State v. Harvin, 268 N.C.App. 572, 836 S.E.2d 899 (Dec. 3, 2019)

temp. stay granted, 373 N.C. 595, 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.