{ "id": 1155640, "name": "STATE OF NORTH CAROLINA v. GEORGE CALE BUCKNER", "name_abbreviation": "State v. Buckner", "decision_date": "2000-04-07", "docket_number": "No. 444A93-2", "first_page": "401", "last_page": "413", "citations": [ { "type": "official", "cite": "351 N.C. 401" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "327 N.C. 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493733 ], "opinion_index": -1, "case_paths": [ "/nc/327/0147-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "693", "parenthetical": "holding that \"an act or omission that is unprofessional in one case may be sound or even brilliant [trial strategy] in another\"" }, { "page": "697", "parenthetical": "holding that \"an act or omission that is unprofessional in one case may be sound or even brilliant [trial strategy] in another\"" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "88 L. Ed. 2d 104", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1985, "pin_cites": [ { "parenthetical": "noting that the performance of trial counsel must be analyzed according to the circumstances of each particular case" } ], "opinion_index": 0 }, { "cite": "474 U.S. 842", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6342881, 6343463, 6343880, 6341543, 6343658, 6341963, 6341099, 6344141, 6342221, 6342636, 6343062, 6341335, 6341753, 6342426, 6343261 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/474/0842-09", "/us/474/0842-12", "/us/474/0842-14", "/us/474/0842-03", "/us/474/0842-13", "/us/474/0842-05", "/us/474/0842-01", "/us/474/0842-15", "/us/474/0842-06", "/us/474/0842-08", "/us/474/0842-10", "/us/474/0842-02", "/us/474/0842-04", "/us/474/0842-07", "/us/474/0842-11" ] }, { "cite": "688 S.W.2d 338", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9967152 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/sw2d/688/0338-01" ] }, { "cite": "338 S.E.2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "308" } ], "opinion_index": 0 }, { "cite": "315 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718433 ], "year": 1986, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0378-01" ] }, { "cite": "757 F.2d 557", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 317221 ], "year": 1985, "pin_cites": [ { "page": "562-63", "parenthetical": "holding that the United States Supreme Court viewed inherent power as fundamental to the administration of justice and the functioning of the judiciary" } ], "opinion_index": 0, "case_paths": [ "/f2d/757/0557-01" ] }, { "cite": "357 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "696" } ], "opinion_index": 0 }, { "cite": "320 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731807 ], "year": 1987, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0126-01" ] }, { "cite": "405 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "129" }, { "page": "129" } ], "opinion_index": 0 }, { "cite": "329 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553368 ], "year": 1991, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0084-01" ] }, { "cite": "235 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "840" }, { "page": "840" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "293 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561617 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "124" }, { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0105-01" ] }, { "cite": "422 U.S. 225", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9475 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "238" }, { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/us/422/0225-01" ] }, { "cite": "144 L. Ed. 2d 840", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "pin_cites": [ { "parenthetical": "citing Bates, 348 N.C. 29, 497 S.E.2d 276" } ], "opinion_index": 0 }, { "cite": "514 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "728", "parenthetical": "citing Bates, 348 N.C. 29, 497 S.E.2d 276" } ], "opinion_index": 0 }, { "cite": "350 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132119 ], "year": 1999, "pin_cites": [ { "page": "406", "parenthetical": "citing Bates, 348 N.C. 29, 497 S.E.2d 276" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0400-01" ] }, { "cite": "497 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1998, "pin_cites": [ { "page": "279" }, { "page": "280-81", "parenthetical": "emphasis added" }, { "page": "276" }, { "page": "280" }, { "page": "280" }, { "page": "279" }, { "page": "280" } ], "opinion_index": 0 }, { "cite": "348 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659938 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "35" }, { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0029-01" ] }, { "cite": "392 S.E.2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "607" }, { "page": "607" } ], "opinion_index": 0 }, { "cite": "326 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309774 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "738" }, { "page": "739" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0732-01" ] }, { "cite": "1995 N.C. Sess. Laws 389", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "393 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 19, "year": 1990, "pin_cites": [ { "page": "804" }, { "page": "804" }, { "page": "805" }, { "page": "809" }, { "page": "807" }, { "page": "805" }, { "page": "806" }, { "page": "806" }, { "page": "807" }, { "page": "809", "parenthetical": "Meyer, J., dissenting" }, { "page": "810", "parenthetical": "Meyer, J., dissenting" } ], "opinion_index": 0 }, { "cite": "136 L. Ed. 2d 47", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "519 U.S. 828", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11611424, 11611236, 11611653, 11611718, 11611367, 11611530, 11611789, 11611758, 11611599, 11611282, 11611123, 11611479, 11611324, 11611167 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/519/0828-07", "/us/519/0828-03", "/us/519/0828-11", "/us/519/0828-12", "/us/519/0828-06", "/us/519/0828-09", "/us/519/0828-14", "/us/519/0828-13", "/us/519/0828-10", "/us/519/0828-04", "/us/519/0828-01", "/us/519/0828-08", "/us/519/0828-05", "/us/519/0828-02" ] }, { "cite": "464 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796105 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0198-01" ] }, { "cite": "327 N.C. 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493733 ], "weight": 6, "pin_cites": [ { "page": "150" }, { "page": "158" }, { "page": "153" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0147-01" ] } ], "analysis": { "cardinality": 933, "char_count": 29105, "ocr_confidence": 0.743, "pagerank": { "raw": 3.5020506944079813e-07, "percentile": 0.8828350610402382 }, "sha256": "986b61067463969f1c914d96452819d113e929de0003fd5d229d3a8f582bc8fa", "simhash": "1:ab01457c26f90efa", "word_count": 4428 }, "last_updated": "2023-07-14T19:38:07.529951+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Justice Frye concurs in the result." ], "parties": [ "STATE OF NORTH CAROLINA v. GEORGE CALE BUCKNER" ], "opinions": [ { "text": "WAIN WRIGHT, Justice.\nIn September 1993, defendant George Cale Buckner was tried on charges of first-degree murder, robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, felonious larceny, and felonious possession of stolen goods. On 20 September 1993, the jury returned verdicts of guilty as to all counts. The jury recommended the death penalty.\nOn 8 October 1993, the trial court sentenced defendant to death for first-degree murder and to consecutive terms of imprisonment of forty years for robbery with a dangerous weapon, ten years for conspiracy to commit robbery with a dangerous weapon, and ten years for felonious larceny. On 8 December 1995, this Court found no error as to the convictions of first-degree murder, conspiracy to commit robbery with a dangerous weapon, and robbery with a dangerous weapon, but arrested judgment on the conviction of felonious larceny. See State v. Buckner, 342 N.C. 198, 464 S.E.2d 414 (1995), cert. denied, 519 U.S. 828, 136 L. Ed. 2d 47 (1996).\nOn 5 August 1997, post-conviction counsel for defendant filed a motion for appropriate relief alleging that trial counsel rendered ineffective assistance of counsel at both the guilt and sentencing phases of defendant\u2019s capital trial. Defendant alleged he received ineffective assistance by trial counsel\u2019s:\n1. \u201cfailure to discover and present evidence tending to prove another committed the murder\u201d;\n2. \u201cfailure to adequately warn Defendant of the consequences of his taking the witness stand and . . . failure to object to the prosecutor\u2019s alleged improper closing argument and the trial court\u2019s inadequate curative instruction\u201d-,\n3. \u201cfailure to adequately inform Defendant about the prosecution\u2019s subjecting him to cross-examination about his prior criminal record\u201d;\n4. \u201cfailure to properly prepare Defendant for cross-examination concerning the type of speedometer in the get-away vehicle\u201d;\n5. \u201cineffective[ness] by virtue of his failing to demand Defendant be present at all stages of his trial\u201d;\n6. \u201cineffective[ness] for stipulating to Defendant\u2019s prior common law robbery and for failing to present rebuttal evidence\u201d;\n7. \u201cineffective [ness] in developing sufficient evidence in support of the mitigating circumstances presented to the jury\u201d;\n8. \u201cineffective [ness] for failing to sufficiently investigate and present evidence of other mitigating circumstances\u201d;\n9. \u201cineffective[ness] in failing to present evidence upon which a jury could find Defendant\u2019s criminal history was not significant\u201d-, and\n10. \u201cineffective [ness] in failing to request peremptory instructions on non-statutory mitigating circumstances.\u201d\n(Emphasis added.)\nIn response to defendant\u2019s motion for appropriate relief, the State requested, by way of a motion for discovery, \u201caccess to and copies of all notes, documents, communications or work product touching directly or indirectly on the issues enumerated [in defendant\u2019s motion for appropriate relief] and the investigation, preparation for trial, tactical decisions, and strategy relevant to Defendant\u2019s allegations of ineffective assistance of counsel.\u201d\nPost-conviction counsel provided the State with copies of written correspondence between trial counsel and defendant. Defendant\u2019s trial counsel, however, refused to speak to the State and filed an affidavit stating he was ineffective and was the attorney primarily responsible for investigation, preparation, and presentation of the mitigation evidence at sentencing. No summaries of any oral communications between trial counsel and defendant were provided to the State.\nAfter considering the oral arguments of the parties, the evidence of record, and the parties\u2019 submitted written arguments, the superior court entered an order on 3 November 1998 granting the State\u2019s motion for discovery. The superior court made, inter alia, the following findings of fact:\n5. Counsel for the State made several inquiries concerning discovery necessary to represent the interest of the State in defending against the allegations of ineffective assistance of counsel.\n6. Post-conviction counsel for [defendant], provided copies of correspondence between the defense attorneys at trial and the defendant.\n7. Access to any other material related to the issues of ineffective assistance of counsel has been denied the State\u2019s attorney.\n8. The State, on September 28, 1998, formally filed its Discovery Motion and requested access to and copies of all notes, documents, communications, or work product touching directly or indirectly on the issues alleging ineffective assistance of counsel. The State also asks the right to interview trial counsel to glean the substance of any oral communications relevant to the allegations of ineffective assistance of counsel.\nThe superior court then concluded as a matter of law:\n1. As to those issues alleging ineffective assistance of counsel, [defendant] has waived the attorney/client privilege and any privilege having to do with work product related to those issues.\n2. The waiver of the attorney/client privilege was automatic upon the filing of the allegations of ineffective assistance of counsel, as it related to both oral and written communications between [defendant] and his trial counsel. N.C.G.S. \u00a7 15A-1415(e). State v. Taylor, 327 N.C. 147, 393 S.E.2d 801 (1990)[,] provides the [court] with the inherent power to determine that work product related to the issues alleging ineffective assistance of counsel be waived.\n3. Nothing in the passage of N.C.G.S. \u00a7 15A-1415(e) limits the inherent authority of this court to determine a waiver of attorney/client privilege or that of work product privilege.\nThe superior court\u2019s order stated the State\u2019s attorney was to be provided access to and copies of all notes, documents, communications, or work product touching directly or indirectly on the allegations of ineffective assistance of counsel enumerated in defendant\u2019s motion for appropriate relief. Additionally, the superior court ordered that the State\u2019s attorney have the right to interview trial counsel to learn of any oral communications relevant to the trial investigation and preparation, tactical decisions, or strategy relevant to defendant\u2019s allegations of ineffective assistance of counsel.\nOn 22 July 1999, this Court allowed defendant\u2019s petition for writ of certiorari to review the superior court\u2019s order.\nDefendant argues the superior court erred as a matter of law in failing to recognize the effect of the legislature\u2019s enactment of N.C.G.S. \u00a7 15A-1415(e) by not applying the statutory language, and in acting without authority in ordering trial counsel to submit to an interview.\nFirst, we address defendant\u2019s argument that the superior court\u2019s order failed to recognize the effect of the legislature\u2019s enactment of N.C.G.S. \u00a7 15A-1415(e) by not applying the statutory language. In 1996, the legislature enacted \u201cAn Act to Expedite the Postconviction Process in North Carolina,\u201d ch. 719, 1995 N.C. Sess. Laws 389, which added discovery provisions, including subsection (e), to N.C.G.S. \u00a7 15A-1415. Subsection (e) provides:\nWhere a defendant alleges ineffective assistance of prior trial or appellate counsel as a ground for the illegality of his conviction or sentence, he shall be deemed to waive the attorney-client privilege with respect to both oral and written communications between such counsel and the defendant to the extent the defendant\u2019s prior counsel reasonably believes such communications are necessary to defend against the allegations of ineffectiveness. This waiver of the attorney-client privilege shall be automatic upon the filing of the motion for appropriate relief alleging ineffective assistance of prior counsel, and the superior court need not enter an order waiving the privilege.\nN.C.G.S. \u00a7 15A-1415(e) (1999) (emphasis added).\nSpecifically, defendant contends (1) N.C.G.S. \u00a7 15A-1415(e) supersedes and effectively overrules State v. Taylor, 327 N.C. 147, 393 S.E.2d 801, and sets out a specific, concrete set of discovery rules applicable to materials privileged between defendant and his trial counsel; (2) the statute invokes a stricter standard of permissible discovery than was previously imposed under the \u201crelevance\u201d standard of Taylor by limiting discovery to only \u201coral and written communications\u201d between a defendant and trial counsel relevant to any ineffective assistance of counsel claims; (3) the superior court failed to follow N.C.G.S. \u00a7 15A-1415(e) when it ordered post-conviction discovery in the instant case; and (4) the required disclosure is further limited by the phrase \u201cto the extent the defendant\u2019s prior counsel reasonably believes such communications are necessary to defend against the allegations of ineffectiveness.\u201d We disagree.\nAt the time Taylor was decided, N.C.G.S. \u00a7 15A-1415 contained no discovery provisions. Defendant\u2019s contention that N.C.G.S. \u00a7 15A-1415(e) supersedes Taylor is misplaced. Except where inconsistent with this opinion, Taylor remains good law. In Taylor, the defendant\u2019s post-conviction counsel filed a motion for appropriate relief contending, inter alia, that trial counsel for the defendant rendered ineffective assistance in preparing and presenting both the defense at trial and the direct appeal. Taylor, 327 N.C. at 150, 393 S.E.2d at 804. The superior court ordered the defendant to give the State \u201caccess to . . . all files relating to these cases.\u201d Id. at 151, 393 S.E.2d at 804. This Court, however, held that a defendant waives the benefits of both the attorney-client and the work-product privileges by alleging ineffective assistance of counsel, \u201cbut only with respect to matters relevant to his allegations of ineffective assistance of counsel.\u201d Id. at 152, 393 S.E.2d at 805. The majority of this Court conceded that the defendant\u2019s waiver of privileges was broad, as pointed out in Justice Meyer\u2019s dissent, but nevertheless stated that \u201chis waiver was not an unlimited waiver.\u201d Id. We concluded,\n[a]s the order of the Superior Court directed the defendant to provide the State access to \u201call files relating to these cases\u201d without limiting the ordered disclosure to matters relevant to issues raised by the defendant\u2019s allegations of ineffective assistance of counsel, the order of the Superior Court was overbroad and exceeded its authority.\nId. As a result, the State was permitted discovery of all materials that were in any way relevant to the ineffectiveness claims. Id.\nIn reviewing N.C.G.S. \u00a7 15A-1415(e), we recognize that when interpreting a statute, courts must look to the intent of the legislature. State v. Tew, 326 N.C. 732, 738, 392 S.E.2d 603, 607 (1990). If possible, a statute must be interpreted so as to give meaning to all its provisions. State v. Bates, 348 N.C. 29, 35, 497 S.E.2d 276, 279 (1998). \u201cIndividual expressions must be construed as a part of the composite whole and be accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit.\u201d Tew, 326 N.C. at 739, 392 S.E.2d at 607.\nThe legislature enacted \u201cAn Act to Expedite the Postconviction Process in North Carolina\u201d \u201cin response to legislative concerns that the post-conviction process in capital cases appeared endless.\u201d State v. Green, 350 N.C. 400, 406, 514 S.E.2d 724, 728, cert. denied, \u2014 U.S. \u2014, 144 L. Ed. 2d 840 (1999) (citing Bates, 348 N.C. 29, 497 S.E.2d 276). The amendments to N.C.G.S. \u00a7 15A-1415 evidence \u201can intent on the part of the General Assembly to expedite the post-conviction process in capital cases while ensuring thorough and complete review.\u201d Bates, 348 N.C. at 37, 497 S.E.2d at 280-81 (emphasis added).\nThe superior court in the instant case followed N.C.G.S. \u00a7 15A-1415(e) when it ordered discovery. We find our previous decision in Bates, which examined subsection (f), instructive to our analysis here. Id. at 29, 497 S.E.2d at 276. Subsection (e) mandates, in explicit language, that the defendant is deemed to have waived the attorney-client privilege; therefore, the clear language of this statute demands disclosure in post-conviction proceedings. See id. at 36, 497 S.E.2d at 280; N.C.G.S. \u00a7 15A-1415(e). In criminal cases, both the accused and the State have an interest in obtaining a fair and accurate resolution of the question of guilt or innocence. Id. at 37, 497 S.E.2d at 280. This interest \u201c \u2018demandfs] that adequate safeguards assure the thorough preparation and presentation of each side of the case.\u2019 \u201d Id. (quoting United States v. Nobles, 422 U.S. 225, 238, 45 L. Ed. 2d 141, 153 (1975)). In Bates, we noted that the statute contains no express provision for withholding work product. Id. at 35, 497 S.E.2d at 279. Similarly, nothing in existing law prohibits disclosure to the State of defendant\u2019s oral and written communications, including work-product materials, upon defendant alleging ineffectiveness of counsel. We also stated in Bates that the interest of the State in protecting its work product once the case has reached post-conviction review is diminished. Id. at 37, 497 S.E.2d at 280. Consistent with the legislature\u2019s intent in N.C.G.S. \u00a7 15A-1415(e), this principle applies equally to a defendant.\nSubsection (e), being expeditious in nature, makes clear that a defendant shall be deemed to waive the attorney-client privilege automatically without the need of the superior court entering such an order. Defendant argues that the phrase \u201cto the extent the defendant\u2019s prior counsel reasonably believes such communications are necessary to defend against the allegations of ineffectiveness\u201d must limit the required disclosure. We agree that this language is intended as some limitation on the information which the defendant is required to make available. However, the clear intent and purpose of the Act permit only a limitation of discovery to relevance, consistent with Taylor. See id.\nThe objective and subjective mental processes of trial counsel and defendant are relevant, as they form the basis of trial counsel\u2019s choices, strategies, and approaches concerning the case. If something is reasonably necessary in defending against an ineffectiveness allegation pursuant to N.C.G.S. \u00a7 15A-1415(e), it would also be relevant under Taylor. If evidence is relevant to ineffectiveness, it may be \u201cnecessary\u201d to defend against an ineffectiveness allegation. See N.C.G.S. \u00a7 15A-1415(e). Thus, Taylor is not superseded, as defendant argues, and discovery is not per se limited to merely \u201coral and written communications.\u201d\nIn Taylor, post-conviction counsel described the extent of the defendant\u2019s waiver of the attorney-client and work-product privileges by making specific allegations of trial counsel\u2019s ineffectiveness. In particular, defendant alleged that his trial counsel (1) failed to investigate the other crimes, (2) failed to cross-examine witnesses to these crimes, and (3) offered no rebuttal evidence concerning these witnesses and crimes. Taylor, 327 N.C. at 158, 393 S.E.2d at 809. Defendant additionally set forth certain allegations of ineffective assistance with regard to his prior counsel\u2019s preparation of his appeal. Id. at 155, 393 S.E.2d at 807. The post-conviction counsel further identified in detail specific parts of the files in which the defendant had not waived limited privileges of confidentiality. Id. Thus, this Court ordered disclosure to matters relevant to the defendant\u2019s allegations. Id. at 152, 393 S.E.2d at 805.\nIn the instant case, however, defendant\u2019s claims are numerous, broad-based, and encompass almost every aspect of the trial and sentencing proceeding. Defendant\u2019s allegations involve each counsel\u2019s thoughts and, therefore, include defendant\u2019s and trial counsel\u2019s notes, documents, paperwork, work product, communications (both oral and written), frame of mind, trial decisions and strategy, along with defendant\u2019s and trial counsel\u2019s responses to one another. By attacking the competency of his trial counsel, defendant has waived the attorney-client and work-product privileges as to privileged communications and work product relevant to the allegations of ineffective assistance of counsel. See id. Defendant has raised these broad-based allegations and cannot be allowed to use them as a sword and simultaneously use the attorney-client and work-product privileges as a shield.\nMoreover, when enacting subsection (e), it is clear the legislature anticipated trial counsel would be cooperative and willing to defend their work and reputation against allegations of ineffectiveness. However, as in the instant case, it is reasonable to believe that, on occasion, trial counsel will continue to defend his/her client regardless of personal attacks. As previously noted, defendant argues the phrase \u201cto the extent the defendant\u2019s prior counsel reasonably believes such communications are necessary to defend against the allegations of ineffectiveness\u201d limits the required disclosure. The legislature could not have intended that trial counsel should be the only one to control discovery by determining the extent of discovery or acting as the gatekeeper of discovery. Such an intention would be contrary to the purpose of the statute. Determining the extent of discovery is ultimately for the court to decide pursuant to its inherent power.\nThis Court in Taylor affirmed the \u201cinherent power\u201d of the superior court to order discovery in its discretion, to assure justice in criminal cases. Taylor, 327 N.C. at 153, 393 S.E.2d at 806 (citing State v. Hardy, 293 N.C. 105, 124, 235 S.E.2d 828, 840 (1977)). In Taylor, we stated:\n\u201cAt trial the major concern is the \u2018search for truth\u2019 as it is revealed through the presentation and development of all relevant facts. To ensure that truth is ascertained and justice served, the judiciary must have the power to compel the disclosure of relevant facts, not otherwise privileged, within the framework of the rules of evidence.\u201d\nId. at 154, 393 S.E.2d at 806 (quoting Hardy, 293 N.C. at 125, 235 S.E.2d at 840). This reasoning led us to conclude that \u201cour judiciary also must and does have the inherent power to compel disclosure of relevant facts regarding a post-trial motion and may order such disclosure prior to a hearing on such motion.\u201d Id. (emphasis added).\nInherent power is that which a court necessarily possesses irrespective of constitutional provisions. In re Alamance County Ct. Facils., 329 N.C. 84, 93, 405 S.E.2d 125, 129 (1991). Such power may not be abridged by the legislature and is essential to the court\u2019s existence and the orderly and efficient administration of justice. Id. Through its inherent powers, a court has the \u201c \u2018authority to do all things that are reasonably necessary for the proper administration of justice.\u2019 \u201d Id. at 94, 405 S.E.2d at 129 (quoting Beard v. N.C. State Bar, 320 N.C. 126, 129, 357 S.E.2d 694, 696 (1987)); see also Eash v. Riggins Trucking, Inc., 757 F.2d 557, 562-63 (3d. Cir. 1985) (holding that the United States Supreme Court viewed inherent power as fundamental to the administration of justice and the functioning of the judiciary); Felix F. Stumpf, Inherent Powers of the Courts 37-38 (1994) (inherent power covers powers thought essential to the existence, dignity, and functions of the court, or for an orderly, efficient and effective administration of justice). A court uses its inherent power when constitutional provisions, statutes, or court rules fail to supply answers to problems or when courts find themselves compelled to provide solutions that enable the litigative process to proceed smoothly. Stumpf, Inherent Powers of the Courts 37-38. Our courts have the \u201cinherent power to order discovery in furtherance of criminal investigation.\u201d In re Super. Ct. Order Dated April 8, 1983, 315 N.C. 378, 379, 338 S.E.2d 307, 308 (1986).\nBecause the State could have issued a subpoena to compel disclosure by defendant\u2019s trial counsel or the production of documentary evidence, the superior court has the inherent power to order disclosure by defendant\u2019s trial counsel prior to a hearing on defendant\u2019s motion for appropriate relief. See Taylor, 327 N.C. at 154, 393 S.E.2d at 806. Superior courts should determine if ordering disclosure on the merits of a defendant\u2019s motion for appropriate relief will significantly assist in the search for truth. If the superior court orders disclosure, and there is disagreement about whether the order covers certain questionable documents or communications, the superior court must conduct an in camera review to determine the extent of the order as to those documents or communications. See id. at 155, 393 S.E.2d at 807.\nTo defend against ineffective assistance of counsel allegations, the State must rely on information provided by defendant to trial counsel, as well as defendant\u2019s thoughts, concerns, and demeanor. See id. at 159, 393 S.E.2d at 809 (Meyer, J., dissenting). \u201c[0]nly when all aspects of the relationship are explored can it be determined whether counsel was reasonably likely to render effective assistance.\u201d Id. at 161, 393 S.E.2d at 810 (Meyer, J., dissenting) (citing Harris v. Commonwealth, 688 S.W.2d 338 (Ky. Ct. App. 1984), cert. denied, 474 U.S. 842, 88 L. Ed. 2d 104 (1985)). Thus, superior courts should assess the allegations in light of all the circumstances known to counsel at the time of the representation. Id. (noting that the performance of trial counsel must be analyzed according to the circumstances of each particular case); see also Strickland v. Washington, 466 U.S. 668, 693, 80 L. Ed. 2d 674, 697 (1984) (holding that \u201can act or omission that is unprofessional in one case may be sound or even brilliant [trial strategy] in another\u201d). On remand of this case, the superior court should take evidence, make findings of fact and conclusions of law, and order review of all files and oral thought patterns of trial counsel and client that are determined to be relevant to defendant\u2019s allegations of ineffective assistance of counsel.\nWe now address defendant\u2019s argument that the trial court erred in ordering defendant\u2019s trial counsel to submit to an ex parte interview. Defendant contends the superior court was without authority to order such an interview. We agree. It was improper for the superior court to order an ex parte interview. However, the superior court may order trial counsel to answer questions to reveal relevant information concerning defendant\u2019s motion for appropriate relief, order that a deposition of trial counsel be taken with both parties present, or order any other formal discovery appropriate to reveal relevant information.\nBased on the foregoing, we affirm the superior court\u2019s order as to its authority to determine the extent of discovery; to order relevant discovery based on the allegations; and to conduct in camera review, if necessary, to resolve any disagreements. However, that part of the superior court\u2019s order requiring that the State\u2019s attorney have the right to interview defendant\u2019s trial counsel ex parte is vacated. On remand of the instant case, the superior court shall take evidence and (1) make appropriate findings of fact and conclusions of law concerning which materials are relevant; (2) order disclosure of all relevant materials; and (3) in addition, order any hearing, deposition, or other formal discovery necessary to reveal trial counsel\u2019s tactical decisions and strategy, including but not limited to their opinions, thoughts, and oral communications, which are relevant to the allegations of ineffectiveness.\nAFFIRMED IN PART, VACATED IN PART, AND REMANDED.\nChief Justice Frye concurs in the result.", "type": "majority", "author": "WAIN WRIGHT, Justice." } ], "attorneys": [ "Michael F Easley, Attorney General, by John H. Watters, Special Deputy Attorney General, for the State.", "E. Fitzgerald Parnell, III, and Joseph E. Zeszotarski, Jr., for defendant-appellant.", "Center for Death Penalty Litigation, by Kenneth J. Rose, on behalf of the North Carolina Academy of Trial Lawyers and the National Association of Criminal Defense Lawyers, amici curiae." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGE CALE BUCKNER\nNo. 444A93-2\n(Filed 7 April 2000)\n1. Evidence\u2014 privileged communications \u2014 attorney-client\u2014 work product \u2014 waiver\u2014allegations of ineffective assistance\nN.C.G.S. \u00a7 15A-1415(e) did not supersede the decision of State v. Taylor, 327 N.C. 147, that a defendant, by alleging ineffective assistance of counsel, waives the benefits of both the attorney-client and work product privileges with respect to matters relevant to his allegations of ineffective assistance.\n2. Discovery\u2014 ineffective assistance allegation \u2014 communications with counsel \u2014 statutory limitation \u2014 relevance\nWhile the phrase in N.C.G.S. \u00a7 15A-1415(e) \u201cto the extent the defendant\u2019s prior counsel reasonably believes such communications are necessary to defend against the allegations of ineffectiveness\u201d is intended as some limitation on the information which the defendant is required to make available, the clear intent and purpose of the statute permit only a limitation of discovery to relevance.\n3. Evidence\u2014 privileged communications \u2014 attorney-client\u2014 work product \u2014 waiver\u2014allegations of ineffective assistance\nDefendant\u2019s broad-based claims of ineffective assistance of counsel which encompass almost every aspect of his capital trial and sentencing proceeding involve each counsel\u2019s thoughts and, therefore, include defendant\u2019s and trial counsel\u2019s notes, documents, paperwork, work product, communications (both oral and written), frame of mind, trial decisions and strategy, along with defendant\u2019s and trial counsel\u2019s responses to one another; by attacking the competency of his trial counsel, defendant waived the attorney-client and work product privileges as to such communications and work product relevant to the allegations of ineffective assistance.\n4. Discovery\u2014 ineffective assistance allegation \u2014 communications with counsel \u2014 work product \u2014 statutory language\u2014 inherent power of court\nWhen enacting N.C.G.S. \u00a7 15A-1415(e), the legislature could not have intended for the phrase \u201cto the extent the defendant\u2019s prior counsel reasonably believes such communications are necessary to defend against the allegations of ineffectiveness\u201d to mean that trial counsel should be the only one to control discovery by determining the extent of discovery or acting as the gatekeeper of discovery, since such an intent would be contrary to the purpose of the statute. Determining the extent of discovery is ultimately for the court to decide pursuant to its inherent power.\n5. Discovery\u2014 post-trial motion \u2014 inherent power of court\nThe superior court has the inherent power to compel disclosure of relevant facts regarding a post-trial motion for appropriate relief.\n6. Discovery\u2014 ineffective assistance allegation \u2014 communications with counsel \u2014 production of documents \u2014 inherent power of court\nBecause the State could have issued a subpeona to compel disclosure by defendant\u2019s trial counsel or the production of documentary evidence relevant to defendant\u2019s allegations of ineffective assistance of counsel, the superior court has the inherent power to order disclosure by defendant\u2019s trial counsel prior to a hearing on defendant\u2019s motion for appropriate relief. The court should determine if ordering disclosure on the merits of a defendant\u2019s motion for appropriate relief will significantly assist in the search for truth; if the court orders disclosure and there is disagreement about whether the order covers certain questionable documents or communications, the court must conduct an in camera review to determine the extent of the order as to those documents or communications.\n7. Discovery\u2014 ineffective assistance allegation \u2014 State\u2019s motion \u2014 duties of court on remand\nOn remand of the State\u2019s motion for discovery in response to defendant\u2019s motion for appropriate relief alleging that trial counsel rendered ineffective assistance at both the guilt and sentencing phases of defendant\u2019s capital trial, the superior court should take evidence, make findings of fact and conclusions of law, and order review of all files and oral thought patterns of trial counsel and client that are determined to be relevant to defendant\u2019s allegations of ineffective assistance.\n8. Discovery\u2014 ex parte interview \u2014 inappropriate order\nIt was improper for the superior court to require defendant\u2019s trial counsel to submit to an ex parte interview by the prosecutor in its order granting the State\u2019s motion for discovery in response to defendant\u2019s motion for appropriate relief alleging ineffective assistance of counsel. However, the superior court could order trial counsel to answer questions to reveal relevant information concerning defendant\u2019s motion for appropriate relief, order that a deposition of trial counsel be taken with both parties present, or order any other formal discovery appropriate to reveal relevant information.\nChief Justice Frye concurs in the result.\nOn writ of certiorari pursuant to N.C.G.S. \u00a7 7A-32(b) to review an order signed 3 November 1998 by Baker, J., in Superior Court, Gaston County, granting the State\u2019s motion for discovery under N.C.G.S. \u00a7 15A-1415(e). Heard in the Supreme Court 14 December 1999.\nMichael F Easley, Attorney General, by John H. Watters, Special Deputy Attorney General, for the State.\nE. Fitzgerald Parnell, III, and Joseph E. Zeszotarski, Jr., for defendant-appellant.\nCenter for Death Penalty Litigation, by Kenneth J. Rose, on behalf of the North Carolina Academy of Trial Lawyers and the National Association of Criminal Defense Lawyers, amici curiae." }, "file_name": "0401-01", "first_page_order": 451, "last_page_order": 463 }