Opinion
No. COA12–708.
2013-06-4
STATE of North Carolina v. Myisha Edwards BROWN.
Attorney General Roy Cooper, by Assistant Attorney General David L. Elliot, for the State. Merritt, Webb, Wilson & Caruso, PLLC, by Andrew L. Farris, for defendant-appellant.
Appeal by defendant from judgment entered 27 October 2011 by Judge Jay D. Hockenbury in Wayne County Superior Court. Heard in the Court of Appeals 12 December 2012. Attorney General Roy Cooper, by Assistant Attorney General David L. Elliot, for the State. Merritt, Webb, Wilson & Caruso, PLLC, by Andrew L. Farris, for defendant-appellant.
BRYANT, Judge.
Where defendant failed to establish an actual conflict of interest that adversely affected defense counsel's performance, but established the possibility of a conflict that did not appear to be resolved by either the trial court's limited inquiry or by the existence of a waiver by defendant, we remand to the trial court for an evidentiary hearing.
On 6 December 2010, defendant Myisha Edwards Brown was indicted for one count of financial identity fraud and one count of financial transaction card fraud. On 3 October 2011, defendant was indicted for an additional count of financial identity fraud and an additional count of financial transaction card fraud by a superseding indictment. Defendant was tried for these offenses during the 24 October 2011 Criminal Session of the Wayne County Superior Court.
The evidence at trial indicated that in 2010, defendant lived with her sister, Ashley Rich, and worked as a stylist at Queen's Hair Expression (“Queen's”) in Goldsboro, North Carolina. Ms. Rich also worked at Queen's.
In 2010, Ta–Kisha Darden and Juliet Jones were clients at Queen's. On separate occasions, Ms. Darden and Ms. Jones left their respective purses and debit cards unattended while receiving services at Queen's. Subsequently, Ms. Darden and Ms. Jones noticed several unauthorized charges on their debit card accounts.
Ms. Darden's checking account statement revealed unauthorized debit card payments to Progress Energy, the City of Goldsboro Water Department, and Buddy's Home Furnishings. Ms. Jones' checking account statement reflected an unauthorized payment to Summit Christian Academy. Several of the unauthorized payments were made over the telephone and all of the payments were posted to accounts on which either defendant or Ms. Rich was listed as the owner. Additionally, defendant's daughter was enrolled at Summit Christian Academy.
At trial, defendant's primary defense was that Ms. Rich was the sole perpetrator of the alleged crimes. When the State concluded its case, defense counsel did not present any evidence. The trial court instructed the jury using the pattern charges for identity theft and credit card fraud, modified to include the theory of acting in concert with Ms. Rich. The court's final charge included an instruction on the need for a unanimous verdict.
Immediately after the charge conference, the prosecutor moved to have closing arguments recorded because defendant's attorney was also representing Ms. Rich, who would be tried at a later date. The trial court noted that defense counsel had informally advised the court that he intended to withdraw from Ms. Rich's representation. Thereafter, defense counsel explained that he had consulted with both defendant and Ms. Rich and there did not appear to be a conflict. The trial court did not confirm this statement with defendant and Ms. Rich was not present in the courtroom at the time. Defense counsel then stated that he would withdraw from representing Ms. Rich unless Ms. Rich pleaded guilty. The prosecutor asked defense counsel to appear with Ms. Rich at the November administrative session to confirm his withdrawal. Defense counsel agreed and the prosecutor withdrew her motion to have closing arguments recorded.
After a little more than an hour of deliberation, the court received a note from the jury that read: “What to do when there seems to be no agreement on any count.” Outside of the jury's presence, the court indicated that it would give the jury “a short instruction” that they had a duty to deliberate and attempt to reach a unanimous verdict. Neither the State nor defense counsel objected. The court then called in the jury and addressed it as follows:
You've been out just slightly longer than one hour, you know, in this case, and I'm going to say that all the jurors, you know, have a duty to deliberate with an attempt, you know, to reach a unanimous verdict. And you need to, you know, to do that, if you can possibly do it. All right? So I would say that I'm going to send you back now and to tell you this: That a verdict is not a verdict until all twelve jurors agree unanimously as to what your decision shall be. All right? You may go back and proceed with your deliberations.
Neither the State nor defense counsel objected to this instruction. Approximately twenty minutes later, the jury returned guilty verdicts on three of the four counts.
The jury found defendant guilty of one count of felonious identity theft, one count of felonious credit card fraud, and one count of non-felonious credit card fraud. The jury found defendant not guilty of an additional count of felonious identity theft.
Consistent with its usual practice, the trial court gave the jury an opportunity to ask questions or make comments after sentencing and entry of judgment. Several jurors raised questions concerning the absence of Ms. Rich from the trial. The trial court directed these questions to the prosecutor, who declined to answer on the grounds that charges were still pending against Ms. Rich. Although Ms. Rich was a potential witness for the State, neither the State nor defense counsel subpoenaed Ms. Rich as a witness.
At sentencing, all counts were consolidated and judgment suspending sentence was entered on 27 October 2011. Defendant appeals.
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On appeal, defendant raises the following issues: (I) whether defendant is entitled to a new trial because her constitutional right to effective, conflict-free assistance of counsel was violated; and (II) whether defendant is entitled to a new trial because her constitutional right to a unanimous jury verdict was violated.
I
Defendant first argues that her constitutional right to effective, conflict-free assistance of counsel was violated by defense counsel's actual conflict of interest. Defendant contends defense counsel's dual representation of defendant and Ms. Rich was an actual conflict of interest. Specifically, defendant argues that defense counsel's performance was adversely affected because her primary defense was that Ms. Rich was the sole perpetrator. Defendant also argues that she could not knowingly, intelligently and voluntarily waive her right to effective, conflict-free assistance of counsel because the trial court failed to ensure she fully understood the adverse effect of defense counsel's actual conflict.
Standard of Review
To determine whether a defendant's right to effective, conflict-free assistance of counsel has been violated, this Court conducts a de novo review. State v. Taylor, 155 N.C.App. 251, 260, 574 S.E.2d 58, 65 (2002). Under the de novo standard, this Court “considers the matter anew and freely substitutes its own judgment for that of the trial court.” Reese v. Mecklenburg Cnty., 200 N.C.App. 491, 497, 685 S.E.2d 34, 38 (2009) (citation omitted).
Analysis
The Sixth and Fourteenth Amendments of the United States Constitution, as well as Article I, §§ 19 and 23 of the North Carolina Constitution guarantee criminal defendants the right to effective, conflict-free assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 343, 100 S.Ct. 1708, 1715 (1980); State v. James, 111 N.C.App. 785, 789, 433 S.E.2d 755, 757 (1993). While multiple defendants will almost certainly produce disparities as to proof against one another, it does not necessarily follow that “such disparity ipso facto results in disparity of effort devoted to such defendants if they have the same attorney.” State v. Summerford, 65 N.C.App. 519, 523, 309 S.E.2d 553, 556 (1983) (citation and quotations omitted).
“Absent special circumstances a trial court may assume multiple representation entails no conflict of interest or that the defendant and defense counsel knowingly accept the risk of a conflict.” State v. Choudhry, 365 N.C 215, 220, 717 S.E.2d 348, 352 (2011) (citation and quotations omitted). However, if the court is “on notice that a multiple representation may create a conflict of interest,” this assumption may not apply. Id. (citation and quotations omitted). When the court “knows or reasonably should know” that a conflict might exist, the court is required to make an inquiry “into the propriety of multiple representation.” Id. (citation and quotations omitted).
“[D]efense counsel are often in the best position to recognize when dual representation presents a conflict of interest[.]” State v. Walls, 342 N.C. 1, 40, 463 S.E.2d 738, 758 (1995). “[W]hile a trial court may not rely solely on representations of counsel to find that a defendant understands the nature of a conflict, the court reasonably may consider the statements of counsel when determining ... whether an actual conflict exists[.]” Choudhry, 365 N.C. at 223, 717 S.E.2d at 354. Trial courts also have discretion to determine “whether ... a full-blown proceeding is necessary or whether some other form of inquiry is adequate and sufficient” to identify an actual conflict. Id. at 224, 717 S.E.2d at 354.
“[T]o establish a conflict of interest violation of the constitutional right to effective assistance of counsel, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.” State v. Howard, 56 N.C.App. 41, 46, 286 S.E.2d 853, 857 (1982) (citation and quotations omitted). The mere possibility of conflict is “insufficient to impugn a criminal conviction.” Sullivan, 446 U.S. at 350, 100 S.Ct. at 1719. Thus, “[u]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Id. “[I]f defendant is unable to establish an actual conflict causing an adverse effect, he must show that he was prejudiced in order to obtain relief.” Choudhry, 365 N.C. at 224, 717 S.E.2d at 355.
Defendant's primary defense at trial was that Ms. Rich was the sole perpetrator of the alleged crimes. Defendant argues that Ms. Rich's testimony would have exculpated defendant to the extent that Ms. Rich incriminated herself. Additionally, defendant contends that defense counsel failed to present crucial evidence necessary to support the theory that Ms. Rich was the sole perpetrator.
Here, before this Court there is no offer of proof on the record of the information disclosed between Ms. Rich and defense counsel. Therefore, it is difficult to determine the extent, if any, to which Ms. Rich's testimony would have served to exonerate defendant or lessen her culpability. Absent evidence of an actual conflict, defendant may argue that a potential conflict of interest existed; however, the presence of only a potential conflict fails to satisfy the foundational requirements for defendant's claim of ineffective assistance. See Sullivan, 446 U.S. at 350, 100 S.Ct. at 1719.
In the absence of an actual conflict of interest, defendant must show that she was prejudiced by defense counsel's deficient performance. Choudhry, 365 N.C. at 219, 717 S.E.2d at 352. Defendant first directs our attention to several juror comments made following sentencing and entry of judgment. Defendant claims these comments illustrate the prejudicial effect defense counsel's alleged conflict had on defendant's representation. However, the jury's perception of defense counsel's overall strategy, including his decision not to subpoena Ms. Rich, provides little support to defendant's claim of prejudice. See Howard, 56 N.C.App. 41, 286 S.E.2d 853. Likewise, the same is true of the potentially exculpatory evidence that defendant claims defense counsel omitted at trial.
Prior to closing arguments, the prosecutor brought the potential conflict to the trial court's attention. Defense counsel affirmed that he had been retained by both defendant and Ms. Rich, and explained that he had asked both parties whether they thought a conflict may arise. According to defense counsel, neither party expressed any concern.
Despite the informal notification to the court that no conflict existed, and defense counsel's statement that he was withdrawing from representing Ms. Rich, defendant argues that the trial court's inquiry was inadequate. We agree. The trial court's inquiry into the prosecutor's concern for potential conflict was indeed limited. While defendant has failed to establish an actual conflict of interest that adversely affected defense counsel's performance, Howard, 56 N.C.App. at 46, 286 S.E.2d at 853, defendant has presented facts that demonstrate a possibility of conflict. Sullivan, 446 U.S. at 350, 100 S.Ct. at 1719. Further, the facts and circumstances of this case require a closer inquiry by the trial court as to the propriety of the dual representation by defense counsel. Because defendant has demonstrated a possibility of conflict, and because the trial court conducted such a limited inquiry, we remand for an evidentiary hearing to determine whether a potential conflict existed, and if so, whether it was properly waived by defendant. Furthermore, as a result of our remand on this issue, we refrain from addressing the second issue raised by defendant on appeal.
Remanded. Judges CALABRIA and GEER concur.
Report per Rule 30(e).