THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON
PRECEDENT IN NAY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
Rufus Junior Williams, Appellant.
Appeal From Greenville County
John C. Few, Circuit Court Judge
Unpublished Opinion No.
Submitted October 1, 2004 – Filed October 21, 2004
Edward Delane Rosemond, of Seneca, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.
WILLIAMS, J.: Williams was convicted of first-degree burglary and simple assault and battery. He argues on appeal that the trial judge abused his discretion by (1) not allowing him access to the attorney of his choice and (2) admitting portions of a 9-1-1 tape into evidence. We affirm.
On August 25, 2002, Rufus Junior Williams made threatening phone calls to his ex-girlfriend—Smith. Later the same night, Smith heard a noise in the bathroom of her apartment. After discovering that the screen in her bathroom window had been cut open, she called 9-1-1. While on the phone with the 9-1-1 operator, Smith heard another noise in the bathroom and observed Williams walking down the hallway towards her. Smith dropped the phone and ran outside. Williams followed her out of the apartment and hit her on the back of her head, causing her to fall to the ground. Once on the ground, Williams repeatedly hit and kicked Smith until a crowd drew near. Williams then fled the scene and was later arrested.
Williams was charged with first-degree burglary and assault and battery. A public defender was appointed to represent him at trial. After Williams refused to cooperate with the public defender, she filed a motion to be relieved. The trial court denied the motion, requiring Williams to proceed with the public defender.
During trial, the State offered the 9-1-1 tape into evidence. Williams objected to the tape on grounds that it was hearsay, cumulative, and prejudicial. The trial court overruled the objection and allowed portions of the 9-1-1 tape to be admitted into evidence.
The jury found Williams guilty of first-degree burglary and assault and battery. Williams was sentenced to twenty years on the burglary charge and thirty days on the assault and battery charge.
I. We find no error in the trial court’s denial of defense counsel’s motion to be relieved. “A motion to relieve counsel is addressed to the discretion of the trial judge and will not be disturbed absent an abuse of discretion.” State v. Graddick, 345 S.C. 383, 385, 548 S.E.2d 210, 211 (2001) (citation omitted).
The Sixth Amendment guarantees criminal defendants a right to counsel. U.S. Const. Amend. VI; Stevenson v. State, 337 S.C. 23, 26, 522 S.E.2d 343, 344 (1999). Defendants also have the right to secure counsel of their own choice. Powell v. Alabama, 287 U.S. 45, 53 (1932). However, the right to counsel may be waived. In State v. Jacobs, 271 S.C. 126, 245 S.E.2d 606 (1978), our supreme court held that a defendant could waive the right to counsel through his conduct. The court noted that:
[W]here a defendant able to retain counsel has been advised by the court that he must retain counsel by a certain reasonable time, and where there is no showing why he has not retained counsel within that time, the court may treat his failure to provide for his own defense as a waiver of his right to counsel and require such defendant to proceed to trial without an attorney.
Id. at 128, 245 S.E.2d at 607-608 (quoting United States v. Arlen, 252 F.2d 491 (2d Cir. 1958)). In State v. Jacobs, the Appellant never expressly waived his right to counsel. However, the trial court found that the Appellant was on several occasions urged to retain counsel, a phone was made available to him, and additional time had been given him to make arrangements. Id. at 128, 245 S.E.2d at 608. On the day of trial, counsel was not present and Appellant did not name an attorney or indicate when counsel would be available. Id. Therefore, the court held that Appellant had waived his right to counsel by his conduct. Id.
In this case, also through his conduct, Williams waived the right to counsel of his choice. A public defender was appointed on August 29, 2002 to represent him at trial; however, Williams was uncooperative with the public defender. He failed to show up for office appointments and refused to discuss his case or offer any defense. One month before trial was to begin, Judge Kittredge warned Williams that his case would soon be called for trial and that if he wanted to hire a private attorney, he should do so quickly. On the day of trial, Williams alleged he had followed this advice and hired a private attorney. However, Williams first talked to the attorney earlier that same morning and failed to inform the attorney his case was on the trial docket for that day.
Because Williams refused to cooperate with the public defender and failed to hire a private attorney after the court urged him to do so, he waived the right to have the counsel of his choice. Therefore, the trial court did not abuse its discretion by requiring Williams to proceed to trial with the public defender.
II. The trial court did not err in allowing a portion of the Smith’s 9-1-1 tape to be admitted into evidence. “The admissibility of evidence is within the sound discretion of the trial judge.” State v. Mansfield, 343 S.C. 66, 77, 538 S.E.2d 257, 263 (Ct. App. 2000) (citing State v. Patterson, 337 S.C. 215, 522 S.E.2d 845 (Ct. App. 1999)). “Accordingly, evidentiary rulings of the trial court will not be reversed on appeal absent an abuse of discretion or the commission of legal error which results in prejudice to the defendant.” Id.
The 9-1-1 tape contained Smith’s conversation with 9-1-1 dispatchers as the incident was occurring. Williams argues the tape was highly prejudicial and should not have been admitted into evidence. The trial court found that the tape’s probative value outweighed any danger of unfair prejudice. It noted that the tape had significant probative value for two reasons. First, the tape provided a real-time account of the entering and was relevant to the issue of whether or not Williams had the intent to commit a crime at the time of entering. Secondly, the trial court noted that the State was trying to prove assault and battery. An important element of assault is that the victim is placed in fear by the attacker. Thus, screaming on the tape was relevant to show the victim’s fear. Therefore, the trial court found the tape had significant probative value.
Because we feel the trial court clearly set forth the probative value of the tape and made a conscious effort to minimize any prejudicial effect of the tape might have, we find that the trial court did not abuse its discretion by admitting the tape into evidence.
Based on the foregoing reasons, Williams’ convictions and sentences are
GOOLSBY and ANDERSON, JJ., concur.