Episode 14: Windseth, Fuller, and McGirt

[00:00:05.870] [SPEAKER_01] A finding that the 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. The Court of Appeals recently decided two cases dealing with the forfeiture of counsel. In one case, it upheld the trial court's finding of forfeiture, and in the other case, it reversed. Today, we'll be discussing both cases, State v. Fuller and State v. McGirt. I'm Joseph Hyde with the University of North Carolina School of Government. And I'm Jonathan Holbrook with the North Carolina Conference of DAs. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina. John, before we get to those forfeiture of counsel cases, there was a case about authenticating surveillance video as a business record. What can you tell us about State v. Winseth?
[00:00:59.424] [SPEAKER_00] Yeah, Joe, I don't know exactly how often this is going to come up for prosecutors, but I found this case to be really fascinating. State v. Winseth is one that we just got on March 19th of this year. It is a case out of Jackson County. It started back in January of 2022 when the defendant's mother, a woman named Joanna Winseth, went missing. And so the Jackson County Sheriff's Office began investigating her disappearance. And as part of that, they subpoenaed. her bank, Wells Fargo, for account information in the hopes of tracking her possible whereabouts. So in response, Wells Fargo sent them back a number of materials along with what they called a business records declaration detailing all of the information they were including with some of the boilerplate language that we're all familiar with from that records custodian declaring that that person is an employee of Wells Fargo and the records were prepared by personnel in the ordinary course of business at or near the time of the events described ordinary course of business recorded by employees with knowledge of the events recorded, true and correct copies, et cetera, et cetera, and then it's signed as being declared under penalty of perjury under the state of North Carolina that these are true and correct. Now, what's interesting about this is that part of what Wells Fargo has turned over is ATM videos showing transactions being made on the defendant's mother's account. And there's video there showing that the defendant is the one withdrawing money from his mother's bank accounts while she's apparently missing and he claims he doesn't know where she is. So based on all of that, they begin looking now for this defendant. They find him camping in August of 2022. They find on his person a number of these credit and debit cards belonging to his mother. And so he is charged with a number of offenses related to those bank accounts. He got convicted ultimately at trial of felony obtaining property by false pretenses, felony identity fraud under 14-113.20. At that trial, the state offered as evidence several still shots taken from these ATM videos that they had gotten from Wells Fargo showing the defendant making these withdrawals. One of the officers was able to identify the defendant as being the individual withdrawing his mother's funds in these videos, and so the defendant is ultimately convicted. On appeal, he's challenging essentially the admissibility of these still shot photographs that were taken from the video from Wells Fargo that was turned over to the state essentially as a business record. And the defendant is arguing this was not admissible. There was no proper foundation laid for these photographs, essentially, under General Statute 8-97. You know, we're all familiar with these Cases interpreting that like State v. Cannon and the others that say that if we want to introduce a video or a photograph as substantive evidence, we have to lay that proper foundation and meet these evidentiary requirements about showing that the video or the photo has not been edited, it fairly and accurately recorded the actual appearance of whatever was photographed. Those requirements have to be met. But again, here, the way the state received this and then offered it into evidence at trial was as a business record that was provided to them by Wells Fargo. And so the Court of Appeals talks about how Rule 901 is sort of the main evidentiary statute we look at regarding admission of evidence and making a showing of sufficient to support a finding that the matter in question is what it purports to be. But they also talk about the records of regularly conducted activity under Rule 8036, and they say that here, you know, where there's a sworn affidavit from a records custodian or thanks to a recent amendment just affirmed under penalty of perjury, they say that process also fulfills the purpose of authentication, citing to State v. Hollis, for example, from 2024. And so does that work for them? What we're talking about here are still shots taken from the video, but a little later in the opinion, they make the point that still shots from a video, if you've authenticated and admitted the entire video, then you've authenticated the individual photographs that comprise the video.
[00:05:11.341] [SPEAKER_01] Yeah, John, I'm a little suspicious of the lawyering here, right? Because he didn't object to the video, but then is complaining about the introduction of the stills? Is that what
[00:05:18.839] [SPEAKER_00] happened? My understanding from the opinion, it says at trial, the state offered as evidence several still shots from the video. Oh. I could be mistaken, but that's my understanding of what's being offered. And so he's challenging the admissibility of those still shot photographs. But the Court of Appeals is making the point of if you authenticate the video, you've authenticated every individual still shot that comprises that video. So then there's this question of, but can you do that as a business record with a video from the bank? They say we don't have any controlling North Carolina precedent for this, but they look to an earlier case that we do have, State v. Jackson from North Carolina, a 2013 case that dealt with a video file plotting data from an electronic monitoring device. And the state there basically offered that as being properly offered as essentially a business record and the court there in Jackson agreed. The extraction was admissible as a business record as long as the underlying data was recorded in the regular course of business near the time of the incident, laid upon a proper foundation. They also look at an 11th Circuit case from 2020 called United States versus Clotaire, which they say addressed the precise issue upon near identical facts. And so based on all of that, they say that we First, reject this challenge because the still shots are just a subset of the available data that is found within the larger video that is being extracted. But also, they say in terms of laying a proper foundation for it, even though these are videos, they say the state adhered to its main evidentiary requirement by adducing without objection Wells Fargo's business records declaration made under penalty of perjury. by a witness who's familiar with them, and they say, thus, this court holds that the trial court properly authenticated the ATM videos as admissible evidence because their derivative photos were nothing more than a series of static images appearing at a given frame rate. So, long story short, yes, videos, videos from a bank turned over to the state with a business records affidavit from the custodian of records offered as business records at trial, that lays a sufficient foundation for the videos to come in as substantive evidence and be considered by the jury.
[00:07:37.226] [SPEAKER_01] John, this is giving us sort of an alternative to that other test of having a person testify that the video equipment was working properly and it accurately depicts whatever was shown. It's not replacing that test, right? This is just another way you can get those...
[00:07:49.644] [SPEAKER_00] It's just another way to get there. But Joe, this was exciting for me to read because I think about pairing this up with another recent case that we had, State v. Jones. That was one that the Court of Appeals decided, I believe that was in March of 2023. But that was one where, rather than a business, This is a great way to go if you've got videos from the bank, from the church, from the government building, something like that. If you've got an individual, those ring surveillance doorbell cameras or something like that, that's what was at issue in State v. Jones. And again, if the homeowner can come in as a witness and just tell you those State v. Cannon factors, I know this camera works properly, I extracted the video, here it is, it's unaltered, that's great, we can do that. But in State v. Jones, the testimony that was offered all came from the detective who had spoken to the homeowner by phone. The homeowner said, I have this video showing the break-in and then emailed a copy of the video to the detective. And only the detective is testifying on voir dire to lay the foundation for the video. But again, that was allowed. I feel like These are two important cases, kind of two sides of the same coin. There's an easy way to get there from an individual perspective, like a doorbell cam. Here's a very easy way to get there with something like surveillance video from the convenience store or the bank. These are business records being kept by them. This would be an alternative way to get that admitted. Certainly, you could bring in your individual witnesses if you have them. I think these are great tools for prosecutors given the increasing prevalence of video in so many cases. I think pairing up between that Jones case or now this State v. Winseth case, two really interesting alternative ways that we might be able to get that video admitted as substantive evidence. There is a second issue in here about dealing with lay opinion testimony because looking at the photographs, the officer specifically identified the defendant as being the person portrayed in those photographs at the ATM. The court discusses that a little bit. We've had a number of cases that say to offer a lay opinion testimony about identifying somebody in a video, there needs to be some reason to think that the testifying witness is in a better position than the jury to be able to say, yes, that's the defendant in the video.
[00:10:04.121] [SPEAKER_01] So let me get to, I mean, the defendant was arguing here, the specific argument, right, was this, was a violation of something like that Belk line of case, that case that says it's improper for a late witness to quote unquote invade the province of the jury, tell the jury something that the jury can just as easily see for
[00:10:18.995] [SPEAKER_00] itself. I think that's the idea. They talk about Belk, and they talk about how under Rule 701, an officer could testify as a layperson only if that testimony is A, rationally based on the officer's own perception, and B, helps to determine a fact and issue. So I think you're exactly right. I think the rationale behind these cases is if the jury could look at this picture and see the same thing as you, hey, your guess is as good as mine, That's an improper lay opinion. It's not really adding anything or helping the jury in any way. That didn't apply here because they explain this officer looking at these surveillance videos, he had already dealt with the defendant a number of times based on this prior investigation into the defendant's mother being missing. Remember that happened back in January of 2022. So he had interacted with the defendant on multiple occasions as part of that pre-existing investigation. John,
[00:11:07.071] [SPEAKER_01] does that make this witness an expert in the identification of this defendant? Is that what's going on here? I mean, clearly the rationale is something like this witness has a better basis than the jury to identify what's going on in the video. But I'm not sure it was, strictly speaking, necessary to qualify that witness as an expert. What's your take on that?
[00:11:24.851] [SPEAKER_00] No, no, I don't think we're talking about a Rule 702 expert. I think we're just talking about Rule 701 lay opinion testimony. But somebody in a better position than the jury
[00:11:33.066] [SPEAKER_01] to say what's going on here.
[00:11:34.688] [SPEAKER_00] That's right. And you know, Joe, we've had those cases where on a black and white surveillance video, I mean, looking at this car, Is that the defendant's navy blue car or is that just some other black Honda Accord? Well, that detective who's done surveillance on the defendant for three months and knows that he drives this navy blue Honda with these bumper stickers, he's got some basis to be able to say, maybe you can't tell just by looking at the video, but here's what I know. And so I can tell you. that it definitely is the defendant's car. They felt like this fell more into that camp, was that he did have this prior interaction with the defendant and dealt with him on a number of occasions. So he could look at that video and give an opinion that would be helpful to the jury. It's helpful to them for him to say, as somebody who knows this person, yes, I do believe that's him depicted right here in this video, along with the other evidence. So video part was more interesting, but an additional supporting case there on lay opinion. So interesting times with State v. Winsleth. Way to get a video in and also what
[00:12:30.980] [SPEAKER_01] another witness can say about
[00:12:32.062] [SPEAKER_00] the video. And then, Joe, we get to the main event that you forecast getting into these forfeiture of counsel issues, starting with State v. Fuller.
[00:12:38.476] [SPEAKER_01] Yeah, State v. Fuller. The procedural story in this case, the factual recitation that the Court of Appeals gives, similar to the factual recitation in McGirt, really has to do with the procedural facts of what happened at trial and not the underlying conduct, because both cases deal with an allegation that the defendant forfeited his right to counsel. So in Fuller, back in February of 2022, the defendant was indicted for obstruction of justice, two counts of attempting to access a government computer to defraud, and two counts of filing false liens. Also in February of 2022, at defendant's first appearance, he allegedly indicated he was waiving his right to counsel but refused to sign the waiver form. At a pretrial hearing in August of 2023, defendant provided conflicting responses as to whether he wanted an attorney. The trial court ultimately appointed James Reeves to be defendant's counsel. And then at a pretrial hearing later in August of 2023, the trial court removed defendant from the courtroom for being disruptive. His attorney, James Reeves, told the trial court that the defendant did not wish for Reeves to continue to represent him. And then at the afternoon session, we're still back in August of 2023, the trial court found the defendant had forfeited his right to counsel based on inappropriate behavior and released Reeves from his appointment. The case came on for trial in September of 2023. Defendant was brought into the courtroom handcuffed to a wheelchair because he had threatened to remove his clothing, the trial court again concluded that the defendant had forfeited his right to counsel. The reason that's important is the trial court again gave the defendant an opportunity to say whether he wanted to proceed, whether he wanted an attorney. The defendant was interrupting the trial court. They couldn't seem to find a way to communicate on this, and the trial court again concluded the defendant had forfeited his right to counsel. The state made a plea offer The defendant requested counsel before rejecting the plea offer. The trial court denied the request for counsel and defended to continue to assert his right to counsel. Again, the defendant was removed from the courtroom for being disruptive. He was brought back after the orientation for prospective jurors. The defendant continued to interrupt jury selection, claimed he was denied the right to counsel. The trial court concluded that defendant had forfeited not only the right to counsel, but his right to be present and ordered defendant removed from the courtroom. The defendant was brought to court the next morning for trial and continued to interrupt the trial court judge, continued to be disruptive and combative in the courtroom. The trial court ruled that defendant had forfeited the right to counsel and not provided assurances of appropriate behavior. So again, had the defendant removed from the courtroom. The trial proceeded in defendant's absence. And during this time, the trial court is giving written updates to the defendant as the trial progressed. That apparently was communicated by way of the bailiff sending notes back to the defendant. The defendant asked the bailiff at some point when he could return to the courtroom. The bailiff told the defendant he could return if he behaved. Defendant asked, what does that mean? When that communication was given to the trial court, the trial court ruled that defendant still had not provided assurances of his good behavior. The jury found the defendant guilty of all the charges. Defendant was returned to the court for sentencing, was convicted and sentenced, and then defendant appealed. And then on appeal, three of the four issues that were raised really had to do with that forfeiture of counsel and the forfeiture of the right to be present. Defendant argued first that the trial court erred by finding he had forfeited the right to counsel. The Court of Appeals recited the rule that the forfeiture of the right to counsel requires egregious, dilatory, or abusive conduct that undermines the right to counsel. It may occur if the defendant's conduct constitutes a serious obstruction to the proceedings. By contrast, in the Court of Appeals look to the recent North Carolina Supreme Court case called Simpkins, the defendant's conduct in Simpkins did not warrant forfeiture when the defendant presented frivolous legal arguments, but was not rude or disruptive to the court. So making these arguments to the court that may have no basis in law doesn't necessarily justify a finding of the forfeiture of counsel, whereas our defendant here, Fuller, was not only making these frivolous arguments, but was also being disruptive, interrupting the judge, shouting out during jury selection, apparently, like I said, threatened to remove his clothes, and so was brought in handcuffed to a wheelchair. In this case, the Court of Appeals noted that the defendant repeatedly disrupted the trial proceedings, he repeatedly interrupted the court, he refused to work with appointed counsel, he was combative and interruptive. And given that conduct, the Court of Appeals concluded that defendant's actions were sufficiently obstructive and egregious such that they frustrated the purpose of the right to counsel and the trial court did not err in finding that this defendant had forfeited the right to
[00:17:02.926] [SPEAKER_00] counsel. Joe, it does seem like there are, I don't know, let's call it maybe shades of sovereign citizen language being thrown around in here. You know, he refers to himself as, I'm not the defendant, I'm here as the authorized representative of the defendant. Right, he
[00:17:17.090] [SPEAKER_01] says he's a secured party creditor, a third party intervener in this matter over title to the book. There's a lot of nonsense here that the
[00:17:23.943] [SPEAKER_00] trial court just refuses to engage with. But that's not the only basis for them finding that he's forfeited his right to counsel. It's also that plus this disruptive behavior. Disruptive
[00:17:33.218] [SPEAKER_01] in the sense of talking over the judge, talking over counsel, talking over the prosecutor when they were trying to have meaningful communication with the court. Court of Appeals found that that disruptive behavior was egregious enough that it frustrated the purpose of the right to counsel itself, and that was the
[00:17:47.798] [SPEAKER_00] dispositive factor. So he's forfeited his right to counsel, and then based on disruptive conduct, he's forfeiting his right to be present in the courtroom. But that sort of puts us in an interesting spot. The statutes, I believe, that are talking about how we proceed if someone has forfeited their right to be present in the courtroom, don't they kind of presume that there will then be a lawyer for you in the courtroom? That's right.
[00:18:08.974] [SPEAKER_01] Yeah, that's right. And the Court of Appeals noted that the statute, its general statute 15A-1032 governs the procedures for removing a disruptive defendant. And I think it says in here specifically, it is true that that statute presumes a defendant has counsel because the particular provision about keeping the defendant informed says that a defendant removed from the courtroom must be given the opportunity of learning of the trial proceedings through his counsel at reasonable intervals as directed by the court and must be given an opportunity to return to the courtroom during the trial upon assurances of good behavior. That in fact formed the basis of the second argument that this defendant raised on appeal that the trial court aired by finding that he had forfeited the right to be present. The Court of Appeals recognizes that forfeiture of the right to be present may occur if, after warning, the defendant insists on conducting himself in a manner so disorderly, disruptive, or disrespectful that the trial cannot be conducted with him in the courtroom. The Court of Appeals found that that test was satisfied here. And then with regard to your point about the defendant being kept notified or kept informed of the proceedings, the trial court in this case apparently was sending back written updates to the defendant through the bailiff. The defendant didn't have counsel at this point, but through the bailiff to keep the defendant informed of the proceedings and repeatedly to give him an opportunity to return upon assurances of his good behavior. When the defendant failed to give those assurances of his good behavior, the trial court refused to let him return and the Court of Appeals found no error in that determination. The defendant also argued, and this again going to the right to counsel and the right to presence, the defendant argued that the trial court erred by failing to appoint standby counsel to act on his behalf while he wasn't there. The Court of Appeals noted that General Statute 15A-1032 does not require the appointment of standby counsel when the defendant is removed from the courtroom. And moreover, a pro se defendant lacks a constitutional right to standby counsel. So it concluded in this case, the defendant failed to show the trial court abused its discretion in failing to appoint standby counsel And then, Joe, finally, there was this issue about his record level with the out-of-state conviction. There was one issue having to do with the determination of his prior record level. And this actually was the single basis upon which the Court of Appeals reversed in Fuller because at trial, there was an issue with a prior conviction from Virginia. The defendant claimed on appeal that the trial court erred by concluding that Virginia's identity theft statute was substantially similar to North Carolina's identity theft statute Defendant argued that the Virginia statute can be violated by using the identifying information of a false or fictitious person, whereas the North Carolina statute required the offender to use the identifying information of a real person. The rule under 15A.1340.14E is that if the state proves that an offense classified as a misdemeanor or felony in another jurisdiction is substantially similar to an offense in North Carolina classified as a Class I felony or higher, the conviction is treated as that class of felony for prior record level purposes. Virginia's identity theft statute classifies the offense as a class one misdemeanor absent certain other aggravating factors. In North Carolina, the offense of identity theft is classified as a class G felony. So here, the state provided the trial court with a defendant's prior record level worksheet and a certified copy of the defendant's criminal history. It also provided a copy of Virginia's identity theft statute and the North Carolina identity theft statute. And the trial court found by a preponderance of evidence that the Virginia offense was substantially similar to the North Carolina offense. The Court of Appeals noted that in other cases, the way that the mechanism for showing substantial similarity can in certain circumstances be satisfied by a presentation of the out-of-state statute and the North Carolina statute. The problem here was that question of substantial similarity is a question of law, and the Court of Appeals was not bound by the trial court's determination of that issue. It found that the defendant was correct that the Virginia statute can in fact be violated by using identifying information of a false or fictitious person, whereas the North Carolina statute requires the identifying information of a real person. And because there wasn't this substantial similarity of elements, because there wasn't a complete overlap of what has to be shown in order for those offenses to be committed, the Court of Appeals concluded that these statutory offenses are not substantially similar. The Court of Appeals held that the trial court erred by ruling the offenses were substantially similar, treating the Virginia conviction as a Class G felony for the prior record-level determination in North Carolina. It remanded for resentencing with a note that at resentencing, the hearing would be open to other evidence that might be presented, but it was
[00:22:42.140] [SPEAKER_00] remanded on that basis. You know, Joe, it seems like our primary interest in this case is on that forfeiture of counsel issue. And there are going to be those cases where that person is so disruptive, so non-responsive that it's relatively easy for the court to say this satisfies the criteria to say you forfeited counsel. You're acting directly contrary to the purpose for which counsel is intended to serve. But the other case that you mentioned, State v. McGirt, I think is sort of an interesting counterpoint to that. This one may, to some prosecutors, sound a little bit more familiar. It's not the outbursts in court. It's just sort of the frustrating difficulty of seeming to get an attorney that's going to go the distance in the defendant's case. This was also decided on March 19th of this year, a case out of Wake County. Like you said in Fuller, Joe, we don't have a ton of facts because it's really just about the procedure. But The defendant was indicted and charged with six counts of statutory sexual offense with a child and 10 counts of indecent liberties with a child. And we end up cycling through about half a dozen different appointed or assigned counsel. Number one, he's initially assigned to the public defender's office. But they have to withdraw as counsel because they have a conflict from a prior representation. So then he gets appointed to a second attorney whose last name is Wilson. But that attorney leaves private practice to go back into government service. So he can no longer be his attorney. There's a third attorney who gets appointed, Popkin Bradley. But that person moves to withdraw from defendant's counsel for personal reasons, stating in a motion that she could not be effective in defending the defendant. So the court grants a motion for that attorney to withdraw, appoints yet another. So then a fourth attorney gets appointed. That is Lumsden, and is appointed in May of 2021. The defendant argues that he's dissatisfied with that attorney's representation, files a pro se request asking to have that attorney removed. The court says, you are represented by counsel. We're not going to move on that pro se motion, but we'll come into court and have a hearing on it. So that happens on June 3rd of 2022. They have this hearing. The motion is granted in part, allowing counsel to be withdrawn. but then ordering the appointment of attorney number five, another Wake County attorney whose last name is Christopher. So that attorney gets appointed. The defendant then in August of 2022 writes another letter saying that he wants Christopher to be fired because that attorney, he says, has not come to see him. And so that attorney moves to withdraw and there's a hearing held on that in May of 2023. We are now just about three weeks before this matter was set to go to trial when this motion to withdraw comes on to be heard. And the court ultimately does grant that motion and then addresses the defendant about whether he's going to get another lawyer after that. Now, as part of this hearing, the court asks if the state has anything they want to add. And the state talks about sort of their frustration in the fact that they've been trying to get this case resolved. And it says the state has every single time tried to get this to trial, and he's continued to behave in ways that are making that impossible. The state is ready to proceed on May 30th. It's been set for several months. And so the state is basically saying, I want you to leave this attorney in, or I want you to just appoint somebody else. The trial court does engage in a colloquy with the defendant about his representation and whether he's going to get another attorney, but it seems like the judge maybe is a little bit frustrated or running out of patience as well. So they talk about that. The court says, you do understand you have had the right to have attorneys represent you, but it seems as though you've five times not been satisfied with the counsel that's been provided. And defendant agrees he's not been satisfied with his counsel. So the court then says to the defendant, I'm going to find that you have waived your right to the assistance of counsel. I will not assign a sixth attorney to represent you on these matters. The case can still move forward to trial. I will assign standby counsel, that ends up being the last attorney who had been appointed, and the defendant is not objecting. So then May 30th, 2023, matter comes on for trial. Standby counsel has some involvement questioning the prosecuting witness, but otherwise defendant is representing himself, and the jury convicts the defendant, And he's ended up sentenced to a total of 75 years imprisonment. And so the issue we're dealing with on his appeal is, did he waive or forfeit his right to counsel? The court looks at that first question about did he waive counsel and says, no, they agree with him that he did not clearly and unequivocally request to proceed pro se at this May 4th, 2020 hearing where the court found that he had entered into this voluntary waiver of counsel. And the appellate court sort of goes through the test that has to be required. As you mentioned in the last case, Joe, it's right to counsel is pretty fundamental. And so if we're going to say that somebody has just outright waived it, then they have to be assured that these constitutional and and statutory safeguards have been satisfied. And that is the colloquy that the judge must engage in to ensure that the defendant is knowingly, intelligently, and voluntarily waiving their right to in-court representation by counsel. As I said, it has to be clearly and unequivocally expressed. And they find that this really was not. Along with these additional requirements that have been set out by statute and case law, like the fact that the trial court has to specifically advise the defendant of the possible maximum punishment, the range of permissible punishments, the consequences of representing himself. Even if there is a written waiver, they cite some additional cases like Jenkins that have clarified that even when there is a written waiver certified by the trial court, that'll be presumed to be knowing, intelligent, and voluntary. we still have to have the rest of that colloquy shown in the record. A written waiver is something in addition to the requirements of 15A-1242, not an alternative to it. And they go through a few examples of what would be deemed a sufficient waiver, but they feel like this is falling short. Yes, there were things that the defendant had previously written or said about potentially representing himself, but we're also kind of bouncing back and forth. I mean, at times he's saying that he doesn't want this person, but he's saying, I do still want to have counsel. So it's not entirely clear to him. But most importantly, they say that the defendant was not told by the trial court that he would be waiving his right to any other counsel if he proceeded on with his request to relieve this last attorney Mr. Christopher. They say nothing in the colloquy with the trial court indicated he expressly and voluntarily waived his right to counsel. The trial court never is asking him, do you want to represent yourself? We kind of go in a reverse order. Are you sure you want to get rid of this attorney? Yes, I am. Okay, then he's out. And now I'm finding that you have waived your right to any further counsel. And they're saying that's not really satisfying.
[00:29:23.855] [SPEAKER_01] So we we never have an unequivocal request to proceed per se, and we don't have a sufficient colloquy, but what about the possibility of waiver by conduct, right? They do talk about that.
[00:29:32.855] [SPEAKER_00] They also look at forfeiture first, talking about whether or not he's forfeited his right to counsel. And here, I think, Joe, we can sort of skim over that by contrasting it with your Fuller case. You know, he's not engaging in that kind of, he's not punching his attorney in the nose. He's not doing that directly disruptive kind of things that would constitute the forfeiture of the right to counsel. There's none of this nonsense about
[00:29:56.090] [SPEAKER_01] sovereign citizen, him being a contractual obligation to be a person or whatever.
[00:30:00.339] [SPEAKER_00] That's right. He says he had difficulty with his attorneys. He's saying that they weren't coming to see him, but that's not refusing to cooperate with them or insisting that they pursue defenses that are just barred by North Carolina law. He's not engaging in that kind of forfeiture conduct that we've found in the past. They say there's nothing in the record that indicates that the defendant's objectives were unethical, dilatory. He's perhaps just maybe a difficult client, but he's not exactly instructing his attorneys to do things they can't do. To your point, Joe, then we get to what they call this final option. We have had these cases that have identified, particularly this Blakeney case, have identified what they call waiver of counsel by conduct with warning. And it's sort of these kinds of situations. I can understand, certainly, the frustration that I imagine this prosecutor was feeling, perhaps the judge even was feeling, of is there any reason to think that attorney number six, seven, or eight is gonna have any better success at working with this defendant than attorneys one through five? Although, to that point, this opinion does sort of go through and talk about Really, there was only one or two attorneys that he had those kind of conflicts with. I mean, people that are leaving the practice or stepping out for conflict of interest. I just sort of offer that as a warning to the prosecutors. You know, we may get frustrated that, goodness gracious, we're on our fifth, sixth or seventh attorney. But when they're just dropping out because they're changing jobs, conflict of interest, those aren't really going to count towards that, you know, forfeiture or waiver of counsel by conduct.
[00:31:32.989] [SPEAKER_01] Because it can't be attributed to the defendant being obstreperous in that case,
[00:31:36.192] [SPEAKER_00] right?
[00:31:36.352] [SPEAKER_01] Right. Those people had to withdraw for their own personal reasons.
[00:31:39.057] [SPEAKER_00] And we can hardly hold that against the defendant. But nevertheless, if we are dealing with this kind of situation where we think it's unlikely to ever get any better, we do have this option of waiver of counsel by conduct with warning. And they identified that as sort of this hybrid situation where the judge could say, If you're going to continue to not cooperate with these attorneys, if you're going to have these kind of conflicts, at some point we may find that even though you're not punching them in the nose, you're not disrupting these court proceedings, you ultimately are essentially deemed to have waived your right to representation by your difficult conduct. But they point out that waiver by conduct requires that a defendant So he received no prior warning that we believe you are engaging in this dilatory tactics of you're not gonna get along with any defense attorney because you're just trying to get one after the other after the other as a way of sort of postponing ever resolving your case. That may be what's going on, but we would have to have that kind of warning and discussion with the attorney before it happened. This sort of went the other way. fine, we're gonna let attorney number five, we're gonna grant your motion to have that attorney removed, but now I'm gonna find that you've waived your right to any further counsel. So that would be my advice for the prosecutors. If you feel like this is the situation you're dealing with, attorney number six or seven is gonna have the same problems attorneys number three, four, and five had. there is a way to deal with that. We can talk about Blakeney, we can talk about waiver by conduct, but we just need to make sure that the judge is giving them that warning about how continued dilatory tactics are gonna be deemed a waiver by conduct, and I think then it would be held up on appeal.
[00:33:25.320] [SPEAKER_01] Just to go over those categories again, right? You've got waiver, which requires intentional relinquishment of a known right. This is the situation where a defendant affirmatively states that he wants to proceed pro se, and there's a statutory requirement that the trial court conduct that necessary colloquy. You've got forfeiture, And forfeiture was really what was at stake in Fuller, where you've got a defendant who just refuses to cooperate with counsel, refuses to cooperate with the court, and significantly is disruptive and disrespectful. And then you've got this third possibility of a waiver by conduct. But as you point out, that's also going to require some kind of warning, some kind of informal colloquy with the defendant that, look, if you keep putting off, if you keep trying to get a new attorney, we're going to deem that as sufficiently dilatory to constitute a waiver without your actually
[00:34:08.889] [SPEAKER_00] wanting to proceed pro se. I think that's right. And I think this McGirt case is interesting precisely because it's treating that waiver by conduct as sort of an established third category of how you may lose the right. Your colleague, Shea Denning, has blogged about that on the criminal law blog. Is this a third category? And it was sort of a little bit unclear, but I think McGirt is interesting for if for no other reason than it, I think, is sort of taking it as a given that there is this third category laid out by Blakeney. And that, I think, could be a good option for prosecutors when they are faced with those sort of difficult, dragging their feet defendants, there is a way to get there that is not an outright express waiver, nor is it forfeiture by being so disruptive, aggressive, what have you. There is a way to resolve that and ultimately perhaps force the person to just proceed per se. If they're never going to get along with any attorney, we just want to make sure we have that sort of warning and right procedure. It just didn't happen here. There was a dissent in this case. There was, there was. Judge Tyson dissented, basically would have found that the defendant, based on his own motions, those constituted waiver, you know, he had filed some of these pro se motions asking for speedy trial, but also finding that, in his words, towards the conclusion of the dissent, was dilatory, refused to engage with or otherwise fired his three appointed attorneys, filed two written notices to represent himself preceding the trial court's finding that he had waived his right to counsel, and allowed him, as he had requested in writing, to proceed pro se with appointed standby counsel. So he feels like the defendant should not now be allowed to come into court and say, how could you let me do what I asked you to let me do? Which is understandable, but I think applying the cases, the majority saw it the other way.
[00:35:50.817] [SPEAKER_01] Well, that's all we have for today. In this episode, we discussed State v. Winseth, holding that surveillance video can come in as a business record, and then two cases about the forfeiture of counsel, State v. Fuller and State v. McGirt. Turning States is a collaboration between the University of North Carolina School of Government and the North Carolina Conference of District Attorneys. We are coming to you from the recording studio at the School of Government in Chapel Hill. Special thanks to our producer, Paul Bonner, and to Gustav Holtz for our music. If you liked what you heard today, if you have questions, comments, concerns, if there's a topic you'd like for us to cover, please contact us. My name is Joseph Hyde, and I can be reached at jhyde at sog.unc.edu. That's jhyde at
[00:36:34.451] [SPEAKER_00] sog.unc.edu. And I'm Jonathan Holbrook. I can be reached at jonathan.p.holbrook at nccourts.org. That's j-o-n-a-t-h-a-n dot p dot h-o-l-b-r-o-o-k at n-c-c-o-u-r-t-s dot o-r-g. Thank you, John. That would be the showing for the state. Sounds good, Joe. Thanks. Hope it helped.