State v. Elliott, 8017SC287

• Decision Date: 07 October 1980
• Docket Number: No. 8017SC287,8017SC287
• Citation: 270 S.E.2d 550,49 N.C.App. 141
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Caswell Gates ELLIOTT.

Page 550

270 S.E.2d 550

49 N.C.App. 141

STATE of North Carolina v. Caswell Gates ELLIOTT.

No. 8017SC287.

Court of Appeals of North Carolina.

Oct. 7, 1980.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Sarah C. Young, Raleigh, for the State.

George B. Daniel, Yanceyville, for defendant-appellant.

WHICHARD, Judge.

Defendant presents, as his sole assignment of error, the denial of his right to be represented by court appointed counsel at his trial for sale and delivery of PCP. The record indicates that on the day of defendant's trial, during arraignment on other charges, the trial court stated that defendant had appeared before the court at the prior session in September and been denied the right of court appointed counsel because he was found able to hire his own counsel. The defendant acknowledged that to be correct. The court then said, "(s)ince that time you have had full opportunity to hire a lawyer if you wanted to, is that right?" The defendant responded that he had tried without success to borrow the money to hire a lawyer. The court then asked if defendant understood that he had a right to represent himself, and defendant answered that he did. When the court further inquired if defendant desired to represent himself, defendant replied:

I don't think that I am capable of representing myself, there are a lot of technicalities that I don't know and as far as me being guilty of the possession, yes, but of sale, no. I am guilty of possession for a reason, not for a profit, but for some other reason.

The court then said that Judge Long had found defendant able to hire his own lawyer and he had not done so, and that defendant had signed a waiver of counsel. Defendant acknowledged that the court was correct. The court then asked other routine questions and proceeded to arraign and try the defendant without counsel on the sale and delivery charge.

G.S. 15A-942 provides:

If the defendant appears at the arraignment without counsel, the court must inform the defendant of his right to counsel, must accord the defendant opportunity to exercise that right, and must take any action necessary to effectuate the right. (Emphasis supplied.)

The North Carolina Supreme Court in State v. Sanders, 294 N.C. 337, 240 S.E.2d 788 (1978) held that the defendant there was entitled to a new trial because of the trial court's failure to comply with the mandates of this statute, stating that "the statute made it the duty of the trial judge, when defendant appeared at the arraignment without counsel, to inquire into his indigency irrespective of any request by defendant." Sanders, 294 N.C. at 344, 240 S.E.2d at 792. (Emphasis in original.) In Sanders, as here, the trial court had denied defendant's request for counsel by order pre-dating by several weeks the defendant's arraignment. The Supreme Court, however, viewed the issue as being not whether the defendant was indigent at the time the prior order was entered, but whether he was indigent on the day he was arraigned and tried without counsel. The Court noted that this question could not be answered because the trial judge failed at the time of arraignment "to make the inquiries directed by G.S. 15A-942." Sanders at 345, 240 S.E.2d at 792. (Emphasis supplied.)

The decision in Sanders is dispositive of this appeal. The record here does not indicate that the trial court at any time during the arraignment proceedings made inquiry into the question of defendant's indigency or non-indigency at that time. This it was required to do by G.S. 15A-942 as interpreted and applied in the Sanders decision.

The opinion in Sanders does not indicate whether or not the defendant there executed a waiver of his right...