STATE of North Carolina
v.
James SANDERS.
No. 110.
Supreme Court of North Carolina.
February 7, 1978.*791 Atty. Gen. Rufus L. Edmisten and Sp. Deputy Atty. Gen. Myron C. Banks, Raleigh, for the State.
Moore, Diedrick & Whitaker by L. G. Diedrick, Rocky Mount, for defendant appellant.
SHARP, Chief Justice.
Defendant's assignment of error No. 6 raises the question which is decisive of this appeal: Does the trial judge's failure to comply with the requirements of N.C.Gen. Stats. § 15A-942 (1975) entitle defendant to a new trial? This section provides:
"If the defendant appears at the arraignment without counsel, the court must inform the defendant of his right to counsel, must accord the defendant opportunity to exercise that right, and must take any action necessary to effectuate the right." (Emphasis added.)
Defendant stressfully contends that the court's failure to comply with this statute denied him his constitutional right to the assistance of counsel for his defense and effectively deprived him of a fair trial. He asserts that had he not been indigent he would have employed counsel as he had originally told Judge Carlton he would do. Further, had he known he could have had his indigency redetermined by the court at any stage of the proceeding as provided by G.S. 7A-450(c) he would have attempted to have done so at his arraignment.
For the reasons hereinafter stated we hold that the court's failure to obey the mandates of G.S. 15A-942 at the time defendant was arraigned upon the charge for which he was tried does entitle defendant to a new trial.
At the time defendant was arrested in April and first indicted in August, the State had no evidence whatever that defendant had committed either the crime of breaking and entering with the intent to commit larceny or the crime of larceny; yet he was charged with both these crimes. Further, notwithstanding that the State's evidence disproved defendant's guilt of these charges, both were again included in the second and third indictments the district attorney sent to the grand jury. It was not until 18 October 1976, the day the district attorney sent the third bill, that defendant finally was charged with the crime of receiving stolen goods. Thus, defendant was first charged with the crime for which he was convicted on the same day he was arraigned and tried. Although the record discloses that on three occasions defendant appeared pro se and entered a plea of not guilty each time, it fails to show that the trial judge ever advised him of his right to counsel or inquired as to why he was appearing without counsel as required by G.S. 15A-942.
The State in its brief specifically recognizes "that a defendant is entitled to counsel through each critical stage, including arraignment and trial; that the question of indigency may be determined or redetermined by the court at any stage; that if the defendant appears at arraignment without counsel, the Court must give him the opportunity to exercise that right and take any action necessary to effectuate that right; and that a defendant may not be called upon to plead until he has had an opportunity to retain counsel or, if he is eligible for assignment of counsel, until counsel has been assigned or waived. G.S. 7A-451(b); *792 G.S. 7A-450(c); G.S. 15A-942; G.S. 15A-1012(a)."
After recognizing the foregoing rights which the State accords every citizen, counsel for the State makes two contentions: He asserts (1) that the court's "failure to observe any of these niceties" did not prejudice defendant; and (2) that since defendant had twice been found not to be indigent, when he appeared at trial without counsel he had made a conscious choice "to tough it out" by representing himself. With reference to contention (1) at this point it suffices to say that in our view defendant was prejudiced by the court's failure to observe these constitutional and statutory "niceties." We interpret State's contention (2) as an argument that when defendant failed to file a third affidavit of indigency and petition for counsel when the third indictment was returned against him, he chose to proceed pro se and thus waived his right to the appointment of counsel. We find no merit in this contention. Defendant, a layman, who had twice been denied the appointment of counsel, no doubt thought that a third application would be futile. He could not be expected to know that the question of his indigency could be redetermined at the time of his arraignment on the day his case was called for trial upon an indictment returned that same day. More decisive, however, is the fact that the statute made it the duty of the trial judge, when defendant appeared at the arraignment without counsel to inquire into his indigency irrespective of any request by defendant.
The State, however, declares its "more important" contention to be that the record "affirmatively discloses that defendant was not indigent at the time of the trial." This claim is based solely on the fact that defendant is represented by counsel on this appeal and is presently at liberty (so the State asserts in its brief) under a bond for which a premium was paid.
This contention will not withstand scrutiny. That defendant is now represented by counsel and is out under a premium-paid bond discloses only that a nonindigent has expended money in defendant's behalf. It is not proof that defendant himself was not indigent on October 18th. Likewise, the two orders of June 29th and August 10th adjudging defendant nonindigent are not proof of his status on October 18th. Defendant's two affidavits on these dates, however, do disclose that his financial condition had changed drastically between June 29th and August 10th. In the interim he had lost his job and was unemployed; he had mortgaged his automobile; and his house payments were in arrears. The State even concedes that whether counsel should have been appointed for defendant on August 10th was "perhaps debatable."
On this appeal, however, we do not debate the August order denying defendant's request for the assignment of counsel. The question is whether defendant was indigent on 18 October 1976, the day he was arraigned and tried without counsel. Now, however, this question cannot be answered because the trial judge then failed to make the inquiries directed by G.S. 15A-942.
In State v. Morris, 275 N.C. 50, 165 S.E.2d 245 (1968), the defendant was convicted of a general misdemeanor and the judge imposed an active prison sentence of 18 months. In the Recorder's Court and in the Appellate Division defendant was represented by counsel, but he was without counsel at the time he was tried by a jury in the Superior Court. On appeal he contended (1) that he was denied his constitutional right to the assistance of counsel because the trial judge did not advise him that if he could not afford an attorney the court would appoint one for him, and (2) that the court erred in proceeding to trial without a specific finding that defendant was not an indigent or that he had knowingly and understandingly waived his right to counsel.
At the time Morris was decided the applicable statute, G.S. 15-4.1 (1965) (enacted as a result of the decision in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) and repealed by 1969 N.C.Sess. Laws, c. 1013, s. 12), provided: "When a defendant charged with a felony is not represented *793 by counsel, before he is required to plead the judge of the superior court shall advise the defendant that he is entitled to counsel. If the judge finds that the defendant is indigent and unable to employ counsel, he shall appoint counsel for the defendant. . .."
In 1968, however, decisions of the Supreme Court had extended the constitutional right to counsel to all defendants charged with "serious misdemeanors." As a result, in Morris, this Court defined a serious misdemeanor as one for which the authorized punishment exceeded six months, and extended the requirements of G.S. 14-4.1 to serious misdemeanors. Thus, that statute was interpreted as requiring the judge of the superior court (1) to advise any defendant who was without counsel and charged with a felony or serious misdemeanor that he was entitled to counsel, (2) to ascertain whether the defendant was indigent and unable to employ counsel, and (3) to appoint counsel for an indigent defendant unless he had intelligently and understandingly waived his right to counsel. These requirements are essentially those of G.S. 15A-942, and the decision in Morris dictates the decision in this case.
Speaking for the Court in Morris, Justice Huskins said: "[D]efendant was represented by privately employed counsel in the Recorder's Court of Thomasville and on appeal to the Court of Appeals and to this Court. Yet in the trial of his case before a jury in the superior court he had no counsel. Was he able to employ counsel? Was he indigent? Did he request appointment of counsel? Did he waive the right to counsel? The record is silent. Waiver of counsel may not be presumed from a silent record.
. . . . .
"For failure of the trial judge to determine indigency and appoint counsel to represent defendant if indigent, the judgment must be vacated and a new trial ordered. At the next trial if defendant is not represented by privately employed counsel, the presiding judge shall (1) settle the question of indigency, and (2) if defendant is indigent, appoint counsel to represent him unless counsel is knowingly and understandingly waived. These findings and determinations should appear of record." Id. 275 N.C. at 59-60, 165 S.E.2d at 251-52. This must also be our judgment in the instant case.
Finally, we are impelled to say that prejudice which defendant suffered throughout his trial from lack of counsel is obvious from the record. While defendant was able to give a forthright version of his side of the story when his time came, he was unequal to the task of cross-examining Clark, the confessed housebreaker and thief who had sold him the television and who was testifying for the State prior to being sentenced. A fortiori, defendant was unable to cope with the trial judge's questioning of defense witness Batchelor, Clark's confederate who was also awaiting sentencing.
As set out in the preliminary statement of facts, on direct examination in response to a question from defendant, Batchelor said, "It is true that when Keith [Clark] and I brought the TV to your house that Keith said it `won't hot.'" Then in response to Judge Cowper's question, "What did Clark tell this defendant?" Batchelor said he had heard Clark tell defendant "where it [the TV] come from and told him it won't hot." The judge then said, "He told him where it came from?" and Batchelor replied, "Yes, sir." We have no doubt that this exchange between the judge and the witness left the jury with the impression that defendant's own witness was saying that he had heard Clark tell defendant that the TV came from Winstead's home. Yet this was not what the witness said; and we note further that Clark himself testified that he had told defendant the TV came from a "poker house" and that on cross-examination Batchelor said that all he had heard Clark say "was that it won't hot" and Clark had said that "uptown." We apprehend that Batchelor's response to the judge, added to Officer Ream's incompetent hearsay testimony that Clark told him defendant "knew the television set was stolen because he told him that he stole it," sealed defendant's fate.
*794 As heretofore noted, defendant interposed no objection during his entire trial and, at the end, he waived the right to argue his case to the juryan opportunity which any trial lawyer would have seized to stress the several points which might have been made in favor of defendant who, according to the evidence, had no prior criminal record.
Defendant's conviction is set aside, and the case will be remanded to the superior court for a new trial in accordance with this opinion.
New Trial.