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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. TIMMY LANE WALTERS
Filed: 20 March 2007
Constitutional Law_right to self-representation_timely, clear and repeated assertion_denial
The trial court erred by refusing to permit defendant to represent himself where defendant
timely asserted his right to self-representation when his case was called and stated his
dissatisfaction with appointed counsel; he reasserted his right to represent himself prior to trial
and jury selection and on numerous occasions thereafter; and defendant's counsel offered to
remain present as stand-by counsel.
Appeal by defendant from judgment entered 28 February 2006 by
Judge W. Russell Duke, Jr., in Harnett County Superior Court.
Heard in the Court of Appeals 21 February 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Anne Goco Kirby, for the State.
Jeffrey Evan Noecker, for defendant-appellant.
Timmy Lane Walters (defendant) appeals from judgment entered
after a jury found him to be guilty of second degree rape. We
reverse and remand for a new trial.
Defendant was indicted on multiple charges including second
degree rape on 6 September 2005. The case was called for trial on
27 February 2006 and defendant pled not guilty to the second degree
rape charge. Defendant pled guilty to assault on a female,
communicating threats, and interfering with emergency
communications. Before jury selection commenced, the trial court asked
defendant if he was satisfied with his court appointed lawyer.
Defendant responded, No, sir. I'm really not. The trial court
replied, Tell me about that. The following exchange occurred:
Defendant: So I'd rather just go ahead and
The Court: Well, we're not going to do that.
The Court: We're not going to do that.
Defendant: Well, I'm not satisfied with my
The Court: All right. Well, you're not
satisfied with what he is telling you, is that
Defendant: I'm not satisfied with him, period,
to be truthful to you.
The trial court then discussed with defense counsel and the
prosecutor the charges against defendant. The following exchange
The Court: Anything else?
Defense Counsel: Your Honor, I mean, I
certainly believe the defendant has a right to
represent himself if that's what he chooses.
The Court: Yes, but I believe that at this
point [defendant] hasn't shown me enough to
show that he is capable of doing that.
Before proceeding with jury selection, the trial court stated
The Court: [Defendant], you have a trained
lawyer. This is a process where, if it is
relevant material placed before the jury, the
jury will determine the truth. Your lawyer
knows the procedure. He knows the rules ofevidence. He is familiar with your case. He
is prepared to try it. You just have to trust
the procedure and the fact that you will get a
fair trial. Anything else?
Defendant did not respond.
The trial court proceeded to jury selection. After jury
selection, the trial court again addressed defendant regarding his
The Court: [Defendant], looks like over the
past two and a half hours we've been choosing
this jury you got along real well with your
lawyer, is that right?
Defendant: Well, you know, right now, yes,
The Court: Satisfied with his legal service?
Defendant: I'm satisfied with the jury we
selected, yes, sir.
The Court: Satisfied with the way he did it?
Defendant: Yes, sir.
The trial court then proceeded to trial. After the State
presented three witnesses, defendant told the trial court, I'd
like to represent myself from here on out. I feel more comfortable
representing myself from here on out[.] The trial court
responded, Your lawyer is doing a very good job. Anything else?
Defense counsel and defendant conveyed defendant's concerns to
the trial court. These concerns included photographs not being
introduced into evidence and the discovery of additional materials
from the State. The trial court recessed for the day.
The next morning, defense counsel informed the trial court
defendant wanted to again address the court about representinghimself. Defense counsel also informed the trial court about why
defendant wanted to represent himself, and stated:
I've been faced with circumstances like this
before in the past one other time that I was
released during trial, and the judge simply
asked me to stay, and if the defendant had
questions concerning law or procedure, that I
would be available to answer his questions.
It's difficult to try to help [defendant].
And the whole time he has accused me of
working with the DA[.]
Out of the presence of the jury, defendant again stated he was not
satisfied with defense counsel and wanted to represent himself.
The trial court responded:
We're burning daylight. We're wasting time .
. . . I want the record to reflect that
throughout yesterday, you and your lawyer
engaged in very constructive conversation
about the choice of the jury. You told me you
were satisfied with the jury . . . .
[Defense counsel has] [b]een practicing 16
years. He has done an excellent job so far.
Now, if you want to be stupid and try your own
case and follow my rules, because you are
going to follow the rules, whether you like
them or not, then you can be stupid and do
that. That's your choice. Or you can
continue to participate in your own defense
using a professional who has done this for
over 15 years and has done an excellent job so
far. . . . Now, you can be obstinate and you
can be stupid and you can go to prison because
you didn't listen to a professional. Or you
can do it like somebody that's smart and
participate in your defense using a
professional. Your choice. . . . Either way
you're going to play by the rules. . . . Now,
I'm going to give you about two minutes to
discuss this with your lawyer and then you
make your decision.
Defendant continued to inform the trial court the reasons why he
was not satisfied with defense counsel and stated, [defensecounsel] needs to start fighting my case. Each time defendant
asserted a reason he wanted to represent himself, the trial court
asserted an explanation for defense counsel's actions or inaction.
The following exchange occurred:
The Court: [Defense counsel] is doing it, and
doing a whale of a job. You just don't
recognize it because you don't understand it.
You have been watching too much TV. Now are
you ready to proceed?
Defense Counsel: Yes, your honor.
The Court: Bring the jury back.
Defense Counsel: Is [defendant] ready to
proceed with me as his attorney?
The Court: That's my understanding.
Defendant: Can we have a private conversation
between me and my lawyer?
The Court: Sure.
. . . .
The Court: Have you settled everything with
Defendant: We're going to go ahead and
Defendant testified and asserted consent as his defense. The
jury convicted defendant of second degree rape on 28 February 2006.
Defendant was sentenced to a minimum of ninety months and to a
maximum 117 months imprisonment. Defendant appeals.
Defendant argues the trial court erred by refusing to permit
him to exercise his constitutional right to represent himself at
III. Right to Self-Representation
Defendant contends he clearly and unequivocally asserted his
constitutional right to represent himself prior to and during trial
and argues the trial court erred by denying his right to represent
himself. We agree.
The United States Supreme Court recognized a Sixth Amendment
constitutional right for a criminal defendant to represent himself
and proceed pro se. Faretta v. California, 422 U.S. 806, 807, 45
L. Ed. 2d 562, 566 (1975). The Court held:
[T]he question is whether a State may
constitutionally hale a person into its
criminal courts and there force a lawyer upon
him, even when he insists that he wants to
conduct his own defense. It is not an easy
question, but we have concluded that a State
may not constitutionally do so.
Id.; see also U.S. Const. Amend. VI (In all criminal prosecutions,
the accused shall . . . have the Assistance of Counsel for his
In Faretta, the Court reasoned:
It is undeniable that in most criminal
prosecutions defendants could better defend
with counsel's guidance than by their own
unskilled efforts. But where the defendant
will not voluntarily accept representation by
counsel, the potential advantage of a lawyer's
training and experience can be realized, if at
all, only imperfectly. To force a lawyer on a
defendant can only lead him to believe that
the law contrives against him. Moreover, it
is not inconceivable that in some rare
instances, the defendant might in fact presenthis case more effectively by conducting his
own defense. Personal liberties are not
rooted in the law of averages. The right to
defend is personal. The defendant, and not
his lawyer or the State, will bear the
personal consequences of a conviction. It is
the defendant, therefore, who must be free
personally to decide whether in his particular
case counsel is to his advantage. And
although he may conduct his own defense
ultimately to his own detriment, his choice
must be honored out of that respect for the
individual which is the lifeblood of the law.
422 U.S. at 834, 45 L. Ed. 2d at 581 (internal quotation and
citation omitted) (emphasis supplied).
The facts before us are strikingly similar to those in
Faretta: (1) the defendant clearly and unequivocally declared to
the trial judge that he wanted to represent himself and did not
want counsel; (2) [t]he record affirmatively show[ed]
[defendant] was literate, competent, and understanding, and that he
was voluntarily exercising his informed free will; and (3)
[t]he trial judge had warned [defendant] that he thought it was a
mistake not to accept the assistance of counsel, and that
[defendant] would be required to follow all the 'ground rules' of
trial procedure. 422 U.S. at 835-36, 45 L. Ed. 2d at 582. The
United States Supreme Court concluded that under these
circumstances Faretta was deprived of his constitutional right to
conduct his own defense and vacated Faretta's conviction. Id.
Our Supreme Court has stated:
Even before the United States Supreme Court
recognized the federal constitutional right to
proceed pro se in [Faretta v. California], it
was well settled in North Carolina that a
defendant has a right to handle his own case
without interference by, or the assistance of,counsel forced upon him against his wishes.
State v. Mems, 281 N.C. 658, 670-71, 190
S.E.2d 164, 172 (1972); see N.C. Const. art.
I, § 23.
State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992); see
also State v. Morgan, 272 N.C. 97, 99, 157 S.E.2d 606, 608 (1967)
(Having been fully advised by the court that an attorney would be
appointed to represent him if he so desired, he had the right to
reject the offer of such appointment and to represent himself in
the trial and disposition of his case.); State v. McNeil, 263 N.C.
260, 267-68, 139 S.E.2d 667, 672 (1965) (The United States
Constitution does not deny to a defendant the right to defend
himself. Nor does the constitutional right to assistance of
counsel justify forcing counsel upon a defendant in a criminal
action who wants none.).
Here, defendant clearly and unequivocally declared before
trial that he wanted to represent himself and did not want
assistance of counsel when he stated, I'd rather just go ahead and
represent myself. The record shows defendant was competent,
understood, and voluntarily exercised his free will. The trial
court clearly expressed its opinion that it would be a mistake for
defendant to represent himself and warned defendant he would have
to play by the rules. Under these circumstances, defendant, like
Faretta, was deprived of his constitutional right to conduct his
own defense. Faretta, 422 U.S. at 836, 45 L. Ed. 2d at 582.
The State argues defendant cannot assert the trial court
denied him the right of self-representation because he waived this
right by electing to proceed with his attorney after requesting torepresent himself. The State relies upon United States v.
Singleton, 107 F.3d 1091 (4th Cir. 1997), cert. denied, 522 U.S.
825, 139 L. Ed. 2d 41 (1997). The State also cites other federal
appellate decisions in support of its argument. We disagree.
Our Supreme Court has stated:
State courts are no less obligated to protect
and no less capable of protecting a
defendant's federal constitutional rights than
are federal courts. In performing this
obligation a state court should exercise and
apply its own independent judgment, treating,
of course, decisions of the United States
Supreme Court as binding and according to
decisions of lower federal courts such
persuasiveness as these decisions might
State v. McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984).
The United States Court of Appeals for the Fourth Circuit stated in
Singleton, no [United States] Supreme Court case has discussed in
any detail the requirements for a waiver of the right to
self-representation. 107 F.3d at 1096. We have also not found,
or has either party cited, prior North Carolina state court
precedent on this issue.
We consider the State's argument based upon the persuasive,
but non-binding, precedent set out in Singleton, in which the court
In order to preserve both the right to counsel
and the right to self-representation, a trial
court must proceed with care in evaluating a
defendant's expressed desire to forgo the
representation of counsel and conduct his own
A trial court evaluating a defendant's request
to represent himself must traverse . . . a
thin line between improperly allowing thedefendant to proceed pro se, thereby violating
his right to counsel, and improperly having
the defendant proceed with counsel, thereby
violating his right to self-representation. A
skillful defendant could manipulate this
dilemma to create reversible error. Fields v.
Murray, 49 F.3d 1024, 1029 (4th Cir. 1995) (en
banc) (citations omitted). Of the two rights,
however, the right to counsel is preeminent
and hence, the default position. Id. at 1028;
United States v. Gillis, 773 F.2d 549, 559
(4th Cir. 1985); Tuitt, 822 F.2d at 174
(Where the two rights are in collision, the
nature of the two rights makes it reasonable
to favor the right to counsel which, if
denied, leaves the average defendant
Because of the legal preeminence of the right
to representation by counsel and the need to
maintain judicial order, we have held that
while the right to counsel may be waived only
expressly, knowingly, and intelligently, the
right to self-representation can be waived by
failure timely to assert it, or by subsequent
conduct giving the appearance of uncertainty.
Gillis, 773 F.2d at 559 (citations omitted).
Consequently, if a defendant proceeds to trial
with counsel and asserts his right to
self-representation only after trial has
begun, that right may have been waived, and
its exercise may be denied, limited, or
conditioned. Accordingly, after trial has
begun with counsel, the decision whether to
allow the defendant to proceed pro se rests in
the sound discretion of the trial court. See
Bassette v. Thompson, 915 F.2d 932, 941 (4th
Cir. 1990); United States v. Dunlap, 577 F.2d
867, 868 (4th Cir. 1978) (holding that a
defendant does not have an absolute right to
dismiss counsel and conduct his own defense
after trial has begun because of need to
minimize disruptions, to avoid inconvenience
and delay, to maintain continuity, and to
avoid confusing the jury); see also United
States v. Lawrence, 605 F.2d 1321 (4th Cir.
1979) (where represented defendant first
asserts right to self-representation only
after jury had been selected though not sworn,
decision to allow pro se representation rests
in sound discretion of trial court); Chapman
v. United States, 553 F.2d 886, 893 (5th Cir.1977) (right to self-representation may be
waived if not asserted before trial); Sapienza
v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976)
(same); United States v. Dougherty, 473 F.2d
1113, 1123 (D.C. Cir. 1972) (right to
self-representation must be recognized if it
is timely asserted, and accompanied by a valid
waiver of counsel, and if it is not itself
waived, either expressly, or constructively,
as by disruptive behavior during trial).
107 F.3d at 1096-97 (emphasis supplied).
The case before us is distinguishable from Singleton and the
other lower federal decisions cited therein, where those defendants
failed to timely assert or waive their right to self-
representation. Here, defendant timely asserted his right to self-
representation when his case was called and stated his
dissatisfaction with appointed counsel. Defendant reasserted his
right to represent himself prior to trial and jury selection and on
numerous occasions thereafter. Defendant's appointed counsel
offered to remain present as stand-by counsel while defendant
Defendant clearly and unequivocally asserted his
constitutional right to represent himself when his case was called,
prior to trial, and again after jury selection. Defendant re-
asserted his right to self-representation after the State called
three witnesses. Defendant did not waive his constitutional right
to conduct his own defense. Under these circumstances, defendant
was deprived of his constitutional right to conduct his own
, 422 U.S. at 836, 45 L. Ed. 2d at 582; Thomas
331 N.C. at 673, 417 S.E.2d at 475. After reviewing the record
before us, we cannot conclude such constitutional error washarmless beyond a reasonable doubt. We reverse and remand for a
Judges ELMORE and GEER concur.
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