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Does Waiver by Conduct Remain a Third Way to Lose the Right to Representation?

The North Carolina Court of Appeals first recognized the concept of waiver by conduct in State v. Blakeney, 245 N.C. App. 452 (2010). 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).

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Surveillance Video- When It Comes In and When It Doesn’t

Video evidence authentication has received a fair amount of treatment on this blog. The topic remains an area of practical significance given the prevalence of video evidence in criminal trials and how common it is for the prosecution’s case to hinge on the admission of video. We are increasingly a video-focused society. Between home security cam, doorbell cam, body-worn cam, in-car cam, pole cam, and even parking lot cam, juries increasingly expect to see video, whether the incident in question occurred outside a home, near a business, or on the roadside.

In this post, I will focus on surveillance video.

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Citation for Open Container Violation that Omitted Elements Was Sufficient to Confer Jurisdiction

The North Carolina Supreme Court decided State v. Jones, ___ N.C. ___ (2018) on Friday, affirming the court of appeals’ determination that the citation that charged the defendant with transporting an open container of alcoholic beverage, but left out several elements, was legally sufficient to invoke the trial court’s subject matter jurisdiction.

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A Bright Line Rule for Traffic Stops

A couple of recent court of appeals opinions emphasize a bright-line rule in cases involving traffic stops. An officer who observes a driver commit a traffic violation may stop the driver to address that violation, even when the violation is minor and the officer has elected to respond to the observed violation because she suspects that other unsubstantiated criminal activity may be afoot.

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