State v. Brincefield

258 S.E.2d 81, 43 N.C. App. 49, 1979 N.C. App. LEXIS 2990

• Court: Court of Appeals of North Carolina
• Decided: September 18, 1979
• Docket: 7915SC364
• Status: Published

Opinion

MARTIN (Harry C.), Judge.

[1] Defendant contends the trial court did not comply with N.C.G.S. 15A-1242 and 15A-1243. Section 1242 allows a defendant to go to trial without the assistance of counsel where the trial judge makes thorough inquiry and is satisfied defendant (1) has been advised of his right to the assistance of counsel and right to appointed counsel; (2) understands the consequences of his decision; and (3) comprehends the nature of the charges and the range of permissible punishments.

Judge McLelland was the trial judge and also presided at the pretrial hearings of defendant when defendant executed the waiver of counsel form. At that time, Judge McLelland fully informed defendant in open court of the nature of the proceedings or charges against him and of his right to have counsel appointed to represent him. With this information and understanding and after the judge explained the meaning and effect of waiver of counsel, defendant waived his right to counsel in the judge’s presence.

Defendant, under oath, stated he had been informed of the charges against him, the nature of them, the statutory punishment therefor, the nature of the proceeding, the right to counsel and the consequences of waiver of counsel. He further swore that he understood the foregoing and thereupon waived the assignment of counsel and elected to appear in all respects in his own behalf, without counsel, which he understood he had a right to do.

Brincefield, a defendant in a state criminal trial, had the right, protected by the United States Constitution, to represent himself in this case. Faretta v. California, 422 U.S. 806, 45 L.Ed. 2d 562 (1975); State v. Mems, 281 N.C. 658, 190 S.E. 2d 164 (1972). Under the laws of North Carolina, a defendant may appear either in person or by attorney. N.C. Gen. Stat. 1-11; State v. Pritchard, 227 N.C. 168, 41 S.E. 2d 287 (1947); State v. Lashley, 21 N.C. App. 83, 203 S.E. 2d 71 (1974). See Leippe, Right To Defend Pro Se, 48 N.C.L. Rev. 678 (1970).

We hold the defendant knowingly, intelligently and voluntarily waived right to counsel before Judge McLelland. Faretta v. California, supra. All the provisions of N.C.G.S. 15A-1242 were obeyed. The assignment of error is overruled.

[2] The appointment of standby counsel for a defendant is entirely in the sound discretion of the trial judge. N.C. Gen. Stat. 15A-1243. The court had no statutory duty to inquire of defendant whether he desired standby counsel. There is nothing in the record suggesting abuse of discretion by the trial court in failing to inquire of defendant at the outset of the trial concerning standby counsel.

[3] Defendant contends that by representing himself he did not receive effective assistance of counsel. As Chief Justice Stacy said, “He proved to be a poor lawyer and an unwise client.” State v. Pritchard, supra at 169, 41 S.E. 2d at 287. When a defendant represents himself, he gives up many of the traditional benefits associated with the right to counsel. Brincefield’s technical knowledge of the law was not relevant to an assessment of his knowing exercise of the right to represent himself. Faretta v. California, supra. When a defendant elects to represent himself in a criminal action, the trial court is not required to abandon its position as a neutral, fair and disinterested judge and assume the role of counsel or advisor to the defendant. The defendant waives counsel at his peril and by so doing acquires no greater rights or privileges than counsel would have in representing him.

Whatever else a defendant may raise on appeal, when he elects to represent himself he cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel. Id.

[4] The trial court did not err in failing to instruct the jury that the portion of the officers’ testimony containing statements made by the prosecuting witness was competent only for corroborative purposes. Defendant made no request for such instruction. Absent a request for a limiting instruction, the court’s failure to do so is not error. State v. Ham, 224 N.C. 128, 29 S.E. 2d 449 (1944); State v. Spain, 3 N.C. App. 266, 164 S.E. 2d 486 (1968).

There was plenary evidence in the record to submit the stated charges to the jury. Defendant testified in his own behalf and produced other witnesses. The jury reconciled the evidence against defendant. The trial judge accorded the defendant a fair trial, free of prejudicial error, under difficult circumstances. We find

No error.

Chief Judge MORRIS and Judge PARKER concur.