State v. SneedAnnotate this Case
201 S.E.2d 867 (1974)
284 N.C. 606
STATE of North Carolina v. James Henry SNEED.
Supreme Court of North Carolina.
February 1, 1974.
*870 Atty. Gen. Robert Morgan by William W. Melvin and William B. Ray, Asst. Attys. Gen., Raleigh, for the State.
Clayton & Ballance by Frank W. Ballance, Jr., Warrenton, for defendant appellant.
The sole question presented by this appeal is whether defendant was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Sections 19 and 23 of the Constitution of North Carolina.
Defendant contends that the testimony of State's witnesses Levy Lowe and James Dennis Mack and certain other related evidence offered by the State became available solely through statements procured from defendant as a result of Constitutionally inadequate representation by his court-appointed counsel. Defendant contends *871 this testimony and other related evidence was, therefore, inadmissible.
The right to assistance of counsel is guaranteed by the Sixth Amendment to the Federal Constitution and by Article I, Sections 19 and 23 of the Constitution of North Carolina. The Sixth Amendment guarantee is made applicable to the states by the Fourteenth Amendment to the Federal Constitution. Avery v. Alabama, 308 U.S. 444, 60 S. Ct. 321, 84 L. Ed. 377. This right is not intended to be an empty formality but is intended to guarantee effective assistance of counsel. Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158; State v. Speller, 230 N.C. 345, 53 S.E.2d 294.
The case before us is unusual in that it arises on the trial judge's ruling on an objection to the admission of evidence. Our research discloses that the majority of the decisions relating to the alleged failure of counsel to render effective representation arises out of post-conviction proceedings. Nevertheless, we see no distinction in the application of the rules of law solely because of the manner in which the question is presented.
Neither the United States Supreme Court, nor this Court, has fashioned a rule to guide us in determining whether an accused was denied his Constitutional right to effective assistance of counsel due to counsel's negligence, incompetency, conflicting loyalties or other similar reasons. However, there are numerous decisions from other jurisdictions and other federal courts which bear upon decision of the question here presented. A review of these decisions indicates the general rule to be that the incompetency (or one of its many synonyms) of counsel for the defendant in a criminal prosecution is not a Constitutional denial of his right to effective counsel unless the attorney's representation is so lacking that the trial has become a farce and a mockery of justice. Snead v. Smyth, 4th Cir., 273 F.2d 838; Doss v. State of North Carolina, D.C., 252 F. Supp. 298; Edgerton v. State of North Carolina, D.C., 230 F. Supp. 264; DuBoise v. State of North Carolina, D.C., 225 F. Supp. 51; Jones v. Balkcom, 210 Ga. 262, 79 S.E.2d 1, cert. den. 347 U.S. 956, 74 S. Ct. 682, 98 L. Ed. 1101. See Annot., 74 A. L.R.2d 1390 (1960), ConvictionIncompetency of Counsel.
Consistent with the above stated general rule, it has been held that the question of Constitutional inadequacy of representation cannot be determined solely upon the amount of time counsel spends with the accused or upon the intensiveness of his investigation. O'Neal v. Smith, 5th Cir., 431 F.2d 646; Vizcarra-Delgadillo v. United States, 395 F.2d 70; United States ex rel. Hardy v. McMann, D.C., 292 F. Supp. 191. Neither does the Sixth Amendment guarantee the best available counsel errorless counsel, or satisfactory results for the accused. United States ex rel. Weber v. Ragen, 7th Cir., 176 F.2d 579; Palmer v. Adams, 162 Conn. 316, 294 A.2d 297; Kinney v. United States, 10th Cir., 177 F.2d 895. Nevertheless, counsel cannot assume the role of amicus curiae, Ellis v. United States, 356 U.S. 674, 78 S. Ct. 974, 2 L. Ed. 2d 1060, but must function in the active role of an advocate. Entsminger v. Iowa, 386 U.S. 748, 87 S. Ct. 1402, 18 L. Ed. 2d 501. Nor can counsel be hobbled by divided loyalties. People v. Stoval, 40 Ill. 2d 109, 239 N.E.2d 441; State v. Crockett, 419 S.W.2d 22 (Mo.1967).
The Courts rarely grant relief on the grounds here asserted, and have consistently required a stringent standard of proof on the question of whether an accused has been denied Constitutionally effective representation. We think such a standard is necessary, since every practicing attorney knows that a "hindsight" combing of a criminal record will in nearly every case reveal some possible error in judgment or disclose at least one trial tactic more attractive *872 than those employed at trial. To impose a less stringent rule would be to encourage convicted defendants to assert frivolous claims which could result in unwarranted trial of their counsels. In Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667, Arnold, J., aptly stated: "The opportunity to try his former lawyer has its undoubted attraction to a disappointed prisoner."
It is evident that there can be no precise or "yardstick" approach in applying the recognized rules of law in this area. Thus, each case must be approached upon an ad hoc basis, viewing circumstances as a whole, in order to determine whether an accused has been deprived of effective assistance of counsel. Walker v. Caldwell, 5th Cir., 476 F.2d 213; Hegwood v. Swenson, 344 F. Supp. 226; Timmons v. Peyton, D.C., 240 F. Supp. 749 (Reversed on other grounds 4th Cir., 360 F.2d 327); Palmer v. Adams, supra.
In instant case, the Clerk of Superior Court appointed Mr. Charles Hubbard, a member of a respected law firm who had been engaged in the practice of criminal law for a period of approximately six years, to represent defendant. We note that Mr. Hubbard had previously represented defendant in a criminal matter as his privately retained counsel. Upon notification of his appointment, Mr. Hubbard promptly interviewed defendant. At that time defendant related facts to him which, if true, could have been an absolute defense to the homicide charge. The gist of defendant's statement was that another person or persons forced him at gunpoint to carry them into Person County, and there without any complicity on the part of defendant, shot and killed Patrolman Joe Wright.
Defendant takes the anomalous position that although he told his attorney a falsehood, his attorney should have known better than to believe him. We think that the attorney-client relationship is such that when a client gives his attorney facts constituting a defense, the attorney may rely on the statement given unless it is patently false. Therefore, under the circumstances of this case, it was reasonable for Mr. Hubbard to believe that someone other than defendant perpetrated the murder, and that unless these persons were apprehended they would flee. Based on these beliefs, Mr. Hubbard advised his client to inform the authorities of the true facts and thereby possibly clear himself of the murder charge. Under these circumstances, we cannot say that his advice was improper.
In retrospect, it might appear to have been the better course for counsel to have advised his client to make no statement to the authorities until counsel had made a more intensive investigation. Conceding, arguendo, that counsel should have pursued this alternative action, his failure to do so does not amount to such abdication of duty as to deny defendant the Constitutionally guaranteed right to effective assistance of counsel. This record does not support defendant's contentions that his appointed counsel acted in the capacity of amicus curiae or that counsel was fettered by divided loyalties. The evidence of record reveals that the relationship between counsel and the deceased patrolman was no more than that of casual acquaintances. Further, we find no evidence of divided loyalty in the fact that Mr. Hubbard was a member of a firm which included the Speaker-Elect of the North Carolina House of Representatives and the Mayor of the Town of Roxboro. This association would seem to attest to his ability and character rather than to indicate a tendency to shirk his duty to his client because of aroused community resentment.
It is the duty of the trial judge and the prosecutor to see that the essential rights of an accused are preserved. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680; Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791.
*873 In United States v. Handy, 3rd Cir., 203 F.2d 407, the Court, considering the circumstances requiring intervention of the Judge because of ineffective assistance of counsel, stated:"In the absence of such gross incompetence or faithlessness of counsel as should be apparent to the trial judge and thus call for action by him it would be destructive of the relationship of counsel and client as we know it either to permit the trial judge to dictate to counsel his trial strategy in defending his client's interests or to permit the defendant after conviction to question that strategy and in effect to put his counsel on trial with respect to it. . . ."
Here the acts allegedly resulting in ineffective representation at trial by defendant's counsel did not occur in the presence of the Court. However, at trial the fair and learned trial judge conducted an extensive voir dire hearing concerning the admissibility of the challenged evidence, including testimony from defendant and appointed counsel. His ruling admitting this evidence, in effect, amounted to a finding by the Court that Mr. Hubbard's actions did not require intervention of the Judge or other officers of the Court.
We hold, under the circumstances of this case, that defendant James Henry Sneed was not denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Sections 19 and 23 of the Constitution of North Carolina.
Defendant offers no authority or argument to support his other assignments of error and we deem them to be abandoned. Rule 28, Rules of Practice in the Supreme Court; State v. Greene, 278 N.C. 649, 180 S.E.2d 789; State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526; 1 Strong N.C. Index 2d, Appeal and Error, § 45.
In the trial of the case below, we find