An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-7

NORTH CAROLINA COURT OF APPEALS

Filed: 6 January 2004

STATE OF NORTH CAROLINA

v .                            Iredell County
                                No. 00 CRS 56546
CHARLES MICHAEL CASSELL, III,
    Defendant.

    Appeal by defendant from judgment entered 25 April 2002 by Judge Thomas D. Haigwood in Superior Court, Iredell County. Heard in the Court of Appeals 12 November 2003.

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).
    


Footnote: 1
        Although the trial court expressed concerns about Defendant's ability to represent himself, one should note that the competence required for waiver of counsel is not whether the defendant is competent to represent himself; rather, the trial court should be concerned with whether the defendant competently and intelligently waived counsel. See Godinez, 509 U.S. at 399. As explained in Faretta v. California, the defendant's 'technicallegal knowledge' is 'not relevant' to the determination whether he is competent to waive his right to counsel. Faretta, 422 U.S. at 836. Indeed, a defendant “may conduct his own defense ultimately to his own detriment.” Faretta, 422 U.S. at 834.

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