STATE OF NORTH CAROLINA
v
. Iredell County
No. 00 CRS 56546
CHARLES MICHAEL CASSELL, III,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards, for the State.
Appellate Defender Staple S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for the defendant-appellant.
WYNN, Judge.
By this appeal, Defendant, Charles Michael Cassell, III
presents the following pertinent issues for our consideration: (I)
Did the trial court erroneously permit Defendant to proceed pro se
in the absence of an unequivocal, knowing, and voluntary waiver of
counsel; (II) Whether the trial court abused its discretion in
refusing to permit retained counsel to act as standby counsel or to
appoint standby counsel for him; (III) Whether the trial court
erred in trying Defendant upon finding he did not understand theproceedings against him; and (IV) Whether the trial court
erroneously failed to instruct the jury sua sponte on intoxication.
After careful review, we conclude no error was committed in the
proceedings below.
Defendant was indicted for robbery with a dangerous weapon of
a convenience store in Statesville, North Carolina on 15 October
2000. On that date, Defendant entered the store, retrieved beer
from the beer cooler, placed the beer on the counter, went around
the counter with a box cutter and told the cashier to give him the
money. Defendant was videotaped by a security camera and observed
by another customer during the robbery. After obtaining the money,
Defendant exited the store and left in a gray pick-up truck, which
was seen by two customers. Within minutes of leaving the store, a
state trooper pursued Defendant's vehicle and arrested him.
Before trial, the trial court ordered Defendant committed to
Dorothea Dix Hospital for a psychiatric evaluation to determine
competence to stand trial. The evaluation determined defendant was
capable of proceeding to trial and that there was no evidence to
show Defendant could not appreciate the wrongfulness of his actions
at the time of the charge.
After discharging his retained counsel, Michael Lassiter, Jr.,
Defendant appeared for trial on the charge of robbery with a
dangerous weapon on 22 April 2002 with retained counsel DavidMinor. Before jury selection, Mr. Minor informed the trial court
of Defendant's desire to represent himself with Mr. Minor selecting
the jury. Mr. Minor also informed the trial court that although he
did not support Defendant's decision to plead not guilty by reason
of insanity, Defendant wanted to enter such a plea.
The trial court first entertained the State's request for a
determination of Defendant's competency to stand trial. After
considering the Dorothea Dix Hospital evaluation and offering
Defendant an opportunity to present evidence, which he declined,
the trial court found Defendant competent to stand trial.
Thereafter, the trial court ordered the defense could proceed on an
insanity plea.
The trial court then engaged in a lengthy colloquy with
Defendant regarding his waiver of counsel. At the outset,
Defendant stated that he wished to represent himself “with the aid
of my counsel.” Defendant stated that he would do the opening
statement, closing argument, and examination of witnesses, but that
Mr. Minor would probably question some witnesses as well. When
told by the trial court that his only choices were to be
represented by Mr. Minor or to represent himself, Defendant stated,
“Well, I'm not against Mr. Minor speaking during the trial for me.
I asked him to be here for help on certain things I don't know
about the law.” Defendant then affirmatively stated that he wantedto represent himself but wanted Mr. Minor to be present to offer
legal advice and assistance.
Mr. Minor told the trial court that although he thought it was
a bad decision, he was satisfied that Defendant understood the
consequences of self-representation. Mr. Minor then confirmed his
willingness to remain in court and provide any requested assistance
to Defendant.
The trial court then asked Defendant again if he wished to
proceed with or without a lawyer to which Defendant answered, “I
wish to proceed without a lawyer but legal counsel.” When asked to
complete a waiver of counsel form, Defendant did so but stated,
“Yes sir, but I remain the right of assistance of counsel, whatever
you call it.” Defendant then affirmatively answered that he did
not want to have a lawyer “speak for him.”
After this discourse between the trial court and Defendant,
the trial court then denied the request to proceed pro se, ruling
that Defendant was not competent to represent himself and did not
clearly understand or appreciate the consequences of the decision
to waive counsel. The trial court expressed concern regarding
Defendant's ability to present the complicated defense of insanity
and his ability to comport himself in a trial.
The following morning, Mr. Minor informed the court that
Defendant believed he was working for the prosecution and wished torenew the motion to represent himself. In support of his renewed
motion, Defendant presented court documents from a Florida federal
district court action in which Defendant appeared pro se.
Defendant also stated that he did not trust Mr. Minor and did not
want him doing the trial work. The trial court then told Defendant
that he could either proceed pro se or with counsel. The trial
court told Defendant that if Mr. Minor was at the counsel table, he
would be representing Defendant. If not, Mr. Minor would be
permitted to leave. Defendant again responded that he only wanted
legal assistance and “wanted to represent myself with the aid of
counsel.”
After additional colloquy, Defendant waived counsel. The
trial court then relieved Mr. Minor of further duties and commenced
the trial. Defendant was convicted of robbery with a dangerous
weapon and sentenced to a term of 146 to 185 months imprisonment.
Defendant appeals.
_______________________________________________________
Defendant first contends the trial court erroneously permitted
him to proceed pro se in the absence of an unequivocal, knowing,
and voluntary waiver of counsel. We disagree.
Before allowing a defendant to waive in-court representation
by counsel, the trial court must insure that constitutional and
statutory standards are satisfied. First, waiver of the right tocounsel and election to proceed pro se must be expressed “clearly
and unequivocally.” State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d
473, 475 (1992). Second, “once a defendant clearly and
unequivocally states that he wants to proceed pro se, the trial
court, to satisfy constitutional standards, must determine whether
the defendant knowingly, intelligently, and voluntarily waives the
right to in-court representation by counsel.” Thomas, 331 N.C. at
674, 423 S.E.2d at 476. After careful review, we conclude
Defendant clearly and unequivocally waived counsel and knowingly,
intelligently, and voluntarily waived his right to in-court
representation by counsel.
Defendant, relying upon State v. Thomas, supra, contends his
statements that he wanted to represent himself with the aid of
counsel does not indicate a clear, unequivocal, knowing,
intelligent and voluntary waiver of his right to counsel. In State
v. Thomas, 331 N.C. 671, 417 S.E.2d 473 (1992), our Supreme Court
held that a request to participate with court-appointed counsel in
conducting the trial does not constitute a clear and unequivocal
request to proceed pro se. Indeed, “there is no right to appear in
propria persona and by counsel.” State v. McGuire, 297 N.C. 69,
254 S.E.2d 165 (1979). In Thomas, at multiple pre-trial hearings,
Mr. Thomas requested the right to proceed pro se with the
assistance of counsel. During the trial, defense counsel asked forpermission to withdraw. Defendant then made a motion to dismiss
his attorneys saying he needed legal counsel that was not
incompetent. Both motions were denied. At the final hearing
Defendant referred to himself as lead counsel and to appointed
counsel as his assistants. The trial court took this to be a
request to proceed pro se and, without clarifying the options
available to Mr. Thomas, discharged counsel. Our Supreme Court
found this to be an erroneous discharge of counsel and ordered a
new trial.
Unlike Thomas, in this case, Defendant stated several times
that he desired to represent himself and the Court conducted two
lengthy colloquies with Defendant regarding his request to proceed
pro se. Thus, the trial court, unlike Thomas, did not infer or
assume Defendant desired to appear pro se; rather, Defendant stated
his request several times and presented documents which he
contended demonstrated his ability to represent himself. Thus, we
conclude the trial court did not erroneously allow Defendant to
proceed pro se.
Defendant next argues the trial court abused its discretion in
refusing to permit retained counsel, David Minor, to act as standby
counsel or to appoint standby counsel for Defendant. Pursuant to
N.C. Gen. Stat. § 15A-1243,
when a defendant has elected to proceedwithout the assistance of counsel, the trial
judge in his discretion may determine that
standby counsel should be appointed to assist
the defendant when called upon and to bring to
the judge's attention matters favorable to the
defendant upon which the judge should rule
upon his own motion. Appointment and
compensation of standby counsel shall be in
accordance with rules adopted by the Office of
Indigent Defense Services.
Appointment of standby counsel is a discretionary matter for the
trial judge. Thus, our standard of review is abuse of discretion.
State v. Seraphem, 90 N.C. App. 368, 371-72, 368 S.E.2d 643, 645
(1988). Defendant contends that he was barely able to elicit
admissible evidence, argued with witnesses, made outbursts in and
outside of the presence of the jury, was unaware of motions to
dismiss for insufficiency of the evidence, did not understand
proposed instructions, and did not know of any instructions to
request beyond an insanity instruction. Defendant also references
the trial court's repeated doubts as to his ability to present a
defense as support for his contention that standby counsel could
have assisted him in his presentation of evidence and in the
instructional conference. However, the record indicates that in
support of Defendant's request to proceed pro se, Defendant
presented documentation that he had handled other legal matters pro
se and he informed the court that he only wanted legal assistance
for jury selection and other unspecified legal issues. GivenDefendant's insistence upon proceeding pro se and his evidence
demonstrating he was capable of handling his own legal affairs, we
conclude the trial court did not abuse its discretion in not
appointing standby counsel.
Defendant next argues the trial court erred in trying
Defendant because it found Defendant did not understand the
proceedings against him. Defendant contends that if a defendant is
incompetent to waive counsel, he is also incompetent to proceed to
trial, as the standards of competency for standing trial and
waiving counsel are identical. As the trial court, based upon a
psychiatric examination, determined Defendant was competent to
stand trial, we disagree.
In Godinez v. Moran, 509 U.S. 389, the Supreme Court explained
the difference between competency to stand trial and competence to
plead guilty or waive counsel: “A finding that a defendant is
competent to stand trial, however, is not all that is necessary
before he may be permitted to plead guilty or waive his right to
counsel. In addition to determining that a defendant who seeks to
plead guilty or waive counsel is competent, a trial court must
satisfy itself that the waiver of his constitutional rights is
knowing and voluntary. In this sense there is a 'heightened'
standard for pleading guilty and for waiving the right to counsel,
but it is not a heightened standard of competence.” Godinez, 509U.S. at 400-401. As the Court further explained:
The focus of a competency inquiry is the
defendant's mental capacity; the question is
whether he has the ability to understand the
proceedings. See Drope v. Missouri, supra, at
171 (defendant is incompetent if he “lacks the
capacity to understand the nature and object
of the proceedings against him”) (emphasis
added). The purpose of the “knowing and
voluntary” inquiry, by contrast, is to
determine whether the defendant actually does
understand the significance and consequences
of a particular decision and whether the
decision is uncoerced. See Faretta v.
California, supra, at 835 (defendant waiving
counsel must be “made aware of the dangers and
disadvantages of self-representation, so that
the record will establish that 'he knows what
he is doing and his choice is made with eyes
open'”) (quoting Adams v. United States ex
rel. McCann, 317 U.S. 269, 279, 87 L. Ed. 268,
63 S. Ct. 236 (1942)); Boykin v. Alabama, 395
U.S. at 244 (defendant pleading guilty must
have "a full understanding of what the plea
connotes and of its consequence").
In this case, in initially determining Defendant did not knowingly
and voluntarily waive counsel, the trial court was not concerned
about Defendant's ability to understand the proceedings; rather,
the trial court was concerned about Defendant's ability to act as
a lawyer.
(See footnote 1)
Indeed, the trial court expressed concerns aboutDefendant's ability to act with decorum during the proceedings and
was concerned that Defendant lacked the ability to present the
complicated defense of insanity. Accordingly, we find the trial
court did not err in trying Defendant.
Finally, Defendant contends the trial court committed plain
error in failing to sua sponte instruct the jury on intoxication.
We disagree. “The trial court is not required ... to instruct the
jury concerning the defense of intoxication when the evidence does
not tend to show that the defendant was so completely intoxicated
as to be utterly unable to form the specific intent necessary at
the time the crime was committed." State v. Williams, 308 N.C. 47,
71, 301 S.E.2d 335, 350 (1983). In this case, only minimal
evidence was presented regarding Defendant's drug and alcohol abuse
on the day in question. Dr. Nicole Wolfe testified that Defendant
told her that he had consumed two beers and smoked a small amount
of cocaine that day and Defendant testified that he may have told
Dr. Wolfe that he had smoked some crack that day. Defendant also
was able to recall and testify in detail to the events leading up
to the robbery and what happened after the robbery. Thus, even
assuming the trial court was required to instruct sua sponte onintoxication, based upon the record, we conclude there was no
evidence before the trial court to show Defendant was so completely
intoxicated that he was utterly unable to form the specific intent
to commit the crime of robbery with a dangerous weapon.
No error.
Judge TIMMONS-GOODSON and ELMORE concur.
Report per Rule 30(e).
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