Tuesday, February 21, 2017

Failure To Withdraw Was Ineffective Assistance

The North Carolina Court of Appeals granted ineffective assistance of counsel relief to a defendant convicted of murder in a 2001 shooting outside a nightclub.

Two witnesses (Speller and Wilson) testified that he did it; two others (L. Pugh and D. Pugh) testified that he did not.

One of his attorneys (now disbarred) had previously represented and spoken to one of the two adverse witnesses. Her notes of that conversation indicted that the witness told her that someone else was the likely shooter.

When the matter was raised at trial, the notes were not admitted and the attorney continued to represent the defendant.

It is undisputed that, at the time of defendant’s trial, [attorney] Smallwood possessed evidence tending to show that Speller made a prior inconsistent statement concerning the identity of the shooter. The exculpatory witness claim raised in defendant’s MAR was whether Smallwood’s failure to withdraw and testify as to that alleged prior inconsistent statement constitutes ineffective assistance of counsel. Evidence that Smallwood was privy to a conversation in which Speller identified the shooter as someone other than defendant would have been both relevant and material had it been offered at trial...

If otherwise competent...Smallwood’s testimony would have been admissible and within the purview of the jury to assign weight and credibility thereto.

Thus the "exculpatory witness" contention was not meritless.

As to ineffective assistance

Defendant maintains that he received ineffective assistance of counsel due to Smallwood’s failure to withdraw as counsel and testify as to Speller’s alleged prior inconsistent statement regarding the identity of the shooter. In her role as counsel, Smallwood’s questions on cross-examination could not be considered evidence by the jury. Therefore, defendant argues, when Speller denied the prior inconsistent statement during cross-examination, Smallwood had an actual conflict of interest between continuing as counsel or withdrawing to testify as a necessary witness. Defendant contends that because Smallwood’s actual conflict of interest adversely affected her performance as counsel, he is entitled to relief... 

Guided if not bound by Phillips, we believe Strickland provides an adequate framework to review defendant’s exculpatory witness claim. Despite Smallwood’s prior representation of Speller, the record shows that the purported conversation between Smallwood and Speller “took place from an investigatory standpoint” in preparation for defendant’s trial. Because that conversation was outside the scope of her representation, Smallwood would not have bound by a duty of confidentiality. By the same token, Smallwood was not “effectively silenced” from testifying about the conversation and the information she learned from Speller. As the facts of this case do not “make it impractical to determine whether defendant suffered prejudice,” Phillips, 365 N.C. at 122, 711 S.E.2d at 137, we apply Strickland’s framework to evaluate defendant’s exculpatory witness claim. 

The trial court erred

It cannot seriously be disputed that the identity of the shooter was a material issue in defendant’s murder trial. Smallwood, who possessed evidence of Speller’s prior inconsistent statement regarding the shooter’s identity, was not bound to accept Speller’s answers on cross-examination. Smallwood’s testimony, had it been offered, would have been admissible to impeach Speller by showing that he had previously identified Jordan as the shooter. And contrary to the trial court’s conclusion, we do not believe such exculpatory evidence would have been inconsequential so as to justify Smallwood’s failure to withdraw. 

Smallwood’s testimony would have also been admissible to show Speller’s bias or interest in the trial. Jordan was initially charged with Bennett’s murder and spent two years in jail before he was released. Speller testified that he and Jordan “work[ed] the same job.” After the charges against Jordan were dropped, he sent Speller to the district attorney to offer a statement implicating defendant in the murder...

While the admissibility of Smallwood’s testimony does not in and of itself establish deficient performance, the circumstances surrounding her decision to remain as counsel leads us to that conclusion. Smallwood was the only witness to Speller’s prior inconsistent statement. Her questions to Speller could not be considered as evidence and, after her ineffective cross-examination, she became a necessary witness at trial with a duty to withdraw. See N.C. St. B. Rev. R. Prof. Conduct 3.7(a) (“A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness . . . .”), 2017 Ann. R. N.C. 1242. Her testimony undoubtedly related to a contested issue in the case and tended to discredit one of the State’s two key witnesses. High could have remained as defendant’s counsel and the court could have appointed a second attorney even if it meant declaring a mistrial. By failing to withdraw and testify, Smallwood’s conduct fell below an objective standard of reasonableness and was deficient under Strickland.


The trial court concluded that defendant could not establish prejudice in light of Smallwood’s “effective cross-examination” of Speller, Wilson’s testimony, and the State’s cross-examination of D. Pugh based upon his prior inconsistent statement to law enforcement. We disagree.

If Smallwood had properly withdrawn, she could have testified that Speller, one of only two key witnesses for the State, had previously told her that it was Jordan—not defendant—who shot Bennett. She could have attacked Speller’s credibility through his prior inconsistent statement and evidence of his interest in the trial. Her testimony tended to discredit nearly half the State’s case and, in conjunction with the testimony of L. Pugh and D. Pugh, would have provided an evidentiary advantage to the defense.

Wilson, the only other witness to identity defendant as the shooter, had his own credibility issues. He had testified as a State’s witness in the past and, during defendant’s trial, revealed that he had been convicted of breaking and entering, two counts of second-degree burglary, larceny of a firearm, larceny of a motor vehicle, four counts of driving while license revoked, four counts of driving while impaired, two counts of injury to property, communicating threats, assault with a deadly weapon, and forgery and uttering—all within the last ten years. Judge Grant even remarked at the MAR hearing: “We all know Robert Wilson. . . . And a record like that, right, we know him.”


We conclude that defendant was denied his right to effective assistance of counsel based upon Smallwood’s failure to withdraw and testify as a necessary witness at trial. Because defendant is entitled to relief under Strickland on his exculpatory witness claim, we need not address his remaining arguments to this Court. The trial court’s order denying his MAR is reversed.

Judge Dillon dissented and would find the claims procedurally barred and deficient on the merits

To establish reasonable probability, it was Defendant’s burden at the MAR hearing to show exactly what the substance of Ms. Smallwood’s testimony would have been. Otherwise, it is impossible on review to determine whether Ms. Smallwood’s testimony would have been admissible and what impact it might have had. But as Judge Grant points out in his Order, Defendant did not present Ms. Smallwood as a witness at the MAR hearing. No one else testified at the MAR hearing with any detail as to what Ms. Smallwood would have stated had she been allowed to take the stand. There is no competent evidence in the record to demonstrate that Ms. Smallwood had any independent recollection that the State witness told her that he saw someone other than Defendant kill the victim or whether her “notes” from the alleged conversation would have refreshed her memory. It may be that Ms. Smallwood would have offered admissible, persuasive testimony to impeach the State witness. However, Defendant simply failed to meet his burden of proof to show as much at the MAR hearing.

At the MAR hearing, Defendant did offer a copy of the “notes” which Ms. Smallwood attempted to show the State witness at trial. However, these notes are not admissible to show how Ms. Smallwood might have testified. The notes do not suggest that the State witness told Ms. Smallwood that he saw Demetrius Jordan fire the fatal shot. Rather, the notes suggest, at best, that the State witness told Ms. Smallwood that he did not see who fired the fatal shot, after Demetrius Jordan had fled the scene.

The majority notes that disbarred attorney Smallwood left the area and could not be called as a witness. (MIke Frisch)


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