State v. McGirt, COA24-551, ___ N.C. App. ___ (Mar. 19, 2025)

In this Wake County case, defendant appealed his convictions for statutory sex offense with a child and indecent liberties with a child, arguing error in concluding defendant waived his right to counsel or forfeited his right to counsel. The Court of Appeals majority concluded defendant did not voluntarily waive his right to counsel or forfeit his right to counsel, reversing and remanding for a new trial.

In 2019, defendant was indicted for the sex offense and indecent liberties charges, and because defendant was indigent the trial court appointed counsel. This began a series of five appointed attorneys representing defendant, and by 2023 all the attorneys withdrew or were replaced. On May 4, 2023, the trial court held a hearing on the final attorney’s motion to withdraw, and after consulting with defendant concluded that defendant had waived his right to representation and ordered the public defender’s office to supply standby counsel. On May 22, 2023, defendant requested another court-appointed attorney, and the trial court denied the request. The State moved to have standby counsel question witnesses during trial and the trial court granted the motion, but otherwise defendant represented himself at trial.

Taking up defendant’s arguments, the Court of Appeals first considered waiver, looking to precedent like State v. Moore, 290 N.C. App. 610 (2023), for the circumstances required to find waiver of the right to counsel. Here, the trial court did not tell defendant that if he fired his attorney, he would be waiving the right to counsel, instead pronouncing this after granting the attorney’s motion to withdraw. Also, “[t]he trial court never asked if Defendant wished to represent himself, nor did Defendant make an explicit statement that he would represent himself” and the trial court also “did not inquire whether Defendant understood the difference between a court-appointed counsel versus standby counsel, such that Defendant was now proceeding pro se.” Slip Op. at 14 (cleaned up). The court noted that defendant repeatedly asked for new counsel, despite once mentioning representing himself, meaning it was not clear and unequivocal that defendant wished to represent himself. As a result, the court concluded defendant did not “clearly and unequivocally” waive his right to counsel. Id. at 18.

The court then looked to whether defendant forfeited his right to counsel, concluding “[b]ased on the Record evidence, we cannot say Defendant’s firing of his attorneys was ‘egregious misconduct’ or a flagrant delaying tactic” and it was error to find that defendant forfeited his right to counsel. Id. at 23. Finally, the court considered the hybrid waiver/forfeiture by conduct outlined in State v. Blakeney, 245 N.C. App. 452 (2016). The court concluded defendant did not waive his right to counsel by conduct “[b]ecause waiver by conduct ‘requires that a defendant be warned about the consequences of his conduct,’ and there is no Record here that the trial court provided Defendant with any warning regarding his conduct, nor does the State argue there was any warning[.]” Id. at 25 (quoting Blakeney at 465).

Judge Tyson dissented and argued “[t]he majority’s opinion incorrectly concludes Defendant did not waive or forfeit his right to counsel.” Id. at 32.