State v. BlakeneyÂ
245 N.C. App. 452
| N.C. Ct. App. | 2016|
Check Treatment IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-622
Filed: 16 February 2016
Union County, Nos. 11 CRS 55059, 13 CRS 2235
STATE OF NORTH CAROLINA, Plaintiff,
v.
JONATHAN BRANDON BLAKENEY, Defendant.
Appeal by defendant from judgment entered 18 December 2014 by Judge
Christopher W. Bragg in Union County Superior Court. Heard in the Court of
Appeals 3 November 2015.
Attorney General Roy Cooper, by Assistant Attorney General Terence Friedman,
for the State.
Robinson Bradshaw & Hinson, P.A., by Andrew A. Kasper, for defendant-
appellant.
ZACHARY, Judge.
Jonathan Blakeney (defendant) appeals from judgment entered upon a jury
verdict finding him guilty of possession of a firearm by a felon and of having attainted
the status of an habitual felon. On appeal defendant argues that the trial court erred
by requiring defendant to represent himself at trial, on the grounds that defendant
neither asked to proceed pro se nor engaged in the type of serious misconduct that
would result in an immediate forfeiture of defendant’s right to counsel without a prior
warning. After careful consideration, we agree.
STATE V. BLAKENEY
Opinion of the Court
I. Background
On 17 September 2011, deputies with the Union County Sheriff’s Department
were dispatched to 3921 Blakeney Road to investigate an assault reported at that
location. During the investigation, defendant was arrested and charged with
possession of a firearm by a felon. After being informed of his Miranda rights,
defendant provided law enforcement officers with a statement admitting to
possession of a firearm. On 7 November 2011, defendant was indicted for possession
of a firearm by a felon. On 30 January 2012, defendant signed a waiver of the right
to assigned counsel in three cases, including the charge of possession of a firearm by
a felon that is the subject of the present appeal.
On 4 November 2013, more than two years after the incident giving rise to the
charge of possession of a firearm by a felon, defendant was indicted for attaining the
status of an habitual felon. On 6 November 2014, three years after the incident
underlying this appeal, the trial court entered an order striking a previously entered
order for arrest and continuing the trial of defendant’s case until 15 December 2014.
Documentation is not included in the record, but the parties agree that defendant had
failed to appear for trial in early November, 2014.
The charges against defendant came on for trial on 15 December 2014. Prior
to trial, defendant’s counsel, Mr. Vernon Cloud, moved to withdraw as defendant’s
attorney. Mr. Cloud stated that defendant had spoken rudely to him and that
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Opinion of the Court
defendant no longer wanted him to represent defendant at the pending trial.
Defendant agreed that he did not want Mr. Cloud to represent him on the charges of
possession of a firearm by a felon and having the status of an habitual felon, but
stated that he wished to retain Mr. Cloud as his counsel on other charges then
pending against defendant. Defendant did not indicate in any way that he wished to
represent himself, but told the trial court that he intended to hire a different attorney,
specifically saying, “I’ve talked to Miles Helms. He’s willing to take my case.” In
response, the trial court told defendant that he had a right to fire his lawyer, but that
“the trial is still going.” The trial court and defendant then had the following
discussion:
THE COURT: . . . Mr. Blakeney, you need to understand
something. . . . You’re not first; you’re not even second right
now. . . . I’m going to do a motion here in a little bit with
Mr. Principe that may or may not dispose of a case. . . . We
may start picking a jury and that defendant may decide to
plead guilty. Okay? And you have moved from third to
first. Okay?
DEFENDANT: Okay.
THE COURT: And we might not know that until later this
afternoon; maybe tomorrow morning. Okay? But at that
time, when you become first on the list and I call your
name, okay, you need to be either in this audience, okay, or
unless you have been released and given a number where
you can be here in an hour or so where we know that.
DEFENDANT: Yes, sir.
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THE COURT: Typically we’ll give you that, okay? Get you
here in an hour and ready to go. And if you’re not, I’m going
to issue an order for your arrest.
DEFENDANT: If I could, Your Honor?
THE COURT: Uh huh.
DEFENDANT: Ask for a continuance. This would be my
first continuance that I have asked for in my favor.
THE COURT: Right.
DEFENDANT: Of the cases that has been continued has
been from the State.
THE COURT: Mr. Blakeney, this is a 2011 case.
DEFENDANT: Yes, sir.
THE COURT: It is 2014. All right. You’re third on the
list. May or may not get to it, but I’m not going to continue
it. It’s an old case that needs to be tried.
DEFENDANT: Okay. And I would have been ready to try
this case had not been if we could have sat down me and
my lawyer sat down with my witnesses and . . . talked
about this, this trial.
THE COURT: You still - you’re still not number one yet.
You still may not - you still may not be tried this week. . .
. But you need to be ready to go. . . . [Mr. Cloud,] you are
released in case number 11 CRS 55059; the charge of
possession of a firearm by a felon, and that is the only case
Mr. Blakeney in which you are firing Mr. Cloud. Is that
right?
DEFENDANT: Yes, sir.
....
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Opinion of the Court
MS. CHUNN: There is a habitual felon as well, Your
Honor.
THE COURT: All right. So if -- and I use the word if this
case is called for trial, okay, you’re going to try Mr.
Blakeney on the possession of a firearm by a felon in 11
CRS 55059; and if he is convicted of that . . . you’re going
to seek habitual felon status against him as well from that
same jury.
MS. CHUNN: That's correct, Your Honor.
...
THE COURT: Okay. All right. You understand that, Mr.
Blakeney?
DEFENDANT: Yes, sir.
THE COURT: Okay. We won’t talk about being a habitual
felon until and unless you are convicted, if you are
convicted of the underlying charge.
...
THE COURT: Mr. Blakeney, I’m going to give you this one
courtesy, okay? . . . I’m going to have you give to Deputy
LaRue here your cell phone number or a number you can
be reached. You’re going to be on a one hour standby.
DEFENDANT: Okay.
THE COURT: All right. So when I give you a one hour
standby, if we call that number, it is disconnected, nobody
knows you at that number or whatever, when I call that
number, the clock starts and one hour later, if you’re not
here, I’m going to have the bailiffs call and fail you and I’m
going to issue a bond. I’m here the next six months starting
in January. I’ll know where you’re at when we call your
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Opinion of the Court
case for trial next time, okay, because it will be in the
Union County Jail. All right?
DEFENDANT: Yes, sir. Yes, sir.
THE COURT: Okay. All right. So that gives you time to
get out, go see Mr. Helms, go do whatever you need to do.
. . . You’re third on the list, and like I said, sometimes third
we never reach it. Sometimes third reaches tomorrow
morning.
DEFENDANT: Okay.
THE COURT: Okay? All right.
DEFENDANT: Thank you, sir.
Two days later, on 17 December 2014, defendant’s case was called for trial, and
defendant and the trial court had the following dialog:
THE COURT: Come on down, sir. Mr. Blakeney, when we
spoke on Monday, I told you that you were third on the list
and we have reached that level, all right.
DEFENDANT: Okay.
THE COURT: And the State is calling for trial the State of
North Carolina versus you, Jonathan Brandon Blakeney.
It’s case number 11 CRS 55059. It’s a charge of possession
of a firearm by a felon. All right?
DEFENDANT: Okay.
THE COURT: And as I explained to you the other day,
that’s a Class G felony, but the State is also, if you are
convicted of that felony, I would -- it will never come in
front of the jury, no one will ever mention to the jury the
fact that the State is also seeking to have you found to be a
habitual felon. Okay? We don’t talk about being a habitual
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STATE V. BLAKENEY
Opinion of the Court
felon until and unless the jury returns a verdict of guilty of
the felony of possession of a firearm. All right?
DEFENDANT: Okay.
THE COURT: If you’re found not guilty of possession of a
firearm by a felon, the habitual felon case goes away. If
you are found guilty of possessing a firearm by a felon, then
we have a second part of the trial with the same jury to
determine whether or not you are a habitual felon, and the
State would have to prove to the jury beyond a reasonable
doubt that you have three prior felony convictions. . . .
DEFENDANT: Okay.
THE COURT: Okay? So that’s where we’re at. You had
mentioned to me Monday that you were attempting to hire
Mr. Helms to represent you in this charge. I had released
Mr. Cloud from this one case. You had retained him in that
one case, in a bunch of cases, but had released him only in
this one case. Had you hired Mr. Helms?
DEFENDANT: No, sir, he wouldn’t -- he wouldn’t take my
case. He told me that it would be a waste of time because
he didn’t have time to even discuss my case with me.
THE COURT: Yes, sir. All right. You prepared to go
forward?
DEFENDANT: Yes, sir, I guess -- I mean --
THE COURT: Yes, sir.
DEFENDANT: --my hands are tied. I mean I guess so.
THE COURT: You’re going to -- you’re going to act as your
own attorney? Let me tell you how -- not -- I don’t know
how much experience you’ve had in court. We’ll call the
jury in; I’ll explain to the jury what the charges are. I’m
going to introduce everybody, introduce you to the jury, tell
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STATE V. BLAKENEY
Opinion of the Court
them what the charge is, introduce Ms. Chunn as the DA
for the State. You have entered a plea of not guilty to this
charge. Is that correct?
Thereafter, the trial court explains to defendant the process of jury selection,
until defendant interrupts:
DEFENDANT: So this is still set, for the record, for the --
. . . that I’m being tried without a lawyer?
THE COURT: Yes, sir, that’s all on the record.
DEFENDANT: Okay.
THE COURT: Okay? We did that on Monday. That’s --
every - Ms. Trout has been here every day, okay?
DEFENDANT: Okay.
THE COURT: Everything we do in this court is on the
record, all right?
DEFENDANT: Okay.
THE COURT: And it was on the record when you released
Mr. Cloud on Monday, all right?
DEFENDANT: Yes, sir.
...
THE COURT: And it was on the record that you are
representing yourself in this matter; that I denied a
continuance because you have waived -- previously waived
your right to court appointed counsel and you had hired
your own attorney. Okay?
DEFENDANT: Okay.
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STATE V. BLAKENEY
Opinion of the Court
The record to that point includes no mention of the possibility that defendant would
represent himself. Thereafter, the trial proceeded and the State offered the testimony
of several witnesses. During the presentation of the State’s case, defendant was
uniformly polite and deferential to the trial court and to those in the courtroom.
Defendant did not object to any of the prosecutor’s questions or to the introduction of
any evidence, including his inculpatory statement. Defendant presented several
witnesses and also testified in a narrative form about the events of 17 September
2011; however, defendant never denied being in possession of a firearm, and
defendant’s evidence addressed issues that were legally irrelevant to the charge of
possession of a firearm by a felon. Following the presentation of evidence and
instructions from the trial court, the jury returned a verdict finding defendant guilty
of possession of a firearm by a felon.
During the habitual felon stage of the trial, the jury sent the trial court a note
asking whether defendant had refused representation by an attorney. The trial court
explained to the jurors that this was not a proper matter for their consideration. Out
of the presence of the jury, the trial court then expressed its opinion, for the first time
during these proceedings, that defendant’s request to hire a different attorney had
been motivated by defendant’s wish to postpone the trial. After the jury returned a
verdict finding that defendant had attained the status of an habitual felon, the trial
court conducted a sentencing hearing. The trial court found that defendant was a
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STATE V. BLAKENEY
Opinion of the Court
Level IV offender and was to be sentenced as an habitual felon. The court found two
mitigating factors: that defendant supported his family, and that defendant had
voluntarily appeared in court throughout the proceedings. The trial court imposed a
sentence in the mitigated range of seventy-two to ninety-six months. Defendant
appealed to this Court.
II. Standard of Review
Defendant’s sole argument on appeal is that the trial court violated defendant’s
Sixth Amendment right to counsel by requiring defendant to represent himself. “ ‘It
is well settled that de novo review is ordinarily appropriate in cases where
constitutional rights are implicated.’ ” State v. Wray, 206 N.C. App. 354, 356,698 S.E.2d 137
, 140 (2010) (quoting Piedmont Triad Reg’l Water Auth. v. Sumner Hills, Inc.,353 N.C. 343
, 348,543 S.E.2d 844
, 848 (2001)), disc. review denied,365 N.C. 88
,706 S.E.2d 476
(2011).
III. Sixth Amendment Right to Counsel
Defendant argues that the trial court violated his Sixth Amendment right to
the assistance of counsel by requiring defendant to proceed pro se, despite the fact
that defendant did not ask to represent himself, was not warned that he might have
to represent himself, and had not engaged in egregious conduct that would justify an
immediate forfeiture of his right to counsel without a warning. We agree.
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STATE V. BLAKENEY
Opinion of the Court
“A criminal defendant’s right to representation by counsel in serious criminal
matters is guaranteed by the Sixth Amendment to the United States Constitution
and Article I, §§ 19, 23 of the North Carolina Constitution.” State v. Hyatt, 132 N.C.
App. 697, 702, 513 S.E.2d 90, 94 (1999) (citing Gideon v. Wainwright,372 U.S. 335
,9 L. Ed. 2d 799
,83 S. Ct. 792
(1963)). Our appellate courts have recognized two
circumstances, however, under which a defendant may no longer have the right to be
represented by counsel.
First, a defendant may voluntarily waive the right to be represented by counsel
and instead proceed pro se. “[W]aiver of the right to counsel and election to proceed
pro se must be expressed ‘clearly and unequivocally.’ ” State v. Thomas, 331 N.C. 671, 673-74,417 S.E.2d 473
, 475 (1992) (quoting State v. McGuire,297 N.C. 69
, 81,254 S.E.2d 165
, 173 (1979)). “Once a defendant clearly and unequivocally states that he wants to proceed pro se, the trial court . . . must determine whether the defendant knowingly, intelligently, and voluntarily waives the right to in-court representation by counsel.”Thomas, 331 N.C. at 674
, 417 S.E.2d at 476 (citations omitted). A trial court’s inquiry will satisfy this constitutional requirement if conducted pursuant to N.C.G.S. § 15A-1242.Id. (citation omitted).
This statute provides:
A defendant may be permitted at his election to proceed in
the trial of his case without the assistance of counsel only
after the trial judge makes thorough inquiry and is
satisfied that the defendant:
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Opinion of the Court
(1) Has been clearly advised of his right to the assistance
of counsel, including his right to the assignment of counsel
when he is so entitled;
(2) Understands and appreciates the consequences of this
decision; and
(3) Comprehends the nature of the charges and proceedings
and the range of permissible punishments.
In this case, neither defendant nor the State asserts that defendant ever asked
to represent himself at trial, and our own review of the transcript fails to reveal any
evidence that defendant indicated, must less “clearly and unequivocally” requested,
that he be permitted to proceed pro se. “The record clearly indicates that when
defendant signed the waiver of his right to assigned counsel he did so with the
expectation of being able to privately retain counsel. Before [the trial court] the
defendant stated that he wanted to . . . employ his own lawyer. There is no evidence
that defendant ever intended to proceed to trial without the assistance of some
counsel.” State v. McCrowre, 312 N.C. 478, 480,322 S.E.2d 775
, 776-77 (1984). We
conclude that the present case is not governed by appellate cases addressing a trial
court’s responsibility to ensure that a defendant who wishes to represent himself is
“knowingly, intelligently, and voluntarily” waiving his right to counsel.
The second circumstance under which a criminal defendant may no longer
have the right to be represented by counsel occurs when a defendant engages in such
serious misconduct that he forfeits his constitutional right to counsel. Although the
right to counsel “is guaranteed by the Sixth and Fourteenth Amendments of the
United States Constitution and Article I of the North Carolina Constitution,” State v.
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Opinion of the Court
Montgomery, 138 N.C. App. 521, 524,530 S.E.2d 66
, 68 (2000), in some situations a
defendant may lose this right:
Although the loss of counsel due to defendant’s own actions
is often referred to as a waiver of the right to counsel, a
better term to describe this situation is forfeiture. “Unlike
waiver, which requires a knowing and intentional
relinquishment of a known right, forfeiture results in the
loss of a right regardless of the defendant’s knowledge
thereof and irrespective of whether the defendant intended
to relinquish the right.” . . . [A] defendant who is abusive
toward his attorney may forfeit his right to counsel.
Montgomery, 138 N.C. App. at 524-25, 530 S.E.2d at 69 (quoting United States v. Goldberg,67 F.3d 1092
, 1100 (3d. Cir. Pa. 1995) (other quotation omitted)).
In this case, the State argues that defendant forfeited his right to counsel,
relying primarily upon generalized language excerpted from Montgomery stating that
a forfeiture of counsel “results when the state’s interest in maintaining an orderly
trial schedule and the defendant’s negligence, indifference, or possibly purposeful
delaying tactic, combine[ ] to justify a forfeiture of defendant’s right to counsel.”
Montgomery at 524-25, 530 S.E.2d at 69 (internal quotation omitted). The State also cites State v. Quick,179 N.C. App. 647
, 649-50,634 S.E.2d 915
, 917 (2006), in which
this Court cited Montgomery for the proposition that “[a]ny willful actions on the part
of the defendant that result in the absence of defense counsel constitutes a forfeiture
of the right to counsel.” Montgomery did not, however, include such a broad holding
or suggest that “any willful actions” resulting in the absence of defense counsel are
sufficient to constitute a forfeiture. Instead, as this Court has observed, forfeiture of
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STATE V. BLAKENEY
Opinion of the Court
the right to counsel has usually been restricted to situations involving egregious
conduct by a defendant:
Although the United States Supreme Court has never
directly addressed forfeiture of the right to counsel, the
Court’s other holdings demonstrate reluctance to uphold
forfeiture of a criminal defendant’s U.S. Constitutional
rights, except in egregious circumstances. . . . Additionally,
the federal and state courts that have addressed forfeiture
have restricted it to instances of severe misconduct.
Wray, 206 N.C. App. at 358-59, 698 S.E.2d at 140-41 (2010) (citing Illinois v. Allen,397 U.S. 337
,90 S. Ct. 1057
,25 L. Ed. 2d 353
(1970) (other citations omitted)).
There is no bright-line definition of the degree of misconduct that would justify
forfeiture of a defendant’s right to counsel. However, our review of the published
opinions of our appellate courts indicates that, as discussed in Wray, forfeiture has
generally been limited to situations involving “severe misconduct” and specifically to
cases in which the defendant engaged in one or more of the following: (1) flagrant or
extended delaying tactics, such as repeatedly firing a series of attorneys; (2) offensive
or abusive behavior, such as threatening counsel, cursing, spitting, or disrupting
proceedings in court; or (3) refusal to acknowledge the trial court’s jurisdiction or
participate in the judicial process, or insistence on nonsensical and nonexistent legal
“rights.” The following is a list of published cases from North Carolina in which a
defendant was held to have forfeited the right to counsel, with a brief indication of
the type of behavior in which the defendant engaged:
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Opinion of the Court
1. State v. Montgomery, 138 N.C. App. 521,530 S.E.2d 66
(2000): the defendant fired several lawyers, was disruptive and used profanity in court, threw water on his attorney while in court, and was repeatedly found in criminal contempt. 2. State v. Quick,179 N.C. App. 647
,634 S.E.2d 915
(2006): the defendant in a probation revocation case waived court- appointed counsel in order to hire private counsel, but during an eight month period did not contact any attorney, instead waiting until the day before trial. 3. State v. Rogers,194 N.C. App. 131
,669 S.E.2d 77
(2008), disc. review denied,363 N.C. 136
,676 S.E.2d 305
(2009): over the course of two years, the defendant fired several attorneys, made unreasonable accusations about court personnel, reported one of his attorneys to the State Bar, accused another of racism, and was warned by the court about his behavior. 4. State v. Boyd,200 N.C. App. 97
,682 S.E.2d 463
, disc. review denied,691 S.E.2d 414
(2009): during a period of more than a year, the defendant refused to cooperate with two different attorneys, repeatedly told one attorney that the case “was not going to be tried,” was “totally uncooperative” with counsel, demanded that each attorney withdraw from representation, and “obstructed and delayed” the trial proceedings. 5. State v. Leyshon,211 N.C. App. 511
,710 S.E.2d 282
, appeal dismissed,365 N.C. 338
,717 S.E.2d 566
(2011): for more than a year after defendant was arraigned, he refused to sign a waiver of counsel or state whether or not he wanted counsel, instead arguing that the court did not have jurisdiction and making an array of legally nonsensical assertions about the court’s authority. 6. State v. Cureton,223 N.C. App. 274
,734 S.E.2d 572
(2012): the defendant feigned mental illness, discharged
three different attorneys, “consistently shouted at his
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Opinion of the Court
attorneys, insulted and abused his attorneys, and at one
point spat on his attorney and threatened to kill him.”
7. State v. Mee, __ N.C. App. __, 756 S.E.2d 103 (2014): the
defendant appeared before four different judges over a
period of fourteen months, during which time he hired and
then fired counsel twice, was represented by an assistant
public defender, refused to state his wishes with respect to
counsel, advanced unsupported legal theories concerning
jurisdiction, and refused to participate in the trial.
8. State v. Joiner, __ N.C. App. __, 767 S.E.2d 557 (2014):
the defendant gave “evasive and often bizarre” answers to
the court’s questions, shouted and cursed at the trial court,
smeared feces on the holding cell wall, had to be gagged
during trial, threatened courtroom personnel with bodily
harm, and refused to answer simple questions.
9. State v. Brown, __ N.C. App. __, 768 S.E.2d 896 (2015):
like the defendants in Mee and Leyshon, this defendant
offered only repetitive legal gibberish in response to simple
questions about representation, and refused to recognize
the court’s jurisdiction.
In stark contrast to the defendants discussed above, in this case:
1. Defendant was uniformly polite and cooperative. In
fact, the trial court found as a mitigating factor that the
defendant returned to court as directed during the habitual
felon phase, even after he had been found guilty of the
underlying offense.
2. Defendant did not deny the trial court’s jurisdiction,
disrupt court proceedings, or behave offensively.
3. Defendant did not hire and fire multiple attorneys, or
repeatedly delay the trial. Although the case was three
years old at the time of trial, the delay from September
2011 until August 2014 resulted from the State’s failure to
prosecute, rather than actions by defendant.
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Opinion of the Court
We conclude that defendant’s request for a continuance in order to hire a
different attorney, even if motivated by a wish to postpone his trial, was nowhere
close to the “serious misconduct” that has previously been held to constitute forfeiture
of counsel. In reaching this decision, we find it very significant that defendant was
not warned or informed that if he chose to discharge his counsel but was unable to
hire another attorney, he would then be forced to proceed pro se. Nor was defendant
warned of the consequences of such a decision. We need not decide, and express no
opinion on, the issue of whether certain conduct by a defendant might justify an
immediate forfeiture of counsel without any preliminary warning to the defendant.
On the facts of this case, however, we hold that defendant was entitled, at a
minimum, to be informed by the trial court that defendant’s failure to hire new
counsel might result in defendant’s being required to represent himself, and to be
advised of the consequences of self-representation.
“[W]ith the exception of decisions of the United States Supreme Court, federal
appellate decisions are not binding upon either the appellate or trial courts of this
State.” State v. Adams, 132 N.C. App. 819, 820,513 S.E.2d 588
, 589 (citing State v. McDowell,310 N.C. 61
, 74,310 S.E.2d 301
, 310 (1984) (holding that appellate courts should treat “decisions of the United States Supreme Court as binding and accord[ ] to decisions of lower federal courts such persuasiveness as these decisions might reasonably command”)), disc. review denied,350 N.C. 836
,538 S.E.2d 570
(1999). In
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Opinion of the Court
this regard, we find persuasive the analysis of this subject in United States v.
Goldberg, 67 F.3d 1092, 1100 (3d. Cir. Pa. 1995), a leading case on the issue of forfeiture of counsel which has been cited in appellate decisions more than three hundred times, including in five North Carolina cases. Goldberg describes three categories of situations involving waiver or forfeiture of representation by counsel. First, the Goldberg Court noted that if “a defendant requests permission to proceed pro se, Faretta requires trial courts to ensure that the defendant is aware of the risks of proceeding pro se as a constitutional prerequisite to a valid waiver of the right to counsel.”Goldberg, 67 F.3d at 1099
. The Court next considered forfeiture, which
“results in the loss of a right regardless of the defendant’s knowledge thereof and
irrespective of whether the defendant intended to relinquish the right.” Goldberg at
1100. The third category posited in Goldberg is similar to the present circumstances:
Finally, there is a hybrid situation (“waiver by conduct”)
that combines elements of waiver and forfeiture. Once a
defendant has been warned that he will lose his attorney if
he engages in dilatory tactics, any misconduct thereafter
may be treated as an implied request to proceed pro se and,
thus, as a waiver of the right to counsel. . . . Recognizing
the difference between “forfeiture” and “waiver by conduct”
is important. First, because of the drastic nature of the
sanction, forfeiture would appear to require extremely
dilatory conduct. On the other hand, a “waiver by conduct”
could be based on conduct less severe than that sufficient
to warrant a forfeiture. This makes sense since a “waiver
by conduct” requires that a defendant be warned about the
consequences of his conduct, including the risks of
proceeding pro se. A defendant who engages in dilatory
conduct having been warned that such conduct will be
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Opinion of the Court
treated as a request to proceed pro se cannot complain that
a court is “forfeiting” his right to counsel.
Goldberg at 1100-1101 (emphasis added) (citations omitted). We find Goldberg’s
analysis useful in determining that, on the facts of this case, the defendant cannot be
said to have forfeited his right to counsel in the absence of any warning by the trial
court both that he might be required to represent himself and of the consequences of
this decision.
In reaching this conclusion, we have considered the State’s arguments for a
contrary result, some of which are not consistent with the trial transcript. On appeal,
the State contends that at the outset of trial the trial court “found that Defendant
had only fired Mr. Cloud so as to attempt to delay the trial,” citing page twenty-seven
of the transcript. In fact, at the start of the trial, the trial court did not express any
opinion on defendant’s motivation for seeking to continue the case and hire a different
attorney. During the habitual felon phase, after defendant had been found guilty of
the charge, the jury was sufficiently concerned about defendant’s self-representation
to send the trial court a note asking whether defendant had refused counsel. It was
only at that point that the trial court expressed its opinion that defendant had hoped
to delay the trial by replacing one attorney with another. The State also alleges
several times in its appellate brief that the trial court made “specific findings about
Defendant’s forfeiture of his right to counsel,” maintaining that “the trial court
specifically found that Defendant’s conduct in firing his lawyer to delay the trial
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Opinion of the Court
forfeited his right to private counsel, thus requiring Defendant to proceed pro se” and
urging that we “should affirm the trial court’s finding that Defendant discharged his
private counsel on the day of the trial to obstruct and delay his trial and thereby
forfeited his right to counsel[.]” However, as defendant states in his reply brief, the
“trial court never found that Mr. Blakeney forfeited his right to counsel[.] . . . Indeed,
the word “forfeit” does not appear in the transcript of the trial proceedings.”
There is no indication in the record that the trial court ruled that defendant
forfeited the right to counsel by engaging in serious misconduct. Moreover, defendant
was not warned that he might have to represent himself, and the trial court did not
conduct the inquiry mandated by N.C. Gen. Stat. § 15A-1242, in order to ensure that
defendant understood the implications of appearing pro se. In State v. Bullock, 316
N.C. 180,340 S.E.2d 106
(1986), our Supreme Court addressed a factual situation
similar both to the present case and to the “waiver by conduct” scenario discussed in
Goldberg. In Bullock, the defendants’ attorneys moved to withdraw shortly before
trial, due to irreconcilable differences with the defendant. A few days later, defendant
was in court and engaged in the following dialog with the trial court:
Court: Mr. Bullock, I understand from Mr. Brown you wish
to agree that Mr. C. C. Malone and Mr. Artis Plummer will
no longer be your lawyers, is that correct?
Defendant Bullock: That is so.
Court: Now, they are employed by you, is that correct?
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STATE V. BLAKENEY
Opinion of the Court
Defendant Bullock: Yes, sir.
Court: You understand that the Court is not going to
appoint a lawyer for you?
Defendant Bullock: Yes, sir.
Court: Mr. Mason, when do you expect this case to be on
the calendar?
Ms. Scouten: It is already set next Monday.
Court: I am not going to continue the case.
Defendant Bullock: Yes, sir.
Court: It will be for trial next Monday morning. You have
a lawyer in here to go or be here yourself ready to go
without a lawyer. Is that the way you understand it?
Defendant Bullock: Yes, sir.
Court: Going to be no continuance.
Defendant Bullock: Yes, sir.
Bullock, 316 N.C. at 182-83, 340 S.E.2d at 107. We note that in Bullock, unlike the
present case, the defendant was at least warned that he might be required to proceed
pro se. When the case was called for trial, the following dialog occurred:
Court: Are you ready to proceed, Mr. Bullock?
Mr. Bullock: I haven’t been -- I haven't been able to find
counsel to represent me, Your Honor.
Court: Well, you had a lawyer.
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STATE V. BLAKENEY
Opinion of the Court
Mr. Bullock: After - after - on September the 4th to
September the 10th, the counsels that I went to, they said
they wouldn’t have time enough for preparation.
Court: Well, you had a lawyer, and it was your wish to get
rid of him. And I let you get rid of him, but I told you at the
time, if I’m not badly mistaken, that we would be trying
your case on this date. Do you remember that?
Mr. Bullock: Yes, sir.
Court: You were fully aware of that when you consider --
consented to the withdrawal of your former lawyer.
Mr. Bullock: (Nods affirmatively.)
Court: All right. The case will be for trial.
Bullock at 184, 340 S.E.2d at 108. On appeal, our Supreme Court “agree[d] with the
defendant that he is entitled to a new trial because the trial judge did not comply
with N.C.G.S. § 15A-1242 before allowing the defendant to be tried without counsel”:
The defendant consented to the withdrawal of his retained
counsel because of irreconcilable differences but stated
that he would employ other counsel. On the day of the
trial, he said that he had been unable to get any attorney
to take his case because of the inadequate preparation
time. The trial court reminded the defendant that he had
warned him he would try the case as scheduled. The
defendant acquiesced to trial without counsel because he
had no other choice. Events here do not show a voluntary
exercise of the defendant's free will to proceed pro se.
Bullock, 316 N.C. at 185, 340 S.E.2d at 108 (citing Faretta v. California,422 U.S. 806
,95 S. Ct. 2525
,45 L. Ed. 2d 562
(1975)). The Court in Bullock also cited State v. McCrowre,312 N.C. 478
,322 S.E.2d 775
(1984), noting that in that case the court
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STATE V. BLAKENEY
Opinion of the Court
“held that the defendant was entitled to a new trial because the record did not show
that the defendant intended to go to trial without the assistance of counsel and
because the inquiry required by N.C.G.S. § 15A-1242 was not conducted.” Id
(emphasis added). Bullock appears to be functionally indistinguishable from the
present case as regards the trial court’s obligation to conduct the inquiry required by
N.C. Gen. Stat. § 15A-1242.
For the reasons discussed above, we conclude that defendant neither
voluntarily waived the right to be represented by counsel, nor engaged in such serious
misconduct as to warrant forfeiture of the right to counsel without any warning by
the trial court. As a result, the trial court was required to inform defendant that if
he discharged his attorney but was unable to hire new counsel, he would then be
required to represent himself. The trial court was further obligated to conduct the
inquiry mandated by N.C. Gen. Stat. § 15A-1242, in order to ensure that defendant
understood the consequences of self-representation. The trial court’s failure to
conduct either of these inquiries or discussions with defendant resulted in a violation
of defendant’s right under the Sixth Amendment to be represented by counsel, and
requires a new trial.
REVERSED AND REMANDED.
Judges BRYANT concurs in the result.
Judge CALABRIA concurs.
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