The jury has been picked. Opening statements have been completed. The State has just finished examining its third witness. Now the defendant has decided that they want to represent themself. What happens next and why? This is the scenario that was before the North Carolina Court of Appeals in the Wilson County case of State of North Carolina v. Kendrae Rayquan Parker (COA5-545) a published opinion filed in September of 2026.
In July of 2023, Mr. Parker was a backseat passenger of an SUV that was registered to him. Law enforcement stopped the SUV in response to a 911 call regarding a possible crime committed by occupants of the vehicle. The driver gave the officer consent to search the vehicle. During the search, a shotgun was found in the “rear cargo area just behind the backseat of the vehicle…” Mr. Parker was indicted for possession of firearm by a felon in March of 2024 and tried in November of that year.
During the State’s case in chief and after the State had examined its third witness, Mr. Parker asked to address the trial court. Out of the presence of the jury, the trial court granted Mr. Parker’s request to be heard. Mr. Parker was instructed by the trial court to consult with his attorney before speaking. After conversing with his attorney, Mr. Parker informed the trial court that he wanted his attorney to withdraw from representation. He expressed to the trial court that he was less than satisfied with the way his attorney had questioned witnesses. Mr. Parker further informed the trial court that he would rather proceed as his own counsel. The trial court informed Mr. Parker that at that stage in the proceedings, he did not have the option to continue on without counsel. The trial court informed him that he would continue the trial with his attorney and that his position would be a part of the record. Mr. Parker’s request was denied and he was allowed an additional five minutes to confer with his attorney before the trial resumed. The trial proceeded and the jury found Mr. Parker guilty of possession of a firearm by a felon. Mr. Parker gave oral notice of appeal in open court.
On appeal, Mr. Parker argued that the trial court erred in denying his request to represent himself due to the trial court’s mistaken belief that it lacked discretion to make that decision. Because this appeal raised the issue of the trial court's failure to recognize its discretion to act, the appellate review was conducted de novo. Mr. Parked argued that the trial court denied his request to represent himself because the trial court did not believe that it was within its discretion to make that decision. However, the North Carolina Court of Appeals determined that the record does not support this argument. The Court recognized that criminal defendants have a constitutional right to represent themselves. However, that right can be waived if it is not asserted in a timely manner. State and Federal appeals courts have determined that if after a trial has started with a represented defendant, the decision to let the defendant proceed pro se is within the discretion of the trial court. If the trial court fails to exercise its discretion based on the mistaken belief that it lacks the discretion to act, then error has occurred.
Here the Court found that it was clear from the record as whole that the trial court was aware of its authority to exercise its discretion and it made its decision based on that awareness. Furthermore, the Court determined that on appeal, Mr. Parker had a duty to produce affirmative evidence that the trial court failed to exercise its discretion. Mr. Parker did not provide such evidence. Statements from the trial court such as, “we don’t have that capability,” “the court doesn’t have that ability,” “we can’t do that,” or “we really can’t help you with that particular matter” would demonstrate the trial court lacked awareness of its authority to exercise its discretion with regard to Mr. Parker’s request to proceed without counsel. There were no such statements from the trial court in this case. The trial court addressed Mr. Parker’s request by prefacing its statements with phrases such as, “You can’t…,” “You cannot…,” and ”It doesn’t work like that…” At best, Mr. Parker has shown an ambiguity in the trial court’s awareness of its discretion and this is not sufficient to overcome the presumption the trial court acted properly. Therefore, the North Carolina Court of Appeals found no error in the trial court’s decision not to allow Mr. Parker to represent himself.
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