State v. Lindsey

• Decision Date: 21 April 2020
• Docket Number: No. COA19-974,COA19-974
• Parties: STATE of North Carolina, v. Derrick LINDSEY, Defendant.
• Court: North Carolina Court of Appeals

271 N.C.App. 118

843 S.E.2d 322

STATE of North Carolina,

v.Derrick LINDSEY, Defendant.

No. COA19-974

Court of Appeals of North Carolina.

Filed: April 21, 2020

Attorney General Joshua H. Stein, by Special Deputy Attorney General Victoria L. Voight, for the State.

Sarah Holladay, for Defendant.

BROOK, Judge.

Derrick Lindsey ("Defendant") appeals from judgment entered upon jury verdicts of guilty for felony breaking and entering, felony larceny, and misdemeanor injury to real property. On appeal, Defendant argues the trial court erred in failing to either appoint counsel or secure a valid waiver of counsel until his trial—more than a year after his arrest. Defendant further argues that the trial court committed plain error in allowing secondary evidence of the contents of a videotape where the State failed to establish that the videotape itself was unavailable. Finally, Defendant argues that the trial court erred in entering a civil judgment for attorney's fees of standby counsel against Defendant without giving him notice and opportunity to be heard.

We agree with Defendant that he is entitled to a new trial because the trial court did not ensure Defendant validly waived the assistance of counsel prior to trial, and the State has failed to show that the error was harmless beyond a reasonable doubt. We therefore need not reach Defendant's remaining issues on appeal.

I. Factual and Procedural Background

Because the issue dispositive to this appeal does not relate to the facts surrounding the alleged crimes or the trial, a detailed recitation of both is unnecessary. Briefly, the State's evidence tended to show that Defendant broke into a gas station, stole two packs of Newport 100 cigarettes, and broke a window lock in the process. Defendant was arrested on 7 March 2018 and remained in custody through his trial on 12 March 2019.

On 23 April 2018, Defendant filed pro se motions requesting discovery and a subpoena so he could subpoena evidence. On 22 May 2018, Defendant mailed a letter to the clerk of court asking for a status update. On 7 June 2018, Defendant filed a pro se motion to dismiss for lack of an enacting clause and lack of subject matter jurisdiction. The Assistant Clerk of Stanly County Superior Court responded by letter indicating that Defendant's motion had been sent to the district attorney's office for review and stating as follows: "[Y]our case has been continued to the August 20, 2018 term of Superior Court. There will be a Writ issued to bring you in front of the judge at that time. You may address your concerns and motions with the Presiding Judge when deemed appropriate by the Presiding Judge." On 27 July 2018, Defendant filed a pro se motion for an audit trail on the bond that was set.

On 20 August 2018, Judge Jeffery K. Carpenter first addressed Defendant's right to counsel in the following exchange:

[THE COURT]: [Defendant], you're here on a felony breaking or entering. It's a Class H felony which carries a maximum sentence of 39 months; a larceny after breaking or entering, a Class H felony which carries a maximum sentence of 39 months; and an injury to real property, a Class one misdemeanor which carries a maximum punishment sentence of 120 days.

You have three options in regards to counsel or representation. You can hire your own lawyer, represent yourself or ask me to consider you for court appointed counsel.

[DEFENDANT]: I can speak for myself.

[THE COURT]: Do you want a lawyer to represent you?

[DEFENDANT]: No.

[THE COURT]: [Defendant], I need you to sign a waiver to counsel. [Defendant], you're wanting to waive all rights to counsel? Did I understand you correctly on that? You're not just waiving court appointed counsel, you're waiving all counsel; is that correct?

[DEFENDANT]: I'm not waiving any rights. I'm simply waiving court appointed counsel.

[THE COURT]: So you want to waive court appointed counsel?

[DEFENDANT]: Yes.

[THE COURT]: He's waiving court appointed counsel. [Defendant], I am told that the assistant district attorney that has been assigned to handle your case is in district court. They are going to see if they can come over here and give you an opportunity to talk to them and see if you all can come to a resolution.

When the assistant district attorney came back to the courtroom during that same court session, she addressed the court and said, "[O]ur office received a pro se discovery request from [Defendant], and upon checking out his file, he hasn't addressed counsel. It's my understanding that has been done in my absence, that he has requested to hire his own counsel." Judge Carpenter responded, "He did not do that. He just waived court appointed counsel." Judge Carpenter then continued Defendant's case to 22 October 2018. Defendant signed a waiver of counsel form, acknowledging his right to counsel and checking box one, which read, "I waive my right to assigned counsel and that I, hereby, expressly waive that right." Judge Carpenter, in the same form, certified that Defendant voluntarily, knowingly, and intelligently elected to be tried "without the assignment of counsel." Judge Carpenter subsequently appointed Andrew Scales as standby counsel for Defendant.

During the October 2018 session,¹ Judge Carpenter permitted Defendant to argue his pro se motion to dismiss for lack of an enacting clause and for lack of subject matter jurisdiction. Mr. Scales served only as standby counsel at this hearing; to wit, he did not assist Defendant with his argument or otherwise substantively participate in the hearing. Judge Carpenter denied Defendant's motion and set Defendant's case for trial on 14 January 2019. Judge Carpenter also clarified that he had appointed Mr. Scales as Defendant's standby counsel and that Mr. Scales would continue in that role.

The record is silent as to what happened on 14 January 2019. However, on 20 January 2019, Defendant filed a pro se motion with the court which read:

My court date was set on 1-14-19 but I was never called to court. I signed a wa[i]ver of attorn[e]y so there is no court appointed attorney on this case. Can you please tell me why this case was continued without my consent and without me being present in court. This is a violation of my constitutional right to due process of law.

The Assistant Clerk of Stanly County Superior Court responded by letter that "I can only advise that the case was continued from 1/14/2019 to 2/18/2019, we are only the record keepers and I cannot say as to a reason for the continuance. I have forwarded a copy of your letter to the District Attorney's office." The record is also silent as to the 18 February 2019 session.

On 12 March 2019, Defendant's case proceeded to trial. Before trial, Judge Kevin Bridges spoke with Defendant, saying, "I noticed that you did sign a waiver before the Honorable Judge Carpenter on 20 August 2018, but that was only a waiver of your right to court-appointed counsel. [ ] [I]f you intend to proceed pro se , ideally I need a waiver of all counsel." Defendant elected to proceed pro se, and Judge Bridges secured a full waiver as follows:

[THE COURT]: Sir, I just want to confirm with you, first of all, you are Derrick Lindsey.

[DEFENDANT]: I'm here concerning that matter.

...

[THE COURT]: All right. You understand you have the right to remain silent. Anything you say may be used against you. Do you understand that?

[DEFENDANT]: I comprehend this.

...

[THE COURT]: All right. Thank you. Sir, I just want to be clear that you understand that you are charged with breaking and/or entering, which is a Class H felony, which carries a maximum punishment of up to 39 months in prison. Also, you are charged with larceny after breaking and entering, punishable by a maximum of up to 39 months in prison. And also you're charged with injury to real property, a Class 1 misdemeanor, punishable by a maximum of up to 120 days.

Do you understand that sir?

[DEFENDANT]: Yes, sir.

[THE COURT]: Am I correct that you still want to proceed pro se? Meaning you want to represent yourself in this trial.

[DEFENDANT]: I am speaking for myself. Yes, I am.

[THE COURT]: All right. Then I need to ask you some additional questions, sir. Are you able to hear and understand me clearly?

[DEFENDANT]: Yes, I am.

[THE COURT]: Are you now under the influence of any alcoholic beverages, drugs, narcotics, or pills?

[DEFENDANT]: No, I'm not.

[THE COURT]: How old are you, sir?

[DEFENDANT]: 35.

[THE COURT]: Have you completed high school?

[DEFENDANT]: Yes, I have.

[THE COURT]: So you can read and write?

[DEFENDANT]: Yes, I can.

[THE COURT]: Do you suffer from any mental or physical handicaps?

[DEFENDANT]: No, sir.

[THE COURT]: Do you understand that you do have the right to be represented by a lawyer, and if you cannot afford one the court will look into appointing one for you?

[DEFENDANT]: Yes.

[THE COURT]: Do you understand that if you do decide to represent yourself you must follow the same rules of evidence and procedure that a lawyer would follow in court?

[DEFENDANT]: Yes, I do.

[THE COURT]: Do you understand that if you do decide to represent yourself the Court will not give you any legal advice concerning any issues that may arise in your case?

[DEFENDANT]: I do.

[THE COURT]: Do you understand the Court's role is to be fair and impartial to both sides?

[DEFENDANT]: Yes, I do.

[THE COURT]: All right. Based on what I just said to you, do you have any questions at all before me about your right to a lawyer?

[DEFENDANT]: No.

[THE COURT]: At this time then do you now waive your right to assistance of a lawyer and voluntarily and intelligently decide to represent yourself in these cases?

[DEFENDANT]: Yes, sir.

Defendant then signed another waiver of counsel form, this time acknowledging his right to assistance of counsel and checking box 2, which read, "I waive my right to all assistance of counsel which includes my right to assigned counsel and my right to the assistance of counsel. In all respects, I desire to appear on my own behalf, which I understand I have the right to do." Jud...