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    "judges": [
      "Judges MARTIN and Orr concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. RANDY SCOTT YELTON STATE OF NORTH CAROLINA v. PHILLIP H. YELTON"
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      {
        "text": "EAGLES, Judge.\nPetitioners contend the trial court erred in two respects: failing to dismiss the State\u2019s motion when the State presented no evidence and issuing an order directing petitioners\u2019 retained counsel to represent only one defendant. Though we disagree with appellants\u2019 first contention, we agree that the trial court erred by ordering the petitioners\u2019 counsel to represent but one defendant. Accordingly, we reverse.\nr-\u00b6\nPetitioners first assign as error the trial court s denial of their motion to dismiss the State\u2019s motion. Petitioners argue that since the State brought the motion before the court, the burden was upon the State to show that petitioners must have separate counsel. No evidence having been offered by the State, petitioners argue that the State has not met its burden. We disagree.\nWe hold that the trial court must play the vital role in deciding the outcome of the constitutional and ethical questions arising from this issue. Consequently, the State may, but need not, offer evidence in pre-trial conflict of interest hearings. In effect, the State merely brings the conflict issue to the court\u2019s attention. Through the course of the hearing the trial court will determine whether an attorney who jointly represents co-defendants must be disqualified from representing either of them.\nThe procedural posture of this case is unusual. Rarely before trial is there any inquiry into potential problems associated with multiple representation of defendants by a single attorney. The issue of multiple representation customarily arises in the context of post-trial claims of ineffective assistance of counsel either on appeal or in post-conviction proceedings by one of the defendants. Those cases, though not dispositive here, are helpful in determining the questions before us.\nHolloway v. Arkansas, 435 U.S. 475, 55 L.Ed. 2d 426, 98 S.Ct. 1173 (1978), addressed the ineffective assistance of counsel issue. There a court-appointed attorney represented three individual defendants charged with robbery and rape. In two separate pre-trial motions, the defense attorney stated that if he continued to represent all three defendants, there was the possibility of a conflict of interest in each of the cases and moved the court to appoint separate counsel. The trial court conducted a hearing on the first motion, but the defense attorney was not allowed to present evidence to show the alleged conflict of interest. The Supreme Court ruled that the steps taken by the trial court were inadequate and deprived the defendants of the effective assistance of counsel. In Cuyler v. Sullivan, 446 U.S. 335, 346, 64 L.Ed. 2d 333, 345, 100 S.Ct. 1708 (1980), the Supreme Court noted that \u201cHolloway requires state trial courts to investigate timely objections to multiple representation.\u201d\nIn State v. Arsenault, 46 N.C. App. 7, 14, 264 S.E. 2d 592, 596 (1980), our court recognized \u201cthe need for the trial judge to inquire prior to trial about possible conflict of interests [sic] arising from joint representation of co-defendants by members of the same law firm or by single joint counsel.\u201d Arsenault, like Holloway, considered the issue of ineffective assistance of counsel upon post-conviction review. Though both Holloway and Arsen-ault involved defendants\u2019 objections to joint representation by their attorney, there is no reason why the State may not also raise the question before trial. Compare, North Carolina Rules of Professional Conduct, Rule 5.1 comment (1985) (opposing counsel may raise objection but not as technique for harassment).\nOnce a motion by the State or the defense, or the court on its own motion, raises a possible conflict of interest in a dual representation situation, the trial court must conduct a hearing. Cuyler, 446 U.S. at 346. See also United States v. Duklewski, 567 F. 2d 255 (4th Cir. 1977) (defendant must know details of possible conflict of interest before counsel may be disqualified).\nWhen an actual conflict of interest exists between two defendants represented by the same attorney, the attorney must be disqualified from representing one, if not both, defendants. Glasser v. United States, 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457 (1942); North Carolina Rules of Professional Conduct, Rule 5.1 (1985). Therefore, the court must conduct a full and searching inquiry to determine whether an actual conflict of interest exists. This inquiry may go further than the presentation of facts by the parties and may include in camera proceedings or discussions between the trial judge and defendants. Foremost in the court\u2019s inquiry must be the preservation of the accused\u2019s constitutional rights. The hearing by the trial court must ensure that the defendants are aware of these rights and that any waiver is a knowing, intelligent and voluntary waiver.\nFirst, there must be evidence on the issue of defendants\u2019 consent to joint representation. This consent must have been based upon a full disclosure of the advantages and disadvantages of joint representation. North Carolina Rules of Professional Conduct, Rule 5.1(B) (1985). Here, both defendants testified that Mr. Lamb had discussed the potential conflict of interest with each of them. The conflict of interest here would arise, primarily, where one defendant\u2019s interests would be served by his giving testimony against the other. Both defendants denied this was a problem because each had decided he would not testify against the other.\nDefendants must be made aware that their insistence upon joint representation may constitute a waiver of their right to argue on appeal that they were denied effective assistance of counsel due to a conflict of interest because of joint representation. United States v. Garcia, 517 F. 2d 272 (5th Cir. 1975); see United States v. Atkinson, 565 F. 2d 1283, cert. denied, 436 U.S. 944 (4th Cir. 1977); State v. Johnson, 47 N.C. App. 297, 267 S.E. 2d 45, disc. rev. denied, 301 N.C. 101, 273 S.E. 2d 305 (1980). \u201cA waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege,\u201d Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461, 1466, 58 S.Ct. 1019 (1938), and any waivers must be \u201cknowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.\u201d Brady v. United States, 397 U.S. 742, 748, 25 L.Ed. 2d 747, 756, 90 S.Ct. 1463 (1970).\nIn Garcia, the United States Court of Appeals discussed the waiver issue. Though that decision is not controlling, it is instructive. There, nine members of the Houston Police Department had been indicted on various federal charges. Each of the defendants retained the attorney of his choice. Two of the defendants hired a single attorney to represent them. The other seven defendants hired two different attorneys to represent all seven of them. The government filed a motion asking the district court to consider conflicts of interest and possible disqualifications of the attorneys. The district court ordered all nine defendants to retain new counsel and disqualified the three attorneys from the case. On appeal, the Fifth Circuit Court reversed and remanded. The Court held that the effective assistance of counsel, like any other constitutional right, could be waived but only so long as the waiver was voluntary, knowing, and intelligent. Garcia, 517 F. 2d at 278.\nThe Garcia Court ordered that inquiry procedures \u201cakin to . . . Fed. R. Crim. Proc. 11\u201d be followed by the trial court:\nAs in [F.R. Crim. Pro.] 11 procedures, the district court should address each defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest. The defendant must be at liberty to question the district court as to the nature and consequences of his legal representation. Most significantly, the court should seek to elicit a narrative response from each defendant that he has been advised of his right to effective representation, that he understands the details of his attorney\u2019s possible conflict of interest and the potential perils of such a conflict, that he has discussed the matter with his attorney or if he wishes with outside counsel, and that he voluntarily waives his Sixth Amendment protections. [Citations omitted.]\nId.\nIn the instant case, defense counsel\u2019s examination and, particularly, the vigorous cross-examination of both defendants at the hearing below demonstrates substantial compliance with the inquiry called for in Garcia. The questioning here apprised both defendants of the potential conflict of interest inherent in having one lawyer represent them both. The State, as well as the defense, inquired into the possibility and probability of one defendant testifying against the other. Given the relationship between these two defendants (father and son) and their unequivocal testimony at the hearing, it appears unlikely that either will testify against the other. Additionally, throughout their testimony each defendant continued to insist that Mr. Lamb represent him. The record before us clearly demonstrates that Phillip H. Yelton and Randy Scott Yelton have voluntarily, knowingly, and intelligently waived their right to appeal, if convicted, on grounds of ineffective assistance of counsel based upon Mr. Lamb\u2019s potential conflict of interest.\nII.\nPetitioners next argue that the court\u2019s order directing Mr. Lamb to represent only one defendant deprived petitioners of the right to counsel of their choice. We agree and reverse the order of the trial court.\nThe North Carolina and United States Constitutions guarantee each individual the right to counsel in criminal cases. Powell v. Alabama, 287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55 (1932); State v. Speller, 230 N.C. 345, 53 S.E. 2d 294 (1949). The accused\u2019s right to counsel includes the right to select and retain an attorney of his choice. State v. Morris, 275 N.C. 50, 165 S.E. 2d 245 (1969). On the other hand, an indigent defendant does not have the same right to choose his own counsel, but rather must accept an experienced and competent attorney appointed for him by the court. State v. Robinson, 290 N.C. 56, 224 S.E. 2d 174 (1976). Here Mr. Lamb is retained by both defendants.\nIn State v. McFadden, 292 N.C. 609, 234 S.E. 2d 742 (1977), the court balanced the defendant\u2019s right to the counsel of his choice against the denial of a continuance so that defendant\u2019s chosen counsel could try the case. The defendant had retained Mr. Powell to represent him on a felonious sale and delivery of cocaine charge. Mr. Powell received one continuance before the case came for trial. The week before the case was to be heard, the district attorney refused to agree to another continuance based on Mr. Powell having another case pending in federal court. On the day of trial, Mr. Powell\u2019s associate appeared to move for another continuance. The associate knew nothing about McFadden\u2019s case; only Mr. Powell knew the case. The trial judge denied the request and required trial to begin, despite the defendant\u2019s protestations that he wanted Mr. Powell, his retained counsel, to represent him.\nOn appeal, the Supreme Court reversed the trial court holding that the trial court impermissibly deprived the defendant of a reasonable time to obtain the counsel of his choice. In reaching its decision the Court quoted with approval:\nThe state should keep to a necessary minimum its interference with the individual\u2019s desire to defend himself in whatever manner he deems best, using any legitimate means within his resources \u2014and that desire can constitutionally be forced to yield only when it will result in significant prejudice to the defendant or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.\nId., 292 N.C. at 613-614, 234 S.E. 2d at 746 (quoting People v. Crovedi, 417 P. 2d 868, 65 Cal. 2d 199, 53 Cal. Rptr. 284 (1966)).\nThe State does not contend, nor does the record reflect, that the Yeltons hired Mr. Lamb intending to disrupt the orderly processes of justice. Nothing in Mr. Lamb\u2019s pre-trial conduct was disruptive or suggests that he was attempting to be disruptive. Having failed to show a disruption of the judicial processes, in order to prevail the State must show a significant prejudice to one of the defendants.\nIn considering what constitutes \u201csignificant prejudice\u201d here, we note that the United States Supreme Court has held that having a single attorney represent two or more co-defendants was not a per se violation of the Sixth Amendment right to the effective assistance of counsel. Holloway, 435 U.S. at 482. Quoting from Justice Frankfurter\u2019s dissent in Glasser, the Supreme Court in Holloway recognized that in some instances there might be advantages in joint representation: \u201cJoint representation is a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack.\u201d Id. at 482-483 (quoting Glasser, 315 U.S. at 92 (Frankfurter, J., dissenting)).\nRecently, the Supreme Court reaffirmed this position and, further, stated that prejudice to a defendant could not be presumed from the mere fact of joint representation. Burger v. Kemp, 483 U.S. ---, 97 L.Ed. 2d 638, 107 S.Ct. 3114 (1987). The Court stated that prejudice would be presumed only upon a demonstration \u201cthat counsel \u2018actively represented conflicting interests\u2019 and that \u2018an actual conflict of interest adversely affected his lawyer\u2019s performance.\u2019 \u201d Id., 97 L.Ed. 2d at 650 (quoting Strickland v. Washington, 466 U.S. 668, 692, 80 L.Ed. 2d 674, 104 S.Ct. 2052 (1984) (citation omitted)).\nIn United States v. Atkinson, 565 F. 2d 1283 (4th Cir. 1977), the court indicated that where counsel was retained in joint representation situations, the defendants \u201cmore than anyone, including the court, were in a position to know what facts might be developed at trial. Apparently they concluded that such representation was advantageous. . . .\u201d Id. at 1284.\nIn Cuyler the United States Supreme Court held that a state prisoner was not entitled to a writ of habeas corpus merely by showing his retained counsel represented potentially conflicting interests. There, the Court said the possibility of a conflict of interest was insufficient to reverse a criminal conviction. To prevail, the defendant must establish an actual conflict of interest. Cuyler, 446 U.S. at 350.\nAccordingly, we conclude that joint representation, nothing else appearing, is not always prejudicial. In joint representation cases, only where there is an actual conflict of interest which denies the defendants the effective assistance of counsel does a problem arise. A potential conflict of interest, as distinguished from an actual conflict of interest, is not sufficient to warrant the State\u2019s interference with the constitutionally guaranteed right of a criminal defendant to retain and be represented by the counsel of his choice.\nIn the instant case the State has shown no actual conflict of interest. Indeed, the trial court\u2019s conclusion was that there was \u201ca clear potential conflict of interest between the best interest of the [defendants [sic].\u201d The findings of fact and the evidence support this conclusion of law. We conclude that a potential conflict of interest which is not shown to substantially prejudice defendant\u2019s interests is not sufficient to justify interference with defendant\u2019s right to representation by the retained counsel of his choice. Accordingly, we vacate the trial court\u2019s order directing Mr. Lamb represent only one defendant and remand the case to the trial court.\nWe note that under the North Carolina Rules of Professional Conduct, defense counsel has an ongoing professional and ethical obligation to avoid representing conflicting interests. North Carolina Rules of Professional Conduct, Rule 5.1 (1985). The Cuyler court recognized that the attorney is in the \u201cbest position professionally and ethically\u201d to determine when and where conflicts may arise. Cuyler, 446 U.S. at 347. The Rules of Professional Conduct already allocate to the attorney the obligation of assuring his compliance with the rules.\nVacated and remanded.\nJudges MARTIN and Orr concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
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    "attorneys": [
      "Attorney General Thornburg, by Assistant Attorney General Francis W. Crawley, for the State.",
      "William E. Lamb, Jr. for defendant-petitioners."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. RANDY SCOTT YELTON STATE OF NORTH CAROLINA v. PHILLIP H. YELTON\nNo. 8727SC362\n(Filed 17 November 1987)\n1. Constitutional Law \u00a7 48\u2014 joint representation oi defendants \u2014 pretrial hearing \u2014burden of proof \u2014 waiver of appeal\nThe trial court did not err procedurally in a prosecution for narcotics offenses where defendants were father and son, both defendants retained the same counsel, the State filed a motion requesting the trial court to determine whether the attorney\u2019s representation of both defendants was proper, the State offered no evidence at the hearing, the court denied defendants\u2019 motion to dismiss the petition, and the court ordered the attorney to represent only one defendant. The trial court must play the vital role in deciding the outcome of the constitutional and ethical questions arising from this issue, and the State may, but need not, offer evidence in pretrial conflict of interest hearings. The court must conduct a full and searching inquiry to determine whether an actual conflict of interest exists and foremost in the court\u2019s inquiry must be the preservation of the accused\u2019s constitutional rights; the record in this case clearly demonstrated that defendants voluntarily, knowingly, and intelligently waived their right to appeal on the grounds of ineffective assistance of counsel based upon the counsel\u2019s potential conflict of interest.\n2. Constitutional Law \u00a7 40\u2014 right to counsel \u2014 potential conflict of interest \u2014 court order requiring attorney to represent one defendant \u2014 error\nThe trial court erred in the prosecution of a father and son for narcotics related offenses by ordering their retained counsel to represent only one defendant. A potential conflict of interest which is not shown to substantially prejudice defendants\u2019 interest is not sufficient to justify interference with defendants\u2019 right to retained counsel of choice.\nOn writ of certiorari to review order entered by Owens, Judge. Order entered 21 November 1986 in Superior Court, CLEVELAND County. Heard in the Court of Appeals 29 September 1987.\nThe petitioners in this action, Phillip H. Yelton and Randy Scott Yelton, are father and son, respectively. During its 5 May 1986 session, the Cleveland County grand jury returned multiple true bills of indictment against each of them charging narcotics-related offenses. Among the charges were two charges of conspiracy to traffic in cocaine and one charge of conspiracy to sell and deliver cocaine naming the two defendants as co-conspirators.\nPhillip Yelton and his son Randy Scott Yelton retained William E. Lamb, Jr. to represent them. Mr. Lamb filed numerous pre-trial motions and requests on behalf of each of the petitioners.\nOn 17 October 1986 the State filed a motion requesting the trial court to determine whether Mr. Lamb\u2019s representation of both petitioners was proper under the circumstances. After a hearing on 21 November 1986, at which both defendants testified, the trial court ordered Mr. Lamb to represent only one defendant and to notify the District Attorney\u2019s office which of the defendants he would represent. On 5 December 1986, Mr. Lamb filed writs of supersedeas and certiorari with the Court of Appeals. The writ of supersedeas was allowed on 5 December 1986. On 12 January 1987 the Court of Appeals allowed petitioners\u2019 writ of certiorari and stayed further proceedings in the trial court pending disposition of the writ of certiorari.\nAttorney General Thornburg, by Assistant Attorney General Francis W. Crawley, for the State.\nWilliam E. Lamb, Jr. for defendant-petitioners."
  },
  "file_name": "0554-01",
  "first_page_order": 582,
  "last_page_order": 590
}
