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    "judges": [
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      "STATE OF NORTH CAROLINA v. JESSE LEE THOMAS, Defendant"
    ],
    "opinions": [
      {
        "text": "TIMMONS-GOODSON, Judge.\nDefendant Jesse Lee Thomas appeals from a judgment entered upon his conviction of first-degree murder. For the reasons hereinafter articulated, we find that no prejudicial error occurred in the proceedings below and uphold defendant\u2019s conviction.\nPertinent factual and procedural background is as follows: Defendant was originally indicted for murder in the first degree of Debra Ann Proctor on 20 February 1989. In May of 1990, defendant was tried capitally, convicted, and sentenced to death. Defendant appealed, and the North Carolina Supreme Court overturned the conviction and ordered a new trial. See State v. Thomas, 331 N.C. 671, 417 S.E.2d 473 (1992). On remand, in July of 1995, defendant was tried non-capitally, convicted of first-degree murder, and sentenced to a mandatory term of life imprisonment. Defendant appealed, and the Supreme Court again reversed defendant\u2019s conviction and awarded him a new trial. See State v. Thomas, 346 N.C. 135, 484 S.E.2d 368 (1997).\nOn 29 May 1997, defendant appeared before Judge Frank R. Brown and requested that he be permitted to proceed pro se and that standby counsel be appointed, pursuant to section 15A-1243 of the North Carolina General Statutes, to assist him in his defense. The judge conducted a hearing in accordance with section 15A-1242 of the General Statutes and entered an order concluding that defendant freely, voluntarily, and with full understanding of the charge against him and the potential punishment, waived his right to be represented by counsel. Judge Brown thereupon authorized defendant to appear and proceed pro se and appointed David C. Braswell to act as standby counsel.\nOn 31 July 1997, Judge G.K. Butterfield conducted a hearing to entertain certain pretrial motions. The first of such motions was a '\u2019motion by defendant to \u201cdefine the role of standby counsel.\u201d At the hearing, defendant and the State both took the position that the standby counsel could conduct any portion of the trial upon defendant\u2019s request, without such actions disqualifying defendant from further representing himself. Judge Butterfield did not issue a ruling on the motion at the pre-trial hearing, and, thus, the issue was again raised when the case came on for trial at the 1 December 1997 criminal session of Nash County Superior Court before Judge Cy A. Grant. Following lengthy arguments by the parties regarding their interpretations of the proper role of standby counsel, the court ruled as follows:\n[I]n this particular case I\u2019m going to take the position, Mr. Thomas and Mr. Braswell, that standby counsel will not be allowed to make any \u2014 not be allowed to make any statements^ \u2014 in front of the jury such as opening. . . . That as far as standby counsel is concerned, that the standby counsel will not make any statement in front of the jury. That is, standby counsel will not make a closing statement; standby counsel will not argue any objections or motions in front of the jury; standby counsel will not conduct jury voir dire. As I stated, standby counsel will not make any statement in front of the jury.\nAll right, now, as it pertains to non-jury matters, for example, outside the presence of the jury at the request of Mr. Thomas if he sees fit, standby counsel may be allowed at Mr. Thomas\u2019 request to stand and argue questions of law with regard to, for example, positions on motions.. . .\nSo anything outside the presence of the jury, for example, Mr. Thomas, if a legal issue arises and you feel more confident having Mr. \u2014 wait a minute \u2014 having Mr. Braswell stand on your behalf if you see fit, you may ask him to do it in your behalf if you so desire. I\u2019m not going to ask him to do it for you. That\u2019s going to be my position.\nDefendant objected to the ruling, arguing that, at his request, the standby counsel should be permitted to address the jury or the court in the presence of the jury. The court noted the objection, and the case proceeded to jury selection.\nDuring a recess in jury selection, the trial judge held an ex \u201cparte conference with the prosecutor and the standby counsel, outside of defendant\u2019s presence. The judge indicated for the record that the conference was held for the purpose of discussing the possibility of removing the shackles from defendant\u2019s legs. The judge further noted that in his opinion, defendant did not present any flight risk. Upon learning of the conference, however, defendant vigorously objected, asserting that it was improper for the court to hold such a conference in his absence. The court responded, stating, \u201cin light of the fact that you object to those types of conversations, we\u2019ll keep the shackles on your feet.\u201d Defendant\u2019s legs remained in shackles until the evening recess of 4 December 1997, when the court ordered the restraints removed.\nAfter opening statements by the parties, the State presented the following evidence: On the morning of 13 July 1978, defendant and a group of people were seated on the porch of a house located on South Church Street in Rocky Mount, North Carolina. Defendant\u2019s car was parked on the street in front of the house. Alphonso Taylor, one of the individuals gathered at the house, testified that he saw the victim, Debra Ann Proctor, walk by the house in the direction of Proctor\u2019s Grocery Store, which was situated on the corner of South Church and Home Streets. As the victim passed the house, Taylor observed defendant rise from the porch, go to the trunk of his car, withdraw a long-bladed knife, slide the knife under his shirt, and walk toward the grocery store. Intending to purchase cigarettes, Taylor and several other men proceeded to the store with defendant. Taylor stated that after the victim entered the store, defendant waited on the side of the building. When the victim exited the store, defendant grabbed her from behind, stabbed her in the arm, yanked her head back by her hair, and \u201cpulled the knife around her throat.\u201d Taylor explained that he did not see whether defendant inflicted any additional wounds to the victim, because when he realized defendant was going to kill her, he turned his head.\nBlondie Hinton, who was nine months pregnant, also witnessed the stabbing while heading toward the store entrance. Hinton testified that she saw defendant walk down Church Street and duck behind a dumpster next to the grocery store. When the victim exited the store, defendant, making no attempt to conceal his identity, grabbed the victim by her hair, pulled her head back, and slit her throat with a knife that was approximately twelve inches long. Defendant then walked passed Hinton, threatened to \u201cget\u201d her if she told anyone what she saw, and walked up Church Street. Hinton said that she did not see defendant inflict any other stab wounds to the victim and that, immediately after the stabbing occurred, she went into labor.\nThe State also presented the testimony of the medical examiner, Dr. Dawson E. Scarborough, who performed the autopsy on the victim\u2019s body. Dr. Scarborough testified that the victim died from a stab wound to the heart. Dr. Scarborough further stated that the victim suffered a total of eleven stab wounds and that the laceration to her neck was not fatal.\nDefendant offered no evidence in his defense. At the close of all the evidence, defendant, through his standby counsel, moved to dismiss the charge based on insufficiency of the evidence. The trial court denied the motion, and the jury returned a verdict finding defendant guilty of murder in the first degree. The trial court sentenced defendant to a term of life imprisonment. Defendant appeals.\nBy his first assignment of error, defendant argues that representation in propia persona with the assistance of standby counsel, such as he received in the instant case, constitutes \u201chybrid\u201d representation, which is prohibited in North Carolina. Defendant contends that by permitting the standby counsel to approach the bench while the jury was present in the courtroom and argue legal issues outside of the jury\u2019s hearing, the trial court committed reversible error. We must disagree.\nRegarding his representation, \u201ca defendant has only two choices \u2014 \u2018to appear in propria persona or, in the alternative, by counsel.\u2019 \u201d Thomas, 331 N.C. at 677, 417 S.E.2d at 477 (quoting State v. Parton, 303 N.C. 55, 61, 277 S.E.2d 410, 415 (1981), disavowed on other grounds by State v. Freeman, 314 N.C. 432, 333 S.E.2d 743 (1985)). A defendant is not entitled to \u201chybrid\u201d representation, i.e., to appear both pro se and by counsel. Id. This notwithstanding, section 15A-1243 of our General Statutes authorizes the trial court to provide standby counsel for a defendant appearing pro se:\nWhen a defendant has elected to proceed without the assistance of counsel, the trial judge in his discretion may appoint standby counsel to assist the defendant when called upon and to bring to the judge\u2019s attention matters favorable to the defendant upon which the judge should rule upon his own motion.\nN.C. Gen. Stat. \u00a7 15A-1243 (1997).\nAlthough our research has uncovered no North Carolina cases that speak directly to the situation presented by these facts, the United States Supreme Court, in McKaskle v. Wiggins, 465 U.S. 168, 79 L. Ed. 2d 122 (1984), addressed the question of what role standby counsel is permitted to play in a proceeding where the defendant is appearing pro se. In that case, the Court stated that a defendant\u2019s right to conduct his own defense requires that he \u201cbe allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.\u201d Id. at 174, 79 L. Ed. 2d at 131. Regarding standby counsel\u2019s participation in the proceedings, the Court held as follows:\nParticipation by counsel with a pro se defendant\u2019s express approval is, of course, constitutionally unobjectionable. A defendant\u2019s invitation to counsel to participate in the trial obliterates any claim that the participation in question deprived the defendant of control over his own defense. Such participation also diminishes any general claim that counsel unreasonably interfered with the defendant\u2019s right to appear in the status of one defending himself.\nId. at 182, 79 L. Ed. 2d at 136.\nThe record reveals that defendant, in the instant case, was permitted to examine jurors and exercise challenges, make an opening statement, cross-examine witnesses, make objections and arguments on legal issues, and make a closing argument. Nothing in the record indicates that defendant was in any way prevented from conducting his own defense as he saw fit. As to the standby counsel\u2019s participation in the trial, the record shows that such involvement occurred either when the jury was absent from the courtroom or at bench conferences outside of the jury\u2019s hearing. Of primary importance, however, is that in all instances, defendant expressly requested the assistance of the standby counsel.\nThe Court: One thing for the record. I\u2019ve been noticing every time we\u2019ve had bench conferences that standby counsel, Mr. Braswell, also approaches the bench. Is he approaching the bench at your request, Mr. Thomas? I just want to get that in the record. Yes or no?\nMr. Thomas: Yes, Your Honor.\nThe Court: Very well.\nMr. Thomas: I requested it.\nInsofar as the standby counsel participated only \u201cwhen called upon\u201d by defendant and in a manner that was not at odds with defendant\u2019s right to conduct his own defense, see N.C.G.S. \u00a7 15A-1243, we hold that the trial court did not err in permitting such participation. Thus, defendant\u2019s assignment of error proves unsuccessful.\nNext, we examine defendant\u2019s assignment of error wherein he argues that the trial court erroneously denied his motion to dismiss the charge of first-degree murder for insufficiency of the evidence. Defendant asserts that the State\u2019s evidence was insufficient to show that he inflicted the fatal stab wound to the victim\u2019s heart. We are not persuaded.\n\u201cBefore the issue of a defendant\u2019s guilt may be submitted to the jury, the trial court must be satisfied that substantial evidence has been introduced tending to prove each essential element of the offense charged and that the defendant was the perpetrator.\u201d State v. Hamlet, 312 N.C. 162, 169, 321 S.E.2d 837, 842 (1984). \u201cSubstantial evidence\u201d is defined as \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Pryor, 59 N.C. App. 1, 5, 295 S.E.2d 610, 614 (1982). Thus, evidence necessary to support a conviction is that which \u201cis sufficient for a rational trier of fact to find proof beyond a reasonable doubt of every essential element of the crime charged.\u201d Id. at 5, 295 S.E.2d at 613. However, while substantial evidence must be real and existing, it \u201cneed not exclude every reasonable hypothesis of innocence.\u201d Hamlet, 312 N.C. at 169, 321 S.E.2d at 842. Any contradictions or discrepancies in the evidence are for the jury to resolve, and these inconsistencies, by themselves, do not serve as grounds for dismissal. Id.\n\u201cFirst-degree murder is the unlawful killing of a human being with malice, premeditation, and deliberation.\u201d State v. Truesdale, 340 N.C. 229, 234, 456 S.E.2d 299, 302 (1995). Premeditation means that at some point and for some length of time before committing the murderous act, the defendant formulated the specific intent to kill the victim. Id. \u201cDeliberation means an intent to kill carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.\u201d State v. Williams, 319 N.C. 73, 80, 352 S.E.2d 428, 433 (1987). \u201cA person is criminally responsible for a homicide only if his act caused or directly contributed to the death.\u201d State v. Luther, 285 N.C. 570, 573, 206 S.E.2d 238, 240 (1974).\nThe evidence, when taken in the light most favorable to the State, tends to show that after the victim walked passed the house where defendant and other individuals were congregated, defendant retrieved a long-bladed knife from the trunk of his car and followed the victim to the grocery store. Defendant then hid behind a dumpster in the store parking lot and laid in wait until the victim exited the store. When she did, defendant grabbed her from behind, stabbed her in or near her arm, pulled her head back by her hair, and cut her throat.\nThis evidence notwithstanding, defendant contends that because neither of the eyewitnesses saw him inflict the fatal wound to the heart, there was insufficient evidence to prove that he caused or contributed to the victim\u2019s death. This argument is seemingly premised on the unlikely possibility that another person intervened and mortally wounded the victim between the time when defendant stabbed her and the time of death. \u201cHowever, the possibility of such an intervening factor is a matter for the determination of the jury and is irrelevant to the issue before the court on a motion to dismiss as in nonsuit.\u201d State v. Cheek, 31 N.C. App. 379, 382-83, 229 S.E.2d 227, 229 (1976). Accordingly, it is our judgment that the State offered ample evidence of defendant\u2019s guilt to submit the crime of first-degree murder to the jury. The trial court was, therefore, correct in denying defendant\u2019s motion to dismiss, and this assignment of error fails.\nWe now turn to defendant\u2019s contention in his next assignment of error that the trial court impermissibly allowed and required him to appear before the jury in leg shackles. Defendant argues that in so doing, the court undermined the presumption of innocence to which all criminal defendants are entitled in the minds of the jurors. We are of the opinion, however, that defendant has waived this argument.\nState v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976), is the seminal case on the subject of whether and under what circumstances a criminal defendant may be required to appear before the jury in shackles. In Tolley, Justice Huskins, writing for the Supreme Court, stated that as a general rule, \u201ca defendant in a criminal case is entitled to appear at trial free from all bonds or shackles except in extraordinary instances.\u201d Id. at 365, 226 S.E.2d at 366. However, not every case wherein the defendant is made to wear shackles will be deemed to be fundamentally unfair. Id. at 367, 226 S.E.2d at 367. Under section 15A-1031 of the General Statutes, a trial judge may require a defendant to be physically restrained, \u201cwhen the judge finds the restraint to be reasonably necessary to maintain order, prevent the defendant\u2019s escape, or provide for the safety of persons. N.C. Gen. Stat. \u00a7 15A-1031 (1997). \u201cThe propriety of physical restraints depends upon the particular facts of each case, and the test on appeal is whether, under all of the circumstances, the trial court abused its discretion.\u201d Toley, 290 N. C. at 369, 226 S.E.2d at 369. Nevertheless, \u201cfailure to object to the shackling, .. . waive[s] any error which may have been committed.\u201d Id., 290 N.C. at 369, 226 S.E.2d at 370.\nThe record in the present case reveals no mention of defendant\u2019s shackled condition until the proceedings had progressed well into the jury voir dire. During a recess in the selection process, the trial judge summoned the district attorney and defendant\u2019s standby counsel into his chambers to discuss removing defendant\u2019s restraints before the actual trial began. This conference was held in defendant\u2019s absence, and in the course of the discussion, the court determined that defendant did not present a flight risk. However, when the conference was brought to defendant\u2019s attention, the following exchange occurred:\nMr. Thomas: Object. Object. Objection, Your Honor.\nThe Court: All right.\nMr. Thomas: ... I object to His Honor calling my standby counsel from the table into chambers, calling the district attorney from his table into chambers and discussing myself and my proceedings.\nThe Court: Certainly. And I\u2019ll tell you what we discussed.\nMr. Thomas: I object.\nThe Court: That\u2019s fine. I understand. Overruled.\nMr. Thomas: Your Honor, I was supposed to have been there. You are supposed to have called me in those proceedings.\nThe Court: Certainly. Certainly. Right.\nMr. Thomas: My name is not supposed to be mentioned, you\u2019re not to hold no proceedings out of my presence. I object to being excluded from those proceedings.\nThe Court: Your objection is on the record.\nMr. Thomas: I object to being excluded from those proceedings.\nThe Court: I understand.\nMr. Thomas: I was supposed to been with those proceedings. The Court: How many times do you need to say it?\nMr. Thomas: Thank you, sir.\nThe Court: [Recreates the discussion for the record.] [A]nd the agreement that we came to was we thought it would be okay, that you wouldn\u2019t present a problem as a run risk. But in light of the fact that you object to those types of conversations, we\u2019ll keep the shackles on your feet. . . .\nMr. Thomas: I object to those proceedings, Your Honor.\nThe Court: Fine.\nMe. Thomas: And I wanted to discuss it with you. It was unconstitutional for you to discuss those issues with my standby counsel. Those are what I wanted to discuss with you, those procedures, those issues, about me being in shackles.\nThank you very much for another new trial. Thank you very much for another new trial.\nFrom this transcript of the dialog between defendant and the trial judge, it is clear that defendant objected to the conference being held in his absence. It is likewise clear that defendant made no objection to his having to proceed in shackles. Therefore, any error as to the shackling has been waived.\nEven had this issue been properly preserved, we are convinced that no prejudice to defendant has occurred. As shown above, the State offered overwhelming evidence of malice, premeditation, and deliberation to support the first-degree murder conviction. Based on the record, we conclude that the jury would not likely have reached a different verdict if defendant had not been made to appear before the jury in shackles. Since new trials are warranted only where an error was prejudicial, State v. Wright, 82 N.C. App. 450, 346 S.E.2d 510 (1986), and since it is apparent from the record that any error the court may have committed regarding the shackles \u201cwas harmless beyond a reasonable doubt,\u201d N.C. Gen. Stat. \u00a7 15A-1443(b) (1997), this assignment of error is overruled.\nDefendant next assigns error to the ex parte conference between the trial judge, the prosecutor, and defendant\u2019s standby counsel. Specifically, defendant argues that this conference violated his right to be present at all stages of the trial and his right to counsel. Though the trial court\u2019s action was error, we hold that the error was harmless beyond a reasonable doubt.\n\u201cArticle I, section 23 of the North Carolina Constitution guarantees a criminal defendant the right to be present at every stage of his trial.\u201d State v. Brogden, 329 N.C. 534, 541, 407 S.E.2d 158, 163 (1991). The same right is afforded to a defendant by the Sixth Amendment to the United States Constitution. State v. Payne, 320 N.C. 138, 357 S.E.2d 612 (1987). \u201cThis right to be present extends to all times during the trial when anything is said or done which materially affects defendant as to the charge against him.\u201d State v. Chapman, 342 N.C. 330, 337-38, 464 S.E.2d 661, 665 (1995). However, under section 15A-1443(b) of our General Statutes, constitutional error is subject to a harmless error analysis. State v. Colbert, 311 N.C. 283, 286, 316 S.E.2d 79, 81 (1984). A defendant\u2019s conviction will not be reversed on appeal where the State shows that the error was harmless beyond a reasonable doubt. Brogden, 329 N.C. 534, 407 S.E.2d 158.\nAssuming arguendo that the conversation at issue constituted a \u201cstage\u201d in the proceeding as that term has been construed in our jurisprudence regarding a defendant\u2019s right to be present, we hold that the error in excluding defendant was harmless beyond a reasonable doubt. Here, the transcript of the record reveals that the substance of the conference was recreated by the judge, and we have no reason to question the accuracy or completeness of the judge\u2019s recitation. Furthermore, the trial judge gave defendant ample opportunity to object and otherwise be heard on the issue discussed in the conference. Given these circumstances, we cannot conclude that a different verdict would likely have been reached had defendant been present at the conference; therefore, this argument fails.\nAs to defendant\u2019s contention that his absence from the conference infringed upon his Sixth Amendment right to counsel, we acknowledge that the right to counsel \u201cis one of the most closely guarded of all trial rights\u201d and that it extends to all stages of the proceeding. Colbert, 311 N.C. at 285, 316 S.E.2d at 80. However, for the reasons discussed in the preceding paragraph, we hold that any error pertaining to defendant\u2019s right to counsel was harmless beyond a reasonable doubt. Defendant\u2019s assignment of error is denied.\nWith his next assignment of error, defendant challenges his momentary removal from the courtroom for disruptive behavior as violative of his right to be present and his right to counsel. From our review of the record, we find no error in the court\u2019s decision.\nSection 15A-1032 of the General Statutes, which governs the removal of a disruptive defendant, provides as follows:\n(a) A trial judge, after warning a defendant whose conduct is disrupting his trial, may order the defendant removed from the trial if he continues conduct which is so disruptive that the trial cannot proceed in an orderly manner. When practicable, the judge\u2019s warning and order for removal must be issued out of the presence of the jury.\n(b) If the judge orders a defendant removed from the courtroom, he must:\n(1) Enter in the record the reasons for his action; and\n(2) Instruct the jurors that the removal is not to be considered in weighing evidence or determining the issue of guilt.\nA defendant removed from the courtroom must be given the opportunity of learning of the trial proceedings through his counsel at reasonable intervals as directed by the court and must be given opportunity to return to the courtroom during the trial upon assurance of his good behavior.\nN.C. Gen. Stat. \u00a7 15A-1032 (1997).\nDuring a break injury selection, when no prospective jurors were present in the courtroom, the judge attempted to enter findings into the record regarding various discovery issues raised by defendant. In the course of the court\u2019s dictation, however, defendant relentlessly interrupted, and the court noted its frustration.\nThe Court: Let the record reflect that the court is attempting to make some findings or make an observation for the record and the defendant continually interrupts the court, and I think this is to your prejudice and I would make sure this is a part of the file so that the Supreme Court can review this, that as the court is attempting to make a comment into the court (sic) with regard to discovery, the defendant continually stands up and interrupts the court.\nWhen defendant continued to interrupt, the court warned him that if he persisted, he would be removed.\nThe Court: If the defendant makes another comment while I am trying to rule or make an observation, I\u2019m going to ask that the defendant be removed from the courtroom, and I will have to make my observation or make my statement into the record outside of the presence of the defendant simply because I\u2019m trying to make this and he continues to interrupt me.\nDefendant again interrupted the court and was removed.\nThe Court: All right. Let the record reflect that the defendant was removed from the courtroom because as I warned him, he continually interrupted me as I was trying to speak into the record.\nAlso let the record reflect that standby counsel is present in the courtroom as well as the prosecutor.\nThe court then entered his findings into the record and declared a recess until the afternoon. Defendant was present when the proceedings resumed and was given an opportunity to make his objections. In light of these facts, we are satisfied that the court complied with the requirements of section 15A-1032, and we hold that the court\u2019s decision to remove defendant from the courtroom was without error.\nIn sum, after careful consideration of the entire record, we conclude that defendant has been afforded a fair trial, free from prejudicial error.\nNo error.\nJudges MARTIN and HUNTER concur.",
        "type": "majority",
        "author": "TIMMONS-GOODSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Michael F. Easley, by Assistant Attorney General John F. Maddrey, for the State.",
      "Barnes, Braswell & Haithcock, P.A., by Glenn A. Barfield, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JESSE LEE THOMAS, Defendant\nNo. COA98-715\n(Filed 17 August 1999)\n1. Constitutional Law\u2014 right to conduct own defense\u2014 standby counsel \u2014 pro se defendant \u2014 first-degree murder\u2014 defendant expressly requested\nThe trial court did not err in a first-degree murder case by permitting pro se defendant\u2019s standby counsel to approach the bench while the jury was present in the courtroom and argue legal issues outside of the jury\u2019s hearing because: (1) nothing in the record indicates that defendant was in any way prevented from conducting his own defense as he saw fit; (2) standby counsel\u2019s participation in the trial occurred either when the jury was absent from the courtroom or at bench conferences outside of the jury\u2019s hearing; and (3) in all instances, defendant expressly requested the assistance of the standby counsel.\n2. Homicide\u2014 first-degree murder \u2014 sufficiency of evidence\u2014 intervening factor determined by jury\nThe trial court did not err in denying defendant\u2019s motion to dismiss the first-degree murder charge based on insufficiency of the evidence since none of the eyewitnesses saw him inflict the fatal wound to the victim\u2019s heart, even though they saw him inflict other wounds to the victim, because the possibility of an intervening factor is a matter for the determination of the jury and is irrelevant to the issue before the court on a motion to dismiss.\n3. Criminal Law\u2014 leg shackles \u2014 pro se defendant \u2014 waiver\u2014 failed to object\nThe trial court did not commit prejudicial error in a first-degree murder case by requiring pro se defendant to appear before the jury in leg shackles because defendant waived this argument when he made no objection to his having to proceed in shackles.\n4. Constitutional Law\u2014 right to be present at all stages \u2014 ex parte conference \u2014 harmless error \u2014 conference recreated \u2014 opportunity to be heard\nAlthough the trial judge erred in a first-degree murder case by holding an ex parte conference in his chambers with the prosecutor and defendant\u2019s standby counsel, without defendant\u2019s presence, the error was harmless in light of the facts that: (1) the substance of the conference was recreated by the judge and there is not reason to question the accuracy or completeness of his recitation; and (2) the trial judge gave defendant ample opportunity to object and otherwise be heard on the issue discussed in the conference.\n5. Constitutional Law\u2014 right to counsel \u2014 right to be present \u2014 first-degree murder \u2014 pro se defendant \u2014 disruptive behavior \u2014 removal from courtroom \u2014 no jurors present\nThe trial court did not violate defendant\u2019s right to be present and his right to counsel in a first-degree murder case when it momentarily removed pro se defendant from the courtroom for disruptive behavior during a break in jury selection when no prospective jurors were present in the courtroom and the trial court was attempting to enter findings into the record regarding various discovery issues raised by defendant because: (1) the trial court warned defendant that he would be removed if he kept interrupting the court; (2) defendant\u2019s standby counsel remained in the courtroom; and (3) defendant was present when the proceedings resumed and was given an opportunity to make his objections. N.C.G.S. \u00a7 15A-1032.\nAppeal by defendant from judgment entered 10 December 1997 by Judge Cy A. Grant in Nash County Superior Court. Heard in the Court of Appeals 17 March 1999.\nAttorney General Michael F. Easley, by Assistant Attorney General John F. Maddrey, for the State.\nBarnes, Braswell & Haithcock, P.A., by Glenn A. Barfield, for defendant-appellant."
  },
  "file_name": "0560-01",
  "first_page_order": 592,
  "last_page_order": 605
}
