State v. Harvin, 2022-NCSC-111, ___ N.C. ___ (Nov. 4, 2022)

In this New Hanover County case, the Supreme Court affirmed the Court of Appeals majority decision vacating the judgments against defendant and ordering a new trial because he was denied his constitutional right to counsel.  

In May of 2015, defendant was indicted for first-degree murder and associated robbery charges. Over the course of the next three years, defendant had several court-appointed attorneys, and then chose to represent himself with stand-by counsel. When the charges reached trial in April of 2018, defendant expressed uncertainty about his ability to represent himself, leading to an exchange with the trial court regarding his capacity and desire to continue without counsel or obtain appointed counsel from the court, as well as defendant’s confusion about an ineffective assistance of counsel claim. After considering arguments from the State regarding defendant’s termination of his previous counsel and delay of the proceedings, the trial court concluded that defendant had forfeited his right to counsel for the trial. Defendant was subsequently convicted on all counts.

The Supreme Court majority found that defendant had not engaged in behavior justifying forfeiture of his right to counsel. The court explained that forfeiting the right to counsel is a separate concept from voluntary waiver of counsel, and generally requires (1) aggressive, profane, or threatening behavior; or (2) conduct that represents a serious obstruction of the proceedings. Slip Op. at 32-33. Although defendant cycled through four court-appointed attorneys before choosing to represent himself, two of those attorneys withdrew for reasons totally unrelated to defendant’s case, and the other two withdrew at defendant’s request, with leave of the court. Applying the relevant standards to defendant’s conduct, the majority could not find any behavior rising to the level required for forfeiture, noting that “defendant’s actions, up to and including the day on which his trial was scheduled to begin, did not demonstrate the type or level of obstructive and dilatory behavior which allowed the trial court here to permissibly conclude that defendant had forfeited the right to counsel.” Id. at 41. 

Justice Berger, joined by Chief Justice Newby and Justice Barringer, dissented and would have upheld the decision of the trial court that defendant forfeited his right to counsel. Id. at 43.