# State v. Bass > Supreme Court of North Carolina · February 9, 1972 · 280 N.C. 435 URL: https://www.frixlaw.com/law-library/cases/9883570 ## Case - **Full name:** State of North Carolina v. Michael Bass and Gregory Alexander Barrett - **Court:** Supreme Court of North Carolina - **Decided:** February 9, 1972 - **Citations:** 280 N.C. 435; 186 S.E.2d 384; 1972 N.C. LEXIS 1264 - **Precedential status:** Published - **Opinion:** Concurrence by Lake - **Judges:** Robert Morgan - **Cited by:** 83 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9883570 ## How later opinions describe it (automated extraction) - holding that testimony identifying the jacket the defendant was wearing at his arrest as similar to that of the perpetrator was relevant and admissible ## Opinion text Justice Lake concurring in result. Had the superior court erred, as the majority opinion states, in admitting evidence of the lineup identification, I would concur in the majority’s conclusion that this was harmless error and not ground for granting Bass a new trial. In my opinion, there was no error in the admission of this evidence. The majority opinion states: “At all times pertinent to this case, an indigent defendant in a capital case could not waive the right to counsel *455 either orally or in writing. See 1969 Session Laws, Chapter 1013, § 1, codified as G.S. 7A-457; State v. Lynch, 279 N.C. 1 , 181 S.E. 2d 561 (1971).” I am unable to concur in this statement by the majority which is the foundation for its conclusion that there was error in admitting testimony of identification of Bass by Miss Garner at the lineup. Notwithstanding the amendment to G.S. 7A-457 by Chapter 1243 of the Session Laws of 1971, this statement in the majority’s opinion may well have a far reaching effect in other cases in which the offense occurred prior to the amendment. In no case has this Court ever set aside a conviction in reliance upon G.S. 7A-457. In State v. Lynch, 279 N.C. 1 , 181 S.E. 2d 561 , cited by the majority in support of its statement herein, a new trial was ordered for the reason that the trial judge, by his method of overruling objections made by the defendant’s counsel, may have expressed an opinion as to the credibility of witnesses and thus prejudiced the defendant’s cause with the jury. The discussion of G.S. 7A-450 et seq., in the Lynch opinion, was not necessary to that decision. The Lynch case may not, therefore, be deemed a decision of this Court as to the validity or the effect of those statutes. In State v. Doss, 279 N.C. 413 , 183 S.E. 2d 671 , this Court said that the trial court had erred in admitting a statement made by the defendant at an in-custody interrogation following his written waiver of counsel at such interrogation, the court saying that such waiver was in violation of G.S. 7A-457 (a). However, in the Doss case, as here, this Court affirmed the sentence on the ground that the error was harmless. In State v. Chance, 279 N.C. 643 , 185 S.E. 2d 227 , the State did not offer, in the presence of the jury, evidence that the victim had identified the accused at a lineup. The question was as to the admissibility of the victim’s in-court identification of the accused as her assailant. This Court took note of the existence of G.S. 7A-457, but held that the trial court was correct in its conclusion that the in-court identification in that case was competent and said that, in any event, the alleged error was harmless. Following the proper holding of a voir dire, the trial court found that Bass was specifically advised by the officer of his right to have a lawyer present before going into the lineup, that he indicated to the officer that he was willing to partici *456 pate in the lineup without a lawyer present and “would call his lawyer in the morning,” and that he “freely and voluntarily, knowingly and understandingly waived his right to counsel before going into the lineup and thereafter did in fact go into said lineup.” As the majority opinion states, these findings of fact by the trial judge are conclusive, being supported by competent evidence. It is my view that G.S. 7A-457 does not require and does not support a holding that there was error in the admission of the testimony of the identification of Bass at the lineup. There are two reasons for this: (1) The statute does not so require; and (2) the statute, itself, is unconstitutional in forbidding the waiver of counsel by an indigent charged with a capital offense. Assuming the validity of G.S. 7A-457, it does not declare evidence obtained at an in-custody lineup to be inadmissible by reason of the defendant’s not having counsel present to represent him at the lineup, he having freely, voluntarily and understandingly waived his right to counsel orally. We are not here concerned with any violation of the right of the defendant under the Constitution of the United States or under the Constitution of this State to have counsel present to advise and represent him at such lineup. It is established, as the majority observes, that the defendant Bass freely, voluntarily and with full understanding of his constitutional right to counsel, waived that right. Neither Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed. 2d 694 , nor any other decision of the Supreme Court of the United States, nor of this Court, declares an oral waiver of the constitutional right to counsel invalid. We are here concerned solely with the provisions of the State statute. Miranda v. Arizona, supra, and Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed. 2d 1081 , do not hold that state courts may not admit evidence obtained in violation of a state statute. The effect of those cases is limited to the admissibility of evidence obtained in violation of the defendant’s rights held guaranteed by the Federal Constitution. The effect of a disregard of G.S. 7A-450 et seq., upon the admissibility of evidence so obtained must, therefore, be determined by the law of this State. It is well established that the common law of North Carolina does not forbid the admission of evidence unlawfully ob *457 tained but otherwise competent. State v. Colson, 274 N.C. 295, 305 , 163 S.E. 2d 376 , cert. den., 393 U.S. 1087 , 89 S.Ct. 876 , 21 L.Ed. 2d 780 ; State v. Smith, 251 N.C. 328 , 111 S.E. 2d 188 ; State v. Vanhoy, 230 N.C. 162 , 52 S.E. 2d 278 ; State v. McGee, 214 N.C. 184 , 198 S.E. 616 ; Stansbury, North Carolina Evidence, 2d Ed, § 121. See also: Wigmore on Evidence, 3d Ed, §§ 2183-2184a; McCormick on Evidence, § 137; 29 Am. Jur. 2d, Evidence, § 408. A myriad of cases recently decided, relating to the admissibility of evidence obtained by an unlawful search are not in point, first, because these raised a constitutional question under the authority of Mapp v. Ohio, supra, and, second, because G.S. 15-27 and G.S. 15-27.1 expressly provide that evidence obtained in a search made under an illegal search warrant, or without a legal search warrant under conditions requiring a search warrant, is incompetent in the trial of any action. Of course, the Legislature, in an otherwise valid statute, has the authority to change a common law rule as to the competency of evidence. However, there is no provision in G.S. Chapter 7A declaring evidence obtained in disregard of its provisions to be incompetent. In State v. McGee, supra, this Court refused to extend, to evidence obtained by a search without any warrant at all, a statute declaring incompetent evidence obtained by a search under an illegally issued warrant. Pursuant to State v. McGee, supra, we should not interpolate into G.S. 7A-450, et seq., a change of the common law rule of evidence not expressly declared therein by the Legislature. If, however, it be thought that G.S. Chapter 7A should be construed as a legislative declaration that evidence is incompetent if obtained at an in-custody lineup in a capital case, prior to which an indigent defendant knowingly, understandingly and voluntarily waived his right to the presence of counsel, and at which he had no counsel present, the evidence here in question would, in my opinion, nevertheless be admissible for the reason that G.S. 7A-457 is unconstitutional insofar as it forbids such defendant to waive his right to counsel and to represent himself. The defendant’s constitutional right to have counsel at an in-custody lineup or interrogation is now clearly established. Miranda v. Arizona, supra. It is, however, equally well settled that a defendant has a constitutional right to handle his own *458 case without interference by, or the assistance of, counsel forced upon him against his wishes. In State v. McNeil, 263 N.C. 260 , 139 S.E. 2d 667 , Justice Parker, later Chief Justice, said: “The United States Constitution does not deny to a defendant the right to defend himself. Nor does the constitutional right to assistance of counsel justify forcing counsel upon a defendant in a criminal action who wants none. Moore v. Michigan, 355 U.S. 155 , 2 L.Ed. 2d 167 ; Carter v. Illinois, 329 U.S. 173 , 91 l.Ed. 172; United States v. Johnson, 6 Cir. (June 1964), 333 F. 2d 1004 .” In State v. Bines, 263 N.C. 48 , 138 S.E. 2d 797 , Justice Higgins said: “ ‘The constitutional right (to counsel), of course, does not justify forcing counsel upon an accused who wants none.’ Moore v. Michigan [supra]; Herman v. Claudy, 350 U.S. 116 , 76 S.Ct. 223 , 100 L.Ed. 126 .” In State v. Morgan, 272 N.C. 97 , 157 S.E. 2d 606 , this Court said: “Having been fully advised by the court that an attorney would be appointed to represent him if he so desired, he [the defendant] had the right to reject the offer of such appointment and to represent himself in the trial and disposition of his case.” In State v. Williams, 276 N.C. 703 , 174 S.E. 2d 503 , this Court affirmed a death sentence imposed for murder in the first degree upon a defendant who was tried without counsel, pursuant to his declaration that he did not want counsel. Our decision was reversed by the Supreme Court of the United States, but upon another ground and without mention of the defendant’s having been tried without counsel. It not infrequently happens that a defendant is dissatisfied with the counsel appointed for him by the court. While he may not insist that the court appoint a different counsel to represent him, the defendant has the right to insist that his case not be handled by an attorney in whom he has no confidence. If he so desires, he has the right, in that situation, to represent himself. In this there is no distinction between a *459 capital case and any other case. See State v. Williams, supra. If he may represent himself through the intricacies of an actual trial, he surely has the right to look after his own interest at a lineup or at an interrogation free from threats and duress. This right the Legislature may not deny him. Furthermore, G.S. 7A-457 makes an unconstitutional discrimination between indigent defendants and defendants having enough funds to pay for counsel. The statute forbids waiver of counsel by an indigent but leaves untouched the rights of one who is not an indigent to waive counsel in any case, either in writing or orally. Indigency is obviously a sufficient basis for classification with reference to the right to court appointed, publicly paid counsel if desired, but it is not a reasonable basis for classification as to the right to represent one’s self. Poverty is not synonomous with lack of intelligence or even with limited education, and possession of funds does not necessarily mean possession of good judgment or of knowledge of legal procedure. The purpose of the statutory provision for appointment of counsel, at public expense, for indigent defendants is to put indigent defendants on an equality with affluent defendants in trials upon criminal charges. To deny, or to restrict the right of the indigent to waive counsel, i.e., to represent himself, has no reasonable relation to the objective of equal opportunity to prevail at the trial of the case. Such classification is beyond the legislative power. When a special class of persons (indigents) is singled out by the Legislature for special treatment, there must be a reasonable relation between the classification and the object of the statute. Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389 , 48 S.Ct. 553 , 72 L.Ed. 927 ; Power Mfg. Co. v. Saunders, 274 U.S. 490 , 47 S.Ct. 678 , 71 L.Ed. 1165 ; State v. Glidden Corp., 228 N.C. 664 , 46 S.E. 2d 860 ; 16 Am. Jur. 2d, Constitutional Law, § 501. The defendant, with full knowledge of his constitutional right to have counsel at the lineup and not to enter the lineup without the presence of his counsel, waived that right, thereby electing to represent himself at that stage of the pre-trial proceedings. Having so elected, his constitutional right to represent himself was recognized and granted by the officers. Having so asserted his desire to proceed at that stage without counsel, he may not now be heard to say that, because he was permitted to do so, the evidence so obtained by the State was unlawfully *460 obtained and is, therefore, inadmissible. Surely, he may not now be heard to say that the lineup, otherwise conducted free from any error, makes inadmissible the positive, in-court identification by the victim of his alleged criminal act. Consequently, it is my view that there was no error in admitting the testimony that Miss Garner identified the defendant Bass at the lineup and clearly no error in admitting her in-court identification of him, the latter identification being independent in origin and unaffected by the identification at the lineup. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9883570. Public record. Not legal advice.