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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