Copyright 1998 - N.C. Administrative Office of the Courts


STATE OF NORTH CAROLINA v. SAMMIE LEE LOVE

No. COA 97-862

(Filed 17 November 1998)

1.    Constitutional Law,Federal--pro se appearance--advised of risks--no error

    The trial court did not err in a prosecution for trafficking in cocaine by possession, conspiracy to traffic in cocaine, possession of drug paraphernalia, and employing a minor to traffic in cocaine by allowing defendant to appear pro se. Defendant was properly advised and repeatedly warned by the court of the risks he took in declining the assistance of assigned counsel and there is nothing in the record to indicate that he had any reservations prior to his conviction.

2.    Criminal Law--joinder of offenses--no abuse of discretion-- harmless error

    The trial court did not abuse its discretion in a cocaine prosecution by allowing the State's motion for joinder of a possession count from 22 November with four others committed on 21 July. Moreover, any error would have been harmless because the later offense was dismissed early in the proceedings and never submitted to the jury.

3.    Criminal Law--pretrial suppression motion--timing of ruling- -within court's discretion

    There was no abuse of discretion in a cocaine prosecution in the court's failure to rule on a motion to suppress evidence before trial where the charge to which the motion applied was dropped early in the proceedings. The decision as to when to rule on a pretrial suppression motion is in the court's discretion. N.C.G.S. § 15A-976(c).

4.    Evidence--other offenses--employing minor to distribute cocaine--no plain error

    There was no plain error in a prosecution for various cocaine charges which included employing a minor to traffic in cocaine where the trial court allowed the State to introduce without objection testimony from a minor that he had previously sold cocaine for defendant. The testimony was properly admitted to show intent to plan and commit a conspiracy and was not unduly prejudicial, and, in light of other testimony, the jury probably would not have reached a different verdict even excluding this testimony.

5.    Evidence--redirect examination--new evidence--court's discretion

    There was no abuse of discretion in a cocaine prosecution where a bag from which defendant's employee, Lowry, sold cocaine was marked for identification during the testimony of a detective and later introduced and Lowry identified it as "an individual bag dope was in" over defendant's objection on redirect. Redirect cannot be used to repeat direct testimony or to introduce an entirely new matter, but the trial judge has the discretion to permit counsel to introduce relevant evidence which could have been but was not brought out on direct.

6.    Appeal and Error--offer of proof--required

    There was no abuse of discretion in a cocaine prosecution where defendant cited numerous instances of the court sustaining objections by the State or the court itself but the record does not indicate what the witness's testimony would have been. Moreover, there was no plain error because there was no indication that the jury would have reached a different result without this evidence.

7.    Criminal Law--subpoena of witnesses--denied--pro se defendant--no abuse of discretion

    There was no abuse of discretion in a cocaine prosecution in which the defendant represented himself where defendant contended on appeal that the trial court denied his request to have certain individuals subpoenaed but there was no evidence that defendant was denied access to subpoena forms; defendant was unable to provide any information to the court as to the anticipated testimony of the individuals on his witness list, which included a district attorney, a judge, two lawyers, and various law enforcement officers; when the issue next arose, during defendant's presentation of evidence, defendant provided the substance of the anticipated testimony and acknowledged that he knew how to subpoena witnesses but apparently chose not to do so; and the court found that the testimony of the proposed witnesses would not be probative.

8.    Criminal Law--prosecutor's closing argument--misery in cocaine--no plain error

    There was no plain error in a cocaine trial where the State in its closing argument asked the jury about the misery contained in a bag of cocaine.

9.    Sentencing--noncapital--consecutive terms--not cruel and unusual

    There was no abuse of discretion or cruel and unusual punishment in consecutive sentences on cocaine convictions.

    Judge HORTON dissenting.

    Appeal by defendant from judgments and commitments entered 24 October 1996 by Judge Wiley F. Bowen in Robeson County Superior Court. Heard in the Court of Appeals 1 April 1998.

    Attorney General Michael F. Easley, by Associate Attorney General Julie A. Risher, for the State.

    Bowen & Berry, PLLC, by Sue A. Berry, for defendant- appellant.

    LEWIS, Judge.

    Defendant was convicted in Robeson County Superior Court of trafficking in cocaine by possession, conspiracy to traffic in cocaine, possession of drug paraphernalia, and employing a minor to traffic in cocaine. Defendant appeals.

    [1]In his first assignment of error, defendant contends that the trial court erred in allowing him to appear pro se at trial without first determining that he had knowingly, voluntarily, and in writing waived his right to the assistance of counsel.

    The record reflects that defendant requested, and was assigned, counsel on 22 November 1995. Defendant pled not guilty to all charges at his arraignment on 11 September 1996. That same day, defendant executed a "Waiver of Counsel" in which he was permitted to waive either his right to assigned counsel or his right to "all assistance of counsel which includes [his] right to assigned counsel and [his] right to the assistance of counsel," but not both. Defendant elected to waive his right to assigned counsel instead of waiving his right to the assistance of counsel. The Waiver of Counsel form included a Certificate of Judge, signed by Judge Thomas W. Seay, Jr., on 11 September 1996, which read:

        I certify that the above named person has been fully informed in open court of the charges against him, the nature of and the statutory punishment for each charge, and the nature of the proceeding against him and his right to have counsel assigned by the court and his right to have the assistance of counsel to represent him in this action; that he comprehends the nature of the charges and proceedings and the range of punishments; that he understands and appreciates the consequences of his decision and that he has voluntarily, knowingly and intelligently elected in open court to be tried in this action . . . without the assignment of counsel.

(emphasis added). The court entered an order on 11 September 1996 which stated in part:

        Defendant, in open Court, stated that he desired to waive counsel and to represent himself or to obtain privately retained counsel and . . . this statement was made repeatedly by the Defendant, even though the Court repeatedly advised the Defendant that he was entitled to appointed counsel and that the Defendant was making a serious mistake by this election to represent himself.

(emphasis added).

    Defendant's trial began on 23 October 1996. There is no indication in the record that any further inquiry was conducted into defendant's choice to represent himself or to obtain private counsel. It appears, however, that defendant was fully satisfied with his decision to represent himself. Defendant made a motion to dismiss, made a motion that amounted to a motion to suppress evidence, and asked the Court for assistance in issuing subpoenas. Also during pretrial motions, defendant stated that he "want[ed] to go forward with a jury." Furthermore, in defendant's opening statement to the jury, he explained, "I am representing myself. Why am I representing myself? Because I am not guilty of anything." Despite his apparent desire to represent himself at trial, defendant now contends the trial court's failure to determine whether his waiver of the assistance of counsel was knowing and voluntary requires that he be granted a new trial. We disagree.

    It is well established that the Sixth Amendment of the United States Constitution, as applied to the states by the Fourteenth Amendment, provides a criminal defendant with the right to the assistance of counsel. State v. Michael, 74 N.C. App. 118, 119, 327 S.E.2d 263, 264 (1985). "Implicit in defendant's constitutional right to counsel is the right to refuse the assistance of counsel and conduct his own defense." State v. Gerald, 304 N.C. 511, 516, 284 S.E.2d 312, 316 (1981). "[T]he waiver of counsel, like the waiver of all constitutional rights, must be knowing and voluntary, and the record must show that the defendant was literate and competent, that he understood the consequences of his waiver, and that, in waiving his right, he was voluntarily exercising his own free will." State v. Thacker, 301 N.C. 348, 354, 271 S.E.2d 252, 256 (1980).

    Consistent with constitutional requirements, our General Statutes provide:

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;

             HORTON, Judge, dissenting:

    I respectfully dissent from the holding of the majority that this indigent and incarcerated defendant knowingly, intelligently, and voluntarily chose to represent himself in the defense of four serious charges which resulted in his imprisonment for a minimum term in excess of 13 years.

    The Sixth Amendment to the United States Constitution provides in part that "[i]n all criminal prosecutions the accused shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. Const. amend. VI. This right to the assistance of counsel is made applicable to the states by the Fourteenth Amendment to the United States Constitution. Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799 (1963). Our North Carolina Constitution also provides that "[i]n all criminal prosecutions, every person charged with crime has the right . . . to have counsel for defense . . . ." N.C. Const. art. I, § 23.

    Although a defendant may waive his right to counsel and represent himself, that waiver "must be knowing and voluntary, and the record must show that the defendant was literate and competent, that he understood the consequences of his waiver, and that, in waiving his right, he was voluntarily exercising his own free will." State v. Thacker, 301 N.C. 348, 354, 271 S.E.2d 252, 256 (1980).

    The crucial issue in this case is whether this defendant understandingly and voluntarily waived his right to the assistance of counsel at trial based on a waiver of his right to the assistance of court-appointed counsel at his arraignment six weeks prior to his trial. I do not believe the record demonstrates a constitutionally valid waiver by defendant. I therefore believe that he is entitled to a new trial.

    The public defender was appointed counsel for defendant on 22 November 1995 based on an affidavit of indigency. The affidavit showed that defendant's monthly income was a $250 disability payment. At defendant's arraignment on 11 September 1996, however, defendant moved that his court-appointed counsel be relieved of further duties. The trial court entered an order on 11 September 1996 reciting that defendant wished to represent himself or obtain privately retained counsel. The trial court advised defendant that he was making a "serious mistake" but found as a fact that "the Defendant understands the nature of his cases, that his motion is well taken and the Court concludes as a matter of law that the relief sought by the Defendant ought to be allowed." The transcript of the arraignment and motions hearing is not before us; therefore, we are not advised of statements made by defendant which provided a basis for the trial court's conclusions concerning the informed nature of defendant's decision.

    On that same date, defendant signed a form entitled "Waiver of Counsel." This form gave defendant a choice of two alternative waivers, and reads in part:

        I freely, voluntarily and knowingly declare that:

            (check only one)

            

**** End of Document ****

Converted from WordPerfect