State v. Kuplen, 355A84
| Decision Date | 06 May 1986 |
| Docket Number | No. 355A84,355A84 |
| Citation | 316 N.C. 387,343 S.E.2d 793 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. John Edward KUPLEN. |
Lacy H. Thornburg, Atty. Gen., Joan H. Byers, Asst. Atty. Gen., by James J. Coman, Sp. Deputy Atty. Gen., Raleigh, for State.
Mary K. Nicholson, Greensboro, for defendant-appellant.
The victim testified for the State and identified the defendant as the person who came to her apartment around 7:30 p.m. on 19 December 1983. She said that he identified himself as "Eddie" when he knocked on her apartment door, and when she opened the door, she recognized him as John Ed, a hairdresser friend of her roommate's. She had seen him on four previous occasions during the fall of 1983, once at his apartment on Halloween, twice when he cut her roommate's hair in her apartment and once when he dropped by the apartment in November while her mother was present.
She testified that on 19 December she was busy and after about twenty minutes she asked him to leave.
Instead of leaving, the defendant attacked the victim and threatened her with a knife. They struggled in the living room, and during the struggle she pulled a button off his shirt. He then forced her into the bedroom, disrobed and, while holding the knife on her, undressed her. After attempting to rape her but failing to achieve penetration, he forced her to perform fellatio.
After both parties dressed, the defendant became agitated and attacked the victim again, choking her and beating her head against the floor until she lost consciousness. When she returned to consciousness, she was undressed, on the bed, and the defendant was stabbing her in the stomach. She lost consciousness again and was awakened by the telephone ringing. She crawled to the telephone and called the operator for assistance.
The AT&T operator on duty at the time contacted the Greensboro Police Department. The emergency call to the Police Department was recorded at 8:52 p.m. When Officer Timothy Blair of the Greensboro Police Department arrived at the scene, he observed the victim, nude except for a pair of socks, lying in the doorway from her apartment to the hall where she had dragged herself from the bedroom. She had a three-inch laceration of her throat and a gash in her abdomen from which her internal organs were protruding. The emergency medical personnel testified that when they arrived the victim had no blood pressure.
Doctors who treated the victim testified that her trachea had been almost completely severed, her stomach and small intestine were cut and the inferior vena cava, the body's main vein, had been severed. She was in the hospital for a month.
While in the hospital in intensive care, almost immediately after awakening from surgery, the victim told the police that a friend of her roommate's whom she knew as John Ed or Eddie had attacked her. At that point, she could not talk because of a plastic tube in her throat, but she wrote notes; she also asked for a Greensboro telephone book and pointed out the hair salon where the defendant worked. She described her assailant and the knife.
Based upon the victim's identification, the police obtained a warrant for the defendant's arrest on 20 December 1983 for the assault offense.
The police recovered from the victim's living room floor a button with attached thread and cloth which matched a blue flannel shirt they seized from the defendant's apartment. Blood which matched that of the victim was found inside a boot seized from the defendant's apartment. The defendant refused to give a blood sample; therefore, a semen stain found on a blanket taken from the victim's bed could not be tested for a match with the defendant's blood type. A head hair taken from defendant was microscopically consistent with hairs found on the victim's sweater, blanket and quilt. The defendant's housemate described a hunting knife which the defendant had purchased in the fall of 1983 and which generally fit the description of the knife which the victim said the defendant had used. No knife was produced at trial.
The defendant did not present evidence at the guilt phase of the trial. He presented character evidence at the sentencing hearing.
The defendant brings forward numerous assignments of error. We find that the defendant received a fair trial free of prejudicial error.
The defendant contends that he was denied effective assistance of counsel, due process of law and equal protection of the law when Judge Freeman refused to allow the defendant's court-appointed lawyer, Mr. Charles White, to withdraw as counsel on 19 April 1984 and to appoint new counsel when the defendant requested that Mr. White be discharged. Although the record contains a waiver of counsel signed by the defendant on 27 December 1983, it also appears that the Public Defender's Office was appointed on 4 January 1984 to represent the defendant. Mr. White, Assistant Public Defender, was assigned to the defendant's case.
On 17 April 1984 the defendant filed with the Office of the Clerk of Superior Court of Guilford County a letter notifying the Clerk that the Public Defender's Office was no longer representing him and requesting the appointment of private counsel.
On 19 April 1984, Mr. White filed a motion to withdraw from representation of the defendant and in support thereof stated:
3. The defendant, or others on his behalf, have employed a private investigator to explore the "feasibility" of retaining private counsel and to assist in the preparation of his case. The investigator is under instructions to not divulge the results of his investigations to the undersigned; and
4. The defendant and others on his behalf have actively pursued the possibility of retaining private counsel, thereby indicating that funds may be available for privately retained counsel. This activity has also limited the amount of time the undersigned has been able to devote to the case due to the uncertainty as to whether he will be representing the defendant at trial, and
5. The defendant has refused to provide the undersigned with information essential to his defense. The attorney-client privilege does not permit the undersigned to list specific examples, and
6. Diligent efforts have been made by the undersigned to resolve these differences with the defendant to no avail. On April 3, 1984 the undersigned wrote the defendant indicating his intention to seek the Court's permission to withdraw if the differences between he and the defendant were not resolved; and
7. Further conversations with the defendant on April 12, 1984 led the undersigned to believe that the differences could possibly be resolved and the defendant was verbally informed that the Public Defender's Office would endeavor to continue to represent him; and
8. On April 14, 1984 the defendant wrote the Clerk of Superior Court indicating that the Public Defender had "resigned," and he requested that the State appoint a private attorney to represent him. A copy of that letter is attached; and
9. Numerous additional factors which cannot be divulged due to the attorney-client privilege have convinced the undersigned that it will be impossible for him to adequately represent the defendant, and that the ends of justice will be best served by allowing him to withdraw.
Judge Freeman conducted a hearing on Mr. White's motion on 19 April 1984. Other than the specific reasons listed in his motion, Mr. White would reveal no reason for his motion to withdraw, stating that he was concerned about possibly violating the defendant's attorney-client privilege.
When questioned about whether he wanted Mr. White to withdraw, the defendant responded that he did, but gave as his reason only that "things didn't work out as they should" and that it was important to him that his case be prepared and presented properly.
Judge Freeman conducted a very patient, thorough inquiry, but no additional basis for allowing Mr. White to withdraw was ever given other than that "irreconcilable differences" existed between the defendant and Mr. White. Mr. White said that if ordered to continue to represent the defendant, he would make every effort to represent him as "fully as I could, and to the best of my ability, and be true to my oath of office." Judge Freeman told the defendant that Mr. White was a highly competent, very experienced trial lawyer and denied the motion.
The defendant then, in open court and after conferring with Mr. White, asked that Mr. White be discharged and that the defendant be allowed to represent himself with Mr. White's help.
Judge Freeman conducted the inquiry required by N.C.G.S. § 15A-1242, and discussed at length with the defendant the consequence of not having counsel. The defendant stated that he wanted to represent himself but to have assistance from Mr. White.
At 12:43 p.m. the judge recessed court for lunch. When court reconvened at 2:00 p.m. Judge Freeman again addressed the defendant and asked if he wanted to say anything more about the nature of the conflicts between the defendant and Mr. White, particularly as to whether the conflict was over something more than trial tactics. The defendant then read to the judge from a list of his complaints against Mr. White, and Mr. White responded. This further colloquy only repeated the grounds included in Mr. White's motion and suggested that the defendant was refusing to cooperate with his counsel and was seeking to obtain the services of private counsel. Judge Freeman found that there was nothing that would prohibit Mr. White from providing effective assistance of counsel to the defendant and denied the defendant's request for appointment of another attorney.
He again asked the defendant if he wanted to represent himself with Mr. White as standby counsel. The defendant said that he did. Judge Freeman then inquired into the defendant's age, education, literacy and mental or physical handicaps. He...
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