State v. Hunter

• Citation: 227 S.E.2d 535,290 N.C. 556
• Decision Date: 01 September 1976
• Docket Number: No. 44,44
• Parties: STATE of North Carolina v. Harry HUNTER.
• Court: North Carolina Supreme Court

Page 535

227 S.E.2d 535

290 N.C. 556

STATE of North Carolina v. Harry HUNTER.

No. 44.

Supreme Court of North Carolina.

Sept. 1, 1976.

Atty. Gen., Rufus L. Edmisten by Sp. Deputy Atty. Gen., John M. Silverstein, Raleigh, for the State.

Griffin & Humphries by James E. Griffin, Charles D. Humphries, Monroe, Robert M. McInnis, North Myrtle Beach, S.C. (on brief, from North Myrtle Beach, South Carolina) and Sam J. Ervin, Jr., Morganton, for defendant.

COPELAND, Justice.

Defendant contends that the court erred in not permitting James M. Long of the South Carolina Bar to represent Hunter at the trial. He says that this action of the trial court denied him his right to counsel under the Sixth and Fourteenth Amendments. As authority for this position he cites United States v. Johnston, 318 F.2d 288 (6th Cir. 1963) and United States v. Bergamo, 154 F.2d 31 (3d Cir. 1946). The present case is distinguishable from these cases on the basis of its facts.

Defendant was ably represented by local counsel in Union County, Mr. James Griffin, as well as by a South Carolina attorney by the name of Mr. Ralph Stroman, who normally handled defendant's business affairs. On 18 August 1975, the date set for the trial of this case, defendant made a motion to admit counsel James M. Long to appear in the case. The trial judge made an exhaustive inquiry, and it was determined that Mr. Long was the solicitor (chief prosecuting attorney) for the Fifteenth Judicial Circuit in South Carolina, which included Horry County, in which Myrtle Beach is located. § 1--255 of the Code of Laws of South Carolina (1962) provides:

'The solicitors may defend any persons brought to trial before any criminal courts of this State when their duty shall not require them to prosecute such persons and their assistance shall not be required against such persons by the Governor or Attorney General.'

Long told the trial court that he had been retained by defendant on 5 May 1975, after having been informed by District Attorney Lowder of Union County that a bill of indictment had been returned against Hunter in Union County. Mr. Stroman had been contacted by the defendant about this matter several days before Mr. Long was contacted. Mr. Griffin was retained by defendant about 1 June 1975.

District Attorney Lowder told the trial court that Mr. Long had originally been requested to assist him in the arrest of Mr. Hunter but he received no help from Mr. Long. In fact, Long assisted Hunter in making bond on the murder charge.

Sometime after Long was retained, criminal charges were brought against defendant Hunter in Long's district. Long indicated that these cases were being handled by his assistants. The Attorney General of South Carolina filed a writ in the Supreme Court of South Carolina to restrain Mr. Long from participating in South Carolina in cases involving defendant Hunter. After Mr. Long explained that his assistants were handling the prosecution in South Carolina and that he was totally removed from the South Carolina prosecution, the matter was withdrawn by the Attorney General. At the time of this motion, however, the matter was still before Chief Justice Lewis of the Supreme Court of South Carolina.

It is well settled that an out-of-state attorney has no absolute right to practice law in another forum. It is permissive and subject to the sound discretion of the Court. Thomas v. Cassidy, 249 F.2d 91 (4th Cir. 1957), Cert. denied, 355 U.S. 958, 78 S.Ct. 544, 2 L.Ed.2d 533 (1958); Cooper v. Hutchinson, 184 F.2d 119 (3d Cir. 1950); Parker v. Parker, 97 So.2d 136 (Fla.App.1957); State v. Kavanaugh, 52 N.J. 7, 243 A.2d 225 (1968), Cert. denied, 393 U.S. 924, 89 S.Ct. 254, 21 L.Ed.2d 259 (1968); Manning v. Railroad, 122 N.C. 824, 28 S.E. 963 (1898); Smith v. Brock, 532 P.2d 843 (Okl.1975); 7 Am.Jur.2d, Attorneys at Law, § 10 (1963 and Cum.Supp. June 1976); 7 C.J.S. Attorney and Client § 15b (1937 and Cum.Supp.1976).

G.S. 84--4.1 (1975 and 1975 Supp.) gives the conditions that must be met by out-of-state attorneys in order for them to be admitted to practice for limited purposes in North Carolina. Subsection 9 thereof states:

'Compliance with the foregoing requirements shall not deprive the court of the discretionary power to allow or reject the application.'

Our Court in Manning v. Railroad, supra, 122 N.C. at 828, 28 S.E. at 964 had this to say concerning nonresident counsel:

'(T)he appearance of such counsel is a matter of courtesy in each and every case, and on motion in each case, and only for the occasion on which it is allowed. The statute forbids the courts from allowing non-resident counsel (when citizens of other States and not holding license from this Court) from practicing habitually in our courts, and they cannot acquire the right to do so.'

In Smith v. Brock, supra, Oklahoma considered a rule of practice analogous to our G.S. 84--4.1. The foreign attorney had in the past engaged in disorderly and disruptive tactics in both the Oklahoma and Texas Courts. The Oklahoma Court declined to permit the out-of-state counsel to appear. The Oklahoma Supreme Court relied in part on State v. Kavanaugh, supra, wherein that court rejected Mr. F. Lee Bailey's contention that the defendant had a constitutional right to select an attorney who was not a member of the New Jersey Bar. In denying his right to appear, the New Jersey and Oklahoma Supreme Courts quoted with approval the following from Thomas v. Cassidy, supra:

"It is well settled that permission to a non-resident attorney, who has not been admitted to practice in a court, to appear pro hac vice in a case there pending is not a right but a privilege, the granting of which is a matter of grace resting in the sound discretion of the presiding judge. (Cases cited.)" Smith v. Brock, supra at 848.

The Oklahoma Supreme Court in Smith v. Brock, supra at 850, also quoted with approval the following statement made in Cooper v. Hutchinson, supra at 122:

'The narrower question here is the extent to which an accused persons choice of counsel is a constitutional right. The argument insists that there is a constitutional right, at least in a capital case, to whatever counsel an accused person pleases to have. If that counsel is not a member of the bar of the state where the prosecution is being conducted, still, the argument runs, the accused may effectively choose him just as freely as he could choose a lawyer admitted to practice locally. The person chosen by the accused may then insist upon conducting the defense in the local courts. Control by the states over the persons who may be licensed to practice law in their courts would thus be greatly diminished in every capital criminal prosecution where the accused desires counsel from somewhere else.

'The length to which this argument takes one is startling. It has always been thought that the license to practice law is limited, except as a matter of grace, to persons who had fulfilled the local requirements for practice.'

From the very beginning it is clear that Mr. James E. Griffin would be the lead counsel in the case. It is well known that Mr. Griffin is one of the leading trial attorneys in Union and surrounding counties. The District Attorney made it clear to Mr. Griffin approximately 1 June 1975 that he would object to having Mr. Long appear in the case on behalf of defendant. The trial judge permitted Mr. Stroman, defendant's personal attorney in Horry County, South Carolina, to appear with Mr. Griffin. Certainly under this set of facts, defendant cannot contend he was prejudiced by the court's decision. His constitutional right to counsel was not abridged.

It is interesting to note that the 1976 South Carolina General Assembly (recently adjourned) required all solicitors to serve as full-time employees for the State of South Carolina effective 1 January 1977, but those in office on 1 July 1976 whose terms expired in 1979 were not required to comply during their terms. 'An Act . . . To Provide That Solicitors In This State Shall Be Full Time Beginning January 1, 1977 And To Provide Exceptions. . . .' R 819, S 785. Approved the 30th day of June, 1976.

The decision of Judge Rousseau was made solely in his discretion. He acted wisely and properly to insure compliance with Canon 9 of the Code of Professional Responsibility of the North Carolina State Bar (G.S. Vol. 4A (Cum.Supp.1975)), which states:

'A Lawyer Should Avoid Even the Appearance of Professional Impropriety.' See DR9--101(B).

Canon 5 of the Code of Professional Responsibility states:

'A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client.' See DR 5--105.

Additionally our law makes it a crime for a full-time district attorney to practice law. G.S. 84--2 (1975). This assignment of error is overruled.

Under the second assignment of error, defendant contends that the court erred in denying the motion of defendant to continue the case in order to permit defendant to employ additional counsel.

When this motion was made, Mr. Griffin stated that it was 'to allow Mr. Hunter to obtain other counsel if he so desires.' There was no indication or allegation that the defendant even wished to obtain another lawyer or that other counsel was necessary to adequately prepare the defense. In fact, defendant's counsel, Mr. Griffin, declined to argue this motion. As previously noted, Mr. Griffin had been aware for more than two and one-half months that the District Attorney would object to Mr. Long's appearance in the case. It is apparent from the foregoing that defendant had ample time to arrange for the services of another attorney in addition to Mr. Stroman and Mr. Griffin if he so desired.

The constitution guarantees that the defendant and his counsel shall have a reasonable time to prepare the case for trial. State v. Phillip, 261 N.C. 263, 134 S.E.2d 386 (1964), Cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964); State v. Lane, 258 N.C. 349, 128...