State v. Wray, 206 N.C.App. 354, 698 S.E.2d 137 (Aug. 17, 2010)

The trial court erred by ruling that the defendant forfeited his right to counsel. The defendant’s first lawyer was allowed to withdraw because of a breakdown in the attorney-client relationship. His second lawyer withdrew on grounds of conflict of interest. The defendant’s third lawyer was allowed to withdraw after the defendant complained that counsel had not promptly visited him and had “talked hateful” to his wife and after counsel reported that the defendant accused him of conspiring with the prosecutor and contradicted everything the lawyer said. The trial court appointed Mr. Ditz and warned the defendant that failure to cooperate with Ditz would result in a forfeiture of the right to counsel. After the defendant indicated that he did not want to be represented by Ditz, the trial court explained that the defendant either could accept representation by Ditz or proceed pro se. The defendant rejected these choices and asked for new counsel. When Ditz subsequently moved to withdraw, the trial court allowed the motion and found that the defendant had forfeited his right to counsel. On appeal, the court recognized “a presumption against the casual forfeiture” of constitutional rights and noted that forfeiture should be restricted cases of “severe misconduct.” The court held that the record did not support the trial court’s finding of forfeiture because: (1) it suggested that while the defendant was competent to be tried, under Indiana v. Edwards, 554 U.S. 164 (2008), he may have lacked the capacity to represent himself; (2) Ditz had represented the defendant in prior cases without problem; (3) the record did not establish serious misconduct required to support a forfeiture (the court noted that there was no evidence that the defendant used profanity in court, threatened counsel or court personnel, was abusive, or was otherwise inappropriate); (4) evidence of the defendant’s misbehavior created doubt as to his competence; and (5) the defendant was given no opportunity to be heard or participate in the forfeiture hearing.