State v. Gray, 225 N.C. App. 431 (Feb. 5, 2013)

The defendant was entitled to a new trial where the trial court proceeded to trial over the defendant’s objection to continued representation by appointed counsel who had previously represented one of the State’s witnesses. At a pretrial hearing the State informed the trial court that defense counsel had previously represented Mr. Slade, who the State intended to call as a trial witness. The defendant told the trial court that he was concerned about a conflict of interest and asked for another lawyer. Slade subsequently waived any conflict and the State Bar advised the trial court that since Slade had consented “the lawyer’s ability to represent the current client is not affected” and that the current client’s consent was not required. The trial court conducted no further inquiry. The court held that the trial court erred by failing to make any inquiry into the nature and extent of the potential conflict and whether the defendant wished to waive the conflict. It concluded:

[W]e believe that Defendant . . . was effectively forced to go to trial while still represented by his trial counsel, who had previously represented one of the State’s witnesses and who acknowledged being in the possession of confidential information which might be useful for purposes of cross-examining that witness, despite having clearly objected to continued representation by that attorney. As a result, given that prejudice is presumed under such circumstances, Defendant is entitled to a new trial.