Unpublished Opinion No. 2003-UP-014
Submitted October 22, 2002 – Filed January 7, 2003

PER CURIAM: A jury convicted Martin Walter Lucas of felony resisting arrest. The trial judge sentenced Lucas to ten years imprisonment, with credit for thirteen and a half months already served.

On September 4, 1999, Officer Stoneburner went to a camper/trailer on South Sutton Road in Fort Mill to investigate an incident involving Lucas. Outstanding warrants existed for Lucas’s arrest. While Stoneburner was inside speaking with the trailer’s two occupants Lucas entered the door and charged at Stoneburner. Stoneburner pushed Lucas back to create space between the two of them. Stoneburner told Lucas he was under arrest and called for assistance on his hand-held radio.

Lucas charged Stoneburner again, this time grabbing for Stoneburner’s gun. Stoneburner used his right hand to lock Lucas’s hand down on the holster to prevent the gun from coming out of the holster. With his left hand, Stoneburner struck Lucas once on his head/neck area and again on Lucas’s forearm, thus causing Lucas to release his hold on the holster. Stoneburner pushed Lucas away and pulled out his pepper spray and sprayed it. Lucas charged again, grabbing Stoneburner’s hand holding the pepper spray. The two struggled over the pepper spray as Stoneburner commanded Lucas to stop resisting and get on the ground. The pepper spray caused Lucas to slow down and quit fighting. Stoneburner took control and forced Lucas on the ground and handcuffed him. Stoneburner held Lucas down by standing on Lucas’s hands until his backup arrived on the scene.

The State presented only the testimony of Officer Stoneburner. Lucas did not present any defense. The jury convicted Lucas of felony resisting arrest. Lucas, appearing pro se, now appeals.

Lucas argues his due process rights and his right to “personally manage and conduct his own defense” were violated when Lucas was compelled to choose between proceeding to trial with his appointed counsel or proceeding pro se without adequate access to legal materials necessary to prepare a defense.

On November 7, 2000, Lucas, accompanied by defense counsel, appeared at a hearing before the circuit court [1] because Lucas had expressed dissatisfaction with his attorneys’ services and indicated he wished to represent himself. Lucas indicated his dissatisfaction arose from a lack of communication between himself and his attorneys. Lucas admitted he had spoken with one of his attorneys on two occasions and had also spoken numerous times with an investigator from the Public Defender’s office. Lucas’s counsel indicated any alleged lack of communication did not pose a problem in their preparation for trial on Lucas’s charges.

The judge stated in his opinion it would be a serious mistake for Lucas to represent himself given his attorneys’ experience level and their commitment to vigorously represent their clients. The judge inquired into Lucas’s education, background, and experience with criminal trials and noted Lucas’s articulation and understanding of the issues involved but warned Lucas that subtle issues might arise that only trained attorneys would be prepared for. See Wroten v. State, 301 S.C. 293, 391 S.E.2d 575 (1990) (stating a defendant must be made aware of the dangers and disadvantages of self-representation so that the record will establish he knows what he is doing); Faretta v. California, 422 U.S. 806 (1975) (holding a defendant must knowingly and intelligently forgo the benefits of counsel; a valid waiver of counsel is established if the defendant is advised of his right to counsel and is adequately warned of the dangers of self-representation).

The judge gave Lucas two options: (1) dismiss appointed counsel and proceed pro se, or (2) continue with appointed counsel. Before choosing, Lucas asked the judge whether he would have adequate access to a law library if he decided to proceed pro se. The judge could not answer this and deferred to the solicitor concerning the county’s practice for access to legal materials. The solicitor acknowledged access was limited. The judge and the solicitor both agreed limited access to the library was a “problem.” Lucas decided to proceed with appointed counsel.

Initially, it appears Lucas’s argument is not preserved for review. Lucas did not present this issue to the judge presiding over his trial. Issues neither presented to nor ruled upon by the trial judge are deemed waived and cannot be considered by this Court for the first time on appeal. See State v. Newton, 274 S.C. 287, 293, 262 S.E.2d 906, 910 (1980) (“Questions which are not presented to or passed upon by the trial judge cannot be raised for the first time on appeal and are consequently waived.”). Lucas made his decision regarding representation in a hearing three weeks prior to trial. By not raising this issue before the trial judge Lucas has waived this issue. Cf. State v. Cash, 304 S.C. 223, 403 S.E.2d 632 (1991) (addressing issue of whether defendant knowingly and intelligently waived the right to counsel; defendant did not raise this issue to the trial judge); State v. Rocheville, 310 S.C. 20, 25 n.4, 425 S.E.2d 32, 35 n.4 (1993) (recognizing the Cash exception to the general rule requiring a contemporaneous objection).

In any event, any alleged error by the judge in “compelling” Lucas to choose between appointed counsel and proceeding pro se did not prejudice Lucas or deny him of due process. Lucas’s decision to proceed with appointed counsel, even considering Lucas’s claim of communication breakdowns, was surely more beneficial than harmful. Cf. Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 161 (stating even in ineffective counsel cases, “it is reasonable to assume that counsel’s performance is more effective than what the unskilled appellant could have provided for himself”). The judge did not force appointed counsel upon Lucas. See Faretta, 422 U.S. at 807 (finding a State may not constitutionally hale a defendant into court and force a lawyer upon him, even when the defendant insists on conducting his own defense).

Lucas cites federal cases standing for the proposition that a defendant who exercises his right to self-representation under Faretta should not have to subject himself to the possibility that there will be no meaningful opportunity to prepare a defense. See Milton v. Morris, 767 F.2d 1443 (9th Cir. 1985) (finding a defendant’s right to make a defense is denied where a defendant chooses to represent himself and is completely thwarted in his efforts to prepare a defense because of inadequate access to the telephone and up-to-date legal materials). By deciding to proceed with appointed counsel Lucas makes it unnecessary for this Court to review whether he had adequate access to legal materials necessary to prepare a defense.

Lucas also argues a decision between incompetent or unprepared counsel and appearing pro se is a “dilemma of constitutional magnitude.” This argument is without merit. The judge found Lucas’s counsel to be prepared and competent.

Lucas argues the trial judge should have granted his motion to consolidate for trial several charges arising within days of each other. Lucas’s charge for resisting arrest arose on September 4, 1999. Warrants had been issued for Lucas’s arrest for crimes committed three days earlier on September 1, 1999. Lucas argues the offenses committed on September 1, 1999, should have been tried together with the resisting arrest offense to prevent a “fragmented” case allowing the State to avoid the entry of exculpatory evidence. [2]

State v. Thrift, 312 S.C. 282, 291-92, 440 S.E.2d 341, 346 (1994); see also State v. Tyndall, 336 S.C. 8, 18, 518 S.E.2d 278, 283 (Ct. App. 1999) (the resisting arrest statute “does not mandate the underlying arrest be prosecuted as a prerequisite for the indictment, prosecution, or conviction of resisting arrest”). Lucas’s defense counsel argued at trial the consolidation of the charges “would explain the presence of the police officers.” This argument is without merit in light of Lucas’s offer to stipulate to probable cause for the underlying arrest. Moreover, defense counsel did not object when Officer Stoneburner was asked about his knowledge of outstanding warrants for Lucas’s arrest.

Lucas also argues the solicitor avoided the introduction of an exculpatory letter and accompanying eyewitness testimony by the letter’s author by failing to consolidate the charges. Lucas asserts the solicitor did not disclose the existence of the letter. There is no merit to these contentions. Lucas’s defense counsel noted on the record the solicitor’s compliance with the discovery requirements of Brady v. Maryland, 373 U.S. 83 (1963). Moreover, Lucas did not present a defense. Lucas would have been free to call the eyewitness to testify in his defense.

The trial judge did not err in refusing to grant Lucas’s motion to consolidate.

Lucas argues the trial judge erred by denying his motion for a directed verdict given there existed no competent evidence of his guilt for resisting arrest.

The jury convicted Lucas of violating S.C. Code Ann. § 16-9-320(B) (Supp. 2001), which provides:

“In reviewing the denial of a motion for a directed verdict, the evidence must be viewed in the light most favorable to the State.” State v. McGowan, 347 S.C. 618, 622, 557 S.E.2d 657, 659 (2001). “If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, an appellate court must find that the case was properly submitted to the jury.” Id.

Lucas argues a directed verdict should have been granted because the “physical facts” did not support a guilty verdict. Lucas asserts Officer’s Stoneburner’s testimony concerning the altercation cannot be given any credence given the State did not produce any evidence of bruises, scratches, or cuts on Lucas or Officer Stoneburner. Lucas also contends a directed verdict was warranted because the State did not produce evidence of any broken or damaged property within the small confines of the camper/trailer. Lucas’s argument merely concerns the weight and credibility of Officer Stoneburner’s testimony. In the light most favorable to the State, Officer Stoneburner’s testimony provided direct evidence of a willful assault on a law enforcement officer while the officer attempted to arrest the defendant. Stoneburner’s marked patrol car was parked outside the camper and Stoneburner was dressed in his police uniform. Stoneburner testified Lucas charged at him repeatedly, even after Stoneburner told Lucas he was under arrest. The trial judge did not err in refusing to grant a directed verdict.

[1] Lucas appeared at the hearing before a different judge than the judge presiding at Lucas’s trial.

[2] As an initial matter, Lucas contends his due process rights were violated by not being allowed to attend a pretrial in camera hearing on the motion to consolidate. This issue was not raised before the trial judge and should not be addressed on appeal. State v. Huggins, 336 S.C. 200, 519 S.E.2d 574 (1999) (stating an issue may not be raised for the first time on appeal).