State v. Luker

• Decision Date: 20 December 1983
• Docket Number: No. 8318SC109,8318SC109
• Citation: 310 S.E.2d 63,65 N.C.App. 644
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Ellis James LUKER, III.

Page 63

310 S.E.2d 63

65 N.C.App. 644

STATE of North Carolina v. Ellis James LUKER, III.

No. 8318SC109.

Court of Appeals of North Carolina.

Dec. 20, 1983.

Atty. Gen. Rufus L. Edmisten by Thomas B. Wood, Asst. Atty. Gen., Raleigh, for the State.

Ann B. Petersen, Asst. Appellate Defender, and Adam Stein, Appellate Defender, Raleigh, for defendant-appellant.

VAUGHN, Chief Judge.

It is a cardinal principle of criminal law that an indigent defendant has the right under the sixth amendment of the United States Constitution to assistance of counsel for his defense. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981); see also N.C. Const. art. I, § 23.

Upon defendant's affidavit of indigency in the case at bar, counsel was appointed on 4 March 1982. Counsel represented defendant for approximately six months until he withdrew in the middle of September during defendant's trial. During trial, after the state had rested, counsel and defendant disagreed over whether defendant should testify. Defendant's attorney stated that he would withdraw if defendant testified. Defendant chose to testify. Defendant now contends that forcing him to choose between being represented by counsel and testifying in his own defense deprived him of his right to counsel and to equal protection and due process of law. In light of defendant's sixth amendment right to representation, we think that it was error for defense counsel to withdraw; nevertheless, we hold that such error was harmless beyond a reasonable doubt.

It is the obligation of the attorney, once appointed, to serve as counselor and advocate to his client. See Standards For Criminal Justice, the Defense Function, § 4-1.1 (1982 Supp.). The relationship between the client and his attorney is like that of principal and agent, not ward and guardian. State v. Barley, 240 N.C. 253, 81 S.E.2d 772 (1954). "While an attorney has implied authority to make stipulations and decisions in the management or prosecution of an action, such authority is usually limited to matters of procedure[.]" Id. at 255, 81 S.E.2d at 773. In State v. Barley, defendant's attorney tendered a plea of "nolo contendere " even though defendant protested his innocence and wished to enter a plea of "not guilty." Our Supreme Court set aside the judgment against defendant entered without a jury and remanded the case for trial on defendant's plea of "not guilty." "[O]rdinarily," the Court explained, "a stipulation operating as a surrender of a substantial right of the client will not be upheld." Id. at 255, 81 S.E.2d at 773.

Like the decision regarding how to plead, the decision whether to testify is a substantial right belonging to the defendant. While strategic decisions regarding witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, and what trial motions to make are ultimately the province of the lawyer, certain other decisions represent more than mere trial tactics and are for the defendant. These decisions include what plea to enter, whether to waive a jury trial and whether to testify in one's own defense. ABA Standards For Criminal Justice, the Defense Function, § 4-5.2 (1982 Supp.); Wainright v. Sykes, 433 U.S. 72, 91, 97 S.Ct. 2497, 2509, 53 L.Ed.2d 594, 611 (1977), (Burger, C.J., concurring).

While at common law, criminal defendants were not competent to testify in their own behalf, G.S. 8-54 removes this barrier and provides that every person, including a criminal defendant is a competent witness. Similarly, under 18 U.S.C. § 3481, federal criminal defendants have the right to testify.

The United States Supreme Court has intimated and several recent courts have concluded that the right to testify is not only a statutory right, but is a constitutional right, as well. Although not specifically guaranteed in the Constitution, these courts have held that the right to testify emanates from the due process requirements of the fifth and fourteenth amendments and from the compulsory process clause of the sixth amendment. See, e.g., United States v. Bifield, 702 F.2d 342 (2d Cir.), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983); Alicea v. Gagnon, 675 F.2d 913 (7th Cir.1982); United States ex rel. Wilcox v. Johnson, 555 F.2d 115 (3d Cir.1977). In Brooks v. Tennessee, 406 U.S. 605, 612, 92 S.Ct. 1891, 1895, 32 L.Ed.2d 358, 364 (1972), the United States Supreme Court stated: "Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right." In Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562, 572 (1975), the Court explained that the right to self-representation and to make one's own defense personally, though not stated outrightly in the sixth amendment, is necessarily implied by its structure. We think that the right to testify in one's own behalf is further implied from the right to self-representation. We draw upon inferences from United States Supreme Court cases and holdings in other jurisdictions when we conclude that defendant's right to testify emanates from the sixth amendment and is "essential to due process of law in a fair adversary process." Id. (n. 15).

While it is true that a defendant may waive a constitutional right like the right to testify or to be represented, such waiver must be knowledgeable and voluntary. See Faretta v. California, supra; State v. Hutchins, supra. Under G.S. 15A-1242, a defendant may proceed at trial without the assistance of counsel if the trial judge makes a thorough inquiry and is satisfied that 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 permissable punishments.

Under G.S. 15A-1243, when a defendant has elected to proceed without counsel, the trial judge may, in his discretion, appoint standby counsel to assist defendant when called upon to bring to the judge's attention matters favorable to the defendant.

In the case at bar, though no formal motion had been made, the court found as fact that defendant had made a motion to discharge his attorney. The following colloquy then occurred THE COURT: Mr. Luker, as I understand it, you have arrived at some conflict with your attorney as to whether or not you are going to take the stand. Does that conflict still exist?

MR. LUKER: Yes, sir.

THE COURT: Let me explain to you that you do have the right to the assistance of counsel, including the right to assignment of counsel, and your lawyer has been appointed. Do you understand that you have the right to be represented by this Court-appointed attorney, don't you?

MR. LUKER: Yes, sir.

THE COURT: Do you understand that if I allow your attorney to withdraw and let you conduct this case yourself as your own lawyer that I cannot assist you; that I would have to hold you to the same standards that I would hold an attorney; that you will have the sole responsibility of conducting your trial yourself, making decisions; do you understand that?

MR. LUKER: Yes, sir.

THE COURT: Do you understand as a result of these cases you're charged with that you could get up to one-hundred and seventy years in prison?

MR. LUKER: Yes, sir.

THE COURT: And that the presumptive sentence alone if given consecutively would be fifty-seven years. Do you understand that?

MR. LUKER: Say that again.

THE COURT: The presumptive sentence on these charges would be fifty-seven years if they are to run at the expiration of each other. Do you understand that?

MR. LUKER: Yes, sir.

THE COURT: You do understand that if I let your lawyer withdraw you have to put on your own witness, your own evidence, then you're going to have to make your own jury argument at the end of the case? Do you understand that?

MR. LUKER: Yes, sir. I'm not saying I'm a lawyer by a long shot. But could the Court help me, instruct me in doing that?

THE COURT: I can't help you. That is what I'm saying. I can't help you at all. You have the right to be your own lawyer. But I can't assist you. You will have to make your own final argument. I might say what I will do. See, I'm going to ask Mr. Farran to sit behind you and act as what we call a stand-by counsel.

The judge's conduct and ruling would have been entirely proper under G.S. 15A-1242 and 1243 had defendant voluntarily opted to represent himself. Defendant's motion, however, was not voluntary. The following exchange precipitated the judge's finding that defendant had made a motion to discharge his attorney.

THE COURT: This is a disagreement over whether or not you will take the stand or whether you will exercise your right to remain silent?

MR. LUKER: Yes, sir.

THE COURT: And other than that, you have had no conflict with your lawyer?

MR. LUKER: No, sir.

THE COURT: Other than that, you're satisfied with his services?

MR. LUKER: Yes, sir.

THE COURT: You understand that you have the right to represent yourself.

You are not asking to fire your lawyer, are you?

MR. LUKER: Yes, sir. I think that is what we're going to have to do, if we can't come to no other conclusion.

The Record reveals that defendant was forced to elect between having counsel and testifying in his own behalf. Such election was improper. While counsel could have advised defendant not to testify, the ultimate decision should have been the defendant's. Defendant's dilemma has been characterized by other courts as a "Hobson's choice," i.e., a dilemma involving the relinquishment of one constitutional right in order to assert another. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); see United States ex rel. Wilcox, supra. In this case, by choosing to...