Heard in the Court of Appeals May 6, 2015
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Cleveland County, Nos. 11 CRS 53759-66.
Attorney General Roy Cooper, by Special Deputy Attorney General Charles G. Whitehead, for the State.
Tin Fulton Walker & Owen, PLLC, by Noell P. Tin, for Defendant.
STEPHENS, Judge. Judges STEELMAN and MCCULLOUGH concur.
Appeal by Defendant from judgments entered 21 May 2014 by Judge Hugh B. Lewis
in Cleveland County Superior Court.
This appeal concerns the proper procedure a trial court should follow when appointed counsel for an indigent criminal defendant moves during trial for mandatory withdrawal of his representation pursuant to Rule 1.16(a) of the North Carolina Rules of Professional Conduct. We hold that a trial court does not abuse its discretion in permitting withdrawal where appointed counsel cites Comment 3 to Rule 1.16 as grounds for withdrawal and that the court is not required to appoint substitute counsel in such circumstances.
Factual and Procedural Background
Defendant Artie Stevenson Smith, Jr., was indicted on eight counts of offering bribes pursuant to N.C. Gen. Stat. § 14-218 (2013). Those charges arose from Smith's operation of " sweepstakes" or video poker gambling machines in various locations. The evidence at trial tended to show the following:
Lieutenant Bryan Gordon of the Cleveland County Sheriff's Department met Smith in early 2011 while inspecting sweepstakes machines Smith was operating. On 22 March 2011, Gordon was called to a meeting between Smith and Gordon's captain at the sheriff's station. Gordon was asked to escort Smith out of the station. Smith returned to the sheriff's station the following day and met with Gordon again. On 29 March 2011, Smith called Gordon to request a " voluntary video poker inspection" at South Post Grill the next day. Gordon asked Sergeant Rodney Fitch to accompany him on the inspection, but had no intention of conducting any type of " sting" or undercover operation into bribery. Gordon described the inspection as a " waste of time" because the sweepstakes machines were all unplugged, turned to face the walls, and lacked any software installations. The next meeting between Gordon and Smith took place on 31 March 2011, by which time Gordon had come to believe that Smith was trying to manipulate or trick him. As a result of this intuition, Gordon recorded the meeting, at which Smith sought informant status in exchange for being able to continue to operate his sweepstakes machines. Gordon and Fitch told Smith such an exchange would be illegal and felt convinced that Smith was attempting to bribe them. After Gordon consulted his superiors and the FBI about Smith's behavior, an undercover investigation was initiated with Fitch taking a lead role. Fitch and Smith met multiple times from April to August 2011, with Smith ultimately giving Fitch money totaling almost $15,000.00 during more than a half dozen " money drops." Law enforcement officers recorded all but one of the money drops on video with audio. Smith was subsequently indicted on eight counts of bribery.
On 9 November 2012, Defendant was found indigent and attorney Robert E. Campbell was appointed to represent him. The matter came on for trial at the 12 May 2014 session of Cleveland County Superior Court. Smith's theory of the case was that he had been entrapped by Fitch. On 12 May, when Campbell informed the trial court that Smith planned to admit that he had paid money to Fitch, the trial court discussed the possible consequences of admitting to this element of bribery. Smith confirmed that he understood the risk and affirmed that it was his sole decision to rely on an entrapment defense. Campbell forecast Smith's entrapment theory during his opening argument.
At trial, the money drop videos were admitted and published to the jury without objection. Among other witnesses for the State, Gordon and Fitch testified in detail about their interactions with Smith. On the afternoon of Friday, 16 May 2014, the State closed its case-in-chief, and Campbell moved to dismiss all charges against Smith. The trial court denied that motion and recessed for the weekend. Campbell informed the court that he and Smith would use the weekend to decide whether to present a case for the defense.
When court resumed on Monday morning, 19 May 2014, the following exchange occurred:
THE COURT: Mr. Campbell?
MR. CAMPBELL: Yes, sir.
THE COURT: Based on your email, I assume that you still have a motion before this Court?
MR. CAMPBELL: That's correct. I gave the copy to the clerk. I think she has placed it up on your bench. That would be my motion to withdraw pursuant to Rule 1.16 (a) that withdrawal is mandatory as professional considerations require. I think that's required by comment number 3 in Rule 1.16. And I would ask the [c]ourt for permission to withdraw.
My client has indicated that he would be prepared to call one witness. And then he would ask to be able to resume tomorrow with the rest of his case.
THE COURT: Is he going to have retained counsel by then or is he going to represent himself?
MR. CAMPBELL: I would let him speak to that, if that's appropriate.
MR. SMITH: I'm going to make an attempt to retain counsel, Your Honor. If I am unable to, I will represent myself.
THE COURT: If you will have a seat. Let me hear from the [S]tate's table relating to the motion to withdraw at this point.
[THE STATE]: Thank you, Your Honor. I would ask the [c]ourt to deny the motion. I don't think that Mr. Campbell's motion and what it alleges gives the Court enough to make findings on this issue. And I understand it's a delicate issue but I do have case law from the 11th Circuit that says simply stating ethical considerations is not enough for the [c]ourt to make findings. And indeed, we are five days into a jury trial. And this is not a criticism of Mr. Campbell. I understand he's in a difficult position. But I don't think this is enough to give the [c]ourt reason to grant a motion to withdraw at this point.
If the [c]ourt -- you know, there are issues of what to do next with counsel. There are cases that say the [c]ourt cannot make a defendant choose between the right to testify and the right to counsel. So I think I would like to pass up some case law for the [c]ourt before the [c]ourt makes its decision, if indeed the [c]ourt would like to look at that case law.
I think there are other options here. Not knowing exactly what the reasons are, there are reasons to believe it has to do with testimony. If there are issues with testimony, I think there are solutions to that such as a narrative testimony without direct examination.
I would ask the [c]ourt to consider having a -- I would ask the [c]ourt to consider removing everyone from the courtroom except for the judge, Your Honor, the court reporter, the defendant and his attorney to question about the issues related to potential testimony, the right to an attorney. And specifically I'd ask the [c]ourt to look at Rule 3.3 of the North Carolina Professional Rules of Conduct and comment 9.
I think comment 9 is very important as it relates to this potential problem and what Mr. Campbell's duty is as it relates to the testimony, potential testimony, of the defendant in this case and whether or not he can put him up and what ...