{
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  "name": "STATE OF NORTH CAROLINA v. MICHAEL DOCKERY",
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  "casebody": {
    "judges": [
      "Judges ARNOLD and WELLS concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. MICHAEL DOCKERY"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nDefendant\u2019s only assignment of error is that he was denied the effective assistance of counsel guaranteed to all criminal defendants by the Sixth Amendment to the Federal Constitution and Article 1, Section 23 of our State Constitution. The standard for evaluating the effectiveness of appointed counsel in a criminal trial is that of \u201creasonably effective assistance.\u201d Strickland v. Washington, --- U.S. ---, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); State v. Vickers, 306 N.C. 90, 291 S.E. 2d 599 (1982). In Strickland, the United States Supreme Court, for the first time, elaborated on the meaning of the constitutional requirement of effective assistance. Justice O\u2019Connor, writing for the Court, said that the focus of any inquiry into attorney effectiveness must be on the trial, as the purpose of requiring effective assistance of counsel is to ensure a fair trial. Strickland at ---, 104 S.Ct. at 2064, 80 L.Ed. 2d at 692. \u201cThe benchmark for judging any claim of ineffectiveness must be whether counsel\u2019s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.\u201d Id. The test under the State Constitution for evaluating the effectiveness of counsel is identical. State v. Braswell, 312 N.C. 553, 324 S.E. 2d 241 (1985). The duties of an attorney representing a criminal defendant include the duty of loyalty, a duty to advocate the defendant\u2019s cause and duties to consult with the client, investigate the client\u2019s case and keep the client informed. See ABA Standards for Criminal Justice 4-1.10-4-8.6 (2d ed. 1980). However, a breach of one of these duties does not automatically require reversal of a defendant\u2019s conviction. The defendant must also demonstrate that the professionally unreasonable conduct of his counsel resulted in prejudice to the defendant. Strickland at ---, 104 S.Ct. at 2067, 80 L.Ed. 2d at 696.\nIn this case, defendant claims counsel was ineffective in that, first, he failed to subject the State\u2019s case to \u201cmeaningful adversarial testing,\u201d and, second, that he failed to present defendant\u2019s claimed alibi defense adequately. Both contentions revolve around defendant\u2019s claim that he was elsewhere on the night of the larceny and that the complainant had a motive in bringing a false charge against defendant.\nIn bringing an ineffective assistance claim based on the failure to adequately present a defense, the central question is whether a supportable defense could have been developed. State v. Martin, 68 N.C. App. 272, 314 S.E. 2d 805 (1984). The burden of showing the probability that this defense existed is on the defendant. Id. See also McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed. 2d 763 (1970). We have no evidence before us, other than what occurred at trial and defendant\u2019s bare assertions in his brief, which shows that a credible alibi defense could have been developed by a defense attorney acting in a reasonably competent manner. The U.S. Supreme Court in Strickland carefully observed that the two prongs of an ineffective assistance claim (attorney error and prejudice) need not be considered in any particular order. In fact, the Court intimated that disposing of an ineffective assistance claim on the ground of lack of sufficient prejudice, if possible, is preferable. \u201cThe object of an ineffectiveness claim is not to grade counsel\u2019s performance.\u201d Strickland at \u2014, 104 S.Ct. at 2070, 80 L.Ed. 2d at 699. Because of the lack of any evidence available to us concerning the validity of defendant\u2019s alibi defense, we cannot say that defendant suffered any prejudice as a result of his attorney\u2019s failure to present it effectively to the jury.\nThe accepted practice is to raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than direct appeal. E.g., State v. Vickers, 306 N.C. 90, 291 S.E. 2d 599 (1982). While there are exceptions, see United States v. Cronic, --- v. U.S. ---, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984); State v. McEntire, 71 N.C. App. 721, 323 S.E. 2d 439 (1984), this case is not one of them. In order to evaluate whatever prejudice to defendant resulted from his counsel\u2019s errors, evidence needs to be presented at a post-conviction hearing as to the viability of defendant\u2019s alibi claim. See State v. Kinch, 314 N.C. 99, 106, 331 S.E. 2d 665, 669 (1985). As the record appears on this direct appeal, we are constrained to find\nNo error.\nJudges ARNOLD and WELLS concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Thornburg by Associate Attorney General, D. David Steinbock, Jr., for the State.",
      "Acting Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Louis D. Bilionis, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL DOCKERY\nNo. 8520SC624\n(Filed 3 December 1985)\nConstitutional Law \u00a7 48\u2014 effective assistance of counsel \u2014 failure to adequately present a defense \u2014no error\nDefendant was not denied the effective assistance of counsel in a prosecution for larceny of a firearm where defendant claimed that his counsel failed to subject the State\u2019s case to a meaningful adversarial testing and that he failed to present defendant\u2019s claimed alibi defense adequately. There was a lack of evidence before the Court of Appeals showing that a credible alibi defense could have been developed by a defense attorney acting in a reasonably competent manner; moreover, the accepted practice is to raise claims of ineffective assistance of counsel in post-conviction hearings rather than on direct appeal. Sixth Amendment to the United States Constitution, Art. I, \u00a7 23 of the North Carolina Constitution.\nAppeal by defendant from Helms, Judge. Judgment entered 30 October 1984 in Superior Court, MOORE County. Heard in the Court of Appeals 29 October 1985.\nDefendant was charged in a proper bill of indictment with larceny of a firearm. He was convicted after a jury trial and sentenced to five years imprisonment. Defendant appeals.\nAttorney General Thornburg by Associate Attorney General, D. David Steinbock, Jr., for the State.\nActing Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Louis D. Bilionis, for defendant appellant."
  },
  "file_name": "0190-01",
  "first_page_order": 222,
  "last_page_order": 225
}