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Criminal Practice – Right to Counsel – Waiver – Drug Paraphernalia – Jury Instructions – ‘Weigh’

State v. Tomlinson (Lawyers Weekly No. 15-16-0865, 22 pp.) (Martha Geer, J.) Appealed from Nash County Superior Court (Quentin Sumner, J.) N.C. App. Unpub.

Holding: Defendant validly waived counsel during his district court proceedings, so when he appealed to superior court, the superior court judge only needed to make sure defendant hadn’t changed his mind. Superior Court Judge Sumner was not required to make the full counsel inquiry set out in G.S. § 15A-1242.

We find no error in defendant’s conviction of possession of drug paraphernalia.

Defendant has not suggested that his waiver in district court was inadequate. The waiver in district court was entitled to a presumption of correctness throughout all of defendant’s proceedings, and defendant has failed to rebut this presumption.

Defendant argues that, in district court, he withdrew his written waiver by moving to allow “TJ Al Malikei … to ‘present’ him in this case….” To withdraw a waiver of counsel, a criminal defendant must move or ask the trial court to withdraw a previous waiver of counsel.

Defendant’s motion to allow TJ Al Malikei to represent him was essentially a motion to allow defendant to choose his representation. While an essential element of the right of assistance of counsel is the right to retain counsel of the accused’s choice, this right is circumscribed in that, regardless of his persuasive powers, an advocate who is not a member of the bar may not represent clients (other than himself) in court.

The reason the district court denied defendant’s motion was because “TJ Al Malikei” was not authorized to practice law in any United States jurisdiction. Defendant does not contest this finding, and there is nothing in the record to the contrary. Because defendant’s motion did not ask for appointed counsel or the ability to retain counsel admitted to practice in North Carolina, the motion was consistent with defendant’s waiver of his right to the assistance of counsel made before District Court Judge Stewart. Therefore, it could not be construed as a withdrawal of that waiver. Accordingly, Judge Sumner did not err in allowing defendant to proceed pro se.

Defendant also contests the superior court’s jury instructions. The state moved to amend the pattern instructions by substituting “weigh” for “repackaging” as the use to which defendant put the digital scales found in his house. Defendant expressed his satisfaction with this amendment.

Even if defendant’s jury instruction arguments were properly before this court, he has not shown error. Although the list of drug paraphernalia uses in G.S. § 90-113.22(a) does not include weighing, G.S. § 90-113.21(a)(5) includes in its definition of “paraphernalia” “[s]cales and balances for weighing or measuring controlled substances….”

Finally, defendant was charged with possessing paraphernalia described as “DIGITAL SCALES to repackage a controlled substance.” Using a scale to “weigh” a controlled substance is reasonably seen as part and parcel with using it to “repackage” the substance. Therefore, there was not a variance between the arrest warrant and the instructions.

No error.

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