Opinion
No. COA12–835.
2013-03-5
STATE of North Carolina v. Kelly Shawn HOGAN.
Attorney General Roy Cooper, by Special Deputy Attorney General R. Marcus Lodge, for the State. Glover & Petersen, P.A., by James R. Glover, for defendant appellant.
Appeal by defendant from judgments entered 17 November 2011 by Judge Mary A. Tally in Robeson County Superior Court. Heard in the Court of Appeals 9 January 2013. Attorney General Roy Cooper, by Special Deputy Attorney General R. Marcus Lodge, for the State. Glover & Petersen, P.A., by James R. Glover, for defendant appellant.
McCULLOUGH, Judge.
On 17 November 2011, Kelly Shawn Hogan (“defendant”) was convicted of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury (“AWDWIKISI”). Defendant was sentenced to a term of 273 to 337 months' imprisonment for the offense of attempted first-degree murder and a consecutive term of 127 to 162 months' imprisonment for the AWDWIKISI offense. On appeal, defendant contends he is entitled to a new trial because (1) the trial court failed to exercise its discretion in determining whether defendant could exercise his right to represent himself at trial; and (2) the trial court committed prejudicial error by violating defendant's right to be present at all critical stages of trial, including at an in-chambers conference. We find no prejudicial error.
I. Background
Randy Kirk (“Kirk”) and his brother, Willie McEachern (“McEachern”), care for their mother during the nighttime at her home on McKellar Street in Lumberton, North Carolina. On 10 June 2010, at approximately 3:00 a.m., McEachern arrived at the mother's home to relieve Kirk from caring for the mother so that Kirk could return home and get dressed for work. Kirk left the mother's home and began walking to his own home nearby when he noticed two men sitting on a bench under a shed located next to his mother's house. One of the men asked Kirk if he knew where to get some drugs, to which Kirk replied that he did not want them sitting there smoking drugs or trying to buy drugs and asked them to leave. The two men then exchanged words with Kirk, at which point Kirk began to back away. As the second man said something, the first man began shooting at Kirk and shot Kirk a total of five times.
Kirk lay on the ground bleeding from his neck and leg and called out for his brother, who came out of the mother's home and tied a shirt around Kirk's leg to stop the bleeding. Police and emergency personnel arrived at the scene and Kirk was transported to the hospital for treatment. Kirk had been shot in his neck, chest, and both legs. At the scene, police recovered shell casings and an unspent bullet and interviewed witnesses, including Kirk and McEachern.
Two days after the shooting, McEachern informed police that he had received a tip that a man by the name of “K–Rock” had been the shooter. Upon speaking with Kirk, Kirk likewise gave the name “K–Rock” as the shooter. After completing a database search using the name “K–Rock,” police identified defendant as having that nickname and matching the general description of the shooter provided at the scene. Police produced a photo array to Kirk containing defendant's picture, and Kirk identified defendant as the shooter. Kirk also identified defendant as the shooter at trial.
On 22 June 2010, defendant was arrested and charged with attempted first-degree murder and AWDWIKISI. On 29 June 2010, defendant was appointed counsel. Following indictment, defendant's case was called for trial on 15 November 2011. At the call of the case, defendant's counsel appeared on his behalf, made and argued pretrial motions, and conducted jury voir dire. On the afternoon of 15 November 2011, the jury was impaneled and instructed on the purpose of opening statements, the roles and obligations of counsel, and the roles and obligations of jurors.
On the following morning, the State gave its opening statement. As the trial court proceeded to ask defendant's counsel if he wished to either make or reserve an opening statement, defendant interrupted and stated he wished to represent himself and make his own opening statement. The trial court excused the jury and questioned defendant about his desire to represent himself. The trial court then gave defendant and his counsel a fifteen-minute recess to discuss the issue and to try to resolve it. Approximately two minutes later, defendant and his counsel returned with no resolution. Defendant again explained to the court his desire to proceed pro se, stating that his counsel failed to visit him, failed to discuss the case with him, and spoke only briefly with him following court appearances. The trial court then asked counsel for the State and counsel for defendant to confer in chambers. Following this in-chambers conference, the trial court asked defendant's counsel if he consented to the bench conference not being recorded, to which defendant's counsel agreed. The trial court then proceeded to conduct the inquiry mandated under N.C. Gen.Stat. § 15A–1242 (2011). Following this inquiry, the trial court allowed defendant to represent himself with his former counsel as standby counsel.
On 17 November 2011, the jury returned verdicts finding defendant guilty of both charges. The trial court entered judgments on the verdicts, sentencing defendant to a term of 273 to 337 months' imprisonment for the offense of attempted first-degree murder and a consecutive term of 127 to 162 months' imprisonment for the AWDWIKISI offense. Defendant gave oral notice of appeal in open court.
II. Grant of Defendant's Request to Represent Himself
Defendant's first argument on appeal is that the trial court failed to exercise its discretion in granting defendant's request to represent himself after trial had begun. A criminal defendant has a Sixth Amendment constitutional right to represent himself and proceed pro se. State v. Walters, 182 N.C.App. 285, 289, 641 S .E.2d 758, 760 (2007) (citing Faretta v. California, 422 U.S. 806, 807, 45 L.Ed.2d 562, 566 (1975)). “Once a defendant clearly and unequivocally states that he wants to proceed pro se, the trial court, to satisfy constitutional standards, must determine whether the defendant knowingly, intelligently, and voluntarily waives the right to in-court representation by counsel.” State v.. Thomas, 331 N.C. 671, 674, 417 S.E.2d 473, 476 (1992). The trial court's inquiry satisfies this constitutional requirement if conducted pursuant to N.C. Gen.Stat. § 15A–1242. State v. Moore, 362 N.C. 319, 322, 661 S.E.2d 722, 724 (2008). Pursuant to this statute,
[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 (2011). We review the sufficiency of the trial court's inquiry de novo. See State v. Watlington, ––– N.C.App. ––––, ––––, 716 S.E.2d 671, 675 (2011); State v. Frederick, ––– N.C.App. ––––, ––––, 730 S.E.2d 275, 279 (2012).
Nonetheless, a defendant's right to self-representation is not absolute and may be waived if not timely asserted. State v. Braswell, 78 N.C.App. 498, 500, 337 S.E.2d 637, 638 (1985) (citing United States v. Dunlap, 577 F.2d 867 (4th Cir.1978)); see also State v. Wheeler, 202 N.C.App. 61, 68, 688 S.E.2d 51, 56 (2010) (“ ‘ “[T]he right to self-representation can be waived by failure timely to assert it[.]” ‘ “ (quoting United States v.. Singleton, 107 F.3d 1091, 1096 (4th Cir.1997) (quoting United States v. Gillis, 773 F.2d 549, 559 (4th Cir.1985)))). In Dunlap, cited by this Court in both Braswell and Wheeler, the United States Court of Appeals for the Fourth Circuit noted that “[i]n justifying the need to timely raise the right of self-representation, the courts [have] recognized, among other things, the need to minimize disruptions, to avoid inconvenience and delay, to maintain continuity, and to avoid confusing the jury.” Dunlap, 577 F.2d at 868.
“Consequently, if a defendant proceeds to trial with counsel and asserts his right to self-representation only after trial has begun, that right may have been waived, and its exercise may be denied, limited, or conditioned. Accordingly, after trial has begun with counsel, the decision whether to allow the defendant to proceed pro se rests in the sound discretion of the trial court.”
Singleton, 107 F.3d at 1096,quoted with approval in Wheeler, 202 N.C.App. at 68, 688 S.E.2d at 56. We therefore review a trial court's decision under these circumstances for an abuse of discretion. Wheeler, 202 N.C.App. at 69, 688 S.E.2d at 56. “A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.” State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985).
In addition, there is error when the trial court fails to exercise its discretion as to the question presented. State v. Lang, 301 N.C. 508, 510, 272 S.E.2d 123, 125 (1980). “A court does not exercise its discretion when it believes it has no discretion or acts as a matter of law.” State v. Maness, 363 N .C. 261, 278, 677 S.E.2d 796, 807 (2009). “However, when a trial court assigns no reason for a ruling which is to be made as a matter of discretion, the reviewing court on appeal presumes that the trial court exercised its discretion.” Id.
Here, defendant contends only that the trial court failed to exercise any discretion in granting his request to proceed with trial pro se after the trial had begun. Defendant argues the trial court believed it had no discretion in determining whether to grant his request and failed to consider the factors weighing against granting the request. We are not persuaded.
Significantly, the trial court did not provide any specific reason for its ruling granting defendant's request to represent himself. Rather, following a lengthy colloquy with defendant, the trial court made findings that defendant “ha [d] been clearly advised of his right to the assistance of counsel[,]” that he “underst[ood] and appreciate[d] the consequences of [his] decision[,]” that he “comprehend[ed] the nature of the charges and the proceedings and the range of possible punishments[,]” and that defendant had elected to proceed without assigned counsel. In light of these findings, the trial court removed defendant's assigned counsel, allowed defendant to represent himself, and appointed defendant's former counsel as standby counsel in its discretion. Therefore, we must presume the trial court exercised its discretion in allowing defendant's request. Maness, 363 N.C. at 278, 677 S.E.2d at 807.
Even if this presumption did not apply, the record indicates the trial court both understood that it had discretion in making a determination on whether to allow defendant's request and exercised that discretion after making a thorough inquiry of defendant. After excusing the jury, the trial court inquired of defendant his reasons for wanting to represent himself and his education level and warned defendant of the dangers of proceeding pro se without the assistance of learned counsel. The trial court informed defendant: “[Y]ou have the right to represent yourself. You have that right under the Constitution. You have that right under a case called Faretta, which was decided by the United States Supreme Court.” Nonetheless, the trial court later stated to defendant, “ If I allow you to represent yourself based on the statements you have previously made, I'm going to appoint ... standby counsel[.]” (Emphasis added.) The trial court then further explained the seriousness of the charges defendant was facing and the consequences of a conviction.
The trial court also explained to defendant his right to counsel and his right to appointed counsel at the expense of the State. Defendant responded by acknowledging that he understood the consequences he was facing and that he wished to proceed on his own because he felt he was in the best position to explain his case to the jury. When defendant appeared to equivocate and ask the trial court for standby counsel, the trial court gave defendant a fifteen-minute recess to confer with his counsel on how to proceed. After approximately two minutes, defendant returned and informed the trial court that he disagreed with his attorney on how to handle his case, that he believed his attorney was dishonest, and that he would “rather do this on [his] own[.]” The trial court again explained the severity of the charges and possible sentences and gave defendant a stern warning about proceeding pro se. Defendant again responded that because his life was at stake, he could not proceed with his assigned counsel.
After a five-minute conference in-chambers with defendant's counsel and counsel for the State, the trial court returned and continued further inquiry of defendant as to any medications he was taking, whether he was clear-headed, whether he suffered from any physical or mental handicaps, his understanding concerning his rights to counsel, his understanding as to what would be required of him if he proceeded pro se, his understanding of the charges and the maximum punishments for those charges, and whether he wished to voluntarily give up his right to counsel and proceed pro se. During this inquiry, the trial court also gave defendant an opportunity to ask any questions. After defendant indicated that he thoroughly understood everything the trial court had explained to him, he informed the trial court that he still wished to represent himself. The trial court, after finding that defendant had been clearly advised of his rights and that he fully understood the nature of the charges and proceedings and the range of possible punishments, granted defendant's request to represent himself. The trial court further appointed standby counsel “in its discretion[.]” The entire colloquy between defendant and the trial court regarding his request to represent himself lasted approximately thirty-five minutes.
Given the trial court's thorough inquiry of defendant and the context of the trial court's statements, we do not see how the trial court erred by failing to exercise discretion in granting defendant's request to represent himself. Although the trial court thoroughly warned defendant about the dangers of proceeding without counsel and informed defendant that his appointed counsel was a very experienced attorney, the trial court clearly weighed heavily defendant's constitutional right to self-representation. That the trial court's statements to defendant can be construed as attempting to convince defendant to accept his appointed counsel is not equivalent to a belief by the trial court that it had no discretion to deny defendant's request. To the contrary, the trial court's entire colloquy indicates the trial court took defendant's constitutional right to proceed pro se seriously in making its determination. Indeed, “[a] criminal defendant ... ‘has a right to handle his own case without interference by, or the assistance of, counsel forced upon him against his wishes.’ “ State v. Hyatt, 132 N.C.App. 697, 702, 513 S.E.2d 90, 94 (1999) (quoting State v. Mems, 281 N.C. 658, 670–71, 190 S.E.2d 164, 172 (1972)).
Moreover, although defendant asserted his right to self-representation after trial had begun, the trial court indicated no concerns with disruption of the proceedings, inconvenience or delay, or confusion of the jury in evaluating whether to grant defendant's request. Dunlap, 577 F.2d at 868. Indeed, the trial had progressed only through the prosecution's opening statement; no continuances were requested; and neither defendant, defendant's counsel, nor counsel for the State indicated any inconvenience or concerns regarding the jury should the trial court grant defendant's request. Further, the record reveals no way in which the trial court failed to consider defendant's reasons for wanting to represent himself and the experience of defendant's counsel in weighing the decision of whether to grant defendant's request. Rather, the record indicates the trial court found no circumstances existed that outweighed defendant's constitutional right to proceed pro se, and under the circumstances presented here, we cannot say the trial court's determination was so arbitrary that it could not have been the result of a reasoned decision.
Defendant makes no contention in the alternative that the trial court's decision was an abuse of discretion, and, as we have just stated, we discern none from the record before us. Defendant likewise makes no contention that the trial court's inquiry of his request to represent himself was not sufficiently thorough under the mandates of N.C. Gen.Stat. § 15A–1242, and we believe it is clear from the record that the trial court made a sufficiently thorough inquiry in this case before allowing defendant to discharge his appointed counsel and proceed pro se. Accordingly, we find no error in the trial court's granting of defendant's request to represent himself for the remainder of his trial.
III. Conduct of In–Chambers Conference
Defendant's remaining argument on appeal is that the trial court committed prejudicial error by violating his state and federal constitutional right to be present at all critical stages of trial when the trial court conducted the in-chambers conference outside of his presence during the inquiry into his request to proceed pro se . Defendant argues that he did not waive his right to be present during the conference and that the State cannot show his absence from the conference was harmless beyond a reasonable doubt because the in-chambers conference likely affected the trial court's decision on whether to grant his request to represent himself.
Pursuant to the Confrontation Clause of Article I, section 23 of the North Carolina Constitution and the Sixth Amendment to the United States Constitution, a criminal defendant is guaranteed the right to be present at every critical stage of his trial. State v.. Exum, 343 N.C. 291, 293–94, 470 S.E.2d 333, 334 (1996). In Exum, our Supreme Court stated that “[a]n in-chambers conference is a ‘critical stage’ of a defendant's ... trial at which he has a constitutional right to be present.” Id. at 294, 470 S.E.2d at 335;see also State v. Wright, ––– N.C.App. ––––, ––––, 711 S.E.2d 797, 800,disc. review denied,365 N.C. 351, 717 S.E.2d 743 (2011). “The right to be present at all critical stages of the prosecution is subject to a harmless error beyond a reasonable doubt standard of review.” Wright, ––– N.C.App. at ––––, 711 S.E.2d at 800 (citing State v. Workman, 344 N.C. 482, 497, 476 S.E.2d 301, 309 (1996)). Under this standard, the State bears the burden of showing that the error was harmless beyond a reasonable doubt. Exum, 343 N.C. at 295, 470 S.E.2d at 335. “[N]otwithstanding an accused's right to be present, certain violations of this right may be harmless if such appears from the record. An error is harmless beyond a reasonable doubt if it did not contribute to the defendant's conviction.” State v. Ferguson, 145 N.C.App. 302, 309, 549 S.E.2d 889, 894 (2001) (internal quotation marks and citations omitted).
Here, the trial court's conduct of the in-chambers conference outside the presence of defendant was error in light of the foregoing authority. However, the record here reveals the error was harmless beyond a reasonable doubt. As defendant notes on appeal, the in-chambers conference at issue concerned defendant's request to represent himself. Although the conference was not recorded, defendant was still represented by counsel during the conduct of the conference, as the trial court had not yet determined whether to discharge defendant's counsel and allow defendant to represent himself. Upon return of counsel to the courtroom following the five-minute conference, the trial court asked defendant's counsel, who was still representing defendant at that time, if he consented to the conference not being recorded, to which he agreed. Defendant made no objections nor raised any concerns to the trial court about what had been discussed during the conference. Had defendant been concerned with that conversation at the time of trial, the trial court could have responded by recreating the substance of the private conversation for defendant. See State v. Thomas, 134 N.C.App. 560, 571, 518 S.E.2d 222, 230 (1999). Defendant, however, neglected to voice any concerns with the conversation that took place outside his presence between counsel and the trial court. Moreover, defendant makes no factual assertion on appeal that his counsel did not actually apprise him of the content of the in-chambers discussion.
The trial court proceeded thereafter to make thorough inquiry of defendant regarding his request to proceed pro se, and defendant at no time during the inquiry raised any concerns as to what was discussed during the in-chambers conference, despite the trial court's giving defendant an opportunity to ask any questions. Further, the record shows that shortly after direct examination of the first witness began, the trial court gave defendant another opportunity to be represented by his counsel, but defendant again adamantly insisted on continuing representing himself. Given these circumstances, we cannot conclude that a different verdict would likely have been reached had defendant been present at the conference, especially in light of the fact that defendant adamantly and consistently requested to represent himself, the trial court granted defendant's request after making a thorough inquiry of defendant and after thoroughly warning defendant of the dangers of proceeding pro se, the trial court allowed defendant standby counsel throughout the course of trial; and at no time did defendant raise any concerns regarding the content of the in-chambers conference or his ability to adequately represent himself. Defendant's argument on this issue, therefore, fails.
IV. Conclusion
On the record before us, we hold the trial court made a sufficiently thorough inquiry of defendant upon defendant's request to proceed with trial pro se and discharge his appointed counsel. The record shows the trial court understood it had discretion in determining whether to grant defendant's request after trial had begun, and we discern no abuse of discretion in the trial court's determination under the circumstances of the present case.
The trial court erred in holding an in-chambers conference outside the presence of defendant, thereby violating his constitutional right to be present at all stages of trial. However, under the circumstances of the present case, the record shows the trial court's error was harmless beyond a reasonable doubt.
No prejudicial error. Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).