In this Davidson County case, defendant appealed his convictions for two counts of robbery with a dangerous weapon, arguing error in (1) denying his motion for new counsel because his appointed attorney was blind, (2) failing to intervene ex mero motu during his cross examination, and (3) failing to instruct the jury on the lesser-included offense of common-law robbery for defendant’s second count. The Court of Appeals found no error with (1) or (2), but found plain error in (3), vacating the second count of robbery and remanding for a new trial. 

In December of 2016, defendant and an associate entered a gaming business and proceeded to rob the business, the manager on duty, and a patron. Defendant pulled a firearm and pointed it at the manager, demanding money, while his associate, who did not have a firearm, demanded money from the patron. When the matter came for trial in May 2022, defendant requested new appointed counsel because his attorney was blind. The trial court denied the motion and defendant proceeded with his appointed counsel. During the State’s cross-examination of defendant, the prosecutor repeatedly questioned defendant about exchanges he had with the court outside the presence of the jury, including profanity and accusations of racism, while defense counsel did not object to the questioning. At the conclusion of trial, defendant did not request an instruction on the lesser-included offense of common law robbery. 

Considering (1), the Court of Appeals first explained the two-part test for whether to grant new appointed counsel from State v. Thacker, 301 N.C. 348 (1980), and grappled with State v. Jones, 357 N.C. 409 (2003), ultimately determining that it would “purely review the trial court’s denial of Defendant’s motion for new counsel for abuse of discretion.” Slip Op. at 7. Noting that the only issue identified by defendant was that his counsel was blind, the court concluded “[d]efendant’s counsel is licensed to practice law in this state, and we cannot say the trial court abused its discretion by failing to replace him because of an immutable physical condition—a physical condition that is not limited to this case.” Id. at 9. 

Moving to (2), the court noted that it agreed with defendant that “the State’s cross-examination of him was inappropriate,” but that the issues did not rise to plain error. Id. at 10. Because ample evidence supported defendant’s guilt, including video and eyewitness testimony, the court could not conclude that the failure to intervene impacted the jury’s findings of guilt or the fairness of the trial. 

Finally, in (3), the court agreed with defendant, explaining that “a rational jury could have reasonably inferred that neither Defendant nor [his associate] used a dangerous weapon to threaten [the patron].” Id. at 15. Because this meant that a rational jury could have convicted defendant for common-law robbery instead of robbery with a dangerous weapon, the failure to provide an instruction for the lesser included charge was plain error, and this error justified a new trial on the second count of robbery.