State v. Brooks , 49 N.C. App. 14 ( 1980 )

270 S.E.2d 592 (1980)

STATE of North Carolina
v.
Wayne Haywood BROOKS.

No. 8029SC67.

Court of Appeals of North Carolina.

October 7, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Archie W. Anders, Raleigh, for the State.

C. Frank Goldsmith, Jr., Marion, for defendant-appellant.

CLARK, Judge.

The indigent defendant moved "to represent himself as a jailhouse lawyer." He was advised of his right to have counsel trained in the law to represent him but he filed a written waiver and insisted on proceeding pro se. He thereupon filed numerous, voluminous and repetitious pretrial motions, which account for about half of the 511-page record on appeal.

Defendant now assigns as error the trial court's allowing him to represent himself and refusing to appoint standby counsel for him. This assignment of error is without merit. Defendant waived his right to appointed counsel and the record makes it clear that the waiver was knowingly and intelligently made, and that it was granted only after defendant had been informed of the nature of the charges against him and of his right to appointed counsel. Defendant's decision may not have been wise, but it is clear that he had every right to represent himself. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975); State v. Mems, 281 N.C. 658, 190 S.E.2d 164 (1972); N.C.Gen.Stat. 15A-1242. See Note, Self-Representation in Criminal Trials-The Pro Se Defendant, 9 Wake Forest L.Rev. 265 (1973).

The trial court, although not required to make any special effort to accommodate a defendant proceeding pro se, State v. Lashley, 21 N.C.App. 83, 203 S.E.2d 71 (1974), showed unlimited patience with the defendant throughout the trial. On one occasion defendant requested standby counsel, and the judge agreed to grant the request, but defendant changed his mind and elected not to use standby counsel. When, a few pages further into the record the defendant again requested standby counsel, it is not surprising that the judge refused. If defendant was not confident of his ability to represent himself, he was entitled to counsel appointed for his defense; but he had no right to standby counsel. The appointment of standby counsel is in the sound discretion of the trial court. G.S. 15A-1243; State v. Brincefield, 43 N.C.App. 49, 258 S.E.2d 81, disc. rev. denied, 298 N.C. 807, 262 S.E.2d 2 (1979). We find no abuse of discretion in the case sub judice.

Defendant claims that his imperfect understanding of the rules of evidence resulted in his failure to get certain evidence in the record. We would note first that the evidence defendant wished to get in was either irrelevant and immaterial or repetitive. We must also point out that "[w]hatever else the defendant may raise on appeal, when he elects to represent himself he cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel." State v. Brincefield, 43 N.C.App. at 52, 258 S.E.2d at 84. While we must concede that defendant in his representation of himself left much to be desired, the issue here is not whether defendant had the skill and training to represent himself adequately but whether "``he knows what he is doing [when he chooses to represent himself] and his choice is made with his eyes open.' Adams v. United States ex rel. McCann, 317 U.S. at 279 [63 S. Ct. 236 at 242], [87 L. Ed. 268, 143 A.L.R. 435.]" Faretta v. California, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L.Ed.2d at 582. In defendant's motion to proceed pro se he cites fifteen years as a jailhouse lawyer drafting legal papers and a previous successful pro se defense of a felony charge in Cleveland County Superior Court. There can be little doubt that the defendant had the utmost confidence in himself and made a conscious choice.

Ten of defendant's assignments of error relate to pretrial motions. All are overruled. Defendant made numerous novel motions, including a "Motion for Trial by Videotape"; a "Motion to Question Prospective Jurors Individually With the Simultaneous Use of Hypnosis, Polygraph, and Truth Serum"; a Motion for Attorney's Fees "for Self-Litigant in his Capacity as a Jailhouse Lawyer" (wherein defendant notes that the State ought to pay him $45,000 for his services to himself, although he will settle for $7,000); and a motion to declare North Carolina "Evidential Rules" unconstitutional.

Though the trial court denied many of defendant's motions, the rulings are not issues on appeal because defendant failed to except to them. An attorney presumably would have known of the necessity to note an exception to the ruling in order to give the trial judge an opportunity to correct the alleged error. G.S. 15A-1446. Though defendant may have been ignorant of this need, his failure to do so constitutes a waiver of the right to assert the alleged error on appeal. G.S. 15A-1446(b).

Defendant assigns as error the failure of the trial judge to rule upon his motion for appropriate relief. G.S. 15A-1448(a)(4) provides: "If there has been no ruling by the trial judge on a motion for appropriate relief within 10 days after motion for such relief has been made, the motion shall be deemed denied." Under this statute defendant did receive a ruling on his motion. We shall not review the trial judge's denial of the defendant's motion because any error could not possibly prejudice defendant since he is entitled to assert those same errors on this appeal. G.S. 15A-1422(e).

Defendant makes several assignments of error to the trial court's sustaining the prosecutor's objections to certain of defendant's questions on both direct and cross examinations. We note that defendant failed to make an offer of proof, leaving the record void of any indication of what the witness would have answered, so that it is impossible for this Court to determine what evidence was kept out and thus whether the defendant was prejudiced by the court's sustaining of the objection. See State v. Poolos, 241 N.C. 382, 85 S.E.2d 342 (1955); 1 Stansbury's N.C. Evidence § 26 (Brandis rev. 1973). The defendant, thus, has not met his burden of showing that the alleged error was prejudicial. State v. Robinson, 280 N.C. 718, 187 S.E.2d 20 (1972) (per curium).

Defendant seeks to challenge the long-standing rule in this jurisdiction that the uncorroborated testimony of an accomplice is sufficient to sustain a conviction. State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (1974); State v. Haney, 19 N.C. (2 Dev. & Bat.) 390 (1837). That this Court is not disposed to disturb that rule of evidence should be clear to defendant from our ruling against him in his appeal of a related case in which he assigned the same error. State v. Brooks, 38 N.C.App. 48, 247 S.E.2d 38, appeal dismissed, 295 N.C. 735, 249 S.E.2d 804 (1978). Not only would we uphold the rule, but we note also that, in this case, the accomplice's testimony was not the only testimony placing defendant at Dean's Grocery. Dean Burgess's testimony that defendant was one of the two men who broke into his store on 31 January 1977 served to corroborate the accomplice's testimony.

Defendant assigns as error the trial court's allowing the police dispatcher to read from the official police records. The dispatcher's testimony was confined to when the alarm system went off in Dean's Grocery and to whom he sent to Dean's Grocery on the night of the robbery. The defendant does not dispute the fact that Dean's Grocery was robbed on the night in question, the testimony was not inconsistent with the defendant's defense, and the defendant failed even to cross-examine the witness regarding his testimony. We can see no possible prejudice arising from the admission of this evidence.

Defendant contends that the identification of the defendant's voice by the witness Burgess was not based upon the witness's recollection of the night of the crime in question but was based upon his recollection of having heard the defendant's voice when the defendant appeared without counsel involuntarily in Rutherford County Superior Court on a previous occasion to inquire about the appointment of counsel for his defense. The Supreme Court of North Carolina in State v. Jackson, 284 N.C. 321, 200 S.E.2d 626 (1973) stated:

"Unless barred by constitutional grounds, identification by voice is admissible. State v. Coleman, 270 N.C. 357, 154 S.E.2d 485; State v. Hicks, 233 N.C. 511, 64 S.E.2d 871; 1 Stansbury's North Carolina Evidence (Brandis Revision) § 96 (1973). When identification testimony is offered and defendant objects and requests a voir dire hearing, the trial judge should hear evidence from both the State and the defendant, make findings of fact, and thereupon rule on the admissibility of the evidence. State v. Williams, 279 N.C. 663, 185 S.E.2d 174; State v. Stepney, 280 N.C. 306, 185 S.E.2d 844. If the trial judge's findings are supported by the evidence they are conclusive upon appellate courts. State v. Taylor, 280 N.C. 273, 185 S.E.2d 677; State v. Harris, 279 N.C. 177, 181 S.E.2d 420."

Id., at 327, 200 S.E.2d at 630.

The able trial judge in this case held a voir dire hearing, made findings of fact, and concluded that Burgess's voice identification was of independent origin and properly admissible. We have carefully examined the record and find ample evidence to support the judge's findings.

There remain the constitutional grounds alluded to in the above quote from State v. Jackson, supra. In that case our Supreme Court held that the requirements of due process in the case of voice identification was the same as for identification by sight, i. e., that circumstances surrounding a pretrial confrontation not be "unnecessarily suggestive and conducive to irreparable mistaken identification." Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199 (1967). We note, however, that the issue of whether the pretrial confrontation at the preliminary hearing was unconstitutionally suggestive is not properly before this Court since we hold that the trial judge's conclusion that Burgess's in-court identification was based solely upon the events he heard and saw on the night of the crime was properly supported by the evidence. The identification was therefore not susceptible to the taint of any possible constitutional impropriety in the pretrial confrontation. Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). Moreover, both this Court and our Supreme Court have held that the viewing of a defendant at a preliminary hearing is not, of itself, sufficient to taint a witness's subsequent in-court identification absent other circumstances which are so unnecessarily suggestive and conducive to irreparable mistaken identification as to deprive defendant of due process. State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Thomas, 35 N.C.App. 198, 241 S.E.2d 128 (1978).

One final comment upon Burgess's voice identification is in order. Burgess stated that defendant's voice was "very familiar to" that of the robber who had told Marlon Edwards to shoot him. From the context of this testimony and his explanation of the term, we believe Burgess used "familiar" for "similar" and that he was suggesting to the jury that defendant's voice was "very similar to" that of one of the robbers. Although he refused to identify the defendant positively, he was unshakable in his assessment of defendant's voice as being "very familiar to" the one he had heard at the robbery. We hold that any lack of certainty in defendant's identification went to the credibility of his testimony and not to its admissibility. See State v. Hicks, 233 N.C. 511, 518, 64 S.E.2d 871, 876 (1951), citing Stansbury's N.C. Evidence § 96.

Defendant assigns as error the denial of his speedy trial right. We note that there are two bases for defendant's claim that he was entitled to speedy trial. The first is statutory; the second, constitutional.

Defendant alleges that the six-month delay between issuance of the mandate from this Court to retry the defendant and the actual retrial was in excess of the 120-day limit imposed on the courts by the North Carolina Speedy Trial Act. G.S. 15A-701(a1)(5). In relying upon the Speedy Trial Act, defendant overlooks the plain language of G.S. 15A-701(a1) that its time limit does not apply to a defendant charged with a criminal offense who is arrested, served with criminal process, waives an indictment, or is indicted before 1 October 1978. All the applicable operable events in this case occurred prior to that time; thus defendant may not rely upon the 120-day time limit of G.S. 15a-701(a1)(5) which did not take effect until 1 October 1978.

Defendant does not address the issue of whether his Sixth Amendment right to a speedy trial was violated. We note that even had defendant properly brought that issue before us, under the test of State v. Hill, 287 N.C. 207, 214 S.E.2d 67 (1975), we would find no violation. Not only does the delay appear from the record to be for the purpose of allowing defendant to locate his alibi witness, Tonya Hoffman, but defendant makes no showing of prejudice and the record reveals none, due to the delay in his retrial.

We have carefully examined the oppressive record on appeal and considered all 53 assignments of error and find that the defendant had a fair trial free from prejudicial error.

No error.

MORRIS, C. J., and HARRY C. MARTIN, J., concur.