State v. PoindexterState v. Poindexter
On 16 February 1983, defendant filed a
pro se
motion to discharge the public defender appointed to represent him. In support of his motion, defendant stated that: (1) he was dissatisfied with the appointed counsel; (2) the appointed counsel had neglected defendant’s case; (3) the appointed counsel had repeatedly refused to handle the case in defendant’s best interest; and (4) the appointed counsel acted in concert with the State’s interest. When defendant’s case was called for trial on 23 February 1983, the trial judge conducted a hearing on defendant’s
pro se
motion to discharge his court appointed counsel. After the trial court had made a thorough inquiry and was satisfied thаt defendant (1) had been clearly advised of his right to the
At trial, the evidence tended to show that defendant had known the victim for several months and they had been involvеd in various drug deals together. Defendant, after learning that the victim was a police informant, discontinued his drug dealings with the victim. In the meantime, several incidents occurred wherein the victim pistol whipped defendant’s roommate and threatened another of defendant’s friends. On the afternoon of 22 December 1978, the victim went to defendant’s apartment where he insisted that defendant leave town. They argued and the victim shot a hole in the roof of the defendant’s apartment. A few hours later, defendant went to the victim’s home where they again argued. The victim and a friend visiting with him fled from the home into the street. Defendant pursued the victim into the street where the killing ocсurred. Defendant admitted the killing but testified that he acted in self-defense.
The jury returned a verdict of guilty and defendant was given an active prison sentence.
The defendant brings forward four assignments of error relating to pro se representation. We have reviewed each of these assignments and find no reversible error.
Defendant in his first assignment of еrror contends that the trial court erred in failing to advise him of his right not to testify. He argues that the court should have informed him that he had a right not to testify and that his decision not to testify could not be used as an inference of guilt. The record discloses that the trial court did not specifically inform defendant of his fifth amendment privilege against sеlf-incrimination. The record does indicate, however, that defendant was not coerced or pressured to testify.
The fifth amendment privilege, belatedly claimed by defendant, says no more than a person shall not be
compelled
to speak. It does not place upon the trial court the duty of informing a
pro se
defendant of his rights and privileges. In fаct, the courts in this State have held that a defendant who knowingly and intelligently elects to proceed
pro se,
“cannot expect the trial judge to relinquish his role as impartial arbiter in exchange for the dual capacity of judge and guardian angel of defendant.”
State v. Lashley,
Assuming,
arguendo,
that the court had a duty to inform the
pro se
defendant of his fifth amendment privilege against self-incrimination, we find no evidence that the court’s failure to so advise defendant affected the outcome of the trial. Therefore, any error was harmless beyond a reasonable doubt.
Chapman v. California,
Your honor, that doesn’t matter. What I’m saying is I will have a chance to tell my story. . . .
Throughout the pretrial inquiry and the trial itself, defendant repeatedly expressed his intent to tell his “story.”
We conclude that although clearly the better practice in such cases would be for the trial judge to inform a pro se defendant оf his fifth amendment privilege, failure to specifically inform the defendant in the present case was, if error, harmless.
In his next assignment of error, defendant contends that the court erred “by making the defendant give up assistance of counsel as the cost for presenting evidence in his defense.” He argues that he was compellеd by the trial judge to choose between representation by appointed counsel and presenting evidence on his claim of self-defense. The record belies this contention.
The record is replete with evidence of defendant’s insistence that the appointed counsel be removed from the case. Sеveral days prior to trial, defendant filed two documents in which he asserted his desire to discharge his appointed attorney. At the pretrial inquiry, defendant repeatedly and unequivocally demanded that the appointed attorney be relieved and that he be allowed to proceed pro se. Portions of the colloquy between defendant and the court are as follows:
The Court: We have certain rules of evidence that are very technical. It takes somebody with training to know how to object to certain evidence to protect a defendant’s rights. Mr. Lind is very capable of doing that.
Mr. Poindexter: I don’t want him.
The Court: And you have the right to have Mr. Lind represent you if you want. And, of course, you have the right to represent yourself.
Mr. Poindexter: I don’t want Mr. Lind.
Throughout the pretrial inquiry, defendant remained adamant in his determination to discharge the appointed counsel and to proceed
pro se.
He never wavered from this position. Since counsel cannot be imposed on a defendant, the trial court had no alternаtive but to grant defendant’s motion to dismiss his counsel.
Faretta v. California,
Defendant’s insistence on presenting evidence which he believed would establish the defense of self-defense was contrary to the trial strategy proposed by appointed counsel. The trial counsel had decided to proceed by challenging the sufficiency of the Stаte’s identification evidence. Proffering a defense of self-defense, which necessarily requires defendant to admit the crime, would have removed this option. Although the evidence adduced at trial tended to show that the victim was a violent man and had threatened defendant on the day of the killing, there was uncon-troverted evidence that defendant voluntarily went to the victim’s home where the affray ensued. The defendant’s own evidence revealed that at no time during the incident did defendant attempt to retreat. In fact, when the victim fled from his home, defendant was in hot pursuit and the killing took place several blocks away from the place where the incident began.
Self-defense requires, in part, a showing that the defendant did not use excessive force and that the defendant was not the aggressor.
State v. Norris,
Defendant also contends that the trial court should have either appointed substitute counsel or instructed appointed counsel to prepare to try the case to call the witnesses as requested by defendant. The principles applicable to criminal prosеcutions are well settled. An indigent defendant is entitled to appointed counsel.
Gideon v. Wainwright,
The court’s lengthy inquiry into defendant’s complaints against appointed counsel disclosed that defendant’s dissatisfaction centered around counsel’s decision to pursue a line of defense contrary to defendant’s wishes. It is well recognized that trial counsel’s decision to pursue a particular defense is a tactical one based on his professional judgment. A disagreеment over tactics generally does not render the assistance of the original counsel ineffective.
State v. Hutchins,
Defendant also argues that the court should have required appointed counsel to try the case and allow the defendant to present the witnesses that defendant wished to have testify on his behalf.
While counsel, whether retained or appointed, should be solicitous of defendant’s concerns and willing to accommodate defendant in doing such things as defendant feels are in defendant’s best interest, counsel is not the “mere lackey or ‘mouthpiece’ of his client.”
State v. Robinson, supra,
at 66,
Defendant, by his final assignments of error, contends that the court еrred in denying his request for a publicly paid investigator and in failing to assist him in having his witnesses subpoenaed. He argues, first, that the information that would have been collected by the investigator was relevant to his claim of self-defense. G.S. 7A-450(b), in pertinent part, provides:
Whenever a person, under the standards and procedures set out in this Subchaрter, is determined to be an indigent person entitled to counsel, it is the responsibility of the State to provide him with counsel and other necessary expenses of representations. (Emphasis added.)
In conformity with this statute, our courts have consistently held that an indigent is entitled to a state paid expert or investigator when it is necessary to insure effective preparation of a defense.
See, e.g., State v. Watson,
In
Watson,
our Supreme Court has stated that “[t]he applicable rule is that expert assistance need only be provided by the state when the defendant can show it is probable that he will
not receive a fair trial without the requested assistance, or upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense.”
Applying this rule to the case at bar, the record reveals that defendant wanted an investigator for the sole purpose of obtaining hospital documents. According to defendant, the hospital records would show that due to his fear of the victim, defendant was admitted to the emergency room of a local hospital for “nerves.” Records of the emergency room visit, which occurred approximately two weeks prior to the killing, would not have, in our view, added materially to defendant’s claim of self-defense. Nor is there any evidence that the hospital records were necessary for defendant to receive a fair trial. Thus, we find that the court did not abuse its discretion in denying defendant’s request for a state paid investigator. Hence, this assignment of error is without merit.
Defendant next argues that the court failed to assist him in locating and subpoenaing his witnesses. In pursuit of this contention, defendant argues that the court should have insured the presence of his witnesses. He argues, further, that G.S. 15A-803 and G.S. 15A-823 give the court the authority to sеcure the presence of his witnesses who are unwilling or who are confined.
Proceedings to secure the attendance of unwilling witnesses are governed by G.S. 15A-803, which provides in pertinent part:
(a) Material Witness Order Authorized — A judge may issue an order assuring the attendance of a material witness at a criminal proceeding. This material witness order may be issued when there are reasonable grounds to believe that the person whom the State or a defendant desires to call as a witness in a pending criminal proceeding possesses information material to the determination of the proceeding. . . .
(d) Procedure — A material witness order may be obtained upon motion supported by affidavit showing cause for its issuance. . . .
The presence of a witness confined in a federal institution can be secured under G.S. 15A-823, which provides in part:
(a) When
(2) There is a reasonable cause to believe that a person confined in a federal prison or other federal custody, . . . possеsses information material to such criminal proceeding;
(b) The certificate may be issued upon application of either the State or a defendant ....
Our review of the record discloses that defendant did not avail himself of any of these means to secure the attendance of his witnesses. The record clearly shоws that defendant had ample opportunity prior to trial to subpoena his witnesses or to make the necessary motions and applications to secure the presence of any unwilling or confined witnesses. The record reveals that defendant came on for trial approximately six months after counsel was аppointed. At no time during this period did he inform the court or his appointed counsel of the names and location of his prospective witnesses. In fact, defendant did not request assistance in obtaining subpoenas
Even if we were to construe this request as a mоtion and application under G.S. 15A-803 and G.S. 15A-823, we find that the requirements of these statutes were not met. To obtain a material witness order or certificate known as a writ of habeas corpus ad testificandum, a party must show to the court that the prospective witness has information material to the determination of the proceeding. Although the evidence tended to show that the prospective witnesses were aware of the previous altercations between defendant and the victim, there is no evidence in the record that these witnesses had knowledge of the events immediately surrounding the killing. Therefore, we believe that the testimony of the рrospective witnesses was not material to these proceedings. Moreover, we believe that defendant’s own lack of diligence is responsible for the absence of his witnesses.
State v. Wells,
In defendant’s trial we find
No error.