Opinion
No. 777SC174
Filed 21 September 1977
Constitutional Law 40 — right to counsel — non-indigent defendant — appearance without counsel Defendant was not denied his constitutional right to counsel at his preliminary hearing, two aborted trials or the trial at which he was convicted where a district court judge advised defendant of his right to have counsel and that counsel would be appointed if defendant were found to be indigent, and defendant informed the judge that he would employ his own attorney; defendant thereafter filed an affidavit of indigency and a request for appointment of counsel, but the district court found that defendant was not an indigent and denied the request; a probable cause hearing was held and defendant was bound over to superior court; after an indictment was returned, defendant was again advised of his right to appointed counsel; defendant filed another affidavit of indigency and request for appointment of counsel, and a superior court judge found that defendant was able to employ counsel and denied the request; defendant thereafter appeared pro se at his two aborted trials and the trial at which he was convicted; and the record supports the determinations that defendant was not indigent, it being clear that defendant was made fully aware of his rights, that he was not entitled to appointed counsel because he was not indigent, and that it was defendant's decision not to employ counsel.
APPEAL by defendant from Cowper, Judge. Judgment entered 19 October 1976 in Superior Court, NASH County. Heard in the Court of Appeals 28 June 1977.
Attorney General Edmisten by Special Deputy Attorney General Myron C. Banks for the State.
L.G. Diedrick for the defendant.
Judge MARTIN dissenting.
Defendant was tried and convicted upon a charge of nonfeloniously receiving stolen goods. Judgment of imprisonment for a period of two years was entered.
Defendant strenuously argues that he was denied his constitutional right to be represented at trial by counsel. The following sequence of events appears from the record on appeal.
In January 1976 one Keith Clark offered to sell defendant a color television set for $125.00. Defendant agreed to the price and told Clark to meet him at his (defendant's) house. Clark and one John Lee Batchelor drove to a house near Frazier's Crossroad, broke and entered the house and stole a Zenith color television set. They then drove to defendant's house where the sale for $125.00 was consummated. Clark told defendant the television set "came out of a poker house and [Clark] didn't think anybody would find out about it." Defendant said "as long as it didn't come out of anybody's house he was not worried about it." The television set was recovered from defendant's house and defendant was arrested on 21 April 1976. On 22 April 1976 defendant posted a $500.00 appearance bond. On 23 April 1976 defendant appeared before District Court Judge Carlton without counsel. Defendant was advised by Judge Carlton of his right to have counsel and that counsel would be appointed if defendant were found to be indigent. Defendant advised the judge that he would employ his own attorney.
On 29 June 1976 defendant filed an affidavit of indigency and requested appointment of counsel. His affidavit indicated that he was regularly employed, earning $100.00 per week; that he was married and his wife's income was unknown; that he owned a home in Spring Hope; that he owned a 1969 Plymouth; and that he owed a total of $728.00. Judge Matthews found on 29 June 1976 that defendant was not indigent and denied the request for appointment of counsel. On 6 July 1976, after a probable cause hearing, defendant was bound over to Superior Court for trial and his $500.00 appearance bond was continued.
On 9 August 1976 an indictment was returned charging defendant with breaking and entering, and larceny. On 10 August 1976 defendant filed in superior court another affidavit of indigency and requested the appointment of counsel. This affidavit indicated that defendant was unemployed (having been laid off the previous week); that he was married and his wife's income was unknown; that he was buying a home in Spring Hope upon which he paid $500.00 to $600.00 per month; that he was buying a 1969 Plymouth upon which he paid $40.00 per month. After a hearing upon this affidavit and request the superior court judge ruled that defendant was not indigent and denied appointment of counsel.
On 27 September 1976 defendant was called for trial upon the indictment charging breaking and entering, and larceny. Defendant appeared pro se and entered a plea of not guilty. After a jury was selected and empaneled the trial court of its own initiative declared a mistrial. On the same day (27 September 1976) the grand jury returned a bill of indictment purporting to charge defendant with breaking and entering, larceny, and receiving. On 28 September 1976 defendant appeared pro se and entered a plea of not guilty. After a jury was selected and empaneled the trial court of its own initiative quashed the 27 September 1976 bill of indictment.
On 18 October 1976 the grand jury returned a bill of indictment, proper in form, charging defendant with breaking and entering, larceny, and receiving. Defendant again appeared pro se and entered a plea of not guilty. Defendant was placed on trial only upon the charge of receiving stolen goods. This is the charge of which he was convicted. Acting in his own behalf defendant gave notice of appeal and an appearance bond of $5,000.00 was ordered on 19 October 1976. On 22 October 1976 defendant posted the $5,000.00 appearance bond. Also on 22 October 1976 defendant posted a $300.00 appeal bond. Defendant appears in this Court through privately retained counsel.
Defendant argues that he was denied his constitutional right to counsel at the probable cause hearing; at the 27 September 1976 aborted trial; at the 28 September 1976 aborted trial; and at the 18 October 1976 trial which resulted in his conviction. It is defendant's position that it was incumbent upon the presiding judge on each of these occasions to advise defendant of his right to appointed counsel and to conduct a hearing upon his financial ability to employ counsel.
The theory argued by defendant would cause a never ending course of hearings upon a defendant's financial ability to employ counsel. Obviously, before the probable cause hearing defendant was advised of his right to have appointed counsel. Defendant filed an affidavit and request. After hearing upon the request it was determined that defendant was able to employ counsel and the request was denied by the district court judge. After a bill of indictment was returned by the grand jury in superior court it is obvious that defendant was again advised of his right to appointed counsel. He again filed an affidavit and requested appointment of counsel After hearing upon this second request it was again determined that defendant was able to employ counsel and the request was denied by the superior court judge. With this clearly established knowledge of his right to have counsel appointed if defendant were indigent, defendant made no further undertaking to establish indigency, if indeed he could have established it. He chose to proceed pro se at the two aborted trials and chose to proceed pro se at the trial resulting in this conviction. Defendant's ability to post a $500.00 appearance bond the day after his arrest retained his freedom throughout the trial proceedings. That circumstance plus defendant's ability, upon conviction, to post a $300.00 appeal bond and a $5,000.00 appearance bond lends substantial credence to the findings that defendant was not indigent.
In this case the defendant was advised of his right to have appointed counsel, and upon his request for appointed counsel defendant was found not to be indigent once in the district court and again in the superior court. Under these circumstances we think defendant was made fully aware of his rights. He was not entitled to appointed counsel because he was not indigent. It was defendant's decision not to employ counsel. The State has in no way deprived defendant of his right to counsel.
We have examined defendant's remaining assignments of error and conclude that they are without merit.
No error.
Judge HEDRICK concurs.
Judge MARTIN dissents.