(I)
Did the trial court's refusal to allow defendant to
represent himself pro se violate his constitutional and statutory
rights?
We answer: No, because defendant did not make a clear and
unequivocal request to invoke his constitutional and statutory
rights to represent himself.
See U.S. Const. amends. VI and XIV;
N.C. Const. art. I, § 23; N.C. Gen. Stat. § 15A-1242 (2001);
State
v. LeGrande, 346 N.C. 718, 487 S.E.2d 727 (1997),
reh'g denied, 351
N.C. 365, 542 S.E.2d 650 (2000).
Preliminarily, we note that defendant failed to preserve this
issue by raising an objection at trial,
see N.C.R. App. P. 10(b)(1)
(2002), and furthermore failed to assert plain error in his
assignments of error, thereby waiving plain error review.
See
N.C.R. App. P. 10(c)(4) (2002);
State v. Truesdale, 340 N.C. 229,
456 S.E.2d 299 (1995);
State v. Moore, 132 N.C. App. 197, 511
S.E.2d 22,
disc. review denied and appeal dismissed, 350 N.C. 103,
525 S.E.2d 469 (1999);
see also State v. Gregory, 342 N.C. 580, 467
S.E.2d 28 (1996) (our Supreme Court has elected to review
unpreserved errors for plain error when they involve errors in jury
instructions or rulings on the admissibility of evidence). We
nonetheless consider defendant's argument, and find it to be
without merit.
See N.C.R. App. P. 2 (2002).
N.C. Gen. Stat. § 15A-1242 provides that a trial judge maypermit a defendant to proceed
pro se only after the 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.
G.S. § 15A-1242. A defendant's waiver of the right to counsel and
concomitant election to proceed
pro se must be clearly and
unequivocally expressed.
See State v. Thomas, 331 N.C. 671, 417
S.E.2d 473 (1992). In the absence of a clear expression of desire
to have counsel removed and proceed
pro se, the trial court need
not make an inquiry under G.S. § 15A-1242 to determine if the
defendant understands the consequences of his election and
voluntarily and intelligently waives his right to representation.
See State v. Johnson, 341 N.C. 104, 459 S.E.2d 246 (1995).
In this case, the record shows that defendant did not make a
clear and unequivocal request to represent himself as is necessary
to invoke G.S. § 15A-1242. Before jury selection, defendant's
court-appointed counsel, Gordon B. Kelley, informed the court that
defendant had told him that he wanted to employ private counsel.
Defendant clarified, stating:
I didn't want to say I employ private counsel.
I no longer want Mr. Kelley representing me in
this matter. I would ask if the Court could
reappoint me another court-appointed counsel.
If not, I'd rather not have one at all.
At the close of the State's evidence, the trial judge questioned
defendant regarding his collaboration with Mr. Kelley on his
defense, asking if defendant would have done anything differently.
Defendant expressed some dissatisfaction, stating “I still stand by
that I want to represent myself.”
Asked for specific questions or challenges he would have
posed, defendant stated that he wanted to go over certain matters
“with [his] attorney.” Following a short recess during which
defendant conversed with Mr. Kelley, the defense, at defendant's
urging, re-called Ms. Bennett and Ms. Donovant to the stand for
further questioning. The defense then replayed the bank's security
video for the jury, following which defendant testified in his own
defense.
When all the defendant's statements and actions are considered
together, it is apparent that he never clearly and unequivocally
asserted his desire to conduct a
pro se defense.
See State v.
McGuire, 297 N.C. 69, 83, 254 S.E.2d 165, 174,
cert. denied, 444
U.S. 943, 62 L. Ed. 2d 310 (1979). While the better practice may
have been for the court to have questioned defendant more
extensively at the time he first ambiguously expressed his desire
to represent himself, “we cannot say the court's failure to
question the defendant earlier warrants the grant of a new trial.”
Id. at 84, 254 S.E.2d at 174.
See also State v. Gerald, 304 N.C.
511, 284 S.E.2d 312 (1981). Furthermore, any alleged error by the
court was harmless beyond a reasonable doubt, as defendant has not
shown that, absent the error, the jury would likely have reached adifferent verdict.
See State v. Torain, 316 N.C. 111, 340 S.E.2d
465,
cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77 (1986).
Defendant's first argument is without merit.
(II)
Did the trial court err in recommending that defendant
pay restitution to the alleged victims before his release from
prison?
We do not address this issue because defendant failed to
preserve it for our review.
At trial, defendant raised no objection to the court's
recommendation to pay restitution,
see N.C.R. App. P. 10(b)(1), and
defendant failed to assert plain error in his assignments of error,
thereby waiving even plain error review of this issue.
See N.C.R.
App. P. 10(c)(4). Additionally, we note that the trial court did
not
order defendant to pay the restitution,
see State v. Hughes,
136 N.C. App. 92, 524 S.E.2d 63 (1999),
disc. review denied, 351
N.C. 644, 543 S.E.2d 878 (2000), nor did the trial judge recommend
the imposition of a “fine.”
See State v. Alexander, 47 N.C. App.
502, 267 S.E.2d 396 (1980). Furthermore, after sentencing
defendant the trial court asked Mr. Kelley if there was anything
further from defendant; Mr. Kelley deferred to defendant, who
indicated he had nothing further to say. Under these
circumstances, defendant failed to preserve the restitution issue
for consideration on appeal, and we decline to consider defendant's
objection on the merits.
See State v. Applewhite, 127 N.C. App.
677, 493 S.E.2d 297 (1997).
(III)
Did the trial court erroneously fail to find thatdefendant was denied effective assistance of counsel?
We answer: No, because defendant essentially contends in this
argument that he was denied the right to represent himself and we
have already determined that his rights to represent himself were
not violated.
Defendant contends in his brief that the “trial court's
failure to act
ex mero motu to dismiss the verdicts and to decline
to enter the judgments . . . was plain error,” resulting in denial
of defendant's constitutional rights to (1) effective assistance of
counsel, (2) due process, and (3) equal protection of the laws.
Defendant acknowledges that no action was taken at trial to
challenge Mr. Kelley's effectiveness or bring it to the trial
court's attention. Nonetheless, defendant contends that he was
denied effective assistance of counsel (without providing an
argument in support thereof or an assertion of prejudice arising
therefrom), stating that he never waived his right to proceed
pro
se, and that the trial court denied him his “constitutional right
to self-representation.”
As noted above, defendant failed to properly preserve this
issue for appellate review; even so, our analysis above indicates
that defendant never clearly and unequivocally asserted his desire
to proceed
pro se. This assignment of error is without merit.
No error.
Judges HUNTER and THOMAS concur.
Report per Rule 30(e).
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