The North Carolina Court of Appeals first recognized the concept of waiver by conduct in State v. Blakeney, 245 N.C. App. 452 (2016). There, the Court set forth three ways in which a criminal defendant might lose his right to representation by counsel: (1) the defendant may knowingly, intelligently, and voluntarily waive the right to counsel; (2) the defendant may engage in such serious misconduct that he forfeits the right to counsel; and (3) following a warning that the defendant may lose his right to representation if he continues to engage in dilatory tactics, the defendant continues to engage in behavior designed to delay or disrupt court proceedings. This third way, which was acknowledged but not applied in Blakeney, has been called “waiver by conduct.”
While a knowing, voluntary and intelligent waiver of counsel has long been recognized by both the North Carolina Supreme Court and the North Carolina Court of Appeals as authorizing a defendant to proceed unrepresented, only recently has the state’s highest court expressly held that a defendant may forfeit his right to counsel. In State v. Simpkins, 373 N.C. 530 (2020), the North Carolina Supreme Court — citing consistent precedent from the court of appeals — held for the first time that a defendant may forfeit the right to counsel by engaging in egregious misconduct that frustrates the purpose of the right to counsel itself and prevents the trial court from moving the case forward. Simpkins recognized two types of conduct that may be sufficiently egregious to warrant forfeiture: (1) serious obstruction of the proceedings (for example, refusing to obtain counsel after multiple opportunities to do so, refusing to say whether he wishes to proceed with counsel, refusing to participate in the proceedings, or continually hiring and firing counsel and thereby significantly delaying the proceedings); and (2) assaulting one’s attorney. Id. at 538. The Simpkins Court expressly declined, however, to consider whether “waiver by conduct” is a method by which a defendant may be required to proceed without counsel. Id. at 535 n. 4.
Ensuing opinions from the state supreme court have reinforced the high bar for the misconduct required to constitute forfeiture and have extended the second category of misconduct recognized in Simpkins to include other types of aggressive, profane or threatening behavior. See State v. Harvin, 382 N.C. 566, 587 (2022); State v. Atwell, 383 N.C. 437, 449 (2022); see also Brittany Bromell, N.C. Supreme Court Weighs in, Again, on Forfeiture of Counsel, N.C. Criminal Law Blog (Feb. 7, 2023). They have not, however, mentioned waiver by conduct as an alternative way of dispensing with the right to counsel. Indeed, in Atwell, the Court wrote that there can be “no ‘effective’ waiver” of the right to counsel, emphasizing that “waiver of counsel is a voluntary decision by a defendant and that where a defendant seeks but is denied appointed counsel, a waiver analysis upon appeal is both unnecessary and inappropriate.” Id. at 448.
Thus, following Atwell, there was some question as to whether waiver by conduct remained even a potentially viable theory under North Carolina law. Two recent opinions from the North Carolina Court of Appeals reflect that court’s view that it does. This post will review the concept of waiver by conduct and its recent application in State v. Moore, 290 N.C. App. 610 (2023) and State v. Jones, No. COA23-647, ___ N.C. App. ___, ___ S.E.2d ___ (2024).
Waiver by conduct. Jeff Welty wrote here about the Blakeney Court’s recognition of the theory of waiver by conduct. Blakeney endorsed the Third Circuit’s articulation of this concept in United States v. Goldberg, 67 F.3d 1092 (3rd Cir. 1995). The Goldberg Court described waiver and forfeiture as existing on opposite ends of a spectrum. Waiver requires a knowing and intentional relinquishment of a known right, whereas forfeiture results in the loss of a right regardless of whether the defendant knew of the right or intended to relinquish it. Waiver by conduct, the Goldberg Court said, combines elements of both waiver and forfeiture. It applies when a defendant, who has been warned that he will lose the right to counsel if he engages in dilatory tactics, continues to engage in those tactics. Goldberg postulated that the continued misconduct following the warning may be treated as an implied request to proceed without counsel and thus, as a “waiver” of the right to counsel.
Goldberg relied in part on the United States Supreme Court’s determination in Illinois v. Allen, 397 U.S. 337 (1970), that a defendant may lose his Sixth Amendment right to be present at trial if, following a warning that he will be removed if his disruptive behavior continues, he continues to behave in a manner so disruptive that the trial cannot be carried on with him present. Goldberg cited Allen as evidence that the Supreme Court has approved a trial court’s decision to deprive a defendant of a fundamental constitutional right when the defendant is aware of the consequences of his actions regardless of whether the defendant affirmatively expresses a desire to part with that right. Id. at 1101.
At the same time, Goldberg acknowledged that waiver by conduct is not waiver in the “true sense of the word,” and that the situation might be more aptly described as “forfeiture with knowledge.” Id. Nevertheless, the Goldberg Court thought it important to distinguish the concept of waiver by conduct from that of forfeiture – a standard that requires more egregious misconduct. Given the warning required for waiver by conduct, the Court reasoned that it could rest on conduct less severe than that required for forfeiture. Id.
State v. Moore, 290 N.C. App. 610 (2023). The defendant in Moore was charged with first-degree murder in 2018. Seven attorneys, including Moore’s sister (admitted pro hac vice), were involved in his representation in the three-and-a-half years between his indictment and trial. Moore’s sister’s pro hac vice admission ultimately was revoked by the court based in part on her lack of participation, lack of experience, and lack of candor with the court. Three appointed attorneys withdrew from representing Moore based on conflicts that the trial court determined were engineered by Moore either individually or acting together with his sister. After the trial began in February 2022, the attorney appointed to represent Moore informed the court that she received an email from the defendant’s sister containing a bar complaint filed against her and signed by the defendant. Moore told the court he was satisfied with his attorney’s representation, and the trial continued. Then, following particularly damning testimony by a State’s witness, Moore’s attorney informed the court that Moore wanted her to withdraw. The attorney added that Moore told her she should withdraw “for her safety.” Id. at 623. The trial court questioned Moore about whether he wanted his attorney to withdraw and warned him that he would be forfeiting his right to counsel if he persisted in having her removed. Moore told the court that he did not want to be represented by his current attorney, but also that he did not want to represent himself. The court conducted a waiver of counsel inquiry pursuant to G.S. 15A-1242, permitted the attorney to withdraw, and then held that Moore had forfeited his right to counsel. Moore then asked to leave the courtroom and elected not to be present for the remainder of the trial. He was convicted and was sentenced to life without parole.
On appeal, Moore argued that the trial court denied his right to counsel when he sought to change attorneys during trial.
The court of appeals began its analysis by citing three ways in which a defendant may lose the right to counsel: waiver, forfeiture, and waiver by conduct. Notwithstanding the admonishment in Atwell that waiver is voluntary and does not apply when a defendant seeks but is denied counsel, the Moore Court employed a waiver and forfeiture analysis, concluding that the defendant both waived and forfeited the right to counsel.
As evidence that the defendant waived his right to counsel, the Court pointed to a waiver of appointed counsel that Moore entered in 2020 as well as his insistence that his trial attorney be removed as counsel after he had been warned that this would result in him having to represent himself. (The court of appeals refers to this in several places as a waiver of appointed counsel; however, it appears to have been treated as a waiver of all counsel since the trial court warned the defendant that trial would not be continued to allow the defendant an opportunity to hire a new attorney, and the trial proceeded with the defendant unrepresented.) The Court’s conclusion that Moore waived counsel, despite his clear statement that he did not intend to represent himself, appears to be based on a waiver by conduct theory: Moore was warned that discharging his trial attorney would leave him unrepresented; yet, he insisted on doing so anyway.
The Court also found that Moore forfeited his right to counsel by engaging in serious misconduct, including telling his trial attorney that she should withdraw for her safety, complaining about his trial attorney to the State Bar while informing the trial court that he was satisfied with her services, and deciding to fire his trial attorney during the middle of trial.
State v. Jones, No. COA23-647, ___ N.C. App. ___, ___ S.E.2d ___ (2024). The defendant in Jones, an alleged “sovereign citizen,” was charged with felony flee to elude and related offenses after he refused to stop his motorcycle when a police officer signaled for him to pull over. The trial court attempted to inquire of Jones whether he desired or waived his right to counsel. Jones refused to answer the court’s questions, including questions about his level of education and age, and instead attempted to challenge the court’s jurisdiction. The presiding judge warned Jones about the complexity of handling his own jury trial, told Jones that she would not offer legal advice, and informed Jones that he would be required to follow the rules of evidence and procedure. Jones was convicted and appealed. On appeal, he argued that the trial court erred by finding that he had waived or forfeited his right to counsel.
Again, the court of appeals began its analysis by citing the three ways to lose counsel from Blakeney. The Court concluded that, despite the lack of any express waiver, Jones knowingly and voluntarily waived his right to counsel “by his answers and conduct before trial after being repeatedly advised and informed of the consequences of this decision.” Slip op. at 17. What the Court describes as waiver appears to map more neatly onto the concept of waiver by conduct than knowing, voluntary and intelligent waiver. The Court further held that the defendant forfeited his right to counsel as he had “engaged in serious delaying tactics to stall the trial for over two years,” was twice found to be in direct criminal contempt, and continued to frivolously challenge the trial court’s jurisdiction. Id. at 15-16. The Court considered this conduct to be an effort to delay, disrupt, and obstruct the court proceedings and held that it was sufficiently serious to support forfeiture.
So, does waiver by conduct remain a third way to lose the right to representation? Arguably yes. The doctrine is not necessarily inconsistent with the state supreme court’s rulings in Simpkins, Harvin, and Atwell, and the court of appeals views it as viable. Of course, it remains possible that the state’s highest court will find waiver by conduct a bar too low to satisfy the constitutional standard. In the meantime, trial judges confronted with a defendant engaging in dilatory tactics that may or may not meet the standard for forfeiture may want to rely on both theories. Before allowing counsel to withdraw in such a case, the trial court may wish to warn the defendant that permitting withdrawal will result in the defendant representing himself. The trial court then can engage in the waiver colloquy required by G.S. 15A-1242 before ruling on the motion. This may provide the appellate courts with a dual basis for considering any subsequent ruling by the trial court that the defendant forfeited the right to counsel and/or waived it by conduct. The court could use a similar approach in advising a defendant who has waived appointed counsel and has advised the court that he or she wishes to retain counsel. If the defendant has not retained counsel within a reasonable time, the court might inform (warn) the defendant that if he does not want to be represented by appointed counsel and is unable to hire an attorney by the scheduled trial date, he will be required to proceed at that time without counsel. See, e.g., State v. Curlee, 251 N.C. App. 249, 253 (2016) (suggesting such an approach). The court must, in conjunction, with the warning, inform the defendant of the consequences of proceeding without representation and conduct the inquiry required by G.S. 15A-1242. Id. Again, it is uncertain whether waiver by conduct will ultimately be approved by the North Carolina Supreme Court, particularly given Atwell’s broad statements about waivers being voluntary. But given the high standard required to support forfeiture, and the frequency with which trial judges encounter tactics that appear to be designed to delay, some trial judges may wish to rely on the theory of waiver by conduct as a backstop.