STATE OF NORTH CAROLINA
v. Lenoir County
Nos. 01 CRS 54199
MICHAEL ANTHONY STARKEY 02 CRS 160
Attorney General Roy Cooper, by Assistant Attorney General
Jill F. Cramer, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
CALABRIA, Judge.
On 25 February 2002, the Lenoir County Grand Jury indicted
Michael Anthony Starkey (“defendant”) on a charge of possession of
a controlled substance and also indicted him for attaining the
status of an habitual felon. Defendant signed waivers of counsel
on 17 September 2001, 15 October 2001, and 11 March 2002. He then
filed an affidavit of indigency on 27 March 2002 and requested
court-appointed counsel. On 16 April 2002, defendant appeared in
open court with his appointed counsel, Mr. Rogerson, and rejected
a plea arrangement which the State had offered.
When the case was called for trial on 28 May 2002, defendant
moved for a continuance. After Judge Paul Jones (“Judge Jones”)denied the motion, defendant asked that his counsel not continue to
represent him and that he be given another attorney. The following
exchange then occurred at a bench conference:
THE COURT: Well the court is _ _ if he wants
to dismiss you he can, but the court is going
to proceed, if there is not another lawyer
here right now ready to proceed _ _
DEFENDANT: Well what I could do with all due
respect, Judge Jones, if you continue this I
will personally _ _
THE COURT: I'm not going to continue it.
. . . .
THE COURT: Do you want Mr. Rogerson today? If
not, you can represent yourself. Those are
your choices.
DEFENDANT: Well, Judge, _ _
THE COURT: Those are your only choices.
DEFENDANT: Well I don't think I can be
adequately defended by myself. Well, I mean,
I don't think I can _ _
THE COURT: You have two choices. You have
yourself or you have Mr. Rogerson.
DEFENDANT: I don't _ _ I don't think I can
defend myself without adequately being _ _ I
really don't to be honest with you.
THE COURT: It appears to be an easy choice.
DEFENDANT: But I don't _ _
THE COURT: We're getting ready to get started,
Mr. Starkey.
DEFENDANT: But I don't have no way to
represent myself, Judge Jones.
THE COURT: Well you understand your options.
DEFENDANT: Yes, sir.
THE COURT: Do you want Mr. Rogerson to stay
with you?
DEFENDANT: No, sir.
THE COURT: Sir?
DEFENDANT: No, sir.
THE COURT: You do not?
DEFENDANT: No, sir.
THE COURT: You're going to represent yourself?
DEFENDANT: I'd rather have a lawyer that to my
interest. And Mr. Rogerson is a good man.
And we if we could have time to bring this
witness to court _ _
THE COURT: We're going to proceed.
DEFENDANT: Well I don't have any way to defend
myself.
THE COURT: Are you going to represent
yourself, Mr. Starkey? That's either a yes or
a no answer. If you're not, I'll excuse him
and I'll let you select your jury and
represent yourself.
DEFENDANT: I cannot get another lawyer?
THE COURT: No, sir. Not at this point.
DEFENDANT: Well see the only reason that is he
did not know _ _
THE COURT: Sir, I've already told you one
time.
DEFENDANT: Yes, sir.
THE COURT: What do you want to do?
DEFENDANT: I guess I have to come on God's
hands and represent myself.
THE COURT: You're going to represent yourself?
DEFENDANT: Yes, I have no choice.
THE COURT: Okay, that's fine. Mr. Rogerson is
hereby allowed to withdraw at the request of
the defendant. Okay.
MR. ROGERSON: Thank you.
After the bench conference, the trial court informed the jury that
defendant would be representing himself and proceeded to jury
selection.
At the conclusion of jury selection, the trial court announced
a fifteen-minute recess and directed the jury to return at 3:25.
Defendant failed to return after the recess, and the trial court
excused the jury for the day. Defendant was late for court on the
morning of 29 May 2002. Because the trial court had smelled the
odor of alcohol on defendant's breath during the bench conference
on 28 May 2002, the trial court had ordered that defendant be given
a breathalyzer test. A court bailiff testified that defendant blew
a .12 on an alcosensor about thirty minutes earlier. The trial
court continued the matter, then found defendant to be in direct
criminal contempt for failing to return on the afternoon of 28 May
2002 and for coming to court impaired on 29 May 2002. The trial
court imposed a sentence of thirty days for the contempt.
On 15 July 2002, defendant's case was again called for trial.
Prior to jury selection, defendant complained that he had “wrotten
[sic] the court, also [his] lawyer to request for an attorney and
I never got no type of response whatsoever, and all of a sudden I'm
here in the courtroom.” Defendant admitted to having discharged
Mr. Rogerson as his appointed counsel on 28 May 2002, but he
complained that Judge Jones had “forced” that decision upon him. He did request that Judge Haigwood appoint another attorney to
represent him.
The State informed the trial court that defendant had “three
or four waivers in the file” and that “Judge Jones engaged in a
very lengthy dialogue with the defendant telling him once he made
the decision to discharge Mr. Rogerson he had to represent
himself.” After permitting defendant to state why he discharged
Mr. Rogerson, the trial court stated that “[i]t appears to the
court that Judge Jones and you apparently hashed this out to some
significant extent last time you were here in court and you made an
informed decision to discharge Mr. Rogerson.” The matter then
proceeded to trial with defendant representing himself.
On 16 July 2002, the jury found defendant to be guilty of
possession of cocaine and of having attained the status of an
habitual felon. The trial court then sentenced defendant to a term
of 100 to 129 months' imprisonment. From the trial court's
judgment, defendant appeals.
Defendant argues the trial court failed to conduct the
mandatory inquiry pursuant to N.C. Gen. Stat. § 15A-1242 (2003)
before allowing defendant's appointed counsel to withdraw upon
defendant's request. He further contends he was denied his rights
to due process and to effective representation by the trial court
when it allowed him to discharge his appointed counsel while he may
have been impaired by alcohol. We agree that at neither proceeding
did the trial court conduct the mandatory inquiry required by N.C.
Gen. Stat. § 15A-1242. A defendant's waiver of the right to counsel and election to
proceed pro se must be expressed “clearly and unequivocally.”
State v. McGuire, 297 N.C. 69, 81, 254 S.E.2d 165, 173 (1979). The
trial court must then determine whether a defendant knowingly,
intelligently, and voluntarily waives the right to in-court
representation by counsel. State v. Bullock, 316 N.C. 180, 185,
340 S.E.2d 106, 108 (1986). A trial court will satisfy these
constitutional requirements by conducting the inquiry required by
N.C. Gen. Stat. § 15A-1242. State v. Gerald, 304 N.C. 511, 519,
284 S.E.2d 312, 317 (1981). The statute states that:
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;
(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.
N.C. Gen. Stat. § 15A-1242. Failure by the trial court to conduct
this mandatory inquiry is prejudicial error. State v. Pruitt, 322
N.C. 600, 603, 369 S.E.2d 590, 592 (1988).
The trial court must also obtain a written waiver of the right
to counsel and
find[] of record that at the time of waiver
the indigent person acted with full awareness
of his rights and of the consequences of the
waiver. In making such a finding, the courtshall consider, among other things, such
matters as the person's . . . mental condition
. . . .
N.C. Gen. Stat. § 7A-457(a) (2003).
Defendant here did not “clearly and unequivocally” state a
desire to proceed in propria persona. His actions and responses to
the trial court on 28 May 2002 about his desire to discharge his
appointed counsel appear to be a failed attempt to obtain a
continuance so that a witness could be brought to court. At both
proceedings, defendant clearly requested new counsel. Although the
trial court correctly informed defendant that he was not entitled
to appointed counsel of his choosing, see State v. Anderson, 350
N.C. 152, 168, 513 S.E.2d 296, 306 (1999), the trial court
nevertheless did not conduct the mandatory inquiry pursuant to N.C.
Gen. Stat. § 15A-1242. The trial court therefore erred in allowing
defendant to represent himself, and defendant is entitled to a new
trial. Because defendant's other issues are not likely to arise
upon retrial, we decline to discuss his remaining assignments of
error.
New trial.
Judges TIMMONS-GOODSON and ELMORE concur.
Report per Rule 30(e).
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