State v. Jones, COA23-647, ___ N.C. App. ___ (Feb. 20, 2024)

In this Davidson County case, defendant appealed his conviction for felony fleeing to elude arrest, arguing (1) error in finding he had waived or forfeited his right to counsel and (2) plain error by allowing the State to introduce foundationless expert testimony by a law enforcement officer about sovereign citizens. The Court of Appeals found no error or plain error. 

Defendant came to trial for fleeing from police officers on his motorcycle when they attempted to stop him. The trial court attempted a colloquy to determine if defendant desired or waived counsel, but defendant refused to answer and questioned the jurisdiction of the trial court. The trial court concluded that defendant waived his right to counsel and proceeded. Defendant continued to challenge the trial court and delay the proceedings, and was twice found to be in contempt by the trial court. During the testimony of one of the officers, the State asked about sovereign citizens and the officer offered a brief description of his understanding of a sovereign citizen, to which defendant did not object. Defendant was subsequently convicted, and appealed.

Taking up (1), the Court of Appeals first looked to State v. Blakeney, 245 N.C. App. 452 (2016), to summarize the methods in which a defendant may waive or forfeit counsel, including “a mixture of waiver and forfeiture” by misconduct. Slip Op. at 5. The court then considered whether defendant’s actions constituted waiver of counsel, noting the statutorily-required procedure in G.S. 15A-1242. Here, the record did not contain a signed waiver and certification by the trial court judge, but the court noted “[t]his absence in the record does not per seinvalidate Defendant’s waiver.” Slip Op. at 7. The court found the required elements from G.S. 15A-1242 in the transcript and concluded “[d]efendant clearly waived his right to further court-appointed counsel.” Id. at 8. The court then considered whether defendant forfeited his right to counsel, walking through applicable precedent. After reviewing notable cases in the area, the court explained that “[a] defendant may also forfeit their right to counsel by engaging in ‘serious misconduct.’” Id. at 15, quoting Blakeney at 460. Reviewing the current case, the court concluded that “[i]n addition to a waiver, Defendant forfeited his right to counsel.” Id. at 16. 

Reaching (2), the court noted that defendant did not object to officer’s testimony defining sovereign citizens at trial, meaning the review was plain error. Defendant failed to show that the testimony had a probable impact on the jury, meaning he could not demonstrate plain error.