STATE OF NORTH CAROLINA
v. Rowan County
No. 02CRS58067-74
RONALD LANE CANUPP
Attorney General Roy Cooper, by Assistant Attorney General
Chris Z. Sinha, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant-appellant.
THORNBURG, Judge.
Defendant was found guilty of four counts of first degree
statutory sexual offense and four counts of taking indecent
liberties. He was sentenced to four consecutive terms of
imprisonment of a minimum term of 144 months and a maximum term of
182 months.
The State presented evidence tending to show that in March
2002, the victim, born in 1993, began spending weekends with
defendant in the residence defendant shared with his twin brother.
The victim would sleep in the same bed with defendant, who was born
in 1951. After a few weekends without incident, defendant began to
fondle the victim's penis and perform fellatio on him. Defendant
also showed the boy “dirty movies.” One evening defendant'sbrother came into the bedroom while defendant was performing
fellatio on the boy and the two brothers engaged in an argument.
In October 2002 the boy informed his mother that he did not want to
visit defendant any more because defendant was “touching him on his
privates.”
Defendant gave a statement to Detective Tonya Rusher of the
Rowan County Sheriff's Department in which he admitted engaging in
sexual activity with the boy. Defendant contended the boy
initiated the sexual activity by putting his hand into defendant's
pants and feeling his penis. Defendant stated the two performed
reciprocal acts of masturbation and fellatio and watched sex movies
together on the Playboy channel. One evening, defendant's brother
came into defendant's bedroom while he was performing fellatio on
the boy. Defendant asserted that the boy pulled his hair and
forced him to engage in the sexual acts.
Defendant testified and acknowledged sleeping in the same bed
with the victim, but he denied engaging in any sexual activity with
the boy. He recanted the statement he gave to Detective Rusher.
Defendant's brother also testified on defendant's behalf and
denied coming into defendant's bedroom and finding defendant
engaged in fellatio with the boy.
Defendant brings forward two assignments of error.
First, he contends the trial court erred by allowing
defendant's brother to testify in violation of defendant's rights
to due process of law and effective assistance of counsel. The
record shows that after defendant testified, defendant's counselstated for the record that defendant, against advice of counsel,
desired to call his brother as a witness. Counsel stated he had
advised defendant that if the brother testified, a prior statement
by the brother inculpating defendant would be introduced by the
prosecution. The following colloquy occurred between the court and
defendant:
THE COURT: All right. Mr. Canupp, stand
up, please. Do you understand that if your
brother testifies the District Attorney is
going to ask him about this statement that he
made to Detective Rusher about walking in on
you and [victim]? Do you understand that?
THE DEFENDANT: Yes, ma'am.
THE COURT: And you understand that your
lawyer is advising you that because of that
statement your brother made he may not be a
good witness for you? Do you understand that?
THE DEFENDANT: Yes, ma'am.
THE COURT: And your lawyer says that you
still want him to call your brother as a
witness, is that correct?
THE DEFENDANT: I will just say, no.
THE COURT: You do not want your brother
to testify? I need an answer.
THE DEFENDANT: I'm thinking. That's up
to him, if he wants to call him or not.
MR. SHOAF: No, sir, I've left that up to
you.
THE COURT: That's not up to your lawyer.
He says he's left it up to you. So we need to
know whether you want your brother to be a
witness or not.
THE DEFENDANT: I'd like _- I'd like him
to be a witness to me. He was there.
THE COURT: All right. So you understand
that he's going to be questioned about this
statement he made about walking in on you and
[victim], but you want him to be a witness for
you?
THE DEFENDANT: Would he be arrested?
THE COURT: Sir?
THE DEFENDANT: I mean, will he be
arrested?
THE COURT: I can't think of any reason
why.
MR. SHOAF: No, he will not be arrested.
THE COURT: Not yet.
THE DEFENDANT: No?
MR. SHOAF: Not for this testimony, no.
So do you want him?
THE DEFENDANT: Yeah.
Defendant contends that because of his deficient mental
functioning, the court should not have allowed him to overrule his
counsel's wishes.
The attorney-client relationship has traditionally rested on
principles of agency and not of guardian and ward. State v.
Barley, 240 N.C. 253, 255, 81 S.E.2d 772, 773 (1954).
While an attorney has implied authority to
make stipulations and decisions in the
management or prosecution of an action, such
authority is usually limited to matters of
procedure, and, in the absence of special
authority, ordinarily a stipulation operating
as a surrender of a substantial right of the
client will not be upheld.
Id. at 255, 81 S.E.2d at 773. The attorney is bound to comply with
the client's lawful instructions and the attorney's actions arelimited to the scope of authority given by the client. State v.
Ali, 329 N.C. 394, 403, 407 S.E.2d 183, 189 (1991). Generally,
tactical decisions -- such as what witnesses to call, what jurors
to accept or strike, or what motions to make -_ are within the
province of the lawyer. Id. at 404, 407 S.E.2d at 189. “However,
when counsel and a fully informed criminal defendant client reach
an absolute impasse as to such tactical decisions, the client's
wishes must control; this rule is in accord with the principal-
agent nature of the attorney-client relationship.” Id. at 404, 407
S.E.2d at 189. An attorney in this situation should make a record
of the circumstances, the advice given to the client, the reasons
for the advice, the client's decision, and the conclusion reached.
Id. at 404, 407 S.E.2d at 189.
Here, defendant's attorney made the requisite record and the
court made inquiry to determine to its satisfaction that the
decision made by defendant was voluntarily and intelligently made.
Having just heard defendant testify and speak with regard to the
matter at hand, the court could make its own determination as to
whether defendant had the mental capacity to make this decision.
We conclude defendant was not denied his right to counsel by being
allowed to overrule counsel.
Second, defendant contends that he was denied effective
assistance of counsel because counsel failed to obtain a report
from a psychologist in time to submit it in support of motions to
admit defendant to Dorothea Dix Hospital for a competencyevaluation and to suppress his statement on the ground his waiver
of right to remain silent was not intelligently made.
To prevail on a claim of ineffective assistance of counsel,
the defendant must show that counsel's performance was deficient
and that counsel's deficient performance was prejudicial. State v.
Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). To
demonstrate the latter defendant must show that a reasonable
probability exists that a different outcome would have resulted if
counsel's performance had not been deficient. Id. at 563, 324
S.E.2d at 248. “[I]f a reviewing court can determine at the outset
that there is no reasonable probability that in the absence of
counsel's alleged errors the result of the proceeding would have
been different, then the court need not determine whether counsel's
performance was actually deficient.” Id. at 563, 324 S.E.2d at
249.
Here, the report of the psychologist later obtained by
defendant does not state that defendant lacked capacity to proceed
to trial or to make voluntary statements. Thus, even if counsel
had the report in time to submit it to the court, there is no
reasonable probability that the result of the motions hearing would
have been different.
We hold defendant received a fair trial, free from prejudicial
error.
No error.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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