{ "id": 8897814, "name": "STATE OF NORTH CAROLINA v. MARION COX", "name_abbreviation": "State v. Cox", "decision_date": "2004-05-18", "docket_number": "No. COA03-593", "first_page": "399", "last_page": "403", "citations": [ { "type": "official", "cite": "164 N.C. App. 399" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "254 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "174" } ], "opinion_index": 0 }, { "cite": "297 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566864 ], "year": 1979, "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0069-01" ] }, { "cite": "279 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "800" } ], "opinion_index": 0 }, { "cite": "303 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573792 ], "year": 1981, "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0321-01" ] }, { "cite": "338 S.E.2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 769", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524163 ], "year": 1986, "pin_cites": [ { "page": "773" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0769-01" ] }, { "cite": "338 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "616" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 741", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523983 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "746" }, { "page": "746" }, { "page": "746" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0741-01" ] }, { "cite": "271 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "255", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "301 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566259 ], "year": 1980, "pin_cites": [ { "page": "351-52", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/301/0348-01" ] } ], "analysis": { "cardinality": 484, "char_count": 9564, "ocr_confidence": 0.757, "pagerank": { "raw": 1.4630411344908331e-07, "percentile": 0.657708036260029 }, "sha256": "ca3620dad0535b3b85b7dfe062d3938aedfcb1fa282817c883adfc3f9f60077d", "simhash": "1:07ecc1a976e71f58", "word_count": 1532 }, "last_updated": "2023-07-14T17:15:16.246957+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ELMORE concurs.", "Judge TIMMONS-GOODSON concurs in the result with a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. MARION COX" ], "opinions": [ { "text": "CALABRIA, Judge.\nDefendant was charged with conspiracy to sell cocaine, sale of cocaine, delivery of cocaine, and possession with intent to sell or deliver cocaine. Prior to trial, defendant sent his appointed counsel a letter asking that new counsel be appointed in his case. On 23 May 2002, a hearing was held before Judge Richard D. Boner on defendant\u2019s request. Defendant and the trial court then engaged in the following colloquy:\nThe State: Your Honor, this is the defendant\u2019s motion to consider counsel.\nThe Court: He doesn\u2019t have a lawyer?\n[Defense Counsel]: I\u2019m his appointed attorney right now. I have communicated with him about his case by letter. He sent a letter back to me stating he would like new counsel appointed.\nThe Coukt: Have you got the money to hire one?\n[Defendant]: No; I don\u2019t. I\u2019m currently in DOC.\nThe Court: All right. You have got two choices; represent yourself or keep this lawyer. Which one do you want? That\u2019s your two choices.\n[Defendant]: I\u2019m not allowed to \u2014 if I\u2019m not satisfied with the attorney\u2019s representation \u2014 I\u2019m saying\u2014\nThe Court: Well, I\u2019m just telling you if you\u2019re not satisfied then you can represent yourself or hire a lawyer. It doesn\u2019t work this way; you don\u2019t pick and choose your lawyers in here when they are court appointed.\n[Defendant]: I understand that, Your Honor, but if I\u2019m not satisfied with the attorney\u2014\nThe Court: You better get satisfied or represent yourself. That\u2019s as simple as I can make it. I\u2019m not going to play musical lawyers. If you don\u2019t like the representation then hire your own lawyer or represent yourself.\n[Defendant]: I\u2019ll represent myself then.\nThe Court: All right. Step up here and execute a waiver.\nDefendant complied and indicated he would \u201cget an attorney.\u201d The trial court had defendant sworn and took his pleas of not guilty for the offenses charged. At the conclusion of the hearing, the trial court entered a note in defendant\u2019s file indicating that defendant asked for substitute counsel and that request had been denied.\nDefendant appeared for trial on 9 September 2002. Defendant renewed his request that substitute counsel be appointed to represent him. The trial court denied defendant\u2019s request after reviewing the note in the file indicating the trial court had advised defendant that new counsel would not be appointed if defendant dismissed his appointed counsel and signed a waiver of counsel.\nDefendant was convicted of conspiracy to sell cocaine, possession with intent to sell or deliver cocaine, sale of cocaine and delivery of cocaine. Defendant was sentenced to a term of twenty-four to twenty-nine months in the North Carolina Department of Correction for the sale of cocaine conviction, and a consecutive term of another twenty-four to twenty-nine months for the conspiracy and possession convictions. The trial court arrested judgment on the remaining charge of delivery of cocaine. Defendant appeals.\nOn appeal, defendant asserts the trial court erred (I) by denying defendant\u2019s request for appointment of substitute counsel without allowing him to present evidence or argument on his request and (II) by failing to intervene on its own initiative to stop and strike certain comments directed towards defendant by a witness on cross-examination.\nDefendant did not assign error to the trial court\u2019s failure to conduct further inquiry under N.C. Gen. Stat. \u00a7 15A-1242 (2003); therefore, under our rules of appellate procedure, this argument has been abandoned. N.C.R. App. P. 28(b)(6) (2004). However, we suspend the application of Rule 28(b)(6) pursuant to our discretion under N.C.R. App. P. 2 (2004).\nNorth Carolina General Statutes \u00a7 15A-1242 provides as follows:\nA 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:\n(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;\n(2) Understands and appreciates the consequences of this decision; and\n(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.\n\u201cThe inquiry described in G.S. \u00a7 15A-1242 is mandatory in every case where the defendant requests to proceed pro se.\u201d State v. White, 78 N.C. App. 741, 746, 338 S.E.2d 614, 616 (1986).\nIn the instant case, defendant clearly and unequivocally stated he would represent himself. Thereafter, the trial court instructed him to execute a waiver but failed to proceed with the inquiry required under N.C. Gen. Stat. \u00a7 15A-1242. \u201cA written waiver of counsel is no substitute for actual compliance by the trial court with G.S. \u00a7 15A-1242.\u201d State v. Wells, 78 N.C. App. 769, 773, 338 S.E.2d 573, 575 (1986). \u201cWe conclude that in the absence of . . . the inquiry required by G.S. \u00a7 15A-1242, it was error to permit defendant to go to trial without the assistance of counsel.\u201d White, 78 N.C. App. at 746, 338 S.E.2d at 617.\nBecause of our disposition of this issue, we need not address defendant\u2019s remaining arguments on appeal. Accordingly, we reverse and remand.\nReversed and remanded.\nJudge ELMORE concurs.\nJudge TIMMONS-GOODSON concurs in the result with a separate opinion.\n. The State argues that there was no clear or unequivocal assertion of a desire to conduct a pro se defense because defendant was merely asking for substitute counsel. See State v. Hutchins, 303 N.C. 321, 339, 279 S.E.2d 788, 800 (1981); State v. McGuire, 297 N.C. 69, 83, 254 S.E.2d 165, 174 (1979). Those cases are distinguishable in that, in each case, the defendant continued with appointed counsel. In the instant case, defendant continued pro se. Accordingly, we find this case more closely analogous to, and controlled by, our analysis in State v. White, 78 N.C. App. at 746, 338 S.E.2d at 616-17.", "type": "majority", "author": "CALABRIA, Judge." }, { "text": "TIMMONS-GOODSON, Judge,\nconcurring in the result.\nI agree with the majority\u2019s conclusion that the trial court erred in its treatment of defendant\u2019s request for the appointment of substitute counsel. However, I believe that a pro se inquiry analysis is not appropriate because defendant\u2019s repeated request was not that the trial court allow him to proceed pro se, but that the trial court appoint substitute counsel.\nDefendant agreed to represent himself pro se only after the trial court denied his request for substitute counsel. Yet, defendant renewed his request for substitute counsel at the commencement of trial, which demonstrated his desire to be represented by counsel. Therefore, I believe that defendant\u2019s repeated request that the trial court appoint substitute counsel should be the focus of this Court\u2019s analysis.\nDefendant asserts that the court failed to determine if any conflict of interest or other facts existed that would have justified or required appointing new counsel. I agree.\nOur Supreme Court has stated:\nWhile it is a fundamental principle that an indigent defendant in a serious criminal prosecution must have counsel appointed to represent him, an indigent defendant does not have the right to have counsel of his choice appointed to represent him. This does not mean, however, that a defendant is never entitled to have new or substitute counsel appointed. A trial court is constitutionally required to appoint substitute counsel whenever representation by counsel originally appointed would amount to denial of defendant\u2019s right to effective assistance of counsel, that is, when the initial appointment has not afforded defendant his constitutional right to counsel. Thus, when it appears to the trial court that the original counsel is reasonably competent to present defendant\u2019s case and the nature of the conflict between defendant and counsel is not such as would render counsel incompetent or ineffective to represent that defendant, denial of defendant\u2019s request to appoint substitute counsel is entirely proper.\nState v. Thacker, 301 N.C. 348, 351-52, 271 S.E.2d 252, 255 (1980) (citations omitted). In the case sub judice, the trial court made no inquiry whatsoever regarding defendant\u2019s request that substitute counsel be appointed to represent him, and that he could either keep his current counsel or represent himself at trial. The court afforded defendant no opportunity to explain why substitute counsel should be appointed. Thus, the trial court failed to determine whether there was a conflict of interest or other grounds upon which continued representation by his appointed counsel would deny defendant his constitutional right to counsel. Id. Therefore, I conclude that the trial court erred in its treatment of defendant\u2019s request for the appointment of substitute counsel.", "type": "concurrence", "author": "TIMMONS-GOODSON, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by. Assistant Attorney General Tammera S. Hill, for the State.", "Leslie C. Rawls, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARION COX\nNo. COA03-593\n(Filed 18 May 2004)\nIndigent Defendants\u2014 waiving appointed counsel \u2014 proceeding pro se \u2014 necessary inquiry\nA defendant\u2019s cocaine convictions were reversed where he clearly and unequivocally said that he would represent himself, the trial court told him to execute a waiver, and the judge never proceeded with the statutorily required waiver. The inquiry described in N.C.G.S. \u00a7 15A-1242 is mandatory in every case where the defendant requests to proceed pro se.\nJudge Timmons-Goodson concurring in the result.\nAppeal by defendant from judgments entered 11 September 2002 by Judge Marcus L. Johnson in Mecklenburg County Superior Court. Heard in the Court of Appeals 3 May 2004.\nAttorney General Roy Cooper, by. Assistant Attorney General Tammera S. Hill, for the State.\nLeslie C. Rawls, for defendant-appellant." }, "file_name": "0399-01", "first_page_order": 431, "last_page_order": 435 }