State v. Curry

256 N.C.App. 86

805 S.E.2d 552

STATE of North Carolina,

v.Reuben Timothy CURRY, Defendant.

No. COA16-1113

Court of Appeals of North Carolina.

Filed: October 17, 2017

Attorney General Joshua H. Stein, by Assistant Attorney General Teresa M. Postell, for the State.

Paul F. Herzog, Fayetteville, for defendant-appellant.

BERGER, Judge.

On March 4, 2016, Reuben Timothy Curry ("Defendant") was sentenced to life in prison after a Mecklenburg County jury found him guilty of first degree murder. Defendant alleges the trial court abused its discretion in denying defense counsel’s motion to withdraw. Defendant also contends his trial counsel provided ineffective assistance on two separate grounds: (1) counsel failed to articulate "the specific nature of the problems" between counsel and Defendant such that the trial court was unable to determine if an impasse existed; and (2) counsel failed to take advantage of a third opportunity to cross-examine one of the State’s witnesses. As to each of Defendant’s arguments, we disagree.

Factual & Procedural Background

Ronny Steele ("Steele") died from a gunshot wound he suffered on February 25, 2013. Evidence presented at trial tended to show that Defendant was a participant in an ambush-style attempted robbery and ensuing "gun battle" in which Steele was killed. Defendant was indicted for first-degree murder and robbery with a dangerous weapon.

Just prior to trial, Defendant provided defense counsel with a list of three facts he wished to concede: (1) he was at the scene of the crime; (2) he "had or fired a gun"; and (3) he was part of an attempted robbery. A closed hearing was held regarding these possible admissions, and counsel advised the trial court that Defendant’s newly discovered veracity would impact his ability to handle the case and implicate Harbison concerns. Defense counsel was concerned that he could no longer be an effective advocate for Defendant "knowing what I know now."

The trial court conducted the following colloquy with Defendant, in closed proceedings:

THE COURT: Okay. Mr. Curry, would you stand please, sir.

Once again, this conversation is not confidential but it's confidential in terms of where we are in the proceeding right now.

The DA is not present. The jury's not present. It's just me and the court reporter, your attorney, and you, the sheriff and the clerk and a family member of yours, I believe.

DEFENDANT: Yes, sir.

THE COURT: What your attorney is wanting to make sure you understand is you don't have to make admissions of any kind that you were there at the scene of this occurrence, that you had or fired a gun, or that you were part of what the jury may believe was an attempted robbery. Those are all getting real close to admissions—some admissions of guilt on your part.

DEFENDANT: Yes, sir.

THE COURT: Do you understand that?

DEFENDANT: I'm aware of it.

THE COURT: And that puts your attorney in a very, very precarious position because, as the trial goes forward, his job is that you carry all the weight to the end the presumption of not guilty that's with you right now. You understand?

DEFENDANT: Yes, Your Honor. I'm aware.

THE COURT: Why are you asking him to say things that may tend to indicate your guilt of this matter?

DEFENDANT: Because the things I asked him to say, they don't speak to the crime that I'm on trial for. So I'm really not trying to hide the fact because there were prior statements made during the investigation of this matter that the DA received and I—I had worries about them maybe introducing those statements and trying to use them as the—portray me into a liar.

THE COURT: Unless you take the stand, your prior statements won't ever—the jury will never hear any statements you made—well, I take it back.

They may—if you were—are there statements that are going to come in of [Defendant's] after Miranda?

[DEFENSE COUNSEL]: No, Your Honor.

THE COURT: Okay. And so the only statement— [DEFENSE COUNSEL]: Well, first there was no Miranda warnings, but that part of the interrogation, the DA elected not to proceed with that part. So the part that—

THE COURT: Right. The interrogation that occurred at the law enforcement center, the DA said he's not going to use that at this point. The only thing that's going to come into evidence in terms of what you may have said were those—I think the statements at the hospital.

DEFENDANT: Correct.

THE COURT: Right. Those statements that you may have made at the hospital to that very first detective that showed up there. And that was Detective Redfern.

DEFENDANT: Yes, sir.

[DEFENSE COUNSEL]: Correct.

THE COURT: But I don't think Detective Redfern's statements are going to go as far as you're asking your attorney to go in getting real close to that edge of making admissions against your interest. You're asking your attorney to ride a very fine line, in that, if he says you were there, if he says you had or fired a gun, and if he says that you may find that I was part of an attempted robbery, that's getting right up to the edge of going beyond your presumption of innocence and giving the jury stuff that you don't have to give the jury.

Your attorney can—as he's done during the three or four days we've already been involved in this has argued to this jury at every phase that you're innocent until proven guilty beyond a reasonable doubt. He's never wavered from that. And you're asking him now to take some steps that put him in a very difficult position.

It's your case. And as I told you I think when I had the discussion with you earlier, your wishes control what happens.

DEFENDANT: Yes.

THE COURT: You have—your attorney has to do what you say. In other words—you'll get to this point much later in the trial. If you want to testify, he might advise you not to but you—if you want to testify, no one can stop you.

DEFENDANT: Yes, Your Honor.

THE COURT: That's another part of the trial.

There's a theory in the law that says, if there's an impasse between the two of you on how you should proceed, that he has to follow your wishes. Now he's worried about following—that's why he's brought it to my attention, outside of the DAs, is that he's worried that if he follows your wishes, you're putting him in a position of admitting things to this jury that he doesn't want to—I don't think he wants to admit.

Do you, [defense counsel]?

[DEFENSE COUNSEL]: Do not, Your Honor.

THE COURT: I don't think he thinks that's in your best interest to admit these things.

DEFENDANT: We spoke briefly before you entered and I was getting his advice on it. So, I mean, I may not necessarily go through with it but I just would ask him—

THE COURT: Good. I'll give you some more time to talk with him about it because now that you and I have discussed it, you may see—I think that his indication is—how long have you been a defense attorney, [defense counsel]?

[DEFENSE COUNSEL]: Since 1986.

THE COURT: Okay. And his advice I think—I'm telling you his advice is, don't ask him to include these things in your opening statement. It's against your interest and it is perilously close to proving some things that the State really has to prove. Okay?

DEFENDANT: Yes, Your Honor.

THE COURT: So I'm going to give you some more time to talk to [defense counsel] regarding this and then you may ask—and then this will be part of the record but if you choose after this conversation to have him not include these things in the opening statement, they won't be included. There will be—the jury and the DA will never know about it.

DEFENDANT: Okay.

THE COURT: Okay?

DEFENDANT: Yes, sir.

THE COURT: So go ahead and talk to [defense counsel].

Defendant and the court subsequently discussed this situation, and Defendant told the court,

I mean, there's a method to my madness. I mean, I was thinking I don't want the jury to look at me as—in a deceptive manner, like I'm trying to deceive them on certain parts of the case.

But we discussed this. Like I said, I told him that if he felt more confident doing it the way that he was—that he was initially going to do it, and I was fine with that.

The trial court then specifically asked Defendant about the admissions and his satisfaction with counsel:

THE COURT: Okay. So now what's your decision about the issue of whether you were there or the issue of whether or not you fired a gun?

DEFENDANT: I leave it to him. I let him—he can go with what he had.

THE COURT: You're not making any specific request that he include those things in his opening statement?

DEFENDANT: No, sir, Your Honor.

THE COURT: So you changed your mind regarding that issue?

DEFENDANT: Yes, sir.

THE COURT: Okay. And I think that's good advice that you follow—I think your attorney's advice is that you not include those things in your opening statement.

And so you're following your attorney's advice?

DEFENDANT: Yes, sir.

THE COURT: Okay. Are you making that decision of your own free will, fully understanding what you're doing?

DEFENDANT: Yes, sir.

THE COURT: Do you have any questions of me regarding that decision?

DEFENDANT: None, Your Honor. No, sir, Your Honor.

THE COURT: Are you satisfied with your attorney's services to this point in urging that you allow him to make the opening statement that he wants to make and not include these elements that you wanted?

DEFENDANT: Yes, sir.

THE COURT: Are you satisfied with his services?

DEFENDANT: Yes, sir.

....

THE COURT: Okay. So he's going to make his opening the way he thinks it ought to be made in your behalf and not include those things—one, two, and three—that we discussed. He's not going to make those things.

DEFENDANT: Yes, sir.

THE COURT: And you're okay with that?

DEFENDANT: Yes, Your Honor.

Defense counsel again expressed to the court that the three new facts provided "five minutes before opening statement" and subsequent out-of-hand dismissal of those facts by Defendant created concerns about counsel’s ability to zealously represent Defendant.

At trial, defense counsel gave an opening statement in which he told the jury, among other things, that Defendant "is not guilty of attempted...