State v. McNeill, ___ N.C. ___, 813 S.E.2d 797 (Jun. 8, 2018)

(1) Addressing the merits of the defendant’s Strickland ineffective assistance of counsel claim in this direct appeal in a capital case, the court rejected the defendant’s argument that he received ineffective assistance of counsel when his lawyers disclosed to law enforcement where to look for the five-year-old child victim. Because the trial court heard evidence and made findings on this issue in a pretrial motion, the court determined that no further investigation was required and it could address the merits of the claim on direct appeal. After the defendant was charged with kidnapping, he engaged the services of attorney Rogers, who immediately associated with attorney Brewer to assist in the matter. When Rogers and Brewer undertook representation of the defendant on 13 November, the victim had been missing since the morning of 10 November and a massive search was underway, in hope that the child would be found alive. The defendant admitted to police that he had taken the victim to a hotel. Hotel cameras and witnesses confirmed this admission. By 12 November, law enforcement agencies and volunteers were searching the area around Highway 87, where the defendant’s cell phone data had placed him. Rogers had conversations with law enforcement and was aware of the evidence against the defendant and of the defendant’s admission to taking the victim to the hotel. Rogers was also aware of the defendant’s three felony convictions, which constituted aggravating circumstances that could be used at a capital sentencing proceeding. Rogers and Brewer met with the defendant and discussed the fact that the child had not been found and the possibility that capital charges could be forthcoming. The defendant denied hurting or killing the victim. Rogers asked the defendant if he had any information about the victim’s location, and the defendant told Rogers and Brewer that he did. Rogers and Brewer discussed the death penalty with the defendant, and the defendant agreed that it would be in his best interest to offer information that might be helpful as to the victim’s location. Rogers explained that providing this information could be helpful with respect to a possible plea agreement or with respect to mitigating circumstances and could avoid a sentence of death. The defendant agreed with Rogers and Brewer that they would tell law enforcement where to search for the victim, without specifically stating the defendant’s name or that he was the source of the information. According to Rogers, he was trying to give the defendant the best advice to save the defendant’s life, and the defendant understood the situation and agreed with the strategy. On 14 and 15 November Brewer told law enforcement where to look for the victim. On 16 November, the victim’s body was found in the specified area.

On appeal, the defendant argued that his lawyers’ conduct was deficient because they gave the State incriminating evidence against him without seeking any benefit or protection for the defendant in return. He asserted that his attorneys’ conduct was objectively unreasonable because they had a duty to seek or secure a benefit for him in exchange for the disclosure. The court disagreed. The court determined that to the extent counsel has a duty to seek a benefit in exchange for disclosing information, here the lawyers did so. The purpose of the disclosure was to show that the defendant could demonstrate cooperation and remorse, which would benefit the defendant in the form of achieving a plea agreement for a life sentence or as to mitigating circumstances and ultimately to avoid the death penalty. In fact, the State made a plea offer of life in prison, which the defendant rejected, and he later refused to present mitigating evidence at trial. Despite his agreement at the time of the disclosure, the defendant argued on appeal that a plea agreement for life in prison to avoid the death penalty was not a reasonable objective that could justify the disclosure of incriminating evidence at that stage because his attorneys were aware that he denied causing the victim harm and because, according to the defendant, “everything turned” on his innocence defense. The court found this contention difficult to square with the record, in light of the fact that defense counsel also were aware that the defendant had in essence confessed to kidnapping the child in the middle of the night and taking her to a remote hotel where he was the last and only person seen with her. Moreover, they knew he had information on her remote location, though he was unwilling to disclose how he acquired that information. They knew that this information directed law enforcement to search a more specific area in the vicinity in which an extensive search tracking the defendant’s cell phone data was already underway, suggesting an incriminating discovery would be imminent. Thus, while the disclosure certainly would be incriminating to the defendant and could lead to additional incriminating evidence against him, the disclosure must be viewed in light of the already heavily incriminating evidence against the defendant, and the likelihood that further incriminating evidence would be forthcoming.

The defendant further argued that his lawyers should have pushed harder for better concessions for him. Recognizing that in many situations it may make strategic sense for counsel to negotiate the best possible agreement before disclosing potentially incriminating information, the court noted that that is not necessarily true in situations such as this one, where time was a substantial factor. Had law enforcement located the victim’s body before the defendant’s disclosure, the opportunity to obtain any benefit in return for the information would have been irrevocably lost. Additionally, given that the defendant denied causing the victim harm, there was a possibility that the victim was still alive. In the end, the court disagreed with the defendant that his attorneys acted unreasonably by targeting a plea agreement for life imprisonment and avoiding the death penalty in exchange for making the disclosure. “[U]nder the unique and difficult circumstances here--with the already heavily incriminating evidence against defendant, as well as the apparent likelihood that the discovery of further incriminating evidence could be imminent” and the presumption of reasonableness of counsels’ conduct, the court held that the lawyers’ decision to disclose potentially incriminating information with the sought-after goal of avoiding imposition of the death penalty did not fall below an objective standard of reasonableness.

The court determined that it need not resolve the more difficult question of whether defense counsel erred by not first securing or attempting to secure a plea agreement for life in prison before making the disclosure. It explained: “we need not answer this question because, given that we have held that a plea agreement for life in prison and avoidance of the death penalty was a reasonable disposition in these circumstances, defendant cannot establish any prejudice when the State did offer defendant a plea agreement for life in prison.”

(2) The court rejected the defendant’s argument that his attorneys were deficient by failing to conduct an adequate investigation before disclosing to the police where to search for the victim, finding that the defendant’s assertions were not supported by the record. For example, the defendant argued that lawyer Rogers failed to look at any formal discovery materials before making the disclosure, yet Rogers testified that at that early stage of the case there was no discovery file to examine. Considering the defendant’s other assertions, the court found that the defendant was unable to identify anything Roger’s allegedly inadequate investigation failed to uncover and which would have had any effect on the reasonableness of his lawyers’ strategic decision to make the disclosure. Nor, the court noted, does the defendant suggest what other avenues the lawyers should have pursued.

(3) The court rejected the defendant’s assertion that his lawyers erroneously advised him that they would shield his identity as the source of the information but that their method of disclosure revealed him as the source. The defendant’s argument was premised on the fact that his agreement with his lawyers was conditioned on their implicit promise that they would prevent the disclosure from being attributed to the defendant, even by inference. The court found that this assertion was not supported by the record, noting that the entire purpose of the disclosure, to which the defendant agreed, was that it be attributable to the defendant to show cooperation. The court found that the fact that the defendant and his lawyers agreed not to explicitly name the defendant as the source of the disclosure cannot be read as an implicit understanding that his lawyers would shield him as the source but rather must be read in the context of their conversation, in which the defendant told his lawyers that he had information about the victim’s location but did not explain how he had acquired that information. The method of disclosure allowed an immediate inference of cooperation but avoided any inadvertent admission of guilt. The court explained:

Certainly, that the information came from defendant’s attorneys allowed an inference that defendant was the source, which, while demonstrating immediate cooperation on the part of defendant, was also potentially incriminating as it suggested an inference of guilt. But this trade-off goes to the heart of the agreed upon strategy—the mounting evidence against defendant was already highly incriminating, and providing this information to the police that could potentially be further incriminating was a strategic decision made to avoid imposition of the death penalty.

(4) The court rejected the defendant’s argument that by disclosing the location of the victim to the police without first securing any benefit in return, his lawyers were essentially working for the police and that the situation resulted in a complete breakdown of the adversarial process resulting in a denial of counsel. The court declined to consider this issue as a denial of counsel claim, finding that the defendant’s challenge is more properly brought as a Strickland attorney error claim, which the court had already rejected.