State v. Reese ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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(2007) (unpublished).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).