State v. Ward, 2022-NCCOA-40, 2022 WL 151593 (Jan. 18, 2022)

In this Pasquotank County case, the defendant was convicted at trial of statutory rape and abduction of a child. (1) During the first day of trial, the defendant complained about his attorney and claimed to have repeatedly fired him during the case. In response, the trial court allowed the defendant to express his concerns and attempted to address them. On the second day of trial, the defendant asked to represent himself, a request the trial court refused. On appeal, he argued that the trial court failed to inquire into an alleged impasse between trial counsel and the defendant and erred by not allowing him to represent himself. A unanimous Court of Appeals disagreed. While the defendant expressed some dissatisfaction with his attorney, his comments did not evince an absolute impasse in the case. In the court’s words:

Defendant’s complaints . . .were deemed misunderstandings that were corrected during the colloquies by the trial court. . .Defendant may have had a personality conflict with his counsel, and asserted he did not believe defense counsel had his best interest at heart. Defendant has failed to show an ‘absolute impasse as to such tactical decisions’ occurred during trial. Ward Slip op. at 9.

Thus, the trial court did not err by failing to more fully investigate the issue. The trial court also did not err by refusing to allow the defendant to proceed pro se after trial had begun, or by failing to conduct the colloquy for self-represented individuals in G.S. 15A-1242. While waiver of the right to counsel requires a knowing, voluntary, and intelligent waiver by the defendant, the right to self-representation may be waived by inaction, as occurred here. Further, without the defendant making a timely request to represent himself, the defendant is not entitled to be informed about the right to self-representation. The trial court did not err in disallowing self-representation, or in failing to make the statutory inquiry required for self-representation, under these circumstances. According to the court:

Defendant did not clearly express a wish to represent himself until the second day of trial. The trial court gave Defendant several opportunities to address and consider whether he wanted continued representation by counsel and personally addressed and inquired into whether Defendant’s decision was being freely, voluntarily, and intelligently made. Defendant’s arguments are without merit and overruled. Id. at 10-11.

(2) The defendant also argued that the trial court erred in allowing one of the State’s witnesses to use the words “victim” and “disclosure” when referring to the child victim in the case. Because no objection was made at trial, the issue was reviewed for plain error. The court noted that overuse of terms such as “victim” and “disclosure” may, in some circumstances, prejudice a defendant. Here, in light of the evidence at trial, any error did not rise to the level of plain error and did not prejudice the defendant.

(3) Trial counsel for the defendant was not ineffective for failing to object to the use of the terms “victim” and “disclosure” for similar reasons—the defendant could not show prejudice stemming from the use of these words, given the overwhelming evidence of guilt admitted at trial.