{ "id": 8523515, "name": "STATE OF NORTH CAROLINA v. STEPHEN DOUGLAS SIMMONS; STATE OF NORTH CAROLINA v. HAL STACEY HALLMAN", "name_abbreviation": "State v. Simmons", "decision_date": "1983-12-06", "docket_number": "No. 8325SC60", "first_page": "294", "last_page": "301", "citations": [ { "type": "official", "cite": "65 N.C. App. 294" } ], "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": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1983, "pin_cites": [ { "page": "(d)(4)" }, { "page": "(h)(l)(a)" }, { "page": "(h)(5)" } ], "opinion_index": 0 }, { "cite": "397 U.S. 759", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12058501 ], "weight": 3, "year": 1970, "pin_cites": [ { "page": "771" }, { "page": "773" }, { "page": "1449" } ], "opinion_index": 0, "case_paths": [ "/us/397/0759-01" ] }, { "cite": "295 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "382" } ], "opinion_index": 0 }, { "cite": "306 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573306 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0629-01" ] }, { "cite": "382 N.E. 2d 991", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1978, "opinion_index": 0 }, { "cite": "178 Ind. App. 398", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 1522558 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ind-app/178/0398-01" ] }, { "cite": "8 A.L.R. 4th 660", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "year": 1981, "opinion_index": 0 }, { "cite": "404 U.S. 257", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172366 ], "weight": 4, "year": 1971, "pin_cites": [ { "page": "260" }, { "page": "432" }, { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/us/404/0257-01" ] }, { "cite": "260 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "640" } ], "opinion_index": 0 }, { "cite": "298 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573777 ], "year": 1979, "pin_cites": [ { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0573-01" ] }, { "cite": "224 S.E. 2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572613 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0644-01" ] } ], "analysis": { "cardinality": 777, "char_count": 17169, "ocr_confidence": 0.808, "pagerank": { "raw": 2.554976655966087e-07, "percentile": 0.8147588913484918 }, "sha256": "ba5536752d9d06b9317a8b387bf0db1cffe0828704bc925c39c49ef8f2ad95bc", "simhash": "1:24722364727c2525", "word_count": 2819 }, "last_updated": "2023-07-14T21:11:09.312138+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Whichard and Braswell concur." ], "parties": [ "STATE OF NORTH CAROLINA v. STEPHEN DOUGLAS SIMMONS STATE OF NORTH CAROLINA v. HAL STACEY HALLMAN" ], "opinions": [ { "text": "BECTON, Judge.\n1 \u2014 1\nThe dispositive issues on appeal relate to the joinder of defendants\u2019 cases for trial and to effective assistance of counsel. Both defendants have appealed, but because we are granting defendant Simmons\u2019s motion for appropriate relief, we need not consider the merits of his appeal.\nII\nThe State presented evidence tending to show that on 7 January 1982, around 7:00 P.M., Raymond Buff arrived at the residence of Clyde Coulter, and noticed a Volkswagen Beetle parked adjacent to the house. Shortly afterward, defendant Hal Hallman arrived at the residence, talked with Coulter for a while, and left. Approximately fifteen minutes after Hallman\u2019s departure, Buff and Coulter left. Buff drove the Volkswagen Beetle and Coulter drove a green station wagon which Buff had not seen upon his arrival. Buff and Coulter drove to an abandoned white house where Coulter left the station wagon. Coulter then drove the Volkswagen Beetle to a post office where he and Buff met Hallman and Charles Lay, who were in a Volkswagen Rabbit. Hallman and Coulter conversed, after which Coulter and Buff returned to the abandoned white house where they were subsequently joined by Hallman and Lay. Again Hallman and Coulter conversed. Shortly afterward, Hallman drove the green station wagon out of the driveway and was followed by the Volkswagen Rabbit and the Volkswagen Beetle to a Hickory parking lot where Hallman, Lay, and Coulter all got out and talked. Hallman returned from making a telephone call and talked again with Coulter and Lay, after which they all returned to their cars and left in the same procession until the lead green station wagon pulled over onto the shoulder of the road at a bridge. Hallman got into the Rabbit and the two vehicles proceeded to a convenience store where there was a parked yellow Capri containing defendant Stephen Simmons.\nIn the car with Simmons was S.B.I. Agent W. M. Campbell. Campbell testified that as he and Simmons were discussing the proposed purchase of 63 pounds of marijuana from Simmons, a bronze Volkswagen Rabbit and blue Volkswagen Beetle arrived in the parking lot of the convenience store. Campbell nervously asked Simmons who those people were, and Simmons assured him that \u201ceverything was all right,\u201d that those people \u201cwere just friends.\u201d After talking with Hallman, who was a passenger in the Rabbit, Simmons returned and told Campbell that the vehicle carrying the marijuana ran out of gas at a bridge, and that the transaction could not be completed at the agreed upon wildlife access area. After Campbell balked at \u201cdoing the deal\u201d at the abandoned vehicle, Simmons agreed to pick up the marijuana from the station wagon and deliver it to the access area.\nRaymond Buff testified that he observed Simmons remove some garbage bags from the station wagon, and that he and Coulter followed Simmons to the wildlife access area. When Simmons opened the rear of the car, exposing the large garbage bags, law enforcement officers raided the vehicle.\nSimmons, Buff, and Coulter were arrested at the scene. Hall-man and Lay were arrested at the convenience store. The large garbage bags contained 63 one-pound bags of a green vegetable matter, subsequently analyzed to be marijuana.\nDefendant Hallman did not testify and presented no evidence, except to show, through cross-examination, that he was not at the access area, that no marijuana was found on his person, and that his fingerprints were not found on the bags. Defendant Simmons presented evidence that an informant, against whom the State had agreed to drop charges, pressured him into committing the offense.\nIll\nDefendant Hallman\u2019s Appeal\nDefendant Hallman contends that the trial court erred in denying his motion for severance of his trial from that of Simmons. For the following reasons, we agree and grant Hallman a new trial.\nA trial judge\u2019s ruling on a motion for severance is discretionary and will not be disturbed on appeal unless there is a showing that a defendant has been denied a fair trial by joinder. State v. Brower, 289 N.C. 644, 224 S.E. 2d 551 (1976). Each case turns on its own facts, however, and an abuse of discretion may be shown when the defenses of the co-defendants are antagonistic, and \u201cthe conflict in the defendants\u2019 respective positions at trial is of such a nature that, considering all of the other evidence in the case, a defendant was denied a fair trial.\u201d State v. Nelson, 298 N.C. 573, 587, 260 S.E. 2d 629, 640 (1979); N.C. Gen. Stat. \u00a7 15A-927(c)(2) (1978).\nDefendant Simmons asserted an entrapment defense in which he testified that he was pressured into committing the offense by a police informant. On the other hand, Hallman did not testify because of a perceived weak case against him.\nThe State\u2019s evidence, in its case in chief against Hallman, was not only circumstantial, but it was also sparse. Other than Buffs and S.B.I. Agent Campbell\u2019s testimony that, on a couple of different occasions, they saw, but did not hear, Hallman talk with Coulter or Simmons, and Buffs further testimony that Hallman was one of two people he saw driving the green station wagon on the night in question, no direct references to Hallman were made in the State\u2019s case. Of course, S.B.I. Agent Campbell was allowed to testify over Hallman\u2019s objection that Simmons told him (Campbell) that \u201cthe vehicle that had the marijuana in it had run out of gas and was located at the bridge.\u201d It is also true that Hallman, according to Buff, was the person driving the green station wagon when it ran out of gas on a bridge. But it was dark at all relevant times the green station wagon was being driven; neither Buff nor Campbell ever looked inside the green station wagon; and the green station wagon was left unobserved for a period of time. Further, the facts and declarations of Coulter and Simmons provided the State with no additional ammunition against Hallman since the parties were not charged with conspiracy.\nThe State\u2019s strongest case against Hallman was presented when co-defendant Simmons testified. Simmons first sought to show that he was entrapped by a police informant, Bruce Garavagila, who, incidentally, owned the green station wagon. Simmons later testified that he had talked with Hallman at the convenience store about the plan \u2014 the dope deal. Hallman told him that the station wagon had run out of gas and that Simmons had to go get it. Hallman had also advised him that Coulter and Buff would be there. As a result of his conversation with Hall-man, Simmons drove to the abandoned station wagon and retrieved the garbage bags. (Note \u2014 Agent Campbell had already testified that Simmons told him, after talking with Hallman, that the station wagon carrying the marijuana had run out of gas.)\nHad the trials not been joined, the jury may not have heard the foregoing testimony against defendant Hallman. In a separate trial, Simmons could not have been compelled to testify against Hallman, and Campbell\u2019s testimony would have been inadmissible. The evidence at trial against Hallman was circumstantial. There was no evidence that marijuana was in the station wagon when he drove it, and the evidence showed that the station wagon was abandoned, and left unobserved, for a period of time. Hallman was not at the access area when the raid occurred and the marijuana was seized from Simmons\u2019s Capri. No marijuana was found on Hallman\u2019s person and his fingerprints were not on the bags.\nFor the foregoing reasons, we conclude that Hallman was denied a fair trial by the joinder. Because we are ordering a new trial, we need not consider Hallman\u2019s remaining assignments of error as they are not likely to recur at a new trial.\n> HH\nDefendant Simmons s Motion for Appropriate Relief\nDefendant Simmons contends that he was denied effective assistance of counsel because his attorney did not advise him of a plea bargain offer.\nAccording to affidavits filed by the assistant district attorney prosecuting this case and by counsel representing three co-defendants, they were all present, along with counsel representing defendant Simmons, at a pre-trial conference in Judge Johnson\u2019s chambers at which defendants Hallman and Simmons were offered the opportunity to plead guilty to felonious possession of marijuana. No defendants were present at this conference. According to the affidavit filed by counsel for defendant Simmons, when counsel questioned why defendant Hallman was being offered a plea to felonious possession and not his client, the district attorney replied, \u201cIf I gave it to Bev\u2019s client (Hallman), I would give it to you.\u201d Simmons\u2019s counsel interpreted this statement to mean that the offer to his client was conditioned upon Hallman\u2019s accepting the offer. Since Hallman did not accept, he did not communicate any offer to his client. The affidavits filed by the other parties present, however, indicate that the offer was not conditional. There is nothing in the affidavits to indicate that Judge Johnson would not have accepted the plea.\nAfter the trial began, however, Simmons\u2019s counsel discovered that that offer was not conditioned upon Hallman\u2019s accepting it, and, being confident his client would accept the offer, he asked the assistant district attorney to allow his client to plead guilty to felonious possession, but the assistant district attorney refused because the trial had started.\nSimmons swore in his affidavit that he would have taken the offer had he known of it. He had inquired about the possibility of a plea bargain but his attorney told him that the district attorney was not plea bargaining. Before trial he became upset when he discovered co-defendants Coulter and Lay had been offered, and had accepted, plea bargains, while he had not.\nPlea bargaining has been recognized as \u201can essential component of the administration of justice.\u201d Santobello v. New York, 404 U.S. 257, 260, 30 L.Ed. 2d 427, 432, 92 S.Ct. 495, 498 (1971). In North Carolina, plea bargaining is expressly permitted, and the trial judge is allowed to participate. N.C. Gen. Stat. \u00a7 15A-1021 (Supp. 1981).\nA defense attorney in a criminal case has a duty to advise his client fully on whether a particular plea to a charge is desirable, but the ultimate decision on what plea to enter remains exclusively with the client. N. C. Code of Professional Responsibility EC 7-7 (1981). \u201cA lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations.\u201d Id. EC 7-8. One such relevant consideration is the availability of a plea bargain \u2014 in order for a defendant to make a fully informed decision on what plea to enter, he must be made aware of any possible plea bargain. A lawyer thus is ethically bound to advise his client of a plea bargain offer.\nOther jurisdictions hold that an attorney\u2019s failure to advise his client of a plea bargain offer amounts to ineffective assistance of counsel unless counsel effectively proves that he did inform his client of the offer or provides an adequate explanation for not advising his client of the offer. Annot., 8 A.L.R. 4th 660 (1981).\nOne such case holding that an attorney\u2019s failure to inform his client of a plea bargain offer constituted ineffective assistance of counsel is Lyles v. State, 178 Ind. App. 398, 382 N.E. 2d 991 (1978), in which the attorney ostensibly left the plea negotiations in the judge\u2019s chambers to inform his client of a plea bargain offer but never actually informed his client of the offer. The Indiana court derived counsel\u2019s minimal duty from the A.B.A.\u2019s Standards Relating to the Defense Function \u00a7 6.2(a) (App. Draft 1971). The pertinent standard remains unchanged in its current edition:\nIn conducting discussions with the prosecutor the lawyer should keep the accused advised of developments at all times and all proposals made by the prosecutor should be communicated promptly to the accused. (Emphasis added.)\n1 Standards for Criminal Justice Standard 4-6.2(a) (2d ed. 1980). The commentary to Standard 4-6.2 states:\nBecause plea discussions are usually held without the accused being present, there is a duty on the lawyer to communicate fully to his client the substance of the discussions. It is important that the accused be informed of proposals made by the prosecutor; the accused, not the lawyer, has the right to pass on prosecution proposals, even when a proposal is one which the lawyer would not approve. If the accused\u2019s choice on the question of a guilty plea is to be an informed one, he must act with full awareness of his alternatives, including any that arise from proposals made by the prosecutor. (Emphasis added.) Id.\nId. Our Supreme Court recently adopted the McMann standard for gauging effective assistance of counsel. State v. Weaver, 306 N.C. 629, 295 S.E. 2d 375 (1982). The McMann standard tests \u201cwhether counsel\u2019s performance was \u2018within the range of competence demanded of attorneys in criminal cases\u2019.\u201d Id. at 641, 295 S.E. 2d at 382 (quoting McMann v. Richardson, 397 U.S. 759, 771, 25 L.Ed. 2d 763, 773, 90 S.Ct. 1441, 1449 (1970)). As apparent from the foregoing discussion, a criminal defense attorney should advise his clients of plea bargain offers. We, therefore, hold that a failure to inform a client of a plea bargain offer constitutes ineffective assistance of counsel absent extenuating circumstances.\nIn the present case, defendant Simmons\u2019s counsel appeared to be sincere in his belief that the offer was conditional. Once counsel discovered the true facts, he attempted to revive the offer but the district attorney refused. Because of his attorney\u2019s misunderstanding, Simmons was denied the opportunity to accept the plea offer, which, according to his affidavit, he would have accepted. Simmons was clearly prejudiced by his attorney\u2019s failure to inform him of the offer.\nFelonious possession of marijuana, to which Simmons was offered a chance to plead, is a Class I felony, which carries a presumptive term of two years. N.C. Gen. Stat. \u00a7 90-95(d)(4) (Supp. 1983); N.C. Gen. Stat. \u00a7 15A-1340.4(f)(7) (Supp. 1981). According to defendant\u2019s affidavit, his only prior conviction was for misdemeanor possession of marijuana. In contrast, trafficking in excess of 50 pounds, but less than 100 pounds of marijuana carries a mandatory minimum sentence of five years, with no eligibility for early release, parole or probation. N.C. Gen. Stat. \u00a7 90-95(h)(l)(a) (Supp. 1983); N.C. Gen. Stat. \u00a7 90-95(h)(5) (Supp. 1983). Of those indicted, only the two who were tried, Hallman and Simmons, received five-year sentences. Charges were dropped against Buff. Lay was allowed to plead no contest to misdemeanor possession. Coulter was allowed to plead guilty to felonious possession of marijuana, for which he received a split sentence, six months active and eighteen months probation.\nWe do not believe that defendant should be unjustly penalized for his attorney\u2019s misinterpretation, however sincere. Consequently, we are vacating the judgment and conviction and remanding the case for a new trial.\nBecause of our disposition in this case, we need not consider defendant Simmons\u2019s remaining arguments in his motion or the merits of his appeal.\nV\nThe results are:\nNew trials for defendants Hallman and Simmons.\nJudges Whichard and Braswell concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Attorney General Rufus Edmisten, by Associate Attorney Floyd M. Lewis, for the State.", "Rodney S. Toth, for defendant Stephen Douglas Simmons.", "Beverly T. Beal, P.A., by Beverly T. Beal, for defendant Hal Stacey Hallman." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. STEPHEN DOUGLAS SIMMONS STATE OF NORTH CAROLINA v. HAL STACEY HALLMAN\nNo. 8325SC60\n(Filed 6 December 1983)\n1. Criminal Law 8 92.5\u2014 motion for severance improperly denied\nIn prosecutions for trafficking in a controlled substance, the trial judge erred in denying defendant Hallman\u2019s motion for severance where defendant Simmons asserted an entrapment defense in which he testified that he was pressured into committing the offense by a police informant, where defendant Hallman did not testify because of a perceived weak case against him, and where in fact, the case in chief against Hallman, was not only circumstantial, but it was also sparse. G.S. 15A-927(c)(2).\n2. Constitutional Law 8 48; Criminal Law 8 23\u2014 failure to inform client of plea bargain offer \u2014 ineffective assistance of counsel\nA failure to inform a client of a plea bargain offer constitutes ineffective assistance of counsel absent extenuating circumstances. Where, because of his attorney\u2019s misunderstanding concerning a plea bargain offer, defendant was denied the opportunity to accept a plea offer, which, according to his affidavit, he would have accepted, defendant was clearly prejudiced by his attorney\u2019s failure to inform him of the offer and the case should be remanded for a new trial.\nAppeal by defendants from Clifton E. Johnson, Judge. Judgments entered 24 June 1982 in Superior Court, CALDWELL County. Heard in the Court of Appeals 28 September 1983.\nDefendants were indicted and convicted in a joint trial of trafficking in a controlled substance, to wit: marijuana. They were each sentenced to five years in prison.\nAttorney General Rufus Edmisten, by Associate Attorney Floyd M. Lewis, for the State.\nRodney S. Toth, for defendant Stephen Douglas Simmons.\nBeverly T. Beal, P.A., by Beverly T. Beal, for defendant Hal Stacey Hallman." }, "file_name": "0294-01", "first_page_order": 326, "last_page_order": 333 }