               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-974

                                 Filed: 21 April 2020

Stanly County, No. 18CRS050385

STATE OF NORTH CAROLINA,

              v.

DERRICK LINDSEY, Defendant.


        Appeal by Defendant from judgment entered 13 March 2019 by Judge Kevin

M. Bridges in Stanly County Superior Court. Heard in the Court of Appeals 18 March

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
                                   STATE V. LINDSEY

                                   Opinion of the Court



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,



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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.



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             [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.




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        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




        1 The record is unclear as to whether the next court date was 22 October 2018 or 24 October
2018. The Stanly County Clerk of Superior Court sent a letter to Defendant that his next court date
was 22 October 2018, but the transcript of the proceedings is dated both 22 October 2018 and 24
October 2018. The appointment of counsel form is dated 24 October 2018, but during the court session
Defendant’s standby counsel indicated that he had already been “appointed in some way[.]” We will
refer to this as the October 2018 session.

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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.


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      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


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            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


                                        -8-
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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.” Judge Bridges signed

the same waiver, certifying that Defendant voluntarily, knowingly, and intelligently

elected to be tried “without the assistance of counsel, which includes the right to

assigned counsel and the right to assistance of counsel.”

      Mr. Scales continued as standby counsel for the duration of Defendant’s trial

and sentencing. Defendant was sentenced to two terms of 11 to 23 months’ active

imprisonment to run consecutively.

                               II. Standard of Review

      As noted by this Court in State v. Watlington, 216 N.C. App. 388, 716 S.E.2d

671 (2011), “[p]rior cases addressing waiver of counsel under N.C. Gen. Stat. § 15A-

1242 have not clearly stated a standard of review, but they do, as a practical matter,

review the issue de novo.” Id. at 393-94, 716 S.E.2d at 675. We will, as we did in

Watlington, review this issue de novo. Id. at 394, 716 S.E.2d at 675. “Under a de

novo review, th[is C]ourt considers the matter anew and freely substitutes its own

judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669

S.E.2d 290, 294 (2008) (citation and marks omitted).

                                     III. Analysis

      On appeal, Defendant contends that the trial court erred in failing to appoint

counsel or secure a valid waiver of counsel until more than a year after Defendant’s



                                         -9-
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                                   Opinion of the Court



arrest. Defendant argues that the State has not proved beyond a reasonable doubt

that the deprivation of the right to counsel from arrest to trial was not harmless

beyond a reasonable doubt. In the alternative, Defendant argues that this error

occurred at a critical stage of the proceedings and is thus per se prejudicial error

requiring a new trial.

      For the reasons stated below, we agree with Defendant that the trial court

erred in failing to appoint counsel or secure a valid waiver and, further, that the State

has not proved that the deprivation of counsel during this pre-trial period was

harmless beyond a reasonable doubt. Therefore, we do not reach his argument in the

alternative.

                                    A. Preservation

      As an initial matter, we briefly address the dissent’s argument that these

matters are not preserved for appellate review.

      “[T]he right to have the assistance of counsel is” one of “those fundamental

principles of liberty and justice which lie at the base of all our civil and political

institutions.” Powell v. Alabama, 287 U.S. 45, 66-67, 53 S. Ct. 55, 63, 77 L. Ed. 158,

169 (1932) (internal marks and citations omitted). “When an accused manages his

own defense, he relinquishes . . . many of the traditional benefits associated with the

right to counsel.” Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L.

Ed. 2d 562, 581 (1975). “For this reason[,] . . . the accused must knowingly and



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intelligently forgo those relinquished benefits.” Id. (internal marks and citations

omitted).

      In North Carolina, the Sixth Amendment rights at issue are safeguarded by

and inextricably intertwined with an effectuating statute—N.C. Gen. Stat. § 15A-

1242. The waiver inquiry mandated by N.C. Gen. Stat. § 15A-1242 serves to ensure

any waiver of counsel is knowing, voluntary, and intelligent. See State v. Fulp, 355

N.C. 171, 175, 558 S.E.2d 156, 159 (2002). “It is well established that when a trial

court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the

right to appeal the court’s action is preserved, notwithstanding [the] defendant’s

failure to object at trial.” State v. Davis, 364 N.C. 297, 301, 698 S.E.2d 65, 67 (2010);

see also State v. Aikens, 342 N.C. 567, 578, 467 S.E.2d 99, 106 (1996) (“The trial court’s

failure to comply with this mandatory statute relieved [the] [d]efendant of his

obligation to object in order to preserve the error for review.”). Furthermore, our

Supreme Court in State v. Colbert, 311 N.C. 283, 285, 316 S.E.2d 79, 80 (1984), and,

more recently, this Court in State v. Veney, 259 N.C. App. 915, 918, 817 S.E.2d 114,

117 (2018) (citing Colbert, 311 N.C. at 285, 316 S.E.2d at 80), have reviewed

unobjected-to Sixth Amendment denial of counsel claims in which the defendant was

unrepresented at a court proceeding. The dissent does not mention either Colbert or

Veney, let alone explain why this governing precedent does not control the outcome,




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nor does it identify any case law involving the circumstances at issue in support of its

contention that Defendant’s constitutional arguments have been waived.

      Finally, the State has not questioned whether appellate review is appropriate

in such instances; in Veney it conceded that “it does not contest whether Defendant

preserved his [constitutional] argument[,]” 259 N.C. App. at 918, 817 S.E.2d at 117,

and the State takes a similar tack here.

      Defendant’s overlapping constitutional and statutory arguments are properly

before our Court.

                                       B. Merits

      “The Sixth Amendment of the Constitution of the United States as applied to

the states through the Fourteenth Amendment guarantees an accused in a criminal

case the right to the assistance of counsel for his defense.” State v. White, 78 N.C.

App. 741, 744, 338 S.E.2d 614, 616 (1986) (citing Gideon v. Wainwright, 372 U.S. 335,

339-40, 83 S. Ct. 792, 794, 9 L. Ed. 2d 799, 802 (1963)). A criminal defendant also

“has a right to handle his own case without interference by, or the assistance of,

counsel forced upon him against his wishes.” State v. Mems, 281 N.C. 658, 670-71,

190 S.E.2d 164, 172 (1972). Before allowing a defendant to proceed pro se, the trial

court must establish both that the defendant clearly and unequivocally expressed a

desire to proceed without counsel, and that the defendant knowingly, intelligently,

and voluntarily waived the right to counsel. White, 78 N.C. App. at 746, 338 S.E.2d



                                           - 12 -
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at 617; see also State v. Graham, 76 N.C. App. 470, 474, 333 S.E.2d 547, 549 (1985)

(“Absent such evidence, the court should not [] permit[] [a defendant] to proceed pro

se.”).

         “Without a clear and unequivocal request to waive representation and proceed

pro se, the trial court should not [] proceed[] with such assumption.” State v. Pena,

257 N.C. App. 195, 203, 809 S.E.2d 1, 6 (2017). Exchanges that have amounted to a

“clear indication” of the desire to proceed pro se have included: “The State has

afforded me excellent legal counsel, but I still choose to represent myself[,]” State v.

Moore, 362 N.C. 319, 323, 661 S.E.2d 722, 725 (2008); when the trial court asked,

“But you want to proceed without an attorney?” The defendant answered, “Yes, sir[,]”

State v. Jackson, 190 N.C. App. 437, 441, 660 S.E.2d 165, 167 (2008); the trial court

asked, “Of those three choices, which choice do you make?” The defendant answered,

“Represent myself[,]” State v. Whitfield, 170 N.C. App. 618, 621, 613 S.E.2d 289, 291

(2005). On the other hand, “[s]tatements of a desire not to be represented by court-

appointed counsel do not amount to expressions of an intention to represent oneself.”

State v. McCrowre, 312 N.C. 478, 480, 322 S.E.2d 775, 777 (1984).

         Before a defendant waives the right to counsel, “the trial court must [e]nsure

that constitutional and statutory standards are satisfied.” State v. LeGrande, 346

N.C. 718, 722, 487 S.E.2d 727, 729 (1997). “This Court has held that N.C.G.S. § 15A-

1242 satisfies any constitutional requirements by adequately setting forth the



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parameters of such inquiries.” Fulp, 355 N.C. at 175, 558 S.E.2d at 159. Under N.C.

Gen. Stat. § 15A-1242,

             A defendant may be permitted at his election to proceed in
             the trial of his case without the assistance of counsel only
             after the trial judge makes thorough inquiry and is
             satisfied that the defendant:

                    (1) Has been clearly advised of his right to the
                    assistance of counsel, including his right to the
                    assignment of counsel when he is so entitled;

                    (2) Understands and appreciates the consequences
                    of this decision; and

                    (3) Comprehends the nature of the charges and
                    proceedings and the range of permissible
                    punishments.

N.C. Gen. Stat. § 15A-1242 (2019).

      “The record must reflect that the trial court is satisfied regarding each of the

three inquiries listed in the statute.” State v. Stanback, 137 N.C. App. 583, 586, 529

S.E.2d 229, 230 (2000). The trial court must specifically advise a defendant of the

possible maximum punishment, State v. Frederick, 222 N.C. App. 576, 583, 730

S.E.2d 275, 280 (2012) (telling the defendant he could “go to prison for a long, long

time” not specific), of the range of permissible punishments, State v. Taylor, 187 N.C.

App. 291, 294, 652 S.E.2d 741, 743 (2007) (informing the defendant of the maximum

imprisonment but failing to inform him of the maximum fine he could receive was

inadequate), and of the consequences of representing himself, State v. Schumann, 257



                                         - 14 -
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N.C. App. 866, 877, 810 S.E.2d 379, 387 (2018) (proper inquiry where the trial court

“advised Defendant representing himself would involve jury selection, motions,

presenting the evidence, knowing what evidence is admissible and [said] ‘there’s a

reason we have folks go to law school for years and take exams to be licensed to do

this.’”). Failing to advise a defendant of any of these requirements renders the

subsequent waiver invalid. See, e.g., State v. Sorrow, 213 N.C. App. 571, 577, 713

S.E.2d 180, 184 (2011).

        As with the expression of a desire to proceed pro se, “[g]iven the fundamental

nature of the right to counsel, we ought not to indulge in the presumption that it has

been waived by anything less than an express indication of such an intention.”

McCrowre, 312 N.C. at 480, 322 S.E.2d at 777 (citation omitted). “The record must

show, or there must be an allegation in evidence which shows, that an accused was

offered counsel but intelligently and understandingly rejected the offer. Anything

less is not waiver.”2 State v. Bines, 263 N.C. 48, 51, 138 S.E.2d 797, 800 (1964)

(citation omitted). It necessarily follows that “[t]he fact that an accused waives his




        2 There are situations in which a defendant may lose the right to counsel through conduct.
State v. Blakeney, 245 N.C. App. 452, 460-61, 782 S.E.2d 88, 93-94 (2016). “Although the loss of counsel
due to defendant’s own actions is often referred to as a waiver of the right to counsel, a better term to
describe this situation is forfeiture.” State v. Montgomery, 138 N.C. App. 521, 524-25, 530 S.E.2d 66,
69 (2000). Forfeiture of counsel plays no role in our deliberations here as it is “restricted to situations
involving egregious conduct by a defendant[,]” State v. Simpkins, ___ N.C. ___, ___, ___ S.E.2d ___, ___,
2020 N.C. LEXIS 98 *9 (2020) (quoting Blakeney, 245 N.C. App. at 461, 782 S.E.2d at 94), which the
State does not and could not allege.



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right to assigned counsel does not mean that he waives all right to counsel.” 3 State

v. Gordon, 79 N.C. App. 623, 625, 339 S.E.2d 836, 837 (1986). And “neither the

statutory responsibilities of standby counsel [] nor the actual participation of standby

counsel . . . is a satisfactory substitute for the right to counsel in the absence of a

knowing and voluntary waiver.” State v. Dunlap, 318 N.C. 384, 389, 348 S.E.2d 801,

805 (1986).

       “It is prejudicial error to allow a criminal defendant to proceed pro se at any

critical stage of criminal proceedings without making the inquiry required by N.C.

Gen. Stat. § 15A-1242[.]” Frederick, 222 N.C. App. at 584, 730 S.E.2d at 281. Critical

stages are those proceedings where the presence of counsel is “necessary to assure a

meaningful defen[s]e.” United States v. Wade, 388 U.S. 218, 225, 87 S. Ct. 1926, 1931,

18 L. Ed. 2d 1149, 1156 (1967) (internal marks omitted).4


       3 In a 2015 opinion by the North Carolina Judicial Standards Commission examining whether
a judge may require a defendant to proceed without the assistance of all counsel based upon only a
waiver of appointed counsel, the Commission concluded,

               Except in situations where the defendant’s actions amount to a
               forfeiture of the right to counsel, a judge may not require a criminal
               defendant entitled to counsel to proceed without the assistance of
               counsel based on a waiver of appointed counsel only. It is the judge’s
               responsibility to clarify the scope of any waiver.

Formal Advisory Op. 2015-02 (N.C. Judicial Standards Commission) (emphasis added).
         4 Amplifying further on the contours of this concept, our Supreme Court has held that “[a]

critical stage has been reached when constitutional rights can be waived, defenses lost, a plea taken[,]
or other events occur that can affect the entire trial.” State v. Detter, 298 N.C. 604, 620, 260 S.E.2d
567, 579 (1979). A probable cause hearing, State v. Cobb, 295 N.C. 1, 6, 243 S.E.2d 759, 762 (1978),
pre-trial motion to suppress hearing, Frederick, 222 N.C. App. at 581, 730 S.E.2d at 279, sentencing
proceeding, State v. Davidson, 77 N.C. App. 540, 544, 335 S.E.2d 518, 521 (1985), and probation



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        Even if a critical stage has not been reached, the State must demonstrate,

beyond a reasonable doubt, that the failure to obtain a knowing, voluntary, and

intelligent waiver was harmless. N.C. Gen. Stat. § 15A-1443 (2019) (“A violation of

the defendant’s rights under the Constitution of the United States is prejudicial

unless the appellate court finds that it was harmless beyond a reasonable doubt. The

burden is upon the State to demonstrate, beyond a reasonable doubt, that the error

was harmless.”). This is a weighty burden for the State, as we have found harmless

error only where the mistake could not “in any way contaminate[] the proceedings at

the trial[.]” State v. Cradle, 281 N.C. 198, 205, 188 S.E.2d 296, 301 (1972) (emphasis

added). When the State fails to carry its burden in this context, a new trial is the

appropriate remedy. See Colbert, 311 N.C. at 286, 316 S.E.2d at 81; see also State v.

Williams, 201 N.C. App. 728, 689 S.E.2d 601, 2010 N.C. App. LEXIS 22, at *10 (2010)

(unpublished) (“As the State has failed to show that the trial court’s error was

harmless beyond a reasonable doubt, we must deem the error prejudicial and remand

for a new trial.”); State v. Hopkins, 250 N.C. App. 184, 791 S.E.2d 903, 2016 N.C. App.

LEXIS 1042, at *9 (2016) (unpublished) (same).

        Here, there are two instances in the record when the trial court advised

Defendant of his right to counsel: 20 August 2018 and 12 March 2019. The parties




revocation hearing, State v. Ramirez, 220 N.C. App. 150, 154, 724 S.E.2d 172, 174 (2012), are examples
of critical stages requiring “the guiding hand of counsel[,]” Detter, 298 N.C. at 625, 260 S.E.2d at 583,
unless waived, see, e.g., Gordon, 79 N.C. App. at 626, 339 S.E.2d at 838.

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agree, as do we, that Judge Bridges conducted a thorough inquiry of Defendant

regarding his right to counsel before trial on 12 March 2019, and that Defendant

knowingly, voluntarily, and intelligently waived all counsel on that date. Where the

parties disagree is whether the trial court permitted Defendant to proceed pro se in

the absence of a clear indication that he intended to do so and the inquiry required

by N.C. Gen. Stat. § 15A-1242 prior to that date. The record reflects that Defendant

did not clearly waive the right to all counsel before March 2019. We hold that the

trial court impermissibly allowed Defendant to proceed pro se without such a clear

expression of intent and without conducting the proper inquiry prior to trial.

      After Defendant was indicted on 9 April 2018, he began filing motions on his

own behalf with the trial court from jail. These included two discovery requests, a

subpoena request, the aforementioned motion to dismiss for lack of enacting clause

and subject matter jurisdiction, and a motion for an audit trail—all filed from April

to July 2018.

      On 20 August 2018, Defendant’s right to counsel was first addressed. Judge

Carpenter informed Defendant of the nature of the charges against him and the range

of permissible punishments. Then this exchange occurred:

                [THE COURT]: 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.


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             [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[.]

      While Defendant first seems to categorically disavow legal representation,

upon further questioning, Defendant narrows that disavowal to pertain only to court-

appointed counsel. Consistent with this, Defendant also executed a written waiver

of court-appointed counsel.    In an exchange between the prosecutor and Judge

Carpenter shortly after this colloquy, the prosecutor stated, “It’s my understanding

that . . . [Defendant] has requested to hire his own counsel.” Judge Carpenter

corrected her, stating, “He did not do that. He just waived court appointed counsel.”

Accordingly, two of the options that the trial court laid out for Defendant remained:

“hiring your own lawyer [or] represent[ing] yourself[.]”




                                         - 19 -
                                  STATE V. LINDSEY

                                  Opinion of the Court



      Yet, subsequent to this colloquy the trial court operated as though Defendant

had fully waived his right to counsel. Judge Carpenter appointed standby counsel for

Defendant, which is permissible “[w]hen a defendant has elected to proceed without

the assistance of counsel[.]” N.C. Gen. Stat. § 15A-1243 (2019). Then, during the

October 2018 session, the trial court allowed Defendant to argue his motion to dismiss

for lack of an enacting clause and subject matter jurisdiction without counsel and

without any input from standby counsel.

      For the following reasons, Defendant’s proceeding pro se here was at odds with

the requisite constitutional safeguards.

      First, Defendant had to that point never expressed a clear and unequivocal

desire to proceed without counsel.     Waiving “court-appointed counsel do[es] not

amount to [an] expression[] of an intention to represent oneself.” McCrowre, 312 N.C.

at 480, 322 S.E.2d at 777 (citation omitted). In stark contrast to instances where we

have found a defendant clearly wished to represent himself, see, e.g., Whitfield, 170

N.C. App. at 621, 613 S.E.2d at 291 (The trial court: “Of those three choices, which

choice do you make?”; The defendant: “Represent myself.”), the 20 August 2018

colloquy left open the possibility of Defendant’s retaining counsel.      And, while

seemingly signaling its understanding that Defendant was proceeding pro se, the

trial court’s appointment of standby counsel does not mean Defendant had clearly




                                           - 20 -
                                  STATE V. LINDSEY

                                  Opinion of the Court



and unequivocally expressed such a desire. See Dunlap, 318 N.C. at 389, 348 S.E.2d

at 805.

      Relatedly, these facts do not speak to a knowing, voluntary, and intelligent

waiver. While properly advising Defendant of the charges against him, the range of

permissible punishments, and his right to counsel, the trial court did not ensure that

Defendant understood and appreciated the consequences of proceeding pro se. See

N.C. Gen. Stat. § 15A-1242(3) (2019). The most concrete means of understanding the

deficiencies in Judge Carpenter’s colloquy is to compare it with that of Judge Bridges

many months later.     Not only did Judge Bridges elicit a clear statement from

Defendant that he wished to proceed pro se but also he reviewed and ensured that

Defendant appreciated the consequences of doing so. See Bines, 263 N.C. at 51, 138

S.E.2d at 800 (“Anything less is not waiver.”).

      We do not gainsay the challenges trial courts face in ensuring compliance with

constitutional and statutory rights as they pertain to the right to counsel. But these

rights are fundamental, and “[t]his case is a good example of the confusion that can

occur when the record lacks a clear indication that a defendant wishes to proceed

without representation.” Pena, 257 N.C. App. at 204, 809 S.E.2d at 6.

      As the trial court impermissibly allowed Defendant to proceed pro se without

such a clear expression of intent and without conducting the proper inquiry prior to

trial, the question then becomes whether the State has proven that the resulting



                                         - 21 -
                                  STATE V. LINDSEY

                                   Opinion of the Court



deprivation of Defendant’s Sixth Amendment right to counsel was harmless beyond

a reasonable doubt. We hold that the State has not met this heavy burden.

       Assuming without deciding that there was no “critical stage” in the litigation

prior to the appropriate waiver being obtained in March 2019, the State has not even

attempted to argue that the deprivation of counsel was harmless here. “Because the

State does not make the required [harmless beyond a reasonable doubt] argument, it

has failed in its burden.” State v. Taylor, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___,

2020 N.C. App. LEXIS 213, at *137 (2019); see also Williams, 2010 N.C. App. LEXIS

22, at *10 (“[T]he burden is on the State to demonstrate that any error was harmless

beyond a reasonable doubt, [] and it is not proper for this Court to carry that burden

for the State.”).

       And it is hard to see how they could make a plausible argument in these

circumstances. Defendant was not without counsel for some mere “housekeeping”

matter, see Veney, 259 N.C. App. at 924, 823 S.E.2d at 120 (Dietz, J., concurring);

during the time period at issue, there was a hearing on the court’s jurisdiction, the

possibility of plea negotiations, discovery concerns, and evidentiary issues relating to

the preservation of video surveillance, not to mention issues regarding whether

Defendant fully understood how the case was progressing as he was proceeding pro

se while incarcerated. While Judge Bridges appropriately recognized that Defendant

intended to represent himself at trial and accordingly obtained a full waiver of



                                          - 22 -
                                        STATE V. LINDSEY

                                        Opinion of the Court



counsel, Defendant had, by that point, been deprived of his right to counsel for the

year-long pre-trial period. “We have no way of knowing what counsel for defendant

may have found through discovery or if his counsel could have raised valid objections

to any of the” State’s evidence. Hopkins, 2016 N.C. App. LEXIS 1042, at *9. After

all, “there’s a reason we have folks go to law school for years and take exams to be

licensed to do this.” Schumann, 257 N.C. App. at 877, 810 S.E.2d at 387. Even

assuming we were to believe that the State’s evidence was “quite convincing, we

cannot find that the denial of defendant’s right to counsel was harmless beyond a

reasonable doubt.” Hopkins, 2016 N.C. App. LEXIS 1042, at *9.5

                                         IV. Conclusion

       At some point between April and October 2018, Defendant began functioning

as his own counsel. The trial court was aware of and, in fact, sanctioned Defendant’s

actions by assigning Mr. Scales as standby counsel and allowing Defendant to argue

a motion without the assistance of counsel.               However, Defendant never clearly



       5   Our Court arrived at the same result using the same reasoning in a circumstance bearing
many similarities to the current controversy in the aforementioned State v. Williams. In that case,
the trial court conducted an imperfect waiver inquiry on 17 August 2006. Williams, 2010 N.C. App.
LEXIS 22, at *2. The defendant subsequently argued pre-trial motions pro se on 20 September 2006.
Id. This was “the only substantive hearing” where the defendant argued pro se before a proper waiver
was obtained. Id. at *4. On 3 April 2007, the trial court conducted a thorough colloquy, and the
defendant knowingly, voluntarily, and intelligently waived the right to counsel. Id. at *2. The trial
began 4 June 2007. Id. Despite granting it was “likely that nothing harmful to Defendant’s case
transpired during that [20 September 2006] hearing,” our Court held that the State had not proven
the error harmless beyond a reasonable doubt and ordered a new trial. Id. at *4. The distinctions
between Williams and the current controversy, namely the larger amount of time Defendant was
denied counsel and the commensurate greater potential consequences thereof, only make it more
difficult to prove harmless error.

                                               - 23 -
                                 STATE V. LINDSEY

                                  Opinion of the Court



expressed his desire to proceed pro se, and the trial court failed to obtain a proper

waiver of all counsel before allowing him to do so. This resulted in a violation of

Defendant’s Sixth Amendment right to counsel until trial on 12 March 2019, and the

violation was not harmless beyond a reasonable doubt.

      Defendant is therefore entitled to a new trial.

      NEW TRIAL.

      Judge COLLINS concurs.

      Judge DILLON dissents by separate opinion.




                                         - 24 -
 No. COA19-974 – State v. Lindsey


      DILLON, Judge, dissenting.


                                     I. Summary

      Defendant was convicted by a jury of crimes for breaking into and stealing

cigarettes from a retail kiosk. Judgment was entered accordingly. The trial court

also entered a civil judgment against Defendant for the cost of appointed stand-by

counsel, as Defendant proceeded pro se.

      Defendant makes three arguments on appeal.

      He argues that the trial court erred by imposing the civil judgment against

him without giving him an opportunity to be here. (The majority does not reach this

issue.) I agree and would remand for a new hearing on the civil judgment.

      He makes a single argument that the criminal trial itself was tainted,

contending that the trial court committed plain error by allowing certain evidence in,

namely video of him committing the crimes. (The majority does not reach this issue.)

I disagree that the trial court committed plain error in this regard. He makes no

other argument concerning the trial itself.

      Rather, he argues that he is entitled to a new trial, even if no reversible error

occurred at the trial itself, because he was allowed to proceed pro se during much of

the pre-trial stages before being properly advised of his right to counsel. Indeed,

Defendant represented himself during all stages of this proceeding, both pre-trial and

trial, and Defendant was not properly advised of his right to counsel until just before

the trial was scheduled to begin. There is no dispute, however, that Defendant’s
                                   STATE V. LINDSEY

                                  DILLON, J., dissenting



constitutional right to counsel was not violated at any point during the trial itself, as

he knowingly waived his right to counsel before any critical stage of the trial occurred.

       I agree that the delay in obtaining a valid waiver of counsel during critical,

pre-trial stages was both a constitutional (Sixth Amendment) violation and a

violation of a statutory mandate (pursuant to N.C. Gen. Stat. § 15A-1242 (2018)).

However, generally such pre-trial violations do not warrant a new trial where the

defendant is otherwise afforded a fair trial such that the pre-trial violations do not

taint the trial itself.

       Regarding the constitutional violation, the majority holds that Defendant is

entitled to a new trial because the State failed to meet its burden of showing how any

pre-trial, constitutional error was harmless beyond a reasonable doubt. I disagree. I

conclude that Defendant failed to meet his initial burden of preserving any

constitutional errors for our review. Indeed, the initial burden is on the defendant to

preserve constitutional errors for our appellate review.         Only regarding those

properly preserved constitutional errors does the burden shift to the State to show

that the errors were harmless beyond a reasonable doubt.

       To the extent that the delay in obtaining a proper waiver was a violation of a

statutory mandate, I recognize that said violation is automatically preserved. For

such errors, the burden is not on the State to show that they were harmless, but is on



                                          -2-
                                      STATE V. LINDSEY

                                  DILLON, J., dissenting



Defendant to show how he was prejudiced thereby. And, here, Defendant has failed

to show how he was prejudiced at trial by any pre-trial violation of a statutory

mandate. The evidence at trial was overwhelming against him, none of which was

tainted by the pre-trial violation.

      To illustrate my point, consider the situation of a defendant involved in a post-

indictment line-up in the presence of an identifying witness. Such line-up is, indeed,

a “critical stage,” where a defendant has the right to have counsel present. Gilbert v.

California, 388 U.S. 263, 272, 18 L.Ed.2d 1178, 1185 (1967). Our Supreme Court,

though, has instructed that the remedy for a Sixth Amendment violation occurring

at this stage is not a new trial, but rather the suppression of the testimony of the

identifying witness. State v. Hunt, 339 N.C. 622, 646-47, 457 S.E.2d 276, 290 (1994).

But our Supreme Court has held that if the “defendant’s constitutional right of

assistance of counsel at the lineup was violated, [the] defendant waive[s] that error

by failing to object when the witness later identifie[s] him before the jury as the man

he had picked out of the lineup.” State. v. Hunt, 324 N.C. 343, 355, 378 S.E.2d 754,

761 (1989) (emphasis added).          In other words, our Supreme Court held that a

defendant does not even have the right to appellate review of a constitutional error

where the error is not preserved, without any consideration as to whether or not the

error may have been harmless.



                                            -3-
                                  STATE V. LINDSEY

                                 DILLON, J., dissenting



      Accordingly, my vote is that Defendant received a fair trial, free from reversible

error, but that the civil judgment should be vacated and the matter be remanded for

a new hearing on the civil judgment.

                                   II. Background

      In March 2018, Defendant was charged with various crimes associated with a

break-in of a retail kiosk.

      Five months later, on 20 August 2018, well before trial, Defendant appeared

in court where he waived his right to appointed counsel, though he did not expressly

waive his right to counsel generally. The court engaged in a colloquy in which

Defendant was informed of his right to counsel, the charges against him, and the

possible punishments; however, Defendant was not advised of the consequences of

continuing pro se at that hearing or in the future. At some point, though, the trial

court did appoint stand-by counsel for Defendant.

      In March 2019, the matter was called for trial. The presiding judge engaged

in the required colloquy with Defendant concerning Defendant’s desire to waive his

right to counsel generally, including the consequences of proceeding pro se, because

he was concerned about the sufficiency of Defendant’s waiver seven months earlier.

Defendant formally waived counsel and elected to proceed pro se. He did not seek

any continuance, indicating that he was ready to proceed with the trial.



                                         -4-
                                   STATE V. LINDSEY

                                  DILLON, J., dissenting



      During the trial, the State presented overwhelming evidence of Defendant’s

guilt. On appeal, Defendant does not point to any objection he made concerning any

of the State’s trial evidence. He made no argument during the trial, nor does his

appellate counsel make any argument on appeal, that any of the State’s evidence was

tainted by any pre-trial, Sixth Amendment error. The State’s evidence offered at trial

included a copy of the surveillance video and of photos depicting Defendant

committing the break-in. This evidence also consisted of Defendant’s unsolicited

admission to the break-in, a statement he made as he was being served the arrest

warrant, in which he stated, “Well, the good news is this is the last thing you can pin

on me because this is the only other thing I did last night.” Defendant makes no

argument on appeal concerning the admission of this statement.

      Defendant was convicted by the jury for the break-in. The trial court entered

judgment accordingly.      The trial court also entered a civil judgment against

Defendant for the cost associated with his appointed stand-by counsel.

      There is nothing in the record, nor does Defendant’s appellate counsel point to

anything specifically, where Defendant’s trial itself was affected by him appearing

pro se during the pre-trial critical stages. Specifically, there is nothing in the record

indicating, nor does Defendant’s appellate counsel make any argument, that the

State obtained any evidence that might not have been obtained had Defendant been



                                          -5-
                                   STATE V. LINDSEY

                                  DILLON, J., dissenting



represented during all critical stages. There is nothing in the record indicating, nor

does Defendant’s appellate counsel make any argument, that Defendant irretrievably

lost, during a pre-trial phase, the right to assert any particular defense at trial.

                                      III. Analysis

      A defendant has a constitutional right to counsel under the Sixth Amendment

at every “critical stage” of the proceedings, which includes many pre-trial proceedings,

as recognized by the United States Supreme Court:

             This Court has held that a person accused of a crime
             “requires the guiding hand of counsel at every step in the
             proceedings against him,” . . . and that the constitutional
             principle is not limited to the presence of counsel at trial.

             “It is central to that principle that in addition to the
             counsel’s presence at trial, the accused is guaranteed that
             he need not stand alone against the State at any stage of
             the prosecution, formal or informal, in court or out, where
             counsel’s absence might derogate from the accused’s right
             to a fair trial.”

Coleman v, Alabama, 399 U.S. 1, 7, 26 L.Ed.2d 387, 395 (1970) (citations omitted).

See State v. Detter, 298 N.C. 604, 620, 260 S.E.2d 567, 579 (1979) (recognizing this

right). Accordingly, it is considered a constitutional error for a trial court to allow a

defendant to proceed pro se at any critical stage, whether trial or pre-trial, unless the

defendant has knowingly waived his right to be represented by counsel.




                                          -6-
                                   STATE V. LINDSEY

                                  DILLON, J., dissenting



      However, our Supreme Court has repeatedly held that a defendant may not

raise a constitutional error for the first time on appeal, where “the trial court was

denied the opportunity to consider and, if necessary, to correct the error [as it is] well

settled that constitutional matters that are not raised and passed upon at trial will

not be reviewed for the first time on appeal.” State v. Garcia, 358 N.C. 382, 410, 597

S.E.2d 724, 745 (2004) (internal quotation marks omitted) (citation omitted). This

rule applies to constitutional issues arising under the Sixth Amendment. See State

v. Valentine, 357 N.C. 512, 525, 857, 591 S.E.2d 846, 857 (2003) (holding that

defendant waived Sixth Amendment issue by failing to raise the issue at trial); see

also State v. Hunt, 324 N.C. at 355, 378 S.E.2d at 761 (1989) (holding that “[a]ssuming

arguendo that defendant’s constitutional right of assistance of counsel at the lineup

was violated, defendant waived that error by failing to object when the witness later

identified him before the jury as the man he had picked out of the lineup”).

      And this rule applies to Sixth Amendment issues occurring during critical, pre-

trial proceedings. See id. at 355, 378 S.E.2d at 761 (1989) (defendant waived Sixth

Amendment “right to counsel” argument for error occurring during a post-indictment

lineup); see also State v. Gibbs, 335 N.C. 1, 42, 436 S.E.2d 321, 344 (waived Sixth

Amendment “right to counsel” argument for error occurring during interrogation by

law enforcement).



                                          -7-
                                  STATE V. LINDSEY

                                 DILLON, J., dissenting



      Here, Defendant’s appellate counsel does not point to anything that occurred

at trial that was tainted by a pre-trial, constitutional error, whether preserved or

unpreserved. Rather, his counsel only speculates that the pre-trial error of allowing

Defendant to proceed pro se before being properly advised cost Defendant

opportunities to “develop[] evidence, negotiate[] a plea, or fil[e] significant pretrial

motions.” However, this argument ignores the fact that after Defendant was properly

advised of his rights before the trial started, he had the opportunity to bring to the

trial court’s attention that he needed a continuance to allow time to develop evidence,

to negotiate a plea deal, or to file pretrial motions and that his trial would otherwise

not be fair if he was not granted this opportunity. In other words, Defendant, after

being properly advised, did not bring to the trial court’s attention how any pre-trial

error might infect the trial itself and, otherwise, did not give the trial court the

opportunity to correct such error. For example, once properly advised, he had the

opportunity to ask the trial court for a continuance, to allow him more time, if he

thought there was a real problem. He did not do so; therefore, he cannot now

complain and get a new trial.

      And as Defendant refused counsel and decided to proceed pro se even after

being properly advised of the risks of doing so, he assumed the risk. Thus, we must

analyze this appeal in the same way we would had he invoked his right to counsel



                                          -8-
                                         STATE V. LINDSEY

                                        DILLON, J., dissenting



and been fully represented once being properly advised. A trial attorney has the

obligation to point out constitutional errors to the trial court to preserve the issue for

appellate review.       In the same way, a defendant proceeding pro se, after being

properly advised, has the same obligation.

        In conclusion, Defendant has failed to preserve any constitutional errors

associated with Sixth Amendment violations which occurred pre-trial for appellate

review.6

        I agree, though, that a violation of a statutory mandate, is generally preserved,

even without an objection being lodged at trial. State v. Ashe, 314 N.C. 28, 39, 331

S.E.2d 652, 659 (1985) (stating that “[W]hen a trial court acts contrary to a statutory

mandate and a defendant is prejudiced thereby, the right to appeal the court’s action

is preserved notwithstanding defendant’s failure to object at trial”). However, where



        6  Had Defendant preserved an argument for review, I am convinced from the record that any
error was harmless beyond a reasonable doubt, based on the overwhelming evidence against
Defendant and the lack of anything in the record tending to show that the trial was tainted by the pre-
trial error. But I am cognizant of case law from our Court which holds that the State’s failure to make
any “harmless error” argument waives our consideration of harmless error, notwithstanding that the
record itself may demonstrate that any error was, indeed, harmless. See State v. Taylor, 2020 N.C.
App. LEXIS 213, 137 (2020). See also In re L.I., 205 N.C. App. 155, 162, 695 S.E.2d 793, 799 (2010)
(holding the same as Taylor). An argument could be made, though, that waiver does not apply: the
State is the appellee and has no duty to file a brief, and the State’s burden is met simply if the record
shows that the error was harmless, notwithstanding that the State failed to make any argument in a
brief that the error was harmless. Our Supreme Court had the opportunity to take up the issue as to
whether the State, as appellee, can waive “harmless error” review by failing to make an argument, but
declined to do so. See State v. Miller, 371 N.C. 273, 280, 814 S.E.2d 93, 98 (2018) (recognizing the
issue, but, as stated in footnote 5, declining to decide the issue).


                                                  -9-
                                  STATE V. LINDSEY

                                 DILLON, J., dissenting



there is a violation of a statutory mandate, the burden is on the defendant to show

prejudice. And to the extent that the delay in properly advising Defendant of his

right to counsel in this proceeding constitutes a violation of a statutory mandate,

Defendant has failed to show how he was prejudiced at trial by this violation. It is

important to note that the statutory mandate was not violated during the trial itself,

as Defendant was properly advised under N.C. Gen Stat. § 15A-1242 before the trial

began. Further, the evidence against Defendant at trial was overwhelming, evidence

which included a video of him committing the break-in and his admission to the

break-in. Defendant makes no argument on appeal that any evidence was tainted by

the delay in properly advising Defendant of his right to counsel.         Finally, any

conclusion that the violation of the statutory mandate is prejudicial per se would lead

to absurd results. That is, if it was considered prejudicial per se in every case that a

defendant is allowed to proceed unrepresented during some initial, pre-trial stage,

then it would be impossible to successful prosecute such defendant – no matter how

fair the trial was and no matter that all tainted evidence may have been suppressed

– as any conviction would have to be reversed.

      Turning to Defendant’s other arguments not reached by the majority,

Defendant contends that certain photos and a copy of the surveillance video showing

him breaking into the kiosk should not have been admitted at trial. He did not object



                                         - 10 -
                                  STATE V. LINDSEY

                                 DILLON, J., dissenting



to the admission of this evidence at trial, after he had been properly advised of the

consequences of not being represented by counsel.         I believe the evidence was

admissible for the reasons stated in the State’s brief, But even assuming that the

evidence was inadmissible, I do not believe that the trial court committed error by

not intervening ex mero motu when the evidence was introduced or that the admission

of said evidence constituted plain error.

      Regarding the civil judgment, Defendant contends that he was deprived of his

right to be heard before the trial court entered the civil judgment against him for the

fees of the appointed stand-by counsel. The State essentially concedes this error, and

I agree. I would vacate that civil judgment and remand the matter for the limited

purpose of holding a hearing on this civil issue.




                                            - 11 -
