State v. Simpkins, 373 N.C. 530, 838 S.E.2d 439 (Feb. 28, 2020)

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.”