State v. Messick

363 S.E.2d 657 (1988) 88 N.C. App. 428

STATE of North Carolina
v.
Carles C. MESSICK.

No. 8730SC588.

Court of Appeals of North Carolina.

January 19, 1988.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Wilson Hayman, Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Geoffrey C. Mangum, Raleigh, for defendant appellant.

ARNOLD, Judge.

In his first assignment of error, defendant contends that the trial court erred in allowing him to represent himself at trial because the record fails to show a knowing and intelligent waiver of the right to counsel.

A criminal defendant has a constitutional right to the assistance of competent counsel in his defense. Gideon v. Wainwright, 372 U.S. 335 [83 S. Ct. 792, 9 L. Ed. 2d 799] (1963). Implicit in defendant's constitutional right to counsel is the right to refuse the assistance of counsel and conduct his own defense. Faretta v. California, 422 U.S. 806 [95 S. Ct. 2525, 45 L. Ed. 2d 562] (1975). In its decisions both prior to and after Faretta, this court has held that consel may not be forced on an unwilling defendant. State v. Thacker, 301 N.C. 348, 271 S.E.2d 252 (1980); State v. McNeil, 263 N.C. 260, 139 S.E.2d 667 (1965).

State v. Gerald, 304 N.C. 511, 516, 284 S.E.2d 312, 316 (1981). G.S. 15A-1242 states:

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.

On 8 July 1986, defendant signed a written waiver of his right to counsel which was certified by Judge Robert Leatherwood. On 16 July 1986, defendant filed a pro se motion in which he refused because of his religious beliefs "to employ or accept any licensed or other privileged person beholden to his adversary or recognizing the State of North Carolina as his/her Sovereign, to become involved in any manner or degree with making my own defense to these alleged criminal charges by the State." Defendant simultaneously filed a notice of appointment of counsel by which he purported to appoint Mr. Don R. Johnson, not licensed to practice law in North Carolina or any other state, as counsel.

On 27 October 1986, a pretrial hearing was held before Judge Lamar Gudger. Judge Gudger informed defendant of his right to counsel, and defendant stated that he waived counsel and wished to act in his own defense. Defendant also indicated that he understood the nature of the charges against him and the possible maximum sentences. Judge Gudger again informed defendant of his right to counsel, and defendant stated that he did not desire to have a licensed attorney or a court-appointed attorney represent him. When defendant stated that he desired Mr. Johnson, the "legal counsel" for his church, to act in his defense, the court informed defendant that although he could have Johnson sit beside him and assist him as he represented himself pro se, Johnson would not be permitted to address the court or speak on defendant's behalf. Judge Gudger again advised defendant of the charges against him and the maximum penalties for the offenses and defendant stated that he understood them. Judge Gudger also told defendant that another judge might try defendant's case and could order something different with respect to Johnson's assistance.

Defendant requested a continuance and on 15 December 1986, defendant's case came on for trial before Judge Allen. The following exchanges occurred:

MR. MESSICK: Another motion that was sort of semi-granted was a motion for non-bar counsel. He was permitting me to have assistance of counsel, my own counsel, a non-bar attorney—a non-bar counsel. But I wanted to point out that he has forbidded (sic) him to address the jury or Court.

THE COURT: I am going to forbid him also from being seated next to you.

MR. MESSICK: I'm going to take exception to that, Your Honor.

THE COURT: Yes, sir. He can sit behind you but he cannot sit at counsel table.

MR. MESSICK: Well, without the assistance of Mr. Johnson, Your Honor, I am really not qualified to—

THE COURT: I'm not saying that you can't have his assistance. I'm saying that he cannot sit with you at counsel table. He can be seated immediately behind you.

MR. MESSICK: Will I be allowed to confer with him?

THE COURT: We will have to take that up as it comes up. That is a violation of the law, Mr. Messick for anyone to advise on matters of law in this State who is not an attorney and I cannot allow that, knowingly allow it—

MR. MESSICK: Judge Gudger didn't have any problem with it—

THE COURT: Well, I cannot allow—I cannot not (sic) knowingly allow a violation of the law to take place in the courtroom, no, sir. You can have anyone seated behind you care to. Now whether he advises you or not, is your business, but I am not allowing a non-attorney to sit at counsel table with you.

* * * * * *

THE COURT: I understand that. The State has offered a lawyer to you, Mr. Messick and I understand that you didn't desire one.

MR. MESSICK: That's true, Your Honor.

* * * * * *

THE COURT: [Y]ou do not wish to have a Court appointed counsel at this time?

MR. MESSICK: Yes, Your Honor that is right.

THE COURT: You are going to represent yourself?

MR. MESSICK: I am going to defend myself.

Defendant argues that he never voluntarily and knowingly waived his right to counsel once Judge Allen informed him that he could not have the assistance of Mr. Johnson at counsel table. He asserts that Judge Allen was obligated to make a de novo determination of whether defendant wished to have the assistance of counsel. We do not agree.

Judge Allen's limitations on Mr. Johnson's "assistance" did not necessitate a de novo inquiry into defendant's waiver of counsel. The trial court advised defendant of his right to the assistance of counsel and defendant clearly indicated that he comprehended the nature of the charges and the range of possible punishments. The record is replete with defendant's assertions that he wished to defend himself and that he understood the consequences of his decision. The trial court correctly followed G.S. 15A-1242, and defendant voluntarily and knowingly waived his right to counsel.

Defendant next contends that "the trial court erred in sustaining the State's objections to defendant's questions to show prior acts of violence against the church, because such testimony was relevant to whether defendant had probable cause to suspect the Trustys of having attempted to bomb the church so that he was authorized to detain them." This contention is without merit.

On cross-examination, defendant testified that the church put in an alarm system because of another attempted bombing incident. He also testified that the church had been fire bombed in the past.

It is well settled that no prejudice arises from the erroneous exclusion of evidence when the same or substantially the same testimony is subsequently admitted into evidence. State v. Hageman, 307 N.C. 1, 296 S.E.2d 433 (1982). Even assuming arguendo that the evidence was improperly excluded, any possible prejudice was cured by the admission of defendant's testimony.

Defendant also contends that "the trial court erred in failing to dismiss one of the two assault charges, because the evidence was insufficient in that the State failed to prove defendant was aware two people were in the car." We do not agree.

There is no statutory definition of assault in North Carolina, and the crime of assault is governed by common law rules. State v. Roberts, 270 N.C. 655, 155 S.E.2d 303 (1967).

In this State a criminal assault may be accomplished either by an overt act on the part of the accused evidencing an intentional offer or attempt by force and violence to do injury to the person of another or by the "show of violence" on the part of the accused sufficient to cause a reasonable apprehension of immediate bodily harm on the part of the person assailed which causes him to engage in a course of conduct which he would not otherwise have followed.

State v. O'Briant, 43 N.C.App. 341, 344, 258 S.E.2d 839, 841-42 (1979). A criminal assault may be proven under the "show of violence" rule by evidence of the apprehension of harm on the part of the person or persons assailed. Id. Intent is not a prescribed element of assault with a deadly weapon. State v. Curie, 19 N.C.App. 17, 198 S.E.2d 28 (1973).

In the present case, defendant's "show of violence" placed William and Patricia Trusty in fear of immediate harm. Defendant's ignorance regarding the number of occupants in the car was immaterial since his actions were sufficient to constitute an assault with a deadly weapon on both occupants. The trial court properly refused to dismiss one of the assault charges.

Defendant finally contends that "the trial court erred in denying defendant's motion to dismiss assault charges and the charge of discharging a firearm into occupied property as multiplicitous, because double conviction and punishment for these offenses violates double jeopardy." This contention is without merit.

The Double Jeopardy Clause of the North Carolina and United States Constitutions protect against multiple punishments for the same offense. State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986).

[T]he general rule in North Carolina for determining whether certain crimes are separate and distinct offenses is based on Blockburger v. U.S., 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). The rule states that in order to show separate and distinct offenses, there must be proof of an additional fact required for each conviction. It is not enough to show that one crime requires proof of a fact that the other does not. Each offense must include an element not common to the other (citations omitted).

State v. Strohauer, 84 N.C.App. 68, 72-73, 351 S.E.2d 823, 827 (1987).

Discharging a firearm into an occupied vehicle and assault with a deadly weapon are separate and distinct offenses. In State v. Shook, 293 N.C. 315, 237 S.E.2d 843 (1977), defendant was convicted of discharging a firearm into an occupied building and assault with a deadly weapon inflicting serious injury. Our Supreme Court held that defendant was not exposed to double jeopardy and stated:

To prove [discharging a firearm into an occupied building], the state must show that defendant fired into an occupied building, an element which need not be shown to support the second charge. Likewise to prove [assault with a deadly weapon inflicting serious injury], it must show the infliction of serious injury, which is not an element of the first charge.

Id. at 320, 237 S.E.2d at 847.

In State v. Bland, 34 N.C.App. 384, 238 S.E.2d 199 (1977), disc. rev. denied, 294 N.C. 183, 241 S.E.2d 518 (1978), this Court held that assault with a deadly weapon was not a lesser included offense of discharging a firearm into an occupied building because the latter does not involve an assault on a person.

In the case sub judice, each offense for which defendant was convicted included an element not common to the other. Discharging a firearm into an occupied vehicle is not essential to support an assault with a deadly weapon. An assault on a person is not an essential element of discharging a firearm into an occupied vehicle. Defendant was not placed in double jeopardy by the convictions for both offenses. He received a fair trial in which we find

No error.

JOHNSON and ORR, JJ., concur.