State v. Holliday

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-852

Filed 18 July 2023

Mecklenburg County, No. 20 CRS 100389

STATE OF NORTH CAROLINA

v.

DARVIN MAX HOLLIDAY

Appeal by defendant from judgment entered 6 May 2022 by Judge Jacqueline

D. Grant in Mecklenburg County Superior Court. Heard in the Court of Appeals 25

April 2023.

Attorney General Joshua H. Stein, by Assistant Attorney General Matthew

Baptiste Holloway, for the State.

Ryan Legal Services, PLLC, by John E. Ryan, III, for defendant-appellant.

ZACHARY, Judge.

Defendant Darvin Max Holliday appeals from a judgment entered upon a jury’s

verdict finding him guilty of trafficking in fentanyl by possession. On appeal,

Defendant argues that the trial court erred by failing to instruct defense counsel to

call an out-of-state witness where Defendant and his attorney had reached an

“absolute impasse” regarding the issue. After careful review, we conclude that

Defendant received a fair trial, free from error.

Background

At approximately 4:00 a.m. on 6 December 2020, Officer Ian Casey of the

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Cornelius Police Department observed Defendant and Allie Meadows parked at the

Microtel Hotel in Cornelius, North Carolina. As Defendant and Meadows exited the

car and walked toward the hotel, Officer Casey approached and asked whether the

car in the hotel parking lot belonged to them. Defendant stated that he owned the

vehicle, but after determining that the vehicle’s license plate did not match its

registration, Officer Casey detained the couple. While talking with Defendant and

checking his identification, Officer Casey observed a red tube in the driver’s side door

compartment, which Defendant claimed contained “nothing[.]” Officer Casey asked

to search the vehicle and Defendant consented, providing Officer Casey with the keys

to the locked car.

During the vehicle search, Officer Casey discovered three small packages

inside of the red tube, which he suspected contained illegal drugs. Officer Casey

arrested Defendant but permitted Meadows to leave in the car. The packages were

later determined to contain various illicit substances, including methamphetamine

and fentanyl.

On 3 May 2022, this matter came on for trial in Mecklenburg County Superior

Court.1 Just prior to jury selection, Defendant asked to address the court regarding

his dissatisfaction with his appointed counsel:

1 Defendant initially faced multiple charges arising from the events of 6 December 2020. On

the morning of trial, however, the State announced its decision to dismiss three of Defendant’s pending

charges and to proceed solely on the superseding indictment in 20 CRS 100389, charging Defendant

with trafficking in fentanyl by possession of more than four but less than 14 grams.

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[DEFENDANT]: I think that I might have been a little bit

misrepresented here because I didn’t know that you could

subpoena the girl that was with me[, Meadows,] that it was

her heroin, and I didn’t know, so she’s not here today.

THE COURT: Okay. All right. And is that -- are you

wanting her to testify?

[DEFENDANT]: Well, she should be here because it was

hers. It was in my vehicle, but it was her heroin. And she

was with me that night, but they let her drive off. She

didn’t have her drivers license or nothing, but they let her

drive off in [the] vehicle, which my plates were on the

vehicle, but it wasn’t my vehicle.

The trial court then asked to hear from defense counsel, Michael Kolb. Mr.

Kolb acknowledged that, at some point during the case’s pendency, he and Defendant

had discussed “[w]hether or not it would be a good idea to subpoena” Meadows, but

Mr. Kolb determined that she “would not be a good witness” for Defendant. According

to Mr. Kolb, the issue was not broached again until trial, when Defendant informed

Mr. Kolb “that he wished for [Meadows] to be . . . subpoenaed on it, though that was

not [Mr. Kolb’s] understanding that he was insisting on it.” Mr. Kolb further

explained: “[F]or reasons of trial strategy, I have not done that, but [Defendant] does

not agree with that today.”

Defendant explained that Meadows told him that she was willing to testify that

the drugs were hers, but that he had not spoken with her in a month and was not

sure that she would answer his call. Defendant was also unsure that Meadows would

voluntarily travel from her home in West Virginia to testify in court in Charlotte

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“because she did get in some trouble for some heroin again.” In addition, Defendant

conceded that the last time he was in court, at the 28 March 2022 calendar call, he

had not discussed with Mr. Kolb the issue of whether Meadows would testify.

The State noted that Defendant had also neglected to raise, at any time prior

to trial, Defendant’s apparent dissatisfaction with counsel, or Mr. Kolb’s failure to

subpoena Meadows.

The trial court informed Defendant that Mr. Kolb did not have the power to

subpoena a witness from outside the state. The court then attempted to clarify

Defendant’s desired remedy, inquiring whether he sought to replace Mr. Kolb as his

attorney:

THE COURT: And understanding that you just spoke with

your attorney, and if you need to speak with him further

about the willingness to reach out to [Meadows] to see if

she’s voluntarily willing to come down, are you then

comfortable proceeding with Mr. Kolb as your attorney? I

can’t tell exactly what you’re asking me because it’s sort of

one of these, here’s what I wanted him to do, but he hasn’t

done.

[DEFENDANT]: Right.

THE COURT: But it may be a little bit of

misunderstanding of what his powers were to begin with,

and so that’s why I’m trying to get -- seek clarification of

exactly what you’re asking me.

....

THE COURT: . . . I was trying to figure out when you were

talking about -- you started off by saying this female that

you wanted to be called as a witness and you were -- you

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had wanted her to be subpoenaed and she wasn’t and that’s

why I just wanted to make you aware because it sounds

like that’s what you were upset about.

MR. KOLB: And, Your Honor, she can be voluntarily asked

to be here, but again, we still have the problem of I don’t

really want her, but he does.

THE COURT: Correct. And that I will let y’all discuss

privately, but understanding that we can’t compel her to

come here --

[DEFENDANT]: I do understand that. Yes, I do.

THE COURT: -- is that are you comfortable then allowing

Mr. Kolb to continue representing you? You guys can

discuss whether or not it’s a good idea to ask her to come

down here since she has those other charges against her,

and your attorney can explain to you how one’s credibility

if they take the witness stand can be impeached. And so

are you okay with Mr. Kolb -- are you still wanting Mr. Kolb

to represent you in this matter? And then you guys can

discuss, you know, whether or not you want to reach out to

her to see if she would voluntarily come or not.

[DEFENDANT]: No, ma’am, I would exactly maybe like to

get a hold of another attorney or, you know, I’ve got a friend

that would probably represent me . . . I would rather, you

know, get another attorney to represent me because he has

misrepresented me, you know, I think that he has.

(Emphases added).

The trial court again asked whether Defendant was moving to substitute

counsel, and Mr. Kolb explained the extent to which Defendant had mentioned his

desire to retain new counsel:

THE COURT: Okay. And so are you seeking to retain your

own counsel?

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[DEFENDANT]: Yes, ma’am.

....

MR. KOLB: Just to let you know, while he has not been --

Mr. Holliday has always been extremely polite to me and

everyone he’s been around, there’s not any bad blood up

here at all. He has told me a few times that he has spoken

-- when I say a few times, this week and earlier, that he has

spoken to other attorneys about his case, which I prefer he

not, because that throws --

THE COURT: Correct.

MR. KOLB: -- off some other things. But he hasn’t hired

them, but I will tell you he has not shown up today with --

first time I’ve ever heard that he might be hiring somebody

and that is only really come up since the previous calendar

call, which April --

[DEFENDANT]: Yes, sir.

MR. KOLB: Early April, whatever the last calendar call

was, that’s when he first brought it up. He hasn’t hired

anybody. He did talk about that he might do that, he’s

thinking about it, so I will let the Court know while he

hasn’t hired anyone, I’ve not ever heard from anyone. It

was brought up before today but only at that last time.

(Emphases added).

In opposing Defendant’s motion, the State expressed concerns that Defendant

had “not gone the extra step to hire his own counsel,” and argued that “coming in on

the day of trial to ask for new counsel and argue about trial strategy amount[ed] to

nothing more than a delay tactic[.]” The trial court requested that Defendant provide

the contact information of the attorneys with whom he had communicated concerning

representation. After speaking with those attorneys, the court confirmed Defendant’s

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basis for seeking to substitute counsel:

THE COURT: . . . [W]hat you’ve indicated or what I’ve

heard from you about why you were seeking to replace Mr.

Kolb and substitute in and retain counsel was really a

difference -- a disagreement about trial strategy, this one

particular witness that you wanted -- you wanted her to be

called as a witness, and Mr. Kolb does not believe that is a

good idea.

[DEFENDANT]: Yes, ma’am.

THE COURT: I did not hear any other reason for which you

were seeking to substitute counsel for Mr. Kolb. It sounds

like he’s communicated with you, you’ve discussed your

case, may not necessarily agree over complete trial

strategy, but he’s communicated with you, you’ve been here

for your --

[DEFENDANT]: Oh, yeah, he’s been a great lawyer, but,

like I said, we just -- I just disagreed with a couple things

myself. It wasn’t that he was a bad attorney. It was just --

I just thought I was misled, you know, because of the court

--

The trial court then denied Defendant’s “motion to substitute counsel”:

THE COURT: . . . [Y]ou haven’t actually retained them,

and so the Court is concerned that to just allow this -- this

case has been pending for over two years, that that would

just [obstruct] and delay justice in this case for the

proceedings going forward.

So the Court is going to -- unless Mr. Kolb has any

additional arguments he wishes to make, the Court is going

to deny . . . [D]efendant’s motion to substitute counsel. And

the Court finds that in this case that Mr. Kolb is an

experienced attorney, he appears to be competent, and the

dissatisfaction in this case by [Defendant] was really over

trial tactics and specifically calling a -- one witness who

resides in West Virginia as a witness in this case. And that

being the nature of the disagreement, the Court does not

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find that nature, a disagreement over trial tactics, renders

Mr. Kolb to be incompetent or ineffective to represent . . .

[D]efendant. Likewise, . . . [D]efendant has had several

months since this case has first been placed on the trial

calendar to retain private counsel, including and most

recently, the March 28, 2022, trial calendar date where . . .

[D]efendant has had an opportunity to retain private

counsel and that while there may have been some phone

calls to different attorneys, no attorney was specifically

retained and had been paid whatever they would require

as a retainer fee to represent [Defendant].

So based on all of that, the Court finds that there is no legal

basis or reason to replace Mr. Kolb, and for those reasons,

the Court is denying [Defendant]’s motion or what will be

treated as a motion to substitute counsel.

The trial proceeded as scheduled, and on 6 May 2022, the jury returned its

verdict finding Defendant guilty of trafficking in fentanyl by possession. The trial

court entered judgment upon the jury’s verdict, sentencing Defendant to an active

term of 70 to 93 months in the custody of the North Carolina Division of Adult

Correction. Defendant gave oral notice of appeal in open court.

Discussion

On appeal, Defendant argues that “the trial court erred by failing to instruct

[Mr.] Kolb to call Meadows as a witness when it was clear that [Mr.] Kolb and

[Defendant] had reached an absolute impasse.” Specifically, Defendant asserts that

the trial court’s failure “to either appoint substitute counsel or to instruct trial

counsel on the impasse between the client and his attorney violated the constitution.”

We disagree.

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A criminal defendant’s right to counsel is enshrined in the Sixth Amendment

to the United States Constitution. U.S. Const. amend. VI; State v. Ali, 329 N.C. 394,

403, 407 S.E.2d 183, 189 (1991).

Of course, the Sixth Amendment’s protections notwithstanding, “[n]o person

can be compelled to take the advice of his attorney.” Ali, 329 N.C. at 403, 407 S.E.2d

at 189 (emphasis added) (citation and internal quotation marks omitted). Indeed,

“[t]he attorney-client relationship rests on principles of agency, and not guardian and

ward.” Id. (citation omitted).

At trial, “tactical decisions—such as which witnesses to call, which motions to

make, and how to conduct cross-examination—normally lie within the attorney’s

province.” State v. Brown, 339 N.C. 426, 434, 451 S.E.2d 181, 187 (1994), cert. denied,

516 U.S. 825, 133 L. Ed. 2d 46 (1995). “However, when counsel and a fully informed

criminal defendant client reach an absolute impasse as to such tactical decisions, the

client’s wishes must control . . . .” Ali, 329 N.C. at 404, 407 S.E.2d at 189. This is the

“absolute impasse” rule.

In Ali, our Supreme Court instructed that “[i]n such situations, . . . defense

counsel should make a record of the circumstances, her advice to the defendant, the

reasons for the advice, the defendant’s decision and the conclusion reached.” Id.

Where the trial court is aware that the defendant and counsel have reached an

absolute impasse on a tactical matter, it is reversible error for the court to allow the

attorney’s decision to prevail over the defendant’s wishes. State v. Freeman, 202 N.C.

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App. 740, 746, 690 S.E.2d 17, 22 (2010), disc. review improvidently allowed, 365 N.C.

4, 705 S.E.2d 734 (2011) (per curiam); see id. at 746–47, 690 S.E.2d at 22 (“The denial

of [the] defendant’s Ali right to make tactical decisions regarding the use of

peremptory challenges is analogous to the erroneous denial of a peremptory

challenge. The right to challenge a given number of jurors without showing cause is

one of the most important of the rights secured to the accused . . . . Defendant is

entitled to a new trial.” (citation and internal quotation marks omitted)).

Significantly, however, not all tactical disagreements between a defendant and

his or her attorney rise to the level of “absolute impasse.” First and foremost, a

defendant cannot compel his attorney to violate the law. See Ali, 329 N.C. at 403, 407

S.E.2d at 189 (providing that an “attorney is bound to comply with her client’s lawful

instructions” (emphasis added)); State v. Williams, 191 N.C. App. 96, 105, 662 S.E.2d

397, 403 (2008) (concluding that defense counsel “could not have lawfully complied

with [the d]efendant’s requests” where he “essentially concede[d] racially

discriminatory intent in his recommendations . . . regarding the exercise of

peremptory challenges”), appeal dismissed and disc. review denied, ___ N.C. ___, 684

S.E.2d 158 (2009).

And “[n]othing in Ali or our Sixth Amendment jurisprudence requires an

attorney to comply with a client’s request to assert frivolous or unsupported claims.

In fact, to do so would be a violation of an attorney’s professional ethics[.]” State v.

Jones, 220 N.C. App. 392, 395, 725 S.E.2d 415, 417, disc. review denied, 366 N.C. 389,

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732 S.E.2d 474 (2012).

Furthermore, no actual impasse exists, and Ali does not apply, when the record

fails to disclose any disagreement between the defendant and counsel with respect to

trial tactics. See, e.g., State v. McCarver, 341 N.C. 364, 385, 462 S.E.2d 25, 36 (1995)

(“[W]e find no indication in the record of ‘an absolute impasse’ between the client and

the defense team as it concerned trial tactics. At no time did [the] defendant voice

any complaints to the trial court as to the tactics of his defense team.”), cert. denied,

517 U.S. 1110, 134 L. Ed. 2d 482 (1996); Williams, 191 N.C. App. at 104, 662 S.E.2d

at 402 (“[E]ven though the foregoing evidence undoubtedly demonstrates an absolute

impasse between [the d]efendant and defense counsel as concerned the necessity . . .

that [the d]efendant stand trial at all, the evidence does not demonstrate an impasse

as it concerned trial tactics.” (citation and internal quotation marks omitted)).

In the instant case, Defendant asserts that the trial court erred by failing to

instruct Mr. Kolb to subpoena Meadows where Defendant and Mr. Kolb had reached

an “absolute impasse” regarding whether to call Meadows to testify. According to

Defendant, Mr. Kolb’s “unwillingness” to do so, as evinced by Mr. Kolb’s decision not

to “timely move[ ] the court for a certificate and order of attendance” for Meadows,

together with the trial court’s “failure to properly instruct” Mr. Kolb, “deprive[d

Defendant] of his right to control his own defense.” We disagree.

Preliminarily, we note that the parties agree that Mr. Kolb did not have the

authority to subpoena Meadows, an out-of-state witness. It is also evident that while,

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in theory, Meadows’s presence may have been secured pursuant to the Uniform Act

to Secure Attendance of Witnesses from Without a State in Criminal Proceedings

(“the Act”), N.C. Gen. Stat. § 15A-811 et seq. (2021), the trial court was not obligated

to instruct Mr. Kolb to commence proceedings pursuant to the Act, particularly given

the untimeliness of Defendant’s complaint. See State v. Cyrus, 60 N.C. App. 774, 776,

300 S.E.2d 58, 59 (1983) (reasoning that while “the officers and the court have a duty

to see that [a] defendant has an opportunity for securing material witnesses” under

the Act, “[t]hey are placed under no burden to demand that [the defendant] do so”).

Here, the record reflects that although Defendant and Mr. Kolb had previously

discussed whether to call Meadows as a witness, Mr. Kolb did not understand that

Defendant was insisting on Meadows’s presence until the first day of trial, when

Defendant raised the issue prior to voir dire. By that point, Defendant’s case had been

pending for over two years. We therefore conclude that Defendant failed to timely

notify the trial court—as well as the State and his own attorney—that he wished to

seek to compel Meadows’s attendance at trial via the procedures set forth by the Act.

See id. (“It is . . . true that the right to compulsory process is a fundamental right and

that neither our statute nor the Constitution prescribes time limits within which to

exercise that right. It is equally true, however, that rights can be waived.”).

Moreover, contrary to Defendant’s argument on appeal, Mr. Kolb’s failure to

“timely move[ ] the court for a certificate and order of attendance” does not

demonstrate the existence of an absolute impasse between Defendant and counsel.

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Rather, Defendant merely presents a disagreement with his appointed attorney over

trial tactics, one that counsel believed had been resolved well before trial.

As Mr. Kolb explained to the trial court, he had previously determined that

Meadows “would not be a good witness for” Defendant’s case, due to “reasons of trial

strategy”—including the fact that Meadows “would be subject to impeachment on

cross-examination.” Nonetheless, upon learning of Defendant’s concerns, Mr. Kolb

agreed to discuss the matter further with Defendant, despite the attorney’s

misgivings as to whether Meadows’s appearance would be in Defendant’s best

interest. This does not indicate a deadlock. Cf. Williams, 191 N.C. App. at 103, 662

S.E.2d at 402 (“[The d]efendant certainly disagreed with defense counsel’s advice

regarding the jury selection, but specific disagreement did not rise to the level of an

absolute impasse because [he] ultimately deferred the decision to defense counsel.”).

And although Defendant argues that “[d]iametric opposition like that depicted

in the record between Mr. Kolb and [Defendant] cannot be construed as anything but

an absolute impasse[,]” he ultimately “makes no argument rooted in law that an

impasse existed, besides using conclusory terms.” State v. Curry, 256 N.C. App. 86,

98, 805 S.E.2d 552, 559 (2017).

Consequently, Defendant has failed to demonstrate the existence of an

absolute impasse. We therefore conclude that the trial court did not err by failing to

instruct Mr. Kolb to call Meadows as a witness.

Finally, we briefly respond to these arguments in the context of Defendant’s

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motion to substitute counsel. As Defendant acknowledges on appeal, in arguing

before the trial court, he “was unable to clearly vocalize the true issue,” which he now

articulates as the “absolute impasse” issue of which we have already disposed.

However, at trial, Defendant characterized the relief he sought as substitution of

counsel, stating that “I would exactly maybe like to get a hold of another attorney or,

you know, I’ve got a friend that would probably represent me . . . I would rather, you

know, get another attorney to represent me because [Mr. Kolb] has misrepresented

me[.]” Regardless of its characterization, Defendant’s argument lacks merit.

A “trial court is constitutionally required to appoint substitute counsel

whenever representation by counsel originally appointed would amount to denial of

[the] defendant’s right to effective assistance of counsel, that is, when the initial

appointment has not afforded [the] defendant his constitutional right to counsel.”

State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980). “[A] disagreement

over trial tactics generally does not render the assistance of the original counsel

ineffective.” Id.; see also State v. Gary, 348 N.C. 510, 514, 501 S.E.2d 57, 61 (1998)

(concluding that the trial court properly denied the defendant’s motion to substitute

counsel where the defendant’s claim of ineffective assistance of counsel arose out of

his attorney’s decision “not to subpoena certain witnesses whom [the] defendant

claimed would have provided alibi testimony”).

Here, after explaining that Meadows could not be subpoenaed, the trial court

repeatedly sought clarification from Defendant that substitute counsel was the

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remedy he desired. Defendant responded affirmatively in each instance. Defendant

then provided the trial court with contact information for several attorneys from

whom he had purportedly sought representation; but after the first attorney failed to

immediately recognize Defendant and declined to represent him, the trial court

determined that it would not “delay this trial again” and denied Defendant’s motion

to substitute counsel. Defendant did not revisit the issue of Meadows’s attendance,

but rather proceeded to trial with Mr. Kolb as his attorney.

To the extent that Defendant now challenges the trial court’s denial of his

motion to substitute counsel, he offers no distinct reason or supporting argument in

his brief, beyond those we have already addressed and soundly rejected. Accordingly,

this issue is abandoned. See N.C.R. App. P. 28(b)(6); see also, e.g., State v. Ambriz,

286 N.C. App. 273, 292, 880 S.E.2d 449, 466 (2022) (declining to address the

defendant’s bald contention that certain of the trial court’s findings were “incomplete,

unsupported, or incorrect[,]” and concluding that because he “made no substantive

argument regarding th[o]se findings, he . . . waived any challenge” on appeal).

Conclusion

For the foregoing reasons, we conclude that Defendant received a fair trial, free

from error.

NO ERROR.

Judges GORE and GRIFFIN concur.

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