STATE OF NORTH CAROLINA
v. Forsyth County
No. 00 CRS 56359
EDDIE ALEXANDER BOLER,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Sueanna P. Sumpter, for the State.
William B. Gibson for defendant appellant.
HUDSON, Judge.
Defendant appeals his conviction for assault with a deadly
weapon inflicting serious injury. We find no error in the trial
court's judgment.
The State's evidence tended to show that on the night of 25
September 2000, defendant approached his former girlfriend, Cheryl
Spears, as she was walking home. One of defendant's hands was
cupped with the palm facing away from Spears. Defendant knocked
Spears to the ground, announced he was going to kill her, and
stabbed her twice in the back with a knife. Spears grabbed the
knife blade and broke it from the handle, cutting her hands in the
process. Defendant fled. Spears ran to her house with the bladeand told her daughter to call 911. Winston-Salem Police Officer
R.S. Bodle responded to the scene and found Spears in her kitchen
with “blood all over the place.” The flesh of her little finger
was cut away from the bone. Spears was bleeding from her back and
hands and was experiencing “real throbbing pain” from the wounds.
She told Bodle it was “the worst pain that she had ever gone
through.” Spears was hospitalized for twenty-four hours, receiving
staples in her back and stitches on one hand. As a result of her
injuries, Spears had scars on her back and hand, lost all feeling
in her left little finger, and was numb in an area on her back
above the shoulder blade.
Defendant elected not to testify or call any witnesses. The
trial court denied his motion to dismiss at the conclusion of the
evidence.
Defendant first contends that the trial court violated his
right to due process by allowing him to dismiss his court-appointed
attorney and represent himself. Defendant notes that he had been
committed to Dorothea Dix Hospital for a competency evaluation
approximately one month prior to trial. Although he was found to
be competent, he avers that the trial court abused its discretion
in failing to conduct a competency hearing in response to his
“obviously self-destructive decision” to proceed pro se.
As a correlate to the right to counsel, a criminal defendant
has the alternative constitutional right to self-representation
without the assistance of counsel. See State v. LeGrande, 346 N.C.
718, 722-23, 487 S.E.2d 727, 729 (1997), reh'g denied, 351 N.C.365, 542 S.E.2d 650 (2000). “Before a defendant is allowed to
waive appointed counsel, the trial court must insure that
constitutional and statutory standards are satisfied.” Id. The
court must conduct a “thorough inquiry” in order to determine that
the defendant understands the following: (1) his right to counsel,
including appointed counsel, (2) the consequences of the decision
to represent himself, and (3) “the nature of the charges and
proceedings and the range of permissible punishments.” N.C. Gen
Stat. § 15A-1242 (1999). Having conducted this colloquy, the court
must be satisfied that the defendant's waiver of counsel and
election to proceed pro se are undertaken knowingly, intelligently,
and voluntarily. See LeGrande, 346 N.C. at 723, 487 S.E.2d at 729
(citing State v. Thomas, 331 N.C. 671, 674, 417 S.E.2d 473, 476
(1992)).
The trial court fully complied with the requirements of
N.C.G.S. § 15A-1242 before accepting defendant's waiver of counsel.
The record reflects the trial court's painstaking discussion with
defendant regarding his decision and the consequences thereof.
After hearing defendant's concerns about his counsel, the court
asked counsel if he was prepared to represent defendant. Satisfied
with counsel's response, the court refused defendant's request for
replacement counsel. The court reviewed with defendant the charges
and possible punishment he was facing. It then allowed defendant
to confer with counsel again before beginning the trial the
following day.
The next morning, the court advised defendant of his right toappointed counsel and his right to self-representation with standby
counsel. The court informed defendant of the consequences of
representing himself, including defendant's obligation to abide by
the rules of court, the limited role played by standby counsel, and
the loss of defendant's ability to challenge his conviction based
on ineffective assistance of counsel. Defendant was advised of the
maximum punishment he was facing. Defendant acknowledged his
understanding and stated his intention to waive counsel and
represent himself. The trial court then reviewed the waiver of
counsel form with defendant. Defendant completed the form and
signed it. After advising defendant that he would be better served
by retaining his attorney, the trial court asked defendant if he
would like to “re-assess [his] situation[.]” Defendant reiterated
that he was “demanding” to represent himself. Finally, defendant
was required to affirm under oath that he had been informed of the
charges against him and his right to counsel but chose to waive
counsel and proceed pro se. The court then made findings of fact,
as follows:
. . . [Defendant] was fully informed in open
court of the charges against him and the
statutory punishment for each charge and the
nature of the proceedings against him and his
right to have counsel assigned to him and his
right to have the assistance of counsel to
represent him here in this action.
This Court finds that he fully
comprehends the nature of his charges and
fully comprehends the proceedings against him
and the range of the punishment involved here
in this case.
This Court fully finds and certifies that
[defendant] understands and appreciates theconsequences of this decision that he's made
and that he voluntarily and he knowingly and
he has intelligently elected in open court to
be tried in this action without assistance of
counsel . . . and that he fully -- wishes and
demands to represent himself in this case.
These findings are amply supported by the record and are binding on
appeal.
Defendant argues that his decision to discharge his attorney
just prior to trial was so irrational as to require the trial court
“to make a formal inquiry of psychiatric professionals as to
Defendant's then-present capacity to proceed.” He notes that his
appointed counsel had obtained a pre-trial order committing
defendant to Dorothea Dix Hospital for a psychiatric evaluation.
Although defendant was found competent to stand trial, he notes the
psychiatrist's report diagnosed him with major depressive disorder,
as well as “personality disorder not otherwise specified[.]” In
light of the psychiatrist's findings, defendant contends the trial
court violated his right to due process by allowing him to waive
counsel without hearing additional expert opinion.
Generally, a defendant who has been committed to a State
hospital by order of the trial court for a determination of his
capacity to stand trial is entitled to a hearing on the issue
following his release. See N.C. Gen. Stat. § 15A-1002(b) (1999).
A defendant waives this right, however, if he does not request a
hearing. See State v. Young, 291 N.C. 562, 568, 231 S.E.2d 577,
581 (1977). Despite the statutory waiver, a trial court has the
constitutional duty to conduct a competency hearing if confronted
with substantial evidence of a defendant's incompetency. See Statev. McRae, 139 N.C. App. 387, 390, 533 S.E.2d 557, 559 (2000).
However,
where . . . the defendant has been committed
and examined relevant to his capacity to
proceed, and all evidence before the court
indicates that he has that capacity, he is not
denied due process by the failure of the trial
judge to hold a hearing subsequent to the
commitment proceedings.
Young, 291 N.C. at 568, 231 S.E.2d at 581.
Having carefully reviewed the transcript and record on appeal,
we conclude the trial court did not violate defendant's right to
due process by failing to hold a hearing on his capacity to
proceed. Neither defendant nor his appointed counsel raised the
capacity issue or requested a hearing from the trial court. Nor
was the court presented with any evidence of incompetency. The
psychiatric report prepared by Dr. Nicole F. Wolfe at Dorothea Dix
contained the following findings:
[Defendant] is capable of proceeding to trial.
He understands the charges against him[,] his
own position relative to the proceedings and
is capable of working with an attorney in the
preparation of a defense.
. . . [Defendant] does not suffer from a
severe mental disease or defect which would
prevent him from understanding the difference
between right and wrong.
. . .
[Defendant] can be discharged . . . as capable
of proceeding to trial. . . .
Dr. Wolfe's report unequivocally states that defendant was
competent to proceed despite his major depressive disorder. She
made no recommendation for additional evaluation, nor did shesuggest any possibility that his capacity to stand trial was
subject to change over time based on his diagnosis.
Similarly, defendant displayed no sign of incapacity in the
trial court. Defendant articulated coherent reasons for electing
to proceed pro se: his belief that counsel was inadequately
prepared and his displeasure with counsel's opinion that he would
be found guilty. While perhaps ill-advised, his decision did not
evince a lack of awareness of the consequences of his actions or an
inability to comprehend the nature of the proceedings against him.
See N.C. Gen. Stat. § 15A-1001(a) (1999). Moreover, the transcript
reflects that defendant represented himself “in a rational [and]
reasonable manner” throughout his trial. Id. He sought to
sequester the State's witnesses. He conducted focused, purposeful
cross-examinations, pointing out inconsistencies between the
complaining witness' testimony and her statement to police. At
sentencing, defendant sought to establish two statutory mitigating
factors. Defendant followed the trial court's instructions at
every turn, and his exchanges with the trial court were lucid.
Defendant next challenges the denial of his motion to dismiss,
arguing that the State failed to adduce sufficient evidence of his
intent to kill or of a serious injury to Spears. We find no merit
to this claim. Witness testimony established that defendant
announced his intention to kill Spears just before he stabbed her
in the back with a large knife until the blade broke. Viewed in
the light most favorable to the State, such evidence would allow a
reasonable fact finder to conclude defendant acted with a specificintent to kill. See State v. Musselwhite, 59 N.C. App. 477, 480,
297 S.E.2d 181, 184 (1982). Similarly, the evidence that Spears
received multiple wounds requiring staples and stitches to close,
that she bled extensively and suffered great pain, and that she was
left with scars and a complete loss of feeling in her little finger
adequately supported a jury finding of serious injury. See id. at
480-81, 297 S.E.2d at 184; see also State v. Hunt, 100 N.C. App.
43, 46-47, 394 S.E.2d 221, 223 (1990).
Defendant also challenges the trial court's jury instruction
defining “serious injury” as one that “causes great pain and
suffering.” However, defendant failed to object to the instruction
at trial and has not assigned plain error on appeal. See N.C. R.
App. Proc. 10(b)(2) & (c)(4) (1999). Accordingly, he failed to
preserve this issue for appellate review. We note that we have
previously upheld a jury instruction defining serious injury as
“any physical injury that causes great pain and suffering.” See
State v. Williams, 29 N.C. App. 24, 25, 222 S.E.2d 720, 721, disc.
rev. denied, 289 N.C. 728, 224 S.E.2d 676 (1976).
No error.
Judges GREENE and TYSON concur.
Report per Rule 30(e).
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