STATE OF NORTH CAROLINA
v
.
Currituck County
Nos. 02 CRS 50698
CRITINA VERNETRA JONES and 02 CRS 50699
CEDRIC LANIER GRIFFIN,
Defendants.
Attorney General Roy Cooper, by Assistant Attorney Generals
Richard G. Sowerby and Mary S. Mercer, for the State.
Sofie W. Hosford, for defendant-appellant Critina Vernetra
Jones.
Terry W. Alford, for defendant-appellant Cedric Lanier
Griffin.
HUDSON, Judge.
Defendants Cedric Lanier Griffin (“Griffin”) and Critina
Vernetra Jones (“Jones”) were tried on drug charges at the 2 June
2003 Criminal Session of the Superior Court in Currituck County.
The jury convicted Griffin of possession with intent to sell and
deliver cocaine, and of possession of drug paraphernalia, and
convicted Jones of possession with intent to sell and deliver
cocaine, and maintaining a vehicle for the purpose of using or
selling cocaine. The court sentenced Griffin to six to eight
months imprisonment followed by a term of 45 days, suspended, and
36 months probation. Jones received a sentence of six to eightmonths imprisonment, followed by a term of six to eight months
imprisonment, suspended, and 36 months probation. Defendants
appeal. For the reasons discussed below, we hold that defendants
are entitled to a new trial.
This case was initially on the December 2002 calendar, and
Griffin and Jones waived appointment of counsel on 11 December
2002. In addition, Jones had previously waived counsel in June
2002 as to her possession of drug paraphernalia charge. Following
a continuance, the District Attorney in Currituck County called
this case for trial on 2 June 2003. The State informed the court
that H.P. Williams, the attorney named as counsel of record, denied
representing Griffin or Jones due to lack of payment. Griffin and
Jones told the prosecutor that Mike Sanders represented them.
However, when contacted, Mr. Sanders also denied representing
defendants due to lack of payment. The State then told the court
that defendants had previously waived court-appointed counsel.
Jones informed the court that she and Griffin had not yet been
able to meet with Mr. Sanders, and asked for a continuance in order
to get a lawyer. The court told defendants that their case would
be tried that week whether they had counsel or not, and advised
defendants to contact Mr. Williams. Mr. Williams appeared in court
that afternoon, informed the court that defendant Jones did not
want him to represent her, and asked to withdraw. Jones asked if
defendants could get another lawyer before Mr. Williams was allowed
to withdraw. The court told defendants that it would entertain a
motion to continue filed by an attorney, but that otherwise thecase was for trial. Jones asked if she would be forced to proceed
pro se because she knew she could not get Mr. Sanders to court that
week. The court told her the case was for trial that week, and
allowed Mr. Williams to withdraw.
On 4 June 2003, the case was called for trial. Jones asked
about court-appointed counsel, but the court replied, “I think you
waived your right,” and proceeded to try the case. Both defendants
appeared pro se.
The State's evidence tended to show that the offenses occurred
on 18 June 2002. Officer Joey Davidson of the Currituck County
Sheriff's Department received a tip from an informant that Barbara
Thomas and her drug supplier would be in Currituck County in a
Nissan Maxima that day. Officer Davidson saw a Nissan Maxima with
three occupants pull into a grocery store parking lot at 6 p.m.
Based on undisclosed corroborative information, Officer Davidson
stopped the car.
Jones was driving, with Griffin in the front passenger seat
and Thomas in the back seat. Officer Davidson, Corporal Dodd and
Detective Beickert approached the car, and instructed all three
occupants to get out. Officer Davidson noticed a plastic bag of
off-white powder sitting between the driver's seat and door.
Testing later confirmed that the bag contained 3.9 grams of cocaine
base. Defendants and Thomas were arrested, and each was
interviewed by Officer Davidson after he informed them of their
rights. Thomas claimed that Griffin intended to sell drugs to
someone in the grocery store parking lot where they were arrested. During Jones' closing argument, the court interrupted her and
told her that she could not testify because it deprived the State
of the chance to cross-examine her. The court asked the jury to
disregard Jones' comments. The jury convicted defendants.
Defendants argue that court erred in failing 1) to allow
withdrawal of their waivers of court-appointed counsel, and 2) to
make the inquiry as to their indigency status and desire to proceed
pro se per N.C. Gen. Stat. § 15A-1242. We agree.
A criminal defendant can waive his right to be represented by
counsel so long as he voluntarily and understandingly does so.
State v. Hyatt, 132 N.C. App. 697, 700, 513 S.E.2d 90, 93 (1999).
“Once given, a waiver of counsel is good and sufficient until the
proceedings are terminated or until the defendant makes known to
the court that he desires to withdraw the waiver and have counsel
assigned to him.” Id. The defendant bears the burden of showing
the change in the desire for counsel. Id. “[T]he burden is on the
defendant not only to move for withdrawal of the waiver, but also
to show good cause for the delay.” State v. Smith, 27 N.C. App.
379, 381, 219 S.E.2d 277, 279 (1975).
This Court has granted a new trial to a defendant who had
previously waived counsel where the trial court subsequently failed
to appoint counsel after defendant “requested that the court 'get
someone to assist me in [my] case.'” State v. Graham, 76 N.C. App.
470, 474, 333 S.E.2d 547, 549 (1985); see also State v. McCrowre,
312 N.C. 478, 480, 322 S.E.2d 775, 776 (1984). In both Graham and
McCrowre, “it was determined that the defendant was entitled to anew trial because the record showed that the defendant waived his
right to appointed counsel, not to his right to all counsel.”
Hyatt, 132 N.C. App. at 701-2, 513 S.E.2d at 93. Specifically, in
both cases “there is no evidence that defendant ever intended to
proceed to trial without the assistance of some counsel.” Id. at
701, 513 S.E.2d at 93 (quoting McCrowre, 312 N.C. at 480, 322
S.E.2d at 776-77). See also Graham, 76 N.C. App. at 475, 333
S.E.2d at 549.
When a defendant clearly indicates that she desires to proceed
pro se, the trial court must inquire to determine whether
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 (2001); McCrowre, 312 N.C. at 481, 322
S.E.2d at 777. Without such an inquiry, it is error to permit
defendant to go to trial without the assistance of counsel. U.S.
Const. amend. VI; Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed. 2d
799 (1963).
Here, defendants waived their rights to court-appointed
counsel, but not their right to all counsel, on 11 December 2002.
They contend that they sufficiently brought to the court's
attention that they wanted counsel, and that the court should haveallowed them to withdraw their waivers when they came on for trial
in June 2003. For this reason, defendants contend they are entitled
to a new trial.
On 2 June 2003, defendants appeared in court without counsel.
The calendar listed a Mr. Williams as defendants' counsel, but
Jones stated that, while Mr. Williams represented her in another
matter, a Mr. Sanders represented defendants in the instant case.
The court called Mr. Williams into court that afternoon, and Mr.
Williams moved to withdraw. When the court asked defendant if she
had anything to say, Jones inquired, “I just wonder if we can get
an attorney before he withdraws.” After ascertaining the trial
schedule for the week, the court and defendant Jones had the
following exchange:
The court: Ma'am, when you can have your
lawyer come in here and make a motion to
continue, I will consider it. Otherwise it
will be for trial.
Defendant Jones: So if I can get him here for
a motion for continuance--
The court: I will look at it at that point.
I'm not telling you I'm going to continue it.
How old are these cases?
Mr. Williams: It was on the December calendar
originally.
Prosecutor: I'll tell you the date of the
offense.
The court: I would be ready for trial.
Defendant Jones: Today?
The court: Not today, probably tomorrow and
the next day.
Defendant Jones: Can I have him here in the
next day or so to do that?
The court: Not or so. Do you know how long
this court is going to last? It's probably
going to last until Friday but that is not a
guarantee. Let me explain it to you. If your
case is the next case called for trial--in
other words, if the rest of the cases
including this case and your case go by the
wayside with pleas, that is the way it's going
to be.
Defendant Jones: So you're telling me then I
won't have any representation? Because I'm
not going to be able to get him to do it--
The court: Not if you don't have a lawyer.
Defendant Jones: So that's the way justice is
going to stand? Can I get counsel?
The court: Don't interrupt me. Do you want
to go to jail for thirty days?
Defendant Jones: No, sir, I don't.
The court: Then you listen to me and listen
well. Your case is on the calendar for trial.
You either try it with or without a lawyer,
that is your choice. It is not my choice.
And you have known this case was on the--on
this trial calendar for some time. I found
out about it today. Now it makes no
difference to me how you try the case. But it
will be tried more than likely this week. Now
is there anything about that you don't
understand?
Defendant Jones: No sir.
The court then allowed Mr. Williams to withdraw.
On 4 June 2003, the cases were called for trial, and
defendants again appeared without counsel. After clarifying that
neither defendant had representation, the court asked defendants if
they were ready for trial. Defendant Jones then asked, “ We can't
ask for court-appointed, can we?” The court responded, “I thinkyou waived your right.” The trial then went forward with
defendants acting pro se.
Defendants made it clear that they were not represented and
that they did not wish to proceed without counsel. The court here
failed to either consider allowing defendants to withdraw their
waiver of court-appointed counsel or to make the required inquiry
under N.C. Gen. Stat. § 15A-1242, before letting them proceed pro
se. On this record, we conclude that the court erred and
defendants are entitled to a new trial.
New trial.
Judges GEER and THORNBURG concur.
Report per Rule 30(e).
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