{ "id": 8551641, "name": "STATE OF NORTH CAROLINA v. BILLY RAY CLARK", "name_abbreviation": "State v. Clark", "decision_date": "1977-07-06", "docket_number": "No. 7717SC111", "first_page": "628", "last_page": "630", "citations": [ { "type": "official", "cite": "33 N.C. App. 628" } ], "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": "233 S.E. 2d 669", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 753", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553726 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0753-01" ] }, { "cite": "204 S.E. 2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "21 N.C. App. 374", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556114 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/21/0374-01" ] }, { "cite": "219 S.E. 2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "279" } ], "opinion_index": 0 }, { "cite": "27 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553868 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/27/0379-01" ] } ], "analysis": { "cardinality": 351, "char_count": 5682, "ocr_confidence": 0.642, "pagerank": { "raw": 2.0274055394208465e-07, "percentile": 0.7461631932981421 }, "sha256": "1fa14ee20d1de19b7b1374ebae515a4f2c3fb369bf6aff8cb7ba8d1eeed5c2be", "simhash": "1:113bc4403ed70775", "word_count": 955 }, "last_updated": "2023-07-14T18:09:28.190456+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Martin concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BILLY RAY CLARK" ], "opinions": [ { "text": "BROCK, Chief Judge.\nThe alleged offense was committed on 15 August 1976. On 16 August 1976 criminal summons charging the offense was issued to defendant and served upon him on 26 August 1976. On 3'0 August 1976 defendant filed an affidavit of indigency and requested appointment of counsel. On 30 August 1976 attorney Philip W. Allen was appointed to represent defendant. When defendant appeared for his preliminary hearing on 17 September 1976 defendant requested the district court judge to permit attorney Philip W.' Allen to withdraw as counsel. It was so ordered. Defendant then executed a waiver of assigned counsel and elected to represent himself. Probable cause was found on 17 September 1976 and defendant was bound over for trial in the superior court.\nNothing further transpired until defendant appeared for trial in the superior court on Monday, 18 October 1976. At that time defendant executed another affidavit of indigency and requested appointment of counsel. The trial judge declined to appoint counsel but directed Philip W. Allen, attorney, \u201cto assist the defendant in his defense.\u201d The trial judge instructed attorney Allen as follows: \u201cYou are appointed to advise in the case or assist the defendant in any way he desires.\u201d Thereafter attorney Allen cross-examined each of the State\u2019s witnesses and examined each of the defense witnesses.\nDefendant now argues that he was entitled to withdraw his waiver of counsel at any time and have counsel appointed to represent him. He reasons that the failure of the trial judge to appoint counsel on 18 October 1976 as he requested deprived him of his constitutional right to be represented by counsel.\nIt is clear that an accused can waive his right to be represented by counsel if he voluntarily and understandingly does so. There is no question of the voluntariness of defendant\u2019s waiver executed at the preliminary hearing on 17 September 1976. The waiver of the right to have assigned counsel executed by defendant on 17 September 1976 was good and sufficient until the trial was finally terminated, \u201cunless the defendant himself makes known to the court that he desires to withdraw the waiver and have counsel assigned to him.\u201d State v. Smith, 27 N.C. App. 379, 219 S.E. 2d 277 (1975); State v. Watson, 21 N.C. App. 374, 204 S.E. 2d 537 (1974).\nThe tactics employed by the defendant in this case are markedly similar to those employed in State v. Watts, 32 N.C. App. 753, 233 S.E. 2d 669 (1977), and in State v. Smith, supra.\n\u201cIn this case the defendant delayed until the day his case was scheduled for trial before moving to withdraw the waiver and have counsel assigned. If this tactic is employed successfully, defendants will be permitted to control the course of litigation and sidetrack the trial. At this stage of the proceeding, the burden is on the defendant not only to move for withdrawal of the waiver, but also to show good cause for the delay. Upon his failure to do so, the signed waiver of counsel remains valid and effective during trial.\u201d State v. Smith, supra, at 381, 219 S.E. 2d at 279.\nJudge Long did all, if not more, than was necessary to meet the requirements of due process and fairness when he assigned attorney Allen \u201cto advise in the case or assist the defendant in any way be desires.\u201d This assignment of error is overruled.\nWe have examined defendant\u2019s assignment of error to the trial judge\u2019s instructions to the jury. In our opinion the instructions were fair and submitted the issues to the jury under applicable principles of law. This assignment of error is overruled.\nNo error.\nJudges Hedrick and Martin concur.", "type": "majority", "author": "BROCK, Chief Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General James Wallace, Jr., for the State.", "Philip W. Allen for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BILLY RAY CLARK\nNo. 7717SC111\n(Filed 6 July 1977)\nConstitutional Law \u00a7 49\u2014 waiver of assigned counsel \u2014 attempted withdrawal on trial date\nWhere defendant had counsel appointed for him but at the preliminary hearing voluntarily and understandingly waived counsel, he was not thereafter entitled to withdraw his waiver of counsel at any time and have counsel appointed to represent him; therefore, defendant was not prejudiced where he requested appointment of counsel at trial, and the court refused his request but did direct defendant\u2019s original attorney to assist defendant in his defense.\nAppeal by defendant from Long, Judge. Judgment entered 19 October 1976 in Superior Court, Caswell County. Heard in the Court of Appeals 7 June 1977.\nDefendant was tried upon a bill of indictment charging an assault with a deadly weapon with intent to kill inflicting serious injury. The jury found him guilty of the lesser included offense of an assault with a deadly weapon inflicting serious injury.\nThe State\u2019s evidence tended to show the following: On 15 August 1976 defendant and the victim, James Tillman, both of whom were serving prison sentences, were in line in the prison unit dining hall at about 4:00 p.m. Defendant broke out of line, ran up behind Tillman and stabbed him in the back with a \u201cshiny object.\u201d Tillman cried out and ran toward the door. Defendant attempted to pursue Tillman but was restrained by other prisoners. Defendant passed a shiny object to another prisoner and it was passed along among a group of prisoners who were standing near defendant. A spoon handle with the cup end cut off and one end sharpened was later found beneath a dining table in the area where the attack on Tillman had occurred. The spoon handle had specks of dried blood on it. Tillman received two deep wounds.\nThe defendant\u2019s evidence tended to show that he was present but that he did not commit the assault.\nAttorney General Edmisten, by Assistant Attorney General James Wallace, Jr., for the State.\nPhilip W. Allen for the defendant." }, "file_name": "0628-01", "first_page_order": 656, "last_page_order": 658 }