State v. Simpkins ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 188A19
Filed 28 February 2020
STATE OF NORTH CAROLINA
v.
JEFFERY MARTAEZ SIMPKINS
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 826 S.E.2d 845 (N.C. Ct. App. 2019), vacating a judgment
entered on 8 June 2017 by Judge Andrew Heath in Superior Court, Stanly County.
Heard in the Supreme Court on 10 December 2019.
Joshua H. Stein, Attorney General, by Alexandra M. Hightower, Assistant
Attorney General, for the State.
Kimberly P. Hoppin, for defendant-appellee.
EARLS, Justice.
On 4 July 2016, Jeffery Martaez Simpkins was arrested and charged with
offenses related to his failure to maintain a valid driver’s license. He was first tried
in the district court of Stanly County, where he was convicted and sentenced to a 30-
day suspended period of confinement with 18 months of supervised probation to
include 24 hours of community service. He appealed to the Stanly County Superior
Court, where he was tried before a jury without counsel and convicted. He was
sentenced to two years of supervised probation with two consecutive active terms of
STATE V. SIMPKINS
Opinion of the Court
15 days to be served on weekends and holidays, and with two consecutive 60-day
suspended sentences of incarceration. Simpkins appealed to the Court of Appeals.
On appeal, he argued that the trial court failed to satisfy the requirements of N.C.G.S.
§ 15A-1242 (2019)1 before allowing Simpkins to proceed pro se. In a divided opinion,
the Court of Appeals majority agreed. The State conceded that Simpkins had not
received the required colloquy before waiving counsel and the court concluded that
Simpkins had not forfeited his right to counsel, which would have negated the need
for the colloquy. State v. Simpkins, 826 S.E.2d 845, 845 (N.C. Ct. App. 2019). We
affirm. The Court of Appeals was correct in holding that Simpkins did not forfeit his
right to counsel and that the trial court was therefore required to ensure that
Simpkins’s waiver of counsel was knowing, intelligent, and voluntary.
Background
On 4 July 2016, Simpkins was arrested during a traffic stop after a local police
officer ran his license plate and discovered that Simpkins had a suspended license
1 The statute provides that:
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:
(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.
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Opinion of the Court
and an arrest warrant. Simpkins appeared in Stanly County District Court on 16
August 2016. At some point during the proceedings in district court, the court noted
on an unsigned waiver of counsel form that Simpkins refused to respond to the court’s
inquiry. The record also contains a waiver of counsel form, signed by the trial judge,
with a handwritten note indicating that Simpkins refused to sign the form.2 He was
tried without counsel and convicted of resisting a public officer, failing to carry a
registration card, and driving on a revoked license.
Simpkins then appealed to the Stanly County Superior Court for a new trial.
There, Simpkins was charged with (1) failure to carry a registration card, (2) resisting
a public officer, (3) driving with a revoked license, and (4) failure to exhibit or
surrender a driver’s license. The proceedings began at 9:41 a.m. on 7 June 2017.
Simpkins appeared without counsel and, following a brief exchange during which
Simpkins objected to the court’s jurisdiction, the trial court examined him regarding
his desire to waive his right to an attorney. During the examination, Simpkins stated
that he “would like counsel that’s not paid for by the State of North Carolina.” The
trial court interpreted this as a request to hire his own counsel, and the State objected
2 Assuming that Mr. Simpkins waived his right to counsel in the district court, any
waiver would no longer have been effective in the superior court proceedings. In addition to
the long period of time between the two proceedings, Mr. Simpkins was charged with
different crimes in superior court. See State v. Anderson, 215 N.C. App. 169, 171, 721 S.E.2d
233, 235 (2011), aff’d per curiam 365 N.C. 466, 722 S.E.2d 509 (2012) (defendant’s district
court waiver of counsel insufficient to constitute waiver for superior court trial where record
does not demonstrate defendant was informed of the superior court charges at time of district
court waiver). In any case, the only question before us is whether Simpkins forfeited, rather
than waived, his right to counsel.
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Opinion of the Court
“unless he can obtain counsel in the next 15 minutes.” The trial court called in
standby counsel, found that Simpkins had waived his right to an attorney, and
appointed standby counsel to assist Simpkins in his defense. At 10:00 a.m., the court
allowed Simpkins and standby counsel to review the case together. From the
beginning of the trial until the time the court determined that Simpkins had waived
his right to an attorney and would proceed pro se, fewer than twenty minutes had
passed.
As jury selection was beginning, standby counsel requested a bench conference
and the court permitted the parties to discuss the possibility of a plea arrangement.
The parties returned at 11:04 a.m., and the State reported that they were unable to
reach a plea agreement. The trial court then asked Simpkins if he wished to continue
with standby counsel, and Simpkins responded that he would waive his rights to
standby counsel. The proceedings moved forward from that point with the jury
returning at 11:10 a.m. Simpkins was ultimately convicted of failure to exhibit or
surrender a license and of resisting a public officer. He was found not responsible for
failure to carry a registration card. The charge for driving with a revoked license was
dismissed before the jury was instructed on the law.
On appeal, Simpkins argued principally that the trial court erred by not
thoroughly inquiring into his decision to proceed pro se. Simpkins, 826 S.E.2d at 846.
The inquiry is required both by statute and by the state and federal constitutions to
ensure that a defendant’s waiver of the right to counsel is knowing, intelligent, and
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Opinion of the Court
voluntary. See, e.g., State v. Moore, 362 N.C. 319, 322, 661 S.E.2d 722, 724 (2008)
(stating requirement and quoting N.C.G.S. § 15A-1242). The State argued that the
inquiry was not required because Simpkins forfeited, rather than waived, his right to
counsel. Simpkins, 826 S.E.2d at 846. The Court of Appeals applied its own
precedent, which had previously held that a defendant may lose the right to be
represented by counsel through voluntary waiver or through forfeiture. Id.
Comparing the facts below to prior cases in which the court had found forfeiture, the
majority determined that Simpkins did not “engage[] in such serious misconduct as
to warrant forfeiture of the right to counsel.” Id. at 852 (quoting State v. Blakeney,
245 N.C. App. 452, 468, 782 S.E.2d 88, 98 (2016)) (alteration in original). The State
appealed to this Court on the basis of the dissent, which concluded the opposite.
Standard of Review
The right to counsel in a criminal proceeding is protected by both the federal
and state constitutions. See U.S. Const. amend. VI; N.C. Const. art. I, §§ 19, 23. Our
review is de novo in cases implicating constitutional rights. See, e.g., State v. Diaz,
372 N.C. 493, 498, 831 S.E.2d 532, 536 (2019). Accordingly, we review de novo a trial
court’s determination that a defendant has either waived or forfeited the right to
counsel. Cf. Moore, 362 N.C. at 321–26, 661 S.E.2d at 724–27 (reviewing de novo
whether defendant was appropriately allowed to proceed without counsel after trial
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court found waiver of right to counsel); State v. Thomas, 331 N.C. 671, 673–78, 417
S.E.2d 473, 475–78 (1992) (same).3
Analysis
“A cardinal principle of the criminal law is that the sixth amendment to the
United States Constitution requires that in a serious criminal prosecution the
accused shall have the right to have the assistance of counsel for his defense.” State
v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981) (citations omitted). Even
so, a criminal defendant may choose to forgo representation and “conduct his own
defense.” Id. at 337, 279 S.E.2d at 798. In such a case, the waiver “must be
knowingly, intelligently, and voluntarily made.” Moore, 362 N.C. at 326, 661 S.E.2d
at 726 (quoting Thomas, 331 N.C. at 674, 417 S.E.2d at 476).
In the case below, the trial court determined that Simpkins had waived, rather
than forfeited, counsel. When a defendant seeks to waive counsel and proceed pro se,
the trial court must satisfy the requirements of N.C.G.S. § 15A-1242. See State v.
Pruitt, 322 N.C. 600, 603, 369 S.E.2d 590, 592 (1988); see also Moore, 362 N.C. at 326,
661 S.E.2d at 727 (referencing “the ‘thorough inquiry’ mandated by N.C.G.S. § 15A-
3 We note that the trial court below did not conclude that Simpkins forfeited his right
to counsel. If it had, and had made findings of fact supporting that conclusion, then those
findings would be entitled to deference. See, e.g., State v. Bowditch, 364 N.C. 335, 340, 700
S.E.2d 1, 5 (2010). However, in this case the trial court did not make any findings of fact
before concluding that Mr. Simpkins had waived his right to counsel. Finally, acceptance of
our dissenting colleague’s argument concerning the degree of deference to which a trial
judge’s forfeiture determinations should be afforded would effectively insulate those decisions
from any meaningful appellate review.
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Opinion of the Court
1242 to ensure the defendant’s decision to represent himself was knowingly,
intelligently, and voluntarily made”). Given the significant importance of an
accused’s right to counsel, a defendant must “clearly and unequivocally” express a
desire to proceed pro se before we will deem the right to be waived. Thomas, 331 N.C.
at 673–74, 417 S.E.2d at 475 (1992) (quoting State v. McGuire, 297 N.C. 69, 81, 254
S.E.2d 165, 173 (1979)). Upon receiving this clear request, the trial court is required
to ensure that the waiver is knowing, intelligent, and voluntary. Id. at 674, 417
S.E.2d at 476. The court does so by fulfilling the mandates of N.C.G.S. § 15A-1242,
which requires the court to conduct a “thorough inquiry” and to be satisfied that (1)
the defendant was clearly advised of the right to counsel, including the right to
assignment of counsel; (2) the defendant “[u]nderstands and appreciates the
consequences” of proceeding without counsel; and (3) the defendant understands
what is happening in the proceeding as well as “the range of permissible
punishments.” N.C.G.S. § 15A-1242. The transcript in this case demonstrates that
the trial court did not fully comply with the statutory mandate and the State concedes
as much. Simpkins, 826 S.E.2d at 846. Therefore, because an effective waiver did
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not occur, the Court of Appeals in this case decided a further issue, namely whether
Mr. Simpkins, by his behavior, forfeited his right to counsel. Id. at 851.4
The dissent briefly states and then completely ignores the fact that the trial
court found Mr. Simpkins had waived his right to counsel. In fact, the dissent states
that the waiver requirements are “inapplicable here.” However, in order to find that
Simpkins waived his right to counsel, the trial court needed to conduct the inquiry
required by N.C.G.S. § 15A-1242. The only reason this case is before us is that the
State argues, contrary to the finding of the trial court, that Mr. Simpkins actually
forfeited, rather than waived, his right to counsel. The decision in this case does not
threaten the trial court’s “discretion to ensure that legal proceedings are respected by
all.” Nor does it prevent the trial court from “provid[ing] orderly and just proceedings
for all.” Instead, it does two things. First, it reinforces the longstanding principle
that a waiver of the right to counsel must be knowing, intelligent, and voluntary.
Second, it provides trial courts with an additional avenue to ensure the orderly
administration of justice,5 which is to find forfeiture where it is impossible to fulfill
the mandate of N.C.G.S. § 15A-1242.
4 Because forfeiture is the issue presented to us by this case, we do not address (1)
whether the trial court was correct that Simpkins waived his right to counsel; (2) whether
“waiver by conduct” is a method by which a defendant may appropriately be required to
proceed pro se, see Blakeney, 245 N.C. App. at 464–65, 782 S.E.2d at 96 (discussing waiver
by conduct); or (3) whether a trial court, upon finding that a defendant has waived through
conduct the right to counsel’s assistance, must still satisfy the requirements of N.C.G.S.
§ 15A-1242.
5 Justice, of course, also requires honoring the right to the effective assistance of
counsel.
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Opinion of the Court
Forfeiture of the right to counsel
We have never previously held that a criminal defendant in North Carolina
can forfeit the right to counsel. However, the Court of Appeals has recognized, in
addition to waiver of counsel, that “a defendant who engages in serious misconduct
may forfeit his constitutional rights to counsel.” State v. Forte, 817 S.E.2d 764, 774
(N.C. Ct. App. 2018) (citing Blakeney, 245 N.C. App. at 460, 782 S.E.2d at 93). That
court has noted that forfeiture is generally “restricted to situations involving
egregious conduct by a defendant.” Blakeney, 245 N.C. App. at 461, 782 S.E.2d at 94.
We agree and hold that, in situations evincing egregious misconduct by a defendant,
a defendant may forfeit the right to counsel.
The purpose of the right to counsel “is to assure that in any criminal
prosecution, the accused shall not be left to his own devices in facing the prosecutorial
forces of organized society.” Moran v. Burbine, 475 U.S. 412, 430, 106 S. Ct. 1135,
1146 (1986) (cleaned up). It guarantees “that a defendant has the assistance
necessary to justify reliance on the outcome of the proceeding.” Strickland v.
Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067 (1984). It “safeguard[s] the
fairness of the trial and the integrity of the factfinding process.” Brewer v. Williams,
430 U.S. 387, 426, 97 S. Ct. 1232, 1253 (1977) (Burger, C.J., dissenting).
Unfortunately, in rare circumstances a defendant’s actions frustrate the purpose of
the right to counsel itself and prevent the trial court from moving the case forward.
In such circumstances, a defendant may be deemed to have forfeited the right to
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counsel because, by his or her own actions, the defendant has totally frustrated that
right. If one purpose of the right to counsel is to “justify reliance on the outcome of
the proceeding,” Strickland, 466 U.S. at 692, 104 S. Ct. at 2067, then totally
frustrating the ability of the trial court to reach an outcome thwarts the purpose of
the right to counsel.
The Court of Appeals previously found forfeiture in State v. Montgomery, 138
N.C. App. 521, 530 S.E.2d 66 (2000). There, the court considered whether a defendant
had been denied his right to counsel where the trial court failed to conduct the Section
15A-1242 inquiry and defendant was tried with standby counsel. Montgomery, 138
N.C. App. at 522–23, 530 S.E.2d at 67–68. The defendant in that case received
appointed counsel on 7 January 1997. Id. at 522, 530 S.E.2d at 67. After switching
counsel three times, the defendant appeared on his initially scheduled trial date, 16
February 1998, insisting that his then-current counsel be allowed to withdraw
because “defendant no longer wished to be represented by him.” Id. Over multiple
pre-trial appearances it became clear that the defendant had refused to allow
witnesses to meet with defense counsel; the defendant repeatedly disrupted the
proceedings with profanity, receiving multiple findings of contempt; and the
defendant assaulted his attorney in court. Id. at 522–53, 530 S.E.2d at 67–68. The
court permitted counsel to withdraw and found that the defendant had waived his
right to appointed counsel. Id. at 523, 530 S.E.2d at 68. When the defendant finally
came on for trial on 6 April 1998, a month and a half after his original trial date, the
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trial court permitted an appointed attorney to serve as standby counsel and
defendant represented himself. Id. These facts demonstrate forfeiture of the right to
counsel because the defendant’s actions totally undermine the purposes of the right
itself by making representation impossible and seeking to prevent a trial from
happening at all.
In State v. Brown, the Court of Appeals considered whether the trial court
erred in permitting the defendant to proceed pro se. Brown, 239 N.C. App. 510, 510,
768 S.E.2d 896, 897 (2015). There, the defendant “refus[ed] to answer whether he
wanted assistance of counsel at three separate pretrial hearings” and “repeatedly and
vigorously objected to the trial court’s authority to proceed.” Id. at 519, 768 S.E.2d
at 901. Of particular importance to the question of forfeiture, it appears from the
court’s opinion that the defendant refused to participate in the proceedings and
utilized the hiring and firing of counsel to delay the trial. See id. at 513–16, 768
S.E.2d at 898–900 (detailing defendant’s refusal to give a clear answer as to desire
for counsel and refusal to engage in waiver inquiry upon persistent inquiry by the
court); id. at 516–517, 768 S.E.2d at 900 (detailing delay of nearly one month caused
by defendant’s attempts to dismiss counsel). By refusing to make an election as to
whether to proceed with counsel and by using the appointment and firing of counsel
to delay the proceedings, the defendant in Brown completely frustrated his own right
to assistance, warranting a finding of forfeiture.
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In State v. Joiner, the defendant instructed his counsel to withdraw and then
offered “evasive and bizarre answers” when the trial court conducted a hearing to
investigate the defendant’s desire to represent himself. Joiner, 237 N.C. App. 513,
514–15, 767 S.E.2d 557, 558–59 (2014). In a subsequent hearing on the same issue,
the defendant “refused to answer questions and declared that the trial court had no
authority to conduct the trial.” Id. at 515, 767 S.E.2d at 559. While the trial court
attempted to conduct the inquiry required by N.C.G.S. § 15A-1242, the defendant
refused to participate by refusing to acknowledge understanding, answering in
contradictory ways, refusing to answer at all, yelling obscenities and being “otherwise
extremely disruptive.” Id. The trial court found that the defendant was “refus[ing]
to engage appropriately simply as a means of delaying the proceedings.” Id. While
it is not relevant to the question of forfeiture, having occurred after the alleged
deprivation of the right to counsel,6 the defendant later threatened to “punch the
judge in the ‘f***ing face,’ ” he “refused to leave his cell on the second day of trial,” he
“threatened to stab an officer,” and, for good measure, “defecated and smeared his
feces on the cell walls” in addition to various other “extremely disruptive and
belligerent” activity. Id. at 515–16, 767 S.E.2d at 559. Prior to this extremely
disruptive behavior, the defendant had been evaluated to determine his competence
See Moore, 362 N.C. at 326, 661 S.E.2d at 726 (holding information learned by court
6
after waiver of right to counsel irrelevant to question of whether defendant’s sixth
amendment right violated).
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to participate in a criminal proceeding and was found competent to stand trial. Id.
at 514–15, 767 S.E.2d at 558.
If a defendant refuses to obtain counsel after multiple opportunities to do so,
refuses to say whether he or she wishes to proceed with counsel, refuses to participate
in the proceedings, or continually hires and fires counsel and significantly delays the
proceedings, then a trial court may appropriately determine that the defendant is
attempting to obstruct the proceedings and prevent them from coming to completion.
In that circumstance, the defendant’s obstructionist actions completely undermine
the purposes of the right to counsel. If the defendant’s actions also prevent the trial
court from fulfilling the mandate of N.C.G.S. § 15A-1242, the defendant has forfeited
his or her right to counsel and the trial court is not required to abide by the statute’s
directive to engage in a colloquy regarding a knowing waiver.
Serious obstruction7 of the proceedings is not the only way in which a
defendant may forfeit the right to counsel. Other courts have held that a defendant
who assaults his or her attorney, thereby making the representation itself physically
dangerous, forfeits the right to counsel. See, e.g., United States v. Leggett, 162 F.3d
237, 240 (3d Cir. 1998) (finding of forfeiture where defendant “lunged at his attorney
7 The Court of Appeals has previously stated that “[a]ny willful actions on the part of
the defendant that result in the absence of defense counsel [constitute] a forfeiture of the
right to counsel.” State v. Quick, 179 N.C. App. 647, 650, 634 S.E.2d 915, 917 (2006). This
statement is unsupported. Quick cites the Court of Appeals decision in Montgomery, which
states nothing of the sort. Montgomery, 138 N.C. App. at 524, 530 S.E.2d at 69. Further, it
is far too broad a statement to be consistent with the constitutional guarantee of the right to
counsel and the law of this state.
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and punched him in the head” and then “straddled him and began to choke, scratch
and spit on him”); Gilchrist v. O'Keefe, 260 F.3d 87, 90 (2d Cir. 2001) (reviewing
habeas claim where New York state court found forfeiture appropriate when
defendant “punched [counsel] in the ear and ruptured his eardrum”);8 cf. State v.
Holmes, 302 S.W.3d 831, 847–48 (Tenn. 2010) (after review of cases from many
jurisdictions, concluding that defendant had not forfeited right to counsel where
defendant pushed his finger at counsel and knocked counsel’s glasses askew). In such
a circumstance the trial court has permitted counsel to withdraw without appointing
new counsel who would be subject to physical harm. Obviously, a defendant who
intentionally seriously assaults their attorney has undermined the right to counsel.
Here, we agree with the Court of Appeals majority that Simpkins did not
“engage in such serious misconduct as to warrant forfeiture of the right to counsel.”
Simpkins, 826 S.E.2d at 852. The dissent urges a holding that Simpkins forfeited his
8 Then-Judge Sotomayor, writing for the panel in Gilchrist, provided the following
warning:
Although, of course, under no circumstances do we condone a
defendant’s use of violence against his attorney, had this been a
direct appeal from a federal conviction we might well have
agreed with petitioner that the constitutional interests protected
by the right to counsel prohibit a finding that a defendant
forfeits that right based on a single incident, where there were
no warnings that a loss of counsel could result from such
misbehavior, where there was no evidence that such action was
taken to manipulate the court or delay proceedings, and where
it was possible that other measures short of outright denial of
counsel could have been taken to protect the safety of counsel.
260 F.3d at 89 (Sotomayor, J.).
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right to counsel because, in the dissent’s view, “it is clear that defendant would not
accept the court’s authority.” However, the record belies that claim. Mr. Simpkins
appeared for the first time in Superior Court at 9:41 a.m. on 7 June 2017. By 10:00
a.m., the trial court had determined Simpkins had waived his right to an attorney
and the court appointed standby counsel to assist Simpkins in his defense. In that
twenty minutes, Simpkins made an untimely objection, stating that there was “no
proof of jurisdiction,” asked questions of the court out of turn, stated, in response to
the court’s inquiry, that he “would like counsel that’s not paid for by the State of
North Carolina,” asked four more questions of the court out of turn, and continued to
speak out of turn and argue with the court. However, the transcript of the
proceedings reflects that, when the court instructed Simpkins to stop asking
questions, he did so. When the court asked Simpkins whether he wished to proceed
with or without an attorney, he responded, for the most part, appropriately, first
requesting “counsel that’s not paid for by the State of North Carolina” and later
acquiescing when the court suggested he be appointed standby counsel. Throughout
the proceedings, including up to the point that he was required to proceed pro se,
nothing in the record suggests that Simpkins was rude or disrespectful to the trial
court. Simpkins’s conduct, while probably highly frustrating, was not so egregious
that it frustrated the purposes of the right to counsel itself. As a result, his conduct9
9The dissent, urging that we should find forfeiture, points to conduct which occurred
both before Mr. Simpkins came on for trial and after Mr. Simpkins was denied the right to
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did not amount to “such serious misconduct as to warrant forfeiture of the right to
counsel.” See Blakeney, 245 N.C. App. at 468, 782 S.E.2d at 98.
The State urges us to find that Simpkins forfeited his right to counsel largely
based on the frivolous legal arguments about jurisdiction that Simpkins put forward
throughout the proceeding. However, the State provides us with no reason to hold
that a pro se defendant can be held to have forfeited the right to counsel because the
defendant makes frivolous legal arguments. After all, a large part of the reason
defendants have a right to counsel is to prevent them from making frivolous legal
arguments. See, e.g., Burbine, 475 U.S. at 430, 106 S. Ct. at 1146 (stating that right
to counsel assures the accused is “not left to his own devices”). We reject the State’s
invitation to hold that a defendant, having been required to proceed without the
assistance of counsel without the necessary advisories,10 forfeits the right to counsel
because he suffers the very injury the right is intended to prevent.
Further, the State argues that Simpkins forfeited his right to counsel because
he failed to employ counsel before appearing for trial. However, the record evidence
does not establish that Simpkins consistently refused to retain counsel in an attempt
to delay the proceedings. “We are not here dealing with a situation where the record
counsel. It is the Superior Court proceedings, and what happened there, which are presented
to us for review. As to conduct occurring after Mr. Simpkins proceeded without counsel, the
question before us is whether Mr. Simpkins forfeited his right to counsel. It seems curiously
perverse to rule, as the dissent suggests, that a defendant can be deemed to have forfeited
his right to counsel based on conduct occurring after the defendant is denied counsel.
10 See N.C.G.S. § 15A-1242.
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shows that a criminal defendant, capable of employing counsel, has attempted to
prevent his trial by refusing to employ counsel and also refusing to waive counsel and
respond to the inquiry required by N.C.G.S. § 15A-1242.” State v. Bullock, 316 N.C.
180, 186, 340 S.E.2d 106, 109 (1986). Instead, the record reflects that Simpkins
engaged with the trial court throughout, coherently responding to the court’s
questions and ultimately agreeing to accept standby counsel. Further, on this record
we simply cannot conclude that the failure to retain counsel was an attempt to delay
the proceedings, and certainly not an attempt so egregious as to justify forfeiture of
the right to counsel. The record is silent on whether Simpkins made any efforts to
employ counsel. Here, where it appears that any question as to counsel was disposed
of on the first day Simpkins was called to trial in Superior Court, there is simply no
evidence of delay rising to the level of obstruction that would support a finding of
forfeiture.
The State also argues that Simpkins was generally uncooperative and
“intended to frustrate the orderly workings of the court.” As we noted previously,
defendant’s behavior was probably very frustrating, and may have been intended to
be frustrating. The trial court exhibited the utmost patience and should be
commended for the even-handedness with which it conducted the proceedings.
However, absent egregious conduct by the defendant, a defendant must be advised of
the right to counsel, the consequences of proceeding without counsel, and “the nature
of the charges and proceedings and the range of permissible punishments” before the
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defendant can proceed without counsel. N.C.G.S. § 15A-1242. Thus, where, as here,
the defendant’s behavior was not so egregious as to prevent the court from
proceeding, or to create a danger of any kind, forfeiture of the constitutional right to
counsel has not occurred. The full inquiry required by statute should have taken
place to determine if the defendant was knowingly waiving his right to counsel. The
trial court should have engaged in the required colloquy prior to appointing standby
counsel and permitting Simpkins to proceed pro se. See State v. Dunlap, 318 N.C.
384, 389, 348 S.E.2d 801, 805 (1986) (stating that standby counsel is not “a
satisfactory substitute for the right to counsel in the absence of a knowing and
voluntary waiver”).
Conclusion
A trial court may find that a criminal defendant has forfeited the right to
counsel. In such a case, the court is not required to follow the requirements of
N.C.G.S. § 15A-1242, which the court would otherwise be required to do before
permitting a defendant to proceed pro se. A finding that a defendant has forfeited
the right to counsel requires egregious dilatory or abusive conduct on the part of the
defendant which undermines the purposes of the right to counsel and prevents the
trial court from complying with N.C.G.S. § 15A-1242. Such conduct is not apparent
here, where the record reflects that the defendant was allowed to proceed without
counsel within twenty minutes of the start of the proceeding, was generally
cooperative with the court’s requests, participated in the proceedings, and did not
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STATE V. SIMPKINS
Opinion of the Court
utilize the right to counsel as a means of preventing the trial from moving forward.
Because of the violation of his right to counsel under the Sixth Amendment to the
U.S. Constitution and Article I, Sections 19 and 23 of the North Carolina
Constitution, the defendant is entitled to a new trial.
AFFIRMED.
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Justice NEWBY dissenting.
This case implicates the trial court’s authority over the courtroom and its
responsibility to maintain the dignity and legitimacy of trial court proceedings. A
criminal defendant has a constitutional right to counsel; however, that right may be
lost. Here defendant continually refused to acknowledge the authority of the court to
manage the case proceedings or the authority of the State to pursue defendant’s
criminal prosecution for misdemeanor crimes. By continually refusing to answer the
trial court’s questions and posing his own questions to the court, defendant
demonstrated his unwillingness to accept the judicial process, forfeiting his right to
an attorney. Nonetheless, the majority finds facts from a cold record to reverse the
trial court’s determination. The majority’s decision undermines the trial court’s
fundamental authority over the courtroom. I respectfully dissent.
In July 2016, Officer Trent Middlebrook ran defendant’s license plate through
his database and discovered that defendant, who owned the vehicle, had a suspended
driver’s license and a pending warrant for his arrest. When Officer Middlebrook
stopped defendant’s vehicle and asked for his license and registration, defendant
refused to provide the documents, continuously questioned the officer’s authority, and
behaved uncooperatively and belligerently. Officer Middlebrook then arrested
defendant.
STATE V. SIMPKINS
Newby, J., dissenting
Defendant was initially tried in district court for, inter alia, resisting a public
officer and failing to carry a registration card. While there is no transcript of those
proceedings, the record contains an unsigned, undated “Waiver of Counsel” form with
the following handwritten notation: “Refused to respond to . . . inquiry by the Court
and mark as refusal at this point.” The record also contains a Waiver of Counsel form
dated 16 August 2016, signed by the district court, which includes a handwritten
notation stating, “Defendant refused to sign waiver of counsel upon request by the
Court.” On that date, the district court found defendant guilty of resisting a public
officer and failing to carry a registration card. The district court judgment sheet again
twice notes that defendant had waived counsel.
Defendant appealed to superior court. On 6 March 2017, defendant moved to
dismiss the case, asserting that the court lacked jurisdiction to conduct the
proceedings. (This motion was denied at defendant’s superior court trial.) Three
months later, on 5 June 2017, defendant appeared before the court for a pre-trial
hearing. On 7 June 2017, defendant’s case came for trial in superior court. From the
outset, defendant continued to object to the proceeding on jurisdictional grounds:
[Defendant]: Objection, sir. I did not enter any pleas.
Do I need to stand?
The Court: What is the basis of your objection?
[Defendant]: There is no proof of jurisdiction here.
There hasn’t been since last year. I’ve been coming here
over a year, and there’s no evidence of anything besides the
allegation.
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STATE V. SIMPKINS
Newby, J., dissenting
The Court: Well, sir, evidence is put on at the trial.
So there is no evidence at this point.
[Defendant]: So how can you force someone here
without evidence, sir?
The Court: You’ve been charged with a crime. And
this is your day in court, your opportunity to be heard.
[Defendant]: Who’s the injured party, sir?
The Court: Sir, it is not consistent with judicial
proceedings for you to ask questions of the Judge. It’s the
Judge that will ask questions of you.
[Defendant]: Can I ask questions of the prosecution
then?
The Court: Not at this time. Thank you, sir.
Defendant then contended that, though he had been coming to the court since
August of 2016, he had never been advised of “anything,” including his right to
counsel. The trial court stated:
I see that in the Court’s file there are waiver of counsel
forms with notations that you refused to respond when you
were notified of your right to an attorney, and so you were
marked down as having waived an attorney.
You are charged with violations that could subject
you to periods of incarceration. And so I would like to
advise you that it is your right to have an attorney and if
you cannot afford an attorney, the State can provide one
for you. If you would like to apply for court-appointed
counsel, we’ll have you fill out an affidavit. If you wish to
retain your own, you certainly have that opportunity as
well.
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STATE V. SIMPKINS
Newby, J., dissenting
Defendant then requested counsel “not paid for by the plaintiff” and questioned
the court as to why there was no plaintiff in his case. The State objected, contending
that defendant had time to retain private counsel because the matter had been
pending for nearly a year and that defendant had been advised of his right to obtain
an attorney on two to three occasions. Defendant then indicated that he would like to
be appointed standby counsel, but thereafter three times questioned whether standby
counsel would be licensed by the State of North Carolina, implying that if counsel
were so licensed, counsel would be unfit to assist him. Defendant again questioned
the court, inquiring to which court he should appeal if he did not “get the right
judgment.” When the trial court responded that it could not give legal advice from the
bench, defendant asked, “How is that legal advice, sir?”
After the trial court identified a potential standby counsel, the following
exchange occurred:
[Defendant]: Do I have the right to be informed of
the cause of nature of these proceedings?
The Court: You are—you have been charged with
some crimes. We are here for a trial in your cases. We are
going through preliminary matters at this time.
Specifically, we are addressing your right to an attorney.
You’ve indicated that you would like to represent yourself
but that you’d like standby.
[Defendant]: No, sir. I did not say I want to represent
myself. I did not. I asked for standby counsel just to assist
me with what I have to ask you.
The Court: So let me inform you of the difference
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STATE V. SIMPKINS
Newby, J., dissenting
between standby counsel and retaining an attorney. If you
wish to have an attorney appointed to represent you, you
can ask for that.
[Defendant]: Uh-huh.
The Court: If you wish to represent yourself, you can
proceed without the assistance of a standby attorney or
with the assistance of a standby attorney. If you proceed
with the assistance of a standby attorney—if you decide
that later in the proceedings you wish to have the
assistance of counsel, the standby attorney can step in for
you on your behalf.
[Defendant]: Okay. You never answered my
question.
The Court: Sir, this is—this is going to be your
second and final warning. You’re speaking out of order. You
are free to make motions to the Court. You are not free to
challenge the Court with extraneous statements. If you
wish to address the Court, you need to make a motion by
standing up and making a motion. This is the final warning
you’re going to get.
[Defendant]: What does extraneous mean?
The Court: Sir, I – I can’t explain vocabulary to you.
The trial court then found that, “based on the prior proceedings, the waiver of
counsel form, dated August 16, which indicates that defendant refused to sign a
waiver of counsel upon request by the Court, signed by Judge Tucker,” defendant had
waived his right to counsel. The trial court then appointed standby counsel for
defendant.
-5-
STATE V. SIMPKINS
Newby, J., dissenting
As the preliminary trial matters proceeded, defendant continued to question
the court about various matters. Defendant then stated that he had been trying to
enter a negotiated plea but wanted “evidence of jurisdiction.” After conferring with
standby counsel and deciding he did not want to enter a negotiated plea, defendant
waived his right to, and released, standby counsel.
Throughout his trial, defendant repeatedly questioned the law enforcement
witness about the State’s authority and questioned the court about its authority. At
the end of the trial, the jury convicted defendant of resisting a public officer and
failing to exhibit/surrender his license.
Reviewed as a whole, it is clear that defendant would not accept the court’s
authority or the legitimacy of the court proceedings. He continued to pose questions
to, and refused to answer questions from, multiple trial courts. Only the trial courts
could evaluate defendant’s tone of voice, emotions, body language, and other non-
verbal communication cues accompanying his words to assess his sincerity in
continuously refusing to answer the courts’ questions. The trial court could truly
understand defendant’s actions to know when to protect the court proceedings from
undue disruption and delay. Defendant’s refusal to acknowledge the trial court’s
authority here and his repeated failure to respond to the various trial courts’ inquiries
disrupted the trial process and resulted in the forfeiture of his right to counsel.
-6-
STATE V. SIMPKINS
Newby, J., dissenting
While a criminal defendant’s right to be represented by counsel is well-
established, State v. Bullock, 316 N.C. 180, 185, 340 S.E.2d 106, 108 (1986), a
defendant may relinquish the right to counsel in certain situations, State v.
Montgomery, 138 N.C. App. 521, 524, 530 S.E.2d 66, 68–69 (2000).1 One way a
defendant may relinquish his right to be represented by counsel is through forfeiture.
State v. Quick, 179 N.C. App. 647, 649–50, 634 S.E.2d 915, 917 (2006). A defendant
may forfeit his right to counsel “when [he or she] engages in . . . serious misconduct.”
State v. Blakeney, 245 N.C. App. 452, 460, 782 S.E.2d 88, 93 (2016). Courts have
recognized forfeiture by misconduct when a defendant (1) engages in “flagrant or
extended delaying tactics, such as repeatedly firing a series of attorneys;” (2) employs
“offensive or abusive behavior, such as threatening counsel, cursing, spitting, or
disrupting proceedings in court;” or (3) “refus[es] to acknowledge the trial court’s
1 Though inapplicable here, one way a defendant may relinquish his right to counsel
is by waiving this right. State v. Thomas, 331 N.C. 671, 673–74, 417 S.E.2d 473, 475–76
(1992). If a defendant chooses to waive his right to counsel, the trial court “must determine
whether the defendant knowingly, intelligently, and voluntarily waives the right.” Id. at 674,
417 S.E.2d at 476. If a defendant chooses to waive his right to counsel, the trial court may
determine whether defendant’s waiver is knowingly, intelligently, and voluntarily made by
asking whether the defendant (1) “[h]as 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)
“[u]nderstands and appreciates the consequences of this decision;” and (3) “[c]omprehends
the nature of the charges and proceedings and the range of permissible punishments.”
N.C.G.S. § 15A-1242 (2019). Waiver by express oral or written consent, however, cannot be
the only method of relinquishing one’s right to counsel. Having only one method of
relinquishing one’s right to counsel would halt proceedings where a defendant refuses to
answer the trial court’s inquiries despite its diligent effort to obtain specific responses from
the defendant.
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STATE V. SIMPKINS
Newby, J., dissenting
jurisdiction or participate in the judicial process, or insist[s] on nonsensical and
nonexistent legal ‘rights.’ ” Id. at 461–62, 782 S.E.2d at 94.
Though a defendant’s right to representation is well-established, a trial court
has a “legitimate interest in guarding against manipulation and delay” in its
proceedings. United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995). “The trial
court understands courtroom dynamics in ways that cannot be gleaned from the cold
transcript . . . .” See United States v. Birchette, 908 F.3d 50, 58 (4th Cir. 2018)
(discussing the trial court’s discretion in the context of juror interviews), cert. denied,
140 S. Ct. 162, 205 L. Ed. 2d 51 (2019). Thus, as this Court has noted in numerous
contexts, some decisions are best made by the trial court. See, e.g., State v. Taylor,
362 N.C. 514, 527–28, 669 S.E.2d 239, 254 (2008) (noting that trial courts have the
ability to observe a prosecutor’s demeanor and questioning of prospective jurors
firsthand before ruling on a Batson challenge); State v. Hill, 347 N.C. 275, 297, 493
S.E.2d 264, 276 (1997) (noting that a trial court “is in the best position to determine
whether the degree of influence on the jury was irreparable” in order to determine
whether a mistrial is warranted); State v. Wilson, 322 N.C. 117, 127, 367 S.E.2d 589,
595 (1988) (stating that the trial court is in the best position to determine whether to
sequester because only the trial court can “determine the climate surrounding a trial
and it is [the trial court that] is in the best position to determine if a shield is
necessary to protect jurors, and thus the defendant, from extraneous influences”).
Because of the institutional advantage afforded to trial courts, such as the ability to
-8-
STATE V. SIMPKINS
Newby, J., dissenting
observe a defendant’s behavior, evaluate his tone of voice, and assess the sincerity of
his conduct, trial courts should be allowed the authority to maintain reasonable
control over their courtrooms.
Though not binding on this Court, the decision of the Court of Appeals in 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), is instructive. There the defendant refused to respond to the trial
court’s inquiry as to whether defendant wished to waive his right to counsel. Id. at
512–13, 710 S.E.2d at 285. At a second hearing, the defendant again refused to
answer the trial court and instead challenged the court’s jurisdiction. Id. at 513, 710
S.E.2d at 285. The Court of Appeals determined that the defendant’s refusal to
answer and his contradictory statements were insufficient to waive defendant’s right
to counsel. Id. at 517, 710 S.E.2d at 287. Nonetheless, the court noted that defendant
refused to “respond to the court’s inquiry regarding whether he wanted an attorney,”
refused to respond to the trial court’s inquiry at a later hearing, and “continued to
challenge the court’s jurisdiction.” Id. at 518–19, 710 S.E.2d at 288. The Court of
Appeals thus concluded that the defendant, through his conduct, had forfeited his
right to counsel. Id. at 519, 710 S.E.2d at 288–89.
Similar to Leyshon, defendant’s continuous behavior here shows that he
forfeited his right to counsel. At each stage of the proceeding, defendant has shown
his unwillingness to acknowledge the authority of various trial courts in conducting
their respective proceedings. When Officer Middlebrook initially stopped defendant,
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STATE V. SIMPKINS
Newby, J., dissenting
defendant refused to comply with the officer’s requests, and he continuously
questioned the authority of the officer. Though there is no transcript of the district
court proceedings, there are two notations in the record that defendant waived
counsel because of his refusal to respond to the district court’s inquiries. Once
defendant’s case came for trial in superior court, defendant expressed his
unwillingness to participate in the proceedings by continuously questioning that
court’s authority. The superior court attempted to determine whether defendant was
waiving his right to counsel. Instead of answering the superior court’s inquiry,
however, defendant questioned the court, said he would like standby counsel but then
questioned standby counsel’s licensure, asked the trial court how to appeal his case,
and asked to be informed “of the cause of the nature of these proceedings.” Notably,
defendant expressly waived his right to standby counsel shortly after standby
counsel’s appointment.
Moreover, despite defendant’s desire to have an attorney “not paid for by the
plaintiff,” defendant failed to retain an attorney in the more than eight months
between the district court and superior court proceedings. Defendant had attended a
hearing earlier in the week and knew at a minimum that he would need to be in Court
on 7 June 2017. This instance was not defendant’s first interaction with the legal
system; defendant had four prior distinct encounters with the legal system resulting
in convictions in North Carolina between 2014 and 2016. Additionally, defendant had
three prior convictions in South Carolina. Here defendant had already been tried in
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STATE V. SIMPKINS
Newby, J., dissenting
district court for resisting a public officer and failing to carry a registration card.
Given defendant’s repeated refusal to participate in the trial court proceedings below,
and in light of the misdemeanor charges for which defendant was tried, the trial court
could appropriately determine that defendant’s conduct was intended to disrupt the
court’s legitimate processes.
While “[a]n appellate court reviews conclusions of law pertaining to a
constitutional matter de novo,” State v. Bowditch, 364 N.C. 335, 340, 700 S.E.2d 1, 5
(2010) (citing State v. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 (2008)), each
case presents unique facts which must be assessed by the trial court. An appellate
court does not find facts; the authority to find facts resides with the trial court which
has face-to-face interaction with the parties. Here the majority assumes itself to be
the finder of fact, views a cold written record without having been present for any of
the trial court proceedings, and finds that there is no suggestion that defendant was
“rude or disrespectful” during the proceedings. Only trial courts can observe a
defendant’s demeanor and interpret the non-verbal communication cues
accompanying his words, which might not seem rude or disrespectful from a written
transcript in a cold record on appeal. In simply reading the record, appellate courts
lack the necessary context accompanying a defendant’s words and thus are not
designated as finders of fact. Employing the proper standard of review in this case
and looking at defendant’s conduct as a whole, the trial court’s determination that
defendant should proceed without an attorney is supported by competent evidence in
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STATE V. SIMPKINS
Newby, J., dissenting
the record.2 The trial court was in the best position to make such a determination
given defendant’s continual refusal to recognize the legitimacy of the legal process
throughout multiple stages in the court proceedings.
Trial courts have a “legitimate interest in guarding against manipulation and
delay.” Goldberg, 67 F.3d at 1098. Given this legitimate interest, a trial court must
be afforded discretion to ensure that legal proceedings are respected by all, which in
turn enables the court to provide orderly and just proceedings for all. Because
defendant forfeited his right to counsel by his own conduct, I respectfully dissent.
Justice MORGAN joins in this dissenting opinion.
2 While the trial court concluded that defendant “waived” his right to counsel, the
record here shows, as the State argued, that defendant actually forfeited his right to counsel.
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