STATE of North Carolina
v.
William Wayne McGEE and Michael Cornell Smith.
No. 8221SC649.
Court of Appeals of North Carolina.
February 15, 1983.*798 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.
Powell & Yeager by Harrell Powell, Jr., and David E. Crescenzo, Winston-Salem, for defendant McGee.
Nancy S. Mundorf, Kernersville, for defendant Smith.
ARNOLD, Judge.
Four identical arguments are raised by both defendants. Smith raises four additional contentions. But because of our disposition of this case, we find it necessary only to discuss two arguments.
McGee argues that his attorneys should have been allowed to withdraw after Toms testified that they were involved in the illegal drug operation in this case. He contends that this was a denial of the right to effective assistance of counsel, as guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section 23 of the North Carolina Constitution. The record establishes that if McGee's counsel, Parrish and Tally, had been allowed to withdraw, they would have refuted Toms by testifying.
Withdrawal of an attorney in a criminal case in North Carolina depends upon a showing of good cause. G.S. 15A-144. The decision is in the court's discretion.
Because we find that it was an abuse of discretion by the trial judge to deny the motions to withdraw in this case, both defendants are entitled to a new trial.
McGee's appeal depends on the answer to the following questions: When a witness for the State testifies that the defendant's attorneys were involved in the illegality that is the subject of the trial, is it reversible error for the trial judge to deny the attorneys' motion to withdraw in order to *799 deny the wrongdoing by testifying, given that another attorney was prepared to take over the defense? That is, do these facts show G.S. 15A-144 "good cause" so as to justify withdrawal?
Although research has located no North Carolina cases that squarely address the issue presented here, the Supreme Court in Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303 (1965), addressed the attorney withdrawal issue. "Whether an attorney is justified in withdrawing from a case will depend upon the particular circumstances, and no all-embracing rule can be formularized." 264 N.C. at 211, 141 S.E.2d at 305. See 7 Am.Jur.2d Attorneys at Law § 173 (1980).
Two facts justify our decision to grant McGee a new trial. First, Toms irreparably damaged McGee's defense by accusing his attorneys of unlawful acts. Once the statements were made, McGee's attorneys could only refute them by testimony. The taint of wrongdoing that was attached to McGee's attorneys made any attempt to continue the defense almost futile. Juries normally separate any illegality committed by a defendant from his attorney. But when the attorneys are also linked to the crime by testimony, they become ineffective advocates.
Second, it appears that McGee's counsel was surprised by Toms' testimony. There is a statement by the District Attorney when the motion was being heard that "Your Honor, [it would] be a different matter if these attorneys had not been forewarned what the facts of the case would be before they came in here." But this statement by itself does not show pretrial knowledge. As a result, the case sub judice is distinguishable from State v. Brady, 16 N.C.App. 555, 192 S.E.2d 640 (1972), cert. denied, 282 N.C. 582, 193 S.E.2d 745 (1973), where a motion to withdraw was denied because the attorney knew before trial that he might be a witness.
It is also notable that once Toms implicated McGee's attorneys in the crime, they prepared another attorney to take over the defense. The motion to withdraw was not used as a delay tactic. Whether another attorney is prepared to take over the defense without delay is a factor to be considered in the withdrawal decision. State v. Potts, 42 N.C.App. 357, 256 S.E.2d 497 (1979).
When the motion to withdraw was denied, a motion for a mistrial by either defendant would have been appropriate. G.S. 15A-1061. In fact, perhaps the trial judge should have declared a mistrial ex mero motu. G.S. 15A-1061 and -1063. If granted, such a motion would have saved the time and expense of completing a trial at which the defendants were already substantially and irreparably prejudiced by Toms' testimony. But failure of either defendant to make such a motion will not prevent us from rendering appropriate relief.
We note that there is authority for our grant of a new trial because of refusal to allow an attorney to withdraw. See 81 Am.Jur.2d Witnesses § 98.5 (1976); Annot., 52 A.L.R. 3d 887 (1973); 7 C.J.S. Attorney and Client § 110 (1937).
Because "the roles of an advocate and of a witness are inconsistent," Code of Professional Responsibility, EC 5-9, we find that McGee was denied his constitutional right to the effective assistance of counsel when his attorneys were not allowed to withdraw.
Although refusal to allow McGee's counsel to withdraw may not alone justify granting Smith a new trial, the denial of Smith's motion to sever his trial from McGee's was reversible error.
G.S. 15A-927(c)(2) provides that a severance of defendants is proper when it is "necessary to promote a fair determination of the guilt or innocence ..." of a defendant. Such a ruling is in the trial judge's sound discretion. State v. Lake, 305 N.C. 143, 286 S.E.2d 541 (1982). The ruling will not be disturbed on appeal absent a showing by the defendant of abuse of judicial discretion that effectively deprived him of a fair trial. State v. Porter & Ross, 303 N.C. 680, 281 S.E.2d 377 (1981). Whether the *800 ruling is proper depends on the circumstances of each case. State v. Nelson, 298 N.C. 573, 260 S.E.2d 629 (1979), cert. denied, 446 U.S. 929, 100 S. Ct. 1867, 64 L. Ed. 2d 282 (1980).
The fact that Smith was being tried with McGee made a fair trial impossible, even though they had separate attorneys. Smith was linked to the taint surrounding McGee's attorneys by his presence in the same courtroom at the same table with McGee and his attorneys. This is true even though Toms testified that Smith's counsel was not involved in the crime.
Although the trial judge did instruct the jury that they should consider the verdicts in the two cases separately, the nature of conspiracy requires an agreement by two or more persons. The only person indicted for a criminal conspiracy here was McGee. Given McGee's lack of effective assistance of counsel and Smith's trial at the same time, the severance motion should have been granted.
Both defendants raise entrapment as a possible defense. That doctrine has no application in this case.
Toms testified that McGee first suggested cocaine as a way to make money, mentioned the high rate of return in a short period of time, and brought Smith into the matter. Thus, he was predisposed to commit this crime and no inducement by law enforcement officers to persuade him to commit the crime has been shown.
Smith contends that because McGee was entrapped, Smith should be absolved of any guilt. We know of no such derivative entrapment doctrine and find this argument unpersuasive and feckless.
We hold that both defendants are entitled to new trials for the reasons discussed above. But we do not make a ruling on whether they must be tried separately.
That determination should be made after a pretrial conference at which it should be determined if the State's evidence would prejudice the defendants as it did in the trial that is the basis of this appeal. The severance ruling is in the trial judge's discretion. Lake, 305 N.C. 143, 286 S.E.2d 541.
New trial for both defendants.
HILL and WHICHARD, JJ., concur.