STATE v. ROBERT BINES, 263 N.C. 48

Higgins, J. The defendant raises three questions on this appeal:

(1) Did the court violate the defendant’s constitutional rights by permitting the State to proceed against the defendant after the two co-defendants had withdrawn their pleas of not guilty and entered pleas of guilty during the trial?

(2) Did the court violate defendant’s constitutional rights by failing to reiterate the seriousness of the charges and to allow him to reconsider his waiver of counsel after the other defendants had changed their pleas?

(3) Did the defendant intelligently and understandingly waive his right to have counsel appointed for his defense? The record discloses that Judge Hobgood was careful to advise the defendant of the charges against him and the permissible punishment in case of conviction. With this full understanding, the appellant waived appointment of counsel and stated his desire to appear in all respects in his own behalf. The defendant’s waiver of counsel in this case is not the act of an immature or inexperienced person unfamiliar with criminal court procedure.

According to his own admission, he had served eight prison sentences totaling approximately 20 years as a result of convictions for violations of criminal laws dating back to 1936. “The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v.

Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L. ed. 1461. “The record must show, or there must be an allegation in evidence which shows, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” Carnley v. Cochran, 369 U.S. 506, 82A S.Ct. 884, 8 L. ed. 2d 70. “The constitutional right (to counsel), of course, does not justify forcing counsel upon an accused who wants none.” Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L. ed. 2d 167; Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L. ed. 126.

The court did not commit error in permitting the defendant to begin the trial in this case without counsel, in view of his intelligent, specific, and unequivocal waiver. G.S. 15-4.1. Did the court commit error in permitting the State to continue the case against the appellant after McClain and Bost changed their pleas? The appellant had no right to require the co-defendants to continue their unequal contest with the State. The course of the trial, insofar as the appellant was concerned, did not change in any respect. Neither of his co-defendants testified for the State.

Their pleas of guilty did not deprive the appellant of any evidence otherwise available to him. We may speculate upon the probable effect the two pleas had on the jury. However, legal rights ordinarily are not based on speculation. There is no suggestion the State made a deal with McClain and Bost in return for their change, of pleas. Neither testified. Both were given prison sentences of five to seven years. The appellant’s sentence was from eight to ten years. His horrible criminal record could easily account for the difference.

The appellant having stated under oath that he did not want counsel and preferred to conduct his own defense, the court was warranted in permitting him to continue unless and until he gave indication that he preferred a different course. It was up to him to make an appropriate move to that end. When the jury was impaneled in his case, jeopardy attached. For the court of its motion to order a mistrial unless at his instance, would raise" a serious question whether he could be tried again for the same offense. State v. McIntosh, 260 N.C. 749, 133 S.E. 2d 652; State v.

Birckhead, 256 N.C. 494, 124 S.E. 2d 838; State v. Barefoot, 241 N.C. 650, 86 S.E. 2d 424. The State did not offer any evidence made available by the pleas of guilty. The defendant was not deprived of any evidence by reason of those pleas. Careful examination of the assignments of error and inspection of the record proper fail to disclose error of law in the trial. No error.