{
  "id": 8526265,
  "name": "STATE OF NORTH CAROLINA v. LARRY E. WISE",
  "name_abbreviation": "State v. Wise",
  "decision_date": "1983-09-20",
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    "judges": [
      "Judges BECTON and JOHNSON concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. LARRY E. WISE"
    ],
    "opinions": [
      {
        "text": "BRASWELL, Judge.\nThe defendant was convicted by a jury of assault with a deadly weapon with intent to kill and sentenced to the presumptive term of three years. The major issue on appeal is whether the defendant\u2019s constitutional right to the effective assistance of counsel was denied because of a conflict of interest created by his attorney\u2019s previous representation of prosecution witnesses. The defendant also contends that the trial court committed error by failing to incorporate facts arising from his evidence into the jury instructions even though no objection to this effect was made at the appropriate time. After careful examination of each assignment of error, we conclude that the defendant\u2019s trial was free from prejudicial error.\nThe State offered evidence showing that the defendant is the father of two children by Shirley McClees. On 25 December 1981, Vanie Smith, Jr., and his friend, Eddie Haskins, were in Ms. Mc-Clees\u2019 apartment when the defendant and Aaron Miller arrived in the defendant\u2019s car. The defendant remained in the car while Miller went to the apartment door and told Haskins that the defendant wanted to talk to him at the car. Haskins complied. Shortly thereafter, Smith, watching from the apartment window, saw the defendant get out of the car and put a handgun into his jacket. Smith then walked out of the apartment holding out his hands to show the defendant that he was not armed. The defendant walked to the door of the apartment, and after accusing Smith of abusing his children, began firing the pistol at Smith. Wounded by the second of three shots fired by the defendant, Smith ran to a neighbor\u2019s house where the police and an ambulance were called.\nThe defendant offered no evidence of his own, but cross-examined each prosecution witness. Eddie Haskins, one eyewitness to the assault, originally stated that the victim had a knife with him, but immediately changed that statement and testified consistently with the other witnesses that the victim had no knife nor had he threatened the defendant in any way. In the course of the proceedings, Reginald L. Frazier, defense counsel, attempted to impeach Haskins through a previous conviction in which Frazier had represented Haskins. Later, Frazier also stated that he had represented the victim, Vanie Smith, Jr., as well as Shirley McClees for many years.\nThe defendant was found guilty of assault with a deadly weapon with intent to kill. The defendant, with new counsel, appeals.\nIn his first assignment of error, the defendant claims he was denied effective assistance of counsel due to a conflict of interest arising from his attorney\u2019s previous professional relationship with key prosecution witnesses. This right emanates from the Sixth Amendment right to counsel clause, made applicable to the states through the Fourteenth Amendment, and is also guaranteed by Article I, Sections 19 and 23 of the North Carolina Constitution. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed. 2d 763 (1970); State v. Sneed, 284 N.C. 606, 201 S.E. 2d 867 (1974).\nIn State v. Weaver, 306 N.C. 629, 295 S.E. 2d 375 (1982), the Supreme Court formally adopted the federal McMann test to gauge the effectiveness of counsel. The test requires that the assistance given by counsel be \u201cwithin the range of competence demanded of attorneys in criminal cases.\u201d McMann v. Richardson, supra, at 771, 90 S.Ct. at 1449, 25 L.Ed. 2d at 773. Obviously, this standard forces the reviewing court to approach this question ad hoc and to review the circumstances of each case. State v. Richards, 294 N.C. 474, 242 S.E. 2d 844 (1978). Before the necessary facts can appear in the record, there must be at some point an evidentiary hearing. Therefore, an ineffective representation claim is normally and more appropriately raised in post-conviction proceedings where the defendant may be granted a hearing on the matter with the opportunity to introduce evidence. State v. Vickers, 306 N.C. 90, 95, 291 S.E. 2d 599, 603 (1982); State v. Milano, 297 N.C. 485, 496, 256 S.E. 2d 154, 160 (1979); State v. Sneed, supra, at 612, 201 S.E. 2d at 871 (1974); and State v. James, 60 N.C. App. 529, 533, 299 S.E. 2d 451, 453 (1983).\nThe defendant has not made a motion for appropriate relief in the trial court pursuant to G.S. 15A-1415 which would entitle him to a hearing on any questions of law or fact arising from his motion. See G.S. 15A-1420(c)(1). By statute, the defendant may seek relief at any time after the verdict from a conviction obtained in violation of his constitutional rights. G.S. 15A-1415(b)(3). He may also seek relief in the appellate division on direct appeal. G.S. 15A-1418(a). See State v. James, supra. In the present case, the defendant has not formally made such a motion, but by raising the question in his brief, has in effect asked this Court to make the same determination and to award similar relief. According to G.S. 15A-1418(b),\n\u201cWhen a motion for appropriate relief is made in the appellate division, the appellate court must decide whether the motion may be determined on the basis of the materials before it, or whether it is necessary to remand the case to the trial division for taking evidence or conducting other proceedings. If the appellate court does not remand the case for proceedings on the motion, it may determine the motion in conjunction with the appeal and enter its ruling on the motion with its determination of the case.\u201d\nThe denial of the right to effective assistance of counsel in this case is based on a conflict of interest between the defense counsel\u2019s loyalty to the defendant and to prosection witnesses. By the very nature of the claim, this alleged conflict of interest, unlike the use of certain trial tactics or the actual performance of an attorney at trial, is not a matter which will appear on the face of the record. See State v. Milano, supra; State v. Vickers, supra; State v. Weaver, supra. At present, the materials of record before this Court are not sufficient to support the defendant\u2019s theory of relief. Evidence such as testimony by the attorney concerning the status of his relationship with the prosecution witnesses and testimony from these witnesses on the matter, must be received in order to enable this Court to determine whether the defense counsel\u2019s representation did meet all constitutional requirements.\nG.S. 15A-1418(b) provides that if the matter cannot be decided on the basis of the materials before the court, then it should be remanded for an evidentiary hearing. In State v. Hurst, 304 N.C. 709, 285 S.E. 2d 808 (1982), the defendant was similarly claiming that he had been denied effective assistance of counsel. Using Article IV, Section 13(2) of the North Carolina Constitution which gives the Supreme Court exclusive authority to make the rules of appellate procedure and practice, the Supreme Court refused to remand the case. It reasoned that \u201c[w]hile the quoted statute suggests that the motion be remanded to the trial court for hearing and determination, we think that the better procedure in this case is to dismiss the motion and permit defendant, if he so desires, to file a new motion for appropriate relief in superior court.\u201d Id. at 712, 285 S.E. 2d at 810.\nThe defendant has made no motion for appropriate relief, but instead would have us reverse the conviction and remand this case for an evidentiary hearing. No reversal is possible because the record before us does not establish that counsel\u2019s assistance was anything less than the standard required. The transcript of the trial showed defense counsel vigorously cross-examined each prosecution witness and with the defendant\u2019s approval offered no evidence. In fact, any inside information which might have been gathered by defense counsel through the conflicting representations was used to impeach the prosecution witnesses, a definite benefit to the defendant\u2019s case, not a detriment.\nAlso, it was not error for the trial judge to refrain from initiating an inquiry into the possible conflict of interest. Unless the circumstances indicate otherwise, the state trial courts \u201cmay assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.\u201d Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1717, 64 L.Ed. 2d 333, 345-46 (1980). North Carolina case law suggests that circumstances requiring an inquiry may be when two codefendants are represented by members of the same law firm or by single counsel and the possible conflict is apparent prior to trial. State v. Arsenault, 46 N.C. App. 7, 264 S.E. 2d 592 (1980). Unlike those times when counsel represents two codefend-ants, the nature of the conflict of interest in the present case would not be apparent to the trial judge prior to trial so that he could inquire into any possible conflict of interest. Also, the Arsenault case was remanded for evidentiary hearing, but only after the defendant had made a substantial showing that a constitutional violation had occurred. From the record before us, the defendant can make no such showing.\nTherefore, rather than overrule the defendant\u2019s first assignment of error and decide the issue on the merits based on an inadequate record, we dismiss the assignment of error in accordance with State v. Hurst, supra, allowing the defendant to seek relief through a post-conviction motion pursuant to G.S. 15A-1415(a),\nThe second assignment of error raised by the defendant concerns whether the trial judge erred in his instructions to the jury by failing to include facts from the defendant\u2019s evidence. The record clearly reveals that the defendant offered no evidence, choosing only to cross-examine each state witness, and that after the judge completed his charge to the jury the defendant did not object to the instructions when given the opportunity to do so. Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure provides that \u201c[n]o party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict.\u201d Until recently, the defendant\u2019s failure to object to the charge alone would preclude him from asserting this assignment of error.\nHowever, the Supreme Court, acknowledging the harshness of Rule 10(b)(2), adopted the \u201cplain error\u201d rule. State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983). Although the defendant does not call the rule by name in his brief, he has in effect asked this Court to apply it to this case. As explained in State v. Odom, \u201c[t]he \u2018plain error\u2019 rule is used by the federal courts pursuant to Rule 52(b) of the Federal Rules of Criminal Procedure which states that \u2018[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.\u2019 \u201d Id. at 660, 300 S.E. 2d at 378. Naturally every error is not \u201cplain error\u201d justifying a reversal. Only when the alleged error is a \u201cfundamental error, something so basic, so prejudicial, so lacking in its element that justice cannot have been done\u201d will the court overlook the mandate of Rule 10(b)(2) and review the defect in the jury instructions. Id., citing United States v. McCaskill, 676 F. 2d 995, 1002 (4th Cir.), cert. denied, \u2014 U.S. \u2014, 103 S.Ct. 381, 74 L.Ed. 2d 513 (1982) (footnotes omitted) (emphasis in original).\nIn order to classify the error as \u201cplain error,\u201d \u201cthe appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt.\u201d Id., at 661, 300 S.E. 2d at 379, citing United States v. Jackson, 569 F. 2d 1003 (7th Cir.), cert. denied, 437 U.S. 907, 98 S.Ct. 3096, 57 L.Ed. 2d 1137 (1978). The defendant claims error was committed when the trial judge failed to summarize any of the evidence favorable to the defendant, specifically (1) that the defendant believed the victim was mistreating his children, (2) that an altercation between the victim and defendant had occurred several weeks earlier, and (3) that the victim may have been armed with a knife. The defendant is simply mistaken with regard to the first two allegedly missing facts. The challenged charge clearly states \u201c[t]hat the defendant, Mr. Wise, said he was going to kill Vanie Smith, Jr. That approximately two weeks before Thanksgiving the defendant, Mr. Wise, had told Vanie Smith, Jr., that he was going to kill him and having [sic] accused him of mistreating his children.\u201d In State v. Sanders, 298 N.C. 512, 259 S.E. 2d 258 (1979), cert. denied, 454 U.S. 973, 102 S.Ct. 523, 70 L.Ed. 2d 392 (1981), the court held that ordinarily the trial judge is not required to recapitulate all of the evidence, but if in his charge he states fully the contentions of the State, yet fails to give any contentions of the defendant, then he has committed prejudicial error. In the present case, as evidenced by his charge, the trial judge did include important facts favorable to the defendant.\nAs for the last excluded fact, on cross-examination only one witness briefly suggested that the victim might have been armed with a knife, but immediately corrected his statement: \u201c[H]e had a knife but \u2014 I mean he had no knife or threatened that man in any kind of way.\u201d In any event, even if a reference to the knife had been included, it in no way tends to exculpate the defendant. The defendant does not raise self-defense or defense of others as a motive for his actions, but relies on the theory that the defendant had adequate provocation for his actions because it was Christmas Day and Vanie Smith, Jr., had allegedly threatened to dispose of his children\u2019s Christmas gifts. This theory constitutes a mitigating factor possibly for sentencing, but is not a defense to assault. See State v. Frankum, 272 N.C. 253, 158 S.E. 2d 62 (1967). See also 6A C.J.S. Assault and Battery \u00a7 86 (1975). Therefore, the absence of this evidence in the jury instructions could not have had any prejudicial impact on the jury\u2019s finding of guilt and, in turn, was not \u201cplain error.\u201d\nIn conclusion, we hold that the defendant\u2019s claim that he was denied effective assistance of counsel should be dismissed so he may pursue appropriate relief in the trial court. Secondly, we have found no plain error in the trial court\u2019s charge to the jury that would mandate a new trial.\nNo error.\nJudges BECTON and JOHNSON concur.",
        "type": "majority",
        "author": "BRASWELL, Judge."
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    "attorneys": [
      "Attorney General Edmisten by Assistant Attorney General Sarah C. Young for the State.",
      "Appellate Defender Adam Stein by Assistant Appellate Defender Lorinzo L. Joyner for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LARRY E. WISE\nNo. 823SC1191\n(Filed 20 September 1983)\n1. Constitutional Law 8 48\u2014 effective assistance of counsel \u2014 dismissal of assignment of error\nThe record failed to show that defendant was denied the effective assistance of counsel in an assault case because defendant\u2019s attorney had previously represented the victim and other prosecution witnesses, and defendant\u2019s assignment of error concerning ineffective representation was dismissed so as to permit defendant to seek relief through a post-conviction motion for appropriate relief in the trial court pursuant to G.S. 15A-1415(a).\n2. Criminal Law \u00a78 113.1, 163\u2014 failure to summarize evidence \u2014 no \u201cplain error\u201d\nThe trial court\u2019s failure to summarize evidence favorable to defendant was not \u201cplain error\u201d requiring a new trial even though defendant failed to object to the charge where such evidence did not tend to exculpate defendant and could not have had any prejudicial impact on the jury\u2019s finding of guilt. App. Rule 10(b)(2).\nAPPEAL by defendant from Peel, Judge. Judgment entered 26 April 1982 in Superior Court, Craven County. Heard in the Court of Appeals 31 August 1983.\nAttorney General Edmisten by Assistant Attorney General Sarah C. Young for the State.\nAppellate Defender Adam Stein by Assistant Appellate Defender Lorinzo L. Joyner for defendant appellant."
  },
  "file_name": "0108-01",
  "first_page_order": 140,
  "last_page_order": 146
}
