IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1113
Filed: 17 October 2017
Mecklenburg County, No. 13CRS207997
STATE OF NORTH CAROLINA,
v.
REUBEN TIMOTHY CURRY, Defendant.
Appeal by defendant from judgment entered 4 March 2016 by Judge Gregory
R. Hayes in Mecklenburg County Superior Court. Heard in the Court of Appeals 17
May 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Teresa M.
Postell, for the State.
Paul F. Herzog for defendant-appellant.
BERGER, Judge.
On 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
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Opinion of the Court
a third opportunity to cross-examine one of the State’s witnesses. As to each of
Defendant’s arguments, we disagree.
Factual & Procedural Background
Ronny 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 weapon.
Just 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.”
The 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.
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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 believe.
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
understand?
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.
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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.
DEFENDANT: Correct.
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
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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
happens.
DEFENDANT: Yes.
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.
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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
included. There will be -- the jury and the DA will never
know about it.
DEFENDANT: Okay.
THE COURT: Okay?
DEFENDANT: Yes, sir.
THE COURT: So go ahead and talk to [defense counsel].
Defendant and the court subsequently discussed this situation, and Defendant
told the court,
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I mean, there's a method to my madness. I mean, I was
thinking I don't want the jury to look at me as -- in a
deceptive manner, like I'm trying to deceive them on
certain parts of the case.
But we discussed this. Like I said, I told him that if he felt
more confident doing it the way that he was -- that he was
initially going to do it, and I was fine with that.
The trial court then specifically asked Defendant about the admissions and his
satisfaction with counsel:
THE COURT: Okay. So now what's your decision
about the issue of whether you were there or the issue of
whether or not you fired a gun?
DEFENDANT: I leave it to him. I let him --
he can go with what he had.
THE COURT: You're not making any specific
request that he include those things in his opening
statement?
DEFENDANT: No, sir, Your Honor.
THE COURT: So you changed your mind regarding
that issue?
DEFENDANT: Yes, sir.
THE COURT: Okay. And I think that's good advice
that you follow -- I think your attorney's advice is that
you not include those things in your opening statement.
And so you're following your attorney's advice?
DEFENDANT: Yes, sir.
THE COURT: Okay. Are you making that decision
of your own free will, fully understanding what you're
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doing?
DEFENDANT: Yes, sir.
THE COURT: Do you have any questions of me
regarding that decision?
DEFENDANT: None, Your Honor. No, sir, Your
Honor.
THE COURT: Are you satisfied with your
attorney's services to this point in urging that you allow
him to make the opening statement that he wants to make
and not include these elements that you wanted?
DEFENDANT: Yes, sir.
THE COURT: Are you satisfied with his services?
DEFENDANT: Yes, sir.
....
THE COURT: Okay. So he's going to make his
opening the way he thinks it ought to be made in your
behalf and not include those things -- one, two, and
three -- that we discussed. He's not going to make those
things.
DEFENDANT: Yes, sir.
THE COURT: And you're okay with that?
DEFENDANT: Yes, Your Honor.
Defense counsel again expressed to the court that the three new facts provided
“five minutes before opening statement” and subsequent out-of-hand dismissal of
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those facts by Defendant created concerns about counsel’s ability to zealously
represent Defendant.
At trial, defense counsel gave an opening statement in which he told the jury,
among other things, that Defendant “is not guilty of attempted armed robbery,” that
the evidence will “show that [Defendant] did not attempt to rob anyone,” and that the
“evidence will show that it was not a robbery or an attempted armed robbery.” These
statements were contrary to the facts Defendant disclosed to counsel.
Defense counsel, at the direction of the trial court and the North Carolina State
Bar, filed a Motion to Withdraw As Counsel during the trial. Counsel’s motion to
withdraw specifically alleged the following:
(1) Defendant wanted counsel to raise the three factual issues discussed
above. Counsel addressed these issues with the trial court, and the court
advised Defendant he should follow counsel’s advice and not include the
information in opening.
(2) Defendant and defense counsel continued to discuss the request, and
Defendant agreed to withdraw one of his requests.
(3) When they returned to the courtroom, “[c]ounsel expressed to the [c]ourt
that counsel was conflicted by what he had just learned by reading
Defendant’s request to be told to the jury in the Opening Statement.”
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(4) After additional discussion with the trial court, Defendant agreed that
counsel could conduct opening without Defendant’s three requested
facts.
(5) Counsel and Defendant discussed how the proposed facts “caused a
conflict in counsel’s trial strategy and created a conflict concerning
counsel[’s] duties pursuant to the Rules of Professional Conduct.”
(6) At that point, “discussions with Defendant[] and the statements made
by Defendant only tended to exacerbate the conflicts.”
(7) Defense counsel then believed that, based upon the seriousness of the
charge and the Rules of Professional Conduct, that he needed to contact
the North Carolina State Bar “to seek guidance and advice.”
(8) Counsel was unable to reach the appropriate person with the Bar, and
provided relevant information to the court. The trial court agreed that
the issue “merited a discussion with Ethics Counsel at the North
Carolina State Bar.”
(9) Counsel spoke with Ms. Nichole P. McLaughlin, Assistant Ethics
Counsel with the North Carolina State Bar, about the following: “the
nature of the charge”; “the length of time counsel has represented the
[D]efendant”; “where we were in the trial proceedings”; Defendant’s
request and subsequent discussions; and “how counsel perceived the
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information impacted the opening statement, ability to conduct effective
cross examination and execute the previously prepared trial strategy
going forward.” (Emphasis added).
(10) Ms. McLaughlin advised counsel to review Rules of Professional
Conduct 1.1,1 1.3,2 1.7,3 and 1.16,4 reminded counsel of the
confidentiality requirements of Rule 1.6,5 and to seek the trial court’s
permission to withdraw because he had “a personal conflict.”
(11) Counsel reviewed the Rules of Professional Conduct and stated:
a. “There is a conflict to counsel [sic] adherence to Rule 1.3, Diligence
to the client, and Rule 3.3 Candor towards the tribunal.”
b. “There is a conflict to counsel [sic] adherence to Rule 1.6,
Confidentiality of information and Rule 3.3, Candor towards the
tribunal.”
c. “There is conflict pursuant to Rule 1.3, Diligence, that counsel has
reservation concerning the ability to zealous [sic] advocate on
client’s behalf.”
1 Rule 1.1 Competence
2 Rule 1.3 Diligence
3 Rule 1.7 Conflict of Interest: Current Clients
4 Rule 1.16 Declining or Terminating Representation
5 Rule 1.6 Confidentiality of Information
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d. Counsel’s duty of candor to the trial court pursuant to Rule 3.3 “has
resulted and will continue to result in such an extreme
deterioration of the client-counsel relationship that counsel can no
longer competently represent the client pursuant to Rule 3.3,
Comment (16).”
(12) Counsel was concerned that his adherence to Rule 3.3 as it relates to the
cross examination of one witness may have negatively impacted
Defendant.
Defense counsel informed the court that the attorney-client relationship had been
destroyed because “counsel does not know what to believe.” Defense counsel and the
court then had the following discussion:
[DEFENSE COUNSEL]: I try and present my defense
strategy based on what the evidence shows till the client
tells me what happened. Then that does, I guess, some --
impose some requirement that counsel marshal the
defense that client requests. But it goes back in this case
of whether or not I can believe what he's told me. And my
conclusion at this point is that I cannot believe anything
that he's told me with regard to the mere material issues
at point in this case because they've changed over time.
THE COURT: And that's the vacillation that I'm
talking about. If he has changed what he's telling his
attorney, he can't benefit from that at this stage of this
trial. You'll just have to do -- do the professional job
that I know that you can do to represent him.
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The trial court denied defense counsel’s motion to withdraw. The jury
convicted Defendant of first-degree murder on the theories of felony murder and lying
in wait, and Defendant was sentenced to life in prison without parole. The State did
not proceed on the robbery with a dangerous weapon charge. Defendant gave notice
of appeal in open court.
Analysis
Defendant contends the trial court erred in denying counsel’s motion to
withdraw, and alleged defense counsel provided ineffective assistance by (1) failing
to articulate that an impasse existed, and (2) failing to take advantage of an
additional opportunity to cross examine one of the State’s witnesses. As to each of
Defendant’s contentions, we disagree.
I. Motion to Withdraw
A motion to withdraw as counsel may be granted upon “good cause” shown.
N.C. Gen. Stat. § 15A-144 (2015). “Whether an attorney can withdraw as counsel is
a matter in the sound discretion of the trial judge.” State v. Moore, 103 N.C. App. 87,
100, 404 S.E.2d 695, 702 (citation omitted), disc. rev. denied, 330 N.C. 122, 409 S.E.2d
607 (1991). “Appellate courts will not second-guess a trial court's exercise of its
discretion absent evidence of abuse.” State v. Smith, 241 N.C. App. 619, 625, 773
S.E.2d 114, 118-19 (citation and quotation marks omitted), disc. review denied, 368
N.C. 355, 776 S.E.2d 857 (2015). “Abuse of discretion results where the court’s ruling
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is manifestly unsupported by reason or is so arbitrary that it could not have been the
result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523,
527 (1988) (citation omitted).
Defense counsel set forth several purported reasons to justify his withdrawal;
however, all stemmed from what the State Bar called a “personal conflict.” The
content of the motion and the arguments of counsel to the court demonstrate that the
“personal conflict” was directly related to his inability to believe what Defendant told
him. As the State Bar confirmed, defense counsel did not have an actual conflict, and
there is no evidence he breached the rules of professional conduct. Counsel had
represented Defendant for nearly three years, and had presumably expended
significant time and resources preparing for trial. In addition, there was no
disagreement about trial strategy, nor was there an identifiable conflict of interest.
The trial court was correct to advise defense counsel that he would “just have to do - -
do the professional job that I know that you can do to represent him.” It cannot be
said that the trial court’s denial of the motion to withdraw was arbitrary or manifestly
unsupported by reason.
Moreover, Defendant is required to show prejudicial error resulted from the
denial of the motion to withdraw. State v. Thomas, 350 N.C. 315, 328, 514 S.E.2d
486, 495 (“In order to establish prejudicial error arising from the trial court's denial
of a motion to withdraw, a defendant must show that he received ineffective
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assistance of counsel.” (citation omitted)), cert. denied, 528 U.S. 1006, 145 L. Ed. 2d
388 (1999). As more fully discussed below, Defendant has failed to establish a
reasonable probability of a different result in this case.
II. Ineffective Assistance of Counsel
Ineffective assistance of counsel (“IAC”) claims are typically “considered
through a motion for appropriate relief filed in the trial court and not on direct
appeal.” State v. Mills, 205 N.C. App. 577, 586, 696 S.E.2d 742, 748 (2010) (citing
State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001)). See also State
v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985) (“The accepted practice
is to raise claims of ineffective assistance of counsel in post-conviction proceedings,
rather than direct appeal.” (citation omitted)). “However, a defendant's ineffective
assistance of counsel claim brought on direct review will be decided on the merits
when the cold record reveals that no further investigation is required . . . .” Mills,
205 N.C. App. at 586, 696 S.E.2d at 748 (citation and quotation marks omitted). No
further investigation is necessary in this matter as there is ample evidence in the
record to decide Defendant’s two IAC claims.
Under the Sixth and Fourteenth Amendments of the United States
Constitution and Article 1, Sections 19 and 23 of the North Carolina Constitution,
“[a] defendant’s right to counsel includes the right to effective assistance of counsel.”
State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985) (citation omitted).
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In Braswell, our Supreme Court “expressly adopt[ed] the test set out in Strickland v.
Washington[, 466 U.S. 668, 80 L. Ed. 2d 674 (1984),] as a uniform standard to be
applied to measure ineffective assistance of counsel under the North Carolina
Constitution.” Braswell, 312 N.C. at 562-63, 324 S.E.2d at 248.
On appeal, a defendant must show that counsel’s conduct “fell below an
objective standard of reasonableness” to prevail. Strickland, 466 U.S. at 688, 80 L.
Ed. 2d at 693. To meet this burden, the defendant must satisfy a two part test:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.
Id. at 687, 80 L. Ed. 2d at 693. Furthermore, a defendant alleging that counsel failed
to carry out his duties with the proficiency required by the Sixth Amendment must
identify the specific acts or omissions of counsel that were not the result of
“reasonable professional judgment.” Id. at 690, 80 L. Ed. 2d at 674.
A. Purported Impasse
Defendant asserts that his counsel was ineffective by “failing to articulate for
the record the specific nature of the problems between himself and the defendant
leading to an impasse.” We disagree.
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It is well established in our courts that “[t]actical decisions, such as which
witnesses to call, whether and how to conduct cross-examinations, what jurors to
accept or strike, and what trial motions to make are ultimately the province of the
lawyer.” State v. Ward, ___ N.C. App. ___, ___, 792 S.E.2d 579, 582 (2016) (citations
and quotation marks omitted), disc. rev. denied, ___ N.C. ___, 795 S.E.2d 371 (2017).
“However, when counsel and a fully informed criminal defendant . . . reach an
absolute impasse as to such tactical decisions [during trial], the client’s wishes must
control . . . .” Id. (citation omitted). However, no actual impasse exists where there
is no conflict between a defendant and counsel. State v. Wilkinson, 344 N.C. 198, 211-
12, 474 S.E.2d 375, 382 (1996). Moreover, when a defendant fails to complain about
trial counsel’s tactics and actions, there is no actual impasse. State v. McCarver, 341
N.C. 364, 385, 462 S.E.2d 25, 36 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482
(1996). In the case at hand, there was neither disagreement regarding tactical
decisions, nor was there anything in the record which would suggest any conflict
between defendant and defense counsel. Thus, no impasse existed.
Defendant’s arguments on this issue go solely to issues surrounding counsel
having “no confidence in anything his client told him, and that he did not know what
to believe when it came to [Defendant’s] statements about the events of February 25,
2013.” Defendant makes no argument rooted in law that an impasse existed, besides
using conclusory terms. In addition, Defendant points to no authority which would
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require a finding of an impasse where defense counsel did not believe what a criminal-
defendant client told him.
Throughout the trial, defense counsel informed the court and Defendant of the
nature of the concerns or disagreements the two had, but counsel specifically followed
Defendant’s wishes and desires concerning representation. Defense counsel gave the
opening statement that he and Defendant agreed upon, despite counsel’s knowledge
that what he was relaying to the jury was inconsistent with the Defendant’s newly
discovered veracity. If Defendant was “fine with that,” as he informed the court, no
impasse existed. This is true regardless of defense counsel’s personal conflict, ethical
quandary, or Defendant’s perceived malleability of the truth.
Defendant was the sole cause of any purported conflict that developed, and
there has been no reasonable or legitimate assertion by Defendant that an impasse
existed that would require a finding that counsel was professionally deficient in this
case. Because Defendant, of his own free will, was in agreement with counsel as to
the actions to be taken at trial, Defendant’s contention that his counsel was
ineffective is without merit, and this IAC claim is denied.
B. Failure to Cross-Examine Witness
Defendant also alleges trial counsel provided ineffective assistance when he
did not cross-examine witness Tarod Ratlif for a third time to inquire about his
“recollection concerning who actually shot the victim.” Defendant asserts that
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additional questioning “would have supported his theory” that Brandon Thompson
(“Thompson”) killed Ronny Steele. Defendant concedes that no additional
investigation is needed, and this issue can be decided on the merits.
Ratlif testified on direct examination that a group that included Defendant and
a group that included Thompson exchanged gunfire on the evening Steele was killed.
Q. Okay. Can you tell me -- could you tell from
where the gunshots were coming?
A. Yes.
Q. And from where did you hear gunshots coming?
A. From both sides of me, from the left and the
right.
Q. So you can hear them coming from your left side
and your right side?
A. Yes, sir.
Q. And do you know exactly how many gunshots you
heard?
A. No, sir. Not today.
Ratlif testified that after the shooting, Steele informed him he was hit, but Ratlif did
not believe Steele.
In discussions with the trial court and Defendant regarding Ratlif’s testimony,
defense counsel stated, “Recalling Mr. Ratlif -- think I went about as far with Mr.
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Ratlif as I could do based upon what I knew . . . .” The trial court, regarding counsel’s
questioning of Ratlif, stated:
But I thought that in your cross-examination of Mr. Ratlif
and [another witness] that you set forth the theory that
this, A, may not have been a robbery at all; and B, once
somebody other than [Defendant] may have shot Mr. Steele
in this gun battle. And I think you argued that this was a
gun battle in your opening remarks. Nobody on the stand
so far has pointed a finger at [Defendant] as the
perpetrator of any crime.
That prompted the following exchange between the trial court and Defendant:
DEFENDANT: I just want to state that I am concerned
with his confidence of going forward as far as with the --
you know, his ability to be a fully effective, but I am -- I am
-- I have been satisfied with his service so far and I feel like
I wouldn't rather any different attorney be my attorney
unless, you know, he is at the point to where he can't be
fully effective going forward.
THE COURT: He's a professional. He can -- [defense
counsel] has said under my questioning, he's protecting
your rights. He's not divulging matters that -- client
confidentiality matters. He's not divulging them. He's
done, I thought, a fine job of setting forth your theory of the
case so far that someone else shot Mr. Steele or maybe shot
in a gun battle. That Mr. Ratlif or [another witness] has
pointed a finger at you.
And I thought [defense counsel] did a good job of cross-
examination pointing out conflicts in their testimony and
their statements to the police in their prior testimony and
prior matters involving the death of Mr. Steele. I know
there have been prior trials where Mr. Ratlif and [another
witness] testified. And I thought [defense counsel] pointed
out some good conflicts. You know what I mean by that?
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DEFENDANT: Yes, sir.
THE COURT: Some statements they made earlier that
were different from the statements they were making in
this trial.
Did you think [defense counsel] did a good job of that?
DEFENDANT: Yes, sir.
THE COURT: Okay. So as we go forward, he's going to --
he's going to keep me advised if you -- if we reach a stage
where you want a particular thing to happen with your
case and you don't think [defense counsel] understands it
or is going to do it, as long as it's a lawful request and you're
-- and you're not asking him to violate the law or
perpetuate a fraud upon the [c]ourt and as long as any
request that you make of [defense counsel] can be
supported by a good faith argument for an extension
modification or reversal of existing law, then he will comply
with your wishes as the trial progresses in defending your
case the way that you want to defend it. Okay?
DEFENDANT: Yes, sir.
THE COURT: And at this point, you are satisfied with
[defense counsel’s] representation of you in this trial?
DEFENDANT: Yes, Your Honor. I've been satisfied with
[defense counsel].
Defense counsel in his motion to withdraw did state that he was concerned that
his failure to ask additional questions regarding Thompson’s actions may have
precluded jury instructions consistent with State v. Bonner, 330 N.C. 536, 411 S.E.2d
598 (1992), and State v. Oxendine, 187 N.C. 658, 122 S.E. 568 (1924). Defendant
acknowledges and the transcript reveals, however, that the trial court gave
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instructions consistent with Bonner and Oxendine. In addition, defense counsel
argued in closing:
And we know Brandon Thompson had a gun. But you
haven't seen Brandon Thompson come into this courtroom.
We know Brandon Thompson was shooting because Tarod
Ratlif said he was shooting, but you haven't seen Brandon
Thompson come into this courtroom and testify to you
under oath that he did not have a gun. And if he had a gun,
why didn't he give it to the police? He hasn't come in.
Ratlif testified that he heard gunfire coming from the direction of Defendant
and Thompson. He also testified that Thompson had a gun and did not deny that
Thompson had shot the gun. Counsel’s questioning allowed him to argue to the jury
that someone other than Defendant shot Steele. As the trial court noted, defense
counsel “set forth the theory that this . . . may not have been a robbery at all; and . . .
somebody other than [Defendant] may have shot Mr. Steele in this gun battle.”
In fact, Defendant concedes in his brief that the jury considered whether
Thompson shot Steele. During deliberations, the jury submitted the following
question to the trial court: “If [Thompson] shot and killed [Steele,] how would that
apply to element [two]?” While the prosecutor provided language that he believed
addressed the jury’s question, it was Defendant who requested the following
instruction be given: “The killing of Ronny Steele must be the act of the [D]efendant
or by someone with -- with whom the [D]efendant was acting in concert.”
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STATE V. CURRY
Opinion of the Court
The trial court addressed several items with the jury, and then discussed the
question regarding Thompson:
THE COURT: The next is actually a question. The next
thing says, "If [Thompson] shot and killed [Steele], how
would that apply to element two?"
In response to that question, this is the response from the
Court:
The killing of Ronny Eugene Steele must be by an act of
the Defendant, Reuben Timothy Curry, or by an act of
someone with whom the [D]efendant was acting in concert
with.
Does that answer that question?
[JUROR]: Yes, sir.
The jury was properly instructed that Defendant could only be convicted if he,
or “someone with whom the [D]efendant was acting in concert with” killed Steele.
The jury deliberated on and considered whether Thompson shot Steele based on the
question they submitted.
Even if we assume that Defendant satisfied the first Strickland prong for both
issues, which he has not, Defendant cannot satisfy the second prong as there is no
showing of prejudice. There was sufficient evidence before the trial court that
Defendant, or those acting in concert with Defendant, shot and killed Steele.
Defendant was at the crime scene. Defendant was convicted because he was a
participant in an attempted robbery and ensuing “gun battle” during which Steele
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STATE V. CURRY
Opinion of the Court
was fatally shot, even if he may not have fired the fatal bullet. There is no reasonable
probability of a different result in this case. Based upon the abundant evidence in
the record, Defendant’s IAC claims are denied.
Conclusion
Upon consideration of the record herein and the arguments of counsel, we
conclude the trial court did not abuse its discretion in denying defense counsel’s
motion to withdraw, and Defendant’s IAC claims are denied.
NO ERROR IN PART; DENIED IN PART.
Judge DILLON concurs.
Judge ZACHARY concurs in result only.
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