Opinion
No. COA08-1334.
January 5, 2010.
Wake County Nos. 06CRS029841-42.
Appeal by defendant from judgment entered on or about 13 June 2007 by Judge Ronald L. Stephens in Superior Court, Wake County. Heard in the Court of Appeals 8 April 2009.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General E. Burke Haywood, for the State. Jarvis John Edgerton, IV, for defendant-appellant.
Defendant was tried before a jury and found guilty of trafficking in cocaine by possession of more than 28 grams and trafficking in cocaine by transportation of more than 28 grams. Defendant appeals, arguing he was deprived of his constitutional right to counsel when the trial court failed to comply with N.C. Gen. Stat. § 15A-1242 and that the trial court committed plain error when it failed to instruct the jury on a lesser included offense. For the following reasons, we conclude defendant is entitled to a new trial.
I. Background
On 4 April 2006, the Raleigh Police Department ("RPD") arranged to have five ounces of cocaine delivered to an informant's apartment. Officers waited inside the apartment for the cocaine to arrive. Defendant and his companions, Omar and Brandon, arrived at the informant's apartment in Omar's gold BMW. Omar walked up the stairs, rang the doorbell of the apartment, and then walked back down the stairs. The police emerged from their hiding places. Brandon escaped, but was arrested about two months later. Omar threw a bag containing 140.8 grams of cocaine into the air before being apprehended by police. A second bag of cocaine containing 41.7 grams was also found in the pine straw near Omar's feet. Defendant was arrested at the scene, with three grams of cocaine in his pocket.
Defendant was tried before a jury and found guilty of trafficking in cocaine by possession of more than 28 grams and trafficking in cocaine by transportation of more than 28 grams. On or about 13 June 2007, the trial court sentenced defendant to 35 to 42 months imprisonment. Defendant appeals, arguing he was deprived of his constitutional right to counsel when the trial court failed to comply with N.C. Gen. Stat. § 15A-1242 and that the trial court committed plain error when it failed to instruct the jury on a lesser included offense. For the following reasons, we conclude defendant is entitled to a new trial.
II. Right to Counsel
Defendant claims that "the August 17, 2006, hearing court committed constitutional and statutory error by relieving standby counsel without [defendant]'s election, and without a thorough inquiry, in violation of the mandatory requirements of N.C. Gen. Stat. § 15A-1242." (Original in all caps.) Defendant further claims that the trial court erred "when it allowed [defendant] to proceed pro se[.]" Defendant specifically refers in his argument to assignment of error number two which provides that
[t]he 8/17/2006 Hearing Court's allowance of defendant to represent himself, and the Trial Court's entry of Judgment and Commitment in all cases; on the grounds that the Hearing Court failed to conduct the statutory inquiries required prior to allowing a defendant to represent himself. The Hearing Court's allowance of defendant to represent himself, and the Trial Court's entry of Judgments and Commitment, were erroneous in law under N.C. Gen. Stat. § 15A-1242, and a violation of defendant's rights under the Sixth and Fourteenth Amendments to the United States Constitution.
On or about 5 April 2006, the Public Defender's Office ("PDO") was appointed to represent defendant. The PDO assigned James Bell, a private attorney, as defendant's counsel. On 17 July 2006, Bell moved to withdraw as defendant's counsel. Bell was allowed to withdraw, and the PDO was re-appointed to represent defendant. The PDO assigned Daniel Dolan as defendant's counsel. On 17 August 2006, defendant moved in open court before Judge Howard E. Manning to discharge Dolan and to represent himself.
At the 17 August 2006 hearing on defendant's motion to discharge appointed counsel, the trial court held the following colloquy with defendant:
THE COURT: You understand that you certainly have a right to counsel to assist you in the defense of your case.
THE DEFENDANT: Yes, sir.
THE COURT: And you want to do this without benefit of counsel.
THE DEFENDANT: Yes, sir.
THE COURT: I'd like to appoint standby counsel, someone who will stand, sit back behind there, advise on any questions that you may have.
THE DEFENDANT: Yes. I can do that, Your Honor.
THE COURT: All right. Well, Mr. Dolan will be your standby counsel. Apparently you didn't like any of the lawyers; did you.
THE DEFENDANT: It is just that, Your Honor their approach. I just received a letter from Mr. Dolan. This doesn't show that he's competent to me at all.
THE COURT: You may proceed. Then you may proceed without counsel.
THE DEFENDANT: Okay.
THE COURT: It's your own election. Mr. Dolan is hereby relieved, the Public Defendant's Office is hereby relieved, and that will close the issue on counsel. You knowingly, willfully, and voluntary, understandingly want to proceed without counsel, to represent yourself. That's your right. I'm not going to stand in that way. So, that's it.
After this brief colloquy, the trial court orally ordered the prosecutor to turn all discovery materials over to defendant. The trial court also entered a written order concluding that "defendant knowingly, voluntarily, and understandingly waived counsel."
On 20 September 2006, Judge Stafford G. Bullock heard defendant's pro se pretrial motions. Defendant's trial was calendered for the week of 3 April 2007. When defendant's case was called on 3 April 2007, Judge Paul Gessner noted that no attorney was present for defendant. Judge Gessner proceeded to conduct a thorough inquiry regarding defendant's choice to proceed pro se. At the end of the inquiry, defendant affirmatively waived the right to counsel, but not to standby counsel. Judge Gessner appointed the PDO as standby counsel and continued the case so that standby counsel would be present. At defendant's trial beginning on 4 June 2007, standby counsel was present. Thus, the 20 September 2006 hearing regarding defendant's motions was the only substantive hearing where defendant was not represented by counsel or did not have standby counsel.
"A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless." N.C. Gen. Stat. § 15A-1443(b) (2005).
This Court has long recognized the state constitutional right of a criminal defendant to handle his own case without interference by, or the assistance of, counsel forced upon him against his wishes. However, before allowing a defendant to waive in-court representation by counsel the trial court must insure that constitutional and statutory standards are satisfied.
Once a defendant clearly and unequivocally states that he wants to proceed pro se, the trial court must determine whether the defendant knowingly, intelligently, and voluntarily waives the right to in-court representation by counsel. A trial court's inquiry will satisfy this constitutional requirement if conducted pursuant to N.C.G.S. § 15A-1242.
State v. Moore, 362 N.C. 319, 321-22, 661 S.E.2d 722, 724 (2008) (citations, quotation marks, brackets, and ellipses omitted). N.C. Gen. Stat. § 15A-1242 provides:
A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the 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 permissible punishments.
N.C. Gen. Stat. § 15A-1242 (2005).
Here, at the 17 August 2006 hearing, although the trial court clearly informed defendant of his right to counsel, it failed to ensure that defendant "[u]nderst[oo]d[] and appreciate[d] the consequences of [his] decision" or that defendant "[c]omprehend[ed] the nature of the charges and proceedings and the range of permissible punishments." Id. Thus, this case is like State v. Pruitt, in that at the 17 August 2006 hearing,
[w]hile the record does reveal that defendant was aware of his right to counsel, there is nothing in the record which shows that defendant understood and appreciated the consequences of proceeding pro se nor is there anything in the record which shows that defendant understood the nature of the charges and proceedings and the range of permissible punishments. It is the trial court's duty to conduct the inquiry of defendant to ensure that defendant understands the consequences of his decision.
322 N.C. 600, 604, 369 S.E.2d 590, 593 (1988) (citations and quotation marks omitted). Therefore, we conclude that the trial court erred in failing to comply with the mandates of N.C. Gen. Stat. § 15A-1242, and as such defendant's constitutional right to counsel was violated. See Moore at 322, 661 S.E.2d at 724.
N.C. Gen. Stat. § 15A-1443(b) provides that "[a] violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless." N.C. Gen. Stat. § 15A-1443(b) (emphasis added). The
State's brief argues that the 17 August 2006 trial court did not err by failing to conduct the full inquiry required by N.C. Gen. Stat. § 15A-1242; the State then argues that if any error occurred, it was "cured" by the colloquy at the 3 April 2007 hearing and thereafter.
The State is correct that it would be possible for the error to be "cured" by a later inquiry by the trial court, if the State can demonstrate that nothing harmful to defendant occurred during the time prior to the proper inquiry by the trial court. See id. However, the State failed to recognize that it is the State's burden "to demonstrate, beyond a reasonable doubt, that the error was harmless." Id. Thus, the State has failed to demonstrate that defendant was not harmed during the time without counsel, from 17 August 2006 until new standby counsel was appointed for his 4 June 2007 hearing. From the record before us it appears there was only one substantive hearing at which defendant was not represented by counsel or provided with standby counsel; it appears likely that nothing harmful to defendant's case transpired during that hearing, although defendant does argue he was prejudiced by various rulings. However, the burden is on the State to demonstrate that any error was harmless beyond a reasonable doubt, id., and it is not proper for this Court to carry that burden for the State. As the State has failed to show that the trial court's error was harmless beyond a reasonable doubt, we must deem the error prejudicial and remand for a new trial. See N.C. Gen. Stat. § 15A-1443(b); State v. Pruitt, 322 N.C. 600, 369 S.E.2d 590 (mandating a new trial when the trial court failed to conduct a thorough inquiry under N.C. Gen. Stat. § 15A-1242).
III. Conclusion
We conclude that defendant's constitutional right to counsel was violated. As the State has failed to argue or demonstrate that this violation was harmless beyond a reasonable doubt, defendant is entitled to a new trial. As we are providing defendant with his requested relief, we need not address his other contention.
NEW TRIAL.
Judges ELMORE and ERVIN concur.
Report per Rule 30(e).