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NO. COA14-276 JUDICIAL DISTRICT 22-B
NORTH CAROLINA COURT OF APPEALS************************************
STATE OF NORTH CAROLINA ))
v. ) From Davie County)
STEVEN KEITH JASTROW, )Defendant. )
*********************************DEFENDANT-APPELLANT’S BRIEF
*********************************
INDEX
TABLE OF CASES AND AUTHORITIES..................................ii
ISSUES PRESENTED..................................................................1
STATEMENT OF THE CASE......................................................2
GROUNDS FOR APPELLATE REVIEW...................................2
STATEMENT OF THE FACTS...................................................3
ARGUMENT:
I. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A CONVICTION FOR ATTEMPTED ARMED ROBBERY AGAINST HUGH SMITH IN FILE 12 CRS 51008, BECAUSE THE FACTS OF THIS CASE DO NOT ESTABLISH MORE THAN A SINGLE ATTEMPTED ROBBERY.................................................
II. THE TRIAL COURT ERRED IN ALLOWING THE DEFENDANT TO PROCEED PRO SE, WHEN, BY HIS ANSWERS AND ACTIONS, THE DEFENDANT INDICATED THAT HE DID NOT UNDERSTAND AND APPRECIATE THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL, AS REQUIRED BY N.C.G.S. § 15A-1242.....................................................................................
CONCLUSION..............................................................................
WORD COUNT CERTIFICATION.............................................25
CERTIFICATE OF SERVICE......................................................26
ii
TABLE OF CASES AND AUTHORITIES
Cases Benton v. Maryland, 395 U.S. 784 (1969)...................................13
Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562 (1975).....24
N.C. Department of Environment & Natural Resources v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004).................11, 19
State v. Ballard, 280 N.C. 479, 186 S.E. 2d 372 (1972)..............12
State v. Barnette, 304 N.C. 447, 284 S.E. 2d 298 (1981)............11
State v. Becton, 163 N.C. App. 592, 594 S.E.2d 143 (2004), app. dis., 358 N.C. 733, 601 S.E.2d 862 (2004).....................13
State v. Callahan, 83 N.C. App. 323, 350 S.E.2d 128 (1986)21, 24
State v. Carter, 338 N.C. 569, 451 S.E.2d 157 (1994), cert. denied, 515 U.S. 1107, 132 L. Ed. 2d 263, 115 S. Ct. 2256 (1995)......................................................................................19
State v. Cherry, 29 N.C. App. 599, 225 S.E.2d 119 (1976).........11
State v. Evans, 153 N.C. App. 313, 569 S.E.2d 673 (2002). .12, 20
State v. Gerald, 304 N.C. 511, 284 S.E.2d 312 (1981)................24
State v. Hester, 111 N.C. App. 110, 432 S.E.2d 171 (1993)........19
State v. Hucks, 323 N.C. 574, 374 S.E.2d 240 (1988).................18
State v. Ingram, 160 N.C. App. 224, 585 S.E.2d 253, (2003), aff’d, 358 N.C. 147; 592 S.E.2d 687 (2004) (per curiam)......13
State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981)....................16
State v. Jones, 336 N.C. 490, 445 S.E.2d 23 (1994)....................18
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State v. Love, 177 N.C. App. 614, 530 S.E.2d 234 (2006), disc. review denied, 360 N.C. 580, 636 S.E.2d 192 (2006)....19
State v. Michael, 74 N.C. App. 118, 327 S.E.2d 263 (1985).......20
State v. Potter, 285 N.C. 238, 204 S.E. 2d 649 (1974)..........12, 13
State v. Pruitt, 322 N.C. 600, 369 S.E.2d 590 (1988)............19, 20
State v. Rankin, 55 N.C. App. 478, 286 S.E.2d 119, (1982), review denied, 305 N.C. 590, 292 S.E.2d 11 (1982)...............13
State v. Smith, 186 N.C. App. 57, 650 S.E.2d 29 (2007).............10
State v. Suggs, 86 N.C. App. 588, 359 S.E.2d 24 (1987) cert. denied, 321 N.C. 299, 362 S.E.2d 786 (1987);...............13
State v. Thomas, 331 N.C. 671, 417 S.E.2d 473 (1992)..............18
U.S. v. Hondo, 366 F.3d 363 (4th Cir. 2004)...............................19
Statutes N.C.G.S. § 14-87....................................................................11, 12
N.C.G.S. § 15A-1242.............................................................18, 20
N.C.G.S. § 15A-1444.....................................................................2
iv
NO. COA14-276 JUDICIAL DISTRICT 22-B
NORTH CAROLINA COURT OF APPEALS************************************
STATE OF NORTH CAROLINA ))
v. ) From Davie County)
STEVEN KEITH JASTROW, )Defendant. )
*********************************DEFENDANT-APPELLANT’S BRIEF*********************************
QUESTIONS PRESENTED
I. WHETHER THE EVIDENCE IS SUFFICIENT TO SUPPORT A CONVICTION FOR ATTEMPTED ARMED ROBBERY AGAINST HUGH SMITH IN FILE 12 CRS 51008, WHEN THE FACTS OF THIS CASE DO NOT ESTABLISH MORE THAN A SINGLE ATTEMPTED ROBBERY?
II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE DEFENDANT TO PROCEED PRO SE, WHEN, BY HIS ANSWERS AND ACTIONS, THE DEFENDANT INDICATED THAT HE DID NOT UNDERSTAND AND APPRECIATE THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL, AS REQUIRED BY N.C.G.S. § 15A-1242?
STATEMENT OF THE CASE
Defendant Steven Keith Jastrow was indicted on 10 September 2012 on
two charges of attempted murder and attempted robbery with a dangerous weapon;
one against Patrick Smith (12 CRS 51007) and one against Hugh Smith (12 CRS
51008).1 At the same time, Jastrow was indicted on a charge of conspiracy to
commit robbery with a dangerous weapon (12 CRS 51009). (R pp 9-11).
The State declined to proceed on the attempted murder charges. Jastrow was
tried on the two attempted robbery charges and the conspiracy charge in the
Criminal Superior Court of Davie County on 9-16 September 2013, with the
Honorable Ted S. Royster presiding. (T p 1; R p 1). Jastrow was found guilty of all
three charges, and judgment was entered on 16 September 2013. (R pp 58-61).
Jastrow received two consecutive sentences of 64 to 86 months. (R pp 58-61). The
defendant appealed in court. (T pp 812-813).
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
The defendant appeals as a matter of right, pursuant to N.C.G.S. § 15A-
1444.
1 In the record, the attempted robbery indictment naming Hugh Smith as the victim shows the file number 11 CRS 51008. This is apparently a clerical error, as the preceding warrant and all subsequent documents show the file number 12 CRS 51008. The trial court is presumably referring to the correction of this error at the trial (see T p 122), but counsel was not provided with a corrected indictment to include in the record.
2
STATEMENT OF THE FACTS
Steven Jastrow’s house was crowded at the end of September, 2011.
Jastrow, an eighteen-year-old high school student, lived in Mocksville, NC with
his mother, his stepfather and his older half-brother, Chris Howell. (T pp 290, 318,
576, 617; R p 2). Ryan Bernatz, age 24, had recently moved in with Jastrow’s
family after breaking up with his girlfriend. Bernatz worked for Jastrow’s
stepfather, and he was also a friend of the family. He was sharing a bedroom with
Howell. (T pp 402, 405-406, 410, 490-491). Most newly arrived was Kyle Horton,
age 23, who was an old friend of Bernatz. Horton had been living in Wilmington,
NC, but had recently gotten into trouble due to a drug habit. (T pp 288-289). After
contacting Bernatz, Horton had left Wilmington and was now also staying with
Jastrow’s family in Mocksville. (T pp 287-290, 408-409). Horton, too, was sharing
Bernatz’s and Howell’s bedroom, where two of the men were sleeping on the same
couch. (T pp 300, 365).
Horton had arrived with $2,500 and a serious drug addiction. He was doing
large quantities of Adderall, Xanax and cocaine every day. (T pp 288, 409).
Bernatz generally worked out of town with Jastrow’s stepfather, but they were
between jobs, so Bernatz was temporarily unemployed and hanging around the
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house. (T pp 413-414). Bernatz began doing large quantities of drugs with his old
friend, and Howell, who didn’t have a job, joined in. (T pp 296-298, 411-412).
All three men were convicted felons. Howell had recently returned home
after being released from prison. (T p 318). Horton had prior convictions for drug
offenses and possession of a firearm by a felon. (T pp 370-371). Bernatz’s record
included convictions for breaking and entering, larceny of a firearm, forgery and
several felony drug possession charges. (T p 509-510). Bernatz also admitted that
it was not uncommon for him to steal property, money and drugs to support his
drug habit. (T pp 508-509).
Jastrow, who had his own bedroom, kept mostly to himself. (T pp 300, 363).
He was attending high school and hoped to enter a culinary program after
graduating. (T p 137). He had a girlfriend who came over after school, and he had
a job at McDonald’s. (T pp 362-363). Jastrow’s mother let him drive her car, a
Pontiac G6, and his parents kept tabs on him by texting his phone. (T pp 199, 432,
691-694). Jastrow’s mother established a nighttime curfew of 10 or 10:30 p.m.,
which is when she generally locked the doors of the house. (T p 477-478).
After a short time in Mocksville, most of Horton’s money and drugs were
gone. Horton, Bernatz and Howell wanted to move out and rent a house together,
but they didn’t have enough money for deposit. (T pp 297-298, 365, 412-414).
Horton and Bernatz considered robbing someone to get the money they needed. (T
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pp 299, 414). Jastrow, who smoked marijuana, had a friend who sold drugs.
Horton and Bernatz discussed the possibility of robbing the friend, with the goal of
stealing his drug money and marijuana. They planned to sell some of the marijuana
and give some of it to Jastrow in exchange for his help, or perhaps give it all to
him. (T pp 299-302, 320, 415-416, 430). Jastrow’s brother, Howell, didn’t want to
be part of this plan. He thought it was a bad idea, and he worried that since he
knew a lot of people in the area, he would be easily identified. (T p 318).
Jastrow gave Horton and Bernatz information about the friend who sold him
marijuana, whose name was Patrick Smith. (T pp 301, 417, 419). Patrick shared a
house with his brother, Hugh, and with Hugh’s wife. Patrick and Hugh’s mother
also lived on the property in an RV parked next to the house. (T pp 142, 172).
Jastrow drew Horton and Bernatz a picture of the layout of the Smith home, and he
told them exactly where Patrick kept the marijuana and the money inside his
bedroom. (T pp 313, 418-419).
On a first attempt, Horton gave Jastrow twenty dollars to buy some
marijuana from Patrick. Horton and Bernatz directed Jastrow to hang out with his
friend that evening and assess the situation. Jastrow reported that only Patrick and
one other friend were there, getting high. (T pp 425-426). The men drove to the
Smiths’ house, ready to go through with the robbery, but unexpectedly found
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another car in the driveway. They called off their plan that night, since it appeared
that there were several people inside the Smiths’ house. (T pp 426-427).
On the evening of 3 October 2011, desperate and depressed because they
were running out of drugs and money, Horton and Bernatz decided to try again. (T
pp 316, 365, 429-432). They determined that Jastrow should go with them so he
could be there when they entered, playing “inside man” and convincing Patrick to
give up his money and drugs to the robbers. (T p 431). In order to dispel suspicion
that Jastrow was part of the plan, Bernatz was prepared to rough him up during the
robbery and to pretend to force Jastrow to leave with them, as if against his will. (T
p 336).
Jastrow drove the two men to the Smiths’ house in his mother’s car, parking
down the street from the house. (T pp 432-433). Jastrow was again given twenty
dollars to buy marijuana and smoke with Patrick, and he went into the Smiths’
house. (T p 423). Meanwhile, the two men in the car changed into the black and
camouflage clothing that they’d bought at Wal-Mart, including gloves. They pulled
masks over their faces. (T pp 308, 436). They had taken some Adderall, and
possibly some Xanax and cocaine, and they were jittery as they waited in the car.
(T pp 321, 332, 435).
Horton and Bernatz were receiving texts from Jastrow, who was hanging out
with Patrick in his bedroom, smoking marijuana and looking at a computer.
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Jastrow let the men know that Patrick wasn’t alone; that Patrick’s brother, Hugh,
was sitting on the couch in the living room, eating and watching TV. They decided
to go ahead with the plan, despite Hugh’s presence, agreeing that Horton would
keep Hugh in the living room while Bernatz robbed Patrick. (T pp 177, 419, 435-
436, 459). Between 10 and 11 p.m., the two men entered the living room through
the unlocked front door. (T p 152). They were each armed with a weapon. Horton
had a .25 mm pistol that Bernatz had obtained from Jastrow’s stepfather by
pretense, and Bernatz carried a machete with a 12-inch blade. (Tpp 420, 422).
Horton accosted Hugh in the living room, while Bernatz went directly to
Patrick’s bedroom. At first, Hugh believed the invasion was a Halloween prank. (T
pp 154-155, 170, 325-326, 457-458). Hugh resisted Horton’s instructions, and
Horton hit Hugh in the head with the pistol. The men struggled. (T pp 157-158,
328, 462). In the bedroom, Bernatz directed Patrick to give him his drugs and his
money, as Jastrow watched silently. Patrick didn’t cooperate, and Bernatz pulled
out the machete. (T pp 181-183, 458). From the other room, Horton called Bernatz
to come and help him control Hugh, who was a much larger man. Bernatz left the
bedroom and went to Horton’s aid, hitting Hugh on the head with the handle of the
machete and the flat side of the blade. (T pp 327, 330, 461-464). As Bernatz
became distracted by the situation with Hugh, Patrick came out of his bedroom. He
and Hugh both attacked Bernatz. (T pp 160-161, 186, 330-331, 465). The struggle
7
ended when Horton shot the gun, hitting Hugh three or four times and Patrick
once. (T pp 166, 187, 189, 331-333, 466-467). In addition to the gunshot wounds,
Patrick’s face was slashed by Bernatz’s machete. (T pp 187, 238). Bernatz and
Horton ran from the house. (T pp 333, 467-468). At some point, either during or
just after the confrontation, Jastrow also left the house. He was never part of the
physical altercation that occurred inside the Smiths’ house. (T pp 159-160, 184,
468).
Bernatz and Horton ran and hid in the woods nearby. (T pp 335-336, 470-
471). Bernatz used his cell phone to call Jastrow, who was driving around in the
Pontiac, but Bernatz’s phone died before they could find each other. (T pp 337,
473-474). Horton and Bernatz were unfamiliar with Davie County, and they
weren’t sure where they were. After several hours of walking through woods and
pastures, they made it back to Jastrow’s house. (T pp 337, 344-345, 470-477).
Jastrow was already home when they arrived. (T pp 346, 477-478).
The next day, Jastrow went to the police and gave a statement about the
incident at the Smiths’ house. (T pp 480, 566). He told police that he’d been there
but that he didn’t know the intruders; that he thought the robbers might be African
American. (T pp 570-571). That same day, Bernatz and Horton both left
Mocksville. Bernatz travelled to Georgia with Jastrow’s stepfather, where they
were starting a job. (T pp 350, 481-483). Horton left town with some relatives. (T
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pp 350, 389). A few days later, Horton joined Bernatz at a motel in Georgia. (T pp
355, 481-482).
On 6 October 2011, three days after the attempted robbery, the sheriff’s
department received an anonymous phone call, prompting detectives to interview
Jastrow at his high school. (T pp 575-576). At this interview, Jastrow corroborated
information from the anonymous caller, confirming that Horton and Bernatz had
been living with his family. (T p 598). Police obtained a warrant and searched
Jastrow’s house. They seized a number of items, including recordings from the
home’s video surveillance system. (T pp 598-599). Bernatz and Horton were
subsequently arrested at the motel in Georgia. (T pp 356, 486-487, 535).
Bernatz and Horton were transported to the jail in Davie County. (T p 487).
Nine months later, in July 2012, Bernatz’s attorney encouraged him to make a
statement to police, hoping that Bernatz would receive a more favorable plea deal
than the 20 years he’d been offered. (T pp 488-489, 546-547). Bernatz gave two
interviews to police. He implicated himself, Horton and Jastrow in the plan to rob
Patrick Smith. (T pp 491-493). In August 2012, Horton also gave a statement to
police, against the advice of his attorney. (T pp 356-357). At the time of Steven
Jastrow’s trial, both Horton and Bernatz were still in jail, awaiting trial. (T pp 356,
535, 548).
9
10
ARGUMENT
I. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A CONVICTION FOR ATTEMPTED ARMED ROBBERY AGAINST HUGH SMITH IN FILE 12 CRS 51008, BECAUSE THE FACTS OF THIS CASE DO NOT ESTABLISH MORE THAN A SINGLE ATTEMPTED ROBBERY.
Introduction
Kyle Horton and Ryan Bernatz broke into the Smiths’ house intending to rob
Patrick Smith of his marijuana and drug money. Steven Jastrow, who helped plan
the robbery and was present as a bystander, was convicted of two counts of
attempted robbery with a dangerous weapon and one count of conspiracy to
commit the robbery. However, the State’s evidence supports only one of Jastrow’s
convictions for attempted robbery, since there’s insufficient evidence to show that
Jastrow planned or participated in any attempt to rob Hugh Smith.
Standard of Review
Defendant moved to dismiss the charges for insufficiency after the State’s
evidence and after all of the evidence. (T pp 724, 726). The court denied these
motions. (T pp 725, 728).
This Court reviews a trial court’s denial of a motion to dismiss de novo.
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “Under the de
novo standard, the reviewing court ‘considers the matter anew and freely
substitutes its own judgment for that of the [lower court].’” N.C. Department of
11
Environment & Natural Resources v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888,
895 (2004). The appellate court “must examine the evidence adduced at trial in the
light most favorable to the State to determine . . . . whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
State v. Barnette, 304 N.C. 447, 458, 284 S.E. 2d 298, 305 (1981).
Law and Discussion
Offense of Robbery (or Attempted Robbery) with a Dangerous Weapon
Defendant Steven Jastrow was convicted of two counts of attempted robbery
with a dangerous weapon under N.C.G.S. §14-87, which states:
(a) Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence, or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.
Section 14-87 “was enacted to cover situations where there was an attempt
to take as well as those where there was an actual taking,” making attempt “on
equal level with the taking” and “each offense … of equal gravity.” State v.
Cherry, 29 N.C. App. 599, 601, 225 S.E.2d 119, 121 (1976). Therefore, “[t]he
offense [of robbery] is complete if there is either a taking or an attempt to take the
personal property of another by the means and in the manner prescribed by the
12
statute, but there must be one or the other.” State v. Evans, 279 N.C. 447, 452, 183
S.E.2d 540, 543 (1971).
Distinguishing Victims of a Robbery (or Attempted Robbery)
The statute distinguishes between taking property “from another,” and
taking property “from… [a] residence…where there [are] persons in attendance.”
N.C.G.S. § 14-87(a). Thus, the statute creates two distinct theories that could result
in a conviction for robbery with a dangerous weapon. Under the first theory, the
property is actually taken (or attempted to be taken) from the person of the victim.
Under the second theory, the property is taken (or attempted to be taken) from a
residence where at least one person is present. This statute delineates these two
theories by use of the disjunctive: “or.” The plain language of this statute gives it a
broad reach, but also prevents the imposition of multiple punishments when a
number of people are present in a business or residence where a robbery occurs.
In examining the issue of who is the victim of a robbery, our state Supreme
Court has determined that the taking of property belonging to a single person in the
presence of multiple persons, by threatening and endangering all of them,
constitutes only one armed robbery offense. State v. Potter, 285 N.C. 238, 254, 204
S.E. 2d 649, 659 (1974) (where defendant obtained business’s property from two
tellers at two different cash registers, only one armed robbery was committed).
Accord, State v. Ballard, 280 N.C. 479, 186 S.E. 2d 372 (1972) (acquittal of
13
robbing a store by threatening and endangering a particular named employee
constitutes a double jeopardy bar as to all employees present, as the same evidence
would have supported either conviction) (citing Benton v. Maryland, 395 U.S. 784
(1969)); see also State v. Suggs, 86 N.C. App. 588, 596, 359 S.E.2d 24, 29 (1987),
cert. denied, 8305 N.C. 590, 292 S.E.2d 11 (1987); State v. Becton, 163 N.C. App.
592, 593, 594 S.E.2d 143 (2004), app. dis., 358 N.C. 733, 601 S.E.2d 862 (2004).
This Court has followed that reasoning and held that when a defendant is
charged with taking money from a store, the name of the store employee is
immaterial. State v. Rankin, 55 N.C. App. 478, 479-80, 286 S.E.2d 119, 120
(1982), review denied, 305 N.C. 590, 292 S.E.2d 11 (1982). This Court has also
held that where a defendant was accused of stealing the day’s receipts from two
restaurant employees, and the indictment charged a taking “from the presence,
person, place of business and residence of [two named victims],” the deletion of
one of the victim’s names at the close of the State’s evidence “did not change the
degree or nature of the offense charged.” State v. Ingram, 160 N.C. App. 224, 225-
26, 585 S.E.2d 253, 254-55 (2003), aff’d, 358 N.C. 147; 592 S.E.2d 687 (2004)
(per curiam).
It stands to reason that if taking property from a single person in the
presence of multiple persons, by threatening all of them, constitutes only one
armed robbery offense (see Potter, 285 N.C. at 254, 204 S.E. 2d at 659) (1974)),
14
then an attempt to take the property of one person in the presence of others is but a
single attempted robbery.
Defendant Involved in Only One Attempted Robbery
Stephen Jastrow was convicted of two charges of attempted robbery with a
dangerous weapon: one charge involving Patrick Smith, and one charge involving
Patrick’s brother, Hugh. Hugh Smith was in the house at the time of the incident,
and he was a victim of the violence. But the State’s evidence against Jastrow only
supports a single count of attempted robbery, because the participants were
attempting to take Patrick Smith’s property from a single residence.
Patrick was the target because he had both drugs and money. At the trial,
Patrick admitted to smoking marijuana daily and selling it to his friends. (T p 175).
Patrick’s brother Hugh confirmed that people visited his brother fairly regularly.
Hugh didn’t know most of the people who came to see Patrick – in fact, Hugh
didn’t know who Steven Jastrow was until after the attempted robbery – but he
knew they often smoked marijuana in his brother’s bedroom. Hugh testified that he
deliberately avoided interacting with Patrick’s visitors, because he didn’t share
their lifestyle. (T pp 148-149).
Jastrow was one of Patrick’s friends; he bought marijuana from Patrick, and
he spent time hanging out in Patrick’s bedroom. (T pp 175-176). Kyle Horton and
Ryan Bernatz, who didn’t know either of the Smith brothers, testified that they
15
decided to rob Patrick Smith based on information they obtained from Jastrow. (T
pp 303-304, 416-117). Jastrow drew a layout of the Smiths’ house, so the two men
would know exactly where Patrick’s room was when they entered. He told them
where to find the marijuana they planned to steal (under the bed in Patrick’s room),
and where to find the drug money (in a wooden chest in Patrick’s room). (T pp
313, 419).
On the night of the attempted robbery, Jastrow was sent into the Smiths’
house to survey the scene. He informed Horton and Bernatz, by text, that Patrick
and Hugh were both in the house. Jastrow told the men that Hugh would probably
be sitting on the couch in the living room, eating and watching TV, when they
arrived. (T pp 419, 435-436).
When the men broke in, Hugh was, in fact, sitting on the couch wearing only
a bathrobe, looking at his laptop and doing homework. (T pp 151, 164). The men’s
plan was for Horton to keep Hugh in the living room, out of the way, while
Bernatz went to Patrick’s room to steal the money and drugs. (T pp 325-326, 459).
At the trial, Horton recalled pointing the gun at Hugh, telling him to get on the
ground and “Give up the stuff.” (T p 325). Hugh remembered Horton telling him to
get off the couch and to “give him the stuff.” (T p 154). Both men recall Horton’s
demand that Hugh provide “the stuff.” However, the plan was simply to keep Hugh
out of the way, and “the stuff” refers to Patrick’s drugs and money.
16
Bernatz confirmed that Patrick was the sole target during the trial, testifying
“It was supposed to be a quick in and out, just the drugs. The older brother was
never a target for any reason. I mean, it was just Patrick, you know. It was just the
drugs.” (T p 419, lines 8-11). Later, Bernatz reiterated that their goal was to rob
Patrick, saying of the interaction between Horton and Hugh: “I don’t think
[Horton] even asked [Hugh] to empty his pockets, give it up, any money, or
anything like that. Like I said, he was never the target. The whole plan was just to
hold him on the couch. Make sure he didn’t move.” (T p 459; lines 5-8).
The evidence establishes that Jastrow was involved in planning the robbery
of Patrick Smith at the Smith residence. There is no evidence to suggest that he
intended to participate in a second robbery. One of the elements of an attempt to
commit a crime is that the defendant must have the intent to commit the
substantive offense. State v. Irwin, 304 N.C. 93, 99, 282 S.E.2d 439, 444 (1981).
Jastrow did not plan or participate in any common scheme to rob Hugh Smith.
Even if the assault on Hugh was a consequence of the attempt to rob Patrick by
force, it was not a separate robbery attempt. There is no evidence to establish any
intent by Jastrow to rob Hugh Smith.
Here, the State’s evidence was sufficient to prove only a single attempted
robbery of a residence. The robbers attempted to take “personal property” from a
“residence . . . where there is a person or persons in attendance.” N.C.G.S. § 14-
17
87(a). There was no evidence that anything was taken from the person of either
victim. Thus, according to the statute and the authorities above, this evidence
supports only one count of attempted robbery with a dangerous weapon. However,
the trial court submitted two counts to the jury. This was error by the court.
Jastrow was prejudiced by the trial court’s error. At sentencing,
the trial judge imposed consecutive sentences for the two attempted robbery cases
and consolidated the conspiracy into of the robbery counts. If Jastrow had been
convicted of a single attempted robbery, he would face significantly less time in
prison.
Conclusion
Stephen Jastrow did not intend to participate in any robbery or attempted
robbery of Hugh Smith. Because there is insufficient evidence to establish more
than a single count of attempted robbery, the trial court erred in failing dismiss
Davie County File 12 CRS 51008, which named Hugh Smith as the victim.
Accordingly, Jastrow’s conviction in that file must be vacated and the case
remanded for re-sentencing on the conspiracy charge.
18
II. THE TRIAL COURT ERRED IN ALLOWING THE DEFENDANT TO PROCEED PRO SE, WHEN, BY HIS ANSWERS AND ACTIONS, THE DEFENDANT INDICATED THAT HE DID NOT UNDERSTAND AND APPRECIATE THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL, AS REQUIRED BY N.C.G.S. § 15A-1242.
Introduction
Steven Jastrow told the trial court, “I can’t represent myself and no one can
represent me.” (T p 9). The trial court determined that Jastrow should represent
himself, with his previously-appointed attorney as standby counsel. Under
N.C.G.S. § 15A-1242, a defendant can proceed pro se only after the trial court
determines that the defendant understands and appreciates the consequences of
proceeding without counsel. The trial court violated this statute by allowing
Jastrow to represent himself without conducting an adequate inquiry.
Standard of Review
The statutory inquiry contained within N.C.G.S. § 15A-1242 is mandatory,
and failure to conduct such an inquiry constitutes prejudicial error. State v.
Thomas, 331 N.C. 671, 417 S.E.2d 473 (1992). When a trial court violates a
statutory mandate, error is preserved as a matter of law and is ordinarily not
waived by the defendant’s failure to object. State v. Jones, 336 N.C. 490, 497, 445
S.E.2d 23, 26 (1994); State v. Hucks, 323 N.C. 574, 579, 374 S.E.2d 240, 244
(1988). Where violation of a statutory mandate prejudices a defendant, he will be
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given a new trial. State v. Love, 177 N.C. App. 614, 623, 530 S.E.2d 234, 240-41
(2006), disc. review denied, 360 N.C. 580, 636 S.E.2d 192 (2006).
Whether a waiver of counsel is valid is a question of law, reviewable by this
Court de novo. U.S. v. Hondo, 366 F.3d 363 (4th Cir. 2004); State v. Hester, 111
N.C. App. 110, 432 S.E.2d 171 (1993). “Under the de novo standard, the reviewing
court ‘considers the matter anew and freely substitutes its own judgment for that of
the [lower court].’” N.C. Department of Environment & Natural Resources v.
Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).
Law and Discussion
Defendant’s Right to Counsel
The Sixth and Fourteenth Amendments of the United States Constitution and
Article I, Section 23 of the North Carolina Constitution guarantee individuals
charged with committing criminal offenses the right to be represented by counsel.
In addition, a criminal defendant has "the right . . . to refuse counsel and to conduct
his or her own defense." State v. Pruitt, 322 N.C. 600, 369 S.E.2d 590 (1988).
"Before a defendant is allowed to waive in-court representation by counsel, the
trial court must [ensure] that constitutional and statutory standards are satisfied."
State v. Carter, 338 N.C. 569, 581, 451 S.E.2d 157, 163 (1994), cert. denied, 515
U.S. 1107, 132 L. Ed. 2d 263, 115 S. Ct. 2256 (1995). "[T] he right to assistance of
counsel may only be waived where the defendant's election to proceed pro se is
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'clearly and unequivocally' expressed and the trial court makes a thorough inquiry
as to whether the defendant's waiver was knowing, intelligent and voluntary." State
v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002).
Court’s Duty under § 15A-1242
N.C.G.S. § 15A-1242 provides that:
A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:
(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
(2) Understands and appreciates the consequences of this decision; and
(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.
N.C.G.S. § 15A-1242.
The provisions of § 15A-1242 are mandatory in every case where a criminal
defendant requests to proceed pro se. State v. Michael, 74 N.C. App. 118, 327
S.E.2d 263 (1985). A trial court commits prejudicial error if it permits a defendant
to represent himself without conducting an inquiry that addresses all three prongs
of the relevant statutory provision. Pruitt, 322 N.C. at 603, 369 S.E.2d at 592.
Consequently, where the record affirmatively shows that the defendant, by his
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answers, did not understand the consequences of his waiver, he is entitled to a new
trial. State v. Callahan, 83 N.C. App. 323, 325, 350 S.E.2d 128, 129 (1986).
Jastrow Did Not Clearly and Unequivocally Waive Counsel
In the case at hand, N.C.G.S. § 15A-1242(2) required that Judge Royster
conduct sufficient inquiry to be satisfied that Steven Jastrow understood the
consequences of representing himself. Instead, the record shows that Jastrow, by
his answers, didn’t understand and appreciate the consequences of proceeding pro
se.
Jastrow had been represented by attorney Corey Buggs since Buggs was
appointed in August 2012. (R p 8). At the pretrial hearing on 9 September 2013,
Buggs informed the trial court that Jastrow had requested that he withdraw. Buggs
also reported that Jastrow had contacted the Bar because he was unhappy with
Buggs’ representation. Buggs moved to withdraw. (T pp 3-4). The court
proceeded to question Jastrow about Buggs’ motion.
Rather than addressing the issue of counsel, Jastrow answered by specifying
which letters of his name should be capitalized. He then announced that he was
challenging subject matter jurisdiction and personal jurisdiction. (T pp 4-5).
Jastrow proceeded to make numerous statements which were nonsensical in the
context of a criminal court case. For example, Jastrow claimed he was in his
present position because he had been “tricked into signing a contract” and that the
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State had failed to inform him of “all the conditions of any responsibility” for his
part of “all terms and conditions of any contract.” (T p 5). Jastrow claimed his
liability was discharged, “due to there being no remedy pursuant to Uniformed
Commercial Code, Article 1, Section 308, Article 3, Section 305 and Article 6.” (T
p 5). He moved to dismiss all charges against him, “…due to the fact that this is
not a common law case; therefore, stated in the Uniform Commercial Code all
courts are contract courts, commercial courts, admiralty maritime law…” (T p 6).
Jastrow referred to the courtroom as a “foreign vessel” and to the flag in the
courtroom as a “pirate flag” (T pp 6-7).
Jastrow’s answers to the judge’s questions during this colloquy were
frequently nonresponsive. He repeatedly responded to the court’s inquiries with the
phrase “I do not transverse,” and he resisted explaining the significance of this
phrase to the judge. (T pp 6, 8, 9, 10, 14, 15). This line of expression led into the
only real inquiry the judge made regarding Jastrow’s understanding of his right to
representation:
THE DEFENDANT: I do not transverse. I can't represent myself and nobody else can represent me. I can't represent me.
THE COURT: Since you can't represent yourself, the State has appointed Mr. Buggs to represent you. Let's go ahead and address that situation. He said you sent this nasty letter down to the State Bar trying to get him in trouble. All he has been trying to do is represent you to the best of his ability. Since you don't represent yourself in this court then we have to have Mr. Buggs do that; isn't that correct?
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THE DEFENDANT: For the record, I do not transverse. I am juris property in personam. I am me. Therefore, no one else can represent me.
THE COURT: You are saying you don't want anybody else?
THE DEFENDANT: For the record, I do not transverse. I am me. Nobody can represent me.
THE COURT: We would be in a lot of trouble if I didn't transverse. We would not get anything done.
(T pp 9-10).
This exchange falls woefully short of a serious inquiry into Jastrow’s
understanding of the consequences of waiving counsel. His answers are so strange
and obtuse that it is difficult to ascertain what he understands about the criminal
justice procedure. Jastrow doesn’t indicate a lucid understanding of his legal
situation. It’s even unclear whether he has the desire to represent himself if
attorney Bugg is allowed to withdraw. Disturbingly, the judge seems more
concerned with expressing his frustration with the defendant at this phase of the
proceeding than conducting the inquiry required by law. He characterizes Jastrow’s
complaint about his lawyer as the “nasty letter” to the State Bar, and he subtly
ridicules the defendant by adopting Jastrow’s nonsensical phrase, stating, “We
would be in a lot of trouble if I didn’t transverse.”
The trial court then ruled that Jastrow must represent himself, with Buggs as
standby counsel. (T p 13). The record shows that Jastrow defended himself pro se
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through his entire trial, consulting at times with Buggs. (T pp 453, 466). The jury
convicted Jastrow of all three charges, and he was sentenced to 128 to 172 months.
(R pp 58-61).
Conclusion
“[T]he issue is not whether the defendant has the skill and training to
represent himself adequately but whether the defendant is able to understand the
consequences of waiving court appointed counsel and representing himself.” State
v. Gerald, 304 N.C. 511, 518-19, 284 S.E.2d 312, 317 (1981) (citing Faretta v.
California, 422 U.S. 806, 45 L. Ed. 2d 562 (1975)).
Steven Jastrow didn’t not clearly and unequivocally waive counsel. He
simply didn’t want to be represented by his appointed attorney. Under N.C.G.S. §
15A-1242, the trial court was required to conduct a thorough inquiry of all three of
the issues listed in that statute, and to be satisfied that Jastrow understood and
appreciated the consequences of representing himself. However, given the strange
and non-responsive statements that Jastrow made during the court’s inquiry, the
defendant demonstrated that he didn’t have a good understanding of the
consequences of his decision. Since Jastrow did not voluntarily, knowingly, and
intelligently waive his constitutional right to counsel, the judgment in these cases
must be reversed, and Jastrow is entitled to a new trial. State v. Callahan, 83 N.C.
App. 323, 325, 350 S.E.2d 128, 129 (1986).
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CONCLUSION
For the reasons set forth in Argument II, defendant Steven Jastrow is entitled
to a new trial. Alternatively, for the reasons set forth in Argument I, the Court
should vacate the defendant’s conviction in File 12 CRS 51008 and remand the
conspiracy charge for re-sentencing.
Respectfully submitted, this 23rd day of April, 2014.
_____________________________
Michael E. CasterlineAttorney for Defendant-AppellantNC State Bar # 1813968 North Market StreetAsheville, NC [email protected] 828/ 253-6401
WORD COUNT CERTIFICATION
This brief, submitted in 14 pt. New Times Roman type, contains fewer than 8,750 words, including any footnotes and citations in the text. This brief is therefore within the word-count limit for briefs in proportional type, as allowed by N.C. R. App. P. 28(j)(2).
This 23rd day of April, 2014.________________________
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Michael E. Casterline
CERTIFICATE OF SERVICE
This is to certify that the undersigned has this date electronically filed the foregoing DEFENDANT-APPELLANT’S BRIEF with the Clerk of the North Carolina Court of Appeals, and has served a copy upon all parties to this cause by depositing a copy hereof in a postpaid wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service, properly addressed to the attorney or attorneys for said parties, as listed below.
THIS, the 23rd day of April, 2014.
__________________________Michael E. CasterlineAttorney for Defendant-AppellantNC State Bar # 1813968 North Market Street
Asheville, NC [email protected] 828/ 253-6401
June S. FerrellSpecial Deputy Assistant Attorney GeneralNC Dept. of Justice, Medical Facilities SectionPO Box 629Raleigh, NC 27602
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