In this Onslow County case, defendant appealed his conviction for first-degree murder, arguing error in (1) denial of his right to counsel, (2) denial of his motion to continue, and (3) allowing a witness to testify about unrelated allegations against him. The Court of Appeals found no error. 

After Thanksgiving in 2017, defendant borrowed his girlfriend’s car and drove from Florida to North Carolina, telling her that he was visiting family. After arriving in North Carolina, defendant contacted a prostitute and eventually killed her and buried her body in a remote area at the end of a dirt road. During the same December 2017 time period, defendant met with a different prostitute, who would later testify about how defendant took her to the same area, raped her, and stole all the money from her purse. When defendant indicted for murder in 2018, he was represented by his sister, a Georgia attorney who was admitted pro hac vice for the trial. Defendant also had a series of local attorneys represent him, all of whom withdrew due to disputes with defendant and his sister. During these disputes, defendant’s sister apparently filed several complaints with the N.C. State Bar against defense counsel and prosecutors. Eventually, the trial court revoked the sister’s pro hac vice admission due to her lack of experience and interference with other counsels’ ability to prepare. When the matter reached trial, defendant had another appointed counsel, but several days after opening statements, the appointed counsel moved to withdraw, explaining that defendant had asked her to stop representing him; she also informed the trial court defendant had implied she should withdraw for her own safety. The trial court conducted a colloquy with defendant, where defendant told the trial court he was not happy with the appointed counsel and understood that he would be forfeiting his right to an attorney. After the trial court allowed counsel to withdraw, the trial went forward with defendant representing himself; he did not present evidence, cross-examine witnesses, or provide a closing argument. Defendant was ultimately convicted, and subsequently filed a motion for appropriate relief (MAR). The trial court denied the MAR, finding that defendant forfeited his right to counsel by misconduct. Defendant’s appeals of his conviction and the denial of his MAR led to the current opinion.

Taking up (1), the Court of Appeals first explained the distinction between a knowing and voluntary waiver of counsel under G.S. 15A-1242, and forfeiture of counsel by misconduct, referencing State v. Blakeney, 245 N.C. App. 452 (2016). Although the record indicated that defendant signed a written waiver of counsel that was certified by the trial court, the waiver was not included on appeal. Despite this absence, the court explained that the missing waiver and certification document did not invalidate defendant’s waiver of his right to counsel. After determining the trial court clearly advised defendant of his rights and the consequences of waiving an attorney, the court found that defendant had “clearly waived and/or forfeited his right to further court-appointed counsel.” Slip Op. at 32. The court then explored the forfeiture ruling, noting that the N.C. Supreme Court had first recognized that a defendant could forfeit counsel in State v. Simpkins, 373 N.C. 530 (2020), and had expanded on the analysis in State v. Harvin, 382 N.C. 566 (2022), and State v. Atwell, 383 N.C. 437 (2022). Slip Op. at 35-36. After examining defendant’s conduct, including the interference from his sister and the seven attorneys representing him through the process, the court concluded defendant had committed “serious misconduct” sufficient to forfeit counsel, in addition to his “knowing and voluntary waivers of counsel.” Id. at 42. 

Turning to (2), the court explained that defendant filed his motion intending to replace the attorney he had just fired after the jury was already empaneled and the State was presenting its case-in-chief. Because no attorney could have adequately represented him in the middle of his trial, and defendant had waived and forfeited his right to counsel in (1), the court found no error in denial of the motion. 

Considering (3), the court established that the objection was not properly preserved for review, and that the review was under a plain error standard. The court then turned to the substance of the second prostitute’s testimony that defendant had raped her and the other details of the encounter, explaining that defendant asserted it was not relevant and inadmissible. Here the court disagreed, explaining that the details were admissible and relevant under Rules of Evidence 401 and 402. The court likewise found the testimony admissible under Rule of Evidence 404(b), explaining that the proximity and similarity of the events along with the prostitute’s testimony identifying defendant “far exceed” simply showing defendant had “the propensity or disposition to commit” the offense. Id. at 55. Finally, the court found no error with the trial court’s conclusion that the events described in the testimony were sufficiently similar and not too remote in time from the events of the crime to be considered prejudicial and inadmissible under Rule of Evidence 403.