State v. Morris, 6822SC218

• Decision Date: 18 September 1968
• Docket Number: No. 6822SC218,6822SC218
• Citation: 163 S.E.2d 108,2 N.C.App. 262
• Parties: STATE of North Carolina v. Thomas Bernard MORRIS (Case #13,612).
• Court: North Carolina Court of Appeals

Page 108

163 S.E.2d 108

2 N.C.App. 262

STATE of North Carolina v. Thomas Bernard MORRIS (Case #13,612).

No. 6822SC218.

Court of Appeals of North Carolina.

Sept. 18, 1968.

J. LeVonne Chambers and James E. Ferguson, II, Charlotte, for defendant appellant.

T. W. Bruton, Atty. Gen., by William W. Melvin, Asst. Atty. Gen., and T. Buie Costen, Raleigh, Staff Atty., for the State.

CAMPBELL, Judge.

The defendant presents four questions.

One, the defendant asserts that it was incumbent upon the trial court to advise the defendant that he had a constitutional right to counsel; that if he could not afford counsel, the court would appoint counsel for him; that the court must advise the defendant of the possible adverse consequences of going to trial without counsel; and that it was error to proceed to trial without a specific finding of waiver of counsel.

Counsel for defendant have been most diligent in their presentation of this point. They have cited numerous cases with regard to the constitutional right of accused persons to have counsel. They take the position that where the offense is punishable by as much as two years imprisonment, no one can be tried until and unless the trial court makes a finding to the effect that the defendant not only understands that he is entitled to counsel to represent him but that he further understands that if he is indigent and does not have counsel, the State will afford him counsel. They also assert that the court must further find that he 'intelligently and understandingly' rejects the offer for counsel. They rely upon the case of Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, wherein it is stated:

'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.'

This same argument was advanced and was considered by the Supreme Court of North Carolina in State v. Sherron, 268 N.C. 694, 151 S.E.2d 599. In that case, Pless, J., speaking for the Court referred to the North Carolina Statute pertaining to appointment of counsel for indigent defendants, and stated:

'Interpreting the statute, it is clearly apparent that the Legislature intended to make a distinction between the right of one charged with a felony to have court-appointed counsel and the duty to appoint attorneys for persons charged with a misdemeanor. It places upon the judge the affirmative duty to advise the defendant in felony cases that he is entitled to counsel and to appoint counsel for him if he is indigent, or unless the defendant executes a written waiver of his right thereto. None of these provisions are included as to misdemeanors, and even for an indigent defendant the judge may exercise his discretion as to appointing counsel, and shall do so only when the judge is of the opinion that the appointment is warranted.'

In the Sherron case the defendant was tried on three charges of misdemeanors subjecting him to a maximum of two years in each or a total of six years. He was actually convicted in two of the misdemeanors and acquitted in the third and was given a sentence of ninety days. In the Sherron case the Supreme Court of North Carolina points out that the Supreme Court of the United States has made no requirement regarding misdemeanors and '(n)either has it in any case we can find put a responsibility on a State court greater than that imposed by its State statute. Here, with no record to support it, the defendant can prevail only if we hold that the silence of the record must be interpreted to mean that the judge should have found that the appointment of counsel was warranted, that the defendant was indigent, and that the Court abused his discretion in failing to appoint counsel.'

In the instant case the defendant has never claimed to be an indigent or illiterate. To the contrary, the record discloses a person who owns his own automobile, who worked as a landscape gardener carrying out beautification programs for different housing authorities, who lived with his wife in their own home, and whose wife was 'Director of Thomasville Nursery School.' The defendant had his own privately-retained attorney when he appeared in the Recorder's Court in the City of Thomasville. He appears in this Court with two privately-retained attorneys. He has been free on bail bond ever since the offense was committed 24 September 1967, and he has paid all costs for perfecting this appeal. At no time has he made the contention that he is indigent and unable to afford private counsel.

On the present record where the defendant charged with a misdemeanor is not an indigent, where he had a privately-retained attorney at his trial in the Recorder's Court in the City of Thomasville, where he has been free on bond at all times, and where he has had ample opportunity and resources to have an attorney appear for him in the superior court, if he desired, we hold it was not error for the trial court to fail to make a specific finding that the defendant 'intelligently and understandingly' elected to have no attorney appear for him.

This assignment of error is overruled.

Two, the defendant asserts that it was error on the part of the trial court not 'to adequately aid the defendant in the presentation of his defense.'

In support of this position, counsel for defendant cite Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. This case does not support the defendant's position; it stands for the proposition that a trial judge must protect an accused 'from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom * * *.'

Counsel for the defendant cite no authority to sustain their position that it is incumbent upon the trial court to become the advocate for a defendant who appears without counsel. For a trial court to become the advocate of a defendant in such a situation would deprive society of one of its bulwarks. The trial judge must conduct himself so that there is fairness and equality of justice between the accused on the one hand and society on the other.

In all legal proceedings, judicial impartiality is mandatory for a fair trial; but this fairness would be destroyed if a trial judge became an active and interested participant in the presentation of a defendant's case. It would be error for the trial judge to become the advocate of either party.

The record in the instant case shows that the judge at all times acted fairly and properly in order to afford the defendant due process of law and a fair trial.

This assignment of error is overruled.

Three, the defendant asserts that the trial court admitted error in failing to exclude statements made by the defendant to police officers and by permitting the police officers to testify as to the intoxicated condition of the defendant.

In support of this position, counsel for the defendant assert that the trial court should have had a Voir dire examination from which it should have made a determination as to whether or not the defendant voluntarily and freely made a confession. The defendant also asserts that evidence was illegally obtained by a search and that the trial court was in error in permitting such illegal evidence to be introduced. Counsel for the defendant rely upon Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; State v. Bishop, 272 N.C. 283, 158 S.E.2d 511 and State v. McDaniel, 272 N.C. 556, 158 S.E.2d 874.

The authorities cited by counsel for the defendant pertain to illegal searches and confessions by defendants under such circumstances that they are incompetent to be used in a trial of the defendant or that they were not voluntarily given and were in violation of the constitutional rights against self-incrimination of the particular defendant.

None of these cases and contentions is applicable in the instant case.

The defendant was being tried for operating a motor vehicle upon a public street in the City of Thomasville at a time when he was under the influence of some intoxicating beverage. The State relied upon the testimony of Police Officer George Burton who testified that he saw the defendant drive the automobile on a public street and that at the time the defendant was under the influence of some intoxicating beverage. This officer testified from personal view of the defendant before he entered the automobile to start driving. This witness further testified as to the manner in which the defendant drove the vehicle. He testified to going to the home of the defendant and being invited into the home by the defendant's wife. This witness on direct examination did not testify as to any conversation with the defendant while he was in the home of the defendant. The defendant himself voluntarily brought out on cross-examination of this officer the contents of this conversation.

The State also relied upon the testimony of Police Officer Gilbert Batten. Batten did not see the defendant driving the vehicle. He did testify as to the appearance of the defendant when he observed him in the defendant's home. This did not constitute a search or any voluntary confession on the part...