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  "name": "STATE OF NORTH CAROLINA v. THOMAS GORDON",
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  "casebody": {
    "judges": [
      "Judges BECTON and PARKER concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. THOMAS GORDON"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nDefendant contends the court erred in denying his motion for a continuance, forcing him to represent himself, and denying his motion to suppress identification testimony. The single issue presented is whether the court (Judge Hairston) erred in forcing or allowing defendant to proceed without counsel at the hearing on his motion to suppress identification testimony. We find State v. McCrowre, 312 N.C. 478, 322 S.E. 2d 775 (1984), and its progeny, controlling. Pursuant thereto, we hold that absent a clear indication by defendant that he desired to proceed pro se, and absent the inquiries required by N.C. Gen. Stat. 15A-1242 (1983), the court erred in requiring defendant to proceed pro se at the suppression hearing.\nThe pertinent facts are as follows:\nDefendant\u2019s court-appointed counsel made a motion to withdraw on the ground that an atmosphere of mistrust had developed between him and defendant. At a hearing on the motion defendant testified that he was faced with the possibility of a substantial sentence, that his appointed counsel had shown no interest in his case, and that he would rather have an attorney he could depend on. He testified: \u201cI would just like to have a lawyer I can pay that I feel comfortable. ... I just had a dream of having a lawyer, paying for a lawyer. . . . All I want is just [to be] properly represented. I don\u2019t think you [appointed counsel] have it for me ... . That\u2019s all I\u2019m asking.\u201d\nThe prosecuting attorney inquired whether defendant had the money to hire a private attorney. Defendant replied that he did not, but that he was \u201cworking on\u201d it. The court stated that defendant could not delay the prosecution while getting \u201cfunds to hire the best counsel.\u201d It noted that it thought a reasonable time had expired and that there was no indication that defendant could hire an attorney that day. It then stated: \u201cThe Motion Is Denied, with leave to the defendant to represent himself, if he is so of a mind to.\u201d It instructed defendant to advise the court if at any time he wished to assume his own representation rather than having his appointed attorney represent him.\nWhen the appointed attorney asked if defendant had any response, defendant stated: \u201cI represent myself.\u201d The court asked: \u201cYou prefer to represent yourself?\u201d Defendant responded: \u201cYes, I would.\u201d\nThe court then advised defendant that it would ask the appointed attorney to sit with him so defendant could \u201cconsult him concerning legal, technical matters.\u201d Defendant responded: \u201cI don\u2019t want him sitting with me.\u201d The court thereupon allowed the appointed attorney\u2019s motion to withdraw.\nAfter allowing the motion to withdraw the court proceeded immediately with a hearing on the motion to suppress the identification testimony. Defendant stated to the court: \u201cI don\u2019t know about my case. I don\u2019t know one side of anything. Anything that\u2019s been presented to me was presented to me within the last couple [of] days. . . . All of these things that he [appointed counsel] put before me, whatever he brought up he did not talk to me about these things. So, I don\u2019t know. ... He hasn\u2019t expressed to me about nothing, nothing about my case[,] about me.\u201d The court responded: \u201cYou have elected at the last minute to come in and represent yourself. And, this is a very difficult thing for you to do. But that\u2019s the only election that was left open to you, if you wanted to discharge [appointed counsel].\u201d\nThe fact that an accused waives his right to assigned counsel does not mean that he waives all right to counsel. State v. McCrowre, 312 N.C. 478, 481, 322 S.E. 2d 775, 777 (1984). See also State v. White, 78 N.C. App. 741, 338 S.E. 2d 614 (1986); State v. Lyons, 77 N.C. App. 565, 335 S.E. 2d 532 (1985); State v. Graham, 76 N.C. App. 470, 333 S.E. 2d 547 (1985); State v. Michael, 74 N.C. App. 118, 327 S.E. 2d 263 (1985). In McCrowre, as here, defendant discharged assigned counsel with the expectation of retaining private counsel. The trial court there denied defendant\u2019s request for \u201csomeone to assist\u201d with his case. McCrowre, 312 N.C. at 480, 322 S.E. 2d at 776. 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, 312 N.C. 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. 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, 312 N.C. at 481, 322 S.E. 2d at 777; see also Graham, 76 N.C. App. at 474, 333 S.E. 2d at 549; Michael, 74 N.C. App. at 119, 327 S.E. 2d at 264-65.\nThe record here reveals no such inquiry. While there is some evidence that defendant understood that the charges were serious, there is no evidence that he 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. 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, 312 N.C. at 480, 322 S.E. 2d at 776-77. His statements that he \u201cwould just like to have a lawyer that [he could] pay,\u201d that he \u201chad a dream of having a lawyer, paying for a lawyer,\u201d and that he \u201cjust [wanted to be] properly represented\u201d indicate the contrary. The trial court here, like the trial court in McCrowre, apparently \u201cmistakenly believed that defendant had waived his right to all counsel,\u201d McCrowre, 312 N.C. 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 the statements set forth above. We find no merit in the State\u2019s argument that defendant has failed to show prejudice because the eyewitness identification was positive and the evidence did not indicate that the identification methods used were impermissibly suggestive. The suppression hearing was the critical stage for developing any weaknesses in the State\u2019s evidence, and without the assistance of counsel defendant was ill-equipped to perform that task. Defendant clearly informed the court that he knew nothing about his case. He also demonstrated his lack of understanding of the suppression hearing proceedings by asking the prosecuting attorney during the hearing, \u201cWhat\u2019s going on?,\u201d and by stating that he thought there was going to be a jury trial and he wanted testimony in front of a jury.\nFollowing McCrowre, we hold that the court erred in requiring defendant to proceed pro se at the suppression hearing without a clear indication that he desired to do so and without making the inquiries required by N.C. Gen. Stat. 15A-1242. Accordingly, there must be a new trial. This disposition makes it unnecessary to pass upon the remaining arguments presented.\nNew trial.\nJudges BECTON and PARKER concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Thornburg, by Assistant Attorney General Catherine McLamb, for the State.",
      "Charles V. Bell for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. THOMAS GORDON\nNo. 8526SC763\n(Filed 4 March 1986)\nConstitutional Law 8 46\u2014 discharge of appointed counsel \u2014 defendant required to proceed pro se \u2014 error\nIn a prosecution for armed robbery in which defendant discharged his appointed counsel at an identification suppression hearing, the trial court erred by requiring defendant to proceed pro se without a clear indication that he desired to do so and without making the inquiries required by N.C.G.S. 15A-1242.\nAppeal by defendant from Kirby, Judge. Judgment entered 4 October 1984 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 10 December 1985.\nDefendant appeals from a judgment of imprisonment entered upon his conviction of armed robbery.\nAttorney General Thornburg, by Assistant Attorney General Catherine McLamb, for the State.\nCharles V. Bell for defendant appellant."
  },
  "file_name": "0623-01",
  "first_page_order": 651,
  "last_page_order": 655
}
