{ "id": 8569683, "name": "STATE OF NORTH CAROLINA v. CEPHUS DIXON McNEIL, NATHAN SYLVESTER WALLER, JAMES EUGENE WALLER, LARRY EUGENE LEAK, and BOBBY WHITE FERRELL", "name_abbreviation": "State v. McNeil", "decision_date": "1965-01-15", "docket_number": "", "first_page": "260", "last_page": "272", "citations": [ { "type": "official", "cite": "263 N.C. 260" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "70 S.E. 2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 420", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625250 ], "opinion_index": 0, "case_paths": [ "/nc/235/0420-01" ] }, { "cite": "156 S.E. 538", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620871 ], "opinion_index": 0, "case_paths": [ "/nc/200/0308-01" ] }, { "cite": "182 S.E. 643", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617854 ], "opinion_index": 0, "case_paths": [ "/nc/208/0771-01" ] }, { "cite": "254 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "pin_cites": [ { "page": "810" } ], "opinion_index": 0 }, { "cite": "157 A.L.R. 1225", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "36 Cal. Rptr. 722", "category": "reporters:state", "reporter": "Cal. Rptr.", "opinion_index": 0 }, { "cite": "179 A. 2d 878", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "228 Md. 658", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1866634 ], "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/md/228/0658-01" ] }, { "cite": "105 U.S. App. D.C. 77", "category": "reporters:state", "reporter": "U.S. App. D.C.", "pin_cites": [ { "page": "264" } ], "opinion_index": 0 }, { "cite": "188 A. 2d 282", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "231 Md. 21", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2304604 ], "opinion_index": 0, "case_paths": [ "/md/231/0021-01" ] }, { "cite": "273 F. 2d 10", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1960049 ], "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/f2d/273/0010-01" ] }, { "cite": "302 F. 2d 603", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 246756 ], "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/f2d/302/0603-01" ] }, { "cite": "303 F. 2d 317", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 251053 ], "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/f2d/303/0317-01" ] }, { "cite": "303 F. 2d 536", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 250950 ], "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/f2d/303/0536-01" ] }, { "cite": "209 F. 2d 831", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 557853 ], "pin_cites": [ { "page": "834" } ], "opinion_index": 0, "case_paths": [ "/f2d/209/0831-01" ] }, { "cite": "296 F. 2d 657", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 218884 ], "pin_cites": [ { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/f2d/296/0657-01" ] }, { "cite": "304 U.S. 458", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10805 ], "weight": 3, "pin_cites": [ { "page": "468-69" } ], "opinion_index": 0, "case_paths": [ "/us/304/0458-01" ] }, { "cite": "317 U.S. 269", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 303755 ], "weight": 3, "pin_cites": [ { "page": "279" }, { "page": "241-242" } ], "opinion_index": 0, "case_paths": [ "/us/317/0269-01" ] }, { "cite": "11 L. Ed. 2d 474", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "375 U.S. 987", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11794628, 11794767, 11794672, 11794932, 11794557, 11794847 ], "opinion_index": 0, "case_paths": [ "/us/375/0987-02", "/us/375/0987-04", "/us/375/0987-03", "/us/375/0987-06", "/us/375/0987-01", "/us/375/0987-05" ] }, { "cite": "318 F. 2d 855", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 161770 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/f2d/318/0855-01" ] }, { "cite": "333 F. 2d 1004", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 141288 ], "opinion_index": 0, "case_paths": [ "/f2d/333/1004-01" ] }, { "cite": "329 U.S. 173", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6156971 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/us/329/0173-01" ] }, { "cite": "355 U.S. 155", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6163328 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/us/355/0155-01" ] }, { "cite": "93 A.L.R. 2d 733", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "372 U.S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765333 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/372/0335-01" ] } ], "analysis": { "cardinality": 1040, "char_count": 31520, "ocr_confidence": 0.585, "pagerank": { "raw": 5.974415179722578e-07, "percentile": 0.9538741447860474 }, "sha256": "dab2ce2441bb2af4d3c71296e8a7b70c3ef311e713e726614435f64661bab8fd", "simhash": "1:4405b5e5553c413d", "word_count": 5476 }, "last_updated": "2023-07-14T15:44:48.035422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. CEPHUS DIXON McNEIL, NATHAN SYLVESTER WALLER, JAMES EUGENE WALLER, LARRY EUGENE LEAK, and BOBBY WHITE FERRELL." ], "opinions": [ { "text": "PARKER, J.\nWhen McNeil appealed to the Supreme Court, Judge Copeland found that he was an indigent, and, pursuant to the provisions of G.S. 15-4.1, appointed Rudolph L. Edwards of the Durham County Bar to prosecute his appeal in the Supreme Court. When Bobby White Ferrell appealed to the Supreme Court, Judge Copeland found that he was an indigent, and, pursuant to the provisions of G.S. 15-4.1, appointed Anthony M. Brannon of the Durham County Bar to prosecute his appeal in the Supreme Court. Roy R. Mitchell, Jr., has continued his services as counsel for defendant James Eugene Waller in the prosecution of his appeal in the Supreme Court. The case on appeal and the briefs of attorneys for the three appealing defendants have been mimeographed at public expense in the same form as is done by any defendant in this State who is well able financially to prosecute his appeal.\nThe State\u2019s evidence shows these facts: Ben F. Green about 9:30 p.m. on Sunday, 15 March 1964, was preparing to close a grill he operated at 1201 Juniper Street in the city of Durham. He was alone. He turned off all the lights except one. His TV was on. Bobby White Ferrell knocked at the door. He paid him \u201cno mind.\u201d There is no evidence Ferrell came in the grill or what door he knocked at. Two or three minutes later, he cut off the TV and the remaining light and went out the back door with his pistol in one hand and a pan of dog food in the other. When he got outside, he put his pistol in his pocket and turned round to lock the door. At that time two men, one of whom was Cephus Dixon McNeil, grabbed him from behind. While two men held him, McNeil ran in front of him in the light, and said: \u201cGet his pocketbook, get his pocketbook,\u201d and grabbed his pistol. Then McNeil said, \u201cmake him hush hollering,\u201d and hit him once or twice with a pistol on the side of his head. He kept tussling and every time he whirled round, McNeil pointed a pistol at him, and looked like he was trying to shoot him, but McNeil was scared he would shoot one of his companions. The men grabbed his pocketboolc containing $160, his driver\u2019s license and receipts, and ran off. He had known NcNeil five or six years, knew his twin brother Clarence, and knew them apart. Three big lights made it bright as day, and McNeil was the one who held the pistol on him. He never told Lt. Haithcock of the Durham Police Force that Ferrell robbed him; he told him Ferrell was there.\nThe State called as its second witness detective A. L. Hight of the Durham Police Force. Over the objection and exception of Ferrell, the court permitted Hight to testify that defendant Leak, in the presence of two other detectives of the Durham Police Force and of defendant Ferrell and of Clarence McNeil, twin brother of defendant McNeil, made the following statement:\n\u201cBobby White Ferrell was a lookout, that he, James Eugene Waller, Cephus McNeil and Nathan Waller waited for Mr. Green to close and come out, whereupon they grabbed and robbed him, with Nathan Waller carrying the sawed-off shotgun at this time. That James Eugene Waller was the one who took Mr. Green\u2019s pistol and when they left they went to Cephus McNeil\u2019s home to divide the money and that it was later that Bobby White Ferrell came to the house where he was given $5.00 for his part.\u201d\nThe court instructed the jury not to consider this statement against defendants McNeil and James Eugene Waller. The solicitor then asked Hight what Ferrell said about Leak\u2019s statement. Hight replied:\n\u201cBobby Ferrell never made any comment to the statement except the fact that he denied it, and he told us that we were the detectives and we could find out the best way we could.\u201d\nThen the solicitor asked Hight: \u201cI ask you whether he ever denied it at that time?\u201d Hight replied:\n\u201cNo, sir. He never denied participating in them, but he was real hard to get along with, and he told us that we were the detectives, we could find out the best way we could about it.\u201d\nDetective Hight then testified, without objection, that defendant McNeil on 1 May 1964 made the following statement in the interrogation room in the Police Department in the presence of another police detective:\n\u201c[H]e and Larry Leak and James Waller and Nathan Waller, along with Bobby Ferrell, robbed a colored man that operated Green Sport Shop on Juniper Street. Cephus stated to me that they got approximately $75 from the colored man. He stated that they divided the money between the four of them. He stated they each received 18 or 20 dollars each. Cephus said the boy they called \u2018Hero,\u2019 who is Bobby Ferrell.\n\u201c \u2018Hero,\u2019 who is Bobby Ferrell, got $5.00 for his part in participating in this robbery. Cephus also stated to me and Lt. Haith-cock that during this robbery they took a .32-caliber pistol that they had taken from a white man at another robbery in Raleigh, North Carolina. He stated they carried both of these guns with him at the time he went. He stated he kept both these guns in his room in New York City until he found out the FBI was looking for him and when he heard that they were looking for him he took both of the guns and threw them in the River near the Brooklyn Bridge and he stated he had not seen the guns since this time, and he was arrested in New York City and brought back.\n\u201cHe stated that he didn\u2019t, didn\u2019t mind confessing to what he had done, that he didn\u2019t mind talking to us about it, but that he would rather not sign anything.\u201d\nAfter all the statement had been admitted without objection, defendant McNeil objected to it. Judge Copeland instructed the jury that they should not consider defendant McNeil\u2019s statement against the other defendants.\nDetective Hight further testified that defendant James Eugene Waller on 7 May 1964 voluntarily came to the Durham Police Headquarters, and voluntarily gave himself up. Hight told him he had been implicated in these robberies by other persons who participated in these robberies, and did he want to make any statement in reference to these robberies he had been implicated in. Hight said he took a few notes as Waller spoke, and these were not signed by Waller. The record then states: \u201cAfter more discussion the Court found the \u2018confession\u2019 voluntary and to this the defendant James Eugene Waller excepts and assigns as error No. 1.\u201d The record is as bare of what the \u201cmore discussion\u201d was as old Mother Hubbard\u2019s cupboard, when she went to it \u201cto get her poor dog a bone.\u201d Judge Copeland instructed the jury that they should not consider Waller\u2019s statement against the other defendants, but consider it against Waller alone. Hight then testified that Waller said in effect that he, Larry Leak, Nathan Waller, Cephus McNeil, and Bobby White Ferrell went to the Green Sport Shop, waited for a while, robbed Mr. Green as he closed, left and then went to Cephus McNeil\u2019s house to divide the money.\nAfter Hight had testified, defendant McNeil recalled him for further cross-examination. He testified in substance: They found the shotgun introduced in evidence underneath the garage immediately back of defendant McNeil\u2019s house. The informant said it was there, and they went there and found it.\nCEPLIUS DIXON McNEIL\u2019S APPEAL\nMcNeil\u2019s first assignment of error is that the trial court did not appoint counsel to represent him at his trial after he had discharged his previously court-appointed counsel, Standish S. Howe.\nMcNeil was charged in the indictment with the commission of a serious felony in a State court. By virtue of the Fourteenth Amendment to the United States Constitution, he was entitled to representation in the trial court. Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 93 A.L.R. 2d 733.\nBefore his trial the superior court judge, recognizing McNeil\u2019s constitutional right and acting under the provisions of G.S. 15-4.1, appointed Standish S. Howe of the Durham County Bar to represent him in the trial court. Plowe, according to the unchallenged findings of fact of Judge Copeland, is a graduate of the law school of Duke University, has practiced his profession for the last thirteen years, and is a well-qualified lawyer. In defendant McNeil\u2019s brief it is stated that Standish S. Howe\u2019s professional competency is not challenged.\nBefore pleading to the indictment McNeil stated to the court that he did not want Mr. Howe as his lawyer, that he wanted a lawyer, but he did not want Mr. Howe, that he had rather have nobody than have Mr. Howe, that he wanted to discharge him. McNeil stated the reason he did not want Mr. Howe as follows: \u201cI am getting along and don\u2019t seem like the lawyer is doing me no good. He talks against me. I tell him what to say and he says other things.\u201d\nBefore the instant case was argued in the Supreme Court, Rudolph L. Edwards, attorney for defendant McNeil, filed in the Supreme Court a motion suggesting a diminution of the record in order to add thereto an affidavit of Standish S. Howe, McNeil\u2019s discharged court-appointed lawyer, and attached to the motion the affidavit. The Attorney General of North Carolina did not resist it, and this Court allowed the motion. Standish S. Howe\u2019s sworn affidavit states in substance, except when quoted: He represented the defendant McNeil in two criminal trials in the Durham County superior court. In one of these cases defendant McNeil was tried with four other defendants for armed robbery on 24 March 1964, was convicted and received a sentence of from 20 to 30 years. In the other case he was convicted of common law robbery on 6 December 1963 and received a sentence of not less than 2 nor more than 10 years. Before the trial of the instant case began, McNeil informed him that he did not want him as his counsel. This was brought to the attention of Judge Copeland. Judge Copeland took McNeil, Howe, and the court reporter into his chambers. Judge Copeland asked McNeil if he wanted court-appointed counsel. McNeil said he did not want Howe as his counsel. Judge Copeland advised McNeil that he must accept the lawyer appointed by the court or have no lawyer at all. McNeil repeated that he did not want Howe as his lawyer. The judge then entered an order dismissing Howe as McNeil\u2019s attorney. In the instant trial there were five defendants. He had conferred with W. G. Pearson and C. C. Malone, court-appointed attorneys for two of the defendants. \u201cWe wanted to stop these trials if we could, because the defendants had something like 15 different bills of indictment against them, and it appeared that every time the State tried the defendants and obtained a conviction against them, the State was ready to try them again on another offense, and the sentences might be tacked on to each other.\u201d Pearson and Malone were able to get their clients, Larry Eugene Leak and Nathan Sylvester Waller, to plead nolo contendere, and they received 10 to 20 years concurrent sentences. If McNeil had not discharged him, he would have advised that he plead nolo contendere with the hope of a concurrent sentence and that there would be a stop to these trials. McNeil pleaded not guilty and received a sentence of 15 to 25 years to run at the expiration of sentences he was serving, and the court recommended that he be confined in a maximum security prison unit. He did not perfect appeals to the Supreme Court that McNeil thought he should have, and this was the basis of the dissatisfaction between them. He told McNeil if he did not want him as his lawyer to tell the judge about it, and perhaps the judge would appoint another lawyer to represent him. If McNeil had kept him as his lawyer, and if he had followed his advice to plead nolo contendere as Pearson\u2019s and Malone\u2019s clients did, he might have received a lighter sentence.\nThe trial court permitted McNeil to discharge Howe as his lawyer, and he went to trial without a lawyer.\nThe United States Constitution does not deny to a defendant the right to defend himself. Nor does the constitutional right to assistance of counsel justify forcing counsel upon a defendant in a criminal action who wants none. Moore v. Michigan, 355 U.S. 155, 2 L. Ed. 2d 167; Carter v. Illinois, 329 U.S. 173, 91 L. Ed. 172; United States v. Johnson, 6 Cir. (June 1964), 333 F. 2d 1004.\nIn Johnson v. United States, 8 Cir., 318 F. 2d 855, cert. den. 375 U.S. 987, 11 L. Ed. 2d 474, the Court said:\n\u201cIt is equally well settled that a defendant charged with a federal crime may waive his right to representation by counsel \u2018if he knows what he is doing and his choice is made with eyes open.\u2019 Adams v. United States ex rel McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 241-242, 87 L. Ed. 268; Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S. Ct. 1019, 82 L. Ed. 1461; Hayes v. United States, 8 Cir., 296 F. 2d 657, 668; Lipscomb v. United States, 8 Cir., 209 F. 2d 831, 834; Glenn v. United States, 5 Cir., 303 F. 2d 536, 540; Igo v. United States, 10 Cir., 303 F. 2d 317, 318; Arellanes v. United States, 9 Cir., 302 F. 2d 603, 610; Watts v. United States, 9 Cir., 273 F. 2d 10, 12.\u201d\nWe think this statement is equally true of a defendant charged with crime in a state court.\nThe facts in the Johnson case, 318 F. 2d 855, are helpful here. Johnson was charged with a federal offense. The trial court appointed Mr. Joseph L. Flynn, a competent, experienced and able trial attorney of the Missouri Bar, to represent him in his trial. Mr. Flynn stated to the court in substance that Johnson did not want him to represent him, that he wanted to represent himself, that he had told Johnson what he considered the law to be, and by reason thereof he preferred to represent himself. The judge said to Johnson: \u201cYou say you do not want Mr. Flynn to represent you?\u201d Johnson replied: \u201cNo, sir, he has had six months and he has done nothing. * * I believe Mr. Flynn would do it the best he could, but he doesn\u2019t understand the points that I want.\u201d The judge replied in part: \u201cThe Court has appointed a lawyer for you and a good lawyer. If you do not want this lawyer to represent you, you have a perfect right to try your own case, but I am not going to appoint another lawyer for you.\u201d Johnson said: \u201cWell, I would like to see that my constitutional rights \u2014 .\u201d The judge interrupted him saying \u201cI have done all I can do for you. I am not going to appoint another lawyer. If you want Mr. Flynn to withdraw, all right, but I am not going to appoint another lawyer.\u201d Johnson, after further colloquy, said he did not want Mr. Flynn to represent him. Johnson went to trial without counsel, was found guilty by a jury, and received a prison sentence consecutive with a prison sentence he was serving. The Court said:\n\u201cDefendant was fully informed as to the court\u2019s view that Mr. Flynn was in a position to competently represent the defendant and that if defendant insisted on Mr. Flynn\u2019s release, no other attorney would be appointed to represent him. With such knowledge defendant unequivocally informed the court that he insisted upon Mr. Flynn\u2019s release.\n\u201cThe trial court committed no error in determining defendant has waived his constitutional right to be represented by counsel.\u201d\nIn Campbell v. State of Maryland (1963), 231 Md. 21, 188 A. 2d 282, defendant was convicted in the criminal court of Baltimore of armed robbery and carrying a deadly weapon, and appealed. Prior to his trial appellant requested the court to appoint another lawyer for him in lieu of his court-appointed counsel. When asked whether there was a good reason for a change of lawyers, he replied: \u201cThat is all right.\u201d He assigned as error the refusal of his request. The Court in a per curiam opinion said:\n\u201cHe now claims error in the refusal of his request. In the absence of any substantial reason for replacement of counsel (none was advanced here), an indigent defendant must accept counsel appointed by the court, unless he desires to present his own defense. Brown v. United States, 105 U.S. App. D.C. 77, 264, F. 2d 363, 367; cf. Murray v. Director, 228 Md. 658, 660, 179 A. 2d 878. But even if the question raised had any merit, it was plainly waived by appellant.\u201d\nIn People v. Terry (1964), 36 Cal. Rptr. 722, defendant was convicted in the superior court of petty theft and appealed. The District Court of Appeal held that where the trial court made it clear that de-fendent must choose between representation by his c\u00f3urt-appointed counsel or by himself, when he expressed an unfounded dissatisfaction with his court-appointed lawyer merely because the court-appointed lawyer wanted him to plead guilty of something he was not guilty of, and defendant in at least three statements made it clear that he elected to defend himself, defendant properly waived the right of counsel at his trial.\nIn 157 A.L.R. 1225 et seq., there is an annotation entitled \u201cRight of defendant in criminal case to discharge of, or substitution of other counsel for, attorney appointed by court to represent him.\u201d Therein it is said:\n\u201cThe right to such discharge or substitution is to this extent relative, and the authorities seem united in the view that if there is fair representation by competent assigned counsel, proceeding according to his best judgment and the usually accepted canons of criminal trial practice, no right of the defendant is violated by refusal to accede to his personal desire in the matter.\u201d\nMr. Howe, court-appointed lawyer for McNeil, is a well-qualified lawyer, and admitted to be such in McNeil\u2019s brief. When McNeil informed Judge Copeland that he wanted to discharge him as his attorney, Judge Copeland made it absolutely clear to him that he must have Howe as his lawyer in his trial or have no lawyer at all. After the judge\u2019s statement, McNeil said he did not want Howe as his lawyer, that he wanted to discharge him, that he wanted a lawyer but he did not want Howe. It is common knowledge of the Bench and Bar, who are engaged in criminal trials, that not infrequently convicted criminal offenders sentenced to prison have no good opinion of the services of their lawyers who defended them. It is also generally known to Bench and Bar that defendants, who have had extensive experience in the courts, as the record shows McNeil has had, think they should tell their lawyers what to say, and their lawyers do not say it, because to do so would ruin the defendants. There is no evidence before us that McNeil, in his two former trials referred to in Howe\u2019s affidavit, told the trial judge in those cases he wanted to appeal. Competent and experienced lawyers do not advise an appeal when they are confident there is no error in the trial. The mere fact that Howe did not appeal those two cases, when McNeil thought he should have an appeal, does not militate against Howe\u2019s professional competency to have defended him properly in the instant case. An indigent defendant in a criminal action, in the absence of statute, has no right to select counsel of his own choice to defend him, and we have no statute in North Carolina that gives him the right to select counsel. In the absence of any substantial reason for replacement of court-appointed counsel, an indigent defendant must accept counsel appointed by the court, unless he desires to present his own defense. McNeil, according to the record before us, had had experience before as a defendant in criminal trials. In the instant case we think McNeil had no substantial reason to have the court appoint another lawyer to represent him in the trial, when he had discharged Howe, after having been unequivocally told by Judge Copeland that if he discharged Howe he would not appoint another lawyer to represent him, and that in discharging Howe he knew what he was doing and understandingly waived his constitutional right to have counsel. His counsel insists he did not waive the assistance of counsel, because he did not sign a written waiver. G.S. 15-4.1 states a \u201cdefendant may waive the right to counsel in all cases except a capital felony by a written waiver executed by the defendant * * The statute does not say he must sign a written waiver. Unquestionably in a criminal action a defendant can waive his right to counsel in North Carolina without signing a written waiver. Howe\u2019s statement in his affidavit to the effect that if McNeil had kept him as his lawyer, and if he had followed his advice to plead nolo contendere, as Pearson\u2019s and Malone\u2019s clients did, he might have received a lighter sentence, is pure speculation. If he had continued as his counsel, there is nothing to suggest that McNeil would have accepted his advice and entered a plea of nolo contendere. The record shows that Ferrell, who discharged his lawyer, represented himself, and pleaded not guilty, received the same sentence as the defendants represented by Pearson and Malone. It is probable that McNeil received a heavier sentence because, after his conviction, the State offered evidence of his prior criminal record, which it would seem from the judge\u2019s sentence was worse than that of McNeil\u2019s codefendants.\nDefendant McNeil\u2019s other two assignments of error brought forward and discussed in his brief are overruled. They are without merit, present no new question, and require no discussion.\nMcNeil\u2019s assignments of error in the record, which have not been brought forward and discussed in his brief, are taken as abandoned by him. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, 810.\nIn McNeil\u2019s trial we find no error.\nJAMES EUGENE WALLER\u2019S APPEAL\nJames Eugene Waller states in his brief that the only question presented by him is whether his confession was voluntary as a matter of law, and \u201cif this Court finds that the confession obtained by this defendant appellant was free and voluntary, then his conviction must stand.\u201d This appellant relies upon S. v. Anderson, 208 N.C. 771, 182 S.E. 643, which is patently distinguishable. In the Anderson case it was held the confession was not competent, because it appeared from the testimony of a State witness that the confession was obtained by falsely telling the confessor that his codefendants had talked, and that he had better confess. Here appellant Waller on 7 May 1964 voluntarily came to Durham Police Headquarters and gave himself up. Hight told him he had been implicated in these robberies by other persons who participated in these robberies, and did he want to make any statement in reference to these robberies he had been implicated in. There is not a scintilla of evidence in the record that such statement by Hight was false: in fact the record affirmatively shows the statement was true, because Leak and McNeil on 1 May 1961 had previously implicated appellant Waller. After this statement, appellant Waller made a confession. It appears from the record it was made freely and voluntarily. There is no evidence to the contrary. It was competent and properly admitted in evidence against him. In his trial we find no error.\nBOBBY WHITE FERRELL\u2019S APPEAL\nFerrell assigns as error the admission in evidence against him, over his objection and exception, of the extra-judicial confession of defendant Leak incriminating him, as above set forth. When the statement was made, detective Hight testified Ferrell promptly denied it. All this amounts to is an accusation by Leak, which Ferrell promptly denied. Under such circumstances the principle of admission by silence does not come into play. It is true detective Hight then testified Ferrell \u201cnever denied participating in them [the robberies].\u201d This later statement of Hight is obscure, but it seems by Hight\u2019s use of the word \u201cthem\u201d he was referring to other robberies McNeil and the other code-fendants of Ferrell had stated to him that all of the defendants in this case were implicated in. We are fortified in our opinion by the statement in the affidavit of Standish S. Howe, above set forth, which states in part: \u201cWe wanted to stop these trials if we could, because the defendants had something like 15 different bills of indictment against them.\u201d We think Leak\u2019s extra-judicial confession incriminating Ferrell under the circumstances here was not competent in evidence against Ferrell, and its admission was error, S. v. Herring, 200 N.C. 308, 156 S.E. 538; S. v. Bryant, 235 N.C. 420, 70 S.E. 2d 186, which entitles him to a new trial.\nThe result reached is this: In McNeil\u2019s case, no error; in James Eugene Waller\u2019s case, no error; in Ferrell\u2019s case, new trial.", "type": "majority", "author": "PARKER, J." } ], "attorneys": [ "Attorney General T. W. Bruton and Assistant Attorney General Richard T. Sanders for the State.", "Rudolph L. Edwards for defendant Cephus Dixon McNeil.", "R. Roy Mitchell, Jr., for defendant James Eugene Waller.", "Anthony M. Brannon for defendant Bobby White Ferrell." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CEPHUS DIXON McNEIL, NATHAN SYLVESTER WALLER, JAMES EUGENE WALLER, LARRY EUGENE LEAK, and BOBBY WHITE FERRELL.\n(Filed 15 January, 1965.)\n1. Constitutional Law \u00a7 32\u2014\nA defendant charged with a felony is entitled to representation in the trial court in both the State and Federal jurisdictions, but such right does not justify the court in forcing counsel upon a defendant who wants none. Fourteenth Amendment to the Constitution of the United States.\n2. Same\u2014\nAn indigent defendant has no right to select his own counsel and must accept experienced and competent counsel appointed by the court in the absence of any substantial reason for replacement, and when a defendant states he does not want court appointed counsel after the court has made clear that the court would not appoint other counsel, he waives counsel. The mere fact that court appointed counsel had not prosecuted appeals from prior convictions of the defendant when defendant thought he should have done so is not ground for replacement.\n3. Same\u2014\nIt is not required that waiver of counsel be in writing. G.S. 15-4.1.\n4. Same\u2014\nSpeculation as to whether defendant would have been better off had he not discharged his court appointed counsel and represented himself is irrelevant to the question of whether he had voluntarily waived counsel by discharging his count appointed counsel.\n5. Criminal Law \u00a7 159\u2014\nExceptions and assignments of error not brought forward and discussed in the brief deemed abandoned. Rule of Practice in the Supreme Court No. 28.\n6. Criminal Law \u00a7 71\u2014\nThe fact that a defendant who had voluntarily given himself up at police headquarters made a confession after he had been truthfully told by a police officer that defendant had been implicated by others in the commission of the crime under investigation does not render the confession involuntary.\n7. Criminal Caw \u00a7 48\u2014\nWhere defendant promptly denies an accusation of guilt the principle of an implied admission by silence does not come into play, and evidence of the circumstances of the accusation is incompetent.\nAppeal by defendants Cephus Dixon McNeil, James Eugene Waller, and Bobby White Ferrell from Copeland, S. J., September 1964 Criminal Session of Durham.\nCriminal prosecution on an indictment charging Cephus Dixon McNeil, Nathan Sylvester Waller, James Eugene Waller, Larry Eugene Leak, and Bobby White Ferrell on 15 March 1964 at and in Durham County with the robbery of Ben F. Green of $160 in cash money United States currency and of a pistol of the value of $185, all the property of Ben F. Green, by the use and threatened use of firearms, to wit, a sawed-off shotgun and pistol, whereby the life of Ben F. Green was endangered or threatened, a violation of G.S. 14-87.\nWhen the case was called for trial, all the defendants were in court in their own proper persons and with their attorneys, all members of the Durham County Bar, and all apparently appointed by the court to represent them. Cephus Dixon McNeil was represented by Standish S. Howe; Nathan Sylvester Waller was represented by C. C. Malone, Jr.; James Eugene Waller was represented by R. Roy Mitchell, Jr.; Larry Eugene Leak was represented by W. G. Pearson, II; and Bobby White Ferrell was represented by W. Paul Pulley, Jr.\nBefore pleading to the indictment, Bobby White Ferrell stated to the court that he did not desire the services of W. Paul Pulley, Jr., the lawyer appointed for him by the court. Whereupon, the court, not in the presence of the panel of prospective jurors who had been summoned to the court to act as jurors, after due inquiry, found as a fact that W. Paul Pulley, Jr., is a graduate of the law school of the University of North Carolina and has practiced law at the Durham and Wake County Bars since that time, and is well qualified to practice law. Bobby White Ferrell, after making the above statement, signed under an oath a waiver of right to have counsel appointed for him. Whereupon, the court permitted Bobby White Ferrell to dismiss his court-appointed attorney, W. Paul Pulley, Jr.\nBefore pleading to the indictment, Cephus Dixon McNeil stated to the court that he did not desire the services of Standish S. Howe, the lawyer appointed for him by the court. Whereupon, the court, not in the presence of the panel of prospective jurors who had been summoned to the court to act as jurors, after due inquiry, found as a fact that Standish S. Howe is a graduate of the Duke University law school, has been practicing law in this State for the last thirteen years, and is well qualified to practice law. Whereupon, the following colloquy took place between the court and Cephus Dixon McNeil:\n\u201cCoxjRt: \u2018All right. Let me ask you a few questions. I take it you do not want a lawyer. Is that what you want?\u2019\n\u201cDeeendant: \u2018I want one, but I don\u2019t want Mr. Howe.\u2019\n\u201cCourt: \u2018Then, your position is that you had rather have nobody rather than Mr. Howe; is that correct?\u2019\n\u201cDeeendant: \u2018Yes, sir. I tell you why. I am getting along and don\u2019t seem like the lawyer is doing me no good. He talks against me. I tell him what to say and he says other things.\u2019\n\u201cCouet: \u2018You understand you are not an attorney?\u2019\n\u201cDeeendant: \u2018Yes, sir.\u2019\n\u201cCourt: \u2018You wish to discharge him?\u2019\n\u201cDeeendant: \u2018Yes, sir.\u2019\n\u201cCourt: \u2018Let the record so show, and the court hereby releases Mr. Howe as your attorney.\u2019 \u201d\nAfter this had occurred, all the defendants pleaded not guilty. While the jury was being selected, and before it had been empanelled, Nathan Sylvester Waller, in propria persona, and through his attorney, C. C. Malone, Jr., withdrew his plea of not guilty and tendered to the State a plea of nolo contendere.. Whereupon, the court examined Nathan Sylvester Waller, who stated that the plea of nolo contendere was free and voluntary on his part, that he fully understood the consequences of his plea, and the punishment therefor, and that he still wished to enter a plea of nolo contendere. The State accepted his plea, and it was entered upon the minutes of the court.\nAfter the jury had been selected and empanelled and during the presentation of the State\u2019s evidence, Larry Eugene Leak stated to the court in propria persona and through his attorney, W. G. Pearson, II, that he wished to change his plea from not guilty to nolo contendere. Whereupon, the court examined the defendant who stated that his plea of nolo contendere was made freely and voluntarily on his part without fear or compulsion from anyone, and that he fully understood the consequences of his plea. His plea of nolo contendere was accepted by the State and recorded in the minutes of the court.\nThe jury returned as their verdict that the defendants Cephus Dixon McNeil, James Eugene Waller, and Bobby White Ferrell are guilty as charged in the indictment.\nFrom judgments of imprisonment imposed on each one of them, defendants McNeil, James Eugene Waller, and Bobby White Ferrell appeal to the Supreme Court.\nAttorney General T. W. Bruton and Assistant Attorney General Richard T. Sanders for the State.\nRudolph L. Edwards for defendant Cephus Dixon McNeil.\nR. Roy Mitchell, Jr., for defendant James Eugene Waller.\nAnthony M. Brannon for defendant Bobby White Ferrell." }, "file_name": "0260-01", "first_page_order": 298, "last_page_order": 310 }