I will write to anyone who has time to write me. It doesn’t matter if you are gay, straight, bisexual, male or female. I need someone to talk to.
Hi, my name is Harris Emanuel Ford. My friends call me “Emanuel”. I was born in Brooklyn, New York and I’m 32 years of age. I’m 6’1” with 250 lbs of muscle. I enjoy working out, reading, movies, sports and long walks on the beach. I’m really a good person who has been trapped in a bad situation due to poor judgment. “I Did Not” commit the crimes I am presently serving time for and I have evidence to prove it, but I need help to do so. I am incarcerated in North Carolina and the prison doesn’t have a law library. I am fighting for my freedom on my own, and do not have the funds to buy the needed materials to properly present my case, I do have “DNA” evidence that proves I did not commit these crimes I just need help to present my case to the court properly. I’ve been locked up for 4 years now for a crime I did not commit, so please do not judge me by the charges. All I ask is that you give me a chance to explain and show you the evidence I have and maybe you can help save a innocent man from spending the rest of my life in prison for a crime “I did not and would not commit”, this is the most difficult situation I’ve ever been faced with in my life, so I’m pleading with you out there in society to please help me right this in justice. I need any and all help you can and/or are willing to offer, I have no one to turn to so I’d really love to have someone to write as a friend I’m lonely and uncertain of what’s going to happen to me, without a lawyer. My previous lawyer out right refused to present my case at trial and on appeal, I’ve made every attempt to exercise my right to represent myself but I’ve been denied the right to do so, I’m at a complete lost and I can really use some help with this situation, (“Please see the attached petition I have produced for the court for a better understanding of my case”) Please believe me I’m actually innocent of all charges and I’m in a true need of your help, I’m a good man, if you’re willing to get to know me please write back and send a picture and/or a donation, money orders only, payable to:
Harris E. Ford, #0132348
1300 Western Blvd.,
Raleigh, NC 27606
All of your help, time, consideration and donation big or small is highly appreciated.
Sincerely,
An Innocent Man
Harris E. Ford
North Carolina Supreme Court
Harris Emanuel Ford, Petitioner
vs
State of North Carolina, Respondent
From Robeson County
File No. (s) (01CRS 16412-15; 01CRS 16418, 02CRS 498)
Petition for Writ of Supersedeas
To: The Honorable Chief Justice and Associate Justices of the North Carolina Supreme Court
Now comes, Harris E. Ford, Petitioner, and respectfully petitions. This Honorable Court to issue its “Writ of Supersedeas,” Pursuant to N.C.G.S. 7A-32(b), and Rule 23(b) of the North Carolina Rules of Appellate procedure, to “Stay the Order” of the North Carolina Court of Appeals [To Prevent a Miscarriage of Justice]
(Statement of Facts)
Petitioner filed a Pro Se Motion for appropriate relief, alleging his actual innocence in light of [DNA] evidence, and a violation of his absolute right to represent himself. On, 16, November, 2004, at which time defendant was in fact not represented by counsel, and had no right to counsel, due to the fact, his direct appeal was in fact exhausted by unanimous unpublished opinion of the N.C. Court of Appeals dated 17-February-2004; on, 17 December-2004, the Robeson County Superior Court issued it’s order denying defendants’ motion for appropriate relief.
Thereafter, on 11-August-2005 defendant filed a petition for Writ of Certiorari to the North Carolina Court of Appeals, on, 29-August-2005, the state responded to defendants’ petition for Writ of Certiorari, requesting that the petition be dismissed. Alleging defendant has no right to appeal the (Mar.) by (Cert.) in Propria Persona.
On, 1-September-2005, the Court of Appeals apparently agreed with the state and dismissed defendants’ petition for Writ of Certiorari.
“Reason Why The Writ Should Issue” Defendant is a lay-man at law and can only offer this Honorable Court but one valid reason to issue its Writ of Superseadas
I. To determine whether if there is [DNA] evidence proving petitioners actual innocence’s and whether petitioner had the right to proceed Pro Se.
Here, petitioner contends the North Carolina Court of Appeals order is [Erroneous] on it’s face, and as a result, denied, petitioner of his substantive and procedural due process rights guaranteed him under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Art. I, Sections, 18, 19, 21, and 23 of the North Carolina Constitution.
Thus, petitioner asserts that a “Stay of the Order” is necessary [To Prevent a Miscarriage of Justice], wherein; the North Carolina Court of Appeals apparently, in accordance with North Carolina law adopted the states contention, that defendant has [No] right to appear in Propria Persona.
Herein, petitioner argues that, his motion for appropriate relief was a post-conviction motion, contending his [Actual Innocence] in light of [DNA] evidence (obtained by the SBI Crime Lab), and a violation of his absolute right to proceed Pro Se. Prepared and filed Pro Se after defendants’ direct appeal was in fact exhausted. Thus, according to North Carolina law, petitioner only had two options (1) proceed Pro-Se or (2) retain counsel to represent him. Moreover, defendant-petitioner requested counsel withdraw from his case to avoid such confusion as this which counsel did in fact file a motion to withdraw due to complete impasses regarding tactical decision, and said motion was granted by order of the N.C. Court of Appeals.
Petitioner, therefore maintains he was in fact denied his right to proceed Pro Se in his own defense, in violation of clearly established federal and state law, the right to proceed Pro Se has been well settled in North Carolina see State v. Mems, 281 N.C. 658, 670-71, 190 S.E. 2d. 164, 172 (1972). Further, the United States Supreme Court has clearly established a defendants’ right to proceed Pro Se in Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 567 (1975).
Here, defendant asserts that the Court of Appeals order to dismiss defendants’ petition for Writ of Certiorari, apparently in light of the States request is in error. Wherein, the N.C. Court of Appeals was in fact required by law to enter its order pursuant to N.C. G.S. 15A-1420 (c) (4) But did not do so, the order merely states the petition in question is dismissed, thus, defendant contends that his petition for Writ of Certiorari has not been considered on the basis of the merit of his claims, here, defendant argues according to North Carolina Law Certiorari, its to be issued in appropriate circumstances, to permit review of a judgment of the Trial Court. When the right to prosecute an appeal has been lost by failure to take timely action, or when no right appeal from an interlocutory order exist, or for review pursuant to N.C. G.S. 15A-1442 (c) (3) of an order of the Trial Court denying a motion for appropriate relief N.C.R. App. P. (21) (A) (1) (2005). Further, Certiorari has long been recognized as “A Discretionary Writ”. To be issued only for good and sufficient cause shown. See, State v. Grundler, and Jelly, 251 N.C. 177, 189, 111 S.E. 2d 1, 9 (1959), Cert. denied, 362 U.S. 917, 4 L. Ed. 2d 738 (1960). In Grundler, the Supreme Court, stated: “A Petition for the Writ Must Show Merit or that Error Was Probably Committed Below.” Id. Herein, petitioner contends that his arguments have [Merit and Error] was committed below. Where, the prosecutor applied an illegal standard to conceal [DNA] test results which excluded petitioner as a suspect regarding the alleged offenses, as well as to correct the Trial Courts failure to ensure petitioners constitutional rights as provided under N.C. G.S. 15A-1242 and to correct the N.C. Court of Appeals unduly restrictive application of important constitutional doctrine as such errors amounted to plain error and thus should be reviewed as such, see.. State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983). See also State v. Brown, 312 N.C. 237, 249, 321 S.E. 2d 856, 861 (1984). Thus this court should stay the order of the N.C. Court of Appeals to Prevent a Miscarriage of Justice, as is this Honorable Supreme Courts’ Inherent Authority.
The United States Supreme Court has instructed that an Appellate Court should exercise it’s discretion to correct any plain error prejudicing a defendants’ substantial rights, which seriously affect the fairness, integrity or public reputation of judicial proceedings. Olano, 507 U.S. at 736-37, 113 S. Ct. 1770, with United States v. Hanno, 21F 3d. 42, 49 (4th Cir 1994) (“Finding Error Impacts on the Fairness Integrity and Reputation of Judicial Proceedings”).
Here, defendant maintains the writ should issue to [Prevent a Miscarriage of Justice]. Wherein, defendant was convicted on the basis of a misapplication of the law, which amounted to error plain on the face of the record, as it resulted in a miscarriage of Justice, in that a misapplication of law constitutes error prejudicial to petitioner. Where, there is [DNA Evidence], “Proving petitioner in fact did [not] commit the alleged offenses, and the prosecutor having [foreknown knowledge] of the existence of such, through the written reports of the expert witnesses who testified at trial ((SBI Agents Susie Baker and Lucy Milks)). (See the record attached hereto I.E. will display the existence of such facts).
(A.)
From the review of the record one could conclude the prosecutor’s intent was to present conclusive evidence against the defendant, however, the evidence as presented was [grossly improper] based upon the testimony of the States expert witnesses, wherein the prosecutors misrepresentation of the evidence led the Trial Court as well as the Jury to believe,
“The unknown hairs from the rectal swab of the victim, the hairs from the towel from the victims residence, the unknown hairs from the pubic hair combings of the victim”
Were consistent or in connection with the know samples of the petitioner, ((2 Tp. 226-32)) (Attached Hereto)
However, the prosecutors presentation of the evidence through the expert testimony failed to establish any connection or consistency in relation to the unknown hairs from the rectal swab of the victim and the unknown hairs from the pubic hair combings of the victim with that of the known samples of the petitioner (2 Tp. 232-34) (Attached Hereto) where, factually the only connection that could be made through the prosecutors introduction of the expert testimony was that [two head hairs] found on the towel in the victims residence may have been consistent with that of the known head hair samples of the petitioner, [who lived in the residence] with the victim “during the time of the alleged offense.” Herein petitioner contends that the prosecutor applied an illegal standard through a misapplication of the law which misled the Trial Court as well as the Jury, by introducing evidence that was already [foreknown] not to be consistent or in connection with that of the known samples of petitioner, and such a misapplication was illegal where the prosecutor knew through the written reports of the SBI expert witnesses, that the unknown hairs from the rectal swabs of the victim and the unknown hairs from the public hair combings of the victim were not consistent or in connection with the known samples of petitioner.
Thus where the Jury considered such false evidence in determing defendants guilt, resulted in prejudice to defendant and constitutes a violation of Rule 3.8 of the North Carolina Rules of professional contact. As the introduction of the evidence was [grossly improper] where the prosecutor failed to establish a connection or consistency regarding the evidence in question. The prosecutor failed to satisfy the standard under North Carolina Law, for the introduction of scientific; technical or other specialized knowledge.
“A prosecutor may only introduce scientific technical or other specialized knowledge when it will assist the trier of facts to understand the evidence or to determine a fact in issue.” N.C. G.S. 8C-1 Rule 702 (a).
Thus, petitioner maintains, the prosecutor failed to follow the law and in fact did apply an illegal standard, of his on devising. Which in fact misled the Jury and left it to draw its own inferences from the facts, without the assistance of the prosecutors’ qualified expert witnesses.
Wherefore, the introduction of the prosecutor’s expert witnesses amounted to a misapplication of the Law, an constitutes [error] prejudicial to petitioner, in that, he was deprived of a fair trial as guaranteed under the Fourteenth Amendment of the United States Constitution.
“Expert testimony is properly admissible when it can assist the Jury in drawing certain inferences from the facts, and the expert is better qualified than the Jury to draw such inferences. “State v. Mackey, 352 N.C. 650, 657, 535 S.E. 2d 555-59 (2000). Though petitioner concedes the States introduction of the expert testimony did establish two head hairs found on the towel from the victim’s residence that was in fact the [residence of petitioner], my have been consistent with the known samples of petitioner.
However, the fact still remains, that, the prosecutor failed to establish a connection or consistency to the unknown hairs on the rectal swab of the victim, and the unknown hairs from the pubic hair combings of the victim.
Herein, petitioner argues that the evidence in question presents a [reasonable doubt]. Specifically petitioner contends that the question in the case subjudice is whether the petitioner has been convicted upon inadequate evidence is central to the basic question of guilt or innocence, regarding the constitutional necessity of proof beyond a reasonable doubt which is not confined to defendant's who are morally blameless… e.g. Mullaney v. Wilbur, 421 U.S. at 697, 698 S. Ct. at 1888-89. Further, the Supreme Court in Inre WinsHip explicity held, “That the due process clause protects the accused against conviction expect upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for which he is charged.” At 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970). In the Winship Opinion, the Court explained why the reasonable-doubt standard is indispensable in American criminal procedure. The basic point, of course, is that it is “A prime instrument, for reducing the risk of convictions resting on [factual error].” And there are several reasons, the Court noted, for reducing the Margin of Error in criminal cases in this way: 1) Because the individual defendant has at stake, an interest of immense importance, both in terms of the possibility that he will lose his liberty and that he would be stigmatized by the conviction; 2) Because the moral force of the criminal law would be diluted if the public was in doubt whether innocent men were being convicted; and 3) Because every individual going about this ordinary affairs should have confidence that the Government cannot judge him guilty of a criminal offense without convincing the fact finder of his guilt with utmost certainty.” See McCormick Evidence 321 (1954).
This proposition is sometimes stated in these terms: “The prosecution has the burden of proof (in both senses) of the Corpus Delicit, and the defendants’ responsibility therefore e.g. Anderson v. State, 35 Ala..App., 557, 51 So. 2d 260 (1951), cert denied 255 Ala. 302, 51 So. 2d 260 (1951) (Prosecution must prove beyond a reasonable doubt that the crime charged was committed, and that defendant committed it.) Therefore, in the case subjudice petitioner asserts, the prosecutor failed to satisfy his lawful obligation to prove petitioner committed the sexual misconduct beyond “A reasonable doubt.” Here petitioner argues the assumption underlying the substantive criminal law is that all persons whose conduct reasonably appears to be criminal shall be subjected to the full array of criminal proceedings as the law is defined in the Country has always been concerned with the risk of innocent persons being convicted to criminal proceedings and this certain evidentiary test must be met at several points in the criminal process and the strictest test is that which requires evidence beyond a reasonable doubt for conviction.
Wherefore petitioner maintains that the evidence in question fails to meet the indispensable standard of reasonable doubt. Thus, the prosecutor failed to satisfy the burden of proof beyond a reasonable doubt. In that the prosecutor did in fact apply an illegal standard through a misapplication of law regarding the evidence introduced to the Jury to determine petitioner guilt or innocence, regarding the alleged sexual misconduct.
Herein, petitioner asserts that judging from the record one must conclude the prosecutor’s intent was calculated to produce a wrongful conviction where the prosecutor had foreknown knowledge of the [unknown evidence] discovered on the victims persons in the rectal and pubic vaginal area which are areas of the victims persons. The alleged sexual assaults was inflicted, where such evidence was in fact proven not to be consistent or in connection with petitioner and the prosecutor introducing such [unknown evidence] as being in connection or consistent to petitioner was grossly improper.
Further, the states only alleged perpetrator and only suspect in the case subjudice was the petitioner. Therefore, any reasonable mind would have to conclude there is reasonable doubt and a innocent man has been wrongfully convicted.
Where, the question remains [Factum Probandum] who does the unknown hairs on the rectal swab of the victim and the unknown hairs from the pubic hair combings of the victim belong to?
Here, petitioner argues, in light of the fact the only other testimony offered to support the allegation of the State is that of the victim who clearly stated on the record [she lied]. Moreover this witness had previously rendered several completely different statements; therefore petitioner contends, that their exist a reasonable probability that had the prosecutor not applied an illegal standard of his own devising through a misapplication of the law regarding the unknown hairs from the rectal swab of the victim and the unknown hairs from the pubic hair combings of the victim which was tested against that of the known samples of the victim and petitioner by experts of the SBI crime lab and was determined not to have [originated] from the victim, nor petitioner. There is in fact a reasonable probability, that had, the Trial Judge and the Jury not been distracted by the loud music, from the ceremony that was taking place directly on the floor below the courtroom during petitioners trial as well had the prosecutor properly distinguished the evidence in question, the outcome of the trial would have had a different result, as their exist a reasonable probability that a reasonable undistracted mind, would have been able to distinguish the evidence in question, without such an unusual distraction of loud music during a criminal trial.
Thus, petitioner asserts there is a reasonable probability that the outcome would have been different see State v. Robinson, 136 N.C. App. 520, 524 S.E. 2d 805 (2000). (Holding prejudice occurs when there is a reasonable possibility that without the error the results of the trial would have been different see also N.C. G.S. 15A-1443 (A) Infra with 15A-1443 (B).
May I respectfully remind the court, “A prosecutors has the responsibility of a Minister of Justice and not simply that of an advocate. The prosecutor’s duty is to seek justice, not merely to convict, this responsibility carries with it specific obligations to see that guilt is decided upon the basis of sufficient evidence…further a prosecutor should intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutors case or aid the accused. “See Commentary to Rule 3.8 of the North Carolina Rules of Professional Conduct. And “The prosecutor’s duty in a criminal prosecution is to seek justice. Although he or she should prosecute with earnestness and vigor, he or she [may not, use improper] methods calculated to produce a wrongful conviction.” State v. Williams, 65 N.C. App. 472, 310 S.E. 2d 83 (1983). Generally the use of such methods is grounds for [mistrial or reversal] of a conviction if it results in an unfair trial in violation of the due process clause.
(B).
(“Post Hoc Ergo Propter Hoc”)
Additionally petitioner contends that the Trial Court’s failure to make inquiry mandated under the express provisions of N.C. G.S. 15A-1242 when defendant made a motion to proceed pro se, was unconstitutional in violation of the rule of Faretta v. California, and also State v. Mems, in that the judges decision to avoid the mandatory inquiry after defendant’s request to act as his own counsel, and have counsel as standby counsel constituted error prejudicial to defendant. The law is clearly established that before allowing a defendant to waive in-court representation by counsel, the Trial Court must insure that constitutional and statutory standards are satisfied.
The statue provides: A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the Judge makes thorough inquiry and is satisfied the the defendant:
(1) Has been clearly advised of his rights 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. N.C. G.S. 15A-1242 (2002).
The inquiry under N.C. G.S. 15A-1242 is mandatory, and failure to conduct it is prejudicial error. State v. Pruitt, 322 N.C. 600, 603, 369 S.E. 590, 592 (1988). In the instant case, it’s clear from the record that, defendant’s request to proceed in Pro Pria Persona was clear and unequivocal. However, rather than clarifying the options available to defendant, Judge (Ola M. Lewis) interpreted defendant’s statements as a request to proceed Pro Se, and thereafter permitted defendant to so proceed, in that, defendant was allowed to argue his case and present relevant case law in support of his argument. When the Trial Judge permitted defendant to proceed in his own defense, it can be inferred that Judge granted defendant’s request to proceed, Pro Se, while allowing his trial counsel to remain as standby counsel, as it is the Trial Court’s discretion pursuant to G.S. 15A-1243. “A Trial Court faced with a Pro Se defendant may appoint standby counsel.” See N.C. G.S. 15A-1243 (2002). However, when the Trial Judge elected to allow the proceeding to continue with defendant acting as his own counsel, without conducting the required inquiry was prejudicial, in that, the Trial Court abused it’s discretion in that instance. (2T. PP. 254-57) However, defendant argues that, when he addressed himself to the Trial Judge and requested to present an argument, including relevant case law, and to keep trial counsel as an advisor, at that point in the exchange, the Judge was duty bound to conduct a thorough inquiry to avoid confusion and to satisfy constitutional standards as established under G.S. 15A-1242. Further, it can be inferred from defendant’s statement in full, that he wished to represent himself at that point in the exchange, as defendant stated: Mr. Ford: He’s just been advised as far as I’m concerned, Ma’am. We have discussed this prior to this event—apart from this trial we’ve had discussions. And I acted not to do it at this time because I knew due to the circumstances of this case and the witnesses that would be testifying it would look biased under the cross examining so I chose not to represent myself at that time. (2T. PP. 254-Line 9)
Here, defendant asserts that he and trial counsel had discussed that he would represent himself, Pro Se, and that he would address the Court for permission to do so, in which the above exchange ensued between the Trial Judge and defendant. Thus, defendant argues that is his request for self-representation was not clear to the Trial Court, that it was made clear by trial counsel’s statement to the Judge, regarding defendants’ request to act as his own counsel. (2T. PP. 257 – Lines 15 thru 18).
Contrary to the states contention that the Judge determined and/or correctly concluded that, defendant had discussed with his counsel what he wanted to present to the Court, and that defendant’s request had been satisfied. Defendant maintains that the Judge could not have determined what was discussed between him and trial counsel or could not have correctly concluded that defendant’s request had been satisfied, without conducting the proper inquiry under G.S. 15A-1242, especially, in light of trial counsels’ request that the Judge make a ruling on defendants’ “Request to act as his own counsel”. Therefore, defendant contends that his request to proceed, Pro Se, was clear and unequivocal, however, the trial Judges failure to conduct the proper inquiry resulted in error prejudicial to defendant, when his absolute right to elect to proceed in the trial of his case, as his own counsel, was denied.
“It is well settled in North Carolina that a defendant has a right to handle his own case without interference by, or the assistance of, counsel forced upon him against his wishes”. See State v. Mems, 281 N.C. 658, 670-71, 190 S.E. 2d 164, 172 (1972).
Further, the United States Supreme Court has clearly established a defendant’s federal constitutional right to proceed, Pro Se, in Faretta v. California, 422 U.S. 806, 45L, Ed. 2d 567 (1975). Therefore, defendant asserts that in order to determine his intentions with regard to self-representation, the Trial Court was under the express mandate of G.S. 15A-1242, to conduct a thorough inquiry. “Given the fundamental nature of the right to trial counsel, we ought not to indulge in the presumption that it has been waived by anything less than an express indication of such an intention”. State v. Hutchins, 303 N.C. 321, 339, 279 S.E. 2d. 788, 800 (1981).
(C).
The Trial Court’s decision denying defendant the right to self-representation violated defendants’ constitutional rights under both the United States and North Carolina Constitutions.
A criminal defendant has a constitutional right to the assistance of competent counsel in his defense. Gideon v. Wainwright, 372 U.S. 335 (1963). Implicit in defendants’ constitutional right to counsel is the right to refuse the assistance of counsel and conduct his own defense. (See) Faretta v. California, 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)
In this case sub judice, it is clear from the record and defendant contends that after his clear and unequivocal request to act as his own defense, the Trial Court erred in denying said request, impeding the absolute right of the defendant, in that, the statement made to the Trial Court constituted a motion to proceed, Pro Se:
Mr. Ford: Your Honor, with all due respect to your Court, I don’t mean to interrupt your process, but as this time there’s something that I must say. And I do- - I am fully aware that anything I say and do will be held against me in this Court because it is a law, the fine law of true justice, at this time I do not wish to dismiss my counsel, but I wish to act upon my own free will with full knowledge of knowing everything that I have to say in this Court will be taken into consideration and used against me. At the same time I would like to keep my counsel as advisor, but yet, I have something I feel is pertinent to my case that I must present to you now. And the only way I can do this is to go on record before this Court. (2T. PP. 253-54, L.20)
Here, at this point in the exchange, defendant argues that it is clear and/or can be inferred that he determined and understood the consequences of his decision to proceed, Pro Se, and that he voluntarily and intelligently wished to do so at that time. “The waiver of counsel, like the waiver of all constitutional rights, must be knowing and voluntarily, and record must show that the defendant was literature and competent, that he understood the consequences of his waiver, and that, in waiving his right, he was voluntarily exercising his own free will.” State v. Thacker, 301 N.C. 348, 271 S.E. 2d. 252 (1980).
“It is true that the issue is not whether the defendant has the skill and training to represent himself adequately but whether the defendant is able to understand the consequences of waiving court appointed counsel and representing himself. “State v. Brooks, 49 N.C. App. 14, 270 S.E. 2d. 592 (1980). Therein, defendant maintains that the statements made to the Trial Court amounted to the language proscribed under G.S. 15A-1242:
The Court: Do you want to at least tell your lawyer what it is first?
Mr. Ford: He’s just been advised as far as I’m concerned, Ma’am. We have discussed this prior to this event- - apart from this trial we’ve had discussions. And I acted not do it at this time because I knew due to the circumstances of the case and the witnesses that would be testifying it would look biased under the cross examining so I chose not to represent myself at that time. (2T. PP. 254, L. 9 thru 15)
The Court: “Okay. Can I make my ruling first before I…? (2T.PP.254, L.16-17)
Here, defendant asserts that from the above statement of the Court, that it can be inferred that the Trial Judge had contemplated conducting the inquiry required by G.S. 15A-1242, however, failed to do so, permitting defendant to proceed Pro Se:
Mr. Ford: Ma’am, if you would allow me to introduce, I have some relevance, some case law here, which is true divine law that I would like to enter which is- - I mean, I respect everything Mr. Prosecutor says. (2T. PP. 254, L. 18-21)
The Court: I’ll see what you have Mr. Sheriff, you can bring it to me. I’ll let you see it, Mr. Berk, just let me read it, please, Sir. Let Mr. Berk read what the defendant has presented, please. We’ll make it a part of the court
file.
Mr. Ford: Your Honor?
The Court: Just a minute. Give the prosecutor an opportunity to read it, Sir. And at this point he has an opportunity to respond. “Do you want to make some further argument about it”?
Mr. Ford: Yes, I wish to elaborate on the motion.
The Court: “Stand up”. (2T. PP. 254-57)
Here, defendant argues that, in light of the above exchange, the Trial Judge permitted defendant to proceed Pro Se, rather than clarifying the options available to defendant proscribed under G.S. 154A-1242. In State v. Pruitt, the North Carolina Supreme Court held: “The Trial Court erred in allowing defendant to represent himself and defendant was therefore entitled to a new trial”. State v. Pruitt, 322 N.C. 600, 603, 369 S.E. 2d. 590(1988); State v. Dunlap, 318 N.C. at 388-89, 348 S.E. 2d at 804. See also State v. Robinson, 290 N.C. 56,64-67, 224 S.E. 2d. 174, 178-80 (1976) (Trial Court’s adoption of a “Middle course of legal representation prejudiced defendant).
In the instant case, defendant maintains that there was “A scintilla of the evidence that he wished to represent himself, and the Court’s failure to conduct a thorough inquiry mandated by the express provisions of G.S. 15A-1242, before denying defendants’ motion to act in his own defense, Pro Se, was prejudicial and violated defendants’ rights to self-representation under the 6th Amendment of the U.S. Const. and Art. I, Sec. 23 of the N.C. Constitution. “The Court should have determined whether defendant actually desire to conduct his own defense”. State v. Sweezy, 291 N.C. 366, 230 S.E. 2d. 524 (1976) Id at 372.
(D).
Thus defendant contends that…
The Court of Appeals decision, relying on State v. Geralo, in holding that defendant’s comments, in the case at bar, did not amount to a clear indication of his desire to have counsel removed and proceed Pro Se is misplaced.
Defendant respectfully submits that the Court of Appeals ruling misconstrued the plain and unequivocal language of the North Carolina Supreme Courts decision in State v. Gerald, 304 N.C. 511, 519, 284 S.E. 2d. 312, 317 (1981).
Specifically, defendant asserts that his case is distinguishable from Gerald; therefore his case must be considered on its own merits. See Gerald, 304 N.C. at 518. In the present case, the record clearly shows intimation that defendant desired to represent himself, and that the Trial Court permitted defendant, to proceed Pro Se, without making any inquiry regarding the admitted discussions between defendant and counsel, which would have revealed problems with trial counsel, necessitating the need for further inquiry as to whether defendant wished to conduct his own defense. On the record, defendant clearly stated to the Trial Judge:
Mr. Ford: At the same time I would like to keep my “Counsel as Advisor”, but yet, I have something I feel is pertinent to my case that I must present to you now. And the only way I can do that is to “Go on record before this Court”.
The Court: Do you want to at least tell your lawyer what it is first?
Mr. Ford: He’s just been advised as far as I’m concerned, Ma’am. We have discussed this prior to this event- - apart form this trial we’ve had discussions. And I acted not to do it at that time because I knew due to the circumstances of the case and the witnesses that would be testifying it would look biased under the cross examining so I chose not to “Represent myself at that time”. (2T. PP. 254, L.9 thru 15.)
Trial Counsel: “Judge, … As I heard it…He wanted to act as his own counsel and have me as advisory counsel”. The Court: “That motion is denied”
Here, defendant argues that from the above intimation, it’s clear and unequivocal that he indicated that he wished to conduct his own defense, warranting the need for a thorough inquiry required under G.S. 15A-1242. There exists, reasonable belief, that defendant considered and, in fact, was waiving his constitutional right to counsel and intended to conduct his own defense. Distilled to its essence, the Court of Appeals decision based its adverse ruling on the failure of defendant to give a clear indication of his desire to proceed Pro Se, citing State v. Gerald, 304 N.C. at 518, 284 S.E. 2d. at 317 as the sole authority for its decision. Such a holding, if allowed to stand, would undermine this Courts decision in Gerald. As defendants contends that Gerald is not controlling here.
In Gerald , it’s clear that defendant (Gerald) made no statement from which the Trial Court could infer or conclude that Gerald wished to represent himself. It is apparent from the record that Gerald was in an irrational state of mind, suffering from anxiety and only confused about what his lawyer was doing at that point in the trial proceeding. Gerald , stating that, “I don’t want no lawyer…might as well get it over with”, was not a clear indication of self-representation to invoke the Trial Courts duty to further inquiry under the mandate outlined in G.S. 15A-1242.
In Gerald, the following exchange ensued:
The Court: All right. Mr. Gerald, what is it you wanted to say?
Gerald: Sir, I don’t mean any harm, sir.
The Court: Right.
Gerald: Lots of times, I don’t even know what I’m doing or saying, but sir, I don’t even want no more lawyer. I don’t need to lawyer. I just rather for it to be like it is. I rather it be like it is. The jury come on in and whatever, or whatever, and then in the jailhouse, it’s running me crazy, sir. I don’t know, but I rather for it to be like it is. I don’t want to lawyer.
The Court: Well, you understand that right now we are just in the process of picking a jury, and your lawyer is doing the best he can.
Gerald: Sir, it’s running me crazy in here, sir. It’s running me crazy, making me dizzy and drunk in the head.
The Court: What is?
Gerald: Sitting in here waiting and worrying.
The Court: Well, I can appreciate the waiting and worrying, but we are now getting started in the trial, and it will be over pretty soon, now. Any particular reason why you say you don’t want a lawyer?
Gerald: Sir, I have all kind hallucinations in my head.
The Court: What kind of-
Gerald: My mind all fill up with Jesus Christ and all of the hallucinations in my mind. “I don’t want to lawyer.” I just rather do what you going to do, and do whatever-
The Court: Well, Mr. Chavis has been appointed to represent you, and has been representing you for some time, and I’m sure he’ll do a good job for you, and certainly, I believe you would be much better off having a lawyer, so don’t you think we ought to just go ahead and proceed with the trial as we are?
Gerald: Sir, I don’t know what to think. I don’t understand. I’m trying to understand the lawyer and what he’s saying, “But I don’t even understand what he’s talking about.” All the people over there, while ago, all that, then he took them down. “Might as well get it over with.”
The Court: Well, we are just about to do that. See, he has a right to excuse as many as six jurors, just as he lawyer for the State does, so he’s just trying to get a jury that he thinks would be the best for you. He’s trying to look after you. “You understand that, don’t you?”
Gerald: “I believe I do, Sir.”
The Court: All right. You ready to go ahead? You want us to go ahead, now, with the trial?
Gerald: “Yes, Sir. Yes, Sir.”
The court: All right. Bring the jury back in. (See Gerald, 304 N.C. at 515-16 for this exchange)
Here, defendant asserts that the trial court’s inquiry of Gerald only served to help Gerald understand what his lawyer was doing at that point in the trial phase. Therefore, by its express terms, Gerald dealt only with a confusion and/or misunderstanding with regard to the miscommunication between Gerald and his lawyer, wherein, the Gerald Court held: “In the case at bar the Trial Judge did make an inquiry, out of the presence of the Jury, to determine the nature of the defendant’s problem. He then proceeded to assuage defendant’s anxiety and reassure him that his counsel was representing him well. “On the facts of this case,” no further inquiry was necessary. “None of the factors that would trigger a hearing in accord with G.S. 15A-1242 were present.”
Thus, in the case sub judice, defendant contends that the facts of his case are inherently distinguishable from that of the facts in Gerald, in that, in the instant case, the Trial Judge failed to make “any inquiry” when defendant addressed the Court, requesting that he be permitted to go on record and that his lawyer be kept as advisory counsel, thereby, indicating that he wanted to conduct his own defense. In Gerald, however, the Trial Judge did at least inquire with regard to Gerald’s comment that he did not want a lawyer. This court has consistently admonished the courts by holding that: “It would have been the better practice to determine whether defendant actually desired to conduct his own defense.” State v. Sweezy, 291 N.C. 366,230 S.E. 2d 524 (1976)
In the instant case, defendant maintains that from his courtroom behavior and the intimation clearly indicated his bona fides to conduct his own defense and to have his lawyer removed to advisory counsel. (See defendant’s exchange with trial Judge, Supra, and Transcript attached herein.) (2T. pp.253-57).
Further, it’s clear from the record that defendant was competent to conduct his own defense, as he was prepared, properly addressed the Court and the Court permitted him to proceed in his own defense, allowing him to argue his case and present relevant law, which amounted to self-representation. On the other hand, Gerald, was not capable of conducting his own defense and only indicated that he was hallucinating and misunderstood his lawyer.
Such a distinction between the facts in the instant case and that of Gerald, and the Court of Appeals decision overruling defendant’s claim of self-representation, in light of Gerald, unavoidably alter the supreme courts decision in Gerald. Thereby, the court of appeals decision in applying Gerald to the instant case allowed an egregious violation of constitutional and statutory mandate to go uncorrected.
Upholding the decision of the Court of Appeals here would eviscerate defendant’s constitutional right to self-representation, which forms a cornerstone of our criminal justice system. This Court should therefore reverse the decision of the Court of Appeals in order to correct the Court of Appeals unduly restrictive application of important Constitutional Doctrine.
(Conclusion)
Since the prosecutor applied an illegal standard through a misapplication of law in violation of defendant’s due process rights protected and guaranteed under the Fourteenth Amendment to the United States Constitution, which misled the jury to convict an innocent man, and that the Trial Court failed to conduct any inquiry, when it was addressed by the defendant pursuing his own defense, as was it’s duty under the express constitutional standards established under G.S. 15A-1242. And since the Court of Appeals’ decision in applying Gerald as controlling in the instant case is misplaced, petitioner respectfully request that this Court stay the order of the N.C. Court of Appeals, and set aside his conviction and dismiss all charges, or in the alternative this court order a new trial.
(Relief Sought)
Petitioner prays this Honorable Supreme Court will grant his petition for Writ of Supercedeas and stay the order of the N.C. Court of Appeals to prevent the Miscarriage of Justice and order petitioner a new trial and or dismiss the charged offenses, as is the Courts inherent authority pursuant to N.C. G.S. 15A-1447 (a), (c), and (G).
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