State v. Mee ( 2014 )

NO. COA13-1035
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Wake County
No. 12 CRS 200356
KENNETH CARROLL MEE
Appeal by defendant from judgments entered 27 March 2013 by
Judge Michael J. O’Foghludha in Wake County Superior Court.
Heard in the Court of Appeals 4 February 2014.
Attorney General Roy Cooper by Special Deputy Attorney
General David Efird for the State.
W. Michael Spivey for defendant-appellant.
STEELMAN, Judge.
Where defendant waived the right to appointed counsel,
retained and then fired counsel twice, was briefly represented
by an assistant public defender, and refused to state his wishes
with respect to representation, instead arguing that he was not
subject to the court’s jurisdiction and would not participate in
the trial, and ultimately chose to absent himself from the
-2-
courtroom during the trial, defendant forfeited his right to the
assistance of counsel.
I. Factual and Procedural Background
On 5 January 2012 defendant was arrested for trafficking in
cocaine by possession of more than 28 but less than 200 grams of
cocaine, possession of 573 grams of marijuana, and maintaining a
dwelling for keeping and selling controlled substances. He was
indicted for these offenses on 9 July 2012. Defendant appeared
before at least four superior court judges for pretrial
proceedings and made inconsistent statements regarding his
representation by counsel, including waiver of appointed
counsel, hiring and then discharging counsel on two occasions,
representation by an assistant public defender, and asserting an
unsupported legal theory that he was not subject to the court’s
jurisdiction.
On 25 March 2013, defendant was before the trial court for
trial. He refused to state a clear position regarding counsel
and told the trial court that he did not want his retained
counsel to represent him at trial, did not want to represent
himself at trial, did not want standby counsel to take any role
in the trial, and would not remain in the courtroom or otherwise
“participate” in his trial. Defendant refused to remain in the
-3-
courtroom and was confined to a holding cell near the courtroom
during trial.
The State’s evidence generally showed that law enforcement
officers arrested defendant at his home on 5 January 2012 for
possession of cocaine, marijuana, drug paraphernalia, and
firearms. Defendant waived his Miranda rights, and gave a
statement confessing to the charged offenses.1 Defendant did not
question the State’s witnesses or offer any evidence. On 26
March 2013 the jury returned verdicts finding him guilty of
trafficking in cocaine by possession of more than 28 but less
than 200 grams of cocaine, possession of 573 grams of marijuana,
and maintaining a dwelling for keeping and selling controlled
substances.
The trial court sentenced defendant to a term of 35 to 51
months imprisonment for trafficking in cocaine, to begin at the
expiration of three consecutive sentences of thirty days for
contempt of court. The trial court imposed concurrent sentences
of 6 to 17 months for the remaining offenses, and suspended each
sentence, with concurrent terms of 30 months’ probation to begin
when defendant was released from prison. On 30 April 2013 the
1
The sole issue raised on appeal concerns the circumstances
under which defendant proceeded to trial pro se. Given that
defendant does not otherwise challenge the conduct of the trial
or the factual basis for the charges, we find it unnecessary to
set out further facts of the case in detail.
-4-
trial court corrected defendant’s sentence for trafficking in
cocaine to a term of 35 to 42 months in prison.
Defendant appeals.
II. Standard of Review
Defendant argues on appeal that his constitutional right to
the assistance of counsel was violated. “The right to counsel is
guaranteed by the Sixth and Fourteenth Amendments of the United
States Constitution and Article I of the North Carolina
Constitution.” State v. Montgomery, 138 N.C. App. 521, 524, 530
S.E.2d 66, 68 (2000) (citing State v. McFadden, 292 N.C. 609,
234 S.E.2d 742 (1977)). The “standard of review for alleged
violations of constitutional rights is de novo.” State v.
Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009)
(citation omitted), disc. review denied, 363 N.C. 857, 694
S.E.2d 766 (2010).
III. Forfeiture of the Right to Counsel
A. Standard of Review
“‘[A]n accused may lose his constitutional right to be
represented by counsel of his choice when he perverts that right
to a weapon for the purpose of obstructing and delaying his
trial.’” Montgomery, 138 N.C. App. at 524, 530 S.E.2d at 69(quoting McFadden 292 N.C. at 616, 234 S.E.2d at 747).
Although the loss of counsel due to
defendant’s own actions is often referred to
-5-
as a waiver of the right to counsel, a
better term to describe this situation is
forfeiture. “Unlike waiver, which requires a
knowing and intentional relinquishment of a
known right, forfeiture results in the loss
of a right regardless of the defendant’s
knowledge thereof and irrespective of
whether the defendant intended to relinquish
the right.”
Montgomery at 524-25, 530 S.E.2d at 69 (quoting United States v.
Goldberg, 67 F.3d 1092, 1100 (3d. Cir. 1995)). In Montgomery,
this Court held that the defendant’s “purposeful conduct and
tactics to delay and frustrate the orderly processes of our
trial courts simply cannot be condoned. Defendant, by his own
conduct, forfeited his right to counsel[.]” Id. at 525, 530
S.E.2d at 69 (citation omitted).
B. Analysis
Review of the defendant’s actions during the fourteen
months between his arrest and trial reveals that he engaged in
behavior which resulted in the forfeiture of the right to
counsel. At his first appearance in district court on 6 January
2012, defendant signed a waiver of appointed counsel. On 6 June
2012 defendant was again in district court, where he refused to
check any of the options on a waiver of counsel form and signed
the form “All rights reserved UCC-1-300 Kenneth Mee Bey.”
Handwritten notes on the waiver form indicate that defendant
“refused to address [the] court about counsel,” and stated that
-6-
“he did not recognize the Court.” The notes also indicate that
defendant previously had retained attorney Alton Williams to
represent him, but that Mr. Williams was allowed to withdraw
because he “could not ethically proceed” to pursue motions that
defendant had filed.
On 30 July 2012 defendant appeared in superior court for
arraignment before Judge Donald W. Stephens. Initially, he
denied being Kenneth Mee, and stated that he was “Kenneth Mee
Bey, a prior person” who was a “sovereign from [Moorish]
descent” and was “not a Fourteenth Amendment citizen.” However,
Judge Stephens ruled that if defendant would not acknowledge his
identity his bond would be revoked. Defendant then verified for
the court that he was Kenneth Mee. Defendant told the court that
he did not have an attorney, did not intend to hire one, and did
not want the court to appoint a lawyer, but that he did not
intend to proceed pro se because he was “improper personnel.”
Defendant refused to enter a plea and Judge Stephens entered a
plea of not guilty on his behalf, prompting defendant to ask for
the judge’s “oath of office” and “bonding number” so that he
could file “a counterclaim in Federal Court.” When defendant
continued to argue with Judge Stephens, the judge revoked his
bond and ruled that, because defendant would not sign a waiver
-7-
of the right to counsel, he was appointing the public defender’s
office to represent him.
On 22 August 2012, defendant was again before Judge Donald
Stephens. At this hearing he was represented by Stephanie Davis,
an assistant public defender, who asked Judge Stephens to
reconsider defendant’s bond. However, the court ruled that,
after reading defendant’s pro se filings, he was concerned that,
given defendant’s contention that the laws of North Carolina and
of the United States did not apply to him, defendant would not
appear for trial. Defendant would not allow his attorney to
enter a plea on his behalf and informed the court that he
objected to the court’s jurisdiction. When defendant refused to
enter a plea, Judge Stephens entered a plea of not guilty on his
behalf, and denied defendant’s request to modify the conditions
of release.
On 25 October 2012, Mr. Williams filed a notice of
representation indicating that defendant had again retained him
as counsel, and Ms. Davis was permitted to withdraw. On 29
October 2012 defendant was in court before Judge Paul Gessner,
at which time Mr. Williams entered “a general appearance on
[defendant’s] behalf[.]” The prosecutor informed Judge Gessner
that defendant had previously submitted “filings where the
defendant was invoking the UCC and claiming he was not a citizen
-8-
of the State of North Carolina and not subject to the laws of
this state and the jurisdiction of the court.” Mr. Williams
responded that defendant was “submitting himself to the
jurisdiction of the court” and would withdraw his motions
challenging the court’s jurisdiction. Judge Gessner declined to
modify the conditions of defendant’s bond.
Mr. Williams filed a motion for continuance on 30 November
2012, which was granted by Judge Howard E. Manning, Jr., on 12
December 2012. However, when defendant was next in court on 4
February 2013, before Judge G. Wayne Abernathy, the prosecutor
informed the court that defendant had revived his challenge to
the court’s jurisdiction. When Mr. Williams stated that he was
“ready to proceed” and “prepared to represent” defendant at
trial, defendant objected:
THE COURT: What’s the objection?
DEFENDANT: I’m the proper person. I’m
defending myself. He is not my attorney. I’m
a sovereign nation. He is not my attorney.
THE COURT: So you’re telling me that you do
not want Mr. Williams to represent you in
this matter?
DEFENDANT: I’m telling you the only issue
for me today is my personal jurisdiction.
I’m making a special appearance. I’m showing
the Court the sole reason for my appearance
is to establish personal jurisdiction. . . .
. . .
-9-
THE COURT: . . . The first question is are
you representing to me that Mr. Williams is
not your lawyer?
DEFENDANT: Yes, sir.
. . .
THE COURT: So that means that you are
discharging Mr. Williams?
DEFENDANT: I am not contracting with the
State of North Carolina. He’s an agent of
the State so he’s not --
THE COURT: He’s your attorney right now.
DEFENDANT: No, sir, he’s not.
. . .
THE COURT: . . . Anyway, you understand
you’re charged with trafficking in cocaine
by possession?
DEFENDANT: No, sir, I do not understand that
charge. No, sir, I do not.
THE COURT: What is it you do not understand?
DEFENDANT: I do not understand what you’re
trying to charge me with. The only reason
I’m here for is the jurisdiction.
THE COURT: I’m going to get to the
jurisdiction.
DEFENDANT: I don’t understand none of the
charges . . . Nothing you’re saying to me
that pertains to whatever you’re trying to
pertain to, I’m not in that jurisdiction so,
no, sir, I don't understand none of that.
THE COURT: Well, sir, the charge is of
trafficking cocaine by possession --
-10-
DEFENDANT: I don’t know what you’re talking
about.
THE COURT: You’re charged with possession
and intent to sell and deliver marijuana.
DEFENDANT: The only thing I’m here for is
the jurisdiction.
THE COURT: You’re also charged with
maintaining a dwelling place for keeping and
selling of a controlled substance. And,
apparently, you have confessed to those
crimes or there’s certainly evidence that
you have--
DEFENDANT: No, sir. It wasn’t me.
. . .
THE COURT: So you’re charged with three
felonies. And one of them is extraordinarily
serious because there’s a minimum sentence
that I cannot go below. And I will tell you
that most people who choose to represent
themselves make a serious mistake. Very
rarely are they found not guilty. I just
want you to be aware of that. You don’t have
to agree with that. I just want you to be
aware of that. So it’s your position you
want to represent yourself, and I will allow
you to do that. Are you willing to sign a
waiver of counsel?
DEFENDANT: No, sir. I will not sign any
contracts. I will not take any oaths.
THE COURT: All right. I’m going to appoint
Mr. Williams as standby counsel just in case
you have any questions, but you’re
responsible for your own case. . . .
DEFENDANT: I’m only here for jurisdiction. I
don’t know what you're talking about when
you say trial.
-11-
THE COURT: Your trial.
DEFENDANT: No, sir.
THE COURT: But I will entertain your motion
. . . to dismiss for lack of jurisdiction.
DEFENDANT: . . . I filed three motions that
were never answered. Are you answering here
in the courtroom? They have to be answered
in writing. . . . I object to this whole
proceeding, sir. . . . [T]he only reason I’m
here is, like I said, the jurisdiction. . .
. Anything else you say, I object.
THE COURT: Well, you can object. I note your
objection. I want you to understand that if
you’re not ready to participate we can send
you back to jail and sit there until you’re
ready.
DEFENDANT: Well, send me back to jail
because I’m not - I will never participate
in this - what is your status? Who are you?
What is your nationality?
THE COURT: Do you want to argue a motion on
lack of jurisdiction?
DEFENDANT: No. . . . I would like to get
that information.
THE COURT: I’ve asked you --
DEFENDANT : No, sir, . . . [O]n the record
and for the record I have asked for the
judge – What’d say your name was?
THE COURT: Abernathy.
DEFENDANT: - for his oath of office, his
bonding license, and what nationality he is.
And you’re saying now you’re not going to
tell me?
-12-
THE COURT: I’m saying that you don’t get to
ask me questions.
. . .
DEFENDANT: . . . [A]s far as your
proceedings go, you’re talking about sending
me back to jail. That’s what you will have
to do because I will object, and I will not
contract under UCC 1-308-1. I will not
contract. And all law is contract. . . . I
object on the grounds I am Alique Mee Bey,
executive beneficiary on behalf of Kenneth
Mee. I am a free indigenous man in full life
and peacefully inhabited which duly arise
under the United Nations Declaration of
Rights of Indigenous People . . . Once
jurisdiction is challenged, the Court cannot
proceed when it clearly appears that the
court lacks jurisdiction[.] . . .
THE COURT: All right. You have argued I do
not have jurisdiction over you[.] . . .
U.C.C. law is a civil contract issue. It
does not apply in criminal court. I have
read all of your motions, and, sir, each and
every one of them is denied. . . . Are you
prepared to go forward with your trial?
THE DEFENDANT: No, sir. We will not go
forward. I told you I understand no trial.
I’m only here for jurisdiction. That’s the
only reason I'm here. I’m not here to try no
case. I’m not here for no understanding, no
charges. I don’t even know what you’re
talking about. I’m here for one reason.
THE COURT: Mr. Williams, have you presented
copies of his indictments to him?
MR. WILLIAMS: He’s seen everything.
THE COURT: He’s informed of the charges?
DEFENDANT: No, sir. I object.
-13-
THE COURT: . . . [Y]our objection is noted.
DEFENDANT: I will keep objecting. Sir, I’m
only here for jurisdiction. That’s it.
THE COURT: And your motion to deny
jurisdiction is denied.
. . .
DEFENDANT: Like I said, I object to anything
you say about a charge. I don’t know what
you’re talking about.
THE COURT: That’s fine. Your objection’s in
the record. Now we’re going to move on.
DEFENDANT: We ain’t going to move on. I’m
not going to proceed.
THE COURT: You understand you’ll sit in jail
until you’re ready to proceed?
DEFENDANT: You do what you have to.
. . .
PROSECUTOR: Just so we’re clear, Judge, the
case is continued off this calendar. Mr. Mee
has fired his attorney, Mr. Williams, and is
proceeding pro se.
THE COURT: He’s proceeding pro se. The Court
makes a finding of fact that the Court tried
to get Mr. Mee to sign a waiver of counsel.
He refused to do so, and he is now
proceeding pro se. The Court appointed Mr.
Williams as standby counsel. The Court
explained to him that Mr. Williams does not
conduct the trial but would be available for
questions or advice from him. And the Court
therefore orders that Mr. Williams is
relieved as counsel of record, but he is
reserved as standby counsel and that the -
the Court finds that the defendant has
knowingly and intelligently waived his right
-14-
to counsel, chooses not to use counsel, and
has stated a number of times that he
represents himself and he contests the
jurisdiction of the Court. The Court also
notes that the defendant’s conduct is
somewhat contemptuous, but the Court took no
action on that at this time.
. . .
THE COURT: We’re back on the record in the
matter of the State versus Kenneth Carroll
Mee[.] . . . [A]ny time from today until the
defendant is ready to be tried is to be
excluded . . . in calculating any times for
a speedy trial motion because the State was
ready to proceed, his lawyer was ready to
proceed, and the defendant prohibited the
trial of this case by refusing to accede to
the jurisdiction of the Court and stated
unequivocally that he was going to keep
objecting and made it impossible for the
Court to try the case.
Defendant appeared for trial on 25 March 2013, before Judge
Michael J. O’Foghludha. The prosecutor summarized the procedural
history of the case and informed the trial court that the State
was prepared to proceed. The trial court tried unsuccessfully to
determine whether defendant wished to appear pro se or with the
assistance of counsel:
THE COURT: . . . Mr. Mee, what’s the status
of your attorney situation right now, sir,
are you representing yourself?
DEFENDANT: I am myself. I’m an improper
person, sir, so I have no attorney. I’m
talking for myself.
THE COURT: Thank you. So you’re representing
yourself as far as this proceeding.
-15-
DEFENDANT: I’m an improper person. I am
myself. I don’t have to represent myself.
I’m talking for myself.
THE COURT: . . . Mr. Williams, let me ask
you, sir. I just noted in the file that you
have a general appearance back in October
15th of 2012.
MR. WILLIAMS: That’s correct.
THE COURT: But you are not representing Mr.
Mee at the moment; is that correct?
MR. WILLIAMS: No, Judge. I was appointed
standby counsel by Judge Abernathy.
. . .
DEFENDANT: I want to object to the charges
that Mr. Wilson has brung against me. The
only reason I’m here, sir, is for a special
appearance for jurisdiction, showing up for
this Court for the sole purpose of
contesting the Court’s jurisdiction over me.
My status shows evidence contrary to this
Court’s presumption, therefore, this Court’s
presumption of assertion of jurisdiction
over me disappears[.] . . .
. . .
DEFENDANT: For the record and on the record,
the only reason why I’m here is for personal
jurisdiction. . . . This Court has no
jurisdiction. . . . Furthermore for the
record and on the record, I am . . . Malik
Bey, executive beneficiary on behalf of the
trust of Kenneth Mee. I am an indigenous man
in full light. I will not participate in any
proceedings brought against me by this
fictitious corporation which is the State of
North Carolina. . . . [N]or will I stand
under any fictitious contracts forced
-16-
against me. I will not take any oaths, but I
will affirm the truth. . . .
. . .
THE COURT: Yes, sir. Mr. Wilson, I was
looking at the indictment, and it appears
that Mr. Mee is indicted under 90 -
DEFENDANT: I object.
THE COURT: I understand, sir, overruled. . .
. If you wouldn’t mind, just let me talk,
and I’ll be happy to let you talk.
DEFENDANT: I’m going to object to anything
that doesn’t perceive jurisdiction. So I’m
not going to participate in anything. . . .
I have a writ of habeas corpus claim on the
State, and he has a copy there. . . . [Y]ou
might as well send me back to jail. Because
what I’m going to do is just include you . .
. in the federal claim that I’m going to
file against Mr. Williams.
THE COURT: That’s fine. Let me just stop
you. Mr. Mee appears to be indicted under
90-95(h)(3) for 28 grams or more, but less
than 200 grams –
DEFENDANT: I object.
THE COURT: Sir, I’m going to give you a
little warning here. I don’t mind listening
to you, and I will let you talk, but please
don’t interrupt me, because I’m trying to
talk. . . . Mr. Wilson, Mr. Mee appears to
be indicted under 90-95(h)(3)(a), more than
28 grams, less than 200, punished as a class
G felon, sentenced to a minimum term of 35
and a maximum of 42, with a fine of $50,000
as a minimum maximum term of that statute. .
. .
. . .
-17-
THE COURT: . . . Mr. Mee, you may object,
sir, now.
DEFENDANT: Yes, I object to what he’s
talking about.
THE COURT: All right, sir. That’s overruled.
Let me ask you a question, sir. . . . I
understand you object to the jurisdiction of
the Court, but you are indicted under three
separate indictments. One is trafficking and
possession of less than -
DEFENDANT: Sir --
THE COURT: Let me just finish talking and
then we’ll - trafficking by possession of
less than 28 but more than 200, which is a
class G felony. Carries a minimum of 35 and
a maximum of 50, and a mandatory minimum
fine of $50,000. Your other two charges are
possession with intent to sell and deliver
marijuana greater than one and one half
ounces, which is a class I felony with a
maximum possible punishment of a minimum of
12 and a maximum of 24. And a third
indictment of intentionally maintaining a
dwelling for the keeping or selling of
controlled substances, which is also a class
I felony, with a minimum of 12 and a maximum
of 24. And the reason I’m telling you this,
Mr. Mee, is that if you would like to be
represented by a court-appointed counsel to
represent you in this matter --
DEFENDANT: I’m not going to --
THE COURT: - I will do that.
DEFENDANT: Okay. I understand what you’re
saying. But I’m saying I’m not going to
accept these proceedings. I’m not going to
be in this proceeding. I’m not going to take
count in these proceedings.
. . .
-18-
THE COURT: But I just want to inform you
that I would appoint counsel to represent
you.
DEFENDANT: The only thing that I’m here for
is personal jurisdiction, and the Court
doesn’t have it over me. . . . So as far as
the charges or whatever you’re talking
about, I don’t even know what you’re talking
about.
THE COURT: But you don’t want me to give you
an appointed attorney, you want to just
object to the jurisdiction of the Court; is
that correct?
DEFENDANT: Jurisdiction of the Court, and .
. . this fictitious corporation, which is
North Carolina, bringing charges against
me[.] . . .
. . .
THE COURT: What we’re going to do, how we’re
going to proceed is that there are these
charges that have been brought and we’re
going to --
DEFENDANT: By who?
THE COURT: By the State of North Carolina. .
. . And we’re going to bring them to trial.
DEFENDANT: No, I object.
THE COURT: I understand, and that objection
is overruled. But let me tell you this.
We’re going to have a trial --
DEFENDANT: No, sir.
THE COURT: - and we’re going to bring a jury
into the courtroom. And you –
DEFENDANT: You cannot proceed --
-19-
THE COURT: Sir, I’m talking now. So I’m
warning you, I don’t want to be interrupted.
If you’ll just let me finish, and I’ll let
you talk too.
DEFENDANT: Okay.
THE COURT: So what we’re going to do is, in
a bit we’re going to call for people who
have been called for jury service, and about
40 or 50 people are going to come into the
room. Twelve of them are going to be placed
randomly into the box. . . . And the
District Attorney is going to have a chance
to ask them some questions. And you’re going
to have a chance to ask them some questions.
DEFENDANT: No, I’m not. I’m not going to -
I’m not going to be with these proceedings,
Your Honor. If you’re telling me you’re
going to do what you’re going to do, you’re
going to violate my United States, United
Nation rights. The best thing you can do
right now is send me back to jail. All I’m
going to do is object to any time you ask me
something. . . . I will not participate in
this contract in any kind of way. . . .
THE COURT: Mr. Mee, I want you to
understand, yes, you’re correct --
DEFENDANT: I’m not understanding anything
you’re talking about.
THE COURT: Sir, please don’t interrupt me,
one human being to another. . . . What we’re
going to do is, we’re going to bring a jury
in here. And you’re right, we are going to
proceed . . . whether you like it or not.
DEFENDANT: That’s fine. . . . I won’t be a
part of the proceedings, is what I’m saying.
THE COURT: That’s fine. Let me just explain
to you what’s going to happen, because you
-20-
have a right to know it. So we’re going to
bring 40, 50 people into this room. Twelve
of them are going to be put in the box. The
District Attorney is going to have a chance
to ask them questions. You’re going to have
a chance to ask them some questions.
DEFENDANT: No, I’m not.
THE COURT: Then 12 people are going to be
selected.
DEFENDANT: No, sir.
THE COURT: Then after that, Mr. Wilson here
as the State is going to put his evidence
on. And he’s going to have a chance to ask
some questions, and you’re going to have a
chance to ask some questions.
DEFENDANT: I will not.
THE COURT: That’s fine. But you have a right
to be here, is what I’m trying to tell you.
DEFENDANT: It’s participating. I done told
you I’m not going to participate.
THE COURT: So are you telling me you want to
go back –
. . .
DEFENDANT: What I’m saying, anyway, you can
sit there . . . Mr. Administrator. Because
since 1789, there’s been no Judges. You’re
just an administrator of the court anyway.
That’s all you are, with your yellow fringe.
. . . My First Amendment right has been
violated. My Eighth Amendment right and
Fourteenth[.] . . .
. . .
-21-
THE COURT: Sir, you have a right to
participate in this trial. And if you don’t
want to take it, you don’t have to.
DEFENDANT: I’ve already told you. I will not
participate in any of the fictitious
contracts that the State of North Carolina
are bringing. So if you’re telling me you’re
going to send me back and proceed, then you
do so. . . . I’m going to object. I’m going
to object to everything that happens. So if
you’re saying for me to stay here is
participating, take me back, because I’m not
going to participate.
THE COURT: So you don’t want to sit here
during this trial.
DEFENDANT: I will not participate in any
trial, anything, no, sir.
THE COURT: You will not exercise your right
to sit here and have Mr. Williams help you.
DEFENDANT: I will not participate with
anything with the fictitious State of North
Carolina. . . . The trial is going to happen
without me. . . .
THE COURT: Well, you have a right to sit
here and listen to the evidence against you
-
DEFENDANT: No.
THE COURT: - and consult with Mr. Williams.
And I’m also - you also have the right to
take court-appointed counsel, to have an
attorney represent you, to see if a jury
will find you not guilty.
DEFENDANT: I will not take a court-appointed
attorney. An agent of the State. He’s
representing the State. He’s with you, he’s
not with me. . . . I’ve told you I will not
participate in anything dealing with the
-22-
Court trying to forcibly make me stand to
trial. I’m not going to participate in it. .
. . And if you’re saying you’re going to
proceed without me, then that’s what you
need to do. But I won’t participate in it. I
won’t consent to it. No, sir.
THE COURT: If you don’t want to sit here in
this trial, I’m going to try to get it
hooked up so that you can at least see the
proceedings.
DEFENDANT: No, no, I’m not going to
participate in them at all. . . . I’m not
going to take part in this, Your Honor. . .
. I will not watch a video. . . . My sole
purpose here is for jurisdiction. You’re
saying you overruled that[.] . . . The
holder in due course has to press charges.
Who is the holder in due course? UCC 3-308.
All law is contract. . . . Therefore, the
Uniform Commercial Code applies. . . . I’m
not going to participate in this. I’m
protected under international law of the
United States Republic Peace Treatise of
1787[.]. . .
. . .
DEFENDANT: . . . I put on the record where I
stand with the jurisdiction, that this Court
lacks jurisdiction. I put on the record that
I will not participate in these proceedings.
. . .
THE COURT: So let me try to just give you a
little information.
DEFENDANT: Okay.
THE COURT: So I understand what you’re
saying, that you’re not going to
participate. . . . I suppose it’s your right
really, not to participate. . . . But if you
continue to say you won’t participate, then
I am going to proceed. . . . A jury is going
-23-
to rule on your guilt or innocence, based on
the evidence that’s presented. . . . And if
you’re not here, and there’s no defense
presented and you’re not participating, the
chances of the jury acquitting you are . . .
kind of lessened. . . . And if you don’t
participate, one thing that Mr. Williams
could do, is that Mr. Williams could ask
questions on your behalf to try to -
DEFENDANT: No, sir.
. . .
THE COURT: And you don’t want Mr. Williams
to ask questions of the witnesses on your
behalf?
DEFENDANT: There’s nobody to talk to.
There’s nobody here. If you’re going to
proceed, then you do what you have to do,
without my consent. You do what you have to
do. But no, I don’t have counsel. I don’t
want counsel.
. . .
THE COURT: And you don’t want Mr. Williams
to do anything on your behalf?
DEFENDANT: Nobody do nothing on my behalf. .
. .
The trial court attempted unsuccessfully to obtain
defendant’s cooperation in remaining in the courtroom when the
jury venire was brought in, to ascertain that defendant had no
prior acquaintance with the any of the prospective jurors.
Defendant refused to be seated or stay in the courtroom, despite
being held in contempt three times. After defendant was taken to
a holding cell, the trial court stated that:
-24-
THE COURT: The Court finds that Mr. Mee was
removed from the courtroom because he was
brought in for approximately an hour. The
Court attempted to give him the right to
proceed to trial, either pro se or with
appointed counsel, or with standby counsel,
and that Mr. Mee continually interrupted the
Court and . . . the Prosecutor, and stated
emphatically over and over . . . again that
he would not participate in this trial. So
the Court finds that his behavior is
willfully disruptive, disrespectful of the
Court, and the trial may proceed in his
absence, since he has stated that he will
not participate.
. . .
THE COURT: . . . [He] appeared to me to be
competent too. And he certainly has filed a
lot of paperwork in the file, which
indicates that he is a very intelligent
person. . . . [H]e’s unequivocally stated
over and over again that he won’t
participate and doesn’t recognize the
jurisdiction of the Court[.] . . . There’s a
number of things I’d like Mr. Williams to do
at every break. And one is, is to inform Mr.
Mee of his right to be present. . . . And I
would like Mr. Williams to request Mr. Mee
to allow him to make objections, address the
Court, and cross examine witnesses on his
behalf. . . .
At appropriate intervals during the trial, defendant’s
standby counsel spoke with defendant, informing him of his right
to be present in court and asking if he had changed his mind
about participating in the trial. Defendant consistently refused
to participate, on one occasion asking standby counsel “to
inform the Court that he’s not going to participate, that he
-25-
does not know who the State of North Carolina is, and he does
not understand the proceedings.” In response, the trial court
stated:
THE COURT: . . . [T]he Court finds as a fact
that Mr. Mee is intentionally disrupting
these proceedings and intentionally trying
to impede his trial. And that was apparent
from his demeanor yesterday when I saw him.
. . . [T]he Court notes from the court file
that Mr. Mee had at least one court-
appointed attorney that he fired. Then he
retained Mr. Williams; he fired Mr.
Williams. Then he came in front of Judge
Abernathy and said he wanted to proceed pro
se. He told Judge Abernathy [and] Judge
Stephens . . . that he would not recognize
this Court. . . . [H]e refused to
participate yesterday and would not sit and
would not recognize the Court’s contempt
powers. So despite Mr. Mee’s protestations
that he does not understand these
proceedings, the Court is of the opinion
that he understands these proceedings very
well, and just is not recognizing the
Court[.] . . . He’s obstructing these
proceedings.
To summarize the procedural background:
5 January 2012: Defendant was arrested.
6 January 2012: Defendant appeared in
district court and signed a waiver of his
right to appointed counsel.
6 June 2012: Defendant appeared in district
court, refused to check any of the options
on a waiver of counsel form, and signed the
form as “Kenneth Mee Bey.” Handwritten notes
state that defendant refused to address the
court regarding counsel, and that he had
previously hired an attorney, Alton
-26-
Williams, who had been permitted to withdraw
due to ethical concerns.
30 July 2012: Defendant appeared in superior
court before Judge Stephens and refused to
enter a plea or to clearly state his wishes
regarding counsel, instead making statements
regarding his legal status and demanding to
see the court’s oath of office so that he
could file “a counterclaim.” Judge Stephens
entered a plea of not guilty, appointed the
public defender to represent him, and
revoked defendant’s bond.
22 August 2012: Defendant appeared before
Judge Stephens, represented by assistant
public defender Stephanie Davis. He allowed
Ms. Davis to request a bond reduction, but
would not allow her to enter a plea on his
behalf, and stated that he objected to the
court’s jurisdiction. Judge Stephens entered
a plea of not guilty and denied defendant’s
request for a modification of bond.
25 October 2012: Mr. Williams filed a notice
of representation. Ms. Davis’s motion to
withdraw was allowed.
29 October 2012: Mr. Williams represented
defendant in superior court before Judge
Paul Gessner, where he made a “general
appearance” on defendant’s behalf and told
the court that defendant was “submitting
himself” to the court’s jurisdiction and
would withdraw his pro se motions
challenging the jurisdiction of the North
Carolina courts. Mr. Williams asked for a
bond reduction, assuring the court that
defendant’s objection to the court’s
jurisdiction was no longer an issue.
30 November 2012: Mr. Williams filed a
motion for continuance, which was granted by
Judge Howard Manning.
-27-
4 February 2013: Defendant appeared before
Judge Abernathy. The prosecutor stated that
defendant had resumed his challenge to the
court’s jurisdiction. When Mr. Williams said
he was ready to proceed, defendant objected,
insisting he was present only to challenge
jurisdiction and that Mr. Williams was not
his attorney. Defendant asserted that he was
not subject to the court’s jurisdiction, and
the court denied his motions to dismiss for
lack of jurisdiction. In response to the
court’s statements on any subject other than
jurisdiction, defendant claimed that he did
“not understand” what was said, without
identifying the source of his confusion, and
objected to the court speaking on any
subject other than jurisdiction. He refused
to sign a waiver of counsel or state his
wishes regarding representation and informed
the court that he would “never participate”
in a trial. Judge Abernathy appointed Mr.
Williams as standby counsel and found that
defendant waived the right to counsel and
was proceeding pro se.
25 March 2013: Defendant was in court for
trial and engaged in an extensive colloquy
with the trial court, during which he
refused to state his wishes regarding
counsel, alleged that he did “not
understand” any subject other than
jurisdiction, argued with the trial court,
repeatedly insisted that he would not
participate in the trial, and was held in
contempt three times for refusing to sit
down. Defendant left the courtroom and was
not present during his trial.
In sum, defendant appeared before at least four different
judges over a period of fourteen months, during which time he
hired and then fired counsel twice, was briefly represented by
an assistant public defender, refused to indicate his wishes
-28-
with respect to counsel, advanced unsupported legal theories
concerning jurisdiction, and claimed not to understand anything
that was said on a subject other than jurisdiction. When the
case was called for trial, defendant refused to participate in
the trial. “Such purposeful conduct and tactics to delay and
frustrate the orderly processes of our trial courts simply
cannot be condoned. Defendant, by his own conduct, forfeited his
right to counsel and the trial court was not required to
determine, pursuant to G.S. § 15A-1242, that defendant had
knowingly, understandingly, and voluntarily waived such right
before requiring him to proceed pro se.” Montgomery at 525, 530
S.E.2d at 69 (citing McFadden).
Defendant acknowledges the extensive procedural history of
this case and concedes that defendant was “disagreeable,
suspicious, and obsessed with legally irrelevant matters.” He
argues, however, that defendant should not be held to have
forfeited his right to counsel because he “did not threaten
counsel or court personnel” and “was not abusive.” Defendant
contends that forfeiture requires evidence that he “asserted his
position by means of serious misconduct that prevented the court
from making a determination about whether he was competent and
wanted to make a knowing and understanding waiver of his right
to counsel.” Defendant thus posits that, unless a defendant is
-29-
physically abusive or prevents the court from informing him of
his right to counsel, the defendant’s behavior cannot support a
finding that he forfeited the right to counsel.2 Defendant cites
no authority for this position, and we know of none. “Any
willful actions on the part of the defendant that result in the
absence of defense counsel constitutes a forfeiture of the right
to counsel.” State v. Quick, 179 N.C. App. 647, 649-50, 634
S.E.2d 915, 917 (2006) (citing Montgomery at 524, 530 S.E.2d at
69). Moreover, defendant was held in contempt three times by the
trial court, which indicates that his behavior was somewhat
disruptive.
We also note that in State v. Leyshon, 211 N.C. App. 511,
710 S.E.2d 282, appeal dismissed, 365 N.C. 338, 717 S.E.2d 566(2011), we held in a similar factual context that the defendant
had forfeited his right to counsel. In Leyshon, as in the
present case, the defendant “refused to answer whether he waived
or asserted his right to counsel,” “made contradictory
statements about his right to counsel,” and contended that he
was not subject to the court’s jurisdiction. Leyshon, 211 N.C.
2Defendant also makes generalized references to the possibility
that he “asserted his position because of ignorance, [or] some
form of limited mental capacity or [mental] illness[.]” However,
defendant does not identify any evidence that raises an issue
concerning defendant’s competence, and we discern none.
-30-
App. at 517, 710 S.E.2d at 287. We held that he had forfeited
the right to counsel:
[The defendant] obstructed and delayed the
trial proceedings. The record shows that
Defendant refused to sign the waiver of
counsel form filed on 19 July 2007 after a
hearing before the trial court. At the 7
January 2008 hearing, the court . . .
repeatedly asked if Defendant wanted an
attorney. Defendant refused to answer,
arguing instead, “I want to find out if the
Court has jurisdiction before I waive
anything.” . . . Likewise, at the 14 July
2008 hearing, Defendant would not respond to
the court’s inquiry regarding whether he
wanted an attorney. . . . At the next
hearing on 13 July 2009, Defendant continued
to challenge the court’s jurisdiction and
still would not answer the court’s inquiry
regarding whether he wanted an attorney or
would represent himself. . . . Based on the
evidence in the record, we conclude
Defendant willfully obstructed and delayed
the trial court proceedings by continually
refusing to state whether he wanted an
attorney or would represent himself when
directly asked by the trial court at four
different hearings. Accordingly, Defendant
forfeited his right to counsel[.]
Leyshon at 518-19, 710 S.E.2d at 288-89. Based on Leyshon and
similar cases, we hold that defendant engaged in “purposeful
conduct and tactics to delay and frustrate the orderly processes
of our trial courts” that resulted in a forfeiture of his right
to counsel. Montgomery, id. “Because forfeiture does not require
a knowing and voluntary waiver of the right to counsel, the
inquiry pursuant to section 15A-1242 is not required in such
-31-
cases.” State v. Boyd, 200 N.C. App. 97, 102, 682 S.E.2d 463,
467 (2009) (citing Montgomery), disc. review denied, __ N.C. __,
691 S.E.2d 414 (2010). Accordingly, we need not address
defendant’s argument that the trial court failed to conduct the
inquiry required under N.C. Gen. Stat. § 15A-1242.
We conclude that the defendant had a fair trial, free of
error.
NO ERROR.
Judges McGEE and ERVIN concur.