State v. McFadden

• Decision Date: 10 May 1977
• Docket Number: No. 57,57
• Citation: 292 N.C. 609,234 S.E.2d 742
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Edward Anthony McFADDEN.

Page 742

234 S.E.2d 742

292 N.C. 609

STATE of North Carolina v. Edward Anthony McFADDEN.

No. 57.

Supreme Court of North Carolina.

May 10, 1977.

Atty. Gen. Rufus L. Edmisten by Associate Attys. Wilton E. Ragland, Jr. and Jane Rankin Thompson, Raleigh, for the State.

White & Crumpler by Harrell Powell, Jr. and Carl F. Parrish, Winston-Salem, for defendant.

BRANCH, Justice.

The sole question presented by this appeal is whether the trial judge erred in denying defendant's motion for a continuance. Defendant argues that the denial of his motion deprived him of his constitutional rights (1) to select counsel of his choice and (2) to have the effective assistance of counsel. We will consider these arguments in the order stated.

It is well established that a motion to continue is ordinarily addressed to the trial judge's sound discretion and his ruling thereon will not be disturbed except upon a showing that he abused that discretion. State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526; State v. Moses, 272 N.C. 509, 158 S.E.2d 617. However, when a motion to continue is based on a constitutional right, the question presented is a reviewable question of law. State v. Smathers, 287 N.C. 226, 214 S.E.2d 112; State v. Phillip, 261 N.C. 263, 134 S.E.2d 386; State v. Lane, 258 N.C. 349, 128 S.E.2d 389. The denial of defendant's motion in this case presents constitutional questions.

Justice Ervin, speaking for the court in State v. Speller, 230 N.C. 345, 53 S.E.2d 294, unequivocally declared: "Both the State and Federal Constitutions secure to every man the right to be defended in all criminal prosecutions by counsel whom he selects and retains. N.C.Const., Art. I, sec. 11; U.S.Const., Amend. XIV." The United States Supreme Court recognized this constitutional right in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, with this language: "It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." We note parenthetically that this constitutional right does not guarantee to an indigent defendant that the court must appoint counsel of his choice. State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524; State v. Robinson, 290 N.C. 56, 224 S.E.2d 174.

The holding in United States v. Bergamo, 3 Cir., 154 F.2d 31, is consistent with Speller and Powell. There a judge in the Middle District of Pennsylvania refused to permit counsel who was licensed in New Jersey to represent defendants charged with the crime of possessing counterfeit gas and sugar stamps. Upon this ruling associate counsel, a member of the Pennsylvania bar moved for a continuance on the ground that he was not familiar with the case. The motion to continue was denied. Granting a new trial, the Third Circuit Court of Appeals stated:

The Sixth Amendment provides inter alia that "In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence." The Supreme Court has held that right to the assistance of counsel includes the right to counsel of the defendant's choosing. In Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680, Mr. Justice Murphy citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, stated that " * * * the right to the assistance of counsel is so fundamental that the denial by a state court of a reasonable time to allow the selection of counsel of one's own choosing, and the failure of that court to make an effective appointment of counsel, may so offend our concept of the basic requirements of a fair hearing as to amount to a denial of due process of law contrary to the Fourteenth Amendment * * * ." Cf. In re Mandell, 2 Cir., 69 F.2d 830, 831, and Smith v. United States, 53 App.D.C. 53, 288 F. 259. In People v. Price, 262 N.Y. 410, 412, 187 N.E. 298, 299, the Court of Appeals of New York stated, "Under both our Federal and State Constitutions, a defendant has the right to defend in person or by counsel of his own choosing," citing inter alia the Sixth Amendment. See also Burnham v. Brush, 176 Misc. 39, 26 N.Y.S.2d 397, 399 and Kerling v. G. W. Van Dusen & Co., 109 Minn. 481, 483, 124 N.W. 235, 236, 372. The decisions are in accord upon this fundamental proposition.

The case of People v. Brady, 275 Cal.App.2d 984, 80 Cal.Rptr. 418, recognizes that the right to be defended by chosen counsel is not absolute. The defendant in that case was convicted of grand theft. On the night preceding the date set for trial defendant decided to replace his retained counsel because he thought he would fare better with a local, white attorney. His motion for a continuance to secure new counsel was denied. The California Court of Appeal held that, in light of defendant's own inexcusable delay, the refusal of his motion for continuance did not violate due process. We quote from that opinion:

. . . Due process is not denied every defendant who is refused the right to defend himself by means of his chosen retained counsel; other factors, including the speedy disposition of criminal charges, demand recognition, particularly where defendant is inexcusably dilatory in securing legal representation. . . .

Accord: People v. Simeone, 132 Cal.App.2d 593, 282 P.2d 971.

In People v. Crovedi, 65 Cal.2d 199, 53 Cal.Rptr. 284, 417 P.2d 868, defendant was prosecuted for conspiracy to commit grand theft, grand theft and burglary. He retained as his counsel a Mr. Chain, who represented defendant through the fourth day of the trial, at which time he suffered a heart attack and was hospitalized. Three days prior to the date set for the resumption of the trial, the court informed Mr. Younger, a law partner of Mr. Chain, that he was appointed to represent defendant for the remainder of the trial. A one-week continuance was granted during which time defendant unsuccessfully attempted to retain counsel of his own choice. The court ordered the trial to continue with Mr. Younger representing the defendant. The jury returned verdicts of guilty and defendant appealed. The Supreme Court of California, holding this to be a denial of due process of law, stated:

. . . (T)hough it is clear that a defendant has no absolute right to be represented by a particular attorney, still the courts should make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney . . . . This is especially so when defendant is in no way responsible for the absence of his retained counsel. . . .

* * *

* * * . . . (T)he state should keep to a necessary minimum its interference with the individual's desire to defend himself in whatever manner he deems best, using any legitimate means within his resources and that desire can constitutionally be forced to yield only when it will result in significant prejudice to the defendant or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.

We note the case of Gomez v. Heard, D.C.Tex., 218 F.Supp. 228, aff'd, 5 Cir., 321 F.2d 88, because of its factual likeness to the case sub judice. In that case defendant was charged with receiving and concealing stolen property. He employed as attorney, Mr. Bernard Golding, to defend him. When the case was called for trial, defendant appeared without counsel and moved for a continuance. His motion was supported by an affidavit signed by attorney Golding stating that Golding was at that time engaged in the trial of a case in another state and praying that the case be continued until such reasonable time as the attorney could appear. The trial judge denied the motion for a continuance, appointed another attorney to represent defendant and proceeded, over defendant's objections, to try the case. The District Court for the Southern District of Texas held in a habeas corpus proceeding that defendant "was denied the right of assistance of counsel of his own choice and that such was a denial of due process of law."

In our opinion Lee v. United States, 98 U.S.App.D.C. 272, 235 F.2d 219, clearly states the rule that should be adopted and applied to the facts of the case before us. There the defendant was convicted of assault with a dangerous weapon and assault with intent to kill. He employed two attorneys, Mr. Koonin and Mr. Smith, to represent him. After several continuances the case was set for trial on June 17, 1955, a Friday. That morning attorneys Koonin and Smith obtained the court's permission to withdraw from the case. Defendant advised the court that he had retained another attorney, Mr. Hughes, who was prepared to try the case. W...