Where the record contains evidence of a serious potential conflict of interest, the trial court did not violate defendant’s Sixth Amendment right to counsel by removing defendant’s counsel. Where defendant relies on the affirmative defense of automatism, the trial court did not commit plain error by instructing the jury that defendant had the burden of persuasion to prove the defense of automatism. Where each offense of which defendant was convicted required proof of at least one element the other did not, there was no violation of the prohibition against double jeopardy.
On 9 July 2008, William Ralston (“Ralston”), retired firefighter and Coast Guard reservist, was taking care of personal matters in Orange County. On his way to an oil change, he passed his home on Wheeler’s Church Road and saw an unfamiliar vehicle parked in his driveway with an unknown man standing beside it. Ralston subsequently identified that man as defendant.
Ralston entered his driveway and asked defendant if he needed any help. After confirming Ralston’s identity, defendant said that he had some papers Ralston needed to sign relating to Ralston’s recent retirement from the Coast Guard. Ralston walked toward defendant to comply with his request, at which time defendant produced a revolver and shot Ralston in the abdomen. Badly injured, Ralston ran to hide in some nearby brush and woods, where he called 911 and his wife’s office seeking assistance. An ambulance responded, and Ralston was transported first to Person Memorial Hospital, then by helicopter to Duke University Medical Center, where he underwent surgery and was hospitalized for nearly one week. Ralston’s neighbor, Bryan Murray, was home at the time of the shooting and testified at trial that he heard two gunshots and Ralston’s screams at the time of the shooting.
Ralston did not know defendant. However, defendant knew Ralston by virtue of defendant’s ongoing relationship with Ralston’s wife, Chardell Ralston (“Chardell”). Defendant had been having an affair with Chardell for approximately two years prior to the shooting. On a few occasions during the course of their relationship, Chardell discussed with defendant the possibility of leaving her husband. Chardell also communicated with defendant’s best friend and attorney, Wayne Eads (“Eads”), about her relationship with defendant and the consequences of a divorce.
When questioned by police on 11 July 2008, defendant denied any involvement in the shooting. He admitted knowing Chardell platonically, but denied that they had any sexual relationship. To Chardell, defendant also denied involvement in the shooting during a conversation they had on 10 July 2008. Approximately four months after the shooting, defendant told Chardell that he had no memory about the events of which he was accused.
Defendant was indicted by an Orange County grand jury on one count of attempted first-degree murder and one count of assault with a deadly weapon with intent to kill inflicting serious injury. Defendant hired his friеnd Eads to represent him.
On 22 September 2009, a pretrial hearing was held on the State’s motion in limine to remove Eads as defendant’s counsel. The motion was based on potential conflicts of interest that could arise if Eads was called to testify in defendant’s trial. The trial court granted the State’s motion and appointed the Public Defender of Judicial District Fifteen-B to represent defendant. Defendant subsequently declined to be represented by the Public Defender, choоsing instead to represent himself pro se.
Defendant entered a pretrial notice of appeal regarding the court’s ruling on Eads’ disqualification. On 13 January 2010, this Court entered an order granting the State’s motion to dismiss defendant’s pretrial appeal as did the Supreme Court of North Carolina six months later.
On appeal, defendant raises the following questions: (I) whether the trial court committed structural error by removing defendant’s retained counsel; (II) whether the trial court committed plain error by instructing the jury that defendant had the burden of рersuasion to prove the defense of automatism; and (III) whether the trial court violated the prohibition against double jeopardy.
I
Defendant first argues that the trial court erred by removing Eads as defendant’s retained counsel based on the possibility that Eads may have been called to testify as a witness in defendant’s trial. Specifically, defendant contends that Eads’ disqualification was erroneous because the trial court applied an incorrect legаl standard and also because the trial court made no findings of fact to show that Eads was a likely and necessary witness for defendant’s trial. We disagree.
On a motion for disqualification, the findings of the trial court are binding on appeal if supported by any competent evidence, and the court’s ruling may be disturbed only where there is a manifest abuse of discretion, or if the ruling is based on an error of law.
State v. Taylor,
An accused’s right to counsel in a criminal prosecution is guaranteеd by both the North Carolina Constitution and the Sixth
Amendment to the United States Constitution.
Id.
at 254,
[C]ourts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. Therefore, where it is shown that an actual conflict or the potential for confliсt exists, the presumption in favor of an accused’s counsel of choice will be overcome. . . . [I]t is incumbent upon a court faced with either an actual or potential conflict of interest, regarding attorney representation, to conduct an appropriate inquiry and, if need be, grant the motion for disqualification. The trial court must be given substantial latitude in granting or denying a motion for attorney disqualification.
State v. Shores,
The United States Supreme Court has discussed the parameters of the Sixth Amendment right to counsel of choice in a number of cases. In
United States v. Gonzalez-Lopez,
In
Wheat v. United States,
[A] district court must pass on the issue of whether or not to allow a waiver of a conflict of interest by a criminal defendant not within the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly. The likelihood and dimensions of nаscent conflicts of interest are notoriously hard to predict[.] . . . For these reasons we think the district court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.
Id. at 162-63, 100 L. E. 2d at 151 (emphasis added).
In
State v. Taylor,
A
On appeal, defendant cites the United States Supreme Court’s holding in Gonzalez-Lopez and this Court’s holding in Shores to support his contention that disqualification of Eads was erroneous. However, there are substantial differences between the circumstances presented in the instant case and those presented in the aforementioned cases such that the outcomes should not be the same.
In
United States v. Gonzalez-Lopez,
the government conceded that disqualification of the defendant’s counsel was erroneous in the first instance, and therefore the Supreme Court analyzed that case within the framework of structural error.
Defendant also contends that the facts of this case merit the same outcome as in
State v. Shores.
In
State v. Shores,
we held that the “defendant's Sixth Amendment right... is too important to be denied on the basis of a mere, though substantial, possibility that [defense co-cоunsel] Chandler might be called as a witness [for the State].”
[W]e have considered the fact that if [defense co-counsel] Chandler were disqualified this early in the proceedings and a pre-trial hearing determines that either [State’s witness] Amanda Durham can not testify on behalf of the State or that the attorney-client privilege prohibits Chandler from testifying, defendant will have lost his constitutional right for no good reason.
Id.
at 476,
However, the facts in
Shores
are different from the facts in the case at bar. Most notably in
Shores,
according to the expected testimony of the State’s witness, the defendant and defense counsel Chandler
may
have spoken previously about the crime for which defendant was being tried thereby resulting in a conflict of interest if Chandler was called as a witness for the State.
Id.
at 474,
Instead, we find the instant case substantially similar to
Taylor,
wherein this Court affirmed disqualification of the defendant’s counsel based on,
inter alia,
the possibility that counsel would be called to testify as a witness at defendant’s trial.
In light of the relevant precedent, the trial court was justified in its action with respect to attorney Eads. The record indicates that there was evidence of a serious potential for conflict based on Eads’ longstanding relationship with the defendant as well as his correspondence with Chardell prior to the shooting. By virtue of his relationships with both parties, Eads was aware of personal and sensitive information, including the nature of their affair, which was a major factor leading to the shooting. Had Eads remained as defendant’s counsel, he might have been called to testify, at which time he might have been asked to disclose confidential information regarding the relationship between defendant and Chardell, which information may have divulged defendant’s motive for shooting Ralston, which in turn could compromise his duty of loyalty to his client.
As in Taylor, the fact that the conflict never materialized is not dispositive, nor is the fact that the State waited over one year after defendant’s arrest and indictment to bring its motion for disqualification, since defendant still had nearly a year to prepare for trial after Eads was removed as counsel.
B
Defendant also alleges that the trial court applied an incorrect legal standard in disqualifying Eads. Defendant correctly states that the ethical rule at issue in the present case is Rule 3.7 of the North Carolina Revised Rules of Professional Conduct, which states, in pertinent part:
(a) A lawyer shall not act as advocate in a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of lеgal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
N.C. Rules of Prof’l Conduct Rule 3.7(a) (2011). In a recent ethics opinion, the North Carolina State Bar opined that testimony is “necessary” within the meaning of the rule when it is relevant, material, and unobtainable by other means. 2011 Formal Ethics Opinion 1.
Pursuant to the language of Rule 3.7, defendant argues that the trial court should have made explicit and detailed findings that it was “likely” that Eads would be a “necessary” witness in defendant’s trial and considered the various exceptions to the Rule before disqualify ing him as defendant’s retained counsel. However, defendant cites no legal authority to support his position. 1
In its motion in limine, the State specifically set forth several factual issues upon which attorney Eads could testify, including his conversations with Chardell prior to the shooting, defendant’s love for Chardell, Chardell’s marital issues which led to defendant shooting Ralston, and defendant’s demeanor around the time of the offense. With respect to at least some of these issues, Eads would have been uniquely aware of the circumstances such that his testimony would have been unobtainable by other means, considering his private correspondence with Chardell and his long-standing relationship with defendant, which would enable him to form unique opinions as to certain aspects of their characters and their relationship with one another.
In response to the State’s motion, the trial court stated:
[It] does have a significant concern about the potential that your attorney could be called as a witness in this case. This is not a comment on the validity or the truthfulness of the kinds of statements or facts that the State puts forth in the motion. But the mere fact that he may be called to testify to say things that you think would support these statements not being true or saying things that might support the facts alleged in the motion in limine, either way, he could not function as both a witness and an attorney. And so that сonflict of interest may also present ethical issues for Mr. Eads, your attorney, that would be difficult if not impossible to navigate in a trial.
I Court has considered the possibility that there may be conflicts that you could waive and has considered alternatives to relieving your attorney of his representation of you. But in the interest of fairness and efficiency and to avoid any conflict of interest or potential ethical issues in the trial or further proceedings of these matters, I will relieve Mr. Eads as the attorney of record in your case.
We note that neither party requested, nor did the trial court produce, findings of fact supporting its ruling on the motion
in limine.
However, we further note that there
Arguably, the only applicable exception to Rule 3.7 is subdivision (c), involving substantial hаrdship. However, there is no evidence that defendant suffered such hardship because: defendant was appointed new counsel, which he subsequently declined; Eads was disqualified over a year before the trial was to take place; and, the issues being adjudicated were not so complicated as to require someone with a unique accumulation of knowledge to handle them.
Accordingly, the trial court did not apply an incorrect legal standard in rеndering its decision on the State’s motion. Defendant’s argument is overruled.
C
Defendant’s final contention is that the trial court erred by removing Eads as defendant’s counsel for pretrial as well as trial proceedings. We disagree.
“The right of a defendant to have an attorney of his own choosing must be balanced against the court’s interest of conducting a fair and unbiased legal proceeding.”
See Taylor,
As a result, we find that the trial court did not err in determining that attorney Eads must be removed as defense counsel “in the interest of fairness and efficiency and to avoid any conflict of interest or potential ethical issues in the trial or further proceedings of these matters.” This argument is overruled.
II
Defendant next argues that the trial court committed plain error by instructing the jury that defendant had the burden of persuasion to prove the defense of automatism. We disagree.
Since defendant did not object or request an alternate jury instruction at trial, the standard of review for this claim is plain error.
State v. Collins,
In North Carolina, automatism or unconsciousness is a complete defense to a criminal charge because it precludes both a specific mental state and a voluntary act.
State v. Jones,
Defendant contends that since the State must prove every element of an offense beyond a reasonable doubt, and since automatism is a defense that raises a reasonable doubt about the element of a voluntary act, the State should have the burden of proof with respect to the defense. However, defendant’s argument is nearly identical to the argument expressly overruled by this Court in Jones. Accordingly, we hold that the trial court did not commit plain error in rendering its jury instruction regarding the defense of automatism.
III
Defendant’s final argument is that the trial court violated the prohibition against double jeopardy. We disagree.
This Court reviews a trial court’s denial of a double jeopardy motion to arrest judgment on an offense
In
State v. Tirado,
Defendant alleges that by entering judgments against defendant for both attempted murder and assault with a deadly weapon with intent to kill inflicting serious bodily injury, the trial court violated the prohibition against double jeopardy because both offenses were based on identical evidence. However, the aforementioned case law makes clear that conviction for two separate offenses arising out of one incident is not a violation of the prohibition against double jeopardy when each offense requires proof of at least one element that the other does not.
Peoples,
Thus, the trial court did not violate the prohibition against double jeopardy by entering judgments against defendant on two offenses arising out of the same incident, and defendant’s argument is overruled.
No error.
Notes
. In
Robinson & Lawing v. Sams,