Opinion
No. COA09-938.
Filed March 16, 2010.
Sampson County No. 08 CRS 713.
Appeal by defendant from judgment entered 25 February 2009 by Judge Jack W. Jenkins in Sampson County Superior Court. Heard in the Court of Appeals 9 December 2009.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Scott K. Beaver, for the State.
Sofie W. Hosford, for defendant-appellant.
Homer Avery Wood ("defendant") appeals from the trial court's 25 February 2009 judgment and commitment order entered upon a jury's verdict finding defendant guilty of (1) trafficking in methamphetamine by sale, (2) trafficking in methamphetamine by possession, (3) selling or delivering methamphetamine, (4) possessing with intent to sell or deliver methamphetamine, and (5) having attained the status of an habitual felon. The court sentenced defendant within the presumptive range from 107 to 138 months imprisonment as an habitual felon with a prior record level of IV. For the reasons set forth below, we hold no error.
In February 2005, Jason Evans ("Evans") agreed to work with the State Bureau of Investigation ("SBI") for $300.00 and to attempt to purchase methamphetamine from defendant. Agent John Crawford ("Agent Crawford") worked with Evans in the operation and interviewed him with respect to his relationship with defendant. Evans informed Agent Crawford that he had known defendant for Evans's entire life and that he previously had purchased methamphetamine from defendant. Evans stated that he knew where defendant lived and that he had been to his home approximately 200 times.
On 14 February 2005, SBI agents met with Evans to discuss the planned purchase. SBI Agent Mitch Deaver ("Agent Deaver") planned to drive Evans to defendant's home in a pickup truck owned by the SBI. Prior to driving to defendant's home, Agent Crawford searched the SBI pickup truck and Evans for contraband, but he did not find any. Agent Crawford also placed a small, digital recording device on Evans to record Evans's conversations with defendant. The SBI wanted Evans to purchase 200 ounces of methamphetamine from defendant for $1,800.00. Agent Crawford provided Evans with $1,800.00 in cash in $100.00 bills because Evans previously had informed Agent Crawford that defendant was selling methamphetamine for $900.00 per ounce. Upon arriving at defendant's home, Agent Deaver parked in defendant's driveway and waited in the truck. Agent Deaver contacted Agent Crawford by cell phone and advised him that Evans was speaking with someone in defendant's yard. Evans later explained that he spoke with defendant in the yard while defendant was working on a tractor.
Upon review of the parties' briefs and the transcript, we note an apparent conflict between the amount of methamphetamine sought to be purchased, the price per ounce, and the amount of money provided for the transaction. It appears from a review of the testimony that the SBI intended for Evans to purchase two ounces — not 200 ounces — of methamphetamine at $900.00 per ounce for a total of $1,800.00. However, neither party addresses the conflict, and it ultimately is immaterial to our review and holding in the case sub judice.
Evans then entered defendant's house and sat at the kitchen table. Approximately five minutes later, defendant came inside the house and brought two bags of methamphetamine from his bedroom into the kitchen and weighed them on a scale. Evans paid defendant $1,800.00 for two ounces of methamphetamine, and defendant put the money into his pants pocket. Evans left defendant's residence, returned to the truck, and placed the methamphetamine onto the truck's center console. Agent Deaver contacted Agent Crawford and advised him that he and Evans would return to the SBI's original meeting place.
When Agent Deaver and Evans arrived, Agent Crawford removed and seized the recording device he previously had placed on Evans as well as the bag Evans had placed on the truck's center console. Agent Deaver described the man he saw outside at defendant's residence as being a white male with shoulder-length hair, wearing a baseball hat, light-colored shirt, and light-colored pants. Evans described defendant as a white male, approximately 5'8" tall, weighing approximately 180 pounds, in his early 50's, with a black goatee, shoulder-length black hair, khaki pants, a khaki shirt, a baseball hat, a gold chain, a bracelet, two nugget rings on each hand, and a diamond ring with an eagle inlay on defendant's right hand.
Subsequent testing confirmed that the SBI agents had seized 55.1 grams of methamphetamine from the operation.
At trial, defense counsel moved the court to declare a mistrial and to allow counsel to withdraw as trial counsel. The trial court denied both motions, and a jury found defendant guilty of (1) trafficking in methamphetamine by sale, (2) trafficking in methamphetamine by possession, (3) selling or delivering methamphetamine, (4) possessing with intent to sell or deliver methamphetamine, and (5) having attained the status of an habitual felon. The trial court sentenced defendant within the presumptive range to a term of 107 to 138 months imprisonment with the North Carolina Department of Correction. Defendant appeals.
On appeal, defendant argues that the trial court erred in failing to declare a mistrial after it purportedly became apparent that defendant's trial counsel would need to testify on defendant's behalf with respect to Andy Wood's ("Wood") testimony. We disagree.
"The decision whether to grant a motion for mistrial rests within the sound discretion of the trial judge and will not ordinarily be disturbed on appeal absent a showing of abuse of that discretion." State v. Primes, 314 N.C. 202, 215, 333 S.E.2d 278, 286 (1985).
Abuse of discretion occurs when a ruling is the result of an arbitrary decision "`manifestly unsupported by reason.'" State v. Taylor, 362 N.C. 514, 538, 669 S.E.2d 239, 260 (2008) (quoting State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998)).
The trial court must declare a mistrial if "an error or legal defect in the proceedings . . . [occurs that results] in substantial and irreparable prejudice to the defendant's case." N.C. Gen. Stat. § 15A-1061 (2007). This remedy is required only when defendant otherwise would be unable to obtain "a fair and impartial verdict." Taylor, 362 N.C. at 538, 669 S.E.2d at 260 (citations omitted).
Although Rule 3.7 of the North Carolina Revised Rules of Professional Conduct recognizes a conflict when an attorney "act[s] as advocate at a trial in which the lawyer is likely to be a necessary witness," N.C. R. Prof'l Conduct 3.7, the decision to allow defense counsel to testify is a matter within the trial court's discretion. State v. Elam, 56 N.C. App. 590, 594, 289 S.E.2d 857, 860 (1982). This Court has recognized that a mistrial is not required to allow defense counsel to testify at trial regarding collateral matters, but rather is a matter within the discretion of the trial court. See id. at 593-94, 289 S.E.2d at 860.
In the case sub judice, defendant's trial counsel had some concern regarding Wood's anticipated testimony, and defendant's counsel requested to examine Wood on voir dire before allowing Wood to testify in front of the jury. The following exchange occurred between defendant's trial counsel and Wood on voir dire:
[DEFENSE COUNSEL]: And I talked to you on yesterday; is that correct?
[WOOD]: Yes, sir.
[DEFENSE COUNSEL]: And did you tell me on yesterday that you gave Gary three ounces of cocaine — I mean, meth the day before this incident?
[WOOD]: I plead the Fifth on that.
[DEFENSE COUNSEL]: Did you tell me on yesterday that you believe that the two ounces that Gary sold to Jason Evans came from the three ounces that you gave him?
[WOOD]: I plead the Fifth on that also.
Based upon this exchange, defendant argues the trial court abused its discretion in failing to declare a mistrial because defendant's trial counsel became a necessary witness when Wood asserted his right against self-incrimination pursuant to the Fifth Amendment of the United States Constitution regarding his prior conversation with trial counsel. Notwithstanding defendant's contention, the trial court did not abuse its discretion in denying defendant's motion for a mistrial. The trial court reasoned that defendant's trial counsel could testify in a limited manner to impeach a portion of Wood's testimony, and a mistrial was unnecessary to do so. Trial counsel chose not to testify. Although defendant argues that the potential dual role of witness and advocate created an awkward situation, this awkward situation does not rise to the level of "substantial and irreparable prejudice" necessary to require a mistrial.
Next, defendant argues that the trial court erred in denying defendant's motion to allow trial counsel to withdraw due to (1) an alleged miscommunication between defendant and his trial counsel, and (2) defendant's argument that it was necessary for defense counsel to testify at trial. We disagree.
A trial court's decision to allow counsel to withdraw "is within the discretion of the trial court, whose decision is reversible only for abuse of discretion." State v. Skipper, 146 N.C. App. 532, 537, 553 S.E.2d 690, 693 (2001) (quoting Porter v. Fieldcrest Cannon, Inc., 133 N.C. App. 23, 26, 514 S.E.2d 517, 520 (1999)). Counsel may be allowed "to withdraw from a criminal proceeding upon a showing of good cause." N.C. Gen. Stat. § 15A-144 (2007). To establish prejudicial error resulting from "the trial court's denial of a motion to withdraw, a defendant must show that he received ineffective assistance of counsel." State v. Thomas, 350 N.C. 315, 328, 514 S.E.2d 486, 495 (1999) (citing State v. Cole, 343 N.C. 399, 411, 471 S.E.2d 362, 367 (1996), cert. denied, 519 U.S. 1064, 136 L. Ed. 2d 624 (1997)). To establish ineffective assistance of counsel, defendant must demonstrate that (1) "counsel's performance fell below an objective standard of reasonableness as defined by professional norms[,]" and (2) defendant was prejudiced by his attorney's performance to the extent that there exists a reasonable probability that the result of the trial "would have been different absent the error." State v. Lee, 348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998).
Additionally, this Court has recognized that reasons for counsel to withdraw depend upon the particular circumstances of the case, and no general rule can be formulated. See, e.g., State v. McGee, 60 N.C. App. 658, 662-63, 299 S.E.2d 796, 799 (1983) (explaining that matters including whether wrongdoing of the attorney taints the case or whether another attorney is prepared to take over the case without delay may be considered to determine whether counsel may withdraw). See also Smith v. Bryant, 264 N.C. 208, 211, 141 S.E.2d 303, 305-06 (1965) (stating that counsel is generally justified to withdraw if the client has not paid).
As to showing good cause for counsel to withdraw, defendant asserted that counsel and defendant disagreed on certain trial strategies. Defendant, however, expressed on multiple occasions that he wanted trial counsel to continue in his defense. Defendant did not want to proceed with the case pro se, and defendant made no assertion that another attorney was prepared to take over his case. Additionally, the trial court determined that it was unnecessary for trial counsel to withdraw in order to testify on the collateral matter of impeaching Wood's testimony.
Furthermore, defendant fails to demonstrate that he received ineffective assistance of counsel. Defendant does not claim that counsel's conduct fell below an objective standard of reasonableness. See Lee, 348 N.C. at 491, 501 S.E.2d at 345 (explaining that errors by counsel must be so serious so as to completely impair counsel's role). To the contrary, defendant stated several times during trial that he would like to continue with trial counsel. Defendant also fails to show that counsel's conduct prejudiced defendant to the extent that the result would have been different absent counsel's conduct. See id. (explaining that an error made by counsel must be so serious so as to deprive defendant of a fair trial). At trial, the court permitted counsel to testify, which counsel declined to do, and counsel was able to question Wood in a manner that indicated several changes in Wood's conversation with counsel from the previous day. Defendant fails to show that the trial court abused its discretion or committed prejudicial error. Accordingly, defendant's second argument is without merit.
For the forgoing reasons, we hold that the trial court did not err in denying defendant's motion for a mistrial or denying counsel's motion to withdraw.
No Error.
Judges HUNTER AND BRYANT concur.
Report per Rule 30(e).