2.
Constitutional Law_effective assistance of counsel_conflict of interest_prior
representation of State's witness
The trial court did not err by not removing a defendant's counsel for a conflict of interest
where defense counsel had represented a State's witness in an unrelated civil case. Defendant
did not point to any instance in which counsel was less than diligent in cross-examining the
witness.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas H. Moore, for the State.
Michael E. Casterline for defendant-appellant.
McGEE, Judge.
Ray Mitchell Smith (defendant) was convicted of malicious
conduct by a prisoner. Defendant was sentenced to twenty-one to
twenty-six months to be served at the expiration of the sentence
for which defendant was incarcerated at the time of the offense.
Defendant appeals.
The State's evidence at trial tended to show that defendant
was in the custody of Mountain View Correctional Facility on 11
April 2002 when correctional officers Nikki Webb (Officer Webb) andKevin McMahan (Officer McMahan) conducted a random cell search. As
a result of this search, the officers found an extra mattress in
defendant's cell, which they removed. Defendant's cell door was
locked following the search. Defendant forced his remaining
mattress from his cell by pushing it under the cell door. Officer
Webb ordered defendant to stop pushing the mattress, but defendant
continued to do so.
While forcing the mattress out of his cell, defendant said he
wanted to exchange his remaining mattress for the one removed by
the officers. Officer Webb told defendant that defendant had been
given a choice of which mattress to keep at the time of the removal
of the extra mattress and the officers had abided by his decision.
When the officers told defendant that they would not return the
mattress they had removed, defendant grew agitated, hitting his
cell door and verbally abusing Officer Webb. The officers informed
the correctional facility's Master Control of defendant's behavior.
Defendant continued his disruptive behavior and demanded to see
Captain Donny Watkins (Captain Watkins). Captain Watkins arrived
and defendant was handcuffed. The officers entered defendant's
cell and he began to scream for the return of the mattress.
Captain Watkins ordered that defendant be removed from his cell and
placed in a holding cell while another search of defendant's cell
was completed.
As defendant was being transported to a holding cell, he
attempted to kick the attending officers, but the officers forced
him to the floor. Officer Webb was standing nearby at the time.
Defendant jerked away as he was being assisted into the holdingcell and the officers cautioned defendant to calm down. Defendant
continued to curse the officers and Officer Webb, in particular.
While Officer Webb waited for the completion of the search of
defendant's cell, defendant made a hawking noise and spat on
Officer Webb, striking her on her right sleeve. Ella Markland
(Markland), a nurse practitioner at the correctional facility,
examined Officer Webb following the incident and found no physical
injury.
Attorney Doug Hall (Hall) was appointed to represent
defendant. At trial, Hall moved to withdraw as counsel for
defendant on the ground of conflict of interest based on his past
employment by Markland, a witness for the State. After hearing a
forecast of Markland's testimony, the trial court denied Hall's
motion to withdraw as counsel.
[1] Defendant first argues that the trial court should have
instructed the jury, as defendant requested, on the offense of
assault on a government official because, according to defendant,
that offense is a lesser included offense of malicious conduct by
a prisoner.
In general, a defendant is entitled to have the jury
instructed as to a lesser included offense when there is sufficient
evidence to support that lesser included offense. State v. Smith,
351 N.C. 251, 267, 524 S.E.2d 28, 40, cert. denied, 531 U.S. 862,
148 L. Ed. 2d 100 (2000). However, "[i]f the State's evidence is
sufficient to fully satisfy its burden of proving each element of
the greater offense and there is no evidence to negate those
elements other than defendant's denial that he committed theoffense, defendant is not entitled to an instruction on the lesser
offense." Id. at 267-68, 524 S.E.2d at 40.
The offense of malicious conduct by a prisoner is defined as:
Any person in the custody of the Department of
Correction . . . who knowingly and willfully
throws, emits, or causes to be used as a
projectile, bodily fluids or excrement at a
person who is an employee of the State or a
local government while the employee is in the
performance of the employee's duties is guilty
of a Class F felony. The provisions of this
section apply to violations committed inside
or outside of the prison, jail, detention
center, or other confinement facility.
N.C. Gen. Stat. § 14-258.4(a)(2003). Accordingly, this Court has
found that there are five essential elements that the State must
prove in order to prove a defendant guilty of the offense of
malicious conduct by a prisoner:
(1) the defendant threw, emitted, or caused to
be used as a projectile a bodily fluid or
excrement at the victim;
(2) the victim was a State or local government employee;
(3) the victim was in the performance of his or her State
or local government duties at the time the fluid or
excrement was released;
(4) the defendant acted knowingly and willfully; and
(5) the defendant was in the custody of the Department of
Correction . . . at the time of the incident.
State v. Robertson, 161 N.C. App. 288, 292-93, 587 S.E.2d 902, 905
(2003).
The State offered evidence at trial establishing that
defendant, a prisoner at a facility operated by the North Carolina
Department of Correction, deliberately cleared his throat of phlegm
and spat on Officer Webb, an employee of the State. At the time of
the incident, Officer Webb was performing her duties as acorrectional officer. Thus, the State presented evidence as to
each essential element of the offense of malicious conduct by a
prisoner and defendant presented no evidence to negate the State's
evidence. Therefore, the trial court was under no obligation to
instruct the jury on any alleged lesser included offense.
Defendant's assignment of error number two is without merit.
[2] In defendant's final assignment of error, he argues that
the trial court committed prejudicial error in failing to remove
defendant's counsel due to a conflict of interest. Defendant's
trial counsel, Hall, had represented Markland, a witness for the
State, in a civil matter unrelated to defendant's case. Defendant
contends that due to their business relationship, Hall would have
been tempted to cross-examine Markland with less vigor than he
would employ for other witnesses called by the State. Markland's
testimony was offered by the State to corroborate Officer Webb's
testimony.
This Court has acknowledged that a criminal defendant "has a
constitutional right to effective assistance of counsel[,]" which
"includes the 'right to representation that is free from conflicts
of interest.'" State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d 336,
343 (1996) (citations omitted). Our Supreme Court has adopted the
two-part test announced by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984),
for determining whether a criminal defendant received effective
assistance of counsel. State v. Taylor, 141 N.C. App. 321, 324,
541 S.E.2d 199, 201 (2000), cert. denied, 355 N.C. 499, 564 S.E.2d
231 (2002). That two-part test requires that [f]irst, the defendant must show that
counsel's performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693. However, when
deciding whether to grant or deny a motion for attorney
disqualification, a trial court is afforded substantial latitude.
State v. Taylor, 155 N.C. App. 251, 255, 574 S.E.2d 58, 62 (2002),
cert. denied, 357 N.C. 65, 579 S.E.2d 572 (2003).
Defendant has failed to direct this Court to any instance
where defendant's trial counsel was less than diligent during the
cross-examination of Markland. Because he makes no such showing,
there is no indication that defendant was deprived of his right to
a fair trial. Thus, defendant's assignment of error number five is
overruled.
N.C.R. App. P. 28(b)(6) provides that "[a]ny assignments of
error not set out in the appellant's brief, or in support of which
no reason or judgment is stated or authority cited, will be taken
as abandoned." Therefore, defendant's assignments of error numbers
one, three, and four are deemed abandoned.
No error.
Judges WYNN and TYSON concur.
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