State v. Holliday, COA22-852, ___ N.C. App. ___ (Jul. 18, 2023)

In this Mecklenburg County case, defendant appealed his conviction of trafficking in fentanyl by possession, arguing error in the trial court’s failure to instruct defense counsel to call an out-of-state witness. The Court of Appeals found no error. 

An officer from the Cornelius Police Department observed defendant and a woman parked at a hotel in Cornelius, and as the couple left the car and headed to the hotel, the officer approached and inquired about the vehicle. Defendant eventually consented to a search of the vehicle that turned up fentanyl and other substances. Defendant was arrested, but the woman (a resident of West Virginia) was allowed to leave. At trial, defendant brought his dissatisfaction with his counsel to the court’s attention, and defense counsel acknowledged that he had disagreed with defendant about calling the woman to testify. The trial court explained that defense counsel could not subpoena a witness from outside the state to testify, and inquired about the dissatisfaction with defense counsel. After a discussion regarding defendant’s plans to hire alternative counsel, the trial court determined that defendant had not actually taken steps to hire another attorney, and that the disagreement with defense counsel was primarily over trial strategy. The trial court denied defendant’s motion to substitute counsel and the trial proceeded, resulting in defendant’s conviction. 

On appeal, defendant argued that the trial court should have either allowed substitute counsel or directed defense counsel to call the out-of-state witness. The Court of Appeals disagreed, noting that while “it is reversible error for the court to allow the attorney’s decision to prevail over the defendant’s wishes” when an absolute impasse has been reached, “not all tactical disagreements between a defendant and his or her attorney rise to the level of ‘absolute impasse.’” Slip Op. at 9-10. Here, the record reflected that defense counsel though the issue was resolved after their disagreement and did not realize that defendant still expected him to pursue securing the woman’s testimony. Since defendant could not demonstrate an absolute impasse, the trial court committed no error. The court also considered defendant’s motion to substitute counsel, concluding that it was abandoned as defendant offered no supporting arguments on appeal.