State v. Bines, 444

• Decision Date: 25 November 1964
• Docket Number: No. 444,444
• Citation: 138 S.E.2d 797,263 N.C. 48
• Court: North Carolina Supreme Court
• Parties: STATE, v. Robert BINES.

Page 797

138 S.E.2d 797

263 N.C. 48

STATE, v. Robert BINES.

No. 444.

Supreme Court of North Carolina.

Nov. 25, 1964.

T. W. Bruton, Atty. Gen., Harry W. McGalliard, Deputy Atty. Gen., James F. Bullock, Asst. Atty. Gen., for the State.

Harold D. Coley, Jr., Raleigh, for defendant appellant.

HIGGINS, Justice.

The defendant raises three questions on this appeal: (1) Did the court violate the defendant's constitutional rights by permitting the State to proceed against the defendant after the two co-defendants had withdrawn their pleas of not guilty and entered pleas of guilty during the trial? (2) Did the court violate defendant's constitutional rights by failing to reiterate the seriousness of the charges and to allow him to reconsider his waiver of counsel after the other defendants had changed their pleas? (3) Did the defendant intelligently and understandingly waive his right to have counsel appointed for his defense?

The record discloses that Judge Hobgood was careful to advise the defendant of the charges against him and the permissible punishment in case of conviction. With this full understanding, the appellant waived appointment of counsel and stated his desire to appear in all respects in his own behalf. The defendant's waiver of counsel in this case is not the act of an immature or inexperienced person unfamiliar with criminal court procedure. According to his own admission, he had served eight prison sentences totaling approximately 20 years as a result of convictions for violations of criminal laws dating back to 1936. 'The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. 'The record must show, or there must be an allegation in evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.' Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. 'The constitutional right (to counsel), of course, does not justify forcing counsel upon an accused who wants none.' Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167; Com. of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126.

The court did not commit error in permitting the defendant to begin the trial in this case without counsel, in view of his intelligent, specific, and unequivocal waiver. G.S. § 15-4.1.

Did the court commit error in permitting the State to continue the case against the appellant after McClain and Bost charged their pleas? The appellant had no right to require to co-defendants to continue their unequal contest with the State. The course of the trial, insofar as the appellant was concerned, did not change in any respect. Neither of his co-defendants testified for the State. Their pleas of guilty did not deprive the...