State v. Colbert, 67A84
Decision Date | 05 June 1984 |
Docket Number | No. 67A84,67A84 |
Citation | 311 N.C. 283,316 S.E.2d 79 |
Court | North Carolina Supreme Court |
Parties | STATE of North Carolina v. Johnny Robert COLBERT. |
Rufus L. Edmisten, Atty. Gen., by Ann Reed, Sp. Deputy Atty. Gen., Raleigh, for the state.
Adam Stein, Appellate Defender, by Malcolm Ray Hunter, Jr., Asst. Appellate Defender, Raleigh, for defendant.
This appeal is before us upon the single issue of whether defendant's right to counsel was violated during the jury selection process. We find that it was and that defendant is entitled to a new trial. We accordingly reverse the Court of Appeals.
Defendant was tried and convicted on a proper bill of indictment charging him with felonious possession of marijuana. A voir dire hearing on defendant's motion to suppress was conducted on the day before the jury trial commenced. The transcript discloses that Mr. Bill Allen of Yadkinville was present, representing defendant at this hearing. It does not disclose at what time court recessed for the day or when the hearing was completed. Although the record is not crystal clear, the following evidently occurred the morning after the voir dire hearing:
We will proceed with the selection of the jury in his absence.
We note that defendant did not object to the foregoing procedure; however, he does bring the alleged error forward by assignment of error and argument in briefs before the Court of Appeals and this Court.
The right to counsel is one of the most closely guarded of all trial rights. State v. Thacker, 301 N.C. 348, 271 S.E.2d 252 (1980). "Waiver of counsel may not be presumed from a silent record." State v. Morris, 275 N.C. 50, 59, 165 S.E.2d 245, 251 (1969). Accord Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Defendant's right to counsel extends to the entire trial. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). This is especially true at critical stages of the proceeding. This Court has held that selection of the jury is a critical stage of the trial. State v. Hayes, 291 N.C. 293, 230 S.E.2d 146 (1976).
It is essential that counsel be present during the entire jury voir dire so that he may intelligently exercise defendant's right to peremptory challenges. The peremptory challenge is one of defendant's most valuable rights. Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894). As said by Blackstone, the prisoner is allowed an arbitrary and capricious species of challenge, without showing any cause at all. It is necessary in order to prevent unaccountable prejudices from the bare looks and gestures of another. 4 W. Blackstone, Commentaries *353.
In State v. Perry, 277 N.C. 174, 177, 176 S.E.2d 729, 731 (1970), Justice Higgins, speaking for the Court, stated: "Each defendant is entitled to full opportunity to face the prospective jurors, make diligent inquiry into their fitness to serve, and to exercise his right to challenge those who are objectionable to him." Of necessity, and by constitutional guaranty, this includes the assistance of counsel for this purpose. Ordinarily, without the aid of counsel, the right to jury voir dire becomes an empty and meaningless phrase.
Here, defendant's counsel did not observe any of the state's questioning of the jurors. Of course, defendant's counsel could, and perhaps did, excuse one or more of the jurors passed by the state. But in so doing he was acting at least partially in the dark as he knew nothing of what had transpired in...
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