State v. Thomas , 346 N.C. 135 ( 1997 )

MITCHELL, Chief Justice.

Defendant was indicted on 20 February 1989 for first-degree murder. In 1990, he was tried capitally, found guilty, and sentenced to death. On appeal, this Court found error and ordered a new trial. State v. Thomas, 331 N.C. 671, 417 S.E.2d 473 (1992). On 18 November 1992, before Judge Thomas S. Watts, Jr., defendant requested that he be allowed to proceed pro se. Judge Watts thoroughly questioned defendant in accordance with N.C.G.S. § 15A-1242 before he was allowed to execute a waiver of counsel form indicating his desire to appear on his own behalf. The waiver form included the specific request that the court appoint standby counsel pursuant to N.C.G.S. § 15A-1243. Defendant appeared again before Judge Watts on 7 December 1992. Following an additional inquiry concerning defendant’s request to represent himself, Judge Watts entered an order authorizing defendant to proceed pro se and appointing Nile Falk as standby counsel. Judge Watts also ordered the Office of the Appellate Defender to designate another attorney to serve as standby counsel. In compliance with Judge Watts’ order, the Office of the Appellate Defender designated Staples S. Hughes.

On 18 March 1993, standby counsel Hughes, acting without defendant’s consent, filed a motion requesting that he and attorney Falk be appointed as counsel to represent defendant for the limited purpose of litigating his capacity to knowingly and intelligently waive his right to counsel and proceed pro se and for authorization for the defense to obtain a professional evaluation of defendant’s mental health. The motion was considered ex parte by Judge Quentin T. Sumner at the 21 April 1993 Criminal Session of Superior Court, Nash County. On 16 June 1993, nunc pro tunc 21 April 1993, Judge Sumner entered an order over defendant’s objection appointing Hughes and Falk as counsel to represent defendant solely for the purpose of litigating issues related to defendant’s mental status. In a separate order, Judge Sumner authorized the employment of an expert defense witness to assist in the investigation and litigation of defendant’s mental status.

An evidentiary hearing was held on 24 January 1994 before Judge Sumner on a motion filed by Hughes questioning defendant’s mental competence to execute a waiver of counsel. On 25 February 1994, nunc pro tunc 28 January 1994, Judge Sumner entered an order setting forth findings and conclusions in support of his decision to deny defendant’s motion for self-representation and to appoint the formerly designated standby counsel to represent defendant as his trial counsel. In that order, Judge Sumner made no finding or conclusion that defendant was or ever had been unable to properly waive his right to counsel under N.C.G.S. § 15A-1242..In a separate order filed on or about 8 February 1994, Judge Sumner found that the State’s sole proposed aggravating circumstance was insufficient to support a sentence of death and directed that the case be tried noncapitally.

Defendant was tried noncapitally to a jury at the 17 July 1995 Criminal Session of Superior Court, Nash County, Judge G.K. Butterfield presiding, and was found guilty. Judge Butterfield sentenced defendant to a mandatory term of life imprisonment.

Defendant contends inter alia that the trial court erred by allowing Hughes’ motion, filed over defendant’s objection, that Hughes and Falk be appointed as counsel to represent defendant for the limited purpose of litigating his capacity to knowingly and intelligently waive his right to counsel. We agree.

At the time the motion was filed, defendant had been found by the trial court to have knowingly and voluntarily waived his right to counsel and was representing himself. Hughes and Falk were serving as standby counsel pursuant to N.C.G.S. § 15A-1243. The duties of standby counsel are limited by statute to assisting the defendant “when called upon” and to bringing to the judge’s attention “matters favorable to the defendant upon which the judge should rule upon his own motion.” N.C.G.S. § 15A-1243 (1988). When the trial court allowed attorney Hughes, in his capacity as standby counsel, to intervene by motion in this case, over defendant’s objection, it exceeded the authority granted by statute.

Allowing standby counsel to advocate any position over a pro se defendant’s objection also interferes with his exercise of his right to represent himself. A defendant’s right to represent himself is guaranteed by the Sixth Amendment to the United States Constitution, Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562 (1975), and by Article I, Section 23 of the North Carolina Constitution, State v. Thomas, 331 N.C. 671, 417 S.E.2d 473. A defendant appearing pro se “has a right to handle his own case without interference by, or the assistance of, counsel forced upon him against his wishes.” State v. Mems, 281 N.C. 658, 670-71, 190 S.E.2d 164, 172 (1972). Defendant objected to the appointment of Hughes and Falk as counsel for the limited purpose set forth in the motion. At the time the trial court allowed the motion and appointed Hughes and Falk to represent defendant on the issue of whether he was competent to proceed pro se, no finding had been made that defendant had not been or was no longer competent to waive counsel. Finally, appointing counsel for a limited purpose violated the rule against a defendant proceeding both pro se and by counsel. In Thomas, this Court held that a defendant has only two choices: “ ‘to appear in propria persona or, in the alternative, by counsel. There is no right to appear both in propria persona and by counsel.’ ” 331 N.C. at 677, 417 S.E.2d at 477 (quoting State v. Parton, 303 N.C. 55, 61, 277 S.E.2d 410, 415 (1981), disavowed on other grounds by State v. Freeman, 314 N.C. 432, 333 S.E.2d 743 (1985)). Due to this prohibition against hybrid representation, a court cannot allow defendant to proceed pro se while also appointing counsel to represent him, even for a limited purpose.

For the reasons stated herein, the trial court erred by allowing standby counsel to advocate a position over defendant’s objection, and defendant is entitled to a new trial.

NEW TRIAL.