STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 03 CRS 235909
MICHAEL DEVON BLOOMFIELD,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Mary S. Mercer, for the State.
Bryan Gates, for defendant-appellant.
HUDSON, Judge.
Defendant was charged by warrant with communicating threats.
From a conviction in district court, he appealed to superior court,
where a jury
found him guilty. The court sentenced him to an
active term of 120 days.
The issue presented by defendant's sole assignment of error is
whether the court conducted adequate inquiry pursuant to N.C. Gen.
Stat. § 15A-1242 before allowing defendant to proceed pro se. The
record shows the following transpired at the call of the case for
trial:
THE COURT: Is there anything before we bring
in the jury?
MR. OSHO: Yes, Your Honor. Before the jury
does come in, Your Honor, in District Court myclient tried this case on his own. And I
think he's a very intelligent young man and he
knows his case better than anybody else, and
I'd ask the Court just that I should be a
stand by to, you know, assist him in any way
that he wants to. I don't know if the Court
wants to make inquiry of that as to that
decision. He told me that's what he wants to
do and I'd like the Court to establish that
before we begin this.
THE COURT: All, right, Mr. Bloomfield, you've
got a lawyer, Mr. Lucky Osho. Stand up, sir.
THE DEFENDANT: Yes, sir.
THE COURT: Do you intend to represent yourself
in this case or are you going to have Mr. Osho
represent you?
THE DEFENDANT: I intend on doing it myself,
Your Honor, as long as Mr. Osho can be stand
by if Your Honor please.
THE COURT: All right. I don't know that I
totally understand. Mr. Osho, are you
appointed to represent him or _
MR. OSHO: Yes, sir, I was appointed.
THE COURT: And, Mr. Bloomfield, you're now
saying that you do not wish to have a court-
appointed lawyer and you want to represent
yourself in this case?
THE DEFENDANT: Yes, Your Honor, if that would
please the Court, yes, sir.
THE COURT: But you say you still want Mr. Osho
to stand by, is that right?
THE DEFENDANT: If that's possible, yes, Your
Honor, in case I have any questions.
THE COURT: I'm going to allow you to do that.
You certainly have the right to represent
yourself and not have a lawyer.
But do you understand by making that choice,
Mr. Osho's not going to be able to step in for
you and start asking questions? It's either
going to be one way or another. Either Mr.Osho's going to ask all the questions and
either he's going to be the lawyer, or you're
going to be your own lawyer and represent
yourself and you're going to have to ask all
the questions.
And do you understand also, sir, that you're
going to be bound by the same rules of conduct
that a lawyer would?
THE DEFENDANT: Yes.
THE COURT: You're going to be bound by the
same rules of evidence and everything else
that a lawyer would be. I'm not going to give
you any special favors or anything else just
because you don't know what to do.
THE DEFENDANT: Yes, sir, I understand. I
understand, Judge Poovey.
THE COURT: All right, if you all would take
your seats.
MR. OSHO: Yes, sir.
THE COURT: Is there anything else before we
bring in the jury?
THE DEFENDANT: No, Your Honor.
N.C. Gen. Stat. § 15A-1242 mandates the following inquiry before a
court may allow a defendant to proceed in propria persona:
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 (2004). The Supreme Court has held that
a court's failure to conduct the statutory inquiry requires
reversal. State v. Bullock, 316 N.C. 180, 186, 340 S.E. 2d 106,
109 (1986). The availability or participation of standby counsel
does not excuse the failure to make the inquiry. State v. Dunlap,
318 N.C. 384, 389, 348 S.E.2d 801, 805 (1986). Although the court
did inquire into the defendant's understanding of the role of
standby counsel, the colloquy does not satisfy all of the statutory
requirements. The court's inquiry here fails to establish that the
court “clearly advised” defendant of his right to assistance of
counsel and does not show that defendant comprehended either the
nature of the charges and proceedings or the range of permissible
punishments. Because the court's inquiry failed to comply with the
dictates of N.C. Gen. Stat. § 15A-1242, defendant is entitled to a
new trial. State v. Pruitt, 322 N.C. 600, 604, 369 S.E.2d 590, 593
(1988)(holding the defendant was entitled to new trial when the
inquiry failed to establish defendant understood the consequences
of representing himself, the nature of the proceedings, and the
range of permissible punishments).
New trial.
Judge MCGEE concurs.
Judge LEVINSON concurs with separate opinion.
Report per Rule 30(e).
STATE OF NORTH CAROLINA
v
.
Mecklenburg County
No. 03CR235909
MICHAEL DEVON BLOOMFIELD
LEVINSON, Judge concurring.
I agree with the majority that nothing in the record,
including the district court judgment, reflects that defendant was
aware of the “range of permissible punishments” for the offense of
communicating threats. Unlike the majority, however, I am
satisfied that the remaining requirements of N.C.G.S. § 15A-1242
(2003) were met.
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