State v. Taylor

• Decision Date: 31 December 2002
• Docket Number: No. COA01-942.,COA01-942.
• Citation: 574 S.E.2d 58,155 NC App. 251
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Donald Frederick TAYLOR.

574 S.E.2d 58

155 NC App. 251

STATE of North Carolina v. Donald Frederick TAYLOR.

No. COA01-942.

Court of Appeals of North Carolina.

December 31, 2002.

Attorney General Roy Cooper, by Assistant Attorney General A. Danielle Marquis, for the State.

James R. Parish, Fayetteville, for defendant.

BIGGS, Judge.

Donald Frederick Taylor (defendant) appeals his conviction of second-degree murder. For the reasons herein, we find no error.

At trial, the State's evidence tended to show that on 15 July 1998, defendant called a 911 operator to report that his live-in girlfriend, Dorothy Taylor (victim, no relation to defendant), had shot herself. When a paramedic arrived, he observed the victim lying on her back in the kitchen with an apparent gun shot wound to the back of the neck and a substantial amount of blood coming from the wound. A semi-automatic pistol was discovered on the floor beside the victim. Defendant told the paramedic that he and the victim were arguing, that she received a phone call, and, shortly thereafter, shot herself.

When Deputy Marvin Sapp of the Cumberland County Sheriff's Department arrived at the scene, he observed defendant, who seemed extremely calm, coming out of the bathroom drying his hands. Defendant told the deputy that the victim came home from work and laid across the bed while defendant was talking on the phone. Defendant ended the telephone conversation, took a shower, and then left the bedroom to make another phone call. According to defendant, after he finished the second call, the victim dialed *69 on the phone and discovered that defendant had been talking to another woman. The couple then argued. Defendant went back to the bedroom, took his gun from his holster and laid it on the bed as he got ready for work as a security officer. When he turned around, the gun was missing. Shortly thereafter, defendant heard a gun shot and saw the victim fall to the kitchen floor.

The victim was transported by ambulance to Cape Fear Valley Hospital, where it was determined that she had suffered a gunshot wound, with the bullet entering from the left and exiting on the right of her posterior neck. As a result, the victim's spinal cord was bruised beyond recovery, leaving her a quadriplegic. Noting the absence of any markings of burning, stippling, or tattooing, which are typical for close contact gunshot wounds, the treating physician determined that the victim's wound was not a contact wound. The doctor further determined that the victim could not have inflicted this injury on herself since she could not possibly have held the gun at a distance to prevent any burning, stippling, or tattooing of any kind.

On 8 August 1998, defendant was charged with felonious assault with a deadly weapon with intent to kill inflicting serious injury. As a result of complications from the gunshot wound, the victim died on 2 February 1999; on the same day defendant was charged with second-degree murder.

Prior to trial, the State moved to disqualify defendant's attorney, James Walen, from representing defendant contending that a conflict of interest existed since Walen had previously represented the victim in a divorce action. Hearings were conducted based on the State's motion on 24 and 26 October 2000. The court order, entered 19 January 2001, concluded that there was an "actual and substantial" conflict of interest and disqualified Walen and all members of his firm from representing defendant. The court appointed another attorney to represent defendant.

On 28 March 2001, defendant was convicted of second-degree murder and sentenced to a minimum term of 141 months and a maximum term of 179 months in prison. From this conviction, defendant appeals.

I.

By his first assignment of error, defendant argues that the trial court violated his constitutional right to counsel by disqualifying his retained counsel. We disagree.

The Sixth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment and §§ 19 and 23 of the North Carolina Constitution guarantees a defendant's right to counsel in a criminal prosecution. State v. Shores, 102 N.C.App. 473, 402 S.E.2d 162 (1991). This right includes the right to retain an attorney of the defendant's choice. State v. Yelton, 87 N.C.App. 554, 361 S.E.2d 753 (1987). However, this right is not absolute. "The essential aim of the Sixth Amendment is to guarantee an effective advocate for each criminal defendant rather than to insure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). As noted by this Court in State v. Shores, 102 N.C.App. at 475, 402 S.E.2d at 163 (quoting Id. at 160, 108 S.Ct. 1692, 100 L.Ed.2d 140), "courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards...." In this regard, the right of a defendant to have an attorney of his own choosing must be balanced against the court's interest of conducting a fair and unbiased legal proceeding. State v. Bruton, 344 N.C. 381, 474 S.E.2d 336 (1996).

When a party challenges an attorney's representation contending that a conflict of interest exists, "a hearing should be conducted, `to determine whether there exists such a conflict of interest that the defendant will be prevented from receiving advice and assistance sufficient to afford him the quality of representation guaranteed by the sixth amendment.'" State v. James, 111 N.C.App. 785, 791, 433 S.E.2d 755, 758 (1993) (quoting U.S. v. Cataldo, 625 F.Supp. 1255, 1257 (S.D.N.Y.1985) (citation omitted)). If it is shown that "an actual conflict or the potential for conflict exists, the presumption in favor of an accused's counsel of choice will be overcome." Shores, 102 N.C.App. at 475, 402 S.E.2d at 163.

It is well settled that "[t]he trial court must be given substantial latitude in granting or denying a motion for attorney disqualification." Id. To that end, the findings of the trial court are binding upon appeal if they are supported by any competent evidence, and the court's ruling may be disturbed only where there is a manifest abuse of discretion or if it is based on an error of law. State v. Hardison, 143 N.C.App. 114, 545 S.E.2d 233 (2001).

In the case sub judice, hearings were conducted on the State's motion that Walen be disqualified due to conflict of interest. After extensive discussion with and questioning of counsel for defendant and the State, as well as briefing the issue by both parties, the trial court made the following pertinent findings:

4. Dorothy Taylor, [the victim], retained James M. Walen as her attorney for a domestic action against her husband, Jeffrey Taylor [Taylor]. Pursuant to that representation, Mr. Walen filed a Complaint for divorce in 97 CVD 5481 on July 25, 1997. According to Donald Taylor, [defendant], he and the victim were involved in a relationship and had been living together for about one year as of the date of the shooting, July 15, 1998.

5. Mr. Walen filed a Motion for Summary Judgment on September 8, 1997. On September 16, 1997, Mr. Walen filed an Amended Complaint for divorce and sought to have a separation agreement incorporated into the divorce judgment. On September 29, 1997, Mr. Walen obtained a Judgment of Divorce by Order of Summary Judgment in which the court incorporated the separation agreement into the judgment.

6. On October 14, 1997, Mr. Walen filed a Motion in the Cause for the court to determine why Taylor should not be held in contempt for failing to comply with the terms of the Judgment of Divorce. The matter was heard on November 20, 1997, and the court granted the victim relief by Order filed on December 4, 1997.

7. On April 23, 1998, Mr. Walen filed another Motion in the Cause to again determine why Taylor should not be held in contempt for failing to comply with the terms of the Judgment of Divorce. The matter was heard on June 29, 1998, and the court granted the victim relief by Order filed on July 13, 1998.

8. On July 15, 1998, the State's evidence tends to show that the Defendant shot the victim in the neck resulting initially with high cervical quadriplegia but ultimately resulting in her death on February 2, 1999.

9. The victim made statements regarding the events of the shooting. The State has given Notice of its intent to use certain statements in the trial of this matter under the residual hearsay exception to the hearsay rule. Further, on July 15, 1998, Detectives Ed Brincefield and Jo Autry spoke with the victim as she was in the initial stages of treatment at Cape Fear Valley Medical Center. This was the victim's first known statement following the shooting. According to one of the victim's treating physicians, Dr. Mark Hnilica, her injury was certainly life threatening. She communicated to Detectives Brincefield and Autry that she had not shot herself but rather her husband, the man at the house had shot her. She has made other statements, some of which indicate that the defendant did not shoot her, some of which indicate that he did, and some of which reveal that she could not remember what had happened. She has consistently stated, however, that she did not shoot herself. Only two people were present at the time of the shooting, the victim and the defendant.

10. The defendant was arrested on August 8, 1998. On or about August 18, 1998, as the victim lay immobile in her hospital bed, Mr. Walen prepared a Power of Attorney for the victim to give power of attorney to the defendant. A member of Mr. Walen's staff proceeded to the hospital whereupon the victim executed the document. Mr. Walen has given Notice to the State that he intends to use at trial certain hearsay statements of the victim. His Notice includes the August 18, 1998 Power of Attorney given to the Defendant by the victim. This evidence is relevant to show that the Defendant did not shoot the victim for if he had,

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