State v. Hutchins

Justice EXUM

dissenting.

All the evidence presented on the question demonstrates to me that the relationship between defendant and his court-appointed counsel had so deteriorated that counsel was unable to provide defendant the effective assistance which the Sixth Amendment requires. I must, therefore, respectively dissent from the majority’s position on this issue and, for this reason, I cannot join in the majority’s conclusion that no error was committed in this proceeding leading to imposition of the death penalty upon the defendant.

In State v. Thacker, 301 N.C. 348 , 271 S.E. 2d 252 (1980), the principal issue was whether defendant had “the constitutional right to have substitute counsel appointed to represent him.” The Court, after a thorough, well researched discussion of the problem in an opinion by Justice Carlton, properly on the record before it viewed the situation as a mere dispute between defendant and counsel over trial tactics because of which defendant complained that he had difficulty communicating with his counsel. Significantly, in Thacker counsel never alluded to any communication problem. Thacker , however, recognized the principle that the appointment of substitute counsel is required when “the nature of the conflict between defendant and counsel is . . . such as would render counsel incompetent or ineffective to represent that defendant” or when “the relationship between [defendant and counsel has] deteriorated to such an extent that the presentation of his defense would be prejudiced.” 301 N.C. at 352, 353 , 271 S.E. 2d at 255 . (Emphasis original.) Concluding that there was no such break down in the relationship in Thacker , this Court found no error in the denial of defendant’s motion for substitute counsel.

The principle that when the lawyer-client relationship has so deteriorated that effective representation is no longer possible *359 substitute counsel must be appointed was also recognized in State v. Gray, 292 N.C. 270 , 233 S.E. 2d 905 (1977) and State v. Sweezy, 291 N.C. 366 , 230 S.E. 2d 524 (1976). The principle was not applied in Gray , however, because “[wjhether defendant may have been peeved with his attorney for personal reasons, the court had no reason to doubt that attorney’s effectiveness and capability as an advocate or to suspect the relationship between defendant and his counsel to have deteriorated so as to prejudice the presentation of his defense.” 292 N.C. at 282 , 233 S.E. 2d at 913 . Neither was the principle applied in Sweezy because “[n]o irreconcilable conflict or breakdown in communication between defendant and his counsel has been demonstrated.” 291 N.C. at 373 , 230 S.E. 2d at 529 .

Thus this Court, while acknowledging that deterioration of the lawyer-client relationship to such an extent that effective representation is no longer possible mandates the appointment of substitute counsel, has in past cases properly refused to apply this principle because the record simply did not call for its application.

If this principle has any vitality, however, and I believe that it does, this case demands its application. If it is not to be applied here, I cannot imagine a case in which it would be.

I agree with the majority that motions for substitute counsel should be allowed only for substantial reasons. Mere disagreement over trial tactics, mere dissatisfaction with counsel’s services, or general complaints about the infrequency of counsel’s jail visits and other communications are not generally, in themselves, reason enough to substitute counsel. The majority seems to view this case as one involving only defendant’s complaints that counsel did not visit him often enough in jail or otherwise sufficiently communicate with him about his case. It decides the issue as if this were the only support in the record for defendant’s motion. If it were, I would agree with the majority’s conclusion on the issue.

I submit, however, that the record contains far more than is alluded to in the majority’s discussion of the issue. A fair reading of the record shows that not only did defendant desire to have substitute counsel appointed for reasons which admittedly he could but poorly articulate, but that defendant’s counsel, begin *360 ning on 16 August and repeatedly thereafter, urged the trial court to relieve them. Nowhere does the record indicate that counsel’s pleas to be relieved were based on mere unwillingness to handle a difficult and undoubtedly unpopular case. Rather counsel consistently and eloquently advised the trial court that they simply could not effectively represent defendant because he had so lost confidence in them and harbored such animosity against them that communication between counsel and client essential to proper trial preparation was impossible.

The motion for substitute counsel was first made more than one month before trial was to begin. It was obviously not made for dilatory purposes. The motion was supported by statements of both defendant and his court-appointed lawyers. Judge Smith conducted a full inquiry into the matter almost two weeks before trial was to begin. This inquiry revealed as severe a breakdown in communication between counsel and client as can be portrayed on a written record.

On 31 August defendant wrote Mr. Fox, his court-appointed lawyer:

“Mr. Fox,

I am fire you from my case. I’ll not to court with you as my Lawyer. You have lie to my mother in other worlds I don’t need you any more at all. that is that, good bye.”

At the hearing before Judge Smith Mr. Hutchins complained that his lawyers had “promised this and promised that, and none of them have come through.” He said, “We ain’t talked over the case at all.” “If I can’t trust them now,” Mr. Hutchins said, “I can’t trust them anymore.” Mr. Hutchins complained that his lawyers had not let him know what they were doing, had not visited him in jail, and had not kept him informed about the outcome of various pre-trial proceedings.

More compelling, however, were the better articulated urgings of both Mr. Fox and Mr. Blanchard, court-appointed counsel, that they be relieved from the case. Mr. Fox said:

“Mr. Hutchins and I have reached a state where we have an absolute lack of communication. That he has personal —a feeling personal against me as opposed to all other persons in his *361 acquaintance; a lack of trust. He doesn’t feel he can place trust of his situation, his case in my hands. As a result, that has put me in a position where — with the lack of communication am unable to prepare effectively for the defense of this case.

“We have gotten psychiatric consultation with Mr. Hutchins, which has been ongoing. We have arranged for the retention of certain records and documents from other jurisdictions, which may be germane to the case; and otherwise made those preparations leading to a defense of this matter. We are now to a point where it is vitally necessary, in my opinion, that I’m able to communicate intimately with Mr. Hutchins and he with me; especially the latter. On talking about potential defenses based on mental attitudes, mental status, getting inside Mr. Hutchins’ mind, and I’m not able to communicate with him, whatsoever, it makes it, at this point, a physical impossibility, as well as a legal impossibility, in my opinion, to adequately prepare a defense on behalf of Mr. Hutchins, as his attorney, to a charge of first degree murder. As part and parcel with that, being put in this position, I have found in a case of importance, like this, it’s necessary for the defense attorney to be in a relaxed and —attitude where input can flow and ideas can flow out; and I have been put on the mental defensive myself. I find myself in a very hesitant, resistant position at this time also. It’s very difficult to approach the case mentally.” (Emphasis supplied.)

Mr. Blanchard pleaded with the court as follows:

“Mr. Hutchins, each time I talked with him, is stronger and more opposed to Mr. Fox; for matters he feels that he’s not been told enough about what’s going on. My dealings with him are colored by the fact that he is — the animosity is great enough for Mr. Fox. He doesn’t feel like he can deal with Mr. Fox. In talking with him for a few moments today, he says he doesn’t feel like he can trust me. And the animosity is now getting to the place where I think it will interfere with anything Mr. Hutchins and I could accomplish. It would be an unusual case, in that the feeling of animosity, I think, would be picked up by the jury at the table. I think it would work *362 to Mr. Hutchins’ detriment. I realize he does not have the right to fire and pick and choose; but we are dealing with three counts of first degree murder. In something of this nature, I think that Mr.. Hutchins deserves or at least needs in his own mind.counsel which he can feel comfortable with; that he can believe what they’re going to say; that he has respect for their ability. It is my feeling Mr. Hutchins has none of those for Mr. Fox nor I.” (Emphasis supplied.)

Later Mr. Blanchard stated:

“Your Honor, earlier this morning, Mr. Fox and I had breakfast together and discussed the matter. At that time, our feeling was that Mr. Hutchins’ disagreement with me was, perhaps, not as great as I now realize it is; and discussed the possibility of me staying in with another lawyer appointed. After talking with Mr. Hutchins this afternoon, I would tend to have a difficult time staying in . . . .”

During the hearing Mr. Dennis Winner, a member of the Asheville Bar, appeared. The court inquired whether Mr. Winner could prepare himself for trial of Mr. Hutchins’ case by 17 September, the date upon which it was scheduled. Mr. Winner ex-pressd doubts that he could be ready by then. Whereupon Mr. Lowe, the district attorney, argued at length that he was adamantly opposed to any continuance and to appointing substitute counsel if this would work a continuance in the case. Judge Smith then, after finding that defendant had shown no justification for substituting counsel, that his “only reason for wishing to discharge his attorneys is . . . his . . . belief that they have not visited him enough to discuss the case,” and that there was no showing that the attorneys were failing to prepare, denied defendant’s motion.

The record does not support these findings. All the evidence demonstrates, as I have noted, that the relationship between defendant and his court-appointed lawyers at the time of the hearing before Judge Smith had deteriorated to such an extent that the presentation of his defense would be prejudiced. Indeed Judge Smith never really addressed the question whether under the circumstances counsel could render effective assistance. We indicated in Thacker that a finding on this issue should be made. We said, “when faced with a claim of conflict and a request for ap *363 pointment of substitute counsel, the trial court must satisfy itself only that present counsel is able to render competent assistance and that the nature or degree of the conflict is not such as to render that assistance ineffective. The United States Constitution requires no more.” 301 N.C. at 353 , 271 S.E. 2d at 256 . The Constitution does, however, require a record which supports the trial judge’s conclusion, if made, that the conflict between defendant and counsel is not such as to render counsel’s assistance ineffective. Not only was no such conclusion made here, there is nothing in the record which would have supported it.

The conflict between defendant and his lawyers had not ameliorated when the case came on for trial on 17 September. At that point Mr. Fox renewed “the motion of the defendant and attorneys for the defendant in regard to dismissal of counsel.” When asked if he had anything to present on the motion, Mr. Fox referred to the evidence which had already been heard and then said, “The only other additional evidence that I would place before Your Honor would be that I have since come to the understanding that Mr. Hutchins expressed the feeling to law enforcement officers that I and Mr. Lowe were in company in opening his mail. He shows a sense of distrust in his attorney.” Although the real reason for Mr. Hutchins’ distrust of his court-appointed lawyers is somewhat obscure, the fact of it is undisputed. 1

On the day of trial defendant moved for a continuance of the case on the grounds: (1) The defense had not been able adequately to explore Hutchins’ mental condition. (2) Mr. Hutchins, himself, was unstable mentally. Mr. Fox told the court:

“We have just begun to explore the situation in regard to Mr. Hutchins’ mental condition. He has not cooperated with the psychiatrist which may he in a position to present evidence necessary to save his very life. With the very brief amount of opportunity that the psychiatrist has had to visit with him and the resistance he has met may or may not be necessary to the defense with the psychiatrist to have a *364 greater opportunity than he has heretofore had to consult with and treat Mr. Hutchins.

“Mr. Hutchins’ mental condition is of a delicate one. As a result of this, as late as yesterday evening, he expressed his desire and intent to do what he had last spoken to us seven days before what he was diametrically opposed to doing. He is swinging so intensely from one to another pole in this matter that it is difficult, if not impossible, for the attorneys to anticipate where he is going to be on any given time. I think this is a serious matter, due to the great degree of mental flux and change he has put to in the last several days. I indicated not only in his psychiatrist out of Asheville to be able to see him, but also for him to be able to have an opportunity to rest and be in a situation for a few days or weeks, at least, or a calm nature before he can decide in his own mind calmly and passionately what he wants to do with the procedure.”

Defendant presented no evidence during the guilt phase of his trial. He himself did not testify during the sentencing phase. At the sentencing hearing, psychiatric testimony indicated that Hutchins was a paranoid psychotic who felt that law enforcement agencies were persecuting him. The psychiatrist testifed that such persons “may function well as a neighbor or parent or a husband, but still have this very bizarre delusional system that eventually usually ends up controlling their lives. They are potential for violence because . . . the persecution feelings that they have is terrific and predictable.” During this phase, other than the psychiatrist’s testimony, defendant simply offered several witnesses who testified that defendant had a reputation for good character in his community, was a good neighbor, and a good father.

The jury found after the sentencing hearing that the first degree murders of Owen Messersmith and R. L. Peterson were committed while the defendant “was under the influence of mental or emotional disturbance.” The jury found, however, that defendant’s capacity “to appreciate the criminality of his conduct” was not impaired.

This state of the record precludes me from concluding that there was no prejudice in failing to substitute counsel. Prejudice *365 in such cases rarely arises from what competent counsel does affirmatively. Prejudice more often occurs because of things left undone which should and would have been done had a proper attorney-client relationship existed. An appellate court looking at a cold record can never say with certainty what these things might have been.

Defendant was apparently a paranoid psychotic who believed even before the tragedy that he was being persecuted by law enforcement agencies. Mr. Fox persistently referred to counsel’s inability because of the breakdown in the attorney-client relationship properly to delve into defendant’s mental condition prior to trial. It is, therefore, probable on this record that had a better relationship existed between defendant and his counsel, an insanity defense could have been more adequately prepared and successfully presented. Therefore I cannot say the state has demonstrated beyond a reasonable doubt 2 that failure to provide substitute counsel was not prejudicial on the guilt phase of the trial.

Even if I were totally satisfied that with the best possible representation arising from an appropriate attorney-client relationship defendant would, in any event, have been convicted of at least two counts of first degree murder, I could not vote to find no error in the sentencing proceeding resulting in the imposition of the death penalty. At this stage of the trial, as delicate as it is crucial, a defendant is entitled to all the skills of advocacy his counsel can muster. There can be no doubt that because of the gross deterioration in the attorney-client relationship these skills were sorely dampened in this case.

I must, therefore, vote for both a new trial and a new sentencing hearing.

My conclusion is supported by the holdings in United States v. Williams, 594 F. 2d 1258 (9th Cir. 1979), and Brown v. Craven, 424 F. 2d 1166 (9th Cir. 1970). In both of these cases new trials were ordered by the Ninth Circuit Court of Appeals because of *366 the severity of the conflict which had developed before trial between defendant and his court-appointed lawyer. In Brown the court noted, 424 F. 2d at 1169-70 , that defendant was:

“[F]orced into a trial with the assistance of a particular lawyer with whom he was dissatisfied, with whom he would not cooperate, and with whom he would not, in any manner whatsoever, communicate ....

“We think, however, that to compel one charged with grievous crime to undergo a trial with the assistance of an attorney with whom he has become embroiled in irreconcilable conflict is to deprive him of the effective assistance of any counsel whatsoever.”

So, I believe, it was here.

It may, of course, be argued that this defendant would not have cooperated with any lawyer. The record indicates, however, that he would have cooperated with Mr. Winner had Mr. Winner been appointed. Mr. Winner advised the court that he would not want to accept appointment unless:

“[T]he defendant wanted me to represent him. And so we had a conference in the Buncombe County Jail this morning for 45 minutes or so, maybe an hour; in which we discussed the case and talked about other things that are irrelevant to this conversation. And finally, at the end of it, I asked the defendant if he wanted me to represent him. Without breaking any confidential relationship, what he — I will not say what he said, but he did not give an answer which I could consider answered that question. And I told him that I was —that I did not want to try this case; but that I was willing to do so. And that I would give my best efforts if I got into it, as I do in every case that I get into. And that I would do that, if he wanted me to do it. And when he could not give me an answer that I thought answered the question, I suggested to him that he think about it until now. That we would both be over here at 2:00; and that he could then give the answer whether he wanted me to defend him or not.”

The following colloquy then occurred:

“COURT: O.K., what’s your answer, Mr. Hutchins?

Mr. Hutchins: Yes, I’ll accept him.”

*367 We cannot know, of course, whether substitute counsel would have ultimately enjoyed an appropriate attorney-client relationship with Mr. Hutchins. The trial court’s duty on the record before us was not dependent on such foreknowledge. The trial court’s duty was at least to relieve Mr. Fox and Mr. Blanchard and to make a reasonable effort to secure counsel whose relations with defendant would not preclude counsel’s effective assistance. For failure to do this, I believe defendant is entitled to a new trial.

. I note that according to records in the Administrative Office of the Courts, Mr. Fox from 3 June 1974 to 15 October 1976 was an assistant district attorney employed by Mr. Lowe. In view of Mr. Fox’s remarks on the day of trial, it is possible that this fact played some part in Mr. Hutchins’ attitude toward Mr. Fox.

. G.S. 15A-1443(b) provides: “A violation of the defendant’s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.”