State v. Robinson

• Decision Date: 14 May 1976
• Docket Number: No. 42,42
• Citation: 224 S.E.2d 174,290 N.C. 56
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jerome ROBINSON.

Page 174

224 S.E.2d 174

290 N.C. 56

STATE of North Carolina v. Jerome ROBINSON.

No. 42.

Supreme Court of North Carolina.

May 14, 1976.

Rufus L. Edmisten, Atty. Gen. by Alan S. Hirsch, Associate Atty., Raleigh, for the State.

Peter H. Gerns, Charlotte, for defendant.

LAKE, Justice.

The defendant, an indigent, was entitled to representation by counsel at his trial and it was the duty of the trial court to appoint competent counsel so to represent him, unless the defendant voluntarily and understandingly waived his right thereto. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Conversely, a defendant, so charged with a criminal offense, has the right, if he so elects, to conduct his own defense without counsel. The services of counsel unsatisfactory to him may not be forced upon him. State v. Alston, 272 N.C. 278, 158 S.E.2d 52 (1967); State v. Morgan, 272 N.C. 97, 157 S.E.2d 606 (1967); State v. Elliott, 269 N.C. 683, 153 S.E.2d 330 (1967); State v. McNeil, 263 N.C. 260, 139 S.E.2d 667 (1964).

The right of an indigent defendant charged with a criminal offense to have counsel appointed to represent him at his trial is not 'an empty formality but is intended to guarantee effective assistance of counsel.' State v. Sneed, 284 N.C. 606, 201 S.E.2d 867 (1974). It is not, however, a right to have the attorney of his choice appointed to represent him.

In State v. McNeil, supra, counsel was appointed to represent the defendant at his trial. As in the present case, McNeil informed the court that he wanted a lawyer to represent him but did not wish to be represented by his appointed counsel, his reason being that, in his opinion, the lawyer was 'doing me no good.' In support of this position, he said, 'He talks against me; I tell him what to say and he says other things.' The trial court informed the defendant that his court-appointed counsel was found by the court to be well qualified, but if the defendant would prefer to have no one rather than his court-appointed counsel, the court would release the court-appointed counsel. This was done and the defendant conducted his trial himself with disastrous results. Upon appeal this Court, speaking through Justice Parker, later Chief Justice, said:

'The United States Constitution does not deny to a defendant the right to defend himself. Nor does the constitutional right to assistance of counsel justify forcing counsel upon a defendant in a criminal action who wants none. * * *

'An indigent defendant in a criminal action, in the absence of statute, has no right to select counsel of his own choice to defend him, and we have no statute in North Carolina that gives him the right to select counsel. In the absence of any substantial reason for replacement of court-appointed counsel, an indigent defendant must accept counsel appointed by the court, unless he desires to present his own defense.'

The constitutional right of an indigent defendant in a criminal action to have the effective assistance of competent counsel, appointed by the court to represent him, does not include the right to insist that competent counsel, so assigned and so assisting him, be removed and replaced with other counsel merely because the defendant has become dissatisfied with his services. In State v. Sneed, supra, speaking through Justice Branch, this Court said:

'(I)ncompetency * * * of counsel for the defendant in a criminal prosecution is not a Constitutional denial of his right to effective counsel unless the attorney's representation is so lacking that the trial has become a farce and a mockery of justice.'

A mere disagreement between the defendant and his court-appointed counsel as to trial tactics is not sufficient to require the trial court to replace court-appointed counsel with another attorney. Trial counsel, whether court-appointed or privately employed, is not the mere lackey or 'mouthpiece' of his client. He is in charge of and has the responsibility for the conduct of the trial, including the selection of witnesses to be called to the stand on behalf of his client and the interrogation of them. He is an officer of the court and owes duties to it as well as to his client. In this there is no conflict of interest. Clearly, the client has no right to insist that counsel assist him by presenting in evidence testimony which counsel knows, or reasonably believes, constitutes perjury. This was the sole basis for the discord between the defendant and his court-appointed trial counsel, Mr. Burns. Mr. Burns' refusal to be a party to the introduction of what he reasonably believed to be perjured testimony and his action in bringing this to the attention of the trial court was commendable, not basis for his removal as a disloyal counsel.

The existence of such a conflict of wills between the defendant and his court-appointed counsel...