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North Carolina v. Poole

Filed: March 30, 1982.

STATE OF NORTH CAROLINA
v.
LARRY WAYNE POOLE



Before Rousseau, Judge, at the 23 February 1981 Criminal Session of Superior Court, Guilford County.

Carlton, Justice.

Carlton

I

In light of the contentions presented by defendant on this appeal, an extensive recitation of the evidence is unnecessary. Briefly, evidence for the State tended to show that at approximately 11:20 p.m. on 17 December 1980 defendant and an accomplice accosted Delores Greeson, the manager of the Steak and Ale Restaurant on Teague Street in Greensboro, as she was entering the back door of the restaurant. Defendant and his accomplice were armed. Defendant, with pistol in hand, took Greeson into the main area of the restaurant and, using profane and vulgar language, announced to the approximately thirteen persons, including employees and customers present, that, "This is a

hold-up." Michael Holden, a district manager for Steak and Ale, was able to slip out the front door. He ran to a nearby house and called the police for assistance. Meanwhile, defendant ordered some of the persons in the restaurant to get down on the floor and to give him their money. Defendant's accomplice held a gun on the persons on the floor. Defendant took Greeson to the cash register and told her to open the safe. She gave him money from the cash register. Roger Hamill, a customer in the restaurant, was forced to give up his wallet. Another customer, Clifton Kimball, was robbed of approximately $600. Defendant then ordered all of the occupants of the restaurant into the ladies' rest room and told them that he was going to remove the meat from the freezer and that they should remain in the rest room at least twenty minutes; that if he heard any sound out of them he would "blow [their] brains out."

As a result of Holden's call, four police cars responded and sealed off the ends of the street which ran by the restaurant. Officers Deich and Allen observed a car coming from the front of the restaurant with its lights out and proceeding in their direction on Teague Street. They turned their headlights and blue lights on and the approaching car immediately was put in reverse and began to proceed backwards at a high rate of speed. Officers Deich and Allen pursued and the car was forced to a stop near the Steak and Ale Restaurant. Defendant and his accomplice were ordered out of the car and over $1400 which had been taken from Greeson and Kimball was recovered. Hamill's wallet, containing $222, was also found. A search of the car yielded two guns, one a .32 caliber long weapon and the other a .22 caliber revolver.

Defendant offered no evidence and was found guilty of all three charges of armed robbery. He received the sentences set out above and appeals his convictions to this Court. Other facts necessary to an understanding of this case are set out in the opinion below.

II

Defendant first assigns error to the trial court's alleged failure to resolve the issues raised by defendant's pretrial motion to dismiss his court-appointed counsel, Wendell H. Sawyer. Defendant contends that the trial court's inquiry into the reasons behind defendant's motion was insufficient to allow it to conclude

that Sawyer could provide effective assistance of counsel and that no conflict existed between defendant and Sawyer which would render Sawyer's representation ineffective. In order to answer these arguments, it is necessary summarily to review the colloquy which followed defendant's request that Sawyer be dismissed and that defendant be allowed to hire private counsel or represent himself.

On the morning of 24 February 1981, when the case was called for trial, Sawyer, defendant's trial counsel, informed Judge Rousseau that his client had just told him that he, defendant, wanted another lawyer. Judge Rousseau then began questioning defendant about the reasons for his dissatisfaction with Sawyer. Defendant's reasons were basically three:

(1) that Sawyer was too inexperienced, having practiced law only since the summer;

(2) defendant obtained some money with which he planned to hire private counsel and had talked with a lawyer about representing him; and

(3) defendant and Sawyer had a conflict of interest because Sawyer had indicated that he would withdraw from the case if defendant took the witness stand.

In addition to requesting that his court-appointed counsel be dismissed, defendant made clear that if his motion were granted he would have to be granted a continuance in order to prepare for trial.

Defendant contends that when faced with reasons such as these for requesting dismissal of counsel, the trial judge should conduct extensive inquiry and make findings of fact. The established law, however, is that the trial judge must satisfy himself only that the "present counsel is able to render competent assistance and that the nature or degree of the conflict is not such as to render that assistance ineffective." State v. Thacker, 301 N.C. 348, 353, 271 S.E.2d 252, 256 (1980). "[T]he obligation of the court [is] to inquire into defendant's reasons for wanting to discharge his attorneys and to determine whether those reasons were legally sufficient to require the discharge of counsel." State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981). Once it

becomes apparent that the assistance of counsel has not been rendered ineffective, the trial judge is not required to delve any further into the alleged conflict. The trial court's sole obligation when faced with a request that counsel be withdrawn is to make sufficient inquiry into defendant's reasons to the extent necessary to determine whether defendant will receive effective assistance of counsel.

The inquiry into defendant's reasons for wanting Sawyer dismissed, as set forth by the record, reveals that Judge Rousseau adequately inquired into the reasons for defendant's dissatisfaction and properly concluded that Sawyer could provide effective assistance of counsel. We will review the reasons given by defendant to dismiss Sawyer seriatim and show that none was sufficiently detrimental to the attorney's ability or to the attorney-client relationship to justify dismissal of court-appointed counsel.

Defendant told Judge Rousseau, "Your Honor, my attorney has been practicing law since this summer. We have no defense whatsoever. I don't feel that he is really capable or able to do anything about the charges. I don't think he has had enough experience." Mere inexperience is not sufficient in itself to render the assistance of counsel ineffective. E.g., United States ex rel. Williams v. Twomey, 510 F.2d 634 (7th Cir.), cert. denied, 423 U.S. 876 (1975). As stated in Twomey :

[T]he mere inexperience of trial counsel is not in itself enough to establish want of effective assistance of counsel.

Necessarily, every lawyer must begin his career without experience. His first case is not inevitably so ill-prepared or poorly presented as to justify a finding of his incompetence. Portia without experience was a remarkably successful representative of Antonio. In estimating counsel's performance, the issue is not how much experience he has had, but how well he acted.

Id. at 638-39.

While the record discloses no specific questions from the trial court to defendant's counsel as to the amount of time he had spent in the trial court since receiving his law degree, we think the lengthy colloquy was clearly sufficient to satisfy the trial

court that Sawyer was competent to proceed in defendant's behalf. The very manner in which defense counsel handled this portion of the proceedings along with other pretrial proceedings already handled was sufficient to give the trial court sufficient indication of defense counsel's ability. The trial court was in a position far superior to ours to observe Sawyer's abilities and we are not prone to find an abuse of the trial court's discretion when nothing more than the defendant's naked assertion that his trial counsel was inexperienced is placed before us.

Moreover, a review of the entire record before us discloses that defendant had the benefit of a most able member of our bar. Every witness who testified for the State was thoroughly cross-examined and defense counsel successfully challenged the State's attempt to have different items admitted into evidence. He asked for and received voir dire hearings at every opportunity to challenge the State's evidence and was successful in excluding an eyewitness identification and certain damaging statements made by defendant to an officer. Numerous pretrial and post-trial motions and an articulate plea on defendant's behalf at the sentencing hearing indicate representation by most competent counsel. Indeed, we do not believe defendant could have been more ably represented, especially in light of the overwhelming evidence of guilt against him.

Defendant's second reason for wanting his counsel dismissed was that he had managed to get some money and had spoken with a private attorney about representing him. With regard to this reason, we also find that the trial court's inquiry was more than adequate to ensure that defendant would receive effective assistance. The colloquy discloses that defendant first told the trial court that "I have managed to get some money, and I have been in touch with Mr. Calhoun who told me just now that he would come and talk to me. And I spoke with him yesterday." Later, defendant's statements were such as to lead the trial court to disbelieve any claim that defendant was in a position to retain counsel of his own choosing. At a later point, defendant stated to the court, "I am indigent." Later, defendant stated, "I do want to be represented by counsel, and I am entitled to counsel by the State of North Carolina, as an indigent because I have no money." (Emphasis added.) From the foregoing, the trial court clearly had sufficient information before it to determine that defendant's

assertion that he was able to employ counsel of his own choosing was nothing more than a spurious attempt to have his case continued. We note that defendant continues to be represented by appointed counsel on this appeal.

Defendant also contends that the trial court failed to make sufficient inquiry to determine whether a conflict of interest existed between defendant and his lawyer in that defendant wanted to testify and Mr. Sawyer had told him that he would withdraw from the case if the defendant did testify. This contention is clearly without merit. While Mr. Sawyer did initially state to the trial court that he might have to withdraw for ethical reasons without stating what the ethical reasons were, he subsequently provided Judge Rousseau with a copy of State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976). Robinson involved a dilemma faced by a defense attorney in a situation almost identical to that disclosed by the record before us. In Robinson, the defendant indicated to his trial counsel that he wished to take the witness stand in his own behalf and that he intended to call a witness and ...


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