State v. Sweezy

• Decision Date: 21 December 1976
• Docket Number: No. 56,56
• Citation: 291 N.C. 366,230 S.E.2d 524
• Parties: STATE of North Carolina v. Ivey SWEEZY, Jr.
• Court: North Carolina Supreme Court

Page 524

230 S.E.2d 524

291 N.C. 366

STATE of North Carolina v. Ivey SWEEZY, Jr.

No. 56.

Supreme Court of North Carolina.

Dec. 21, 1976.

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

Michael K. Hodnett, Asst. Public Defender, Gastonia, for defendant-appellant.

BRANCH, Justice.

Defendant contends that he was denied a fair trial because the trial judge, without giving him a hearing, denied his request that his attorneys be removed. Defendant was represented by the Office of the Public Defender and Mr. Fred A. Flowers of the Shelby Bar, who was appointed by the court to assist in the defense.

The record reveals the following pertinent exchanges:

DEFENDANT: I want me another lawyer. I feel like Mr. Hodnett and them are not going to represent me properly.

COURT: You sit down. You have an attorney.

DEFENDANT: I feel like he's not going to represent me properly.

COURT: Do you hear me? You have two fine attorneys there and they are representing you properly and I better not hear any more of these outbursts. You continue this and I'm going to gag you. I'm giving you fair warning. You continue the outbursts in the presence of this Court and I'm going to have you gagged, do you understand that? Let the record so show.

DEFENDANT: I know my constitutional rights and my right to speak for myself.

* * *

* * *

COURT: Any further witnesses?

MR. HODNETT: Yes, sir. We call Mr. Sweezy.

DEFENDANT: Don't put that man on the stand.

(Mr. Flowers and Mr. Hodnett and Mr. Morris approach the bench for discussion off the record.)

COURT: Let the record show that at the conclusion of the examination, direct examination and cross, of the defendant's voir dire witness number one, both counsel for the defendant approached the bench as they properly should have done and advised the Court that the defendant has made a motion that they be removed as trial counsel in this case. Let the record further show that this Court is of the opinion that both counsel are doing a very credible job in his defense; that we are now in the trial; that this is a very serious felony; that the defendant needs counsel; and the Court will DENY his motion to remove them as counsel. All right, any further evidence on the voir dire?

* * *

* * *

DEFENDANT: Judge, Your Honor, I'd like to have two black lawyers. I feel like these counsel are not going to represent me properly.

COURT: Please sit down, Mr. Sweezy.

DEFENDANT: Could I have two black lawyers?

COURT: Would you please sit down, Mr. Sweezy.

DEFENDANT: My name is Ivey.

COURT: Ladies and gentlemen of the jury, could I ask you to step in the jury room a minute, please.

JURY EXITS THE COURTROOM.

COURT: Mr. Sweezy, I'm informing you that proper decorum in the courtroom does not permit this type of action on your part. Should you do this one more time, I'm going to exclude you from the courtroom again. All right, Mr. Sheriff, let the jury come back in.

* * *

* * *

COURT: Do you want to testify or do you not, Mr. Sweezy? You will answer this Court. Do you want to testify or do you not want to testify? You will answer me yes or no.

DEFENDANT: I fired Hodnett and Flowers here.

Unquestionably it is the right of an indigent defendant to have competent counsel appointed to represent him at his trial. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; State v. Robinson, 290 N.C. 56, 224 S.E.2d 174. An accused has the right to conduct his own defense without counsel but he does not have the right to have the attorney of his choise appointed by the court. State v. Robinson, supra. Neither does the right to competent court-appointed counsel include the privilege to insist that counsel be removed and replaced with other counsel merely because defendant becomes dissatisfied with his attorney's services. United States v. Young, 5 Cir., 482 F.2d 993; State v. Robinson, supra; State v. McNeil, 263 N.C. 260, 139 S.E.2d 667.

In United States v. Young, supra, defendant contended that he was deprived of effective assistance of counsel. He expressed suspicion that his counsel had communicated confidential defense matters to the prosecutor. The trial judge summarily rejected this suggestion on the basis of his longstanding knowledge of counsel's professional conduct. Defendant then posed a more general objection by stating: 'Well, Your Honor, I am not trying to tell you that you don't know Mr. Young. (Defendant's counsel) I feel that he won't represent me.' Holding that the trial judge's failure to appoint another attorney for the defendant without conducting a hearing was not reversible error, the Fifth Circuit Court of Appeals stated:

. . . Unless a Sixth Amendment violation is shown, whether to appoint a different lawyer for an indigent criminal defendant who expresses dissatisfaction with his court-appointed counsel is a matter committed to the sound discretion of the district court. The Second Circuit has recently summarized the applicable principles:

In order to warrant a substitution of counsel during trial, the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict. Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970); United States v. Crow, 394 F.2d 182, 209 (4th Cir.), cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111 (1968); United States v. Gutterman, 147 F.2d 540 (2d Cir. 1945). If a court refuses to inquire into a seemingly substantial complaint about counsel when he has no reason to suspect the bona fides of the defendant, or if on discovering justifiable dissatisfaction a court refuses to replace the attorney, the defendant may then properly claim denial of his Sixth Amendment right. Brown v. Craven, supra. In the absence of a conflict which presents such a Sixth Amendment problem, the trial court has discretion to decide whether to grant a continuance during the course of trial for the substitution of counsel, and that decision will be reversed only if the court has abused its discretion.

United States v. Calabro, 2d Cir. 1972, 467 F.2d 973, 986. See also United States v. Sexton, supra; United States v. Morrissey, 2d Cir. 1972, 461 F.2d 666; Brown v. Craven, 9th Cir. 1970, 424 F.2d 1166; Bowman v. United States, 5th Cir. 1969, 409 F.2d 225, cert. denied, 398 U.S. 967, 90 S.Ct. 2183, 26 L.Ed.2d 552, reh. denied, 400 U.S. 912, 91 S.Ct. 128, 27 L.Ed.2d 152; United States v. Grow, 4th Cir. 1968, 394 F.2d 182, 209, cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111; United States v. Gutterman, 2d Cir. 1945, 147 F.2d 540; United States v. Mitchell, 2d Cir. 1943, 138 F.2d 831.

It would have been the better practice for the trial judge to have excused the jury and allowed defendant to state his reasons for desiring other counsel. If no good reason was shown requiring the removal of counsel, then the court should have determined whether the defendant actually desired to conduct his own defense.

Even so, this record does not reflect a substantial claim that defendant has been denied effective assistance of counsel. No irreconcilable conflict or breakdown in communication between defendant and his counsel has been demonstrated. Defendant merely stated that he Felt that his counsel were not Going to represent him properly without pointing to any act or omission indicating incompetency or lack of diligence on the part of his counsel. Neither does the record show any disagreement between defendant and his counsel as to trial tactics. Defendant did not request that he be allowed to represent himself, but only indicated a desire that his counsel be replaced 'by two black lawyers.' Defendant's courtroom behavior gave the trial judge every right 'to suspect the bona fides of the defendant.' Although there was no formal hearing on defendant's request, the record makes it crystal clear that defendant did not stand on formalities but made his wishes and opinions known frequently and vociferously. We, therefore, find no reversible error in the trial judge's refusal, without a hearing, to remove defendant's counsel and appoint two 'black lawyers' in their stead.

Defendant assigns as error the trial judge's denial of his motion to suppress the identification testimony of the witness Connie Elmore Grigg. He argues that an illegal lineup and an impermissibly suggestive photographic procedure irreparably tainted the in-court identification.

The trial judge conducted a Voir dire hearing at which he heard evidence as to the pretrial photographic identification and as to the lineup. On Voir dire, Mrs. Grigg, in substance, testified that on the night of 7 September 1973, at about 11:45 p.m., she went into her dining room to pick up some bills. Her bathroom opened to an enclosed side porch and the door to the lighted bathroom was open. The dining room was lighted by a chandelier which was about nine feet from the outside door leading to the enclosed side porch. She was about four feet from the entry from the side porch into her dining room when she first observed defendant. He had on blue pants, a blue short-sleeved shirt, and was wearing a ladies' stocking up to his elbow on his right arm. He appeared to be about five feet seven or eight inches tall and weighed approximately 175 pounds. Defendant was partially on the porch and he had his right hand on the doorknob. He began to motion her to come to him with his right arm. She screamed and defendant began to shake his head 'for me to hush screaming and doing his mouth like he was saying s-h-h-h and shaking his head no and he was also frowning.' Defendant then left. The door was closed but not locked prior to the time that she first observed defendant. She positively identified defendant as the man she saw in her home on the night of 7 September 1973. She stated that 'there is good light out on the side porch when you have the dining room light on.'

Mrs. Grigg further testified that two days...