State v. Summerford

309 S.E.2d 553, 65 N.C. App. 519, 1983 N.C. App. LEXIS 3534
CourtCourt of Appeals of North Carolina
DecidedDecember 20, 1983
DocketNo. 833SC347
StatusPublished
Cited by2 cases

This text of 309 S.E.2d 553 (State v. Summerford) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Summerford, 309 S.E.2d 553, 65 N.C. App. 519, 1983 N.C. App. LEXIS 3534 (N.C. Ct. App. 1983).

Opinion

ARNOLD, Judge.

Defendant Nancy Smith Summerford’s Appeal

Defendant Nancy Summerford assigns error to the court’s denial of the motion to dismiss the charges against her. She argues that the district attorney’s offer to dismiss these charges on condition that her husband plead guilty to one felony charge, constituted an abuse of prosecutorial discretion and deprivation of her right to due process of law. We find no merit to this assignment of error.

During the sentencing hearing the defendants’ attorney informed the trial court that prior to trial the district attorney had offered to drop the charges against the feme defendant if her husband would plead guilty to one felony. The district attorney had indicated to defense counsel that the State was not interested in prosecuting the feme defendant. When the homme defendant refused to accept this plea arrangement, defense counsel had countered with an offer to plead him guilty to a misdemeanor on condition that the charges against the feme defendant be dropped. The State refused to accept this counteroffer, and the parties proceeded to trial.

District attorneys possess wide discretion in deciding who will or will not be prosecuted.

In making such decisions, district attorneys must weigh many factors such as “the likelihood of successful prosecution, the social value of obtaining a conviction as against the time and expense to the State, and his own sense of justice in the particular case.” (Citation omitted.) The proper exercise [522]*522of his broad discretion in his consideration of factors which relate to the administration of criminal justice aids tremendously in achieving the goal of fair and effective administration of the criminal justice system.

State v. Spicer, 299 N.C. 309, 311-12, 261 S.E. 2d 893, 895 (1980). In deciding to prosecute the feme defendant, the district attorney did not abuse this discretion. The feme defendant already had been indicted, so there was probable cause to believe that she had committed the drug offenses. There is absolutely no basis to the feme defendant’s argument that her prosecution was punishment for her husband’s exercise of his right to a jury trial. The evidence showed, and the jury found, that the feme defendant was a participant in the crimes occurring on 9 February 1982.

The evidence before the jury was that an undercover agent came to defendants’ house on the evening of 9 February 1982 and expressed a desire to buy marijuana. At her husband’s direction, the feme defendant went to the bedroom and returned with a bag of marijuana. She handed the bag to the agent. When the agent paid for the marijuana, the homme defendant directed his wife to give him change and she complied. This evidence supports the conclusion that the defendants acted together for the common purpose of committing the drug offenses.

During the sentencing hearing the trial judge indicated that he had perceived that the State viewed the homme defendant to be more culpable than the feme defendant. He emphasized that he would not dismiss the charges against the feme defendant but would try to sentence the defendants with regard to their relative culpability. For her conviction of felonious possession and the sale and delivery of marijuana, the feme defendant received only a 5 day prison sentence. From the sentence imposed, there is no doubt that the trial judge considered the degree of her culpability. She was in no way denied due process of law.

The feme defendant next argues that her 6th amendment right to effective assistance of counsel was violated, because both she and her husband were represented by the same attorney. She argues that conflicts of interest were raised during the plea bargain negotiations, by the differing degrees of culpability, and in the fact that defense counsel was paid by the homme defendant’s parents. The feme defendant further argues that she was denied [523]*523effective assistance of counsel because defense counsel failed to move for severance, or to request instructions that evidence of the 4 February 1982 crimes be limited to the homme defendant. We find no violation of her constitutional right to effective assistance of counsel.

We initially note that neither defendant objected before or during trial to joint representation. “In order to establish a conflict of interest violation of the constitutional right to effective assistance of counsel, ‘a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.’ ” State v. Howard, 56 N.C. App. 41, 46, 286 S.E. 2d 853, 857, disc. rev. denied, 305 N.C. 305, 290 S.E. 2d 706 (1982), quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 64 L.Ed. 2d 333, 346-47, 100 S.Ct. 1708, 1718 (1980). The feme defendant has made no such showing.

A possible conflict of interest might have been raised during the plea negotiations if defense counsel had persuaded the homme defendant to plead guilty in order to save his wife from prosecution. In this situation the homme defendant, and not his wife, would be entitled to raise the issue of ineffective assistance of counsel. Moreover, it is obvious that if the homme defendant had been represented by separate counsel, he would not have been advised to plead guilty to one felony for his wife’s benefit. It is equally obvious from the record that the State was willing to dismiss the charges against the feme defendant only if her husband pleaded guilty to one felony. There is no reason to believe that separate counsel could have changed the State’s decision to prosecute the feme defendant.

The difference in culpability between the defendants also did not raise any conflict of interest which adversely affected defense counsel’s representation of the feme defendant. “Multiple defendants, almost by definition, will produce disparities, qualitatively and quantitatively, as to proof against each. It is a non sequitur to say that such disparity ipso facto results in disparity of effort devoted to such defendants if they have the same attorney.” People v. Smith, 19 Ill. App. 3d 138, 144, 310 N.E. 2d 818, 823 (1974). In the case on appeal, neither defendant testified, nor were there antagonistic defenses. The mere fact that the feme defendant was less culpable than her husband did not hinder counsel from effec[524]*524tively representing either defendant. Furthermore, the trial judge noted at the sentencing hearing that he was aware of this unequal culpability. His imposition of a 5-day active sentence for crimes which carry maximum sentences of 5 years each undeniably shows that the feme defendant’s lesser degree of culpability was considered. See State v. Willis, 61 N.C. App. 244, 300 S.E. 2d 829 (1983).

We also find no conflict of interest caused by the payment of attorney’s fees for both defendants by the homme defendant’s parents. There is no evidence that defense counsel sacrificed the interest of the feme defendant for that of her husband.

Finally, we do not find that the feme defendant was denied effective assistance of counsel because defense counsel did not move for severance or request instructions that evidence of the 4 February 1982 crimes be limited to the homme defendant. The feme defendant has not shown that the joint trial deprived her of a fair trial. See State v. Slade, 291 N.C. 275, 229 S.E. 2d 921 (1976).

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Related

State v. Weaver
473 S.E.2d 362 (Court of Appeals of North Carolina, 1996)
State v. Brewington
341 S.E.2d 82 (Court of Appeals of North Carolina, 1986)

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Bluebook (online)
309 S.E.2d 553, 65 N.C. App. 519, 1983 N.C. App. LEXIS 3534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-summerford-ncctapp-1983.