Constitutional Law-right to counsel--forfeiture--pro se representation
The trial court did not violate defendant's constitutional right to counsel by holding that
defendant forfeited his right to counsel and by requiring defendant to proceed pro se, because: (1)
defendant was afforded ample opportunity over the course of fifteen months to obtain counsel; (2)
defendant was twice appointed counsel as an indigent; (3) defendant twice released his appointed
counsel and retained private counsel; (4) defendant became disruptive on two occasions in the
courtroom over one of his private counsel's inability to secure additional continuances, resulting
in the trial being delayed; (5) after being advised by the judge that the case would not be further
continued and that his private counsel would not be permitted to withdraw, defendant refused to
cooperate with his counsel and assaulted him, resulting in an additional month's delay; and (6)
defendant's purposeful conduct and tactics to delay and frustrate the orderly processes of our trial
courts meant the trial court was not required to determine under N.C.G.S. § 15A-1242 that
defendant had knowingly, understandingly, and voluntarily waived his right to counsel before
requiring him to proceed pro se.
Attorney General Michael F. Easley, by Assistant Attorney
General, Allison Smith Corum, for the State.
Jean B. Lawson for defendant-appellant.
MARTIN, Judge.
Defendant appeals from a judgment entered upon his conviction
of robbery with a dangerous weapon. Facts necessary to a
resolution of his appeal are as follows: Defendant was arrested on
4 January 1997 upon a warrant charging him with robbery with a
dangerous weapon which allegedly occurred on 23 October 1996. He
appeared in district court on 7 January 1997, was determined to be
indigent, and assistant public defender Thurston Frazier was
appointed to represent him. In February 1997, defendant's family retained private attorney
George Laughrun to represent defendant. On 25 August 1997, Mr.
Laughrun moved to withdraw as counsel, reciting in his motion that
defendant had previously asked him to withdraw in May but had
changed his mind when the matter was scheduled for hearing, and
that defendant had again asked him to withdraw on 24 August. Mr.
Laughrun's motion to withdraw was allowed by order dated 26 August
1997.
On 9 September 1997, the public defender was again appointed
to represent defendant. On 12 December 1997, private attorney
Terry M. Duncan filed a notice of appearance as defendant's
counsel. The case was set for trial on 16 February 1998.
Defendant's motion for a continuance from that trial setting was
denied by Judge Ferrell. On 16 February, defendant appeared with
Mr. Duncan before Judge Johnson. Mr. Duncan again moved for a
continuance, and advised the court that he had been retained by
defendant's girlfriend, Brenda Hollis, and that defendant no longer
wished to be represented by him. Mr. Duncan's motion to withdraw
was denied. Mr. Duncan advised that he was prepared to proceed,
but that defendant's witnesses had refused to meet with him. Judge
Johnson denied the motion for a continuance and advised defendant
that he had a right to represent himself, to proceed with Mr.
Duncan, or to retain another attorney, but that he was not entitled
to the appointment of another attorney. The following day,
defendant appeared with Mr. Duncan, repeated his objection to Mr.Duncan's representation, and disrupted the court with profanity,
resulting in a finding of contempt and a sentence of 30 days in
jail.
On 23 February 1998, defendant appeared before Judge Beal.
Mr. Duncan again moved to withdraw as counsel at defendant's
request and, when the motion was denied, defendant again becamedisruptive and was sentenced to an additional thirty days for
contempt. Judge Beal set defendant's trial for 25 February. On
that date, before jury selection began and while Mr. Duncan was
conferring in the courtroom with defendant and Ms. Hollis, Ms.
Hollis cursed Mr. Duncan and defendant threw water in Mr. Duncan's
face. Both defendant and Ms. Hollis were found in contempt and
each was sentenced to 30 days in jail. Defendant was also charged
with simple assault upon Mr. Duncan. Judge Beal permitted Mr.
Duncan to withdraw as counsel and continued defendant's trial until
30 March 1998. Judge Beal stated: “The Defendant will have an
opportunity to hire an attorney if he wants to hire one, but he
will not have an attorney appointed for him. He's already waived
that right” and concluded “[d]efendant has effectively waived right
to appointment of counsel.”
On 6 April 1998, defendant appeared before Judge Warren.
Attorney Thurston Frazier also appeared and informed the court that
he had been appointed to represent defendant in the simple assault
case involving Mr. Duncan and that defendant required
representation in the present case. Judge Warren refused to
appoint Mr. Frazier as defendant's counsel, but permitted him to
serve as stand-by counsel. At defendant's trial, Mr. Frazier made
opening and closing statements, examined and cross-examined
witnesses, and made motions and objections. Defendant was
convicted and was sentenced to a minimum of 120 months and a
maximum of 153 months.
Defendant contends on appeal that he was denied hisconstitutionally guaranteed right to counsel by the actions of t
he
trial court. He essentially argues that the trial court failed to
conduct the inquiry required by G.S. § 15A-1242 before finding that
defendant had waived his right to counsel. Although none of the
four assignments of error contained in the record on appeal address
the issue of defendant's knowing and voluntary waiver of counsel,
or the trial court's failure to comply with G.S. § 15A-1242, we
exercise the discretion granted us under N.C.R. App. P. 2 and
consider defendant's arguments. For the reasons stated below, we
hold that defendant forfeited his right to counsel and the trial
court did not err by requiring him to proceed pro se.
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. McFadden, 292 N.C. 609, 234
S.E.2d 742 (1977). A part of this right includes the right of an
indigent defendant to appointed counsel. N.C. Gen. Stat. § 7A-450,
Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799 (1963). A
defendant who retains private counsel has a Sixth Amendment right
to counsel of his choosing. McFadden, 292 N.C. 609, 234 S.E.2d
742. A defendant must be granted a reasonable time in which to
obtain counsel of his own choosing, and must be granted a
continuance to obtain counsel of his choosing where, through no
fault of his own, he is without counsel. Id. at 614-15, 234 S.E.2d
at 746 (citing Lee v. United States, 98 U.S. App. D.C. 272, 235
F.2d 219 (1956)). Finally, a defendant also has a right to
represent himself in a criminal proceeding. State v. Thacker, 301N.C. 348, 271 S.E.2d 252 (1980). Before a defendant can waive
counsel and represent himself, the trial court must conduct the
inquiry required by G.S. § 15A-1242 to make certain that
defendant's waiver of counsel is done voluntarily and willingly and
with full knowledge of the consequences. See Thacker, supra.
However, the right to choose one's counsel is not absolute.
McFadden, 292 N.C. at 612, 234 S.E.2d at 745 (citing People v.
Brady, 275 Cal. App.2d 984, 80 Cal. Rptr. 418 (1969)). Where
defendant is appointed counsel, he may not demand counsel of his
choice. State v. Anderson, 350 N.C. 153, 513 S.E.2d 296, cert.
denied, ___ U.S. ___, 145 L.Ed.2d 326 (1999). Further, if an
indigent defendant chooses to proceed with private counsel, he
loses the right to appointed counsel. State v. McDowell, 329 N.C.
363, 407 S.E.2d 200 (1991). Finally, and importantly, “an accused
may lose his constitutional right to be represented by counsel of
his choice when he perverts that right to a weapon for the purpose
of obstructing and delaying his trial.” McFadden at 616, 234
S.E.2d at 747.
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.” United States v.
Goldberg, 67 F.3d. 1092, 1100 (3d. Cir. 1995). A forfeitureresults 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. . .” La Fave, Israel, & King
Criminal Procedure, § 11.3(c) at 548 (1999). “[A] defendant who
misbehaves in the courtroom may forfeit his constitutional right to
be present at trial,” and “a defendant who is abusive toward his
attorney may forfeit his right to counsel.” U.S. v. McLeod, 53
F.3d at 322, 325 (11th Cir. 1995).
In McLeod, a defendant who threatened his attorney with harm
was found to have forfeited any right to counsel. In Siniard v.
State, 491 So.2d 1062 (Ala., 1986), a defendant who, after being
given eight months and allowed several continuances in order to
retain counsel, failed to do so was found to have forfeited his
right to counsel because “[defendant] was using the right of
counsel as a sword instead of a shield.” Id. at 1064. See also
Painter v. State, 762 P.2d 990 (Okla. 1988); Potter v. State, 547
A.2d 595 (Del. Supr. 1988) (stating that a defendant's dilatory
actions in retaining counsel can justify a forfeiture of the right
to counsel.)
In the present case, defendant was afforded ample opportunity
over the course of fifteen months, to obtain counsel. He was twice
appointed counsel as an indigent; twice he released his appointed
counsel and retained private counsel. Apparently dissatisfied with
Mr. Duncan, and upset at Mr. Duncan's inability to secure
additional continuances of his trial, defendant was disruptive inthe courtroom on two occasions, resulting in the trial being
delayed. After being advised by Judge Beal that the case would not
be further continued and that Mr. Duncan would not be permitted to
withdraw, defendant refused to cooperate with Mr. Duncan and
assaulted him, resulting in an additional month's delay in the
trial. Such purposeful conduct and tactics to delay and frustrate
the orderly processes of our trial courts simply cannot be
condoned. McFadden, supra, (disapproving dilatory tactics by
counsel or client). Defendant, by his own conduct, forfeited his
right to counsel and the trial court was not required to determine,
pursuant to G.S. § 15A-1242, that defendant had knowingly,
understandingly, and voluntarily waived such right before requiring
him to proceed pro se.
To the extent defendant's assignments of error were not
brought forward and argued in his brief, they are deemed abandoned.
N.C.R. App. P. 28(a),(b)(5). Defendant received a fair trial, free
from prejudicial error.
No error.
Judges WYNN and SMITH concur.
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