State v. Wilmoth ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling
legal authority. Citation is disfavored, but may be permitted in accordance with the
provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-1037
NORTH CAROLINA COURT OF APPEALS
Filed: 3 March 2015
STATE OF NORTH CAROLINA
v. Forsyth County
No. 12 CRS 61644
MARY LAKYN WILMOTH
Appeal by defendant from judgment entered 20 December 2013 by
Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in
the Court of Appeals 4 February 2015.
Attorney General Roy Cooper, by Assistant Attorney General
Christina S. Hayes, for the State.
Richard Croutharmel for defendant.
INMAN, Judge.
Defendant Mary Wilmoth appeals the judgment entered after a
jury found her guilty of resisting arrest and disorderly conduct.
On appeal, defendant contends that she received ineffective
assistance of counsel due to her counsel’s conflict of interest.
After careful review, because defendant knowingly,
intelligently, and voluntarily waived her right to conflict-free
counsel, we find no error.
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Factual and Procedural Background
On 12 April 2013, defendant and Jennifer Paz (“Paz”) were
arrested and charged with resisting arrest and disorderly conduct.
Defendant signed a waiver of counsel and was found guilty in
District Court on 12 April 2013. Defendant appealed for a trial
de novo in Superior Court. At arraignment, defendant was granted
court-appointed counsel, and her case was assigned to Assistant
Public Defender James McMinn (“McMinn”). Paz’s case was also
assigned to McMinn. On 12 July 2013, the State filed a motion for
joinder. On 25 July 2013, based on its decision to offer a plea
bargain only to defendant, the State also filed a motion to
disqualify McMinn.
On 29 July 2013, the State’s motions came on for hearing
before Judge Gary Gavenus in Forsyth County Superior Court. With
respect to its motion to disqualify McMinn, the State contended
that the North Carolina Rules of Professional Conduct prohibited
McMinn from representing both Paz and defendant due to an
unwaiveable conflict of interest. McMinn argued that “[t]here
[was] nothing about this case that one of these defendants could
testify in a way that incriminates the other” and that neither
codefendant intended to plead guilty. Thus, he did not believe
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that there was any conflict of interest. Judge Gavenus asked
defendant and Paz the following questions:
THE COURT: Ms. Paz and Ms. Wilmoth, do you
understand that you are entitled to have the
independent judgment of an attorney who is
free of all possible conflicts of interest in
representing you in your cases?
. . .
THE COURT: Do you understand that because your
attorney is jointly representing you that your
attorney may be prevented from opening
possible plea agreements or plea negotiations
on your behalf and from a possible agreement
for one or the other of you to testify for the
prosecution in exchange for either a lesser
charge or a recommendation of leniency or even
a dismissal? . . .
. . .
THE COURT: Do you understand that you and the
co-defendant could possibly occupy opposing
positions in a trial? . . .
. . .
THE COURT: Do you understand that your
attorney’s joint representation may cause, in
the event that there’s a jury trial, the jury
to link you two together in this matter?
. . .
THE COURT: Now, do each of you understand that
if one or the other of you chooses to testify
in your defense, that actually counsel would
be unable to cross-examine?
. . .
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THE COURT: [] You have the right to have an
attorney cross-examine witnesses against you.
That is one of the fundamental rights to a
jury trial. . . .
. . .
25 THE COURT: Do you understand that because
of this potential conflict that your attorney
-- your joint attorney may fail or refrain
from cross-examining a State’s witness,
whether it be one or the other of you or any
other State’s witness, about matters helpful
to you but harmful to the other and that your
attorney may fail to object to the admission
of evidence that might otherwise be
inadmissible to one of you but helpful to the
other and that your attorney may fail or
refrain from objecting to evidence harmful to
you but helpful to the other of you? . . .
. . .
THE COURT: Do you understand that your
attorney may be prohibited from attempting to
shift the blame from one of you to the other
of you because he represents both of you? . .
.
. . .
THE COURT: And do you understand that if you
are convicted, the same attorney represented
you at a sentencing hearing—well, strike that.
Do you understand that if one of you pleads
guilty and thereafter reveals to the State
information damaging to the other of you, that
that could result in a conflict with your
counsel? Do you understand that?
. . .
THE COURT: I cannot give you all of the
possible conflicts of interest that may arise
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throughout this joint representation and the
joint trial of your case but you understand
that there may be other conflicts of interest
that arise in the trial? . . .
Defendant and Paz answered that they understood Judge Gavenus’s
questions. Judge Gavenus went on to ask defendant:
THE COURT: And Ms. Wilmoth, how old are you?
[DEFENDANT]: 20.
THE COURT: What grade of school did you
complete?
[DEFENDANT]: I’m still in college actually.
THE COURT: All right. What year of college are
you in?
[DEFENDANT]: I’m in my second year of college.
Forsyth Tech.
THE COURT: All right. Now, with all of in this
mind, do you have any questions about any of
the things that I have said to you?
[DEFENDANT]: No, Your Honor.
. . .
THE COURT: Ms. Wilmoth, do you of your own
free will, fully understanding what you are
doing, voluntarily waive your right to be
represented by an attorney who is unhindered
by a possible conflict of interest?
[DEFENDANT]: Yes, Your Honor, I do.
. . .
THE COURT: Ms. Wilmoth, with all this in mind,
are you now satisfied to have attorney Mr.
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McMinn represent you and also represent Ms.
Paz –
[DEFENDANT]: Yes, Your Honor.
THE COURT: -- in this case?
[DEFENDANT]: Yes.
Based on this inquiry, the trial court held:
All right. Then let the record reflect that I
have had this conversation with the defendants
in open court with their attorney present,
clearly advising them about numerous conflicts
of interest that could arise both in the plea
negotiations stage as well as the trial stage;
that each of them have indicated that they
freely, voluntarily and understandingly waive
any conflict in this regard and they both
consent to Mr. McMinn representing both of
them in this matter.
The matter came on for trial before Judge Ronald Spivey in
Forsyth County Superior Court on 18 and 19 December 2013. Judge
Spivey stated that he had “some questions about the representation
issue” that he wanted to discuss prior to trial. The State
indicated that it was prepared to offer defendant a deferred
prosecution plea arrangement based on her clean criminal record,
but it would not offer the same arrangement to Paz. After the
State renewed its motion to disqualify McMinn, McMinn argued that
since defendant and Paz had already waived any conflict before
Judge Gavenus, he was prepared to proceed to trial representing
both defendant and Paz. Based on the unpublished case of State v.
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Reese, 2007 WL 4233684 (No. COA06-1098), Judge Spivey indicated
that he was inclined to allow the motion to disqualify as to either
Paz or defendant because there was “at least . . . the potential
of a conflict.” Judge Spivey went on to ask McMinn whether he had
“gained any confidential information” that would prevent him from
representing either of the clients going forward. McMinn replied
that he had not. Judge Spivey allowed McMinn an opportunity to
consult with Paz and defendant to determine “whether he should go
forward representing one of [them] or whether he gained information
that would make it impossible for him to represent one.”
McMinn consulted with defendant and Paz and then expressed
his concern to Judge Spivey that, since neither one had had a
chance to speak to outside, independent counsel, he did not think
he could represent either of them going forward. McMinn also told
Judge Spivey that Paz wanted to waive her right to counsel and
remand to District Court and that defendant wanted to take the
plea of deferred prosecution. Judge Spivey stated that the case
was now in a “different posture” and that “one could go forward
[with representation] in theory.” After reiterating the fact that
he had not received any confidential communications from defendant
or Paz, McMinn stated that he would continue to represent defendant
and that Paz would waive her right to counsel on remand. Judge
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Spivey asked Paz, in open court and in the presence of both McMinn
and defendant, whether McMinn had gained any confidential
information from her that could be used against her at a later
time. Paz replied “no,” and she waived her right to counsel before
agreeing to withdraw her appeal and accept the judgment entered
against her in District Court.
After reading the deferred prosecution agreement, defendant
rejected the plea arrangement and indicated her desire to proceed
to trial. Judge Spivey posed additional questions to defendant
regarding McMinn’s continued representation:
[THE COURT:] Do you now wish to go forward
with Mr. McMinn’s representing your interest
in this case?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you feel like you made this
decision freely and voluntarily?
THE DEFENDANT: Yes.
THE COURT: And I’ll go back and ask then, even
though he doesn’t represent both of you now,
you understand that you’re entitled to have
independent counsel talk to you as free of any
possible conflict of interest?
THE DEFENDANT: Yes.
THE COURT: Do you feel like that Mr. McMinn
has gained any information from you that’s
confidential in nature that could be used
against you in order to benefit the co-
defendant?
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THE DEFENDANT: No.
THE COURT: Do you feel like that he has gained
anything during his representation that’s
adversely affected your position in this case
as of this moment?
THE DEFENDANT: No.
THE COURT: So at this stage, do you freely and
voluntarily wish to go forward with him
representing your interest in this case?
THE DEFENDANT: Yes, Your Honor.
Following the colloquy, Judge Spivey concluded as follows:
THE COURT: All right. Thank you, ma’am. The
Court will find that Ms. Wilmouth is the sole
remaining defendant in this case, has freely
and voluntarily elected to proceed with her
current counsel and feels that there has been
no adverse impact or confidential information
used against her. And, of course, the co-
defendant has waived any such conflict should
any exist.
The matter proceeded to trial with McMinn representing defendant.
At trial, several witnesses testified that they called 911
after they saw defendant and Paz fighting in the center lane of
Stratford Road in Clemmons. Detective Edness M. Gaylor, III
(“Detective Gaylor”) and Detective Mark March (“Detective March”)
with the Forsyth County Sheriff’s Office responded to the calls.
When they arrived, Detective Gaylor testified that defendant and
Paz were walking down the center turn lane. According to Detective
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Gaylor, defendant was extremely hostile toward them. When
defendant began walking away, Detective March told her to stop and
reached out for her elbow. Defendant told Detective Gaylor to
“get the f--- off” of her and continued to walk away. Detective
March grabbed her backpack to detain her, and a struggle ensued.
At trial, defendant testified in her own defense and denied
pushing Paz into the lanes of travel and fighting with Paz.
Instead, defendant claimed that she and Paz were jogging together
when Paz began to slow down. In an effort to motivate her,
defendant began pushing her and yelling at her. Defendant also
testified that she fully cooperated with the police until they put
their hands on her. Furthermore, defendant alleged that, during
the encounter, Detective March called her a “stupid b----,” grabbed
her by the back of her hair, and shoved her to the ground.
When defendant began to testify as to what Paz said to the
police, the trial court sustained the State’s hearsay objection,
and McMinn informed the court that he would not be calling Paz as
a witness.
On 20 December 2013, the jury found defendant guilty of
resisting, obstructing, or delaying a public officer and
disorderly conduct. Judge Spivey sentenced her to 30 days
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imprisonment but suspended her sentence and placed her on 18 months
of supervised probation. Defendant appeals.
Analysis
Our Supreme Court has held:
A defendant in a criminal case has a
constitutional right to effective assistance
of counsel. The right to effective assistance
of counsel includes the right to
representation that is free from conflicts of
interest. In order to establish a violation
of this right, a defendant who raised no
objection at trial must demonstrate that an
actual conflict of interest adversely affected
his lawyer’s performance. Permitting a single
attorney to represent two or more codefendants
in the same trial is not a per se violation of
the right to effective assistance of counsel.
State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d 336, 343 (1996)
(internal quotation marks and citations omitted). Generally, a
defendant raising a claim of ineffective assistance of counsel
must show (1) that counsel’s performance was deficient and (2)
that the deficient performance prejudiced the defendant. State v.
Choudhry, 365 N.C. 215, 219, 717 S.E.2d 348, 352 (2011) (citing
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 692, 693
(1984)). However, here, defendant asserts her ineffective
assistance claim based on her attorney’s actual conflict of
interest arising out of his representation of both defendant and
Paz. See generally State v. James, 111 N.C. App. 785, 789, 433
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S.E.2d 755, 757 (1993) (distinguishing between ineffective
assistance of counsel claims under Strickland and questions of
conflict of interest); see also Cuyler v. Sullivan, 446 U.S. 335,
343, 64 L. Ed. 2d 333, 343 (1980) (synopsis of the distinction).
This Court has noted that “when the claim of ineffective
assistance is based upon an actual, as opposed to a potential,
conflict of interest arising out of an attorney’s multiple
representation, a defendant may not be required to demonstrate
prejudice under Strickland to obtain relief.” Choudhry, 365 N.C.
at 219, 717 S.E.2d at 352. “The exact standard to be applied when
evaluating what relief, if any, should be granted in response to
a conflict of interest claim hinges, to a considerable extent,
upon the exact procedural context in which the conflict of interest
claim has been presented for a reviewing court’s consideration.”
State v. Gray, __ N.C. App. __, __, 736 S.E.2d 837, 841, disc.
review denied, __ N.C. __, 747 S.E.2d 534 (2013). When a defendant
does not object to joint representation where an actual conflict
exists, reversal is not automatic but a defendant must show that
“an actual conflict of interest adversely affected his lawyer’s
performance.” Choudhry, 365 N.C. at 220, 717 S.E.2d at 352.
A criminal defendant’s “Sixth Amendment right to conflict-
free representation can be waived by a defendant, if done
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knowingly, intelligently and voluntarily.” James, 111 N.C. App.
at 791-92, 433 S.E.2d at 759. In order for a waiver to be
effective, the trial court must ensure that “the defendant is fully
advised of the facts underlying the potential conflict and is given
the opportunity to express his or her views.” State v. Ballard,
180 N.C. App. 637, 643, 638 S.E.2d 474, 479 (2006). In determining
whether a defendant has knowingly, intelligently, and voluntarily
waived his right to conflict-free counsel, the Fourth Circuit has
held that:
[t]he court must personally address each
defendant and inform him of the potential
hazards of representation by a single
attorney, as well as his right to separate
representation. In turn, the defendants are
free to ask the court questions about the
nature and consequences of the representation:
Most significantly, the court should seek to
elicit a narrative response from each
defendant that he has been advised of his
right to effective representation, that he
understands the details of his attorney’s
possible conflict of interest and the possible
perils of such a conflict, that he has
discussed the matter with his attorney or if
he wishes with outside counsel, and that he
voluntarily waives his Sixth Amendment
protections.
United States v. Swartz, 975 F.2d 1042, 1049 (4th Cir. 1992)
(quoting Fed. R. Crim. P. 44(c)).
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Defendant’s claim that she received ineffective assistance of
counsel due to McMinn’s conflict arises from two separate periods
of McMinn’s representation. First, defendant claims that McMinn’s
pretrial representation of both defendant and Paz constituted
ineffective assistance of counsel because McMinn was unable to
adequately advise defendant whether to take the plea offer of
deferred prosecution.1 Second, defendant alleges that McMinn’s
continued representation of defendant after Paz waived her right
to counsel and withdrew her appeal to Superior Court was
constitutionally ineffective because McMinn refused to call Paz as
a witness to testify on defendant’s behalf. However, both Judge
Gavenus and Judge Spivey, reviewing the procedural context of the
matter with defendant, conducted an inquiry in which defendant
waived her right to conflict-free representation. Thus, the issue
is whether defendant’s waivers were knowing, intelligent, and
voluntary. James, 111 N.C. App. at 791-92, 433 S.E.2d at 759.
With regard to defendant’s 29 July 2013 pretrial waiver, we
are satisfied that Judge Gavenus fully explained the potential
1
Although defendant claims on appeal that the State’s pretrial plea
offer to defendant included an agreement that she testify against
Paz, we are unable to substantiate this from the record. In
contrast, the State attorney’s representations to the trial court
indicated that the offer of deferred prosecution was based solely
on defendant’s clean criminal record.
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consequences that could arise as a result of McMinn’s joint
representation of defendant and Paz. Specifically, Judge Gavenus
explained the type of representation defendant was entitled to
receive under the Sixth Amendment and the effect any conflict may
have on plea negotiations, examination of witnesses—including Paz,
and sentencing issues. Furthermore, Judge Gavenus inquired as to
defendant’s educational status and gave her a chance to express
her opinions and ask questions. Because the trial court fully
advised defendant of the facts underlying the potential conflict
and gave her the opportunity to express her views, we believe that
defendant’s 29 July waiver was knowing, intelligent, and
voluntary.2 See generally Ballard, 180 N.C. App. at 643, 638
S.E.2d at 479 (holding that when a trial court becomes aware of a
potential conflict of interest, “the trial judge should see that
2
In support of her argument, defendant urges the Court to adopt
the rule set forth in this Court’s unpublished decision of State
v. Reese, 2007 WL 4233684 (No. COA06-1098), which has no
precedential value. See N.C. R. App. P. 30(e) (2013). In Reese,
*4, this Court held that, to constitute a knowing and intelligent
waiver, the defendant must have “had the opportunity to consult
with counsel unburdened by dual loyalty prior to giving their
consent” and individually consult with his attorney to discuss it.
However, in light of the case-specific procedural analysis
required by this Court in Gray, supra, and as evidenced by the
fact-intensive analysis in this case, we believe that determining
whether a waiver is effective cannot be based solely on bright-
line rules of law but, instead, must be based on the facts and
circumstances of each case.
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the defendant is fully advised of the facts underlying the
potential conflict and is given the opportunity to express his or
her views”). Accordingly, defendant waived any potential conflict
of interest at the 29 July hearing.
As to defendant’s 19 December 2013 waiver consenting to
McMinn’s continued representation of her after he withdrew from
representing Paz and Paz waived her right to counsel, withdrew her
appeal, and agreed to accept the District Court’s judgment on
remand, we are also convinced that defendant’s waiver was knowing,
intelligent, and voluntary. Prior to Judge Spivey’s voir dire of
defendant, both McMinn and Paz, in open court and in defendant’s
presence, explicitly denied that Paz had given McMinn any
confidential information during the course of the representation
that could be used against her. When questioned by Judge Spivey,
defendant also stated that McMinn had not gained any confidential
information from her that could be used against her. Our Supreme
Court has repeatedly noted that defense counsel is in the “best
position” to recognize when dual representation constitutes a
conflict of interest. Choudhry, 365 N.C. at 223, 717 S.E.2d at
354. The Choudhry Court went on to say that
while a trial court may not rely solely on
representations of counsel to find that a
defendant understands the nature of a
conflict, the court reasonably may consider
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the statements of counsel when determining
both whether an actual conflict exists and, if
so, whether the defendant is knowingly,
intelligently, and voluntarily waiving his or
her rights to conflict-free representation.
Id. Here, not only did McMinn deny that there was any conflict of
interest, but he also repeatedly stated that he had not received
any confidential communications from either Paz or defendant.
Consequently, there was no need for Judge Spivey to advise
defendant about all the possible limitations of that prior
representation.
In James, 111 N.C. App. at 790, 433 S.E.2d at 758, this Court
examined a potential conflict of interest that arose when the same
attorney represented the defendant and a prosecution witness in
unrelated matters. The Court noted “several avenues of possible
conflict” including:
Confidential communications from either or
both of a revealing nature which might
otherwise prove to be quite helpful in the
preparation of a case might be suppressed.
Extensive cross-examination, particularly of
an impeaching nature, may be held in check.
Duties of loyalty and care might be
compromised if the attorney tries to perform
a balancing act between two adverse interests.
Id. However, unlike in James, the undisputed record in the present
case shows that McMinn did not gain any confidential information
that could be used against Paz or against defendant, whether for
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examination or impeachment purposes, or that would affect his
representation of defendant at trial. Further, the procedural
posture after Paz withdrew her appeal and accepted the District
Court’s judgment assured that McMinn’s representation of defendant
could not possibly affect Paz’s case. McMinn had no reason to
“perform a balancing act,” see id., because Paz and defendant had
already consented to any potential conflict of interest at the 29
July hearing and released McMinn from his duty of loyalty to them
individually. As explained in more detail infra, there is no basis
for defendant’s contention that McMinn’s trial preparation and
strategy was adversely influenced by his former representation of
Paz.
Even assuming arguendo that defendant’s 19 December 2013
waiver was ineffective, she has failed to show that “an actual
conflict of interest adversely affected [her] lawyer’s
performance,” Choudhry, 365 N.C. at 220, 717 S.E.2d at 352.
Defendant contends that McMinn’s failure to call Paz as a witness
evidences not only that an actual conflict existed but also that
this conflict adversely affected McMinn’s representation because
she was “prejudiced by her inability to show the jury that Paz’s
testimony would corroborate her own.” We disagree with defendant’s
contention that the only reasonable explanation for why McMinn
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failed to call Paz as a witness was based on information he
obtained as a result of his prior representation. Again, McMinn,
Paz, and defendant all denied that McMinn was privy to confidential
communications. Moreover, our review of the record leads us to
the conclusion that Paz’s testimony would not have been especially
helpful to defendant’s case nor would it have substantially
discredited the testimony of Detectives March and Gaylor. Given
that Paz had a criminal record and had been convicted based on the
same incident underlying the charges against defendant, it is also
reasonable to believe that McMinn knew that her credibility would
be an issue and, therefore, chose not to call her. Thus, we cannot
say that McMinn’s refusal to call Paz as a witness for the defense
constituted an ineffective trial strategy or had an adverse effect
on defendant.
In Choudhry, the issue of whether an attorney’s multiple
representation constituted a conflict of interest was based on the
attorney’s representation of the defendant and his prior
representation of Michelle Wahome, a State’s witness and the
defendant’s former girlfriend (“Wahome”). Id. at 219, 717 S.E.2d
at 352. At the defendant’s trial, defense counsel refrained from
cross-examining Wahome about her past criminal charges. Id. at
226, 717 S.E.2d at 356. On appeal, the defendant contended that
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the suppressed examination evidenced the adverse effect of the
prior representation on his counsel’s performance and, in the
alternative, that the prior representation prejudiced the
defendant. Id. However, our Supreme Court disagreed, noting that
While cross-examination of Wahome about her
2003 charges could have further undermined her
credibility, it equally well could have opened
the door for redirect examination by the State
relating to any role defendant may have
played. Thus, objectively sound strategic
reasons unrelated to the former representation
appear to have existed for defense counsel to
avoid asking Wahome about her charges. . . .
We see no indication of the adverse effect on
defense counsel’s performance required to win
an automatic reversal under the Sullivan line
of cases. In addition, we fail to find any
prejudice accrued to defendant as a result of
defense counsel’s prior representation of
Wahome.
Id. Here, we believe that “sound strategic reasons,” id.,
unrelated to McMinn’s former representation of Paz, existed to
support McMinn’s decision to not call Paz as a witness. Thus, as
in Choudhry, even if we were to find that defendant’s trial waiver
of conflict-free counsel was ineffective, defendant still would be
unable to show that McMinn’s former representation of Paz had an
adverse effect on his performance at trial.
In sum, based on the thorough voir dire with defendant in
which Judge Gavenus advised her about the potential consequences
of joint representation and gave her the chance to ask questions,
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defendant’s 29 July 2013 waiver was knowing, intelligent, and
voluntary. Furthermore, Judge Spivey’s inquiry of McMinn, Paz,
and defendant on 19 December 2013, in totality, was sufficient to
ensure that defendant’s waiver of conflict-free representation was
knowing, intelligent, and voluntary. Because McMinn had not gained
any confidential communications that could adversely affect
defendant or Paz and because McMinn owed no duty of loyalty to
Paz, defendant is unable to establish that she was denied effective
assistance of counsel at trial due to a conflict of interest.
Finally, even assuming arguendo that defendant’s waiver of
conflict regarding McMinn’s continued representation of her at
trial was ineffective, defendant is unable to meet the burden set
out in Choudhry, 365 N.C. at 219, 717 S.E.2d at 352, of showing
that an actual conflict of interest adversely affected McMinn’s
representation of her.
Conclusion
Based on the foregoing reasons, we conclude that defendant
knowingly, intelligently, and voluntarily waived her right to
conflict-free counsel during the 29 July 2013 pretrial hearing and
during trial.
NO ERROR.
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Judges STEELMAN and DIETZ concur.
Report per Rule 30(e).