State v. Pickens

HEDRICK, Judge.

Defendant assigns as error the failure of the trial court to determine his indigency and the failure to appoint counsel to assist him in the defense of the charge against him. An accused is entitled as a matter of due process of law to be informed that he is entitled to counsel; to an inquiry and determination as to his indigent state at every stage of the proceedings if he appears without counsel; and to court-appointed counsel if he is found to be an indigent unless he understandingly and voluntarily waives counsel. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed. 2d 530 (1972); State v. Morris, 275 N.C. 50, 165 S.E. 2d 245 (1969).

A careful review of the record in the instant case reveals that at no time was defendant informed of his constitutional right to be represented by counsel and that an insufficient inquiry as to defendant’s indigent state was made. The record presents a confusing state of affairs as to defendant’s indigency, with defendant at one point indicating he could not afford a lawyer and at another point answering a question propounded by the court in the following manner: “Yes sir, I can make the money to employ a lawyer. * * * I have a job and I’m working and I’m self-employed.” Notwithstanding this conflict in the evidence, the trial judge at no point made an express finding as to defendant’s indigent or non-indigent condition. Based upon the paucity of evidence elicited as to defendant’s financial circumstances, we are of the opinion that a finding of non-in-digency, which appears to have been made impliedly in this case, is not supported by sufficient evidence, and that defendant is entitled to a more detailed investigation into his economic situation. We are not persuaded by the cases cited by the State as we find them factually distinguishable from the present case. In each of the cases relied upon by the State a much more complete inquiry into defendants’ economic circumstances was present. In the case now before us there is no indication of what type of work defendant does, the salary he is paid, any indebtedness he might have or other information which might aid the court in its evaluation of defendant’s financial worth.

Although we find that it was incumbent upon the trial court to make a more sufficient inquiry into defendant’s financial status and to determine the question of his indigency, defendant is not prejudiced unless he can show that he did not voluntarily and intelligently waive counsel. The trial court, in its order of 24 July 1972, stated:

“Based upon the foregoing findings of fact, the court concludes as a matter of law that the defendant has wil-fully and intentionally waived his right to counsel by his indolent behavior and his refusal and neglect to employ counsel to appear in his behalf.”

Our Supreme Court quoted with approval in State v. Morris, 275 N.C. 50, 59, 165 S.E. 2d 245, 251 (1969), the following passage from Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed. 2d 70 (1962) :

“The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”

Certainly we do not condone the actions of defendant; however, there being a noticeable absence in the record of any court offer of counsel to defendant, the defendant cannot be said to have waived his right to counsel. Carnley v. Cochran, supra.

For failure of the trial judge to determine indigency and appoint counsel to represent defendant, the judgment must be vacated and a new trial ordered.

New trial.

Judges Vaughn and Baley concur.