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State v. Gary

July 09, 1998


The opinion of the court was delivered by: Parker, Justice.

On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review judgment imposing a sentence of life imprisonment entered by Albright, J., at the 3 October 1994 Criminal Session of Superior Court, Guilford County, upon a jury verdict of guilty of first-degree murder in a non-capital trial. Heard in the Supreme Court 27 May 1998.

Defendant Willie Lee Gary, Jr. was indicted on 13 December 1993 for the first-degree murder of Carolyn Hammonds ("victim") on 26 October 1993. At the non-capital trial defendant was found guilty as charged and sentenced to life imprisonment. For the reasons discussed herein, we conclude that defendant's trial was free from prejudicial error.

The State presented evidence at trial tending to show that defendant and the victim had been seeing each other socially and that the victim was trying to break up with defendant because he had become physically abusive toward her. In May of 1993 defendant had assaulted the victim by throwing a hammer at her and threatening to harm her or kill her if she broke up with him or called the police. On 27 October 1993 the victim's father found the victim dead in her home in Greensboro, North Carolina. She was found lying on her back on the bed in her blood-spattered bedroom, wearing only socks. She had a large amount of blood on her head and face. She died as a result of blows to her head with a blunt object which, according to an expert medical examiner, was either a hammer or hammer-shaped object. Almost any of the several blows she suffered would have led to her death.

Detective David Spagnola of the Greensboro Police Department talked to the victim's parents, who lived three doors away and had seen defendant's truck go by the victim's house several times the night of the murder, 26 October 1993. The victim's next-door neighbor saw defendant's truck parked on the street outside the victim's house on the evening of 26 October 1993. Detective Spagnola obtained defendant's address and telephone number, drove to defendant's house, and called him from his car telephone. Detective Spagnola told defendant that he needed to speak with him and that he would send a police officer to pick him up if he would come out on the front porch. The detective then saw defendant go out the back door of the house toward a storage shed. Detective Spagnola approached defendant, identified himself, and told defendant to sit down on the ground. An officer then arrived and arrested defendant on some outstanding warrants.

Michael DeGuglielmo, an expert in forensic analysis and DNA testing, compared the bloodstains found on pants owned by defendant to the victim's blood. He found the blood on defendant's pants to be consistent with the victim's blood to a statistical certainty of one in 1.4 billion.

Defendant presented no evidence.

Defendant first contends that the trial court erred and violated both his federal and state constitutional rights by denying his motions for new counsel. Defendant was granted a pretrial hearing on his pro se motion alleging ineffective assistance of counsel. Judge Peter McHugh denied the motion and made the following findings of fact and conclusions of law: that there was no showing of ineffective assistance of counsel, that the standards of practice of defendant's trial counsel were in all regards according to the standards of legal practice in North Carolina, and that defendant failed to show good cause for an order from the court substituting counsel of record.

Defendant renewed his objections at trial; and, in the absence of the jury, the trial court entertained a lengthy and disjointed argument from defendant. The essence of defendant's contention was that his counsel's representation was ineffective in that counsel had decided not to subpoena certain witnesses whom defendant claimed would have provided alibi testimony. The trial Judge denied defendant's motion for substitute counsel and entered the following findings of fact:

6. Basically, a conflict of wills has developed between the defendant and his court-appointed lawyer with regard to trial tactics and strategies;

10. Indeed, the so-called witnesses that the defendant desires to subpoena are witnesses known to [defense counsel] and do not surprise him in the least. He is aware of what these witnesses will testify to, if called. He has made a strategic legal decision that these witnesses should not be called for [the] reason that in his professional opinion they will do more harm than good to the defendant's cause[.]

Based on these findings of fact, the trial court concluded as a matter of law:

10. A mere disagreement between the defendant and his court-appointed counsel as to trial tactics is not sufficient to require the trial court to replace court-appointed counsel with another attorney. Trial counsel, whether court appointed or privately employed, is not the mere lackey or "mouthpiece" of his client. Indeed, he is in charge of and has the responsibility for the conduct of the trial, including the selection of witnesses to be called to the stand on behalf of his client and the interrogation of them. He is an officer of the Court and owes duties to it as well as to his client;

11. The existence here of a conflict of wills between the defendant and his court-appointed counsel with regard to trial strategy and tactics and the call of witnesses do[es] not require this Court to replace present counsel with another attorney under the totality of the circumstances. Indeed, the defendant's dissatisfaction with his court-appointed counsel appeared to the trial court to have been completely unjustified;

12. Such conflict of will, as described by the defendant in vague, general and overbroad terms does not rise to the level of a fundamental conflict involving the defendant's basic rights;

13. In the present case, this defendant has not shown ineffective assistance of counsel at trial or any impediment to the presentation of his defense caused by counsel's exercise of professional judgment. There is no substantial reason shown for the appointment of a replacement counsel[.]

Defendant now concedes that if this were a mere disagreement over trial tactics, defendant would not be entitled to new counsel. State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980). Defendant asserts, however, that this is a more substantial issue than a disagreement over trial tactics. Defendant contends that because his counsel did not issue process for or call his alibi witnesses to testify, defendant was denied his basic rights under both the Sixth Amendment to the United States Constitution, which affords criminal defendants the right "to have compulsory process for obtaining witnesses in his favor," and Article I, Section 23 of the North Carolina Constitution, which guarantees a criminal defendant the right to "confront the accusers and witnesses with other testimony." We disagree with defendant's contentions.

After a review of the transcript and record, we conclude that the trial court properly denied defendant's motion for substitute counsel and that this denial does not impinge upon defendant's constitutional rights. As we have previously stated, "the type of defense to present and the number of witnesses to call is a matter of trial tactics, and the responsibility for these decisions rests ultimately with defense counsel." State v. McDowell, 329 N.C. 363, 384, 407 S.E.2d 200, 211 (1991). A disagreement between the defendant and his court-appointed counsel over trial tactics is not sufficient to require the trial court to replace court-appointed counsel with another attorney. State v. Robinson, 290 N.C. 56, 66, 224 S.E.2d 174, 179-80 (1976). In order to be granted substitute counsel, "the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust verdict." State v. Sweezy, 291 N.C. 366, 372, 230 S.E.2d 524, 528-29 (1976). Substitution of counsel rests in the sound discretion of the trial court. Robinson, 290 N.C. at 66, 224 S.E.2d at ...

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