State v. Buckner

• Decision Date: 07 April 2000
• Docket Number: No. 444A93-2.,444A93-2.
• Citation: 351 N.C. 401,527 S.E.2d 307
• Parties: STATE of North Carolina v. George Cale BUCKNER.
• Court: North Carolina Supreme Court

527 S.E.2d 307

351 N.C. 401

STATE of North Carolina v. George Cale BUCKNER.

No. 444A93-2.

Supreme Court of North Carolina.

April 7, 2000.

Michael F. Easley, Attorney General, by John H. Watters, Special Deputy Attorney General, for the State.

E. Fitzgerald Parnell, III, and Joseph E. Zeszotarski, Jr., Charlotte, for defendant-appellant.

Center for Death Penalty Litigation, by Kenneth J. Rose, Durham, on behalf of the North Carolina Academy of Trial Lawyers and the National Association of Criminal Defense Lawyers, amici curiae.

WAINWRIGHT, Justice.

In September 1993, defendant George Cale Buckner was tried on charges of first-degree murder, robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, felonious larceny, and felonious possession of stolen goods. On 20 September 1993, the jury returned verdicts of guilty as to all counts. The jury recommended the death penalty.

On 8 October 1993, the trial court sentenced defendant to death for first-degree murder and to consecutive terms of imprisonment of forty years for robbery with a dangerous weapon, ten years for conspiracy to commit robbery with a dangerous weapon, and ten years for felonious larceny. On 8 December 1995, this Court found no error as to the convictions of first-degree murder, conspiracy to commit robbery with a dangerous weapon, and robbery with a dangerous weapon, but arrested judgment on the conviction of felonious larceny. See State v. Buckner, 342 N.C. 198, 464 S.E.2d 414 (1995),

cert. denied, 519 U.S. 828, 117 S.Ct. 91, 136 L.Ed.2d 47 (1996).

On 5 August 1997, post-conviction counsel for defendant filed a motion for appropriate relief alleging that trial counsel rendered ineffective assistance of counsel at both the guilt and sentencing phases of defendant's capital trial. Defendant alleged he received ineffective assistance by trial counsel's:

1. "failure to discover and present evidence tending to prove another committed the murder";

2. "failure to adequately warn Defendant of the consequences of his taking the witness stand and ... failure to object to the prosecutor's alleged improper closing argument and the trial court's inadequate curative instruction ";

3. "failure to adequately inform Defendant about the prosecution's subjecting him to cross-examination about his prior criminal record";

4. "failure to properly prepare Defendant for cross-examination concerning the type of speedometer in the get-away vehicle";

5. "ineffective[ness] by virtue of his failing to demand Defendant be present at all stages of his trial";

6. "ineffective[ness] for stipulating to Defendant's prior common law robbery and for failing to present rebuttal evidence";

7. "ineffective[ness] in developing sufficient evidence in support of the mitigating circumstances presented to the jury";

8. "ineffective[ness] for failing to sufficiently investigate and present evidence of other mitigating circumstances";

9. "ineffective[ness] in failing to present evidence upon which a jury could find Defendant's criminal history was not significant"; and

10. "ineffective[ness] in failing to request peremptory instructions on non-statutory mitigating circumstances."

(Emphasis added.)

In response to defendant's motion for appropriate relief, the State requested, by way of a motion for discovery, "access to and copies of all notes, documents, communications or work product touching directly or indirectly on the issues enumerated [in defendant's motion for appropriate relief] and the investigation, preparation for trial, tactical decisions, and strategy relevant to Defendant's allegations of ineffective assistance of counsel."

Post-conviction counsel provided the State with copies of written correspondence between trial counsel and defendant. Defendant's trial counsel, however, refused to speak to the State and filed an affidavit stating he was ineffective and was the attorney primarily responsible for investigation, preparation, and presentation of the mitigation evidence at sentencing. No summaries of any oral communications between trial counsel and defendant were provided to the State.

After considering the oral arguments of the parties, the evidence of record, and the parties' submitted written arguments, the superior court entered an order on 3 November 1998 granting the State's motion for discovery. The superior court made, inter alia, the following findings of fact:

5. Counsel for the State made several inquiries concerning discovery necessary to represent the interest of the State in defending against the allegations of ineffective assistance of counsel.

6. Post-conviction counsel for [defendant], provided copies of correspondence between the defense attorneys at trial and the defendant.

7. Access to any other material related to the issues of ineffective assistance of counsel has been denied the State's attorney.

8. The State, on September 28, 1998, formally filed its Discovery Motion and requested access to and copies of all notes, documents, communications, or work product touching directly or indirectly on the issues alleging ineffective assistance of counsel. The State also asks the right to interview trial counsel to glean the substance of any oral communications relevant to the allegations of ineffective assistance of counsel.

The superior court then concluded as a matter of law:

1. As to those issues alleging ineffective assistance of counsel, [defendant] has waived the attorney/client privilege and any privilege having to do with work product related to those issues.

2. The waiver of the attorney/client privilege was automatic upon the filing of the allegations of ineffective assistance of counsel, as it related to both oral and written communications between [defendant] and his trial counsel. N.C.G.S. § 15A-1415(e). State v. Taylor, 327 N.C. 147, 393 S.E.2d 801 (1990)[,] provides the [court] with the inherent power to determine that work product related to the issues alleging ineffective assistance of counsel be waived.

3. Nothing in the passage of N.C.G.S. § 15A-1415(e) limits the inherent authority of this court to determine a waiver of attorney/client privilege or that of work product privilege.

The superior court's order stated the State's attorney was to be provided access to and copies of all notes, documents, communications, or work product touching directly or indirectly on the allegations of ineffective assistance of counsel enumerated in defendant's motion for appropriate relief. Additionally, the superior court ordered that the State's attorney have the right to interview trial counsel to learn of any oral communications relevant to the trial investigation and preparation, tactical decisions, or strategy relevant to defendant's allegations of ineffective assistance of counsel.

On 22 July 1999, this Court allowed defendant's petition for writ of certiorari to review the superior court's order.

Defendant argues the superior court erred as a matter of law in failing to recognize the effect of the legislature's enactment of N.C.G.S. § 15A-1415(e) by not applying the statutory language, and in acting without authority in ordering trial counsel to submit to an interview.

First, we address defendant's argument that the superior court's order failed to recognize the effect of the legislature's enactment of N.C.G.S. § 15A-1415(e) by not applying the statutory language. In 1996, the legislature enacted "An Act to Expedite the Postconviction Process in North Carolina," ch. 719, 1995 N.C. Sess. Laws 389, which added discovery provisions, including subsection (e), to N.C.G.S. § 15A-1415. Subsection (e) provides:

Where a defendant alleges ineffective assistance of prior trial or appellate counsel as a ground for the illegality of his conviction or sentence, he shall be deemed to waive the attorney-client privilege with respect to both oral and written communications between such counsel and the defendant to the extent the defendant's prior counsel reasonably believes such communications are necessary to defend against the allegations of ineffectiveness. This waiver of the attorney-client privilege shall be automatic upon the filing of the motion for appropriate relief alleging ineffective assistance of prior counsel, and the superior court need not enter an order waiving the privilege.

N.C.G.S. § 15A-1415(e) (1999) (emphasis added).

Specifically, defendant contends (1) N.C.G.S. § 15A-1415(e) supersedes and effectively overrules State v. Taylor, 327 N.C. 147, 393 S.E.2d 801, and sets out a specific, concrete set of discovery rules applicable to materials privileged between defendant and his trial counsel; (2) the statute invokes a stricter standard of permissible discovery than was previously imposed under the "relevance" standard of Taylor by limiting discovery to only "oral and written communications" between a defendant and trial counsel relevant to any ineffective assistance of counsel claims; (3) the superior court failed to follow N.C.G.S. § 15A-1415(e) when it ordered post-conviction discovery in the instant case; and (4) the required disclosure is further limited by the phrase "to the extent the defendant's prior counsel reasonably believes such communications are necessary to defend against the allegations of ineffectiveness." We disagree.

At the time Taylor was decided, N.C.G.S. § 15A-1415 contained no discovery provisions. Defendant's contention that N.C.G.S. § 15A-1415(e) supersedes Taylor is misplaced. Except where inconsistent with this opinion, Taylor remains good law. In Taylor, the defendant's post-conviction counsel filed a motion for appropriate relief contending, inter alia, that trial counsel for the defendant rendered ineffective assistance in preparing and presenting both the defense at trial and the direct appeal. Taylor, 327 N.C. at 150, 393 S.E.2d at 804. The superior court ordered the defendant to give the State "access to ... all files relating to these cases." Id. at 151, 393 S.E.2d...