State v. Gerald, 33

• Decision Date: 01 December 1981
• Docket Number: No. 33,33
• Citation: 284 S.E.2d 312,304 N.C. 511
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Doug GERALD.

Page 312

284 S.E.2d 312

304 N.C. 511

STATE of North Carolina v. Doug GERALD.

No. 33.

Supreme Court of North Carolina.

Dec. 1, 1981.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Elaine J. Guth, Raleigh, for state.

Adam Stein, Appellate Defender, and Marc D. Towler, Asst. Appellate Defender, Raleigh, for defendant.

BRITT, Justice.

By his first assignment of error, defendant contends that the trial judge erred in failing to conduct a hearing to determine whether defendant wished to represent himself after defendant stated to the court that he did not want a lawyer.

This alleged error arose out of an incident that occurred during jury selection in which defendant spontaneously began to address the court. The trial judge immediately dismissed the prospective jurors from the courtroom and proceeded to inquire as to what was troubling defendant. The following exchange ensued.

DEFENDANT GERALD: Your Honor, sir, excuse me, sir. I don't mean no harm. I try to give respect to everyone in the Courthouse.

Judge, Your Honor, sir, I don't know what's happening, but I would like to say this much, Judge, Your Honor--

THE COURT: Well, this is not the time for that. I will listen to what you want to say in just a little while.

MR. WEBSTER: Could Mr. Chavis and I approach the Bench, Your Honor?

THE COURT: Yes, Just sit down a little while.

(Discussion at Bench between Court and Counsel.)

THE COURT: All right. Members of the Jury, I'm going to ask you to step back in to the jury room for just a moment, please. Right back here.

And, Members of the Jury, out in the audience, I'm going to have to ask you to step out in the hall for just a moment, please. The Sheriff will let you know when to come back in.

(The following was had outside the presence of all jurors.)

THE COURT: All right. Mr. Gerald, what is it you wanted to say?

DEFENDANT GERALD: Sir, I don't mean no harm, sir.

THE COURT: Right.

DEFENDANT GERALD: Lots of times, I don't even know what I'm doing or saying, but, sir, I don't even want no more lawyer. I don't want no lawyer. I don't need no lawyer. I just rather for it to be like it is. I rather it be like it is. The Jury come on in and whatever, or whatever, and then in the jailhouse, it's running me crazy, sir. I don't know, but I rather for it to be like it is. I don't want no lawyer.

THE COURT: Well, you understand that right now we are just in the process of picking a jury, and your lawyer is doing the best he can.

DEFENDANT GERALD: Sir, it's running me crazy in here, sir. It's running me crazy, making me dizzy and drunk in the head.

THE COURT: What is?

DEFENDANT GERALD: Sitting in here waiting and worrying.

THE COURT: Well, I can appreciate the waiting and worrying, but we are now getting started in the trial, and it will be over pretty soon, now.

Any particular reason why you say you don't want a lawyer?

DEFENDANT GERALD: Sir, I have all kind hallucinations in my head.

THE COURT: What kind of--

DEFENDANT GERALD: My mind all fill up with Jesus Christ and all of the hallucinations in my mind. I don't want no lawyer. I just rather do what you going to do, and do whatever--

THE COURT: Well, Mr. Chavis has been appointed to represent you, and has been representing you for some time, and I'm sure he'll do a good job for you, and certainly, I believe you would be much better off having a lawyer, so don't you think we ought to just go ahead and proceed with the trial as we are?

DEFENDANT GERALD: Sir, I don't know what to think. I don't understand. I'm trying to understand the lawyer and what he's saying, but I don't even understand what he's talking about. All the people over there, while ago, all that, then he took them down. Might as well get it over with.

THE COURT: Well, we are just about to do that. See, he has a right to excuse as many as six jurors, just as the lawyer for the State does, so he's just trying to get a jury that he thinks would be the best for you. He's trying to look after you.

You understand that, don't you?

DEFENDANT GERALD: I believe I do, sir.

THE COURT: All right. You ready to go ahead? You want us to go ahead, now, with the trial?

DEFENDANT GERALD: Yes, sir. Yes, sir.

THE COURT: All right. Bring the jury back in.

DEFENDANT'S EXCEPTION NO. 1

A criminal defendant has a constitutional right to the assistance of competent counsel in his defense. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Implicit in defendant's constitutional right to counsel is the right to refuse the assistance of counsel and conduct his own defense. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In its decisions both prior to and after Faretta, this court has held that counsel may not be forced on an unwilling defendant. State v. Thacker, 301 N.C. 348, 271 S.E.2d 252 (1980); State v. McNeil, 263 N.C. 260, 139 S.E.2d 667 (1965).

Defendant asserts that the statements he made to the trial court constituted an unequivocal assertion that he wished to represent himself; and that in order to safeguard his constitutional right to proceed pro se it was mandatory that the trial court advise him that he had the right to represent himself and to ascertain whether he desired to do so by following the procedures outlined in G.S. 15A-1242.

G.S. 15A-1242 ¹ sets forth the prerequisites necessary before a defendant may waive his right to counsel and elect to represent himself at trial. Defendant insists that decisions of this court support his arguments for a mandatory formal inquiry. We do not agree.

In State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976), defendant sought to have his appointed counsel dismissed and two black attorneys appointed to replace him. He never requested that he be allowed to represent himself. Defendant's motion was denied. We found no error but stated that "It would have been the better practice to have excused the jury and allowed the defendant to state his reasons for desiring other counsel. If no good reason was shown requiring the removal of counsel, then the court should have determined whether defendant actually desired to conduct his own defense." 291 N.C. at 372, 230 S.E.2d 524. In State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977), defendant assigned as error the trial court's denial of his motion to dismiss his court appointed attorney. Referring to Sweezy, supra, the court said: "Since there was no intimation that defendant Sweezy wished to represent himself, but only that he wanted 'two black lawyers,' and since '[d]efendant's courtroom behavior gave the trial judge every right "to suspect the bona fides of the defendant",' Id. at 373, 230 S.E.2d at 529, there was no reversible error in the court's failure to follow the recommended procedure." 292 N.C. at 280, 233 S.E.2d 905. The court in Gray found no error, and commented that there was "not a scintilla of evidence" that defendant wished to represent himself. 292 N.C. at 281, 233 S.E.2d 905.

In State v. Cole, 293 N.C. 328, 237 S.E.2d 814 (1977), defendant's motion to dismiss court appointed counsel was denied and the trial judge consequently refused to replace defendant's counsel. Defendant contended that the trial court erred in failing to advise him of his right to conduct his own defense before denying the motion. The court found that at no time had the defendant indicated a desire to represent himself, therefore, there was no merit to his assignment of error. The court did reiterate, however, that it is the better practice for the court to inquire of defendant whether he wishes to conduct his own defense.

These holdings clearly indicate that although the better practice when a defendant indicates problems with his counsel is for the court to inquire whether defendant wishes to conduct his own defense, it is not reversible error for the court not to do so when there has been no intimation that defendant desired to represent himself. Each case, therefore, must be considered on its own merits.

In the present case the record shows that defendant was 26 years old with the equivalent of a third grade reading and comprehension level and an I.Q. of 65; that he functions within a range of mild mental retardation; and that he has a history of mental illness which includes auditory hallucinations. The reasonable interpretation of defendant's exchange with the trial judge is that he was confused by the technicalities of the jury voir dire, that he knew he was being tried for murder and the waiting in the jail and courtroom was making him dizzy with worry. It appears that he simply wanted to have the court go ahead and get it over with. There was no intimation, and it is beyond reasonable belief, that this defendant was in any way considering waiving his constitutional right to counsel and conducting his own defense.

It is true that the issue is not whether the defendant has the skill and training to represent himself adequately but whether the defendant is able to understand the consequences of waiving court appointed counsel and representing himself. Faretta v. California, supra; State v. Brooks, 49 N.C.App. 14, 270 S.E.2d 592 (1980). "[T]he waiver of counsel, like the waiver of all constitutional rights, must be knowing and voluntary, and the record must show that the defendant was literate and competent, that he understood the consequences of his waiver, and that, in waiving his right, he was voluntarily exercising his own free will. (Citation omitted.)" 301 N.C. at 354, 271 S.E.2d 252.

It is overwhelmingly apparent on the facts of this case that defendant could not have been allowed to take over his own defense, nor had he knowingly and intelligently indicated a desire to do so. Nevertheless, defendant would have us adopt the requirement of a formal hearing in accordance with G.S. 15A-1242 whenever a defendant indicates to the trial court a problem with his counsel. We decline to adopt such a stringent standard. When defendant expresses to the...