STATE OF NORTH CAROLINA
v
.
Rowan County
Nos. 04 CRS 54573
EUGENE LITTLE 04 CRS 12112
Attorney General Roy Cooper, by Special Deputy Attorney
General Marc Bernstein, for the State.
Staples Hughes, Appellate Defender, by Katherine Jane Allen,
Assistant Appellate Defender, for Defendant-Appellant.
STEPHENS, Judge.
Eugene Little (“Defendant”) appeals from judgments entered
consistent with jury verdicts finding him guilty of obtaining
property by false pretense and of being an habitual felon.
Defendant contends the trial court (1) violated his right to due
process when Defendant failed to receive notice of the bill of
indictment for the offense of obtaining property by false pretense;
(2) committed reversible error by permitting Defendant to proceed
pro se; and (3) committed plain error by not complying with the
statutory mandates of North Carolina General Statutes Section
15A-1242. For the reasons stated herein, we find no error by the
trial court. The State presented evidence tending to show that on 6 May
2004, Defendant entered “A Friend Indeed” check cashing service in
Salisbury, North Carolina. Defendant presented the cashier, Amy
Wallace (“Wallace”), with a check for $2,656.67 from Blue
Cross/Blue Shield (“BCBS”) payable to Defendant. Wallace confirmed
that the payor linked to the routing number on the check was in
fact BCBS and took a photograph of Defendant. Defendant also made
a thumb print on the check when directed to do so by Wallace.
Wallace paid the amount of the check to Defendant, minus the five
percent fee retained by “A Friend Indeed” for cashing an insurance
check.
The bank refused to honor the check when “A Friend Indeed”
presented it for payment because the amount written on the check as
well as the payee did not match the information provided by BCBS in
their positive pay system used to verify checks. The check was
originally issued by BCBS for $656.67 payable to Piedmont Digestive
Disease.
Rita Rule, an investigator with the Salisbury Police
Department, testified the check was reported missing or stolen from
the mailbox of a medical facility. Investigator Rule further
testified that an examination of the check revealed the check had
been “washed,” meaning the payee and amount of the check had been
altered or changed. Investigator Rule also stated she had
investigated several similar checks in other recent cases involving
a street gang from Charlotte who stole checks from medical
facilities and used homeless people to cash them. Defendant testified he met a woman who told him her husband
left her and she needed a male to help her cash a check. After
Defendant agreed to help, the woman drove Defendant to “A Friend
Indeed” and gave him the check with Defendant's name on it.
Defendant testified he gave the entire proceeds of the check to the
woman.
The jury found Defendant guilty of obtaining property by false
pretense and being an habitual felon. Defendant was sentenced to
90 to 117 months of imprisonment. Defendant appeals.
Defendant first contends his due process rights were violated
when the trial court failed to give him notice that an indictment
was returned and when it failed to give a copy of the indictment to
him prior to trial. Defendant argues the lack of notice violated
his constitutional right to due process of law because it prevented
him from being informed of the charges against him. Defendant
contends he based his defense at trial on his arrest warrant, which
alleged Defendant altered the original amount of the check, and as
a result he was unable to effectively prepare his defense for
trial.
Defendant's complaint that his due process rights were
violated is a constitutional claim. “[C]onstitutional error will
not be considered for the first time on appeal.” State v. Chapman,
359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005)(citing State v.
Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001) and State v. Cummings,
352 N.C. 600, 536 S.E.2d 36 (2000), cert. denied, 532 U.S. 997, 149
L. Ed. 2d 641 (2001)). As Defendant never raised the issue of aviolation of his due process rights at trial, he is precluded from
raising it on appeal. State v. Jones, __ N.C. App. __, __, 627
S.E.2d 265, 269 (2006). Accordingly, we decline to consider
Defendant's due process argument.
Next, Defendant argues the trial court failed to comply with
the statutory mandates of North Carolina General Statutes Section
15A-1242 in allowing him to proceed pro se. Defendant contends
that the trial court did not make a sufficient inquiry as to
whether his waiver of counsel was knowingly, intelligently, and
voluntarily made. Defendant argues it was obvious at trial that he
believed he was charged with forgery rather than obtaining property
by false pretense. Defendant cites this evidence as proof he did
not comprehend the charges against him.
A defendant may proceed pro se
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 (2005).
In the present case, the trial court held a waiver of counsel
hearing on 3 November 2004. After noting that Defendant had signed
a waiver of counsel, the court engaged Defendant as follows: THE COURT: . . . . Now, you have waived your
right to counsel on September 9 of this year.
That is, court-appointed counsel. You have
the perfect right to hire your own attorney.
Is that what you want to do?
DEFENDANT LITTLE: Well, I can't afford to.
THE COURT: All right. Do you wish to ask the
Court for a court-appointed attorney?
DEFENDANT LITTLE: No, sir, I will not.
THE COURT: All right. Let me _- let me advise
you then as to, once again, you understand
that you're charged in this case with
Obtaining Property by False Pretenses? That's
a Class H felony. The maximum punishment for
that is 30 months. The State intends to
indict you for being _- to having a status of
habitual felon. The maximum punishment for
that, depending on your record, could amount
to as much as 261 months. Knowing that, sir,
do you wish to _- now, first of all, if you do
not have an attorney and cannot afford an
attorney, and you want an attorney, the Court
will appoint one. You may proceed without an
attorney or you may hire an attorney. What do
you wish to do about an attorney now knowing
that the State intends to obtain an indictment
for being a[n] habitual felon?
DEFENDANT LITTLE: Well, sir, if I can afford,
I would like to hire one, but I can't afford
one, so I might as well proceed without one
due to the public defenders do not give you
all _- they do not represent you properly.
THE COURT: Okay, my question _- my question is
this. Do you want to apply for court-
appointed counsel, yes or no?
DEFENDANT LITTLE: No, sir.
THE COURT: All right, then. Sign a waiver of
court-appointed counsel, again.
(Defendant signs waiver.)
THE COURT: Swear him, please.
(Waiver sworn to by Defendant.)
The waiver of counsel form signed and sworn to by Defendant readsas follows:
As the undersigned party in this action, I
freely and voluntarily declare that I have
been fully informed of the charges against me,
the nature of and the statutory punishment for
each such charge, and the nature of the
proceedings against me; that I have been
advised of my right to have counsel assigned
to assist me and my right to have the
assistance of counsel in defending against
these charges or in handling these
proceedings, and that I fully understand and
appreciate the consequences of my decision to
waive the right to assigned counsel and the
right to assistance of counsel.
I freely, voluntarily and knowingly declare
that:
(check only one)
1. I waive my right to assigned counsel and
that I, hereby, expressly waive that right.
x 2. I waive my right to all assistance of
counsel which includes my right to assigned
counsel and my right to the assistance of
counsel. In all respects, I desire to appear
in my own behalf, which I understand I have
the right to do.
The trial judge then certified the waiver as follows:
I certify that the above named defendant has
been fully informed in open court of the
charges against him/her, the nature of and the
statutory punishment for each charge, and the
nature of the proceeding against the defendant
and his/her right to have counsel assigned by
the court and his/her right to have the
assistance of counsel to represent him/her in
this action; that the defendant comprehends
the nature of the charges and proceedings and
the range of punishments; that he/she
understands and appreciates the consequences
of his/her decision and that the defendant has
voluntarily, knowingly and intelligently
elected in open court to be tried in this
action:
(check only one)
1. without the assignment of counsel.
x 2. without the assistance of counsel, which
includes the right to assigned counsel and the
right to assistance of counsel.
Defendant argues the trial court failed to sufficiently
inquire whether Defendant comprehended the nature of the charges
and proceedings against him. See N.C. Gen. Stat. § 15A-1242(3).
The trial court, however, clearly informed Defendant that he was
charged with obtaining property by false pretense and of the
State's intention to seek an habitual felon indictment, along with
the possible punishment he faced if he were found guilty. It also
informed Defendant of his right to appointed counsel. Despite this
information, Defendant declined a court-appointed attorney due to
his belief that such an attorney would “not represent [him]
properly.” Defendant signed and swore to the written waiver, which
the trial court then certified. “[W]here both the defendant and
trial judge properly completed the form, the signed and certified
written waiver creates a presumption that the waiver was knowing,
intelligent and voluntary.” State v. Hill, 168 N.C. App. 391, 396,
607 S.E.2d 670, 673, disc. review denied, 359 N.C. 324, 611 S.E.2d
839 (2005)(citing State v. Kinlock, 152 N.C. App. 84, 89-90, 566
S.E.2d 738, 741 (2002), aff'd, 357 N.C. 48, 577 S.E.2d 620 (2003)).
Although the trial court never directly asked Defendant if he was
“aware of the nature of the charges and proceedings,” the trial
court clearly informed him of the nature of the charges and the
potential punishment he faced. See Hill, 168 N.C. App. at 397, 607
S.E.2d at 674 (holding that the trial court complied with thestatutory mandates of section 15A-1242 although it made no inquiry
into whether the defendant was aware of the nature of the charges
and proceedings against him where the charges were read in open
court and the defendant understood the possible punishment he
faced).
Defendant nevertheless argues it was apparent at trial that he
believed he was charged with forgery, in addition to the charges of
obtaining property by false pretense and habitual felon status.
While Defendant's assertion may be correct, it does not alter the
sufficiency of the trial court's inquiry under N.C. Gen. Stat. §
15A-1242. Although Defendant may have been confused as to what
elements constitute the crime of obtaining property by false
pretense, the court had no duty to assess Defendant's technical
legal knowledge. State v. LeGrande, 346 N.C. 718, 726, 487 S.E.2d
727, 731 (1997), reh'g denied, 351 N.C. 365, 542 S.E.2d 650
(2000)(“[A] defendant's technical legal knowledge is not relevant
to the determination of whether he knowingly waives the right to
counsel.”)(citing Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d
562 (1975)). Having carefully reviewed the hearing transcript, we
conclude that the trial court complied with the requirements of
N.C. Gen. Stat. § 15A-1242 in determining that Defendant
“voluntarily, knowingly and intelligently” waived his right to
counsel. Accordingly, we overrule these assignments of error.
In conclusion, we find no error by the trial court.
NO ERROR.
Judges McGEE and HUNTER concur. Report per Rule 30(e).
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