State v. Cunningham

• Decision Date: 06 September 1996
• Docket Number: No. 232A91-3,232A91-3
• Citation: 344 N.C. 341,474 S.E.2d 772
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Calvin Christmas CUNNINGHAM.

Page 772

474 S.E.2d 772

344 N.C. 341

STATE of North Carolina v. Calvin Christmas CUNNINGHAM.

No. 232A91-3.

Supreme Court of North Carolina.

Sept. 6, 1996.

Michael F. Easley, Attorney General by Isaac T. Avery, III, Special Deputy Attorney General, for State.

Thomas F. Loflin, III, Durham, for defendant-appellant.

WEBB, Justice.

The defendant first assigns error to the failure of the court to appoint counsel to represent him. He contends he did not unequivocally waive his right to counsel. The record contains two separate forms, signed by the defendant and a superior court judge, which recite that the defendant waived his right to counsel after being fully advised of his rights and fully understanding the consequences of his action as required by N.C.G.S. § 7A-457 and N.C.G.S. § 15A-1242.

The defendant says that the record shows that in spite of these written waivers of counsel, the defendant equivocated as to whether he wanted counsel to represent him. Prior to trial, there were three separate hearings in regard to appointing counsel for the defendant. At each of the hearings, the defendant was adamant that he did not want anyone from the public defender's office or anyone suggested by the public defender's office to represent him. The public defender furnished the defendant with the names of two attorneys who were on the capital list for Mecklenburg County. The defendant would not accept either of these attorneys. The defendant said he wanted Ms. Melissa El, a member of the Michigan bar, to represent him, which the court refused to do. The judge amended the form to say the defendant waived his right to counsel "unless the court appoints Ms. Melissa El."

An indigent defendant does not have the right to an attorney of his choice. When the defendant refused to accept available counsel, the court was not required to appoint counsel of the defendant's choosing. State v. Weaver, 306 N.C. 629, 641, 295 S.E.2d 375, 382 (1982) overruled on other grounds State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993); State v. Sweezy, 291 N.C. 366, 371, 230 S.E.2d 524, 528 (1976); State v. Robinson, 290 N.C. 56, 65, 224 S.E.2d 174, 179 (1976). When he said he would represent himself if the court would not appoint counsel he requested, the defendant waived his right to counsel.

State v. Williams, 334 N.C. 440, 434 S.E.2d 588 (1993), sentence vacated on other grounds, 511 U.S. 1001, 114 S.Ct. 1365, 128 L.Ed.2d 42 (1994), upon which the defendant relies, is not helpful to him. In Williams, the defendant told the court that he wanted to represent himself, but on further questioning by the court, he said he would let his lawyers continue representing him if they would furnish him with certain information. We held the defendant's request to represent himself was equivocal. In this case, the defendant was adamant that he would not let the public defender or anyone whose name was furnished by the public defender represent him. He took this position after his rights and the consequences of representing himself had been fully explained to him at three separate hearings.

As an alternative argument, the defendant contends his conduct at the trial amounted to a waiver of his right to self-representation. Several times during the trial, outbursts by the defendant caused him to be removed from the courtroom. The defendant, relying on several cases from other jurisdictions, Brown v. Wainwright, 665 F.2d 607 (5th Cir.1982); United States v. Dougherty, 473 F.2d 1113 (D.C.Cir.1972); State v. Jessup, 31 Wash.App. 304, 641 P.2d 1185 (1982), argues that the defendant lost his right to represent himself. We know of no such rule in this jurisdiction. If the defendant because of his conduct lost his right of self-representation, he was not prejudiced when the court did not enforce this rule against him. He was allowed to continue representing himself, as he wanted.

This assignment of error is overruled.

In his next assignment of error, the defendant contends the court should have conducted an in camera inspection of the personnel file of the deceased. The defendant made a motion for such an inspection, asking the court to deliver to him any materials which would be helpful to his case.

The defendant says complaints or disciplinary actions against the decedent involving assaults, threatened assaults, or the use of excessive force may have provided information to rebut evidence that the deceased did nothing untoward on the day he was killed. The City of Charlotte objected to the release of the decedent's personnel file, and the court did not require that it be released.

The defendant relies on Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), and State v. Bailey, 89 N.C.App. 212, 365 S.E.2d 651 (1988), for the authority to support his position. Assuming the defendant had a right to this in camera inspection, he was not prejudiced by the refusal of the court to allow it. The question in this case is whether the defendant shot Officer Lyles as Officer Lyles was walking around the police vehicle. The conduct of Officer Lyles as a police officer would have no relevance to this question.

This assignment of error is overruled.

Next, the defendant assigns error to the trial court's failure to grant several continuances requested by him during the trial because he was too tired and ill to continue. He also contends that the trial court erred in failing to recess for the day at his request. He notes that the court admonished him and did not allow him to be heard. The defendant further says that the court's actions resulted in denial of his right to confront witnesses and that the court's disparaging treatment of him resulted in prejudice.

The defendant was repeatedly examined by medical personnel, and no medical basis was ever found for his complaints. Yet he continued to interrupt the proceedings and argue to the trial court that he did not feel well. The trial court did not err in refusing to grant continuances or recess since no medical basis could be found for his complaints.

Further, because the defendant was disrupting the proceedings, the trial court properly warned him to behave appropriately or he would have to leave. When the defendant continued to disrupt the proceedings, the court properly excused him from the room. In fact, at one point, the defendant himself requested that he be allowed to leave the courtroom during the proceedings. The trial court's warnings were appropriate and not prejudicial. We further note that most of the trial court's warnings took place outside of the presence of the jury.

The defendant further argues that by failing to grant his request and by excusing him from the courtroom, the trial court denied him his right to confront witnesses. The privilege of personally confronting witnesses may be lost by consent or misconduct. Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674, 678 (1934). The defendant waived his right by refusing to call witnesses and by repeatedly disrupting the court proceedings with unfounded complaints of illness.

We also conclude that the trial court did not treat the defendant in a disparaging manner. The court merely instructed the defendant that his motions to continue were denied and asked him to resume with the trial. When the defendant continued to argue with the court, the court removed the jury, heard the defendant, and instructed him that the court had ruled on his motion and that the defendant must follow ordinary court procedure and etiquette, or he would be removed from the room. The trial court did not remove the defendant until, after repeated warnings, he insisted on disrupting the proceedings.

This assignment of error is overruled.

In his next assignment of error, the defendant contends his constitutional right to be present at every stage of the trial was violated when the trial was conducted during his absence, even though the absence was because of his disruptive behavior and on one occasion was voluntary. We held in State v. Huff, 325 N.C. 1, 32, 381 S.E.2d 635, 653 (1989), sentence vacated on other grounds, 497 U.S. 1021, 110 S.Ct. 3266, 111 L.Ed.2d 777 (1990), that when a defendant in a capital case is removed from the courtroom for disruptive behavior, his constitutional right to be present at every stage of the trial is violated if the trial is continued in his absence. We held that in such a case, a harmless error analysis must be made. The error must be harmless beyond a reasonable doubt to avoid a new trial.

In this case, the defendant was absent for short periods of time. During his absences, he was in his cell and was able to observe all the court proceedings through an audio-video hookup. When he returned, he was allowed to object to anything that occurred during his absence. His exclusion from the courtroom was harmless beyond a reasonable doubt.

The defendant also complains under this assignment of error that the judge had an ex parte contact with the jury. At one point in the selection of the jury, the court sent the jurors who had been selected to serve and those who were to be examined from the courtroom. The court directed that the prospective jurors not go to the same room as the jurors who had been selected. There was a shortage of deputies in the courtroom, so the judge led the prospective jurors to their room. The judge did not speak to any of the prospective jurors while she was leading them to their room. In this there was no error.

This assignment of error is overruled.

The defendant next assigns error to the denial of his motion for a mistrial made before the introduction of evidence. He says this motion should have been granted because the judge was biased, the judge had an ex parte contact with the jurors, the defendant was denied his right to counsel, and the defendant was denied his right to be heard. We have ruled that there was no error in the judge's contact with the...