State v. Gordon

• Decision Date: 04 March 1986
• Docket Number: No. 8526SC763,8526SC763
• Citation: 79 N.C.App. 623,339 S.E.2d 836
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Thomas GORDON.

Page 836

339 S.E.2d 836

79 N.C.App. 623

STATE of North Carolina v. Thomas GORDON.

No. 8526SC763.

Court of Appeals of North Carolina.

March 4, 1986.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen., Catherine McLamb, for the State.

Charles V. Bell, Charlotte, for defendant-appellant.

WHICHARD, Judge.

Defendant contends the court erred in denying his motion for a continuance, forcing him to represent himself, and denying his motion to suppress identification testimony. The single issue presented is whether the court erred in forcing or allowing defendant to proceed without counsel at the hearing on his motion to suppress identification testimony. We find State v. McCrowre, 312 N.C. 478, 322 S.E.2d 775 (1984), and its progeny, controlling. Pursuant thereto, we hold that absent a clear indication by defendant that he desired to proceed pro se, and absent the inquiries required by N.C.Gen.Stat. 15A-1242 (1983), the court erred in requiring defendant to proceed pro se at the suppression hearing.

The pertinent facts are as follows:

Defendant's court-appointed counsel made a motion to withdraw on the ground that an atmosphere of mistrust had developed between him and defendant. At a hearing on the motion defendant testified that he was faced with the possibility of a substantial sentence, that his appointed counsel had shown no interest in his case and that he would rather have an attorney he could depend on. He testified: "I would just like to have a lawyer I can pay that I feel comfortable.... I just had a dream of having a lawyer, paying for a lawyer.... All I want is just [to be] properly represented. I don't think you [appointed counsel] have it for me.... That's all I'm asking."

The prosecuting attorney inquired whether defendant had the money to hire a private attorney. Defendant replied that he did not, but that he was "working on" it. The court stated that defendant could not delay the prosecution while getting "funds to hire the best counsel." It noted that it thought a reasonable time had expired and that there was no indication that defendant could hire an attorney that day. It then stated: "The MOTION IS DENIED, with leave to the defendant to represent himself, if he is so of a mind to." It instructed defendant to advise the court if at any time he wished to assume his own representation rather than having his appointed attorney represent him.

When the appointed attorney asked if defendant had any response, defendant stated: "I represent myself." The court asked: "You prefer to represent yourself?" Defendant responded: "Yes, I would."

The court then advised defendant that it would ask the appointed attorney to sit with him so defendant could "consult him concerning legal, technical matters." Defendant responded: "I don't want him sitting with me." The court thereupon allowed the appointed attorney's motion to withdraw.

After allowing the motion to withdraw the court proceeded immediately with a hearing on the motion to suppress the identification testimony. Defendant stated to the court: "I don't know about my case. I don't know one side of anything. Anything that's been presented to me was presented to me within the last couple [of] days.... All of these things that he [appointed counsel] put before me, whatever he brought up he did not talk to me about these things. So, I don't know.... He hasn't expressed to me about nothing, nothing about my case[,] about me." The court responded: "You have elected at the last minute to come in and represent yourself. And, this is a very difficult thing for you to do. But that's the only election that was left open to you, if you wanted to discharge [appointed counsel]."

The fact that an accused waives his right to assigned counsel does not mean that he waives all right to counsel. State v. McCrowre, 312 N.C. 478, 481, 322 S.E.2d 775, 777 (1984). See also State v. White, 78 N.C.App. 741, 338 S.E.2d 614 (1986); State v. Lyons, 77 N.C.App. 565, 335 S.E.2d 532 (1985); State v. Graham, 76 N.C.App. 470, 333 S.E.2d 547 (1985); State v. Michael, 74 N.C.App. 118, 327 S.E.2d 263 (1985). In McCrowre, as here, defendant discharged assigned counsel with the expectation of retaining private counsel. The trial court there denied defendant's request for "someone to assist" with his case. McCrowre, 312 N.C. at 480, 322 S.E.2d at 776. In holding this error the Supreme Court reasoned that there was "no evidence that defendant ever intended to proceed to trial without the assistance of some counsel." McCrowre, 312 N.C. at 480, 322 S.E.2d at 776-77. It added that "[s]tatements of a desire not to be represented by court-appointed counsel do not amount to expressions of an intention to represent oneself." Id., 322 S.E.2d at 777 [quoting State v. Hutchins, 303 N.C. 321, 339, 279 S.E.2d 788, 800 (1981) ]. It added further, citing N.C.Gen.Stat. 15A-1242 (1983), that

[h]ad defendant clearly indicated that he wished to proceed pro se, the trial court was required to make inquiry to determine whether defendant:

(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;

(2) Understands and appreciates the consequences of this decision; and

(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.

McCrowre, 312 N.C. at 481, 322 S.E.2d at 777; see also Graham, 76 N.C.App. at 474, 333 S.E.2d at 549, Michael, 74 N.C.App. at 119, 327 S.E.2d at 264-65.

The record here reveals no such inquiry. While there is some evidence that defendant understood that the charges were serious, there is no evidence that he was informed of the nature of the charges and the range of permissible punishments or that he understood and appreciated the consequences of proceeding without counsel. Absent such evidence, the court should not have permitted him to proceed pro se. N.C.Gen.Stat....