{ "id": 4132563, "name": "STATE OF NORTH CAROLINA v. VERNON PETE GRAY, III", "name_abbreviation": "State v. Gray", "decision_date": "2013-02-05", "docket_number": "No. COA12-153", "first_page": "431", "last_page": "439", "citations": [ { "type": "official", "cite": "225 N.C. App. 431" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "646 S.E. 2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638731 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/646/0119-01" ] }, { "cite": "638 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637376 ], "year": 2006, "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0474-01" ] }, { "cite": "626 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635151 ], "year": 2006, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0271-01" ] }, { "cite": "535 U.S. 162", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 353765 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "164, 173-74" }, { "page": "1239, 1245" }, { "page": "299, 305" } ], "opinion_index": 0, "case_paths": [ "/us/535/0162-01" ] }, { "cite": "433 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "758-59" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 785", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524010 ], "year": 1993, "pin_cites": [ { "page": "791" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0785-01" ] }, { "cite": "361 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3745920, 3747335, 3737678, 3736558, 3737649, 3743797 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0358-05", "/nc/361/0358-04", "/nc/361/0358-01", "/nc/361/0358-06", "/nc/361/0358-03", "/nc/361/0358-02" ] }, { "cite": "180 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8244029 ], "year": 2006, "pin_cites": [ { "page": "642-43" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0637-01" ] }, { "cite": "446 U.S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182598 ], "weight": 15, "year": 1980, "pin_cites": [ { "page": "348" }, { "page": "1718" }, { "page": "346" }, { "page": "348" }, { "page": "1718" }, { "page": "346" }, { "page": "347" }, { "page": "1717" }, { "page": "346" }, { "page": "348, 350" }, { "page": "1718" }, { "page": "346-47" }, { "page": "348" }, { "page": "1718" }, { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/us/446/0335-01" ] }, { "cite": "435 U.S. 475", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2258 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "488-91" }, { "page": "1180-82" }, { "page": "437-38" } ], "opinion_index": 0, "case_paths": [ "/us/435/0475-01" ] }, { "cite": "717 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2011, "pin_cites": [ { "page": "352", "parenthetical": "stating that \"[t]he test to determine whether a defendant is entitled to relief under such circumstances without having to demonstrate prejudice is dependent upon the level of notice given to the trial court and the action taken by that court\"" }, { "page": "352" }, { "page": "355" }, { "page": "355" } ], "opinion_index": 0 }, { "cite": "365 N.C. 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4153745 ], "weight": 2, "year": 2011, "pin_cites": [ { "page": "219", "parenthetical": "stating that \"[t]he test to determine whether a defendant is entitled to relief under such circumstances without having to demonstrate prejudice is dependent upon the level of notice given to the trial court and the action taken by that court\"" }, { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0215-01" ] }, { "cite": "182 L. Ed. 2d 176", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2012, "opinion_index": 0 }, { "cite": "132 S. Ct. 1541", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2012, "opinion_index": 0 }, { "cite": "711 S.E.2d 122", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2011, "pin_cites": [ { "page": "135" }, { "page": "135-36" }, { "page": "136", "parenthetical": "alteration in original" }, { "page": "136", "parenthetical": "alteration in original" }, { "page": "136" }, { "page": "136" }, { "page": "136" } ], "opinion_index": 0 }, { "cite": "365 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4154419 ], "weight": 7, "year": 2011, "pin_cites": [ { "page": "118" }, { "page": "118-20" }, { "page": "119" }, { "page": "119" }, { "page": "119" }, { "page": "119-20" }, { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0103-01" ] }, { "cite": "166 L. Ed. 2d 116", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "127 S. Ct. 164", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2006, "opinion_index": 0 }, { "cite": "549 U.S. 867", "category": "reporters:federal", "reporter": "U.S.", "year": 2006, "opinion_index": 0 }, { "cite": "360 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787721 ], "year": 2006, "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0297-01" ] }, { "cite": "450 U.S. 261", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184550 ], "weight": 6, "year": 1981, "pin_cites": [ { "page": "271" }, { "page": "1103" }, { "page": "230" }, { "page": "272" }, { "page": "1104" }, { "page": "230-31" } ], "opinion_index": 0, "case_paths": [ "/us/450/0261-01" ] }, { "cite": "474 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "343", "parenthetical": "quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103, 67 L. Ed. 2d 220, 230 (1981)" } ], "opinion_index": 0 }, { "cite": "344 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867667 ], "year": 1996, "pin_cites": [ { "page": "391", "parenthetical": "quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103, 67 L. Ed. 2d 220, 230 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0381-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "686" }, { "page": "2063" }, { "page": "692" }, { "page": "687" }, { "page": "2064" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] } ], "analysis": { "cardinality": 1023, "char_count": 23924, "ocr_confidence": 0.741, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13342496029691306 }, "sha256": "40a481a41140c48fd36ce714458ff728ae728a5d0060fa9f4ec4bcfe2cf8011a", "simhash": "1:8b67e160767e34ec", "word_count": 3920 }, "last_updated": "2023-07-14T19:12:03.865649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and STEELMAN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. VERNON PETE GRAY, III" ], "opinions": [ { "text": "ERVIN, Judge.\nDefendant Vernon Pete Gray, III, appeals from a judgment sentencing him to a term of sixty to eighty-one months imprisonment based upon his conviction for robbery with a dangerous weapon. In challenging the trial court\u2019s judgment, Defendant argues that the trial court erred by proceeding to conduct Defendant\u2019s trial despite the fact that Defendant objected to continuing representation by his appointed counsel on the grounds that his appointed counsel had previously represented one of the State\u2019s witnesses. After careful consideration of Defendant\u2019s challenge to the trial court\u2019s judgment in light of the record and the applicable law, we conclude that Defendant is entitled to a new trial.\nI. Factual Background\nA. Substantive Facts\n1. State\u2019s Evidence\nAround 11:00 a.m. on 29 August 2010, an individual entered a Family Fare BP station located on University Parkway in Winston-Salem. At that time, the perpetrator demanded that the store clerk, Dana Palm, give him the money from the cash register, which totaled approximately $150.00 to $180.00. As he did so, the perpetrator threatened Mr. Palm with a box cutter. After taking the money, the perpetrator left the store, at which point Mr. Palm called 911 to report the robbery. Although Mr. Palm indicated at an identification procedure conducted shortly after Defendant was taken into custody in the immediate aftermath of the robbery that he had a \u201cgood idea\u201d that Defendant had committed the robbery, he concluded that Defendant was the perpetrator \u201cwithout a shadow of a doubt\u201d after viewing a Family Fare surveillance video and identified Defendant as the individual who committed this robbery during his trial testimony.\nLieutenant Joseph Ferrelli of the Winston-Salem Police Department, who was on duty near the Family Fare on the morning of 29 August 2010, heard a call reporting the robbery and proceeded to the store, where he encountered Mr. Palm. At that time, Mr. Palm described the robber as a black male who wore a gray hooded sweatshirt, black plastic framed sunglasses, light colored khaki pants, and white tennis shoes. Although the robber had facial hair, Mr. Palm could not tell whether he had a full beard or a goatee because the sweatshirt hood was pulled up over his head. After Mr. Palm indicated that the perpetrator had left the store heading south, Lieutenant Ferrelli drove in that direction on University Parkway.\nOn 29 August 2010, Gregory Slade, who sold newspapers for the Winston-Salem Journal, was working at the comer of Bonhurst and Deacon Boulevard, a location from which he could see the Family Fare. On that morning, Mr. Slade saw Defendant, who was wearing a gray hoodie, running up the street toward the Family Fare. Although Defendant also approached a Pizza Hut, it was not open. Eventually, Mr. Slade noticed Defendant going back and forth between the Pizza Hut and an International House of Pancakes, apparently asking people for rides. After investigating officers approached Mr. Slade to find out if he had noticed anyone running in the area, he pointed out Defendant, who was heading toward the parking area of a nearby pawnshop.\nUpon receiving this information, Lieutenant Ferrelli and Officers Sarah Allen and Kymberli Oakes detained Defendant in the pawnshop parking lot. Although the morning was a hot one and although the pawnshop was located about two tenths of a mile from the Family Fare, Defendant was not sweating or out of breath. Lieutenant Ferrelli found a gray sweatshirt and \u201cswim goggles\u201d in the dumpster beside the International House of Pancakes. Officers Oakes and Allen, who frisked Defendant, seized a silver box cutter, a scarf, a pair of gloves, and $238.00 in cash, $55.00 of which was in Defendant\u2019s wallet and $183.00 of which was in his pocket. According to an identification card found on his person, Defendant lived near the area at which he was detained.\n2. Defendant\u2019s Evidence\nDefendant testified that he worked a 3:00 to 11:00 p.m. shift at Hanes Brands during August 2010. Among other things, Defendant was required to break down boxes in the course of his work. Defendant used a box cutter in connection with this aspect of his work, since the tape was hard to remove by hand. On the morning of 29 August 2010, Defendant put on his pants without giving any thought to whether a box cutter might be in his pocket.\nAfter taking his wife to work, Defendant decided to get shoes for his step-son using money that he had received from his wife. However, Defendant\u2019s car broke down and could not be restarted. Once Defendant, with some assistance from a couple of passers-by, had pushed his car into a parking lot near the Family Fare, he decided to walk home. As he was walking toward his residence, he was stopped by the police near the pawnshop. At the time that he was detained, Defendant had a box cutter, a scarf, a pair of gloves, his wallet, an identification card, and about $230.00 on his person or in his wallet. Defendant denied having robbed the Family Fare.\nB. Procedural History\nOn 29 August 2010, a magistrate\u2019s order was issued charging Defendant with robbery with a dangerous weapon. On 24 January 2011, the Forsyth County grand jury returned a bill of indictment charging Defendant with robbery with a dangerous weapon. On 8 August 2011, Defendant filed a motion seeking to suppress certain evidence seized at the time that he was taken into custody. On 9 August 2011, Defendant filed a motion seeking to have any identification testimony delivered by Mr. Palm suppressed. Defendant\u2019s suppression motions came on for hearing before Judge Mark E. Klass at the 9 August 2011 criminal session of the Forsyth County Superior Court. At the conclusion of this suppression hearing, Judge Klass denied Defendant\u2019s motions.\nThe charge against Defendant came on for trial before the trial court and a jury at the 3 October 2011 criminal session of the Forsyth County Superior Court. On 4 October 2011, the jury returned a verdict convicting Defendant of robbery with a dangerous weapon. After accepting the jury\u2019s verdict, the trial court entered a judgment sentencing Defendant to a term of sixty to eighty-one months imprisonment. Defendant noted an appeal to this Court from the trial court\u2019s judgment.\nII. Legal Analysis\nA. Relevant Facts\nAt the hearing held with respect to Defendant\u2019s suppression motions, the State notified Judge Klass that Defendant\u2019s trial counsel had previously represented Mr. Slade, whom the State intended to call as a witness at Defendant\u2019s trial. Despite the fact that Mr. Slade\u2019s name had been mentioned during the suppression hearing, he did not testify at that proceeding. Although Defendant\u2019s trial counsel indicated that he was comfortable with going forward with the suppression hearing given that Mr. Slade had not testified, he expressed \u201ca little concern[]\u201d because he did \u201cpossess . . . confidential information about\u201d Mr. Slade and acknowledged \u201cthat Mr. Slade would have to give his permission.\u201d As a result, Judge Klass decided to proceed with the suppression hearing on the understanding that the issue would be revisited after the hearing was concluded while stating that he did not \u201csee a problem,\u201d since \u201c[t]hat\u2019s 2003[,]\u201d since \u201c[i]t\u2019s not in any relationship to this case[,]\u201d and since Mr. Slade \u201cwould just be a witness for the State.\u201d\nAfter denying both of Defendant\u2019s suppression motions, Judge Klass resumed consideration of the conflict of interest issue by suggesting that the jury selection process be commenced subject to the understanding that Mr. Slade would be questioned concerning any objection he might have to the representation of Defendant by his former counsel. However, Defendant\u2019s trial counsel expressed a concern that Defendant, in addition to Mr. Slade, would have to consent to his continued representation. At that point, Judge Klass ascertained that Defendant understood that his trial counsel had previously represented Mr. Slade in an unrelated matter and indicated the belief that the prior representation \u201cmay not be relevant.\u201d As this colloquy between Judge Klass and Defendant was proceeding, Defendant\u2019s trial counsel interjected that, while he had consulted \u201cthe ethics manual,\u201d he \u201ccouldn\u2019t find any clear answer\u201d and stated that he \u201cwould feel more comfortable at least making a call to the [North Carolina State Bar] and just asking them essentially does [Defendant] need to consent.\u201d In an effort to obviate the necessity for contacting the State Bar, Judge Klass inquired if Defendant had \u201cany objection to [his trial counsel] representing [him] knowing that eight years ago he represented one of the witnesses[.]\u201d In response, Defendant indicated that he would \u201chave to talk it over with [his] family.\u201d At the conclusion of a fifteen minute recess, Defendant\u2019s trial counsel stated that Defendant \u201chas said that he\u2019s concerned about the conflict of interest\u201d and that Defendant \u201cwanted another lawyer.\u201d\nUpon learning of Defendant\u2019s concerns, Judge Klass indicated that, while he continued to believe that there was no conflict, he would allow Defendant\u2019s trial counsel to contact the State Bar. After Mr. Slade\u2019s arrival, Judge Klass ascertained from the prosecutor that Mr. Slade was willing to waive any conflict arising from his previous representation by Defendant\u2019s trial counsel and engaged in a colloquy with Mr. Slade in order to satisfy himself that Mr. Slade\u2019s waiver was knowing and voluntary. In view of the fact that the State Bar did not respond to an inquiry that day, the case against Defendant was continued. On the following day, an Assistant Ethics Counsel with the State Bar advised Judge Klass via e-mail that, \u201c[b]ecause the former client has consented, the lawyer\u2019s ability to represent the current client is not affected,\u201d so that \u201cthe current client\u2019s consent is not required for the lawyer to continue the representation.\u201d\nAt the time that the case against Defendant was called for trial on-3 October 2011, the State informed the trial court that the case had been set for trial \u201ca couple of months ago,\u201d at which point \u201can issue arose regarding whether or not [Defendant\u2019s trial counsel] had to conflict out of representing [Defendant] because of at some point a couple of years ago he did represent one of the State\u2019s witnesses, Gregory Slade, on a criminal charge of failure to register;\u201d that Judge Klass had \u201cheld it open for us to receive confirmation from the State Bar as to whether or not [Defendant\u2019s trial counsel] had a duty to withdraw;\u201d and that Judge Klass \u201cdid receive information from the State Bar saying that if Mr. Slade executed a waiver of conflict that we were okay to proceed.\u201d In the midst of some discussion about whether a \u201cwaiver\u201d was \u201cin the file,\u201d the prosecutor informed the trial court that an inquiry had been made of the State Bar because Defendant \u201cwas not wanting to waive.\u201d The trial court did not, however, conduct any additional inquiry into the extent to which Defendant\u2019s trial counsel was operating under a conflict of interest or whether Defendant was willing to knowingly, intelligently, and voluntarily waive any such conflict.\nB. Applicable Legal Principles\nAn individual charged with having committed a crime has a federal and state constitutional right to the effective assistance of counsel. U.S. Const. amend. VI; N.C. Const., art. I, \u00a7 23; Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984); State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985). \u201cThe right to effective assistance of counsel includes the \u2018right to representation that is free from conflicts of interest.\u2019 \u201d State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d 336, 343 (1996) (quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103, 67 L. Ed. 2d 220, 230 (1981)). Ordinarily, in order to obtain relief from a criminal conviction on the basis of an ineffective assistance of counsel claim, the defendant must establish that he or she received deficient representation and that these deficiencies prejudiced him or her. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286, cert. denied, 549 U.S. 867, 127 S. Ct. 164, 166 L. Ed. 2d 116 (2006). \u201cHowever, the [United States] Supreme Court has applied a different test when the claim of ineffective assistance is based upon a conflict of interest arising out of an attorney\u2019s multiple representation of more than one defendant or party, either simultaneously or in succession, in the same or related matters,\u201d given that, \u201c[u]nder such circumstances, questions may arise as to the attorney\u2019s loyalty to any individual client.\u201d State v. Phillips, 365 N.C. 103, 118, 711 S.E.2d 122, 135 (2011), cert. denied, _U.S._, 132 S. Ct. 1541, 182 L. Ed. 2d 176 (2012).\nThe exact standard to be applied when evaluating what relief, if any, should be granted in response to a conflict of interest claim hinges, to a considerable extent, upon the exact procedural context in which the conflict of interest claim has been presented for a reviewing court\u2019s consideration. State v. Choudhry, 365 N.C. 215, 219, 717 S.E.2d 348, 352 (2011) (stating that \u201c[t]he test to determine whether a defendant is entitled to relief under such circumstances without having to demonstrate prejudice is dependent upon the level of notice given to the trial court and the action taken by that court\u201d) (citing Phillips, 365 N.C. at 118-20, 711 S.E.2d 122, 135-36 (2011)). On one hand, \u201creversal [is] automatic when the trial court improperly forced defense counsel to represent codefendants over counsel\u2019s objection.\u201d Phillips, 365 N.C. at 119, 711 S.E. 2d at 136 (citing Holloway v. Arkansas, 435 U.S. 475, 488-91, 98 S. Ct. 1173, 1180-82, 55 L. Ed. 2d 426, 437-38 (1978)). In other words, \u201c[i]f a defendant who objects to multiple representation is denied \u2018the opportunity to show that potential conflicts impermissibly imperil his right to a fair trial,\u2019 prejudice is presumed.\u201d Choudhry, 365 N.C. at 220, 717 S.E 2d at 352 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718, 64 L. Ed. 2d 333, 346 (1980)). \u201c[W]hen multiple representation gives rise to a conflict about which an objection has been raised, the trial court must give a defendant the opportunity to show that \u2018potential conflict impermissibly imperils [the defendant\u2019s] right to a fair trial.\u2019 \u201d Phillips, 365 N.C. at 119, 711 S.E.2d at 136 (alteration in original) (quoting Cuyler, 446 U.S. at 348, 100 S. Ct. at 1718, 64 L. Ed. 2d at 346). However, \u201c \u2018[u]nless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.\u2019 \u201d Id. at 119, 711 S.E.2d at 136 (alteration in original) (quoting Cuyler, 446 U.S. at 347, 100 S. Ct. at 1717, 64 L. Ed. 2d at 346). At such an inquiry, \u201cthe trial court is responsible for ensuring that the defendant fully understands the consequences of a potential or actual conflict,\u201d including \u201cdetermining both whether an actual conflict exists and, if so, whether the defendant is knowingly, intelligently, and voluntarily waiving his or her rights to conflict-free representation.\u201d Choudhry, 365 N.C. at 223, 717 S.E 2d at 354 (citing State v. Ballard, 180 N.C. App. 637, 642-43, 638 S.E.2d 474, 479 (2006), disc. review denied, 361 N.C. 358, 646 S.E. 2d 119 (2007), and State v. James, 111 N.C. App. 785, 791, 433 S.E.2d 755, 758-59 (1993)). \u201cIn the absence of an objection, the trial court\u2019s failure to inquire into a conflict will not result in a reversal unless the defendant demonstrates that \u2018an actual conflict of interest adversely affected his lawyer\u2019s performance.\u2019 \u201d Phillips, 365 N.C. at 119, 711 S.E.2d at 136 (quoting Cuyler, 446 U.S. at 348, 350, 100 S. Ct. at 1718, 64 L. Ed. 2d at 346-47). In the event that a \u201cpossible conflict was \u2018sufficiently apparent\u2019... to trigger inquiry by the trial court\u201d and no such inquiry was conducted, the case should be \u201cremanded ... for a hearing to determine whether a conflict actually existed.\u201d Phillips, 365 N.C. at 119-20, 711 S.E.2d at 136 (quoting Wood, 450 U.S. at 272, 101 S. Ct. at 1104, 67 L. Ed. 2d at 230-31). As a result, \u201c \u2018even when a trial court \u2018fails to inquire into a potential conflict of interest about which it knew or reasonably should have known,\u2019 \u201d \u201cthe defendant must still establish an actual conflict that \u2018adversely affected his counsel\u2019s performance.\u2019 \u201d Phillips, 365 N.C. at 120, 711 S.E.2d at 136 (quoting Mickens v. Taylor, 535 U.S. 162, 164, 173-74, 122 S. Ct. 1237, 1239, 1245, 152 L. Ed. 2d 291, 299, 305 (2002)).\nAlthough the facts of this case are not absolutely identical to any of those which have been previously decided by the United States Supreme Court and the Supreme Court of North Carolina, the record clearly reflects that Defendant refused to waive the potential conflict of interest identified by his trial counsel and requested to be provided with new counsel at the hearing held before Judge Klass and that the trial court was made aware of Defendant\u2019s refusal to waive the potential conflict immediately prior to the beginning of Defendant\u2019s trial. Even so, neither Judge Klass nor the trial court conducted any inquiry into the nature and extent of this potential conflict or whether Defendant did, in fact, wish to knowingly, intelligently, and voluntarily waive it. Thus, we believe that Defendant, like the defendants in Holloway, was effectively forced to go to trial while still represented by his trial counsel, who had previously represented one of the State\u2019s witnesses and who acknowledged being in the possession of confidential information which might be useful for purposes of cross-examining that witness, despite having clearly objected to continued representation by that attorney. As a result, given that prejudice is presumed under such circumstances, Defendant is entitled to a new trial.\nIn seeking to persuade us to reach a different result, the State argues, in reliance upon Choudhry, that Defendant must show \u201can actual conflict of interest that adversely affected his defense counsel\u2019s performance\u201d as a precondition for an award of appellate relief. 365 N.C. at 224. 717 S.E. 2d at 355. We do not find this logic persuasive, however, since Defendant, unlike the defendant in Choudhry, objected to continued representation by his trial counsel and affirmatively asked to be provided with new counsel. Thus, since the showing held necessary in Choudhry is only required in cases involving \u201cdefendant[s] who raised no objection at trial,\u201d Cuyler, 446 U.S. at 348, 100 S. Ct. at 1718, 64 L. Ed. 2d at 346, and since Defendant, contrary to the position asserted in the State\u2019s brief did object to continued representation by his trial counsel, Defendant was not required to make the showing deemed necessary by the State in order to be entitled to an award of appellate relief. As a result, since Defendant was effectively compelled to go to trial despite having objected to the potential conflict of interest under which his trial counsel labored, he is entitled to receive, and hereby does receive, a new trial.\nNEW TRIAL.\nJudges McGEE and STEELMAN concur.\n. At some point on 10 August 2011, Mr. Slade executed a written waiver in which he acknowledged that his former attorney represented Defendant, that he would be called as a witness for the State at Defendant\u2019s trial, and that he \u201cwaive[d] any and all conflicts and consented] to having [Defendant\u2019s trial counsel] conduct a cross examination ... understanding that this may infringe upon [his] attorney-client privilege.\u201d\n. Although the parties have discussed in some detail the extent, if any, to which the advice provided by the State Bar was correct in light of the relevant provisions of Revised Rule of Professional Conduct 1.7 and 2003 Formal Ethics Opinion 14, we need not resolve that issue given that our responsibility is to evaluate the validity of Defendant\u2019s constitutional claim, which is a separate issue from the extent, if any, to which Defendant\u2019s trial counsel was entitled, as a matter of professional ethics, to continue to represent Defendant without obtaining an informed waiver from Defendant of the potential conflict arising from his previous representation of Mr. Slade.\n. Although the record is not entirely clear, the \u201cwaiver\u201d that was \u201cin the file\u201d was probably the waiver of the conflict executed by Mr. Slade. However, given that the record clearly shows that Defendant never waived the potential conflict identified by his trial counsel, the identity of the item that the trial court observed \u201cin the file\u201d is immaterial to the analysis that we are required to undertake in this case.\n. The same rule applies when \u201cthe trial court\u2019s inquiry is inadequate or incomplete.\u201d Choudry, 365 N.C. at 224, 717 S.E.2d at 355.\n. Although the State emphasizes that Defendant did not request the appointment of replacement counsel and that his trial counsel did not provide any additional information concerning the nature and extent of any conflict-related problems that would result from the necessity for him to cross-examine Mr. Slade when the case was called for trial, the record clearly reflects that Defendant refused to waive the conflict in the proceedings held before both Judge Klass and the trial court and requested to be provided with new counsel during the hearing held before Judge Klass. Under that set of circumstances, we do not believe that the fact that Defendant and his trial counsel did not take additional actions over and above those described in the text of this opinion has any bearing on the proper outcome in this proceeding.\n. The fact that Mr. Slade waived the conflict arising from his former representation by Defendant\u2019s trial counsel and consented to allowing Defendant\u2019s trial counsel to cross-examine him despite the implications of the attorney-client privilege inherent in such a cross-examination does not suffice to justify a refusal to award appellate relief in this case given that the legal rights at issue in this proceeding belonged to Defendant rather than Mr. Slade and given that Judge Klass and the trial court, who were put on notice of Defendant\u2019s refusal to waive this potential conflict of interest, did not respond to Defendant\u2019s objection by conducting an appropriate inquiry.\n. At the time that Mr. Slade testified on behalf of the State, Defendant\u2019s trial counsel cross-examined him concerning a prior statement that he had made to police, where the individual that Mr. Slade identified as Defendant had been at particular times, what the individual that Mr. Slade identified as Defendant had been wearing, and the criminal offenses of which Mr. Slade had been convicted.", "type": "majority", "author": "ERVIN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State.", "John Keating Wiles for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. VERNON PETE GRAY, III\nNo. COA12-153\nFiled 5 February 2013\nConstitutional Law \u2014 effective assistance of counsel \u2014 conflict of interest \u2014 new trial\nAn armed robbery defendant received a new trial where his counsel had represented a state\u2019s witness in a prior unrelated matter and the record clearly reflected that defendant refused to waive the potential conflict of interest and requested new counsel. Neither the judge at a pretrial hearing nor the trial judge conducted any inquiry into the nature and extent of the potential conflict or whether defendant wished to knowingly, intelligently, and voluntarily waive the conflict. The showing of an actual conflict of interest that adversely affected defendant\u2019s representation was not required because defendant objected to continued representation by the trial counsel and requested new counsel.\nAppeal by defendant from judgment entered 4 October 2011 by Judge William R. Pittman in Forsyth County Superior Court. Heard in the Court of Appeals 14 August 2012.\nAttorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State.\nJohn Keating Wiles for Defendant." }, "file_name": "0431-01", "first_page_order": 441, "last_page_order": 449 }