Appeal by defendant from judgments entered on or about 17
August 2007 by Judge W. David Lee in Davidson County Superior
Court. Heard in the Court of Appeals 26 August 2008.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Jennie W. Hauser, for the State.
Irving Joyner, for defendant-appellant.
STROUD, Judge.
Defendant appeals from judgments entered pursuant to jury
verdicts finding him guilty of felonious breaking and entering,
habitual misdemeanor assault, second degree rape and second degree
sexual offense. Defendant contends he is entitled to a new trial
because the trial court refused to appoint an attorney to represent
him, and then failed to provide him with basic legal materials to
effectively represent himself. We disagree and conclude instead
that defendant received a fair trial, free of reversible error.
I. Background
Defendant married Lisa
(See footnote 1)
in 1995. They separated in 2004.
Defendant moved out of the house but Lisa retained custody of their
two children. On 19 November 2005 defendant forcibly entered the
home Lisa shared with the two children and forced Lisa to have sex
with him. Lisa reported the incident to the police and defendant
was arrested on 20 November 2005.
On or about 21 November 2005, Lori I. Hamilton-Dewitt was
appointed to represent defendant. On 12 December 2005, defendant
wrote a letter to Ms. Hamilton-Dewitt, stating, “I, Reginald
Rogers, notice the conflict of interest in my case with your
representation, so in others [sic] words YOU ARE FIRED!” (Emphasis
in original.) In response, Ms. Hamilton-Dewitt filed a motion to
withdraw from representation of defendant based on her belief that
defendant had “unequivocally terminated the attorney-client
relationship in writing.” The motion to withdraw was granted on 19
December 2005.
On 21 December 2005, the trial court appointed Paul Bollinger
to represent defendant. By a letter dated 4 January 2006
defendant fired Mr. Bollinger for “conflict of interest and
insignificant counsel.” On the very next day, defendant fired Mr.
Bollinger again, on the grounds of “racial tensions” and
“unprofessional conduct.” Mr. Bollinger also moved to withdraw as
counsel. On 9 January 2006 defendant was indicted by the Davidson
County Grand Jury for second degree rape, felonious breaking and
entering, assault on a female, and habitual misdemeanor assault.
At a hearing held 11 January 2006, the trial court specifically
inquired into defendant's reasons for writing the letters accusing
Mr. Bollinger for racism. Defendant responded that “my wife [Lisa]
is a Caucasian and I am [a] black African American . . . [and
because of] the Kobe Bryant case . . . I felt that [an African-
American] should represent me on these charges.” The trial court
found no “evidence whatsoever that . . . Mr. Bollinger [had]
expressed any racist comments toward [defendant].” Accordingly the
trial court denied the motion to withdraw and directed defendant to
cooperate with his attorney.
Within two weeks after the 11 January 2006 hearing, defendant
wrote five more letters purporting to fire Mr. Bollinger on the
grounds of racism. On 31 January 2006 Mr. Bollinger again moved to
withdraw as counsel. At a hearing held 7 February 2006, the trial
court denied defendant's request for a new court-appointed lawyer,
advising defendant of his right to represent himself and his right
to a court-appointed attorney, but not a court-appointed attorney
of defendant's choice. The trial court gave defendant the choice
of accepting Mr. Bollinger's representation or proceeding
pro se.
Defendant chose to proceed
pro se. The trial court granted the
motion to withdraw and appointed Mr. Bollinger as standby counsel. On 9 February 2006
(See footnote 2)
the State moved the trial court to
withdraw defendant's jail phone privileges. After granting the
State's motion, the trial court set the trial date for 13 March
2006 and again inquired if defendant wanted a lawyer to represent
him. Defendant insisted on court-appointed representation but
refused the appointment of Mr. Bollinger. The trial court noted,
“I shouldn't do this[,]” before removing Mr. Bollinger completely
from the case and appointing Jim McMillan to represent defendant.
On 4 April 2006, Mr. McMillan moved to withdraw from representing
defendant on the grounds that he had previously represented one of
the State's witnesses. The trial court allowed the motion and
appointed David Freedman as defendant's counsel.
From 21 April 2006 through 16 July 2007, defendant wrote a
number of letters to the Davidson County Clerk of Court requesting
that his case be set for trial, some of which included complaints
regarding the services of Mr. Freedman. On 25 July 2007, the
Davidson County Grand Jury indicted defendant for second degree
sexual offense, also arising out of the events on 19 November 2005.
Defendant sent a letter dated 26 June 2007 to notify Mr. Freedman
that he had been fired as defendant's counsel. On 5 July 2007
defendant appeared before Judge Wayne L. Michael and executed a
“voluntary, knowing and intelligent” waiver of the right to
assistance of counsel with regard to the second degree sexual
offense charge. On 10 July 2007 Mr. Freedman filed a motion requesting that he
be allowed to withdraw as counsel for defendant because of
defendant's termination letter and because defendant had filed a
complaint with the State Bar regarding Mr. Freedman's
representation. On 16 July 2007 Judge Steve Balog held a hearing
on the matter, at which he conducted a thorough inquiry into
defendant's desire to proceed
pro se and advised him of the dangers
of so doing. After the inquiry, defendant waived assistance of
counsel in open court and declared that he wanted to represent
himself. Defendant then executed a written Waiver of Counsel. The
trial court appointed Shawn Fraley to serve as standby counsel.
The trial court recommended a trial date of 8 October 2007 to give
defendant “enough time to be prepared for trial[.]” However, at
defendant's request and with the State's consent, the trial was set
for the 13 August 2007 term of superior court On 17 July 2007
defendant wrote a letter to the court complaining that “Mr. Shawn
Fraley is of no help[.]” The trial court held an administrative
hearing regarding discovery in defendant's case on 20 July 2007.
At the hearing defendant again indicated his desire to proceed
pro
se. The trial court then conducted a careful and thorough inquiry,
advising defendant of the seriousness of the charges he faced and
of the benefits of being represented by counsel. At the end of the
trial court's inquiry, defendant was asked, “What do you wish to
do?” Defendant replied, “I wish to represent myself totally.”
Defendant then executed another Waiver of Counsel. On 13 August 2007 defendant's case was called for trial as
defendant had requested before Judge Balog on 16 July 2007. The
State moved to join for trial 05CRS61448, felonious breaking and
entering; 05CRS61449, assault on a female and habitual misdemeanor
assault; 05CRS61451, second degree rape; and 07CRS5067, second
degree sexual offense, because all four offenses were from the same
transaction and supported by the same operative facts. When the
trial court asked if defendant objected to the charges being joined
for trial, he responded, “I didn't have adequate time to prepare
for this” and moved for continuance on the grounds that he had not
timely received evidence of photographs and lab reports from the
State and had not had time to obtain all his witnesses. The trial
court then conducted a thorough hearing, found “that either
counsel, who were then counsel of record, or the defendant were
timely provided information by the State with respect to all of
these matters,” that there were no material witnesses within the
trial court's jurisdiction who could not be brought to the court,
and denied the motion to continue the trial. The trial court then
held a hearing on defendant's motion to suppress evidence.
Just before the trial court adjourned for the day, defendant
moved in open court to withdraw his waiver of counsel:
THE DEFENDANT: I have one question. I feel
like I want to know if I can religuish [sic]
my six [sic] amendment right to counsel, you
know --
THE COURT: My understanding is that you have
relinquished your six [sic] amendment right to
counsel.
THE DEFENDANT: I'm saying for the State to
appoint me [an attorney], I mean, for the
Court to appoint me one.
. . . .
THE COURT: You have been through how many
lawyers?
THE DEFENDANT: I have this new evidence of
medical stuff [lab reports] that I don't
understand. I found I'm incompetent to do the
trial.
THE COURT: I will not delay the trial for
[the] issue of attorneys.
. . . .
THE DEFENDANT: With regard to the medical
report, I don't understand these papers and
charge itself. It has graphs that I don't
understand. I need a medical expert or some
type of forensic examiner to look at this
stuff to go over with me to understand it. . .
. I need a court-appointed attorney, I want to
do this case but I don't have the knowledge
and know how to see, you know, I am just
asking, could you court [sic] appoint me an
attorney for this case?
The trial court took the motion under advisement until the next
day, taking time to review defendant's file that evening.
On 14 August 2007, the trial court again heard from defendant
on the issue of waiver of counsel. The trial court made extensive
findings of fact before concluding in open court “that there has
been a forfeiture of counsel on [defendant's] part, [and] there is
no good reason to set aside the last waiver that [defendant]
executed on July the 20th[.]” On 16 August 2007, the trial court
entered a written order nunc pro tunc 14 August 2007 “den[ying]
defendant's oral motion for appointed counsel.” Defendant was tried before a jury from 14 to 17 August 2007 in
Superior Court, Davidson County. On 17 August 2007 the jury
returned guilty verdicts for felonious breaking and entering,
habitual misdemeanor assault, second degree rape and second degree
sexual offense. Defendant was sentenced to consecutive sentences
of 11 to 14 months for felonious breaking and entering, 11 to 14
months for assault on a female and habitual misdemeanor assault,
and 133 to 169 months for second degree rape and second degree
sexual offense. Defendant was also ordered to enroll in lifetime
monitoring as a sex offender at the completion of his sentence.
Defendant appeals.
II. The Right to Counsel
Defendant contends that the trial court erred by (1)
appointing a substitute counsel at defendant's request, and (2)
denying defendant the right to counsel.
A. Substitute Counsel
Defendant cites
State v. Thacker, 301 N.C. 348, 271 S.E.2d 252
(1980) to argue that a trial court must conduct “careful scrutiny”
before it
grants substitute counsel to a defendant who requests it.
Defendant reasons that he is entitled to a new trial on this basis
because
there were no facts presented in the record
which support Judge Balog's several earlier
decisions to replace the Attorneys who were
appointed to represent [defendant]. Judge
Balog's actions represented a mere surrender
and concession to [defendant's] assertions
that he did not want to be represented by the
Attorneys appointed to him and these decisions
were not supported by . . . careful scrutiny.
However,
Thacker affords defendant no relief for two reasons.
First,
Thacker expressly rejected the defendant's argument that
“that failure to make a
detailed inquiry [into an alleged conflict
with appointed counsel] amounts to
a per se violation of
defendant's right to counsel[,]” 301 N.C. at 353, 271 S.E.2d at 255
(emphasis added), holding that “when faced with a claim of conflict
and a request for appointment of substitute counsel, the trial
court must satisfy itself only that present counsel is able to
render competent assistance and that the nature or degree of the
conflict is not such as to render that assistance ineffective[,]”
id., 271 S.E.2d at 256. Second, in
Thacker, the defendant's
request for substitute counsel was
denied.
Id. In the case
sub
judice, defendant's requests for substitute counsel were
granted
three different times, and “[a] defendant is not prejudiced by the
granting of relief which he has sought . . . .” N.C. Gen. Stat. §
15A-1443(c) (2007). Accordingly, this argument is overruled.
B. Denial of Appointed Counsel
The trial court set forth two alternative legal grounds for
its order denying defendant's request for appointed counsel: (1)
defendant “clearly, unequivocally, and knowingly waived his right
to counsel after being fully informed by the Court as required by
G.S. 15A-1242 [and] failed to offer sufficient evidence on which
the Court might consider setting aside the waivers previously
executed by the defendant[;]” and (2) “defendant has engaged in an
obvious and consistent pattern of purposely and willfully
undertaking to discharge appointed counsel, thereby obstructing,delaying and frustrating the orderly process of his court
proceedings . . . result[ing] in his forfeiture of right to
counsel.”
Defendant argues vigorously that the trial court's legal
conclusion of forfeiture was error because:
In each of these so called “firing
situations,” the Presiding Judges chose,
without a hint of scrutiny, to relieve counsel
and appoint another attorney. . . . [T]he
Judge's [sic] decisions to change counsel were
not justified. Appellant should not be held
responsible or punished for unjustified
actions taken by a Presiding Judge. . . . It
was those past improper decisions by other
Judges which allowed for the appointment of a
succession of counsels, but not because of
Appellant's conduct that Judge Lee relied upon
in reaching his determination that Appellant
had forfeited his right to the invaluable
right to counsel. . . . Appellant was
appointed five attorneys to assist him in
preparing and presenting his defense. The
exact reasons that the Court allowed
withdrawals is not clear. . . . No reasonable
explanation existed to explain why any of the
court appointed attorneys were allowed to
withdraw . . . .
However, forfeiture was an alternative basis for the trial
court's decision; the trial court also concluded that defendant's
withdrawal of his waiver of the right to counsel was ineffective.
This distinction is important because “courts must indulge every
reasonable presumption against” the forfeiture of a constitutional
right by misconduct,
Illinois v. Allen, 397 U.S. 337, 343, 25 L.
Ed. 2d 353, 358 (1970) (holding that the defendant forfeited his
constitutional right to be present at his own trial when he tore up
his attorney's files and threatened the trial judge);
see also
State v. Montgomery, 138 N.C. App. 521, 525, 530 S.E.2d 66, 69(2000) (releasing two court-appointed counsels, disrupting the
courtroom on two occasions and assaulting a privately retained
attorney was sufficient misconduct to forfeit the right to
counsel). On the other hand, the defendant bears the “burden of
showing sufficient facts entitling him to a withdrawal of the
waiver of right to counsel[.]”
State v. Atkinson, 51 N.C. App.
683, 686, 277 S.E.2d 464, 466 (1981). Furthermore, when a
defendant waits until near the beginning of his trial to move to
withdraw his waiver of the right to counsel, as here, “the burden
is on the defendant . . . to show good cause for the delay.”
State
v. Smith, 27 N.C. App. 379, 381, 219 S.E.2d 277, 279 (1975);
see
also Atkinson, 51 N.C. App. at 686, 277 S.E.2d at 466.
The trial court must weigh the cause for which defendant
requests to withdraw his waiver, with due consideration to the
defendant's timing of the motion and the court's need to conduct
its business in an orderly and timely fashion.
State v. Hoover,
174 N.C. App. 596, 598, 621 S.E.2d 303, 305 (2005) (finding no
error in the denial of a motion to withdraw waiver of counsel when
the “defendant had four counsel appointments and requested change
of counsel four times in approximately eighteen months[,] sought to
withdraw his waiver of counsel two weeks prior to the beginning of
trial[, and] failed to clearly state a request to withdraw his
waiver of counsel”),
cert. denied, 360 N.C. 488, 632 S.E.2d 766
(2006);
Atkinson, 51 N.C. App. at 686, 277 S.E.2d at 466;
Smith, 27
N.C. App. at 381, 219 S.E.2d at 279 (“In this case the defendant
delayed until the day his case was scheduled for trial beforemoving to withdraw the waiver and have counsel assigned. If this
tactic is employed successfully, defendants will be permitted to
control the course of litigation and sidetrack the trial.”). The
trial court's denial of a motion to withdraw a waiver of the right
to counsel is reviewed for abuse of discretion.
State v.
Blankenship, 337 N.C. 543, 553, 447 S.E.2d 727, 733 (1994),
overruled on other grounds, State v. Barnes, 345 N.C. 184, 230, 481
S.E.2d 44, 69 (1997);
accord U.S. v. Woodard, 291 F.3d 95, 111 (1st
Cir. 2002) (“In light of [the trial] court's superior vantage point
for evaluating matters such as these, we owe considerable deference
to that finding.” (Citation and quotation marks omitted.)).
Defendant argued to the trial court that the assistance of
counsel became necessary when he was faced at the last minute with
lab reports that he did not understand. However, the record shows
that when the specific issue of the State's provision of lab
reports and other discovery came before the trial court during the
hearing on 20 July 2007, the following colloquy ensued:
THE COURT: You apparently deny that you have
gotten all of your discovery?
THE DEFENDANT: Yes, sir, I do.
THE COURT: So the DA will make an effort to
research all the discovery materials on you
through your standby counsel.
THE DEFENDANT: I don't want counsel. I want
to represent myself. I deny counsel. I waive
counsel right now because there is problems
[sic] right now. . . . I don't want a standby
counsel. I want to represent myself and
control my own fate and destiny.
Additionally, though the lab reports themselves do not appear in
the record, during the hearing on defendant's motion to suppress on
23 July 2007, the trial court noted that “Defendant's Exhibit 8 is
a copy of a case supplement report [from the S.B.I.], Defendant's
Exhibit Number 9 is a laboratory disposition of report.” Because
defendant flatly refused standby counsel for the purpose of
researching discovery materials and because there is evidence in
the record that defendant had copies of the materials related to
the lab reports in advance of the trial, we conclude the trial
court did not abuse its discretion when it concluded that defendant
“failed to offer sufficient evidence on which the Court might
consider setting aside the waivers previously executed by the
defendant.”
The record further indicates that defendant did not show any
good cause for waiting until the eve of his trial to move to
withdraw his waiver of counsel. Defendant had already delayed his
trial for months as he fired three different appointed attorneys
and a standby counsel. The judges before whom defendant appeared
worked hard to accommodate defendant, protect defendant's right to
counsel and bring the case to trial in a timely manner. In fact,
before denying defendant's motion to withdraw his waiver of
counsel, the trial court noted:
It is amazing to me. I haven't [in] the
time that I have been on the bench seen this
effort on the part of judges and lawyers to
offer assistance to a defendant. I really
haven't seen it. I haven't seen it in the
time I have been on the bench. You have the
best in the State.
Because we conclude that defendant did not show either
sufficient facts supporting his motion to withdraw the waiver of
counsel or good cause for his delay in seeking to withdraw his
waiver, we hold the trial court did not abuse its discretion when
it denied defendant's eleventh hour motion to withdraw his waiver
of counsel. Accordingly, this argument is overruled.
III. Provision of Legal Materials to Pro Se Defendant
Defendant further contends that he is entitled to a new trial
because “[t]he many rules and procedures which licensed attorneys
have been educated and trained to understand and apply became a
court imposed axe which swung with vengeance against this Appellant
as he struggled mightily against every odd to present his case and
have his day in court.” Defendant acknowledges that “[t]he general
rule is that an individual who represents himself is held to the
same standards and knowledge as that of a licensed attorney[,] but
contends that “[w]hile this standards [sic] might properly apply to
many
pro se litigants, he [sic] should not be literally applied in
this case[,]” because defendant did not have access to “any
information, documents or books regarding the North Carolina Rules
of Evidence or trial practice and strategy materials” during his
pre-trial incarceration.
Defendant's brief concedes that “Appellant can not make the
claim that our Court has declared that these materials are required
by North Carolina statutes or [the] [C]onstitution to be presented
to an un-represented defendant[,]” but argues the spirit of the
constitutional rights to counsel, confrontation, due process, andfreedom from cruel and unusual punishment require that “the Court
should provide basic legal materials to an incarcerated defendant
who is representing himself.”
To the contrary, this Court has held that
[w]hen a defendant elects to represent himself
in a criminal action, the trial court is not
required to abandon its position as a neutral,
fair and disinterested judge and assume the
role of counsel or advisor to the defendant.
The defendant
waives counsel at his peril and
by so doing acquires no greater rights or
privileges than counsel would have in
representing him.
State v. Brincefield, 43 N.C. App. 49, 52, 258 S.E.2d 81, 83-84,
disc. review denied, 298 N.C. 807, 262 S.E.2d 2 (1979) (emphasis
added). Defendant chose to represent himself over the advice of
more than one judge who sought to warn him of the seriousness of
the charges against him and the perils of proceeding
pro se. The
trial court could not force defendant to accept representation if
he did not want it.
Faretta v. California, 422 U.S. 806, 836, 45
L. Ed. 2d 562, 582 (1975);
Thacker, 301 N.C. at 354, 271 S.E.2d at
256. We concluded
supra that defendant did not offer the court a
sufficient reason to withdraw his wavier of counsel. Four times
the trial court appointed counsel for defendant, one time counsel
was required to withdraw on account of a conflict of interest,
defendant “fired” the other three for no good reason appearing in
the record. Defendant made his choice, as was his constitutional
right. He is entitled to no special exception for the quality of
his particular self-representation or his lack of access to legal
materials.
See Brincefield, 43 N.C. App. at 52, 258 S.E.2d at 84(“Whatever else a defendant may raise on appeal, when he elects to
represent himself he cannot thereafter complain that the quality of
his own defense amounted to a denial of effective assistance of
counsel.”). Accordingly, this argument is overruled.
IV. Conclusion
The trial court did not abuse its discretion when it denied
defendant's motion to withdraw waiver of counsel. Furthermore,
defendant may not complain on appeal that his self-representation
was inadequate. Defendant received a fair trial, free of
prejudicial error.
No Error.
Judges McGEE and McCULLOUGH concur.
Footnote: 1