State v. Reese

• Court: Court of Appeals of North Carolina
• Decided: January 6, 2015
• Docket: 14-593
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-593 NORTH CAROLINA COURT OF APPEALS

Filed: 6 January 2015

STATE OF NORTH CAROLINA

v. Guilford County Nos. 03 CRS 96775-88 CHRISTOPHER ALLEN REESE, Defendant.

Appeal by defendant from judgments entered 18 September

2013 by Judge James M. Webb in Guilford County Superior Court.

Heard in the Court of Appeals 20 October 2014.

Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

Kevin P. Bradley, for defendant-appellant.

DIETZ, Judge.

Defendant Christopher Allen Reese appeals from his

convictions and sentences on thirteen counts of statutory rape

and thirteen counts of taking indecent liberties with a child.

Reese argues on appeal that he was denied his constitutional

right to self-representation and that the trial court improperly

advised him of the risks of testifying at trial. For the

reasons that follow, we find no error. -2- Facts and Procedural History

On 3 November 2003, Reese was indicted on fourteen counts

of statutory rape and fourteen counts of taking indecent

liberties with a child. On 4 October 2005, a jury found Reese

guilty of all charges, and the court sentenced him to six

consecutive terms of 288-355 months imprisonment. Reese

appealed to this Court, and we granted him a new trial on the

ground that his trial attorney had an impermissible conflict of

interest. State v. Reese, 187 N.C. App. 510, 653 S.E.2d 256

(2007) (unpublished).

The State began a new trial against Reese on 9 September

2013. Reese had a court-appointed attorney for this second

trial. At the start of the new trial, before jury selection

began, Reese twice moved to represent himself but the trial

court ignored his requests. At the end of the day, still during

jury selection, Reese again moved to represent himself. The

trial court briefly questioned Reese about his desire to

represent himself and made note that he is on his eighth

attorney for this case. The trial court told Reese to consider

his request overnight and stated that the court would address

the issue in the morning. -3- The next morning, the trial court conducted a thorough

inquiry to determine whether Reese’s desire to waive his right

to counsel and represent himself was knowing, intelligent, and

voluntary as required under N.C. Gen. Stat. § 15A-1242 (2013).

During this lengthy colloquy, Reese repeatedly expressed a

desire to represent himself, but also hedged by stating that he

did not have discovery and that he would “find it hard to

represent [himself] with no discovery.” The trial court

informed Reese that if he were allowed to represent himself, the

trial would not be delayed despite his discovery claim:

THE COURT: Do you understand this Court is not going to continue this trial based upon that statement from you?

THE DEFENDANT: I do not understand that.

THE COURT: It means that your statement that it's hard to represent yourself with no discovery is not a basis for which this Court, if the Court allows you to represent yourself, will continue this trial from this day. Do you understand that?

THE DEFENDANT: No, I do not understand that.

The trial court also questioned Reese regarding his

understanding that the court was not required to reappoint

counsel if Reese later changed his mind:

THE COURT: Do you understand that if I allow you to represent yourself and during the course of the trial you should change your -4- mind and request that [court-appointed counsel] re-enter the role as your counsel, that that is unlikely to occur?

THE DEFENDANT: Excuse me? No, I do not understand that.

THE COURT: Do you understand that if I grant your request to allow you to represent yourself, and if, during the course of the trial, you change your mind again and decide that you want [court-appointed counsel] to represent you, it is unlikely that the Court will allow that.

THE DEFENDANT: I believe under the sixth amendment that at some point in time if I'm unable to proceed, co-counsel can be -- can take over.

THE COURT: Again, I'm asking you, do you understand that?

THE DEFENDANT: No.

Reese continued to assert that he did not understand this

issue stating, “[b]ecause, like I said, the sixth amendment, if

I'm unable to proceed, standby counsel is supposed to take over.

So if I say that, then I'm agreeing that if I'm unable to

proceed, I'm just unable to proceed.” When questioned further

on his understanding of this issue, Reese stated,

THE DEFENDANT: No. My understanding is if at some point in time I cannot represent myself, standby counsel should be taking over. And I say that because of the fact if I get the discovery and I haven't had a chance to go all the way through it, at some point in time, if I can't go any further, -5- what am I to do? Because co-counsel can't take over, is what you're saying.

Now, you ask me do I understand that, and I know somewhere in the constitution that doesn't agree with what you're saying. So I can't say that I understand it when I know in the constitution it's different. And I can't say that I understand it when I know that if I get the discovery today, there may be witnesses today that I got five seconds to go through and find something wrong, and then I can't sit up and say, well, I need a private investigator to go check this out because of the fact I can't stop or delay the trial. But at the same time, co-counsel -- well, standby counsel can't take over and do anything about it. That hinders me from defending myself.

THE COURT: If I -- is it correct that you are of the opinion that if at some point during the trial, while representing yourself, you can't continue to represent yourself, then you believe that standby counsel should be appointed to represent you?

THE DEFENDANT: I believe that if I'm not allowed to go any further, standby counsel should be able to take over, but --

. . . .

So, no -- and like I said, a part of the fifth and sixth amendment, if I can't proceed, you're telling me that I can't -- standby counsel can't take over. But in the fifth and sixth amendment, under one of the statutes it says that if I'm unable to proceed, standby counsel should be allowed to take over.

. . . . -6-

THE COURT: And you anticipate that if you're allowed to represent yourself, at some point during the trial before the jury reaches a verdict, there will be a problem where you believe the standby counsel should be allowed to take over the representation of you. Is that correct?

THE DEFENDANT: That is my interpreting of the -- that is my interpretation of the constitution.

THE COURT: And is that what you believe?

THE DEFENDANT: I believe the constitution, yes.

Finally, toward the end of this lengthy colloquy, Reese

again stated that he expected problems at trial due to his lack

of discovery, and the trial court again questioned him on his

understanding of the consequences of self-representation.

THE COURT: And if there's a problem, you believe then that standby counsel should be reappointed to represent you and take over the trial in representing you; is that correct?

THE DEFENDANT: That is my understanding, and I say that not wanting [my counsel] to take over my case, and I say that reserving my right to represent myself.

After finishing its colloquy with Reese, the trial court

made numerous findings of fact regarding Reese’s motion to

represent himself. The court found that Reese understood he had

a right to counsel and that he understood the possible range of -7- punishments. The court also found that Reese believed if he

could no longer represent himself “that standby counsel, upon

his request, should be appointed to represent him.” The trial

court then found that:

[T]he defendant, if allowed to represent himself, is of the opinion that at some point during the trial a problem will arise.

Next, that if he is allowed to represent himself, and if, at some point during the trial, a problem arises that he is unable to adequately deal with, he is of the opinion that standby counsel should be appointed as trial counsel and allowed to take over the defense and representation of the defendant.

From these findings, the trial court concluded that Reese

was clearly advised of his right to counsel, that he

comprehended the nature of the charges and proceedings and the

range of permissible punishments, and that he voluntarily waived

his right to counsel. But the court also concluded that Reese

did not intelligently waive his right to counsel because he did

not understand the consequences of his decision—specifically,

the fact that Reese would not have a right to have counsel

reappointed if he changed his mind. The trial court then denied

Reese’s motion to represent himself and Reese proceeded to trial

represented by his court-appointed lawyer. -8- During the trial, the two juvenile victims testified

against Reese, describing the sexual intercourse and other sex

acts that occurred. After the State rested, the trial court

asked Reese whether he intended to testify on his own behalf.

When he answered yes, the trial court engaged in another

colloquy questioning Reese on his understanding of his right not

to testify. The trial court discussed with Reese that the State

would get the final closing argument if he testified and

informed him that some scholars find that having the final

argument offers some advantage. The court also informed Reese

that not testifying does not create a presumption of guilt and

that the court would instruct the jury as such. The trial court

then asked:

THE COURT: And while I do not know, but if you have any prior criminal convictions for an offense which you could have received 60 or more days' confinement, then the district attorney may ask you if you've been convicted of such offense on cross- examination. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And the purpose of that would be to attempt to impeach your testimony by the state. Do you understand that?

THE DEFENDANT: Yes. -9- The trial court stated that it would ask Reese again if he

wished to testify or to present any evidence on his behalf, but

that he was “free to privately consult with [his] attorney”

before answering. Reese stated that he did not need to speak

with his attorney and that he did not intend to testify on his

own behalf. Reese did not present any evidence at trial.

The jury convicted Reese of all charges, but the trial

court set aside the verdict on one count of statutory rape. He

was sentenced to two consecutive sentences of 288-355 months

imprisonment with credit for 3,050 days confinement prior to the

date of judgment for the statutory rape convictions, and

fourteen consecutive sentences of 19-23 months imprisonment for

his taking indecent liberties with a child convictions. Reese

timely appealed.

Analysis

I. Reese’s Request to Represent Himself

Reese first argues that the trial court erred in denying

his motion to represent himself. “Criminal defendants have a

constitutional right to the assistance of counsel in conducting

their defense. Implicit in this right to counsel is the

constitutional right to refuse the assistance of counsel and

proceed pro se.” State v. Leyshon, 211 N.C. App. 511, 514-15, -10- 710 S.E.2d 282, 286 (2011) (citations and internal quotation

marks omitted). This Court reviews a claim for denial of the

right to self-representation de novo. Id.

Section 15A-1242 of the General Statutes describes the

inquiry that trial courts must undertake when a defendant

requests to represent himself:

A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:

(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;

(2) Understands and appreciates the consequences of this decision; and

(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.

N.C. Gen. Stat. § 15A-1242. Our Supreme Court has held that the

inquiry required by N.C. Gen. Stat. § 15A–1242 satisfies the

constitutional requirement to ensure that a defendant’s decision

to waive the right to counsel is knowing, intelligent, and

voluntary. State v. Thomas, 331 N.C. 671, 674, 417 S.E.2d 473,

476 (1992). -11- “In order to preserve both the right to counsel and the

right to self-representation, a trial court must proceed with

care in evaluating a defendant's expressed desire to forgo the

representation of counsel and conduct his own defense.” State

v. Wheeler, 202 N.C. App. 61, 67, 688 S.E.2d 51, 55 (2010)

(internal quotation marks omitted). Importantly, of the two

rights, “the right to counsel is preeminent and hence, the

default position.” Id. at 68, 688 S.E.2d at 56. Thus, “[w]here

the two rights are in collision, the nature of the two rights

makes it reasonable to favor the right to counsel which, if

denied, leaves the average defendant helpless.” Tuitt v. Fair,

822 F.2d 166, 174 (1st Cir. 1987).

Here, the trial court did not err by denying Reese’s

request to represent himself. The Court’s colloquy with Reese

concerning his desire to represent himself lasted 90 minutes.

During that time, Reese repeatedly stated that he did not

understand some of the basic consequences of waiving counsel.

Most significantly, Reese refused to acknowledge that his

decision to proceed pro se operated as a potentially permanent

waiver of his right to counsel. Reese insisted that, if he

found he was unable to adequately represent himself at trial,

standby counsel could “take over.” -12- This is wrong. A defendant who chooses to represent

himself does not have a right to standby counsel—the decision to

provide standby counsel is in the trial court’s discretion.

N.C. Gen. Stat. § 15A-1243 (2013); State v. Brincefield, 43 N.C.

App. 49, 52, 258 S.E.2d 81, 83 (1979). Similarly, if a

defendant begins to represent himself but later decides he needs

the assistance of counsel, he does not have a right to have

counsel reappointed—again, that decision is in the trial court’s

discretion. See State v. Rogers, 194 N.C. App. 131, 139, 669

S.E.2d 77, 83 (2008) (indicating that a trial court’s denial of

defendant’s motion to withdraw waiver of right to counsel is

reviewed for abuse of discretion).

Given Reese’s confusion concerning these key consequences

of his decision to represent himself, the trial court properly

concluded that Reese did not understand and appreciate the

consequences of his decision. As a result, the court did not

err in denying Reese’s request to waive his constitutional right

to counsel and proceed pro se.

II. Reese’s Right to Testify

Reese next argues that the trial court erred in advising

him of the consequences of choosing to testify on his own

behalf. -13- The North Carolina Supreme Court has “never required trial

courts to inform a defendant of his right to testify or to make

an inquiry on the record regarding his waiver of the right to

testify.” State v. Smith, 357 N.C. 604, 618, 588 S.E.2d 453,

463 (2003). However, trial courts are not prohibited from doing

so, and our Supreme Court has upheld inquiries by the trial

court exercised as “an abundance of caution.” State v. Carroll,

356 N.C. 526, 533, 573 S.E.2d 899, 905 (2002).

Here, Reese argues that the trial court focused only on the

reasons why not to testify and that this one-sided approach

interfered with his decision-making and his counsel’s ability to

give advice. But Reese’s counsel was sitting beside him for

this entire discussion and was actively consulting with his

client. At one point, when Reese expressed a desire to submit

an affidavit rather than testifying, Reese and his counsel

engaged in a private discussion that lasted long enough that it

is reflected in the trial transcript with the notation,

“Whereupon, there was a pause in the proceedings.” In short,

Reese has not shown either that the court interfered with his

right to choose whether to testify or with his right to receive

advice from counsel. -14- Reese also argues that the court’s discussion of the

State’s right to cross-examine Reese about “prior convictions”

might have led Reese to mistakenly conclude that the State could

ask about his 14 convictions of rape and indecent liberties in

his first trial (which was set aside on appeal). But nothing in

the record indicates that Reese actually believed that his first

trial was a “prior conviction” that could be used against him if

he testified. And again, Reese’s counsel was sitting beside him

during this discussion and could have provided Reese with more

details or clarification if he needed it.

In sum, Reese has not shown that the trial court’s

discussion of the consequences of testifying improperly

interfered with his decision to testify or deprived him of the

assistance of counsel.

Conclusion

The trial court did not err in denying Reese’s request to

represent himself and in discussing with Reese, in the presence

of his counsel, the consequences of the decision to testify in

his own defense.

NO ERROR.

Chief Judge McGEE and Judge STEPHENS concur.

Report per Rule 30(e).