State v. Farook

• Citation: 871 S.E.2d 737
• Decision Date: 06 May 2022
• Docket Number: 457PA20
• Parties: STATE of North Carolina v. Khalil Abdul FAROOK
• Court: United States State Supreme Court of North Carolina

871 S.E.2d 737

STATE of North Carolina

v.Khalil Abdul FAROOK

No. 457PA20

Supreme Court of North Carolina.

Filed May 6, 2022

Joshua H. Stein, Attorney General, by John W. Congleton, Assistant Attorney General, for the State-appellant.

Sarah Holladay, for defendant-appellee.

EARLS, Justice.

¶ 1 Over six years elapsed between the initial indictment of defendant Khalil Abdul Farook on 19 June 2012 for multiple charges arising out of an incident where Mr. Farook, driving impaired, hit and killed two people riding a motorcycle and his trial that began on 8 October 2018. The trial court denied his pretrial motion to dismiss on speedy trial grounds and he was convicted by a jury of felony hit and run resulting in serious injury or death, two counts of second-degree murder, and attaining violent habitual felon status. He was sentenced to two terms of life imprisonment without the possibility of parole, plus twenty-nine to forty-four months. Mr. Farook appealed to the Court of Appeals asserting that the trial court erred in denying his motion to dismiss.

¶ 2 On appeal, the Court of Appeals reversed the trial court's order and vacated defendant's convictions on the grounds that the delay in his case was unjustified and violated his Sixth Amendment right to a speedy trial, applying the balancing framework set forth in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). State v. Farook , 274 N.C. App. 65, 88, 850 S.E.2d 592 (2020). Before the trial court, the State's explanation for its delay in bringing Mr. Farook to trial centered on the testimony of one of Mr. Farook's attorneys, who testified that it was his strategy to delay the case in the hope of obtaining a better outcome for his client. The Court of Appeals held that eliciting this information from Mr. Farook's attorney, while the attorney was testifying for the State, violated Mr. Farook's attorney-client privilege by revealing strategic decisions the attorney made on behalf of his client. Id. at 84, 850 S.E.2d 592. Because this testimony should not have been admitted, and because the State could not carry its burden of attempting to explain the trial delay without the testimony when considering the weight of the evidence under the Barker test, the Court of Appeals concluded that Mr. Farook's motion to dismiss should have been granted. Id.

¶ 3 We affirm the Court of Appeals’ holding on the evidentiary question and conclude that the trial court improperly admitted the testimony of Mr. Farook's prior attorney where there was no waiver of the attorney-client privilege. Because the trial court plainly erred in admitting the testimony of Mr. Farook's former attorney as evidence against him without justification or waiver, the trial court's order must be reversed. However, the State may have had alternative ways to put into evidence the same facts the attorney testified to if the improperly admitted testimony had not been admitted in the first place. The State may also have decided to rely on entirely different facts not elicited before the trial court if it had not been allowed to introduce the improperly admitted testimony. While the delay in this case is extraordinary and the facts in the record relied on by the Court of Appeals in concluding that Mr. Farook's Sixth Amendment rights were violated appear largely uncontested, we nevertheless remand this case for a rehearing on Mr. Farook's speedy trial claim rather than evaluate the evidence at this stage. Accordingly, we reverse the holding of the Court of Appeals to the extent that it allowed Mr. Farook's motion to dismiss. Cf. State v. Salinas , 366 N.C. 119, 124, 729 S.E.2d 63 (2012) (remanding for further factual findings where the trial court improperly relied upon the allegations presented in defendant's affidavit when making its findings of fact).

I. Background

¶ 4 In 2012, Mr. Farook was involved in a fatal automobile crash when his vehicle crossed the centerline of the road and collided with a motorcycle being ridden by Tommy and Suzette Jones. Mr. and Mrs. Jones died following the collision. Another driver, Miguel Palacios, witnessed the collision. Mr. Palacios observed Mr. Farook approach the bodies of the victims and then leave the scene of the accident.

¶ 5 Armed with a description of the suspect, police officers traveled to the address of a residence located near the scene of the collision. The apparent owner of the home led officers into a room where one of the officers observed the name "Khalil Farook" on a prescription bottle atop a coffee table. The property owner then explained that "Donald Miller" had changed his name and that "Donald Miller" and "Khalil Farook" were the same person. Mr. Farook turned himself in to the authorities on 19 June 2012 after warrants had been issued for his arrest on various charges stemming from the collision. Later that month, Mr. Farook was indicted for reckless driving to endanger, driving left of center, driving while license revoked, felony hit and run resulting in serious injury or death, driving while impaired, resisting a public officer, and two counts of felony death by vehicle.

¶ 6 Mr. Farook was represented by four different attorneys during the pendency of his case. In early July 2012, following his arrest, Mr. James Randolph was appointed to represent Mr. Farook. Thereafter, after his case had been pending for a year, Mr. Farook wrote to the trial court on 12 July 2013 stating that he had been incarcerated for a year and was concerned about the status of his case, particularly because he had not yet received discovery. Subsequently, Mr. James Davis was appointed as Mr. Farook's second attorney in the case. Mr. Davis replaced Mr. Randolph in early December 2014.¹ Mr. Davis represented Mr. Farook for nearly three years, during which time the case remained pending, and Mr. Farook remained incarcerated.

¶ 7 Ultimately, Mr. Davis withdrew from Mr. Farook's case because of the demands of his other work. He was replaced as counsel in July 2017 by Mr. David Bingham, Mr. Farook's third attorney. On 17 July 2017, over five years after the collision, Mr. Farook was indicted for the following new, more serious charges: two counts of second-degree murder and one count of attaining violent habitual felon status. In September 2017, Mr. Bingham withdrew from the case due to a conflict of interest. Mr. Chris Sease, Mr. Farook's fourth attorney, was appointed to represent him in late September 2017. He represented Mr. Farook through the trial in October 2018.

¶ 8 In March 2018, Mr. Farook wrote to the clerk of court asking for "information (motions) concerning my t[rial] delay for the years of 2013, 2014, 2015, 2016, 2017 that the district attorney[’s] office file[d] to delay my trial." The clerk responded, "There are no written motions in any of your files." Mr. Farook filed a pro se motion to dismiss the charges against him on the grounds of a speedy trial violation and ineffective assistance of counsel (IAC) in early September 2018. In the pro se motion, Mr. Farook alleged that his previous attorney, Mr. Davis, did not speak to him until fifty-seven months after Mr. Davis was appointed, that Mr. Farook never agreed to any delays in his trial, and that Mr. Farook had been prejudiced both by the deficient representation that he had received from Mr. Davis and the delay in his case.

¶ 9 Later that same month, Mr. Sease filed a motion to dismiss for a speedy trial violation alleging that Mr. Farook was not charged or served with indictments for second-degree murder and attaining violent habitual felon status until July 2017 even though the collision occurred five years earlier in June 2012. The motion alleged that Mr. Farook believed the State delayed the case "in an attempt to oppress, harass and punish him further"; that due to the extensive delay he was "prejudiced by an inability to adequately assist his defense attorney" in preparing for trial; and that "it is arguable" that he never would have been charged with second-degree murder had the case been resolved between 2012 and 2017 rather than long after the date of the offense. The State opposed the motion.

¶ 10 Notably, in his motion to dismiss, Mr. Farook chronicled the prolonged delay that evolved over the life of his case from the date of his arrest in June 2012 to his eventual prosecution in October 2018. After Mr. Farook rejected plea offers from the State in August 2012, the case was not calendared again until the week of 18 February 2013, almost six months later. The case was first calendared for the week of 6 August 2012, the date on which Mr. Randolph withdrew as Mr. Farook's attorney. Between 2013 and 2018, Mr. Farook's case was calendared but not reached nine times. After the case had been calendared but not reached five times, Mr. Farook was indicted on more serious charges. No motion to continue the case was ever filed by the State or Mr. Farook. Cf. State v. Farmer , 376 N.C. 407, 409, 852 S.E.2d 334 (2020) (emphasizing that the defendant filed his motion for a speedy trial approximately two months after he acquiesced to the State's request to continue his case from the January 2017 calendar to the next trial session).

¶ 11 As illustrated below, Mr. Farook's case was repeatedly delayed as it continued to be calendared but not reached while Mr. Farook remained imprisoned for 2,302 days.

11 July 2012	Mr. Randolph is appointed by court order to represent Mr. Farook.
18 February 2013	Mr. Farook's case was calendared but not reached.
19 March 2013	Mr. Farook's case was calendared but not reached.
16 April 2013	Mr. Farook's case was calendared but not reached.
12 July 2013	Mr. Farook wrote a letter to Judge Wagoner stating that he had been incarcerated for a year and had not received his discovery.
10 December 2014	Mr. Davis is appointed by court order to represent Mr. Farook.
15 July 2015	Mr. Farook's case was calendared but not reached.
13 February 2017	Mr. Farook's case was calendared but not reached.
5 July 2017	Mr.

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