Where the warrant for defendant’s arrest did not allege that he made any “rude or riotous noise” or that he used “any utterance, gesture, display, or abusive language which [was] intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace,” the warrant alleged neither the elements of the disorderly conduct offense it purported to charge under G.S. § 14-132(a)(1) nor the elements of the lesser included offense in G.S. § 14-132(a)(2) upon which the jury was charged.
Defendant’s conviction of disorderly conduct in a public building is vacated.
The warrant alleged that defendant “unlawfully and willfully did cause disruption in Nationwide building and probation office, by causing a disturbance that was disrupting clients and management in the insurance building.”
The warrant does not allege specific acts “to apprise the defendant … of the conduct which is the subject of the accusation.” G.S. § 15A-924(a)(5). Moreover, the allegation that defendant “did cause disruption … by causing a disturbance” is broader than the “rude or riotous noise” language in § 14-132(a)(1) and therefore does not fit within the definition for the behavior described in the statute.
In fact, there are many disruptions or disturbances that do not involve a rude or riotous noise. Thus, the warrant did not charge defendant with disorderly conduct in the words of the statute, either literally or substantially, or in equivalent words.
For the same reasons, the warrant was insufficient to charge defendant with “disorderly conduct” as defined in § 14-288.4(a)(2). There is nothing in the broad language used in the warrant to suggest defendant made or used “any utterance, gesture, display or abusive language which [was] intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.”
Because the facial validity of a criminal pleading is judged based upon the language in the pleading without consideration of the evidence later offered, the warrant was insufficient to confer jurisdiction on the trial court.
Furthermore, the state concedes that the trial court failed to make the inquiry required by G.S. § 15A-1242 to ensure defendant’s waiver of counsel was knowing, voluntary and intelligent. Although defendant signed written waivers of his right to assigned counsel, he did not waive all rights to counsel.
It is prejudicial error to allow a criminal defendant to proceed pro se at any critical stage of a criminal proceeding without making the inquiry required by § 15A-1242. Thus, even if the trial court had jurisdiction in this case, defendant is entitled to a new trial.
State v. Combs (Lawyers Weekly No. 012-167-18, 13 pp.) (John Arrowood, J.) Appealed from Tyrell County Superior Court (Wayland Sermons Jr., J.) Lisa Finkelstein for the state; James Grant for defendant. N.C. App. Unpub.