{
  "id": 8527483,
  "name": "STATE OF NORTH CAROLINA v. WILLIAM J. GRAHAM",
  "name_abbreviation": "State v. Graham",
  "decision_date": "1985-09-03",
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  "last_updated": "2023-07-14T20:46:57.071049+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Wells and Phillips concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIAM J. GRAHAM"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nDefendant contends the court erred in denying him court-appointed counsel or additional time in which to secure retained counsel. We find State v. McCrowre, 312 N.C. 478, 322 S.E. 2d 775 (1984), controlling. Pursuant thereto, we hold that in the absence of (1) further inquiry into the reason(s) for defendant\u2019s lack of counsel and (2) the inquiries required by N.C. Gen. Stat. Sec. 15A-1242 (1983), it was error to require defendant to proceed to trial pro se.\nThe pertinent facts are as follows:\nDefendant initially requested and received court-appointed counsel. On 1 June 1983, by written motion, he indicated a desire to retain his own counsel and petitioned the court to relieve appointed counsel of further responsibility. He further requested a continuance to allow him to retain private counsel.\nJudge Walker (H.H.) granted the motion, relieved appointed counsel of further responsibility, and continued the case until the August 1983 Session \u201cfor the defendant to have an opportunity to retain private counsel.\u201d Defendant, apparently simultaneously, executed a sworn waiver of right to assigned counsel.\nDefendant was not tried until 9 February 1984. Upon the call of the case the court asked the prosecuting attorney and the defendant if they were ready for trial. Both responded in the affirmative. The following dialogue then occurred:\nThe COURT: I see you do not have an attorney. You willing to go without an attorney?\nDefendant Graham: Well, I would like to have one.\nThe COURT: As I understand it you were going to get your own lawyer; is that correct?\nDefendant Graham: Yes, sir.\nThe COURT: What happened to that?\nDefendant Graham: Ran into a little problem.\nTHE COURT: Mr. Graham, I understand it, you were appointed an attorney at one time; is that correct?\nDefendant Graham: Yes, sir.\nThe COURT: As I understand it, as well, you were dissatisfied with his representation of you?\nDefendant Graham: Yes, sir.\nThe COURT: You asked that he not represent you; is that correct?\nDefendant Graham: Yes, sir.\nThe COURT: And then you were told \u2014 I assume you were told that you could do that, but then you would have to get your own lawyer?\nDefendant Graham: That\u2019s what I was told.\nThe COURT: All right. Mr. Graham, you understand that you are not entitled to an appointed attorney; . . . that you are not entitled to pick your own attorney, you go with the attorney we select for you, or you don\u2019t go at all; understand that?\nDefendant Graham: Yes, sir.\nThe COURT: I assume you were told that before; weren\u2019t you, that you can go out and hire whoever you want to, but you don\u2019t get an appointed one?\nAs a result of that, you signed a waiver to a Court-appointed lawyer; you told the Court that you were going to get your own?\nDefendant Grah[ajm: Yeah, I signed a waiver.\nThe COURT: Now, you don\u2019t have an attorney?\nDefendant Graham: No, sir.\nThe Court: Well, the Court\u2019s position on this is that the Court will not appoint you another attorney, so your choice was to go it alone or hire your own. So, you\u2019re going it alone?\nI think the case was continued at the last session, was that not correct, Mr. Carter [prosecuting attorney], so he could get his own lawyer?\nMr. Carter: Yes, sir, Your Honor.\nYour Honor, I would like the Court to notice that this is an \u201982 case, also, so he\u2019s had plenty of time to hire a lawyer.\nThe Court: Let the record show the Court would find that his waiver still stands, under the circumstances.\nSo, I guess you will be trying this yourself.\nOkay. Bring the Jury back. Be ready for trial?\nMr. Carter: Yes, sir, Your Honor.\nThe COURT: You ready for trial, Mr. Graham?\nDefendant Graham: (Nods head.)\nThe Court: All right.\nThe right to counsel is one of the most closely guarded of all trial rights. State v. Colbert, 311 N.C. 283, 285, 316 S.E. 2d 79, 80 (1984). The right nevertheless implicitly gives a defendant the right to refuse counsel and conduct his or her own defense. State v. Thacker, 301 N.C. 348, 353-54, 271 S.E. 2d 252, 256 (1980), citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975). Such waiver, however, like that of all constitutional rights, must be knowing and voluntary, and the record must show that the defendant was literate and competent, understood the consequences of waiver, and was voluntarily exercising free will. Id.\nPrior to arraignment defendant here signed a form designated \u201cWaiver of Right to Assigned Counsel.\u201d The fact that an accused waives his right to assigned counsel does not mean that he waives all right to counsel, however. State v. McCrowre, 312 N.C. 478, 481, 322 S.E. 2d 775, 777 (1984). In McCrowre, as here, the defendant discharged assigned counsel with the expectation of retaining private counsel. He then appeared for trial without counsel and requested that the court \u201cget someone to assist me in [my] case.\u201d McCrowre at 480, 322 S.E. 2d at 776. The court denied the request, stating that defendant had waived his right to counsel. In holding this error the Supreme Court reasoned that there was \u201cno evidence that defendant ever intended to proceed to trial without the assistance of some counsel.\u201d McCrowre at 480, 322 S.E. 2d at 776-77. It added that \u201c[statements of a desire not to be represented by court-appointed counsel do not amount to expressions of an intention to represent oneself.\u201d Id., 322 S.E. 2d at 777 [quoting State v. Hutchins, 303 N.C. 321, 339, 279 S.E. 2d 788, 800 (1981)]. It added further, citing N.C. Gen. Stat. Sec. 15A-1242 (1983), that\n[h]ad defendant clearly indicated that he wished to proceed pro se, the trial court was required to make inquiry to determine whether 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.\nMcCrowre at 481, 322 S.E. 2d at 777, see also State v. Michael, 74 N.C. App. 118, 327 S.E. 2d 263 (1985).\nThe record here reveals no such inquiry. There is no evidence that defendant was informed of the nature of the charges and the range of permissible punishments or that he understood and appreciated the consequences of proceeding without counsel. Absent such evidence, the court should not have permitted him to proceed pro se. N.C. Gen. Stat. Sec. 15A-1242; McCrowre, supra.\nFurther, here, as in McCrowre, \u201cthere is no evidence that defendant ever intended to proceed to trial without the assistance of some counsel.\u201d McCrowre at 480, 322 S.E. 2d at 776-77. His statement that he \u201cwould like to have one\u201d when asked if he was \u201cwilling to go without an attorney\u201d indicates the contrary. The trial court here, like that in McCrowre, apparently \u201cmistakenly believed that defendant had waived his right to all counsel,\u201d McCrowre at 481, 322 S.E. 2d at 777, by waiving his right to appointed counsel.\n\u201cGiven the fundamental nature of the right to counsel, we ought not to indulge in the presumption that it has been waived by anything less than an express indication of such an intention.\u201d State v. Hutchins, 303 N.C. 321, 339, 279 S.E. 2d 788, 800 (1981). Defendant here expressly indicated the contrary by stating that he \u201cwould like to have\u201d an attorney. The court failed to inquire further when defendant said he \u201c[r]an into a little problem\u201d in retaining private counsel, and the record contains no evidence as to the nature of the problem. We thus have no basis for concluding that defendant\u2019s failure to retain counsel was due to his own negligence or lack of diligence.\nWe believe McCrowre requires a new trial. Since defendant\u2019s other assignment of error relates to a matter unlikely to recur upon retrial, we do not discuss it.\nNew trial.\nJudges Wells and Phillips concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Thornburg, by Assistant Attorney General John R. Come, for the State.",
      "W. Phillip McRae for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM J. GRAHAM\nNo. 8416SC1298\n(Filed 3 September 1985)\nConstitutional Law \u00a749\u2014 waiver o\u00ed assigned counsel to retain counsel \u2014 appearance without counsel \u2014 required inquiries\nThe trial court erred in requiring defendant to proceed to trial pro se in the absence of (1) further inquiry into the reasons for defendant\u2019s lack of counsel and (2) the inquiries required by G.S. 15A-1242 (1983) where defendant initially requested and received court-appointed counsel; defendant then discharged appointed counsel with the expectation of retaining private counsel and signed a written waiver of assigned counsel; defendant appeared for trial without counsel; when asked if he was \u201cwilling to go without an attorney,\u201d defendant stated that he \u201cwould like to have one\u201d; and defendant stated that he \u201cran into a little problem\u201d in obtaining his own attorney.\nAppeal by defendant from Barnette, Judge. Judgment entered 9 February 1984 in Superior Court, SCOTLAND County. Heard in the Court of Appeals 29 August 1985.\nDefendant appeals from a judgment of imprisonment entered upon his conviction of felonious breaking or entering and larceny.\nAttorney General Thornburg, by Assistant Attorney General John R. Come, for the State.\nW. Phillip McRae for defendant appellant."
  },
  "file_name": "0470-01",
  "first_page_order": 504,
  "last_page_order": 509
}
