Criminal Practice – First Degree Murder – Waiver/Forfeiture of Counsel – Evidence

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Defendant was properly found guilty of first-degree murder, as defendant received a fair trial, free of prejudicial errors he preserved.

There is no error in the jury’s verdict or the judgment entered as a result.

Defendant was convicted of first-degree murder. The trial court found defendant to be a prior record level V offender with 16 prior level points. Defendant was sentenced to life imprisonment without the possibility of parole.

On appeal, defendant argued the trial court erred by denying his right to counsel when he sought to change attorneys during trial; denying his motion for a continuance when he sought to change attorneys during trial; and, allowing a certain witness to testify about unrelated allegations.

The trial court addressed the seriousness of the first-degree murder charge, advised a conviction by the jury of first-degree murder carried a life sentence without the possibility of parole, and further told defendant that no other appointed counsel would be able or willing to immediately step into the middle of an ongoing trial. After being fully advised, defendant proceeded to fire his counsel and was left to acquire his own counsel or proceed pro se. Defendant clearly waived and/or forfeited his right to further court-appointed counsel. After defendant was allowed to terminate his counsel’s representation, but learned the trial underway was going to proceed, defendant informed the court he did not want to be physically present in the courtroom. Defendant’s egregious conduct forfeited his right to further appointed counsel. The trial court did not err in concluding defendant had forfeited his right to appointed counsel and by later denying his MAR on this ground.

Further, the challenged testimony was relevant under N.C. Gen. Stat. § 8C-1, Rule 401 and admissible under Rule 402. Substantial evidence of similarity between defendant’s prior bad acts with the witness and of the victim’s murder exists. The alleged incident where the witness was raped and robbed by defendant occurred the day after the victim’s last contact with her family and the day the State alleged she was murdered. The alleged attack and robbery occurred in the same location where the victim’s body was later found. The victim’s text messages alleged she had been raped. The trial court did not err, and certainly did not commit plain error, in admitting the witness’ testimony under Rules 403 and 404(b).

Defendant knowingly and voluntarily waived his right to counsel by terminating his latest among many appointed counsels following highly detrimental testimony during trial and after being repeatedly advised and informed of the consequences of this decision. Defendant’s conduct during pre-trial and through trial in superior court supports a finding and conclusion that he repeatedly dismissed appointed counsel during pre-trial and while trial was underway and waived and forfeited his right to counsel. The trial court did not err in denying his motion for appointment of new counsel. Defendant waived and forfeited his right to counsel through dilatory tactics and serious and egregious misconduct after being warned multiple times of the consequences of his behavior. Sharek’s testimony was properly admitted under North Carolina Rules of Evidence 401, 402, 403, and 404(b) under plain error review.

No error.

State v. Moore (Lawyers Weekly No. 011-183-23, 57 pp.) (John Tyson, J.) Appealed from Onslow County Superior Court (Henry L. Stevens, J.) Attorney General Joshua H. Stein, by Special Deputy Attorney General Jonathan P. Babb, for the State; Mark L. Hayes, for defendant-appellant. North Carolina Court of Appeals