in the Court of Appeals 17 May 2017
by defendant from judgment entered 4 March 2016 by Judge
Gregory R. Hayes in Mecklenburg County Superior Court No.
Attorney General Joshua H. Stein, by Assistant Attorney
General Teresa M. Postell, for the State.
F. Herzog for defendant-appellant.
March 4, 2016, Reuben Timothy Curry ("Defendant")
was sentenced to life in prison after a Mecklenburg County
jury found him guilty of first degree murder. Defendant
alleges the trial court abused its discretion in denying
defense counsel's motion to withdraw. Defendant also
contends his trial counsel provided ineffective assistance on
two separate grounds: (1) counsel failed to articulate
"the specific nature of the problems" between
counsel and Defendant such that the trial court was unable to
determine if an impasse existed; and (2) counsel failed to
take advantage of a third opportunity to cross-examine one of
the State's witnesses. As to each of Defendant's
arguments, we disagree.
& Procedural Background
Steele ("Steele") died from a gunshot wound he
suffered on February 25, 2013. Evidence presented at trial
tended to show that Defendant was a participant in an
ambush-style attempted robbery and ensuing "gun
battle" in which Steele was killed. Defendant was
indicted for first-degree murder and robbery with a dangerous
prior to trial, Defendant provided defense counsel with a
list of three facts he wished to concede: (1) he was at the
scene of the crime; (2) he "had or fired a gun";
and (3) he was part of an attempted robbery. A closed hearing
was held regarding these possible admissions, and counsel
advised the trial court that Defendant's newly discovered
veracity would impact his ability to handle the case and
implicate Harbison concerns. Defense counsel was
concerned that he could no longer be an effective advocate
for Defendant "knowing what I know now."
trial court conducted the following colloquy with Defendant,
in closed proceedings:
THE COURT: Okay. Mr. Curry, would you stand please, sir.
Once again, this conversation is not confidential but
it's confidential in terms of where we are in the
proceeding right now.
The DA is not present. The jury's not present. It's
just me and the court reporter, your attorney, and you, the
sheriff and the clerk and a family member of yours, I
DEFENDANT: Yes, sir.
THE COURT: What your attorney is wanting to make sure you
understand is you don't have to make admissions of any
kind that you were there at the scene of this occurrence,
that you had or fired a gun, or that you were part of what
the jury may believe was an attempted robbery. Those are all
getting real close to admissions --some admissions of guilt
on your part.
DEFENDANT: Yes, sir.
THE COURT: Do you understand that?
DEFENDANT: I'm aware of it.
THE COURT: And that puts your attorney in a very, very
precarious position because, as the trial goes forward, his
job is that you carry all the weight to the end the
presumption of not guilty that's with you right now. You
DEFENDANT: Yes, Your Honor. I'm aware.
THE COURT: Why are you asking him to say things that may tend
to indicate your guilt of this matter?
DEFENDANT: Because the things I asked him to say, they
don't speak to the crime that I'm on trial for. So
I'm really not trying to hide the fact because there were
prior statements made during the investigation of this matter
that the DA received and I -- I had worries about them maybe
introducing those statements and trying to use them as the --
portray me into a liar.
THE COURT: Unless you take the stand, your prior statements
won't ever -- the jury will never hear any statements you
made -- well, I take it back.
They may -- if you were -- are there statements that are
going to come in of [Defendant's] after Miranda?
[DEFENSE COUNSEL]: No, Your Honor.
THE COURT: Okay. And so the only statement --
[DEFENSE COUNSEL]: Well, first there was no Miranda warnings,
but that part of the interrogation, the DA elected not to
proceed with that part. So the part that --
THE COURT: Right. The interrogation that occurred at the law
enforcement center, the DA said he's not going to use
that at this point. The only thing that's going to come
into evidence in terms of what you may have said were those
--I think the statements at the hospital.
THE COURT: Right. Those statements that you may have made at
the hospital to that very first detective that showed up
there. And that was Detective Redfern.
DEFENDANT: Yes, sir.
[DEFENSE COUNSEL]: Correct.
THE COURT: But I don't think Detective Redfern's
statements are going to go as far as you're asking your
attorney to go in getting real close to that edge of making
admissions against your interest. You're asking your
attorney to ride a very fine line, in that, if he says you
were there, if he says you had or fired a gun, and if he says
that you may find that I was part of an attempted robbery,
that's getting right up to the edge of going beyond your
presumption of innocence and giving the jury stuff that you
don't have to give the jury.
Your attorney can -- as he's done during the three or
four days we've already been involved in this has argued
to this jury at every phase that you're innocent until
proven guilty beyond a reasonable doubt. He's never
wavered from that. And you're asking him now to take some
steps that put him in a very difficult position.
It's your case. And as I told you I think when I had the
discussion with you earlier, your wishes control what
THE COURT: You have -- your attorney has to do what you say.
In other words -- you'll get to this point much later in
the trial. If you want to testify, he might advise you not to
but you -- if you want to testify, no one can stop you.
DEFENDANT: Yes, Your Honor.
THE COURT: That's another part of the trial.
There's a theory in the law that says, if there's an
impasse between the two of you on how you should proceed,
that he has to follow your wishes. Now he's worried about
following -- that's why he's brought it to my
attention, outside of the DAs, is that he's worried that
if he follows your wishes, you're putting him in a
position of admitting things to this jury that he doesn't
want to -- I don't think he wants to admit.
Do you, [defense counsel]?
[DEFENSE COUNSEL]: Do not, Your Honor.
THE COURT: I don't think he thinks that's in your
best interest to admit these things.
DEFENDANT: We spoke briefly before you entered and I was
getting his advice on it. So, I mean, I may not necessarily
go through with it but I just would ask him --
THE COURT: Good. I'll give you some more time to talk
with him about it because now that you and I have discussed
it, you may see -- I think that his indication is --how long
have you been a defense attorney, [defense counsel]?
[DEFENSE COUNSEL]: Since 1986.
THE COURT: Okay. And his advice I think -- I'm telling
you his advice is, don't ask him to include these things
in your opening statement. It's against your interest and
it is perilously close to proving some things that the State
really has to prove. Okay?
DEFENDANT: Yes, Your Honor.
THE COURT: So I'm going to give you some more time to
talk to [defense counsel] regarding this and then you may ask
-- and then this will be part of the record but if you choose
after this conversation to have him not include these things
in the opening statement, they won't be ...