Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/22/2021
E.g., 09/22/2021

(1) In this sexual assault case the court reversed and remanded for a new trial, finding that even if the defendant had clearly and unequivocally asked to proceed pro se, the record did not establish that the defendant’s waiver of counsel complied with G.S. 15A-1242. The defendant was indicted on multiple sexual assault charges. He later was found to be indigent and Timothy Emry was appointed as counsel. Emry later moved to withdraw claiming that he and the defendant were at an impasse regarding representation. He asserted that the defendant was unwilling to discuss the case with him and the defendant was upset with Emry to asking him to sign a form acknowledging that he understood a plea offer and the consequences of taking or rejecting the plea. At a January hearing on the motion, the State asserted that if Emry was allowed to withdraw, the defendant would be on his fourth lawyer. Emry however clarified that this was inaccurate. The trial court told the defendant that he could have Emry continue as counsel, have the trial court find that the defendant had forfeited his right to counsel, or hire his own lawyer. The defendant opted to proceed pro se and the trial court appointed Emry as standby counsel. A waiver of counsel form was signed and completed. However, on the form the defendant only indicated that he waived his right to assigned counsel, not his right to all assistance of counsel. The case came to trial before a different judge. Although the trial court engaged in a colloquy with the defendant about counsel, the transcript of this event was indecipherable in parts. The defendant was convicted and appealed. On appeal, the defendant argued that the trial court erred by requiring him to proceed to trial pro se when he did not clearly and unequivocally elect to do so. Although the defendant did say that he wished to represent himself, he only did so after being faced with no other option than to continue with Emry’s representation. The court noted: “This case is a good example of the confusion that can occur when the record lacks a clear indication that a defendant wishes to proceed without representation.” Here, even assuming that the defendant did clearly and unequivocally assert his wish to proceed pro se, he still would be entitled to a new trial because the waiver was not knowing and voluntary as required by G.S. 15A-1242. At the January hearing, after explaining the defendant’s options to him the court asked that the defendant “be sworn to [his] waiver.” At this point the clerk simply asked the defendant if he solemnly swore that he had a right to a lawyer and that he waived that right. This colloquy did not meet the requirements of the statute. The court stated: “The fact that defendant signed a written waiver acknowledging that he was waiving his right to assigned counsel does not relieve the trial court of its duty to go through the requisite inquiry with defendant to determine whether he understood the consequences of his waiver.” Additionally, the written waiver form indicates that the defendant elected only to waive the right to assigned counsel, not the right to all assistance of counsel. With respect to the colloquy that occurred at trial, defects in the transcript made it unclear what the defendant understood about the role of standby counsel. In any event, “simply informing defendant about standby counsel’s role is not an adequate substitute for complying with [the statute].” Additionally, there is no indication that the trial court inquired into whether the defendant understood the nature of the charges and permissible punishments as required by the statute. The court rejected the State’s suggestion that the fact that Emry had informed the defendant about the charges could substitute for the trial court’s obligation to ensure that the defendant understood the nature of the charges and the potential punishments before accepting a waiver of counsel.

(2) The defendant did not engage in conduct warranting forfeiture of the right to counsel. Although the state and the trial court hinted that the defendant was intentionally delaying the trial and that he would be on his fourth attorney after counsel was dismissed, the record indicates that this was an inaccurate characterization of the facts. As explained by Emry, although other attorneys had been listed as the defendant’s counsel at various points early in the proceedings, the defendant received substantial assistance only from Emry. Additionally, nothing in the transcript indicates any type of “flagrant” tactics that would constitute extreme misconduct warranting forfeiture. Specifically, there is no indication that the defendant sought other delays of his trial or that he engaged in any inappropriate behavior either in court or with counsel.

In this case where the defendant was convicted of violating a DVPO by attempting to purchase a firearm, the indictment was facially valid and the trial court did not err in concluding that the defendant forfeited her right to appointed counsel.

Reciting general principles regarding the facial validity of indictments, the court found the indictment in this case was valid because, among other things, it specifically referenced the defendant’s attempt to purchase a firearm and the existence of the DVPO.

As to the defendant’s forfeiture of her right to counsel, the court discussed State v. Simpkins, 373 N.C. 530 (2020) and State v. Curlee, 251 N.C. App. 249 (2016), noting that the Simpkins court contemplated that counsel may be forfeited in situations where a defendant obstructs proceedings by continually hiring and firing counsel or refusing to obtain counsel after multiple opportunities to do so.  The court noted that the Curlee court contemplated that a defendant properly may be required to proceed to trial without counsel when the defendant waives appointed counsel and has a case continued several times to hire counsel while knowing that he or she likely will be unable to do so, provided that the defendant is informed of the consequences of proceeding pro se and is subjected to the inquiry required by G.S. 15A-1242.  Here, the defendant appeared at a pretrial hearing without representation after her fifth attorney had withdrawn.  Over a period of two years, her previous appointed attorneys had either withdrawn or been fired by the defendant, and during that time the defendant had waived counsel on several occasions, including at the setting preceding the pretrial hearing.  At the pretrial hearing, the trial court denied the defendant’s request for another appointed attorney, advised her of the consequences of proceeding pro se, and conducted the inquiry required by G.S. 15A-1242.  The trial court then entered an order finding that the defendant had forfeited her right to counsel, though the trial court had reiterated that the defendant was free to hire counsel between the pretrial hearing and the trial date.  The majority opinion found no error.

Judge Jackson concurred in the majority’s opinion with respect to the validity of the indictment but dissented with respect to the counsel forfeiture issue, finding that the trial court’s colloquy with the defendant at the pretrial hearing was insufficient for purposes of G.S. 15A-1242 and that the record did not reveal that the defendant engaged in the sort of egregious misconduct that would support a finding of forfeiture.

In this drug trafficking case, the trial court did not err by requiring the defendant to represent himself at trial. In September 2013, the defendant appeared before a Superior Court Judge and signed a waiver of counsel form. In December 2013 the defendant appeared before another judge and signed a second waiver of counsel form. On that same day, attorney Palmer filed a notice of limited appearance, limiting his representation of the defendant to pretrial case management. In September 2015 the defendant again appeared in Superior Court. Palmer informed the court that the State “got their labs back” and would be ready to set a trial date. The trial court informed the defendant that if he wanted a court appointed lawyer, he should ask now. Among other things, the trial court informed the defendant of the hazards of proceeding pro se. In response to the judge’s questioning, the defendant indicated that he would hire an attorney for trial. The ADA stated that the case would come on for trial in the middle of the following year. The judge told the defendant he had two months to hire a lawyer and scheduled him to return to court on November 5 with his lawyer to talk about trial date. He expressly warned the defendant not to return in November saying that he did not have a lawyer. On November 5, 2015 the defendant appeared in court without a lawyer. The judge again warned the defendant that it was his responsibility to hire a lawyer and of the hazards of proceeding pro se. On December 10, 2015 the defendant again appeared in court, indicating that he continued to have trouble hiring a lawyer. The court informed the defendant to report back on January 27, and warned the defendant that the trial was soon approaching. In January 2016, the defendant again appeared in court, this time with attorney Byrd. Byrd told the court he was not in a position to make an appearance for the defendant and asked for more time. The judge scheduled the matter to return in February. On February 15, 2016, the trial court reported to the defendant that Mr. Byrd was not ready to make an appearance in his case. He warned the defendant to make arrangements to hire Byrd or someone else because a trial date would be set on March 10. On March 28, 2016, the defendant appeared before a different judge. The State indicated it was ready to proceed to trial. After hearing from the defendant regarding his dealings with various lawyers over the past months, the trial court informed the defendant of his counsel rights and asked the defendant how he intended to proceed. During this colloquy the defendant indicated that he would represent himself. The trial court reset the matter for the next administrative session so that the senior resident judge could address the counsel issue. On April 7, 2016 the case came back in Superior Court. The State requested a July trial date and asked the court to address the counsel issue. The court summarized the prior discussions with the defendant and appointed standby counsel. Proceedings continued in this vein until the defendant’s case came on for trial August 30, 2016. The defendant appeared pro se with standby counsel. The defendant was found guilty and appealed, asserting a violation of his sixth amendment counsel rights. The court disagreed with the defendant’s assertion that the trial court did not adhere to the requirements of G.S. 15A-1242 in procuring his waiver. The court noted, in part:

The trial court gave Defendant years to find an attorney. At each stage the trial court advised and counseled Defendant about his right to an attorney including his right to appointed counsel. The trial court also repeatedly counseled Defendant on the complexity of handling his own jury trial and the fact the judge would not be able to help him. Finally, the trial court repeatedly addressed the seriousness of the charges and advised Defendant a conviction likely meant a life sentence. Despite this, Defendant proceeded to represent himself at trial.

Defendant’s assertion the trial court failed to take any measures to ascertain whether Defendant understood the various difficulties associated with representing himself is without merit. Our review of the record indicates the trial court advised Defendant he would have to adhere to rules of court and evidence. The trial court also informed Defendant the court would not assist Defendant, and Defendant was facing serious charges which could result in a life sentence upon conviction. The record also indicates Defendant repeatedly expressed his understanding of the trial court’s instruction on this issue. We conclude Defendant waived his right to court appointed counsel.

The court went on to hold that even if the defendant’s waiver of counsel was not knowing and voluntary, the defendant forfeited his right to counsel through extended delaying tactics. It explained:

First, Defendant waived his right to assigned counsel in 2013. The trial court repeatedly advised Defendant on the seriousness of the charges and informed Defendant a conviction could lead to a life sentence due to Defendant’s age. Time after time, Defendant stated he intended to hire his own attorney. Defendant made close to monthly appearances in court over a 10-month period, and consistently told the court he wished to hire his own attorney. During these appearances, the trial court asked Defendant at least twice if he needed appointed counsel. Defendant answered by claiming to have sufficient funds to hire an attorney. Additionally, the trial court continued Defendant’s case several times to give Defendant’s attorney time to prepare since Defendant claimed the attorneys he met with did not have adequate time to prepare for trial.

Because defendant engaged in repeated conduct designed to delay and obfuscate the proceedings, including refusing to answer whether he wanted the assistance of counsel, he forfeited his right to counsel. Citing State v. Leyshon, 211 N.C. App. 511 (2011), the court began by holding that defendant did not waive his right to counsel. When asked whether he wanted a lawyer, defendant replied that he did not and, alternatively, when the trial court explained that defendant would proceed without counsel, defendant objected and stated he was not waiving any rights. Defendant's statements about whether he waived his right to counsel were sufficiently equivocal such that they did not constitute a waiver of the right to counsel. However, defendant forfeited his right to counsel. In addition to refusing to answer whether he wanted assistance of counsel at three separate pretrial hearings, defendant repeatedly and vigorously objected to the trial court's authority to proceed. Although defendant on multiple occasions stated that he did not want assistance of counsel, he also repeatedly made statements that he was reserving his right to seek Islamic counsel, although over the course of four hearings and about 3½ months he never obtained counsel. As in Leyshon, this behavior amounted to willful obstruction and delay of trial proceedings and therefore defendant forfeited his right to counsel.

The court rejected the defendant’s argument that the trial court failed to make the proper inquiry required by G.S. 15A-1242 before allowing him to proceed pro se, concluding that the defendant’s actions “absolved the trial court from this requirement” and resulted in a forfeiture of the right to counsel. As recounted in the court’s opinion, the defendant engaged in conduct that obstructed and delayed the proceedings.

State v. Mee, 233 N.C. App. 542 (Apr. 15, 2014)

The defendant forfeited his right to counsel where he waived the right to appointed counsel, retained and then fired counsel twice, was briefly represented by an assistant public defender, repeatedly refused to state his wishes with respect to representation, instead arguing that he was not subject to the court’s jurisdiction, would not participate in the trial, and ultimately chose to absent himself from the courtroom during the trial. The court rejected the defendant’s argument that he should not be held to have forfeited his right to counsel because he did not threaten counsel or court personnel and was not abusive. The court’s opinion includes extensive colloquies between the trial court and the defendant.

(1) No violation of the defendant’s Sixth Amendment right to counsel occurred when the trial court found that the defendant forfeited his right to counsel because of serious misconduct and required him to proceed pro se. The court rejected the defendant’s argument that Indiana v. Edwards prohibits a finding of forfeiture by a “gray area” defendant who has engaged in serious misconduct. (2) The trial court did not err by finding that the defendant forfeited his right to counsel because of serious misconduct. The court rejected the defendant’s argument that the misconduct must occur in open court. The defendant was appointed three separate lawyers and each moved to withdraw because of his behavior. His misconduct went beyond being uncooperative and noncompliant and included physically and verbally threatening his attorneys. He consistently shouted at his attorneys, insulted and abused them, and spat on and threatened to kill one of them. The court also rejected the defendant’s argument that State v. Wray, 206 N.C. App. 354 (2010), required reversal of the forfeiture ruling.

The trial court did not err by allowing the defendant to proceed pro se where the defendant forfeited his right to counsel. In July 2007, the defendant refused to sign a waiver of counsel form. At a Jan. 2008 hearing, the court twice advised the defendant of his right to counsel and repeatedly asked if he wanted a lawyer. The defendant refused to answer, arguing, “I want to find out if the Court has jurisdiction before I waive anything”. Even after the court explained the basis of its jurisdiction, the defendant refused to state if he wanted an attorney, persistently refusing to waive anything until jurisdiction was established. At a July 2008 hearing, the defendant would not respond to the court’s inquiry regarding counsel, asserting, “I’m not waiving my right to assistance of counsel,” but also refusing the assistance of the appointed attorney. At the next hearing, he continued to challenge the court’s jurisdiction and would not answer the court’s inquiry regarding whether he wanted an attorney or to represent himself. Instead, he maintained, “If I hire a lawyer, I’m declaring myself a ward of the Court . . . and the Court automatically acquires jurisdiction . . . and I’m not acquiescing at this point to the jurisdiction of the Court.” The defendant willfully obstructed and delayed the proceedings and thus forfeited his right to counsel.

State v. Boyd, 200 N.C. App. 97 (Sept. 15, 2009)

Holding that the defendant willfully obstructed and delayed court proceedings by refusing to cooperate with his appointed attorneys and insisting that his case would not be tried; he thus forfeited his right to counsel. The defendant’s lack of cooperation lead to the withdrawal of both of his court-appointed attorneys. His original appointed counsel was allowed to withdraw over disagreements with the defendant including counsel’s refusal to file a motion for recusal of the trial judge on grounds that various judges were in collusion to fix the trial. In his first motion to withdraw, the defendant’s next lawyer stated that the defendant did not want him as counsel and that he could not effectively communicate with the defendant. In his second motion to withdraw, counsel stated that the defendant had been “totally uncooperative” such that counsel “was unable to prepare any type of defense to the charges.” Further, the defendant repeatedly told counsel that his case was not going to be tried.

In this case where the defendant was tried without counsel for driving with a revoked license, RDO, and other charges, the Court of Appeals was correct in holding that the defendant did not forfeit his right to counsel and that the trial court therefore was required to ensure that the defendant’s waiver of counsel was knowing, intelligent, and voluntary.  Noting that it had never previously held that a criminal defendant in North Carolina can forfeit the right to counsel, the court agreed with holdings of the Court of Appeals establishing that “in situations evincing egregious misconduct by a defendant, a defendant may forfeit the right to counsel.”  The court reviewed decisions of the Court of Appeals where a finding of forfeiture was proper, and summarized that case law as follows: 

If a defendant refuses to obtain counsel after multiple opportunities to do so, refuses to say whether he or she wishes to proceed with counsel, refuses to participate in the proceedings, or continually hires and fires counsel and significantly delays the proceedings, then a trial court may appropriately determine that the defendant is attempting to obstruct the proceedings and prevent them from coming to completion. In that circumstance, the defendant’s obstructionist actions completely undermine the purposes of the right to counsel. If the defendant’s actions also prevent the trial court from fulfilling the mandate of N.C.G.S. § 15A-1242, the defendant has forfeited his or her right to counsel and the trial court is not required to abide by the statute’s directive to engage in a colloquy regarding a knowing waiver.

Characterizing the conduct described above as “[s]erious obstruction” and disavowing previous statements by the Court of Appeals suggesting that “[a]ny willful actions on the part of the defendant that result in the absence of defense counsel [constitute] a forfeiture of the right to counsel,” the court went on to explain that “[s]erious obstruction of the proceedings is not the only way in which a defendant may forfeit the right to counsel.”  The court suggested that a defendant who “intentionally seriously assaults their attorney” may also forfeit the right to counsel.

With this explanation of the law of forfeiture of the right to counsel, the court agreed with the Court of Appeals majority that the defendant in this case did not “engage in such serious misconduct as to warrant forfeiture of the right to counsel.”  Conceding that some of the defendant’s conduct probably was highly frustrating, the court rejected the state’s arguments that he forfeited his right to counsel by (1) putting forward frivolous legal arguments throughout the proceeding; (2) failing to employ counsel before appearing for trial where no evidence indicated that he consistently refused to retain counsel in an attempt to delay the proceedings; (3) being generally uncooperative during the proceeding.  Because the defendant did not forfeit his right to counsel, the trial court was required, under G.S. 15A-1242 and the state and federal constitutions, to advise the defendant of the right to counsel, the consequences of proceeding without counsel, and “the nature of the charges and proceedings and the range of permissible punishments”  before permitting the defendant to waive counsel and proceed pro se.  The trial court’s failure to do so in this case entitled the defendant to a new trial.

Justice Newby, joined by Justice Morgan, expressed his view that “[b]y continually refusing to answer the trial court’s questions and posing his own questions to the court, defendant demonstrated his unwillingness to accept the judicial process, forfeiting his right to an attorney.”

The defendant was charged with multiple crimes related to a break-in at the home of the elected district attorney. The trial court allowed the defendant’s first appointed lawyer to withdraw based on an unspecified conflict in February 2018. In April 2018 his second appointed lawyer also moved to withdraw when the defendant was uncooperative. The trial court allowed the motion and appointed a third lawyer. The third lawyer moved to withdraw in November 2018. The court held a hearing on that motion, ultimately granting it and finding that the defendant had forfeited his right to counsel based on his conduct, “including incessant demands and badgering” of his three appointed lawyers. The trial judge appointed the third lawyer as standby counsel. The defendant represented himself at trial, presented no evidence, was convicted of all charges and sentenced. On appeal, the defendant argued that the trial court erred by determining that he had forfeited his right to counsel. In light of State v. Simpkins, 373 N.C. 530 (2020)—a case decided by the Supreme Court while the defendant’s appeal was pending—the Court of Appeals agreed. The test first articulated in Simpkins is that a finding that a defendant has forfeited his right to counsel requires “egregious dilatory or abuse conduct on the part of the defendant which undermines the purpose of the right to counsel.” The Supreme Court further clarified that forfeiture is appropriate when the defendant’s behavior is so threatening or abusive toward counsel that it makes the representation itself physically dangerous, or when the defendant’s actions related to counsel are an attempt to obstruct the proceedings and prevent them from coming to completion. Here, the defendant’s attorneys moved to withdraw because the defendant was uncooperative, uncivil, and made unreasonable demands based at least in part on his concern that any court-appointed counsel would be biased against him due to his or her relationship with the victim in the case—the District Attorney. However, no evidence in the record suggested that the defendant threatened or physically abused his lawyers. And nothing in the record indicated that the defendant’s behavior actually delayed or obstructed the proceedings. The defendant’s actions therefore did not fit within the forfeiture criteria recently spelled out in Simpkins, and the Court of Appeals vacated the criminal judgments. Nevertheless, based on the reference in the trial court’s order to the defendant’s “abusive nature” and “abuse of counsel,” the court remanded the matter for a new forfeiture hearing at which the trial judge could put into the record any evidence from prior in-chambers discussions with counsel that might support a forfeiture under either prong of the new Simpkins test.

State v. Harvin, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019) temp. stay granted, ___ N.C. ___, 835 S.E.2d 851 (Dec 20 2019)

The defendant was convicted of first-degree murder, attempted first-degree murder, attempted robbery with a dangerous weapon, assault with a deadly weapon with intent to kill inflicting serious injury, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. The Court of Appeals found that the trial judge erred in finding that the defendant forfeited his right to counsel and in requiring the defendant to represent himself at trial. In a lengthy colloquy at trial, the defendant requested the judge to activate or replace his standby counsel, who previously had been appointed as standby counsel when the defendant expressed a desire to represent himself. When the trial judge did not grant that request, the defendant stated that he did not want to represent himself and wanted to be represented by counsel. The Court found that the request was clear and unequivocal. The Court further found that when the trial judge previously appointed standby counsel, the judge did not make any note of dilatory tactics by the defendant or inform him that requesting that standby counsel be activated or replaced could result in forfeiture of his right to counsel; rather, the judge advised him that standby counsel could be activated as counsel. Although the defendant had five previous attorneys, only two withdrew for reasons related to the defendant and then not because of a refusal by the defendant to participate in his defense but instead due to differences related to preparation of the defendant’s defense. The Court concluded that the record failed to show that the defendant intentionally delayed or obstructed the process. A dissenting judge would have found that the trial judge’s forfeiture ruling was not erroneous.

The trial court erred by requiring the defendant to proceed pro se. After the defendant was indicted but before the trial date, the defendant signed a waiver of the right to assigned counsel and hired his own lawyer. When the case came on for trial, defense counsel moved to withdraw, stating that the defendant had been rude to him and no longer desired his representation. The defendant agreed and indicated that he intended to hire a different, specifically named lawyer. The trial court allowed defense counsel to withdraw and informed the defendant that he had a right to fire his lawyer but that the trial would proceed that week, after the trial court disposed of other matters. The defendant then unsuccessfully sought a continuance. When the defendant’s case came on for trial two days later, the defendant informed the court that the lawyer he had intended to hire wouldn’t take his case. When the defendant raised questions about being required to proceed pro se, the court indicated that he had previously waived his right to court-appointed counsel. The trial began, with the defendant representing himself. The court held that the trial court’s actions violated the defendant’s Sixth Amendment right to counsel. The defendant never asked to proceed pro se; although he waived his right to court-appointed counsel, he never indicated that he intended to proceed to trial without the assistance of any counsel. Next, the court held that the defendant had not engaged in the type of severe misconduct that would justify forfeiture of the right to counsel. Among other things, the court noted that the defendant did not fire multiple attorneys or repeatedly delay the trial. The court concluded:

[D]efendant’s request for a continuance in order to hire a different attorney, even if motivated by a wish to postpone his trial, was nowhere close to the “serious misconduct” that has previously been held to constitute forfeiture of counsel. In reaching this decision, we find it very significant that defendant was not warned or informed that if he chose to discharge his counsel but was unable to hire another attorney, he would then be forced to proceed pro se. Nor was defendant warned of the consequences of such a decision. We need not decide, and express no opinion on, the issue of whether certain conduct by a defendant might justify an immediate forfeiture of counsel without any preliminary warning to the defendant. On the facts of this case, however, we hold that defendant was entitled, at a minimum, to be informed by the trial court that defendant’s failure to hire new counsel might result in defendant’s being required to represent himself, and to be advised of the consequences of self-representation.

State v. Wray, 206 N.C. App. 354 (Aug. 17, 2010)

The trial court erred by ruling that the defendant forfeited his right to counsel. The defendant’s first lawyer was allowed to withdraw because of a breakdown in the attorney-client relationship. His second lawyer withdrew on grounds of conflict of interest. The defendant’s third lawyer was allowed to withdraw after the defendant complained that counsel had not promptly visited him and had “talked hateful” to his wife and after counsel reported that the defendant accused him of conspiring with the prosecutor and contradicted everything the lawyer said. The trial court appointed Mr. Ditz and warned the defendant that failure to cooperate with Ditz would result in a forfeiture of the right to counsel. After the defendant indicated that he did not want to be represented by Ditz, the trial court explained that the defendant either could accept representation by Ditz or proceed pro se. The defendant rejected these choices and asked for new counsel. When Ditz subsequently moved to withdraw, the trial court allowed the motion and found that the defendant had forfeited his right to counsel. On appeal, the court recognized “a presumption against the casual forfeiture” of constitutional rights and noted that forfeiture should be restricted cases of “severe misconduct.” The court held that the record did not support the trial court’s finding of forfeiture because: (1) it suggested that while the defendant was competent to be tried, under Indiana v. Edwards, 554 U.S. 164 (2008), he may have lacked the capacity to represent himself; (2) Ditz had represented the defendant in prior cases without problem; (3) the record did not establish serious misconduct required to support a forfeiture (the court noted that there was no evidence that the defendant used profanity in court, threatened counsel or court personnel, was abusive, or was otherwise inappropriate); (4) evidence of the defendant’s misbehavior created doubt as to his competence; and (5) the defendant was given no opportunity to be heard or participate in the forfeiture hearing.

The trial court’s determination that the defendant had forfeited his right to counsel does not “carry over” to the new trial, ordered by the court for unrelated reasons. In the 3½ years leading up to trial the defendant, among other things, fired or threatened to fire three separate lawyers, called them liars, accused them of ethical violations, reported one to the Bar, cursed at one in open court, and refused to meet with his lawyers. After the defendant refused to cooperate with and attempted to fire his third attorney, the trial court found that the defendant had forfeited his right to court-appointed counsel and appointed standby counsel. On the first day of trial, the defendant informed the trial court that he finally understood the seriousness of the situation and asked the trial court to appoint standby counsel as his lawyer. Standby counsel said that he would not be ready to go forward with trial that day if appointed. The trial court denied the motion for counsel based on the prior forfeiture orders, and the trial court declined to reconsider this matter when it arose later. The defendant represented himself at his bench trial, with counsel on standby, and was convicted. After finding that the trial court erred by proceeding with a bench trial, the court considered the defendant’s forfeiture claims. Specifically, the defendant argued on appeal that his conduct did not warrant forfeiture and that the trial court’s forfeiture order should have been reconsidered in light of the defendant’s changed conduct. In light of the court’s determination that a new trial was warranted on unrelated grounds, it declined to address these issues. However, it concluded that a break in the period of forfeiture occurs when counsel is appointed to represent the defendant on appeal following an initial conviction. Here, because the defendant accepted appointment of counsel on appeal following his trial and allowed appointed counsel to represent him through the appellate process, “the trial court’s prior forfeiture determinations will not carry over to defendant’s new trial.” The court concluded: “Thus, defendant’s forfeiture ended with his first trial. If, going forward, defendant follows the same pattern of egregious behavior toward his new counsel, the trial court should conduct a fresh inquiry in order to determine whether that conduct supports a finding of forfeiture.”

State v. Boyd, 205 N.C. App. 450 (July 20, 2010)

Defendant’s forfeiture of his right to counsel did not carry over to his resentencing, held after a successful appeal. To determine the life of a forfeiture of counsel the court adopted the standard for life of a waiver of counsel (a waiver is good and sufficient until the proceedings are terminated or the defendant makes it known that he or she desires to withdraw the waiver). Applying this standard, the court found that “a break in the period of forfeiture occurred” when the defendant accepted the appointment of counsel (the Appellate Defender) for the appeal of his initial conviction. The court noted in dicta that the defendant’s statement at resentencing that he did not want to be represented and his refusal to sign a written waiver did not constitute a new forfeiture. Because the initial forfeiture did not carry through to the resentencing and because the trial judge did not procure a waiver of counsel under G.S. 15A-1242 at the resentencing, the defendant’s right to counsel was violated.

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