Appeal by defendant from judgments entered 26 October 2000 by
Judge William Z. Wood, Jr. in Guilford County Superior Court.
Heard in the Court of Appeals 13 March 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Lauren M. Clemmons, for the State.
Dolly Bevan Manion for defendant-appellant.
WALKER, Judge.
Defendant appeals his convictions on two counts of robbery
with a dangerous weapon. The State's evidence tends to show the
following: On 14 September 1999, defendant spent the day with
Kenneth Brown (Brown), Tereece Roseboro (Roseboro) and Lynette
Potts (Potts) driving throughout Guilford County consuming
alcoholic beverages and smoking marijuana. That evening, Potts
suggested that the group drive to her and Roseboro's place of
employment at the Greensboro airport food pavilion and rob it.
Upon their arrival, Potts remained in the car while defendant,
Roseboro and Brown proceeded to the airport food pavilion. BothBrown and defendant were wearing green t-shirts similar to ones
worn by food pavilion employees. Brown also carried with him a
nine millimeter handgun. Thereafter, Roseboro directed defendant
and Brown to the food pavilion's office area and returned to the
car.
Inside the office area, two employees were counting their
daily cash register receipts and another was using the telephone.
Brown pulled out the handgun and demanded money from one of the
employees. Defendant then proceeded to tape their wrists and
mouths. At some point, either he or Brown removed a necklace and
bracelet from one of the employees. They left the office area with
approximately one thousand dollars in cash and the employee's
jewelry.
Defendant and Brown returned to the car and Potts drove the
four of them to a housing complex known as Hampton Homes. When
they arrived, Brown entered a house while defendant and the two
women remained in the car. Shortly thereafter, Brown returned and
suggested they go to a nearby motel and get a room for the evening.
Potts drove to the motel and, as they arrived, a state trooper
approached the car. When Brown noticed the trooper, he pulled out
his handgun and told Potts to drive away.
A vehicle chase ensued which involved several law enforcement
officers and lasted approximately thirty minutes. At one point,
Potts returned to the Hampton Homes area, pulled onto a sidewalk,
and slowed down so that Brown could jump out of the car. A short
time later, an officer rammed the rear end of the car forcing it tostop. Defendant then exited the car and attempted to flee on foot;
however, he was subdued and arrested.
Defendant testified that he believed Potts was joking when she
suggested robbing the food pavilion and that it was Brown who
insisted they go through with the plan. He stated Brown had
pointed the handgun at him and he felt as if Brown would have
killed him if he had not participated. Defendant also testified
that, following his arrest, Brown continued to pressure him into
keeping silent and threatened to kill his fiancée if he did not.
I.
Defendant first contends he was denied his constitutional
right to effective assistance of counsel in that his court-
appointed attorney failed to: (1) timely move the trial court to
withdraw as his attorney and (2) actively pursue at trial an
affirmative defense of coercion.
A defendant's constitutional right to counsel includes “the
right to the effective assistance of counsel.”
McMann v.
Richardson, 397 U.S. 759, 771, n. 14, 25 L. Ed. 2d 763, 773 (1970);
Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692
(1984). Affording a defendant with competent counsel who subjects
the evidence to the adversarial process ensures a fair trial which
leads to a reliable outcome. Accordingly, “[t]he benchmark for
judging any claim of ineffectiveness must be whether counsel's
conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a
just result.”
Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93. “When a convicted defendant complains of the ineffectiveness
of counsel's assistance, the defendant must show that counsel's
representation fell below an objective standard of reasonableness.”
Id. at 687-88, 80 L. Ed. 2d at 693;
see also State v. Grooms, 353
N.C. 50, 64, 540 S.E.2d 713, 722 (2000). This showing requires the
satisfaction of a two-part test: (1) counsel's performance must be
deficient, and (2) the deficient performance must be so serious as
to deprive the defendant of a fair trial.
See Grooms, 353 N.C. at
64, 540 S.E.2d at 722.
Failure to Move to Withdraw
Defendant first maintains he was provided with ineffective
assistance of counsel on grounds that his attorney failed to timely
move to withdraw as his attorney. He asserts that, for an extended
period of time, an irreconcilable conflict existed between him and
his attorney such that the attorney had an ethical obligation to
withdraw.
On the day before his trial was to begin, defendant filed a
pro se motion to dismiss his attorney. Upon inquiry from the trial
court, defendant stated he wanted his attorney to pursue a defense
of coercion at his trial; however, the attorney refused. The
attorney responded that he had previously discussed this defense
with defendant and had conveyed to defendant his opinion that there
was no factual basis for such a defense. He also told defendant
that if he insisted on pursuing a coercion defense at trial, he
would have no choice but to withdraw as his attorney. Thereafter,
defendant expressed to the trial court his desire that his attorneybe removed and that he be permitted to act as his own counsel. The
trial court granted defendant's request and appointed the attorney
as stand-by counsel for defendant. After the trial court denied
defendant's request for a continuance, defendant elected to proceed
to trial with his attorney rather than represent himself.
Defendant contends his attorney's failure to timely withdraw
as his attorney constitutes ineffective assistance of counsel. We
disagree.
It is well established that when the attorney-client
relationship has so deteriorated that effective representation is
no longer possible, the attorney should be removed and substitute
counsel should be appointed at that time. State v. Gray, 292 N.C.
270, 233 S.E.2d 905 (1977); State v. Sweezy, 291 N.C. 366, 230
S.E.2d 524 (1976). In order to be granted substitute counsel, a
defendant must show “good cause, such as a conflict of interest, a
complete breakdown in communication, or an irreconcilable conflict
which leads to an apparently unjust verdict.” Sweezy, 291 N.C. at
372, 230 S.E.2d at 528-29 (citations omitted). Here, the record
shows that the extent of the conflict between defendant and his
attorney was not apparent to defendant's attorney until the day
before the trial. Defendant's attorney had previously expressed to
defendant his reservations concerning the pursuit of a coercion
defense and had instructed defendant that he would move to withdraw
if defendant persisted in going through with this defense at trial.
Once the conflict became apparent, the trial court granted
defendant's motion to have his attorney removed. Defendantthereafter elected to be represented by the attorney rather than
represent himself. We conclude that, under these circumstances,
the conduct of defendant's attorney did not fall below an objective
standard of reasonableness; therefore, we overrule defendant's
assignment of error on this issue.
Failure to Pursue a Defense of Coercion
Defendant also maintains he was provided with ineffective
assistance of counsel by reason of his attorney's failure to
actively pursue the affirmative defense of coercion at trial. He
asserts that, because coercion was his only plausible defense to
the armed robbery charges, his attorney's failure to argue this
defense amounted to ineffective counsel.
“The decision whether or not to develop a particular defense
is a tactical decision that is part of trial strategy. Such
decisions are generally not second-guessed by our courts.” State
v. Lesane, 137 N.C. App. 234, 246, 528 S.E.2d 37, 45 (2000)(citing
State v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986).
Notwithstanding defendant's assertion, the record shows that, in
presenting his evidence, defendant was able to fully develop his
contention that he was coerced into participating in the crimes.
Furthermore, during closing arguments, defendant's attorney asked
the jury to listen closely to the trial court's instructions and to
consider all the evidence presented. Thereafter, the trial court
instructed the jury that if it found the elements of coercion
present, it could consider those in determining whether defendant
was guilty. We conclude defendant has not established that hisattorney's performance was deficient or that, as a result, he was
deprived of a fair trial. Therefore, this assignment of error is
overruled.
II.
Defendant next contends the trial court erred by permitting
the prosecutor to ask him questions regarding his fidelity to his
fiancée while at the same time having a relationship with Roseboro.
Defendant argues the trial court should not have permitted the
prosecutor to question him about his relationship with these two
women as such evidence was lacking in probative value and was
otherwise prejudicial.
Generally, a trial court “has broad discretion over the scope
of cross-examination.” State v. Call, 349 N.C. 382, 411, 508
S.E.2d 496, 514 (1998); cert. denied, ____U.S. ____, 151 L. Ed. 2d
548 (2001). Assuming arguendo the trial court erred in permitting
the prosecutor to question defendant about his relationship with
two women, defendant fails to show the existence of a reasonable
possibility that, but for the admission of this evidence, a
different result would have been reached. See N.C. Gen. Stat. §
15A-1443 (1999); see also State v. Milby, 302 N.C. 137, 273 S.E.2d
716 (1981)(burden is on the appellant not only to show error but
also to show that he suffered prejudice as a result of the error).
Indeed, as we have previously discussed, the evidence clearly
established defendant's involvement in the armed robberies.
Accordingly, we overrule defendant's assignment of error. We conclude defendant received a fair trial free from
prejudicial error.
No error.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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