigating         factor           pursuant         to         N.C.G.S.

§ 20-179(e)(4).        We disagree.

       Pursuant to N.C.G.S. § 20-179, the trial court must conduct

a     sentencing    hearing     to    determine             whether     any        statutorily

enumerated       aggravating         or     mitigating           factors            affect     a

defendant’s        sentence     following         a     conviction        for            impaired

driving.       N.C. Gen. Stat. § 20-179(a) (2013).                      While the State

must present the defendant’s driving record to the court for

consideration       during     the    sentencing            hearing,     the            defendant

“bears the burden of proving by a preponderance of the evidence

that a mitigating factor exists.”                 Id.       Our review of the record

reveals that defendant failed to argue the safe driving record

mitigating factor at the sentencing hearing.                          Rather, defendant

only alleged that defendant’s driving was otherwise safe and
                                         -11-
lawful   at    the   time   of    the    offense,    which     is    an   unrelated

mitigating     factor   set      forth     under    N.C.G.S.    § 20-179(e)(3).

Because defendant did not meet her statutory burden of proving

the   safe    driving   record    mitigating       factor,     the   trial   court

committed no error in failing to find this mitigating factor.

      No Error.

      Judges ELMORE and HUNTER, JR. concur.

      Report per Rule 30(e).
