State v. WorrellState v. Worrell
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Defendant Demar Ryan Worrell appeals from judgment entered upon jury verdicts finding him guilty of robbery with a dangerous weapon and possession of a firearm by a convicted felon. Defendant contends that the trial court erred by denying: (1) his constitutional right to represent himself, and (2) his motions to continue. After careful review of the record we conclude that defendant received a fair trial, free of reversible error.
I. Background
At trial, the State presented the following evidence: On 19 July 2005 a four-door silver sedan belonging to defendant’s mother, Gloria Worrell, pulled into the parking lot of Wachovia Bank in Mount Olive, Wayne County. Defendant and one other person (“Jack”) emerged from the sedan, donned orange masks and entered the bank. The driver of the sedan left the bank and waited about a block away.
After taking the money, defendant jumped back over the counter and left the bank with Jack. Defendant and Jack ran back to the silver sedan and fled the area.
On 2 January 2007, the Wayne County Grand Jury indicted defendant for armed robbery and possession of a firearm by a convicted felon. Defendant was tried before a jury in Superior Court, Wayne County, from 26 March to 3 April 2007. The jury found defendant guilty of robbery with a dangerous weapon and possession of a firearm by a convicted felon. Upon the jury’s verdict, the trial court sentenced defendant to 77 to 102 months. Defendant appeals.
II. Criminal Defendant’s Right to Appear Pro Se
Defendant, citing State v. Walters, contends that a trial court errs when a competent, understanding defendant, in the voluntary exercise of his free will, “clearly and unequivocally declare[s] before trial that he want[s] to represent himself and d[oes] not want assistance of counsel,” but is not allowed to represent himself. 182 N.C. App. 285, 291, 641 S.E.2d 758, 761 (2007). Defendant contends that his case is “strikingly similar” to Walters and to Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562 (1975), a United States Supreme Court case recognizing a criminal defendant’s constitutional right to represent himself.
However, “courts indulge in every reasonable presumption against waiver ... of the right to counsel[.]” Brewer v. Williams, 430 U.S. 387, 404, 51 L. Ed. 2d 424, 440 (1977) (citations omitted) (holding that the defendant had not waived right to counsel and affirming suppression of incriminating statements made without the presence of counsel). “[T]he trial court must conduct a thorough inquiry” before it allows a criminal defendant to waive appointed counsel. State v. Thomas, 331 N.C. 671, 674, 417 S.E.2d 473, 476 (1992) (granting a new trial when the trial court allowed the defendant to waive appointed counsel without conducting a thorough inquiry to ensure that defendant understood the consequences of proceeding pro se).
After review of the record, we do not find that this case is “strikingly similar” to Faretta or Walters. In Faretta, the defendant was granted a new trial when the trial court “required that [the defendant’s] defense be conducted only through the appointed lawyer from the public defender’s office,” 422 U.S. at 811, 45 L. Ed. 2d at 568, even though the defendant was “literate, competent, and understanding” and “clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel.” Id. at 835, 45 L. Ed. 2d at 582. In Walters, this Court extended the holding in Faretta to a case where the trial court badgered an unwilling defendant until he accepted a court-appointed attorney:
[The trial court:] We’re burning daylight. We’re wasting time .... Now, if you want to be stupid and try your own case .... then you can be stupid and do that. That’s your choice. . . . [Y]ou can be obstinate and you can be stupid and you can go to prison because you didn’t listen to a professional. Or you can do it like somebody that’s smart and participate in your defense using a professional. Your choice. . . . Now, I’m going to give you about two minutes to discuss this with your lawyer and then you make your decision. . . .
[Y]ou don’t understand it. You have been watching too much TV. Now are you ready to proceed?
Walters, 182 N.C. App. at 288-89, 641 S.E.2d at 759-60 (emphasis added) (quoting from the trial transcript).
The facts in the record
sub judice
are manifestly different from
Walters
and
Faretta.
Here, the trial court questioned defendant about his ability to represent himself, noted for the record that defendant “answered all of my questions and that he knowingly, intelligently, voluntarily, and as his
If you want Mr. Copeland to represent you, I’ll make that available to you one more time.... You’ve obviously worked very hard in reviewing all the paperwork that the State has given you in making yourself aware of the different procedural motions that [you] can make. . . . [YJou’ve made what I would consider ... a fairly effective presentation about the facts in your case and the things that you want to see happen. . . .
[Y]ou’ve done a lot of work, but Mr. Copeland [has been practicing law a long time, and] he knows more about it than you do, quite frankly.
Defendant then moved for continuance, and told the trial court that he would have “no choice” but to accept court-appointed counsel if the trial court did not continue his case. The trial court then denied defendant’s motion for continuance. 2
After the denial of his motion for continuance, defendant realized that he was not capable of adequately providing his own defense. He voluntarily revoked his waiver of appointed counsel and informed the trial court that he would no longer represent himself, but would be represented by Mr. Copeland as his court-appointed attorney. The trial court asked again, to ensure that representation by Mr. Copeland was fully defendant’s choice, before appointing Mr. Copeland as defense counsel.
There is no evidence in the record that the trial court expressly forced appointed counsel on defendant, as in Faretta, 422 U.S. at 811, 45 L. Ed. 2d at 567, nor is there any evidence that the trial court pressured, coerced, or badgered defendant into accepting appointed counsel, as in Walters, 182 N.C. App. at 293, 641 S.E.2d at 762. Rather, the trial court “indulge [d] in every reasonable presumption against waiver of the right to counsel[,]” Brewer, 430 U.S. at 404, 51 L. Ed. 2d at 440, and “conducted] a thorough inquiry[,]” Thomas, 331 N.C. at 674, 417 S.E.2d at 476, before defendant voluntarily revoked his waiver of the right to counsel. Accordingly, we hold that the trial court did not err when it allowed defendant to be represented by counsel.
III. Continuances
Defendant contends that he was prejudiced by the trial court’s denial of his motions for continuance, the first made pro se, the second made by his appointed counsel. Defendant, citing State v. Rogers, contends that “when a motion to continue raises a constitutional issue, . . . the trial court’s ruling is fully reviewable by an examination of the particular circumstances of each case.” 352 N.C. 119, 124, 529 S.E.2d 671, 675 (2000) (citation and internal quotation marks omitted). The State relies on State v. Branch, to contend that the denial of defendant’s motions to continue should be reviewed only for abuse of discretion. 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982) (noting both standards of review, and concluding that the record showed neither abuse of discretion nor prejudice to defendant in the denial of the motion to continue). We agree with defendant’s standard of review, with the added proviso that “the denial of a motion to continue, whether a constitutional issue is raised or not, is sufficient grounds for the granting of a new trial only when the defendant is able to show that the denial was erroneous and that he suffered prejudice as a result of the error.” Rogers, 352 N.C. at 124, 529 S.E.2d at 675 (emphasis added).
Before ruling on a motion to continue, the trial court shall consider,
inter alia,
A trial court errs when it denies a motion to continue where the defendant “d[oes] not have ample time to confer with counsel and to investigate, prepare and present his defense.” Rogers, 352 N.C. at 125, 529 S.E.2d at 675 (citation and quotation marks omitted) (holding that a motion to continue was improperly denied when the crimes committed involved “multiple incidents in multiple locations over a two-day period” and counsel had only thirty-four days to prepare for a bifurcated capital trial); but see Branch, 306 N.C. at 105-06, 291 S.E.2d at 657 (holding that the motion to continue was properly denied when four months had passed between indictment and trial and the defendant did not support his motion with the names of any witnesses necessary to his defense); State v. Searles, 304 N.C. 149, 154-55, 282 S.E.2d 430, 433-34 (1981) (holding that a motion to continue was properly denied when eight weeks had passed between appointment of counsel and trial and the defendant gave the trial court only the nickname of a potential witness and made no showing of why the witness was necessary to his defense).
A. Defendant’s First Motion to Continue
On the day defendant’s case was called for trial, before jury selection, defendant moved pro se to continue for the following reasons:
I have more evidence that I would like to bring forth and subpoena the witnesses I would like to bring on my behalf. ...
I just ask I may be granted a continuance based on my ignorance, and I would like to at least be having a chance to have evidence on my behalf that I need to bring forth [to] the Court, too. . . .
I didn’t even think this case was going to be on the docket for at least another seven, eight months. So I really wasn’t — I was, pretty much, getting down pat about my investigation, who I wanted to subpoena around the time when I went to court last week and [Judge] Weeks told me about them taking this to trial Monday, today. . . .
I didn’t think this case was going to come up so fast.
As in Rogers, defendant’s motion to continue was on the grounds of insufficient time to prepare an adequate defense and therefore raises constitutional questions which will be “fully reviewed] by an examination of the particular circumstances of [the] case.” Rogers, 352 N.C. at 124, 529 S.E.2d at 675.
Defendant was proceeding
pro se
when he first moved for a continuance, so the first prong of
Rogers,
“ample time to confer with counsel[,]” 352 N.C. at 125, 529 S.E.2d at 675, is irrelevant to defendant’s first motion to continue and we need to consider only whether defendant had sufficient time “to investigate, prepare and present his defense.”
Id.
The record shows that nearly three months had passed between defendant’s indictment and the trial date. Defendant offered the names of no witnesses who were necessary to his defense and made no showing as to any relevant facts for which he needed time to gather evidence. On this record, we conclude that defendant’s first motion to continue is inapposite to
Rogers.
Rather, it is apposite to
Branch,
306 N.C. at 105-06, 291 S.E.2d at 657, where this Court found no error in the denial of a motion to continue when four months had passed between indictment and trial and the defendant did not support his motion with the names of any witnesses necessary to his defense. Accordingly,
B. Defendant’s Second Motion to Continue
The day after defendant began to be represented by court-appointed counsel, he moved for continuance a second time through counsel, arguing to the trial court:
I will need to get a continuance [in order for a private detective] to be of any assistance to me at all. . ..
Additionally, Your Honor, I sent Mr. Worrell’s mother out to get a witness [who] would corroborate what he told police .... about what happened on that day.... [The witness] [d]idn’t really know him but remembered the incident happening. . . . [S]he remembered him trying to get into her house, use the phone, but she wouldn’t let him in.
I got the name of that person. . . . [S]he apparently is, I’m guessing, an elderly woman.
.... [S]he is apparently a reluctant witness to come up here[.]
The trial court denied defendant’s second motion for continuance and proceeded to jury selection.
Mr. Copeland was appointed on Friday, 16 March 2007, as standby counsel, a role limited “to assisting] the defendant when called upon and to bringing] to the judge’s attention matters favorable to the defendantf.]”
Even though the crimes for which defendant was being tried involved only one incident in one location and a small number of witnesses, less than one day with Mr. Copeland as sole counsel was not sufficient to allow defendant “ample time to confer with counsel and to investigate, prepare and present his defense.” Rogers, 352 N.C. at 125, 529 S.E.2d at 675. Accordingly, we conclude that the trial court was presented with sufficient basis for continuance.
In deciding this case, we are careful to avoid chilling a criminal defendant’s right to represent himself,
Rogers,
352 N.C. at 126, 529 S.E.2d at 675, but we note that “[a] defendant is not prejudiced ... by error resulting from his own conduct[,]”
Q. Okay. Now, during the summer of 2005, did anything unusual happen at your house that you recall, ma’am?
A. Yes. . . . Someone knocked on the door[.]
He said . . . , “Miss, may I use the telephone, please?” I said, “No. I don’t open my door at night.” But I didn’t tell him why.
Q. Did you ever open the door to see who he was? .
A. No.
IV. Conclusion
We conclude that the trial court did not err when it allowed defendant to be represented by counsel and denied defendant’s first motion to continue. We further conclude that any error arising from the trial court’s denial of defendant’s second motion to continue did not prejudice defendant. Accordingly, we hold that defendant received a fair trial, free of reversible error.
No error.
Judges HUNTER and ELMORE concur.