Appeal by defendant from Strickland, J., 1 June 1981 Session Stokes County Superior Court.
By his first assignment of error, defendant contends that he was denied effective assistance of counsel by the failure of his appointed attorney to investigate and raise an insanity defense. We find no merit in this assignment.
The right to counsel is guaranteed by the sixth amendment to the United States Constitution and made applicable to the states by the fourteenth amendment, and by Article I, Sections 19 and 23 of the North Carolina Constitution. This constitutional right to counsel has long been recognized as an entitlement to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759 (1970); Powell v. Alabama, 287 U.S. 45 (1932); State v. Speller, 230 N.C. 345, 53 S.E.2d 294 (1949); and State v. Sneed, 284 N.C. 606, 201 S.E.2d 867 (1974).
The test of effective assistance of counsel recently adopted by this court is that used by the U.S. Supreme Court to evaluate
advice given a criminal defendant in McMann v. Richardson, supra; State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981); State v. Milano, 297 N.C. 485, 256 S.E.2d 154 (1979). Under the McMann test the determination to be made is whether the assistance given was "within the range of competence demanded of attorneys in criminal cases." 397 U.S. at 771.
The record in the case sub judice shows that defendant's appointed counsel successfully sought to have his client screened by the Forsyth-Stokes Mental Health Center in order to determine whether further psychiatric evaluation at Dorothea Dix Hospital in Raleigh would be necessary. A lengthy report from the Forsyth-Stokes facility noted that defendant did have a history of psychiatric treatment but found that he was competent to stand trial. No determination of defendant's responsibility at the time of the alleged crimes was possible because defendant claimed amnesia.
Defendant asserts that on the basis of this evaluation, defense counsel should have further investigated the possibility of an insanity defense and sought the assistance of psychiatric experts. We disagree.
Relief is rarely granted by the courts on the ground asserted by defendant and a stringent standard of proof that effective assistance of counsel was denied has been consistently required. State v. Sneed, supra.
We cannot conclude that defendant was denied effective assistance of counsel absent some evidence of defendant's insanity or a showing that with the exercise of due diligence an insanity defense could have been developed. State v. Misenheimer, supra. The test of insanity as a defense to a criminal prosecution in this jurisdiction is whether defendant, at the time of the alleged act, was laboring under such a defect of reason, from disease or deficiency of mind, as to be incapable of knowing the nature and quality of his act, or if he does know this, was by reason of such a defect of reason incapable of distinguishing between right and wrong in relation to such act. State v. Jones, 293 N.C. 413, 425, 238 S.E.2d 482 (1977).
The record in the case at bar does not present such evidence of insanity that we can conclude that defense counsel's failure to
present an insanity defense resulted from neglect or ignorance rather than from informed professional deliberation. Marzullo v. Maryland, 561 F.2d 540 (4th Cir. 1977), cert. denied, 435 U.S. 1011 (1978).
The report from the Forsyth-Stokes Mental Health Center stated that there was no evidence of a thought disorder. The state's evidence showed that defendant was coherent at the time of his arrest in the early morning after the burnings. Defendant, by his own statement, gave a reason for his actions, which while not acceptable to excuse his conduct, clearly shows that he had a motive and that his actions were deliberate.
"Well, these people down here in this community have been wanting to get rid of me for a long time, so I thought I'd give them a reason. (T p 108)
Further, defendant's psychiatric history revealed abuse of alcohol and drugs and numerous criminal acts. It is completely plausible and within the range of competence required that defense counsel chose not to assert an insanity defense as a trial tactic to keep defendant's long and unsavory record from the jury.
As was noted in State v. Milano, supra, and State v. Sneed, supra, an ineffective assistance of counsel claim more appropriately should be raised in a post-conviction hearing where evidence can be presented to determine why counsel chose to proceed as he did. We will not try to second guess counsel on this issue. Suffice to say, the record before us does not establish that ...