State v. Mazique
| Decision Date | 19 October 2016 |
| Docket Number | Appellate Case No. 2012–213631,Opinion No. 5446 |
| Citation | 797 S.E.2d 730,419 S.C. 282 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Rickey MAZIQUE, Appellant. |
J. Falkner Wilkes, of Greenville, for Appellant.
Attorney General Alan McCrory Wilson and Senior Assistant Attorney General David A. Spencer, both of Columbia, and Solicitor Jimmy A. Richardson, II, of Conway, for Respondent.
Rickey Mazique appeals from his conviction for armed robbery, arguing the trial court erred in: (1) not conducting a timely and adequate inquiry as to his motion for the appointment of substitute counsel; (2) denying him the right to self-representation at a critical stage of the proceedings; (3) allowing the State to take advantage of him with its prejudicial and inflammatory comments to the jury; (4) denying his request to require the State to offer the entire audio of his police interview; (5) refusing to require the State to provide him a copy of the officer's handwritten notes for cross-examination; (6) denying him the right to effective cross-examination of officers; (7) refusing to allow him to cross-examine a witness about any pending charges to examine for bias, motive, etc.; and (8) the cumulative effect of all the foregoing errors prevented him from having a fair trial. We affirm.
A man wearing a wig robbed a Kangaroo convenience store; however, the store clerk recognized the robber because he regularly visited the store. The clerk did not know Mazique's name, but she later picked him out of a photographic lineup. The surveillance video shows the robber stuffing cigarettes into a trash bag.
The responding officer's investigation led him to Mazique's residence where Mazique's girlfriend consented to a search of the home. The officers found a trash bag full of cartons of cigarettes in a closet and a box of ammunition inside an air vent above the kitchen counter. The officers also found a jacket similar to the one the robber wore in the surveillance video from the convenience store. At the police station, Mazique gave two tape-recorded statements. Mazique admitted to robbing the convenience store. He also admitted to using a gun, which he threw away, and to hiding the ammunition in his kitchen.
A pre-trial hearing was held on November 8, 2012. During the hearing, Mazique told the court he wanted a new attorney. After hearing Mazique's complaints about his attorney, the court declined to rule on the request until the day of trial and ordered his attorney to represent him at trial unless Mazique chose to represent himself. The trial was held on November 15–16, 2012. Mazique was represented initially by Melinda A. Knowles at the pre-trial hearing and by Knowles and James C. Galmore at the start of his trial. On the day of the trial and prior to the selection of the jury, Mazique requested to represent himself. The court advised him of the dangers of representing himself in an armed robbery case, and Mazique responded that his two attorneys were "not an option" and he was "forced" to represent himself. Mazique proceeded throughout the trial and sentencing self-represented. The jury found him guilty of armed robbery and the court sentenced him to twenty-five years' incarceration. This appeal followed.1
In criminal cases, this court sits to review errors of law only, and is bound by the trial court's factual findings unless those findings are clearly erroneous. State v. Edwards , 384 S.C. 504, 508, 682 S.E.2d 820, 822 (2009). Thus, on review, the court is limited to determining whether the trial court abused its discretion. Id. An abuse of discretion occurs when the court's decision is unsupported by the evidence or controlled by an error of law. State v. Black , 400 S.C. 10, 16, 732 S.E.2d 880, 884 (2012). The appellate court "does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial court's ruling is supported by any evidence." Edwards , 384 S.C. at 508, 682 S.E.2d at 822.
Mazique argues the trial court erred in not conducting a timely and adequate inquiry as to his motion for the appointment of substitute counsel. We disagree.
The question of whether an appellant's court appointed counsel should be discharged is a matter addressed to the discretion of the trial judge, and this court will not interfere absent an abuse of such discretion. State v. Graddick , 345 S.C. 383, 385, 548 S.E.2d 210, 211 (2001). The "[a]ppellant bears the burden to show [a] satisfactory cause for removal." Id. at 386, 548 S.E.2d at 211.
In Graddick , our Supreme Court held the trial court did not abuse its discretion in refusing to grant Graddick's request for new counsel four days before the start of his trial for murder when he made only the most conclusory arguments as to why his counsel should have been relieved, including: Id.
During the pre-trial hearing on November 8, Mazique told the court he wanted another attorney appointed: "I'm not qualified to go pro se ; I just want another attorney." The court allowed Mazique to expound on why he was unhappy with his attorney. First, he stated his attorney waived his rights to his preliminary hearing without his consent. The court explained to Mazique that the Grand Jury true billed his indictment and he was not entitled to a preliminary hearing.
Second, Mazique stated his attorney knew the solicitor was in possession of exculpatory evidence, an alleged altered tape recording of his statement to police, and she would not file a pre-trial motion to obtain the evidence. The State asserted it turned over all the recordings to Mazique and there was no alteration of the recordings. Mazique then stated he wanted the recording device and the officer's hard drive. Mazique's attorney stated she filed the motion to receive the evidence Mazique requested and the State replied it did not have access to the recording machine. The court then explained to Mazique that he was not entitled to the actual recording device, just the original recording, and the recording's authenticity would be questioned at trial.
Third, Mazique stated the arresting officer committed perjury by changing his indictment from committing an armed robbery with a box of ammunition to committing an armed robbery with a firearm. The State responded that the arrest warrant and the indictment both stated Mazique committed armed robbery. The State explained he was also charged with possession of bullets as a federally convicted felon; however, the State was only going forward on the armed robbery. The court explained the indictment for armed robbery was true billed and he was going to trial on the exact language contained in the indictment.
Fourth, Mazique asserted he had been asking his attorney to file a motion for the production of the cigarettes so he could have his own independent tests done on them. The State responded the police found forty to sixty cartons of cigarettes in Mazique's house and after photographing them, the State returned the cigarettes to the store. Mazique told the court he had two other pending strong-armed robberies where he stole cigarettes and he had the right to determine if the cigarettes were from this robbery or another one. The court found it was sufficient that the State had video of Mazique in the store with a gun, taking Newport cigarettes and putting them in a plastic bag; statements from Mazique; a positive identification from the witness at the store; and cartons of cigarettes at his residence.
Next, Mazique told the court he would not move forward with his attorney because he did not trust her and there was no "line of communication." The court told Mazique he had three options: go to trial the next week with his current attorney; hire his own attorney; or represent himself. The court stated Mazique was entitled to a lawyer, but not the lawyer of his choice, and his current attorney was an excellent lawyer. Mazique responded, The court told Knowles that, The court then held a Jackson v. Denno2 hearing with Knowles representing Mazique against his objections.
On appeal, Mazique argues the trial court "indicated that it would listen to [his] grounds but then cut [him] off before he finished" and the court "never conducted a proper inquiry into the basis for [his] motion to have new counsel appointed." Further, he asserts "the trial court's failure to conduct a through [sic] inquiry resulted in a lack of record for this Court to affirm the trial court's denial of [his] motion." We find the court listened to Mazique's complaints about his attorney and found them to not be a satisfactory cause for removal; therefore, the trial court did not abuse its discretion in declining to appoint Mazique new counsel seven days before his trial.
Mazique argues the trial court erred in denying him the right to self-representation at a critical stage of the proceedings. We disagree.
"A South Carolina criminal defendant has the constitutional right to represent himself under both the federal and state constitutions." State v. Barnes , 407 S.C. 27, 35, 753 S.E.2d 545, 550 (2014). "The request to proceed pro se must be clearly asserted by the defendant prior to trial." State v. Fuller , 337 S.C. 236, 241, 523 S.E.2d 168, 170 (1999). An accused is allowed to waive his right to counsel if he is (1) advised of his right to counsel, and (2) adequately warned of the...
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...of a desire to proceed pro se prior to trial" and had merely requested to have his attorney dismissed); State v. Mazique, 419 S.C. 282, 295, 797 S.E.2d 730, 737 (Ct. App. 2016) (finding no error in the trial court's denial of the defendant's motion to dismiss because the request to proceed ......