State v. Taylor

• Decision Date: 26 July 1990
• Docket Number: No. 299PA88,299PA88
• Citation: 327 N.C. 147,393 S.E.2d 801
• Parties: STATE of North Carolina v. Norris Carlton TAYLOR.
• Court: North Carolina Supreme Court

Page 801

393 S.E.2d 801

327 N.C. 147

STATE of North Carolina v. Norris Carlton TAYLOR.

No. 299PA88.

Supreme Court of North Carolina.

July 26, 1990.

James R. Glover, Chapel Hill, for defendant-appellant.

MITCHELL, Justice.

The issues before this Court for review on certiorari concern an order and various motions related to a post-trial motion for appropriate relief filed by the defendant in the Superior Court, Cumberland County. Those issues include: (1) the extent to which the defendant, by alleging ineffective assistance of counsel, waived the rights of confidentiality arising from his relationship with counsel who represented him during the trial and direct appeal of these cases; (2) the extent of the Superior Court's authority, prior to a hearing on the defendant's post-trial motion, to require that the defendant disclose such otherwise confidential information; and (3) whether the indigent defendant is entitled to funds to employ an expert witness on North Carolina appellate practice to testify in support of his claim that he received ineffective assistance of counsel on his direct appeal of these cases.

The Cumberland County Grand Jury returned a true bill of indictment on 5 September 1978 charging the defendant with the armed robbery and first-degree murder of Mildred Murchison. On 5 March 1979, the Cumberland County grand jury returned a true bill of indictment charging the defendant with the kidnapping and armed robbery of Malcolm Biles and with assault with a deadly weapon with intent to kill inflicting serious injury upon Biles. The defendant was found to be indigent, and the Public Defender for the Twelfth Judicial District, Ms. Mary Ann Tally, was appointed to represent him at the trial of these cases.

The cases against the defendant were joined for trial on motion of the State. The defendant's motion for a change of venue of the trial to New Hanover County was allowed, and the cases were tried at the 28 May 1979 Special Criminal Session of Superior Court, New Hanover County. On 10 July 1979, the jury returned verdicts finding the defendant guilty of all of the charges against him. On 30 July 1979, at the conclusion of a separate sentencing proceeding, the same jury recommended, and the trial court entered, judgment sentencing the defendant to death for the first-degree murder of Mildred Murchison. As the first-degree murder conviction was based upon the theory of felony murder during the armed robbery of Murchison, that armed robbery conviction merged with the murder conviction. Therefore, the judgment on that armed robbery conviction was arrested. The trial court sentenced the defendant to terms of imprisonment on the remaining convictions.

The defendant gave notice of appeal in open court, and Public Defender Tally was appointed to represent him on appeal. The defendant, represented by Public Defender Tally, perfected his appeal to this Court which ordered a new trial on the kidnapping conviction but found no error as to the other convictions and sentences, including the sentence of death in the first-degree murder case. State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981). A review of the evidence at trial is included in this Court's opinion and decision resolving the issues raised on direct appeal and need not be repeated here. See id. The Supreme Court of the United States denied petitions for writ of certiorari, Taylor v. North Carolina, 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983), and for rehearing, Taylor v. North Carolina, 463 U.S. 1249, 104 S.Ct. 37, 77 L.Ed.2d 1456 (1983), filed on the defendant's behalf by Public Defender Tally.

On 13 February 1984, Public Defender Tally filed a motion for appropriate relief on the defendant's behalf seeking a new trial or, alternatively, a new sentencing proceeding. The parties agree that on 14 June 1984 an order was entered in the Superior Court, Cumberland County, appointing the Office of the Appellate Defender as additional counsel and ordering that office to review all of the proceedings in these cases to determine whether an additional or supplemental motion for appropriate relief should be filed alleging ineffective assistance of counsel during the trial and the direct appeal of these cases. From the record, it appears that nothing further transpired until two years later when, on 1 July 1986, the Superior Court, Cumberland County, entered an order appointing the defendant's current counsel, Mr. James R. Glover, as additional counsel to represent the defendant. That order directed Mr. Glover to review all of the proceedings in these cases including pretrial motions, the actual trial of the cases, the direct appeal to this Court and the petitions which had been filed on the defendant's behalf with the Supreme Court of the United States. The order also directed that Mr. Glover "determine whether or not an additional or supplemental Motion for Appropriate Relief should be filed alleging that the Defendant did not receive effective assistance of counsel either in the trial or appellate stage of these proceedings." The order further directed Mr. Glover to consult with the defendant concerning these matters and indicated that it was "the intent of the Court that the question of ineffective assistance of counsel be raised at this time [if it] is going to be raised at all." Acting pursuant to this order of 1 July 1986, Mr. Glover conducted the required review and, on 23 November 1987, filed an amended motion for appropriate relief on behalf of the defendant contending, inter alia, that the defendant's counsel had given him ineffective assistance of counsel, both in preparing and presenting his defense at trial and in preparing and presenting his case before this Court on direct appeal. The State filed its response on 18 December 1987.

On 28 April 1988, the State filed a motion in Superior Court, Cumberland County, asserting that it would be "inappropriate for Ms. Tally to continue to represent the defendant while he alleges that she was ineffective." By its motion, the State sought an order "removing Ms. Tally as counsel for the defendant and providing for access to her files on this defendant's case by counsel for the State." A hearing on this motion by the State was held in Superior Court, Cumberland County, on 31 May 1988. During the hearing, the defendant filed a memorandum of law opposing an order requiring Public Defender Tally to disclose all of her office's files relating to the defendant. The defendant also filed, inter alia, a motion for funds to hire an expert witness on North Carolina appellate practice to testify on his behalf at any later hearing on his amended motion for appropriate relief. During the hearing, the court indicated that it would order Public Defender Tally to give the State access to her office's files relating to the defendant, would remove her as counsel and would deny the defendant's motion for funds for an expert witness. Counsel for the State was directed to draft an order to that effect. Upon receiving the proposed order, the defendant submitted formal objections and an affidavit of Public Defender Tally indicating that, in her opinion, portions of her files on the defendant were irrelevant to issues raised by the defendant's allegations that she had rendered ineffective assistance of counsel during his trial and appeal.

On 20 June 1988, the order which is now before us for review was filed in the Superior Court, Cumberland County, removing Public Defender Tally as counsel for the defendant. In this order, the Superior Court concluded that "Based upon the claim for ineffective assistance of counsel, it appears necessary to the Court that the State have access to the files of the Public Defender's Office relating to these cases." Therefore, the Superior Court ordered "that the Public Defender within ten days of the date of this order, and as necessary during the litigation of the motion for appropriate relief, and its amendments, provide ... the State ... access to ... all files relating to these cases." Further, in this order, the Superior Court denied the defendant's motion for funds to employ an expert witness.

On 7 September 1988, this Court entered an order allowing the defendant's petition for a writ of certiorari to review those parts of the Superior Court's order (1) granting the State access to the Public Defender's files and (2) denying the defendant's motion for the appointment of an expert witness. On the same date, this Court entered an order allowing the defendant's petition for a writ of supersedeas.

I.

By an assignment of error, the defendant contends that to the extent his allegations of ineffective assistance of counsel operated as a waiver of his rights of confidentiality arising under the attorney-client privilege and under the work product privilege, his waiver of confidentiality was limited to information relevant to his claims of ineffective assistance of counsel. Therefore, the defendant argues, the order of the Superior Court directing him to give the State "access to ... all files relating to these cases" without any limitation went beyond his waiver and violated the attorney-client privilege and the work product privilege and, thereby, exceeded the court's authority. We agree.

Attorney-client communications are privileged under proper circumstances. State v. Tate, 294 N.C. 189, 239 S.E.2d 821 (1978); see generally 1 Brandis on North Carolina Evidence § 62 (3d ed. 1988). A similar qualified privilege protects criminal defendants from disclosure of the work of attorneys produced on behalf of such defendants in connection with the investigation, preparation or defense of their cases. State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977); N.C.G.S. § 15A-906 (1988). See generally 1 Brandis on North Carolina Evidence § 62. Both the attorney-client privilege and the work product privilege, however, are privileges belonging to the defendant and may be waived by him....