State v. Atkinson

277 S.E.2d 464 (1981)

STATE of North Carolina v. Roger ATKINSON.

No. 805SC1193.

Court of Appeals of North Carolina.

May 5, 1981.

*465 Atty. Gen., Rufus L. Edmisten by Deputy Atty. Gen., William W. Melvin and Asst. Atty. Gen., William B. Ray, Raleigh, for the State.

D. Webster Trask, Wilmington, for defendant-appellant.

VAUGHN, Judge.

All of the assignments of error relate, to a substantial degree, to Judge Fountain's refusal, in the face of repeated requests throughout the course of the trial on 21 August 1980, to appoint an attorney to represent defendant. We hold that the judge acted properly in each instance to which defendant took exception.

Defendant's primary contention is that the court was required to assign counsel *466 for his representation on the day of the trial even though he had previously signed two waivers of this right and had told Judge Fountain on several occasions, including the very day of the trial itself, that he had the financial resources necessary to hire his own attorney. We disagree. The record in this case clearly demonstrates that defendant effectively waived his right to counsel in a knowing and voluntary manner. Despite defendant's signed waiver, Judge Fountain inquired twice about defendant's ability to get a lawyer before trial and thus indicated his willingness to assign counsel if defendant showed the requisite need. Defendant, however, insisted that he could provide counsel for himself and asked the judge for two continuances instead. Defendant was given adequate time to retain counsel yet he failed to do so. In these circumstances, Judge Fountain acted fairly and properly, and he was not required to appoint counsel when defendant suddenly changed his mind, five minutes before the trial actually began, and asked the court to get him a lawyer because he could no longer afford one himself when he had confirmed his financial ability to do so only thirty minutes earlier. Defendant did not meet his burden of showing sufficient facts entitling him to a withdrawal of the waiver of right to counsel, nor did he show good cause for delay, and the court correctly refused to entertain his dilatory tactics further.[1]See State v. Smith, 27 N.C.App. 379, 219 S.E.2d 277 (1975); State v. Watts, 32 N.C.App. 753, 233 S.E.2d 669, review denied, 292 N.C. 734, 235 S.E.2d 788 (1977). See also State v. Clark, 33 N.C.App. 628, 235 S.E.2d 884 (1977).

Defendant also contends that the court expressed unlawful opinions and ridiculed him before the jury. The record does not support such a contention. After the court denied defendant's belated request for assigned counsel, defendant persistently sought opportunities to argue with the court, in front of the jury, concerning the alleged denial of his constitutional rights. It suffices to say that we have examined the content of Judge Fountain's statements and fail to find any error whatsoever. He correctly explained to defendant and the jury the reason for his denial of assigned counsel in a legitimate effort to prevent confusion and promote the rendering of an impartial verdict. We, therefore, overrule this assignment of error.

After careful review, we also overrule the remaining assignments of error, in which defendant contends that the judge promised to examine the potential jurors on his behalf but failed to do so effectively and improperly allowed the State's objection to the record on appeal. Again, we hold that Judge Fountain acted fairly and well within the bounds of reasoned discretion in each instance, and these assignments of error are patently without merit.

In conclusion, defendant is not entitled to a new trial as he was duly convicted in a fair and impartial proceeding upon a record which fails to disclose any prejudicial error.

No error.

CLARK and WELLS, JJ., concur.

[1] In his brief, defendant contends that his waiver of right to counsel was conditional and that he told Judge Fountain that he would be able to afford his own counsel only if a business transaction, involving the sale of his nightclub, was completed. We reject this argument. Defendant signed a waiver form which was absolute on its face, and the record does not show that defendant informed the court of the alleged condition at any time before trial. Rather, the record supports the conclusion that defendant raised this matter for the first time at the hearing held to settle the record on appeal after his conviction.