State v. Taylor

COURT THE IN SUPREME TAYLOR STATE v. TAYLOR v. NORRIS CARLTON CAROLINA OF NORTH

STATE 299PA88 No. 1990) (Filed July (NCI3d)— of ineffective allegation § 82.1 Criminal Law 1. product attorney-client privilege assistance counsel — —work waiver privilege —limited relief that for appropriate in his motion By alleging Defender, inef- rendered attorney, Public court-appointed appeal the trial and direct of counsel fective assistance cases, both defendant waived benefits privilege, but the work attorney-client product allegations to relevant to matters only respect of counsel. ineffective assistance 987. 2d, §§ Criminal Law

Am Jur (NCI4th)— post-trial power § 98 2. Criminal Law motion — facts —ineffective of relevant compel to disclosure court Defender’s files of Public counsel —disclosure assistance of ordered power have the inherent

The does must and judiciary post-trial regarding of relevant facts compel disclosure to a may prior order such disclosure motion and therefore, motion; authority within inherent it was Public Defender’s superior court order disclosure defendant’s motion files to a of counsel. alleged relief based on ineffective 2d, 987. §§ Am Criminal Law Jur (NCI3d)— on North expert Law 31 witness Constitutional appointment indigent practice appellate —no —no error motion did err in defendant’s denying court trial ap- witness on North Carolina employ expert for funds to claim he re- testify support of his practice pellate on his direct assistance of counsel ceived ineffective appointed where the court additional of these trial already, had in this matter who represent cases on behalf of defendant in these filing brief issue for defendant in the amended presenting this STATE v. (1990)] [327 relief, for appropriate demonstrated possessed that he a thorough knowledge of the standards and intricacies of North appellate Carolina practice, and defendant therefore failed to show that he would be deprived a fair ruling on his motion for appropriate relief without the assistance of the expert requested or that there was a reasonable likelihood that such an expert materially would him in assist the prepara- tion or presentation of his claim of ineffective assistance of during direct appeal. 2d,

Am Jur §§ Criminal Law Justice MEYER dissenting part. Court, On certiorari to review an order filed in Superior (Robert J.,HJ,

CUMBERLAND County, by Hobgood on 20 June 1988. Heard in Supreme Court on 14 November 1989. General, H. Lacy Thornburg, Attorney by Isaac T. Avery, III, the State. James R. Glover the defendant-appellant.

MITCHELL, Justice.

The issues before this Court for review on certiorari concern an order and various motions related to a post-trial motion for appropriate relief Court, filed the defendant (1) County. Cumberland Those issues include: the extent to which defendant, by alleging ineffective assistance of waived the rights confidentiality from arising his relationship with counsel who cases; him represented trial and direct of these (2) the extent of the Superior authority, Court’s prior to motion, on the defendant’s post-trial to require that the information; defendant disclose such otherwise confidential whether the indigent defendant is entitled to funds to employ an expert witness on North appellate practice testify support of his claim that he received ineffective assistance of counsel on his direct appeal of these cases.

The Cumberland County Jury Grand returned true bill of indictment on 5 September 1978 charging the defendant with the robbery armed and first-degree murder of Mildred Murchison. On 5 March County Cumberland grand jury returned true bill of indictment charging the defendant with the kidnapping and v.

STATE deadly with a with assault robbery Malcolm Biles and armed Biles. injury upon kill serious inflicting with intent to weapon Defender for the Public indigent, and was found to be District, Tally, Mary appointed Ann Ms. Twelfth Judicial these cases. him at the trial of to represent joined were for trial on the defendant against The cases venue change motion for a The defendant’s of the State. allowed, were and the cases County was the trial to New Hanover Session May Special Criminal tried at the of.

Court, returned July jury County. New On Hanover charges against of all of the guilty the defendant finding verdicts 1979, sentencing separate the conclusion of a July him. On 30 at entered, recommended, and the trial court jury the proceeding, same first-degree for the the defendant to death sentencing judgment convic- the murder first-degree Mildred Murchison. As murder of the armed theory felony during murder upon tion was the based Murchison, with robbery merged conviction robbery that armed Therefore, on that armed judgment the the murder conviction. I The trial court sentenced robbery was arrested. conviction convictions. remaining on the imprisonment to terms court, and Public appeal open notice of gave The defendant The appeal. him on Tally appointed represent Defender defendant, Tally, perfected Public Defender represented kidnapping a new trial on the to this which ordered appeal Court and as to the other convictions found no error conviction but sentences, murder first-degree of death including the sentence 249, 283 A review S.E.2d 761 Taylor, State v. case. opinion in this trial is included Court’s of the evidence at need not on direct the issues raised resolving decision States of the United Supreme here. See id. The Court repeated be Carolina, certiorari, v. North Taylor for writ of petitions denied (1983), 1213, rehearing, Taylor 2d 1398 77 L. Ed. U.S. (1983), 1249, Carolina, filed 77 L. Ed. 2d v. North Tally. Defender by Public on the defendant’s behalf Tally Defender filed a February Public 13 On new trial seeking relief on the defendant’s behalf for appropriate or, parties agree The proceeding. alternatively, sentencing a new Court, entered in the order was on 14 June an that Defender Appellate the Office of the County, appointing Cumberland review all of the office to ordering that counsel and as additional IN THE COURT SUPREME STATE determine an these cases to whether additional or proceedings motion for relief be filed supplemental alleging should ineffective assistance of counsel and the direct trial record, appeal of these cases. From it that appears nothing when, years July further until on 1 transpired two later Court, County, an Cumberland entered order appoint- counsel, Glover, Mr. ing defendant’s current James R. as addi- represent tional counsel to the defendant. That order directed Mr. proceedings Glover to review all of the in these cases including motions, pretrial trial of the actual direct appeal to this and the which petitions had been filed on the defend- ant’s behalf Court of the Supreme United States. The directed that Mr. Glover also “determine whether or not or supplemental additional Motion for Relief Appropriate should alleging filed the Defendant did receive effective counsel assistance of either in trial or appellate stage of these proceedings.” order further directed Mr. Glover to consult with the defendant concerning matters and indicated that intent was “the the question of ineffective assistance be raised this time is going to be [if it] Acting raised at all.” to this pursuant July order of Mr. and, Glover review required conducted on 23 November filed an amended motion for appropriate relief behalf of the alia, inter contending, the defendant’s counsel had him given ineffective both preparing and presenting defense at and in trial preparing presenting his case before this direct appeal. Court on The State filed its response on December 1987. Court, 28 April

On the Superior State filed a motion in County, Cumberland that it asserting would be “inappropriate for Ms. Tally to continue represent the while he alleges motion, that she ineffective.” By its the sought State an order Tally Ms. as for the “removing providing her access to files on this defendant’s by case counsel for the State.” A hearing on this motion State was held Superior Court, County, May Cumberland During the hearing, the defendant filed a memorandum law an order opposing requir- ing Tally Public Defender to disclose all of her office’s files relating filed, alia, to the defendant. The defendant also inter a motion hire an expert funds to witness on appellate North practice testify any on his behalf later on his amended in- hearing, relief. the court During motion for appropriate Tally give Defender dicated that it would order Public defendant, would remove her files relating access to office’s deny motion for funds her counsel and would the defendant’s for the State was directed to draft for an witness. Counsel expert order, the proposed effect. Upon receiving an order to that objections formal and an affidavit Public defendant submitted that, her files Tally opinion, portions in her indicating Defender raised the defendant’s on the defendant were irrelevant to issues she had rendered ineffective assistance of counsel allegations that appeal. his trial and review the order which is now before us for On June Court, County, removing in the Superior was filed Cumberland order, Tally as counsel for the defendant. Public Defender the claim for inef- upon Court concluded that “Based Superior necessary to the Court appears fective assistance of to the files of the Public Defender’s State have access Therefore, Superior to these cases.” Court ordered relating Office order, days of the date of this “that the Public Defender within ten of the motion for necessary during litigation and as amendments, relief, . . . . . . the State access provide and its Further, order, in this relating to . . . all files to these cases.” motion for funds to denied the defendant’s witness. employ expert an allowing order this Court entered an September

On 7 writ of certiorari to review those petition the defendant’s for a (1) the State access granting parts Court’s denying Defender’s files and the defendant’s to the Public date, this witness. On the same appointment expert for the of an for a petition the defendant’s allowing entered an order writ of supersedeas.

I. the extent his ^[1] By assignment allegations of ineffective assistance error, defendant contends that of counsel operated attorney- confidentiality under the arising of his rights as a waiver his waiver product privilege, the work client and under his claims relevant to confidentiality was limited to information of Therefore, argues, the defendant ineffective assistance of counsel. of State give him to directing Court Superior the order of any without limitation ... files to these cases” relating “access to all 152

STATE v. beyond attorney-client went his waiver and privilege violated and, product thereby, work privilege exceeded the court’s authority. agree. We Attorney-client privileged communications are proper under Tate, 189, (1978); State v. circumstances. 294 N.C. 239 821 S.E.2d (3d 1

see generally Brandis North Evidence 62 ed. § 1988). A qualified protects similar privilege criminal defendants attorneys of the work from disclosure of produced on behalf of such defendants connection with the investigation, preparation 105, their State Hardy, or defense of cases. v. 293 N.C. 235 S.E.2d (1988). (1977); 828 N.C.G.S. generally 15A-906 See 1 Brandis on § attorney-client North Carolina Evidence Both privilege however, product and the work privilege, are privileges belonging bemay waived him. State Hardy, See v. (work 235 product N.C. at S.E.2d at 840-41 privilege); Tate, State 825 (attorney-client N.C. at S.E.2d at privilege). By in his alleging amended motion for relief Defender, court-appointed attorney, the Public rendered ineffec-

tive the trial and direct the defendant waived the attorney- of both the benefits client and the product work privilege, only respect but to matters relevant to his allegations ineffective assistance of State, (1970); counsel. See Battle v. App. N.C. 174 S.E.2d 299 White, App. S.E.2d 32 As Justice dissent, Meyer points out in the defendant’s attack the Public Defender’s representation her particularly representation him— of him at trial —was rather broad-ranging and extensive in nature. Therefore, we fairly concede that the defendant made a broad privileges question; waiver but we nevertheless conclude that his waiver was unlimited waiver. As the order of provide directed defendant to the State files relating access “all to these cases” without limiting the ordered disclosure to matters relevant to issues raised the de- fendant’s of ineffective allegations assistance of the order of the Superior authority. Court was overbroad and exceeded its

II. ^[2] By another assignment was without error authority defendant contends that to order any or Public Defender Tally give the State access files IN THE SUPREME 153 COURT (1990)]

[327 prior to on the motion hearing appropriate a defendant’s amended for relief. In support argument, points this out that 15A-1411(b) under a motion relief appropriate N.C.G.S. for is a motion in original pro- criminal action and not a new civil ceeding. argues except very discovery He for limited provided statutes, -910, by discovery our N.C.G.S. 15A-901 to neither §§ party a criminal case entitled a potential to have witness disclose compelled prior evidence to trial. defendant seeks equate on merits for post-trial ap- of his trial, propriate jury relief this case to a argues that authority without to order him to disclose motion, to such anything prior unless such order requiring discovery disclosure was specifically authorized our statutes. doWe not agree.

It is true that neither the State a right nor the defendant had discovery criminal under the common v. cases law. State 181, denied, 978, Goldberg, 261 134 N.C. S.E.2d cert. 12 L. 747 Presently, discovery Ed. 2d rights limited the defendant and the State exist under the Constitution of the United E.g., States statute. 373 Brady Maryland, U.S. (1963) (constitutional 10 L. Ed. 2d 215 requirement State trial); disclose certain information favorable to defendant N.C.G.S. 15A-901 (statutory discovery to -910 rights of §§ State). Assuming arguendo State has us, however, discovery no right to on the facts before absence “the discovery as a right necessarily matter of does preclude ordering discovery trial from in his judge discretion.” State 105, 124, (1977); v. Hardy, 293 see N.C. S.E.2d (1983) (courts’ Am. Depositions Jur. 2d in Discovery § cases). power discovery herent to order justice to assure criminal Here, necessary as in “it is not reach previous for us to question whether the in judges North Carolina trial have herent power discovery in the absence of statute pretrial discovery.” prohibiting Hardy, 293 N.C. at 235 S.E.2d Instead, whether, us, at 840. we must decide the facts before the Superior authority Court had the inherent to order disclosure relief, of facts relevant to the defendant’s motion for which was after made the trial and direct of these cases.

We previously judges have held that our trial have inherent facts', authority to order disclosure trial of relevant where it IN THE COURT SUPREME STATE v. holding in our justice reaching to do so. is in interest of regard, we stated: truth” as it concern is the “search for major At trial the of development the and all through presentation is revealed justice and relevant To ensure that truth ascertained facts. served, to the power compel have the judiciary the must facts, within privileged, relevant not otherwise disclosure of evidence. of the rules of the framework (citation omitted). The us to conclude reasoning same leads Id. inherent power must have the judiciary our also and does regarding post-trial of relevant facts compel to disclosure on such may hearing disclosure to a motion. prior and order such case, the In the the defendant concedes that present 15A-801, issued, to may pursuant cause to be N.C.G.S. subpoenas any Tally Defender and of her assistants who compelling Public any on his amend- may hearing have information to attend relevant Further, testifying. relief purpose for the of appropriate ed motion of production for the docu- may subpoena the State cause 15A-802, issued, to mentary pursuant evidence to be N.C.G.S. § Defender’s files and records the of the Public requiring production hearing the defendant’s concerning any cases at such on to our conclusion that simply weight motion. These add facts authority Superior to order within the inherent Court on prior hearing of Defender’s files to a the disclosure the Public relief, but limited to matters for appropriate defendant’s motion attorney-client privilege which has waived the to the defendant as remand of these product work On our privilege. ordering such may reasonably conclude that Court Superior the merits of the defendant’s any to prior disclosure will assist relief significantly motion for amended so, the inherent If Court has search for truth. justice prior in the interest of authority to such disclosure order any hearing. to as counsel for Tally has been removed

As Public Defender meet allegations will be to required defendant and assistance, should not him she be has rendered ineffective she in her which the files and documents to determine of required any order of pursuant must to the State be disclosed office respon- may obligation enter. That disclosure Glover, to Mr. the defendant’s sibility in should now fall these cases must, course, appointed current who be full given access to all Public Defender’s concerning files the defendant. He will required be make the initial determination what documents and matters in those files must disclosed to the State, should the Superior Court on our remand of these cases disclosure defendant’s amended motion for appropriate relief.

Apparently just anticipating possibility, such a Mr. Glover has brief described before this the extent to which he contends the defendant attorney-client has waived privilege product work making specific allegations of ineffec- tiveness counsel. He argues that has waived the limited privileges confidentiality as to certain parts Defender, files Public identify and he has undertaken to those bf parts the files in some Although detail. the defendant’s brief demonstrates commendable in thoroughness respect, it I early is too for such arguments by to be considered this Court. Court, Should the Superior upon of our remand enter an requiring order disclosure of parts Public Defender’s files and counsel for the defendant and for the State disagree order, as to what of parts the files are governed by such an Superior Court will be to in required inspection conduct an camera of portions those of the files as to which disagreement there is and they determine whether must be disclosed. id. at Cf. (in 235 S.E.2d at 842 camera inspection appropriate findings of to required fact determine if of statement material witness defense). necessary, favorable to If may the Superior Court order parts of the files sealed placed the record of the motion for appellate review. Id.

III. ^[3] By another assignment of error, the defendant argues that Court erred in denying his motion for to employ funds an expert witness North appellate practice testify Carolina of claim he support that received ineffective assistance of counsel his direct of appeal these cases. We do not agree. We need consider here whether the indigent defendant any has constitutional to the an right expert assistance of at State expense post-conviction cf., But during proceeding. Murray v. Giarrantano, (1989) (no —, U.S. L. 2d 1 process Ed. due right to appointed counsel during post-conviction hearing); Penn-

STATE v. (1987) (same). 2d 539 95 L. Ed. sylvania Finley, appointed are entitled statute defendants Indigent relief. for regard appropriate to motions them represent 7A-450(b) (1989). 7A-451(a)(3) Further, N.C.G.S. N.C.G.S. § expert are entitled to provide indigent defendants 7A-454 § assistance at for test in certain circumstances. expense whether is entitled assistance determining indigent an the same under these statutes expense an at State is expert expert cases which similar assistance employed the test See State at trial. right is a matter of constitutional sought as 327, 335-36, Moore, An S.E.2d 321 N.C. if only entitled to such assistance at trial is indigent necessity showing specific he assistance makes a threshold Id. 364 S.E.2d at 652. expert requested. need specific showing to make a threshold must that: demonstrate expert sought, for the (1) fair deprived fair of a deprived he will be trial [here expert without the on his motion relief] will likelihood that there a reasonable preparation him in the of his case. materially assist omitted). (citation failed We conclude that the defendant has Id. in these showing a threshold cases. make such claim particular nature argues The defendant during his direct ineffective assistance of counsel he received appellate witness on North expert that an reveals He him in this claim. materially presenting assist practice will the Public Defender major of his claim that points portion out that a to the manner assistance on relates rendered him ineffective a of and number presented argued in which the Public Defender error, were but were either this Court concluded matters this decisions or He asserts that Court’s harmless error waived. facts, were on erroneous statements on issues based those rele- Defender’s failure to include from the Public which resulted inadequate presentation and from her transcript parts vant of prob- He contends that these surrounding issues. particular of facts fact the Public Defender in part were caused lems which appeal, of error on direct sixty-two assignments presented explained confusing. or repetitious, inadequately he says were Therefore, that: specifically argues

IN THE SUPREME COURT assistance, raising a case this kind of claim of ineffective testimony reasonably as to the in which expert manner a effec- lawyer tive should narrated prepare containing a record errors, relevant to the in which everything assigned manner effective reasonably lawyer should a brief that prepare presents the claims of and the potential significance both error trial, of that error the outcome of the specific and the manner in which present defendant’s counsel failed to his as- in signed errors a manner which would allow this Court to understand their real and to rule them significance on with an accurate of the trial court understanding proceedings would be helpful to resolution of this claim.

Based on reasoning, such the defendant there argues that is a reasonable likelihood that the expert assistance of the requested will materially him in preparing present assist his motion for relief, appropriate and that he will be fair deprived of a without the expert assistance. We do not agree. Glover,

Mr. the defendant’s current has demonstrated cases, in his brief on behalf of the defendant as well these presentation as this issue for defendant in the amended relief, motion for appropriate that he possesses thorough knowledge of the standards and intricacies North appellate prac- tice. His arguments concerning behalf of the defendant assignment clearly high degree expertise pre- demonstrate a senting familiarity and such issues explaining thorough with the factual well complete familiarity details as the manner which those were presented argued facts Further, during appeal. the direct we doubt that an witness expert would any help be of real or this Court in deciding whether ineffectiveness of counsel on the direct appeal of these led this either legal cases Court into factual or error. so, simply This we cannot either being conclude that the defendant will deprived a fair motion for ruling requested, relief without the assistance of the expert or expert that there is a reasonable that such would likelihood materially him in the preparation presentation assist his claim of ineffective assistance of the direct appeal. Therefore, err in \ye conclude that the trial court did not part appoint- of its motion for the denying defendant’s ment of such expert. COURT IN THE SUPREME

STATE IV. reasons, part that of we conclude the foregoing For State be access given that requiring Superior Court’s concerning these Defender’s Office the files of the Public to all of overbroad, the defendant’s scope exceeded the of as it cases was product privilege and work attorney-client privilege waiver of his cases; Superior the order of the part with these connection We further conclude is vacated. the defendant’s denying of its order part did not err that part and we affirm expense, at State for expert Court, remanded to the These cases are of the order. consistent with County, further proceedings Cumberland opinion. and remanded. part, part

Affirmed in vacated part. dissenting Justice MEYER superior the order of the today holds that because majority access to “all files provide court directed defendant ¡State without the ordered disclosure limiting to these cases” relating allegations raised defendant’s relevant to issues to matters counsel, order was overbroad and such ineffective assistance I am con- authority. I dissent' because respectfully exceeded its the ground his conviction on when a defendant attacks vinced that is entitled to the State ineffective assistance of whether file in order to ascertain attorney’s entire review that effective and rendered all reasonable bases that counsel covered assistance. case, he denied a fair sentenc- contended

In this His conten- of his counsel. due to the ineffectiveness ing hearing many years by defendant crimes committed tions regarded leading crime spree the course of a the murder and before particular, tried. being which he was to the murder up (1) investigate trial counsel failed that his alleged (2) crimes, witnesses to these failed to cross-examine the other crimes, concerning evidence offered no rebuttal crimes. witnesses and additionally following allegations set forth

Defendant preparation counsel’s to his regard ineffective assistance his appeal:

IN THE 159 SUPREME COURT (1990)]

[327 1. the to failure raise on direct appeal certain issues and claims relief;

set in the forth amended motion for 2. portions omission certain of the events at trial from

the record on appeal, particular, jury conference closing and the arguments during penalty phase; 3. the to organize sixty-two failure assignments error

in the appeal, brief direct which resulted in confusing court; presentation presented of the to the appellate claims provide the failure to an adequate statement of the facts case; to relate arguments specific facts of 5. the failure to argue specific prejudices to the defendant errors, assigned the context of the in light of the evidence trial;

and events that occurred at 6. the failure to give submit a record and to adequate brief

the court a full understanding significance of the assigned. errors 668,

In v. Strickland 466 Washington, U.S. 80 L. Ed. 2d 674 (1984), the United States test Supreme Court enunciated the to be utilized in whether a determining defendant has established that his was to prevail counsel ineffective. on such a (1) claim, a defendant must prove performance that his counsel’s defective, performance the deficient prejudiced test adopted the defense. This has been in North Carolina. (1985). Braswell, 553, v. 312 324 N.C. S.E.2d 241 Because test incorporates necessary the element of view the prejudice, is in the strategic decisions context of the entire trial. performance judged Counsel’s must be to the circum “according (4th Bair, case.” Whitley stances of each 802 F.2d 1496 (1987). 1986), denied, cert. L. Cir. 94 Ed. 2d 802 attorney’s An are based upon actions often information from his client, and information strategic this forms basis counsel’s When client his counsel gives choices. reason believe pursuing harmful, certain line would investigation be fruitless or counsel’s may failure to later pursue investigation challenged Strickland v. 466 Washington, as unreasonable. U.S. (4th Bair, 1987), 674; L. Ed. 2d Clanton F.2d 1354 cert. Cir. denied, reasons, 98 L. Ed. 2d U.S. For these the State know the extent of investigation must defense counsel’s in order to what she knew learn about defendant’s alleged v. TAYLOR

STATE in- failing were reasons for whether there tactical crimes and her alleged investigate Counsel’s failure vestigate further. were the strategic result failure to raise certain issues were Access to counsel’s which not made a vacuum. decisions of defend- necessary understanding for a product proper work in only the context proper and can be obtained allegations, ant’s entire file. review of the through a extent the waiver of This has never addressed the Court on an ineffective attorney-client privilege the the My review the relevant decisions of Court today. before jurisdictions, in other of decisions handed down Appeals of however, and me when or alleges incompetent a client convinces part allega- on the of his such performance ineffective between abrogate privilege previously existing tion serves to them. by the two handed down our majority relies on decisions issue, Battle, 8 App. on this State N.C. Appeals (1970), White, 1 161 App. 299 174 S.E.2d and N.C. (1968), 32 in its assertion that the waiver making

S.E.2d My is a waiver. attorney-client privilege in this situation limited cases, however, two leads me to believe that reading of these a impose upon were not intended to limitation holdings waiver, attorney for the to disclose but were rather an invitation defense, his any and information relevant to to extent all bar, In at necessary case such as the one rights. to defend his a general is a failure of his counsel to asserting where defendant duties, necessary it is to range a wide review entire perform against in to such a claim. permit file order to defend which limit this judge’s I do not Battle and White as decisions read fact, ability Appeals to such result. the Court of held by the court to whether in White that determination “[i]n of the statement defendant was a inculpatory confession plead guilty, upon in based recom- substantial factor his decision defendant, attorney by testified the State mendations disclosures entitled have court consider defendant’s full White, attorney him and his client.” of conversations had between added). 222-23, (emphasis 161 S.E.2d at App. N.C. on the jurisdictions, in other both federal state Holdings Comm., levels, Particularly is Harris v. this view. instructive support 1984), denied, (Ky. cert. App. 688 S.W.2d 338 Ct.

IN THE SUPREME COURT (1985), Kentucky in of Appeals 88 L. Ed. 2d which when ineffective assistance of counsel is raised via a held that vacate, aside, sentence, attorney- set or correct a motion to only when aspects client is lost. The court reasoned that all whether counsel relationship explored are can it be determined likely effective The court reasonably to render assistance. his counsel in party further held that all contact between a anticipation must deemed to in professional capacity be offered, or in furtherance of services thus litigation legal being eliminating dividing privileged the need for the contact into nonprivileged categories. (11th Cir.), denied,

In Morris v. 809 F.2d 1499 cert. Kemp, (1987), 96 L. ap U.S. Ed. 2d 378 which the defendant the district court’s denial of his for a writ of habeas pealed petition court held committed default corpus, procedural that defendant pursue his ineffective assistance claim his first failing proceeding bringing state habeas and was therefore barred from court. The court in its holding his habeas claim federal noted proceed defendant’s habeas counsel asserted the first making that he was not an ineffective assistance of ing attorney- “and thus had not effected a waiver of the general claim say Id. 1501. The court went on to that such privilege.” client at have the [attorney-client] privilege entirely.” a claim “would waived added). Id. 1502 (emphasis The Fifth States discussed Appeals Circuit United Woodall, v. 438 F.2d 1317 length this issue at United States (5th 1970), denied, cert. 403 U.S. 29 L. Ed. 2d 712 Cir. pleas The in that his sought guilty case withdraw they since he lacked intelligently on the basis that were not made Defendant had addi knowledge sentencing consequences. tionally filed an affidavit that coercion existed which asserting by his virtue of advice he received plea changes pre-plea voided attorney. his The court held that defendant had waived original from entire with the to claim as to his conversation right privilege early attorney. upon The court relied in and often-cited part Blackburn, Court, Hunt v. Supreme of the United States opinion (1888), which held when one has L. Ed. defense, line it constitutes a waiver of upon entered such a analyzing evidence as right reception privileged. to bar issue, elements: the court noted that waiver involves two basic v. FRANKLIN

STATE holding right person subjective The first is —Does it? The second element intend to waive privilege to claim the the assertion of and consistent with —Is it fair objective privilege made to allow being or defense the claim upon determination should be based objective invoked? This goes so far into party whether the taken position fairness requires matter covered when, he never intend- subjectively, cease even privilege shall ed that result. Woodall, 438 F.2d at

United States in this case representation depends of counsel’s The effectiveness Without appeal. of the trial and many aspects preparation upon file, adequately cannot determine access to the entire seem logical was ineffective. It does not representation whether the file, attorney’s control access to his permit defendant to attorney. defense directly sympathetic either through it, be, found that the State is entitled Hobgood rule should as Judge ineffec- allegation file a defendant’s upon to access to the entire did not err Judge Hobgood tiveness. Because I believe that order, I dissent. entering respectfully WAYNE FRANKLIN STATE OF NORTH CAROLINA ROGER 417A89 No. (Filed 1990) July (NCI3d)— degree first murder —defendant 1. Homicide 21.4 of evidence perpetrator sufficiency — murder degree charged Evidence that the first was committed and that defendant was bill of indictment jury where was sufficient to be submitted perpetrator body that the victim’s was found at it tended to show died; she her “many in a field weeks” after edge path of a holes; the motive defendant had top tank was riddled deceased, stolen allegedly to kill as she had opportunity him, him and the victim was last making angry, cocaine from car; in his as she rode off with defendant seen alive him police looking he knew would be sold his car because

Case Details

Case Name: State v. Taylor

Court Name: Supreme Court of North Carolina

Date Published: Jul 26, 1990

Citation: 393 S.E.2d 801

Docket Number: 299PA88

Court Abbreviation: N.C.