State v. Brooks

• Decision Date: 07 October 1980
• Docket Number: No. 8029SC67,8029SC67
• Citation: 270 S.E.2d 592,49 N.C.App. 14
• Parties: STATE of North Carolina v. Wayne Haywood BROOKS.
• Court: North Carolina Court of Appeals

Page 592

270 S.E.2d 592

49 N.C.App. 14

STATE of North Carolina v. Wayne Haywood BROOKS.

No. 8029SC67.

Court of Appeals of North Carolina.

Oct. 7, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Archie W. Anders, Raleigh, for the State.

C. Frank Goldsmith, Jr., Marion, for defendant-appellant.

CLARK, Judge.

The indigent defendant moved "to represent himself as a jailhouse lawyer." He was advised of his right to have counsel trained in the law to represent him but he filed a written waiver and insisted on proceeding pro se. He thereupon filed numerous, voluminous and repetitious pretrial motions, which account for about half of the 511-page record on appeal.

Defendant now assigns as error the trial court's allowing him to represent himself and refusing to appoint standby counsel for him. This assignment of error is without merit. Defendant waived his right to appointed counsel and the record makes it clear that the waiver was knowingly and intelligently made, and that it was granted only after defendant had been informed of the nature of the charges against him and of his right to appointed counsel. Defendant's decision may not have been wise, but it is clear that he had every right to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, 95 S.Ct. 2525 (1975); State v. Mems, 281 N.C. 658, 190 S.E.2d 164 (1972); N.C.Gen.Stat. 15A-1242. See Note, Self-Representation in Criminal Trials-The Pro Se Defendant, 9 Wake Forest L.Rev. 265 (1973).

The trial court, although not required to make any special effort to accommodate a defendant proceeding pro se, State v. Lashley, 21 N.C.App. 83, 203 S.E.2d 71 (1974), showed unlimited patience with the defendant throughout the trial. On one occasion defendant requested standby counsel, and the judge agreed to grant the request, but defendant changed his mind and elected not to use standby counsel. When, a few pages further into the record the defendant again requested standby counsel, it is not surprising that the judge refused. If defendant was not confident of his ability to represent himself, he was entitled to counsel appointed for his defense; but he had no right to standby counsel. The appointment of standby counsel is in the sound discretion of the trial court. G.S. 15A-1243; State v. Brincefield, 43 N.C.App. 49, 258 S.E.2d 81, disc. rev. denied, 298 N.C. 807, 262 S.E.2d 2 (1979). We find no abuse of discretion in the case sub judice.

Defendant claims that his imperfect understanding of the rules of evidence resulted in his failure to get certain evidence in the record. We would note first that the evidence defendant wished to get in was either irrelevant and immaterial or repetitive. We must also point out that "(w)hatever else the 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." State v. Brincefield, 43 N.C.App. at 52, 258 S.E.2d at 84. While we must concede that defendant in his representation of himself left much to be desired, the issue here is not whether defendant had the skill and training to represent himself adequately but whether " 'he knows what he is doing (when he chooses to represent himself) and his choice is made with his eyes open.' Adams v. United States ex rel. McCann, 317 U.S. at 279 (63 S.Ct. 236 at 242), (87 L.Ed. 268, 143 A.L.R. 435.)" Faretta v. California, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 582. In defendant's motion to proceed pro se he cites fifteen years as a jailhouse lawyer drafting legal papers and a previous successful pro se defense of a felony charge in Cleveland County Superior Court. There can be little doubt that the defendant had the utmost confidence in himself and made a conscious choice.

Ten of defendant's assignments of error relate to pretrial motions. All are overruled. Defendant made numerous novel motions, including a "Motion for Trial by Videotape"; a "Motion to Question Prospective Jurors Individually With the Simultaneous Use of Hypnosis, Polygraph, and Truth Serum"; a Motion for Attorney's Fees "for Self-Litigant in his Capacity as a Jailhouse Lawyer" (wherein defendant notes that the State ought to pay him $45,000 for his services to himself, although he will settle for $7,000); and a motion to declare North Carolina "Evidential Rules" unconstitutional.

Though the trial court denied many of defendant's motions, the rulings are not issues on appeal because defendant failed to except to them. An attorney presumably would have known of the necessity to note an exception to the ruling in order to give the trial judge an opportunity to correct the alleged error. G.S. 15A-1446. Though defendant may have been ignorant of this need, his failure to do so constitutes a waiver of the right to assert the alleged error on appeal. G.S. 15A-1446(b).

Defendant assigns as error the failure of the trial judge to rule upon his motion for appropriate relief. G.S. 15A-1448(a)(4) provides: "If there has been no ruling by the trial judge on a motion for appropriate relief within 10 days after motion for such relief has been made, the motion shall be deemed denied." Under this statute defendant did receive a ruling on his motion. We shall not review the trial judge's denial of the defendant's motion because any error could not possibly prejudice defendant since he is entitled to assert those same errors on this appeal. G.S. 15A-1422(e).

Defendant makes several assignments of error to the trial court's sustaining the prosecutor's objections to certain of defendant's questions on both direct and cross examinations. We note that defendant failed to make an offer of proof, leaving the record void of any indication of what the witness would have answered, so that it is impossible for this Court to determine what evidence was kept out and thus whether the defendant was prejudiced by the court's sustaining of the objection. See State v. Poolos, 241 N.C. 382, 85 S.E.2d 342 (1955); 1 Stansbury's N.C. Evidence § 26 (Brandis rev. 1973). The defendant, thus, has not met his burden of showing that the alleged error was prejudicial. State v. Robinson, 280 N.C. 718, 187 S.E.2d 20 (1972) (per curium).

Defendant seeks to challenge the long-standing rule in this jurisdiction that the uncorroborated testimony of an accomplice is sufficient to sustain a conviction. State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974); State v. Haney, 19 N.C. (2 Dev. & Bat.) 390 (1837). That this Court is not disposed to disturb that rule of evidence should be clear to defendant from our ruling against him in his appeal of a related case in which he assigned the same error. State v. Brooks, 38 N.C.App. 48, 247 S.E.2d 38, appeal dismissed, 295 N.C. 735, 249 S.E.2d 804 (1978). Not only would we uphold the rule, but we note also that, in this case, the accomplice's testimony was not the only testimony placing defendant at Dean's Grocery. Dean Burgess's testimony that defendant was one of the two men who broke into his store on 31 January 1977 served to corroborate the accomplice's testimony.

Defendant assigns as error the trial court's allowing the police dispatcher to read from the official police records. The dispatcher's testimony was confined to when the alarm system went off in Dean's Grocery and to whom he sent to Dean's Grocery on the night of the robbery. The defendant does not dispute the fact that Dean's Grocery was robbed on the night in question, the testimony was not inconsistent with the defendant's defense, and the defendant failed even to cross-examine the witness regarding his testimony. We can see no possible prejudice arising from the admission of this evidence.

Defendant contends that the identification of the defendant's voice by the witness Burgess was not based upon the witness's recollection of the night of the crime in question but was based upon his recollection of having heard the defendant's voice when the defendant appeared without counsel involuntarily in Rutherford County Superior Court on a previous occasion to inquire about the appointment of counsel for his defense. The Supreme Court of North Carolina in State v. Jackson, 284 N.C. 321, 200 S.E.2d 626 (1973) stated:

"Unless barred by constitutional grounds, identification by voice is admissible. State v. Coleman, 270 N.C. 357, 154 S.E.2d 485; State v. Hicks, 233 N.C. 511, 64 S.E.2d 871; 1 Stansbury's North Carolina Evidence (Brandis Revision) § 96 (1973). When identification testimony is offered and defendant objects and requests a voir dire hearing, the trial judge should hear evidence from both the State and the defendant, make findings of fact, and thereupon rule on the admissibility of the evidence. State v. Williams, 279 N.C. 663, 185 S.E.2d 174; State v. Stepney, 280 N.C. 306, 185 S.E.2d 844. If the trial judge's findings are...