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

iii

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

3

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

4

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

5

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.

6

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

8

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 28801mcasterline@gmail.com 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 28801mcasterline@gmail.com 828/ 253-6401

June S. FerrellSpecial Deputy Assistant Attorney GeneralNC Dept. of Justice, Medical Facilities SectionPO Box 629Raleigh, NC 27602

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