              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1113

                               Filed: 17 October 2017

Mecklenburg County, No. 13CRS207997

STATE OF NORTH CAROLINA,

             v.

REUBEN TIMOTHY CURRY, Defendant.


      Appeal by defendant from judgment entered 4 March 2016 by Judge Gregory

R. Hayes in Mecklenburg County Superior Court. Heard in the Court of Appeals 17

May 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Teresa M.
      Postell, for the State.

      Paul F. Herzog for defendant-appellant.


      BERGER, Judge.


      On March 4, 2016, Reuben Timothy Curry (“Defendant”) was sentenced to life

in prison after a Mecklenburg County jury found him guilty of first degree murder.

Defendant alleges the trial court abused its discretion in denying defense counsel’s

motion to withdraw. Defendant also contends his trial counsel provided ineffective

assistance on two separate grounds: (1) counsel failed to articulate “the specific

nature of the problems” between counsel and Defendant such that the trial court was

unable to determine if an impasse existed; and (2) counsel failed to take advantage of
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a third opportunity to cross-examine one of the State’s witnesses. As to each of

Defendant’s arguments, we disagree.

                          Factual & Procedural Background

      Ronny Steele (“Steele”) died from a gunshot wound he suffered on February

25, 2013.   Evidence presented at trial tended to show that Defendant was a

participant in an ambush-style attempted robbery and ensuing “gun battle” in which

Steele was killed. Defendant was indicted for first-degree murder and robbery with

a dangerous weapon.

      Just prior to trial, Defendant provided defense counsel with a list of three facts

he wished to concede: (1) he was at the scene of the crime; (2) he “had or fired a gun”;

and (3) he was part of an attempted robbery. A closed hearing was held regarding

these possible admissions, and counsel advised the trial court that Defendant’s newly

discovered veracity would impact his ability to handle the case and implicate

Harbison concerns. Defense counsel was concerned that he could no longer be an

effective advocate for Defendant “knowing what I know now.”

      The trial court conducted the following colloquy with Defendant, in closed

proceedings:

               THE COURT: Okay. Mr. Curry, would you stand please,
               sir.

               Once again, this conversation is not confidential but it's
               confidential in terms of where we are in the proceeding
               right now.


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The DA is not present. The jury's not present. It's just me
and the court reporter, your attorney, and you, the sheriff
and the clerk and a family member of yours, I believe.

DEFENDANT: Yes, sir.

THE COURT: What your attorney is wanting to make sure
you understand is you don't have to make admissions of
any kind that you were there at the scene of this
occurrence, that you had or fired a gun, or that you were
part of what the jury may believe was an attempted
robbery. Those are all getting real close to admissions --
some admissions of guilt on your part.

DEFENDANT: Yes, sir.

THE COURT: Do you understand that?

DEFENDANT: I'm aware of it.

THE COURT: And that puts your attorney in a very, very
precarious position because, as the trial goes forward, his
job is that you carry all the weight to the end the
presumption of not guilty that's with you right now. You
understand?

DEFENDANT: Yes, Your Honor. I'm aware.

THE COURT: Why are you asking him to say things that
may tend to indicate your guilt of this matter?

DEFENDANT: Because the things I asked him to say, they
don't speak to the crime that I'm on trial for. So I'm really
not trying to hide the fact because there were prior
statements made during the investigation of this matter
that the DA received and I -- I had worries about them
maybe introducing those statements and trying to use
them as the -- portray me into a liar.



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THE COURT: Unless you take the stand, your prior
statements won't ever -- the jury will never hear any
statements you made -- well, I take it back.

They may -- if you were -- are there statements that are
going to come in of [Defendant's] after Miranda?

[DEFENSE COUNSEL]: No, Your Honor.

THE COURT: Okay. And so the only statement --

[DEFENSE COUNSEL]: Well, first there was no Miranda
warnings, but that part of the interrogation, the DA elected
not to proceed with that part. So the part that --

THE COURT: Right. The interrogation that occurred at the
law enforcement center, the DA said he's not going to use
that at this point. The only thing that's going to come into
evidence in terms of what you may have said were those --
I think the statements at the hospital.

DEFENDANT: Correct.

THE COURT: Right. Those statements that you may have
made at the hospital to that very first detective that
showed up there. And that was Detective Redfern.

DEFENDANT: Yes, sir.

[DEFENSE COUNSEL]: Correct.

THE COURT: But I don't think Detective Redfern's
statements are going to go as far as you're asking your
attorney to go in getting real close to that edge of making
admissions against your interest. You're asking your
attorney to ride a very fine line, in that, if he says you were
there, if he says you had or fired a gun, and if he says that
you may find that I was part of an attempted robbery,
that's getting right up to the edge of going beyond your
presumption of innocence and giving the jury stuff that you


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don't have to give the jury.

Your attorney can -- as he's done during the three or four
days we've already been involved in this has argued to this
jury at every phase that you're innocent until proven guilty
beyond a reasonable doubt. He's never wavered from that.
And you're asking him now to take some steps that put him
in a very difficult position.

It's your case. And as I told you I think when I had the
discussion with you earlier, your wishes control what
happens.

DEFENDANT: Yes.

THE COURT: You have -- your attorney has to do what you
say. In other words -- you'll get to this point much later in
the trial. If you want to testify, he might advise you not to
but you -- if you want to testify, no one can stop you.

DEFENDANT: Yes, Your Honor.

THE COURT: That's another part of the trial.

There's a theory in the law that says, if there's an impasse
between the two of you on how you should proceed, that he
has to follow your wishes. Now he's worried about following
-- that's why he's brought it to my attention, outside of the
DAs, is that he's worried that if he follows your wishes,
you're putting him in a position of admitting things to this
jury that he doesn't want to -- I don't think he wants to
admit.

Do you, [defense counsel]?

[DEFENSE COUNSEL]: Do not, Your Honor.

THE COURT: I don't think he thinks that's in your best
interest to admit these things.



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             DEFENDANT: We spoke briefly before you entered and I
             was getting his advice on it. So, I mean, I may not
             necessarily go through with it but I just would ask him --

             THE COURT: Good. I'll give you some more time to talk
             with him about it because now that you and I have
             discussed it, you may see -- I think that his indication is --
             how long have you been a defense attorney, [defense
             counsel]?

             [DEFENSE COUNSEL]: Since 1986.

             THE COURT: Okay. And his advice I think -- I'm telling
             you his advice is, don't ask him to include these things in
             your opening statement. It's against your interest and it is
             perilously close to proving some things that the State really
             has to prove. Okay?

             DEFENDANT: Yes, Your Honor.

             THE COURT: So I'm going to give you some more time to
             talk to [defense counsel] regarding this and then you may
             ask -- and then this will be part of the record but if you
             choose after this conversation to have him not include
             these things in the opening statement, they won't be
             included. There will be -- the jury and the DA will never
             know about it.

             DEFENDANT: Okay.

             THE COURT: Okay?

             DEFENDANT: Yes, sir.

             THE COURT: So go ahead and talk to [defense counsel].

      Defendant and the court subsequently discussed this situation, and Defendant

told the court,



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             I mean, there's a method to my madness. I mean, I was
             thinking I don't want the jury to look at me as -- in a
             deceptive manner, like I'm trying to deceive them on
             certain parts of the case.

             But we discussed this. Like I said, I told him that if he felt
             more confident doing it the way that he was -- that he was
             initially going to do it, and I was fine with that.

The trial court then specifically asked Defendant about the admissions and his

satisfaction with counsel:

             THE COURT: Okay. So now what's your decision
             about the issue of whether you were there or the issue of
             whether or not you fired a gun?

             DEFENDANT: I leave it to him. I let him --
             he can go with what he had.

             THE COURT: You're not making any specific
             request that he include those things in his opening
             statement?

             DEFENDANT: No, sir, Your Honor.

             THE COURT: So you changed your mind regarding
             that issue?

             DEFENDANT: Yes, sir.

             THE COURT: Okay. And I think that's good advice
             that you follow -- I think your attorney's advice is that
             you not include those things in your opening statement.
             And so you're following your attorney's advice?

             DEFENDANT: Yes, sir.

             THE COURT: Okay. Are you making that decision
             of your own free will, fully understanding what you're


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            doing?

            DEFENDANT: Yes, sir.

            THE COURT: Do you have any questions of me
            regarding that decision?

            DEFENDANT: None, Your Honor. No, sir, Your
            Honor.

            THE COURT: Are you satisfied with your
            attorney's services to this point in urging that you allow
            him to make the opening statement that he wants to make
            and not include these elements that you wanted?

            DEFENDANT: Yes, sir.

            THE COURT: Are you satisfied with his services?

            DEFENDANT: Yes, sir.

            ....

            THE COURT: Okay. So he's going to make his
            opening the way he thinks it ought to be made in your
            behalf and not include those things -- one, two, and
            three -- that we discussed. He's not going to make those
            things.

            DEFENDANT: Yes, sir.

            THE COURT: And you're okay with that?

            DEFENDANT: Yes, Your Honor.

      Defense counsel again expressed to the court that the three new facts provided

“five minutes before opening statement” and subsequent out-of-hand dismissal of




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those facts by Defendant created concerns about counsel’s ability to zealously

represent Defendant.

      At trial, defense counsel gave an opening statement in which he told the jury,

among other things, that Defendant “is not guilty of attempted armed robbery,” that

the evidence will “show that [Defendant] did not attempt to rob anyone,” and that the

“evidence will show that it was not a robbery or an attempted armed robbery.” These

statements were contrary to the facts Defendant disclosed to counsel.

      Defense counsel, at the direction of the trial court and the North Carolina State

Bar, filed a Motion to Withdraw As Counsel during the trial. Counsel’s motion to

withdraw specifically alleged the following:

      (1)    Defendant wanted counsel to raise the three factual issues discussed

             above. Counsel addressed these issues with the trial court, and the court

             advised Defendant he should follow counsel’s advice and not include the

             information in opening.

      (2)    Defendant and defense counsel continued to discuss the request, and

             Defendant agreed to withdraw one of his requests.

      (3)    When they returned to the courtroom, “[c]ounsel expressed to the [c]ourt

             that counsel was conflicted by what he had just learned by reading

             Defendant’s request to be told to the jury in the Opening Statement.”




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(4)   After additional discussion with the trial court, Defendant agreed that

      counsel could conduct opening without Defendant’s three requested

      facts.

(5)   Counsel and Defendant discussed how the proposed facts “caused a

      conflict in counsel’s trial strategy and created a conflict concerning

      counsel[’s] duties pursuant to the Rules of Professional Conduct.”

(6)   At that point, “discussions with Defendant[] and the statements made

      by Defendant only tended to exacerbate the conflicts.”

(7)   Defense counsel then believed that, based upon the seriousness of the

      charge and the Rules of Professional Conduct, that he needed to contact

      the North Carolina State Bar “to seek guidance and advice.”

(8)   Counsel was unable to reach the appropriate person with the Bar, and

      provided relevant information to the court. The trial court agreed that

      the issue “merited a discussion with Ethics Counsel at the North

      Carolina State Bar.”

(9)   Counsel spoke with Ms. Nichole P. McLaughlin, Assistant Ethics

      Counsel with the North Carolina State Bar, about the following: “the

      nature of the charge”; “the length of time counsel has represented the

      [D]efendant”; “where we were in the trial proceedings”; Defendant’s

      request and subsequent discussions; and “how counsel perceived the



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         information impacted the opening statement, ability to conduct effective

         cross examination and execute the previously prepared trial strategy

         going forward.” (Emphasis added).

(10)     Ms. McLaughlin advised counsel to review Rules of Professional

         Conduct 1.1,1 1.3,2 1.7,3 and 1.16,4 reminded counsel of the

         confidentiality requirements of Rule 1.6,5 and to seek the trial court’s

         permission to withdraw because he had “a personal conflict.”

(11)     Counsel reviewed the Rules of Professional Conduct and stated:

         a.    “There is a conflict to counsel [sic] adherence to Rule 1.3, Diligence

               to the client, and Rule 3.3 Candor towards the tribunal.”

         b.    “There is a conflict to counsel [sic] adherence to Rule 1.6,

               Confidentiality of information and Rule 3.3, Candor towards the

               tribunal.”

         c.    “There is conflict pursuant to Rule 1.3, Diligence, that counsel has

               reservation concerning the ability to zealous [sic] advocate on

               client’s behalf.”




1   Rule 1.1 Competence
2   Rule 1.3 Diligence
3   Rule 1.7 Conflict of Interest: Current Clients
4   Rule 1.16 Declining or Terminating Representation
5   Rule 1.6 Confidentiality of Information

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             d.   Counsel’s duty of candor to the trial court pursuant to Rule 3.3 “has

                  resulted and will continue to result in such an extreme

                  deterioration of the client-counsel relationship that counsel can no

                  longer competently represent the client pursuant to Rule 3.3,

                  Comment (16).”

      (12)   Counsel was concerned that his adherence to Rule 3.3 as it relates to the

             cross examination of one witness may have negatively impacted

             Defendant.

Defense counsel informed the court that the attorney-client relationship had been

destroyed because “counsel does not know what to believe.” Defense counsel and the

court then had the following discussion:

             [DEFENSE COUNSEL]: I try and present my defense
             strategy based on what the evidence shows till the client
             tells me what happened. Then that does, I guess, some --
             impose some requirement that counsel marshal the
             defense that client requests. But it goes back in this case
             of whether or not I can believe what he's told me. And my
             conclusion at this point is that I cannot believe anything
             that he's told me with regard to the mere material issues
             at point in this case because they've changed over time.

             THE COURT: And that's the vacillation that I'm
             talking about. If he has changed what he's telling his
             attorney, he can't benefit from that at this stage of this
             trial. You'll just have to do -- do the professional job
             that I know that you can do to represent him.




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        The trial court denied defense counsel’s motion to withdraw.          The jury

convicted Defendant of first-degree murder on the theories of felony murder and lying

in wait, and Defendant was sentenced to life in prison without parole. The State did

not proceed on the robbery with a dangerous weapon charge. Defendant gave notice

of appeal in open court.

                                        Analysis

        Defendant contends the trial court erred in denying counsel’s motion to

withdraw, and alleged defense counsel provided ineffective assistance by (1) failing

to articulate that an impasse existed, and (2) failing to take advantage of an

additional opportunity to cross examine one of the State’s witnesses. As to each of

Defendant’s contentions, we disagree.

   I.     Motion to Withdraw

        A motion to withdraw as counsel may be granted upon “good cause” shown.

N.C. Gen. Stat. § 15A-144 (2015). “Whether an attorney can withdraw as counsel is

a matter in the sound discretion of the trial judge.” State v. Moore, 103 N.C. App. 87,

100, 404 S.E.2d 695, 702 (citation omitted), disc. rev. denied, 330 N.C. 122, 409 S.E.2d

607 (1991). “Appellate courts will not second-guess a trial court's exercise of its

discretion absent evidence of abuse.” State v. Smith, 241 N.C. App. 619, 625, 773

S.E.2d 114, 118-19 (citation and quotation marks omitted), disc. review denied, 368

N.C. 355, 776 S.E.2d 857 (2015). “Abuse of discretion results where the court’s ruling



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is manifestly unsupported by reason or is so arbitrary that it could not have been the

result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523,

527 (1988) (citation omitted).

      Defense counsel set forth several purported reasons to justify his withdrawal;

however, all stemmed from what the State Bar called a “personal conflict.” The

content of the motion and the arguments of counsel to the court demonstrate that the

“personal conflict” was directly related to his inability to believe what Defendant told

him. As the State Bar confirmed, defense counsel did not have an actual conflict, and

there is no evidence he breached the rules of professional conduct. Counsel had

represented Defendant for nearly three years, and had presumably expended

significant time and resources preparing for trial.       In addition, there was no

disagreement about trial strategy, nor was there an identifiable conflict of interest.

The trial court was correct to advise defense counsel that he would “just have to do - -

do the professional job that I know that you can do to represent him.” It cannot be

said that the trial court’s denial of the motion to withdraw was arbitrary or manifestly

unsupported by reason.

      Moreover, Defendant is required to show prejudicial error resulted from the

denial of the motion to withdraw. State v. Thomas, 350 N.C. 315, 328, 514 S.E.2d

486, 495 (“In order to establish prejudicial error arising from the trial court's denial

of a motion to withdraw, a defendant must show that he received ineffective



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assistance of counsel.” (citation omitted)), cert. denied, 528 U.S. 1006, 145 L. Ed. 2d

388 (1999).     As more fully discussed below, Defendant has failed to establish a

reasonable probability of a different result in this case.

   II.      Ineffective Assistance of Counsel

         Ineffective assistance of counsel (“IAC”) claims are typically “considered

through a motion for appropriate relief filed in the trial court and not on direct

appeal.” State v. Mills, 205 N.C. App. 577, 586, 696 S.E.2d 742, 748 (2010) (citing

State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001)). See also State

v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d 719, 721 (1985) (“The accepted practice

is to raise claims of ineffective assistance of counsel in post-conviction proceedings,

rather than direct appeal.” (citation omitted)). “However, a defendant's ineffective

assistance of counsel claim brought on direct review will be decided on the merits

when the cold record reveals that no further investigation is required . . . .” Mills,

205 N.C. App. at 586, 696 S.E.2d at 748 (citation and quotation marks omitted). No

further investigation is necessary in this matter as there is ample evidence in the

record to decide Defendant’s two IAC claims.

         Under the Sixth and Fourteenth Amendments of the United States

Constitution and Article 1, Sections 19 and 23 of the North Carolina Constitution,

“[a] defendant’s right to counsel includes the right to effective assistance of counsel.”

State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985) (citation omitted).



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In Braswell, our Supreme Court “expressly adopt[ed] the test set out in Strickland v.

Washington[, 466 U.S. 668, 80 L. Ed. 2d 674 (1984),] as a uniform standard to be

applied to measure ineffective assistance of counsel under the North Carolina

Constitution.” Braswell, 312 N.C. at 562-63, 324 S.E.2d at 248.

        On appeal, a defendant must show that counsel’s conduct “fell below an

objective standard of reasonableness” to prevail. Strickland, 466 U.S. at 688, 80 L.

Ed. 2d at 693. To meet this burden, the defendant must satisfy a two part test:

              First, the defendant must show that counsel's performance
              was deficient. This requires showing that counsel made
              errors so serious that counsel was not functioning as the
              “counsel” guaranteed the defendant by the Sixth
              Amendment. Second, the defendant must show that the
              deficient performance prejudiced the defense.            This
              requires showing that counsel's errors were so serious as to
              deprive the defendant of a fair trial, a trial whose result is
              reliable.

Id. at 687, 80 L. Ed. 2d at 693. Furthermore, a defendant alleging that counsel failed

to carry out his duties with the proficiency required by the Sixth Amendment must

identify the specific acts or omissions of counsel that were not the result of

“reasonable professional judgment.” Id. at 690, 80 L. Ed. 2d at 674.

   A.      Purported Impasse

        Defendant asserts that his counsel was ineffective by “failing to articulate for

the record the specific nature of the problems between himself and the defendant

leading to an impasse.” We disagree.



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      It is well established in our courts that “[t]actical decisions, such as which

witnesses to call, whether and how to conduct cross-examinations, what jurors to

accept or strike, and what trial motions to make are ultimately the province of the

lawyer.” State v. Ward, ___ N.C. App. ___, ___, 792 S.E.2d 579, 582 (2016) (citations

and quotation marks omitted), disc. rev. denied, ___ N.C. ___, 795 S.E.2d 371 (2017).

“However, when counsel and a fully informed criminal defendant . . . reach an

absolute impasse as to such tactical decisions [during trial], the client’s wishes must

control . . . .” Id. (citation omitted). However, no actual impasse exists where there

is no conflict between a defendant and counsel. State v. Wilkinson, 344 N.C. 198, 211-

12, 474 S.E.2d 375, 382 (1996). Moreover, when a defendant fails to complain about

trial counsel’s tactics and actions, there is no actual impasse. State v. McCarver, 341

N.C. 364, 385, 462 S.E.2d 25, 36 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482

(1996). In the case at hand, there was neither disagreement regarding tactical

decisions, nor was there anything in the record which would suggest any conflict

between defendant and defense counsel. Thus, no impasse existed.

      Defendant’s arguments on this issue go solely to issues surrounding counsel

having “no confidence in anything his client told him, and that he did not know what

to believe when it came to [Defendant’s] statements about the events of February 25,

2013.” Defendant makes no argument rooted in law that an impasse existed, besides

using conclusory terms. In addition, Defendant points to no authority which would



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require a finding of an impasse where defense counsel did not believe what a criminal-

defendant client told him.

        Throughout the trial, defense counsel informed the court and Defendant of the

nature of the concerns or disagreements the two had, but counsel specifically followed

Defendant’s wishes and desires concerning representation. Defense counsel gave the

opening statement that he and Defendant agreed upon, despite counsel’s knowledge

that what he was relaying to the jury was inconsistent with the Defendant’s newly

discovered veracity. If Defendant was “fine with that,” as he informed the court, no

impasse existed. This is true regardless of defense counsel’s personal conflict, ethical

quandary, or Defendant’s perceived malleability of the truth.

        Defendant was the sole cause of any purported conflict that developed, and

there has been no reasonable or legitimate assertion by Defendant that an impasse

existed that would require a finding that counsel was professionally deficient in this

case. Because Defendant, of his own free will, was in agreement with counsel as to

the actions to be taken at trial, Defendant’s contention that his counsel was

ineffective is without merit, and this IAC claim is denied.

   B.      Failure to Cross-Examine Witness

        Defendant also alleges trial counsel provided ineffective assistance when he

did not cross-examine witness Tarod Ratlif for a third time to inquire about his

“recollection concerning who actually shot the victim.”       Defendant asserts that



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additional questioning “would have supported his theory” that Brandon Thompson

(“Thompson”) killed Ronny Steele.          Defendant concedes that no additional

investigation is needed, and this issue can be decided on the merits.

      Ratlif testified on direct examination that a group that included Defendant and

a group that included Thompson exchanged gunfire on the evening Steele was killed.

             Q. Okay. Can you tell me -- could you tell from
             where the gunshots were coming?

             A. Yes.

             Q. And from where did you hear gunshots coming?

             A. From both sides of me, from the left and the
             right.

             Q. So you can hear them coming from your left side
             and your right side?

             A. Yes, sir.

             Q. And do you know exactly how many gunshots you
             heard?

             A. No, sir. Not today.

Ratlif testified that after the shooting, Steele informed him he was hit, but Ratlif did

not believe Steele.

      In discussions with the trial court and Defendant regarding Ratlif’s testimony,

defense counsel stated, “Recalling Mr. Ratlif -- think I went about as far with Mr.




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Ratlif as I could do based upon what I knew . . . .” The trial court, regarding counsel’s

questioning of Ratlif, stated:

             But I thought that in your cross-examination of Mr. Ratlif
             and [another witness] that you set forth the theory that
             this, A, may not have been a robbery at all; and B, once
             somebody other than [Defendant] may have shot Mr. Steele
             in this gun battle. And I think you argued that this was a
             gun battle in your opening remarks. Nobody on the stand
             so far has pointed a finger at [Defendant] as the
             perpetrator of any crime.

That prompted the following exchange between the trial court and Defendant:

             DEFENDANT: I just want to state that I am concerned
             with his confidence of going forward as far as with the --
             you know, his ability to be a fully effective, but I am -- I am
             -- I have been satisfied with his service so far and I feel like
             I wouldn't rather any different attorney be my attorney
             unless, you know, he is at the point to where he can't be
             fully effective going forward.

             THE COURT: He's a professional. He can -- [defense
             counsel] has said under my questioning, he's protecting
             your rights. He's not divulging matters that -- client
             confidentiality matters. He's not divulging them. He's
             done, I thought, a fine job of setting forth your theory of the
             case so far that someone else shot Mr. Steele or maybe shot
             in a gun battle. That Mr. Ratlif or [another witness] has
             pointed a finger at you.

             And I thought [defense counsel] did a good job of cross-
             examination pointing out conflicts in their testimony and
             their statements to the police in their prior testimony and
             prior matters involving the death of Mr. Steele. I know
             there have been prior trials where Mr. Ratlif and [another
             witness] testified. And I thought [defense counsel] pointed
             out some good conflicts. You know what I mean by that?



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             DEFENDANT: Yes, sir.

             THE COURT: Some statements they made earlier that
             were different from the statements they were making in
             this trial.

             Did you think [defense counsel] did a good job of that?

             DEFENDANT: Yes, sir.

             THE COURT: Okay. So as we go forward, he's going to --
             he's going to keep me advised if you -- if we reach a stage
             where you want a particular thing to happen with your
             case and you don't think [defense counsel] understands it
             or is going to do it, as long as it's a lawful request and you're
             -- and you're not asking him to violate the law or
             perpetuate a fraud upon the [c]ourt and as long as any
             request that you make of [defense counsel] can be
             supported by a good faith argument for an extension
             modification or reversal of existing law, then he will comply
             with your wishes as the trial progresses in defending your
             case the way that you want to defend it. Okay?

             DEFENDANT: Yes, sir.

             THE COURT: And at this point, you are satisfied with
             [defense counsel’s] representation of you in this trial?

             DEFENDANT: Yes, Your Honor. I've been satisfied with
             [defense counsel].

      Defense counsel in his motion to withdraw did state that he was concerned that

his failure to ask additional questions regarding Thompson’s actions may have

precluded jury instructions consistent with State v. Bonner, 330 N.C. 536, 411 S.E.2d

598 (1992), and State v. Oxendine, 187 N.C. 658, 122 S.E. 568 (1924). Defendant

acknowledges and the transcript reveals, however, that the trial court gave


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                                    Opinion of the Court



instructions consistent with Bonner and Oxendine.          In addition, defense counsel

argued in closing:

             And we know Brandon Thompson had a gun. But you
             haven't seen Brandon Thompson come into this courtroom.
             We know Brandon Thompson was shooting because Tarod
             Ratlif said he was shooting, but you haven't seen Brandon
             Thompson come into this courtroom and testify to you
             under oath that he did not have a gun. And if he had a gun,
             why didn't he give it to the police? He hasn't come in.

      Ratlif testified that he heard gunfire coming from the direction of Defendant

and Thompson. He also testified that Thompson had a gun and did not deny that

Thompson had shot the gun. Counsel’s questioning allowed him to argue to the jury

that someone other than Defendant shot Steele. As the trial court noted, defense

counsel “set forth the theory that this . . . may not have been a robbery at all; and . . .

somebody other than [Defendant] may have shot Mr. Steele in this gun battle.”

      In fact, Defendant concedes in his brief that the jury considered whether

Thompson shot Steele.       During deliberations, the jury submitted the following

question to the trial court: “If [Thompson] shot and killed [Steele,] how would that

apply to element [two]?” While the prosecutor provided language that he believed

addressed the jury’s question, it was Defendant who requested the following

instruction be given: “The killing of Ronny Steele must be the act of the [D]efendant

or by someone with -- with whom the [D]efendant was acting in concert.”




                                           - 22 -
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                                 Opinion of the Court



      The trial court addressed several items with the jury, and then discussed the

question regarding Thompson:

            THE COURT: The next is actually a question. The next
            thing says, "If [Thompson] shot and killed [Steele], how
            would that apply to element two?"

            In response to that question, this is the response from the
            Court:

            The killing of Ronny Eugene Steele must be by an act of
            the Defendant, Reuben Timothy Curry, or by an act of
            someone with whom the [D]efendant was acting in concert
            with.

            Does that answer that question?

            [JUROR]: Yes, sir.

      The jury was properly instructed that Defendant could only be convicted if he,

or “someone with whom the [D]efendant was acting in concert with” killed Steele.

The jury deliberated on and considered whether Thompson shot Steele based on the

question they submitted.

      Even if we assume that Defendant satisfied the first Strickland prong for both

issues, which he has not, Defendant cannot satisfy the second prong as there is no

showing of prejudice.   There was sufficient evidence before the trial court that

Defendant, or those acting in concert with Defendant, shot and killed Steele.

Defendant was at the crime scene.      Defendant was convicted because he was a

participant in an attempted robbery and ensuing “gun battle” during which Steele



                                        - 23 -
                                   STATE V. CURRY

                                   Opinion of the Court



was fatally shot, even if he may not have fired the fatal bullet. There is no reasonable

probability of a different result in this case. Based upon the abundant evidence in

the record, Defendant’s IAC claims are denied.

                                      Conclusion

      Upon consideration of the record herein and the arguments of counsel, we

conclude the trial court did not abuse its discretion in denying defense counsel’s

motion to withdraw, and Defendant’s IAC claims are denied.

      NO ERROR IN PART; DENIED IN PART.

      Judge DILLON concurs.

      Judge ZACHARY concurs in result only.




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