State v. Robinson

Annotate this Case

224 S.E.2d 174 (1976)

290 N.C. 56

STATE of North Carolina v. Jerome ROBINSON.

No. 42.

Supreme Court of North Carolina.

May 14, 1976.

*178 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 *179 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 *180 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 did not require the trial court to replace such counsel with another attorney. Under these circumstances, the appointment of another attorney rested in the sound discretion of the trial court and we find in this record no indication of abuse of that discretion. See: United States v. Young, 482 F.2d 993 (5th Cir., 1973). There was, therefore, no error in the denial of the defendant's motion for the appointment of another counsel.

The record does, however, show clearly that an irreconcilable conflict had arisen between the defendant and his court-appointed counsel, and the defendant repeatedly stated to the court that he did not wish to have Mr. Burns continue to represent him at his trial. Though the defendant's dissatisfaction with his court-appointed counsel appeared to the trial court, and appears to us, to have been completely unjustified, the defendant was entitled to try his case without the presence of Mr. Burns at the counsel table, if he so desired. State v. McNeil, supra. Upon the defendant's advising the court that he did not desire to be represented at his trial by Mr. Burns, the trial court, having found there was no other basis for removing Mr. Burns, could properly have advised the defendant that if the defendant insisted thereon, the court would relieve Mr. Burns from his assignment but would not appoint another counsel to represent the defendant at the trial. Instead of doing this, the trial court, in an obvious effort to afford the defendant assistance which circumstances indicated the defendant needed, adopted a middle course.

The court did not relieve Mr. Burns from his assignment, but left him in charge of a portion of the trial while relieving him of responsibility for questioning the witness called by the defendant and of assisting the defendant, himself, to present his own testimony if the defendant elected to take the stand. As a result of this procedure, Mr. Burns began the questioning of the defendant's only witness and then fell silent, leaving the defendant to take over the direct examination, Mr. Burns remaining seated at the counsel table. This procedure could hardly have failed to convey to the jury the impression that the defendant's counsel attached little significance or credibility to the testimony of the witness, or that the defendant and his counsel were at odds. Prejudice to the defendant's case by this trial tactic was inevitable.

For this reason, we conclude that the defendant has been denied the fair trial which is required by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States and the comparable provision in the Constitution of North Carolina, Art. I, ยง 19. The defendant must, therefore, be awarded a new trial. At such new trial, we assume that he will be represented by his present counsel, appointed by the court to represent him upon his appeal. If not, the trial court should appoint competent counsel, selected by the court not by the defendant, to represent him and, if such counsel is not acceptable to the defendant, permit the defendant to conduct his own trial without counsel.

NEW TRIAL.