State v. Dickerson

176 S.E.2d 376 (1970) 9 N.C. App. 387

STATE of North Carolina
v.
Oliver Hilton DICKERSON.

No. 7018SC548.

Court of Appeals of North Carolina.

September 16, 1970.

Robert Morgan, Atty. Gen., by Christine Y. Denson, Staff Atty., Raleigh, for the State.

Wallace C. Harrelson, Public Defender, Eighteenth Judicial District, for defendant appellant.

GRAHAM, Judge.

Defendant challenges the order on various grounds. We discuss only two. First, he contends that the court was without authority to require that he agree, as a prerequisite to receiving a trial, that he is satisfied with his court appointed attorney and will cooperate with him. We agree. It is impossible to force happiness or satisfaction on anyone. Under the terms of the order in question, if the defendant is not satisfied with his counsel, he must nevertheless represent to the contrary or forfeit his constitutional right to a speedy trial. Even though defendant's dissatisfaction may be ill-founded; if, in order to receive a trial, it is required that he deny that it exists, when in fact it does, the effect has been to require that he dishonestly represent his true feelings. His right to be tried may not be conditioned upon such a requirement.

While the court may not delay a trial indefinitely, over a defendant's objection, pending his expression of satisfaction with counsel, neither may a defendant insist that only counsel satisfactory to him be appointed to represent him. An indigent defendant must accept counsel appointed by the court unless he desires to present his own defense. State v. Alston, 272 N.C. 278, 158 S.E.2d 52; State v. Morgan, 272 N.C. 97, 157 S.E.2d 606; State v. Elliott, 269 N.C. 683, 153 S.E.2d 330; State v. McNeil, 263 N.C. 260, 139 S.E.2d 667; State v. Moore, 6 N.C.App. 596, 170 S.E.2d 568; Campbell v. State of Maryland, 231 Md. 21, 188 A.2d 282; Brown v. United States, 105 U.S.App. D.C. 77, 264 F.2d 363. "`[T]he authorities seem united in the view that if there is fair representation by competent assigned counsel, proceeding according to his best judgment and the usually accepted canons of criminal trial practice, no right of the defendant is violated by refusal to accede to his personal desire in the matter.'" State v. McNeil, supra.

Defendant's next contention is that there is no showing in the record as to what specific acts and conduct were relied upon by the court as the basis for the action taken. This contention also has merit. The record shows that defendant voluntarily stood until instructed three times by the trial judge to sit down. However, whether he stood and continued standing for the purpose of disrupting the trial or otherwise demonstrating a contempt for the court does not affirmatively appear from the record or from any determination made and set forth in the record by the court. The basis of the order appears to be the court's finding: "[T]hat the defendant in this case, by his words and conduct, refuses to cooperate with his court-appointed attorney. * * *" Whether the "words and conduct" refer solely to defendant's act of voluntarily standing, other acts or statements not reflected by the record, or a combination of circumstances is not made to appear. If defendant's failure to cooperate with his attorney manifested itself in contemptuous or disruptive conduct, the court clearly had the inherent authority to deal with it. However, we think it essential in such instances, as in instances of an adjudication of direct contempt, that "the particulars of the offense be specified on the record." G.S. § 5-5; In re Palmer, 265 N.C. 485, 144 S.E.2d 413; In re Burton, 257 N.C. 534, 126 S.E.2d 581.

Although we find erroneous the court's requirement that defendant furnish a written statement as specified in the order, we nevertheless point out that trial judges have broad power to take whatever legitimate steps are necessary to maintain proper decorum and appropriate atmosphere in the courtroom during a trial. This includes the power to deal appropriately with an unruly defendant. In the case of Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353, the defendant continued to make abusive, threatening and disruptive remarks to the court, after having been warned that he would be removed from the courtroom if his disruptive behavior continued. At one point he tore the file which his attorney had and threw the papers on the floor. The court ordered the defendant removed from the courtroom, and the trial proceeded in his absence. The Supreme Court of the United States held that the action of the trial judge did not violate the defendant's constitutional right to be confronted with witnesses against him. Mr. Justice Black, in expressing the view of seven members of the Court, stated:

"It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly."

The order of the trial court is modified by striking therefrom the portion directing that the case not be returned to the calendar unless and until the defendant has furnished to the court a written statement. The portions of the order relating to continuing the case for the term, setting bond pending trial, and appointing the Public Defender to represent the defendant were within the discretion of the trial court and will not be disturbed.

Modified and affirmed.

BROCK and MORRIS, JJ., concur.