Smith's Criminal Case Compendium

Smith's Criminal Case Compendium


This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.


Navigate using the table of contents to the left or by using the search box below. Use quotations for an exact phrase search. A search for multiple terms without quotations functions as an “or” search. Not sure where to start? The 5 minute video tutorial offers a guided tour of main features – Launch Tutorial (opens in new tab).

E.g., 07/22/2024
E.g., 07/22/2024

Under the Sixth Amendment, a defendant has the right to insist that defense counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. The defendant was charged with three counts of first-degree murder in this capital case. Throughout the proceedings, the defendant insistently maintained that he was out of State at the time of the killings and that corrupt police killed the victims when a drug deal went wrong. The defendant’s lawyer concluded that the evidence against the defendant was overwhelming and that absent a concession at the guilt stage that the defendant was the killer, a death sentence would be impossible to avoid at the penalty phase. The defendant was furious when told about this strategy. The defendant told counsel not to make the concession, pressuring counsel to pursue acquittal. However, at the beginning of opening statements in the guilt phase, defense counsel told the jury there was “no way reasonably possible” that they could hear the prosecution’s evidence and reach “any other conclusion” than that the defendant was the cause of the victims’ death. Although the defendant protested in a hearing outside of the presence of the jury the trial court allowed defense counsel to continue with his strategy. Defense counsel then told the jury that the evidence was “unambiguous” that “my client committed three murders.” The defendant testified in his own defense, maintaining his innocence and pressing an alibi defense. In his closing argument, defense counsel reiterated that the defendant was the killer. The defendant was found guilty of all counts. At the penalty phase, defense counsel again conceded that the defendant committed the crimes but urged mercy. The jury returned three death verdicts.

The Supreme Court granted certiorari in light of a division of opinion among state courts of last resort on the question whether it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection. The Court held that the Sixth Amendment was violated. It stated: “When a client expressly asserts that the objective of 'his defence' is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.” The Court distinguished Florida v. Nixon, 543 U. S. 175 (2004), in which it had considered whether the Constitution bars defense counsel from conceding a capital defendant’s guilt at trial when the defendant, informed by counsel, neither consents nor objects. In that case, defense counsel had several times explained to the defendant a proposed guilt phase concession strategy, but the defendant was unresponsive. The Nixon Court held that when counsel confers with the defendant and the defendant remains silent, neither approving nor protesting counsel’s proposed concession strategy, no blanket rule demands the defendant’s explicit consent to implementation of that strategy. The Court distinguished Nixon on grounds that there the defendant never asserted his defense objective. Here however the defendant opposed counsel’s assertion of guilt at every opportunity, before and during trial and in conferences with his lawyer and in open court. The Court clarified: “If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest. Presented with express statements of the client’s will to maintain innocence, however, counsel may not steer the ship the other way.” It held: “counsel may not admit her client’s guilt of a charged crime over the client’s intransigent objection to that admission.” The Court went on to hold that this type of claim required no showing of prejudice. Rather, the issue was one of structural error. Thus, the defendant must be afforded a new trial without any need to first show prejudice.

The rule of State v. Harbison, 315 N.C. 175 (1985) that a criminal defendant suffers a per se violation of the right to effective assistance of counsel when counsel concedes the defendant’s guilt to the jury without the defendant’s prior consent applies to situations involving an implied admission.  The defendant was charged with habitual misdemeanor assault based on an underlying offense of assault on a female, assault by strangulation, second-degree sexual offense, and second-degree rape.  During a recorded interview with police that was played for the jury, the defendant made inculpatory statements indicating that he had “pushed [the victim],” was in a “tussle” with her, had “backhanded” and “smacked” her, and that she was visibly injured as a result.  During closing argument, defense counsel referenced these statements and referred to them as admissions while arguing that the jury should set aside its negative feelings about the defendant arising from that behavior to see that there was no basis for convicting him of rape, sexual offense, and assault by strangulation.  The jury found the defendant guilty of assault on a female and not guilty of all other charged offenses.  Following an extensive review of its precedent flowing from Harbison, the court explained that while this was not a case where defense counsel expressly asked the jury to find the defendant guilty of a specified offense, Harbison violations are not limited to such situations and also occur in situations where counsel “impliedly concedes his client’s guilt without prior authorization.”  The court said that counsel’s argument to the jury in this case was “problematic for several reasons,” including his attestations to the accuracy of the defendant’s admissions, his reminder to the jury that the victim was “hurt,” and counsel’s own opinion that “God knows he did [wrong].”  The court further noted that counsel specifically asked the jury to return a not guilty verdict for every charged offense except assault on a female, and characterized this conspicuous omission as implicitly conceding the defendant’s guilt on that charge in violation of Harbison.  The court concluded by emphasizing “that a finding of Harbison error based on an implied concession of guilt should be a rare occurrence,” and remanded the case for a determination of whether the defendant knowingly consented in advance to the admission.

Justice Newby, joined by Justice Ervin, dissented, stating the view that the jury argument in this case did not constitute the functional equivalent of an explicit admission and that a finding of ineffective assistance of counsel in a case like this requires proof of prejudice in accordance with Strickland.

In this Wake County case, defendant appealed his convictions for forcible rape, sex offense, kidnapping, various assault charges, and interfering with emergency communication, arguing (1) he was deprived of his right to autonomy in the presentation of his defense, (2) he was deprived of effective assistance of counsel when his attorney admitted guilt during closing argument, and (3) the trial court lacked jurisdiction to sentence him for habitual misdemeanor assault due to a facially invalid indictment. The Court of Appeals majority disagreed, finding no error. 

In April of 2020, defendant came to trial for assaulting and raping a woman he was dating at the time. During the trial, defense counsel informed the court that defendant would not testify or present evidence, and the trial court conducted a colloquy to ensure defendant was knowingly waiving this right. During the colloquy, defendant mentioned documentary evidence he wanted to admit, but that his attorney had not admitted. The trial court did not instruct defense counsel to introduce the evidence. During closing argument, defense counsel mentioned that defendant was not guilty of kidnapping, sexual offense, or rape, but did not mention assault. Defendant was subsequently convicted, and appealed.  

In (1), defendant contended that he and defense counsel had reached an absolute impasse about the documentary evidence, and the trial court committed a structural error by failing to instruct defense counsel to comply with defendant’s wishes to admit the evidence. The Court of Appeals first noted the rule that “where the defendant and his defense counsel reach an absolute impasse and are unable come to an agreement on such tactical decisions, the defendant’s wishes must control.” Slip Op. at 5. However, here the court was “unable to determine from the cold record whether there was a true disagreement, which would amount to an absolute impasse.” Id. at 7-8. Additionally, the court explained that even if there was an error, it was not a type recognized as structural by the Supreme Court, referencing the list identified in State v. Minyard, 289 N.C. App. 436 (2023). 

Moving to (2), defendant argued his defense counsel committed an error under State v. Harbison, 315 N.C. 175 (1985), which would represent ineffective assistance of counsel. However, the court did not see a Harbison error, noting “defense counsel here never implied or mentioned any misconduct [by defendant]” while giving closing argument. Slip Op. at 15. Instead, the court held that “[defense counsel’s] statements cannot logically be interpreted as an implied concession of Defendant’s guilt.” Id.  

Finally, in (3) defendant argued that the indictment was flawed as it failed to state the assault caused “physical injury.” Id. at 17. The court explained that here, count VIII of the indictment alleged that defendant caused “serious injury” for the assault inflicting serious injury charge. Id. at 18. The court determined that the broader term was sufficient, as “it logically follows Defendant was noticed of his need to defend against an allegation that he caused physical injury as ‘serious injury’ is defined to include physical injury.” Id. at 21. 

Judge Murphy concurred in part and dissented in part by separate opinion, and would have held that the indictment for habitual misdemeanor assault in (3) was insufficient as physical injury and serious injury were not synonymous.  

In this Gates County case, defendant appealed his conviction for first-degree murder, arguing (1) ineffective assistance of counsel, and error in (2) jury instructions and (3) failing to intervene ex mero motu during the State’s closing argument. The Court of Appeals found no ineffective assistance and no error. 

While entering a barbershop in December of 2018, defendant ran into an acquaintance (the victim) with whom he had a contentious relationship. The two exchanged words about defendant’s newborn daughter, where the acquaintance implied that defendant was not the father. Later that night after a series of phone calls, defendant and several friends went over to the acquaintance/victim’s house. After defendant arrived, he and the victim began arguing in the driveway, leading to a fistfight. After several minutes, defendant walked backwards down the driveway while the victim continued to come towards him with his hands up; defendant then shot the victim five times. Defendant fled the scene but was later apprehended walking on the side of the road. At trial, defendant’s counsel told the jury that if they found defendant used excessive force to defend himself in the situation, that would be voluntary manslaughter, not murder. Counsel also stated in closing arguments that defendant intentionally went to the victim’s house, while defendant had testified that he had fallen asleep in his friend’s car and ended up at the house unintentionally. During the State’s closing argument, the prosecutor alerted the jury to the fact that the minimum sentence for voluntary manslaughter was 38 months, suggesting the punishment would not be severe enough for the serious crime committed. When providing jury instructions, the trial court instructed the jury on the aggressor doctrine but did not provide an instruction on stand your ground laws; defendant did not object to the instructions. 

Taking up (1), the Court of Appeals explained that defendant’s first argument regarding his counsel represented conceding guilt without prior consent, a prejudicial error under State v. Harbison, 315 N.C. 175 (1985). Defendant argued that his counsel’s statements regarding use of excessive force and voluntary manslaughter represented a concession or implication of defendant’s guilt. The court disagreed, explaining that defendant was charged with first-degree murder and “the transcript reveals his counsel advocating for the jury to find Defendant either not guilty, or guilty of voluntary manslaughter.” Slip Op. at 7-8. The court also disagreed with defendant that defense counsel contradicting his testimony represented ineffective assistance. The court explained that nothing else in the record supported defendant’s testimony that he fell asleep in the car and inadvertently ended up at the victim’s house. Additionally, the purpose of this contradiction was defense counsel’s attempt to convince the jury that defendant “lacked the requisite intent to be found guilty of first-degree murder.” Id. at 10.  

Reaching (2), the court explained that it reviewed the jury instructions for plain error because defendant did not object during the trial; after review, the court concluded “that jury instructions regarding the aggressor doctrine were warranted, and instructions on stand your ground laws were not.” Id. at 11. Here, testimony in the record suggested that defendant may have initiated the fight with the victim through a phone call prior to his arrival, justifying the use of the aggressor doctrine instruction. In contrast, the court could not find justification for the stand your ground laws instruction, as there was a lack of evidence supporting defendant’s lawful right to be at the residence where the conflict took place.

Finding no error in (3), the court explained that the prosecutor’s arguments were not grounds for trial court intervention, as “[w]hile suggesting that the minimum sentence would not be severe enough punishment might run afoul of the unspoken rules of courtroom etiquette, it is not, in fact, against the law.” Id. at 13. 

In this Guilford County case, defendant appealed his convictions for communicating threats and assault charges, arguing abuse of discretion in denying his motion for a mistrial based on the late disclosure of discoverable material, and ineffective assistance of counsel by implicitly conceding guilt. The Court of Appeals found no abuse of discretion or error. 

Defendant came to trial in February of 2020 for charges related to a dispute with his girlfriend regarding access to her phone. On the Thursday before the trial, the state provided a set of body camera videos. On the first day of trial, the state provided additional photographs of the crime scene and injuries after they were mislabeled with the wrong case number. And on the second day of trial, the state provided a set of 29 phone call recordings from defendant while he was in jail. Defense counsel only raised a discovery objection to the phone call recordings produced on the second day of trial. The trial court denied the motion and allowed the state to play one of the recorded calls for the jury. At the close of state’s evidence, defendant moved for a mistrial based on the discovery violations. The trial court denied the motion.

On appeal, the Court of Appeals first noted that the right to a mistrial was not automatic, and that a mistrial was one of several sanctions permitted under G.S. 15A-910 for failure to comply with required disclosures, all of which are discretionary. Because defense counsel only objected to the phone call recordings, that was the only evidence considered by the court when reviewing the motion for mistrial. The court noted that defense counsel could not identify any element of the calls which would have been exculpatory for defendant. Additionally, the court noted that G.S. 15A-910 did not establish any other basis for granting the mistrial or finding an abuse of discretion. 

Turning to defendant’s ineffective assistance of counsel claim, the court noted that the standards from State v. Harbison, 315 N.C. 175 (1985), applied to defendant’s claim regarding admission of guilt, and that State v. McAllister, 375 N.C. 455 (2020), showed implied concessions of guilt may rise to the level of a Harbison error. However, the court explained that implied concessions of guilt must be based on statements that “cannot logically be interpreted as anything other than an implied concession of guilt.” Slip Op. at 16-17, quoting McAllister. The court did not find that logical conclusion from either of the statements pointed to by defendant as indicative of error. Instead, the court distinguished the statements from the McAllister examples, finding no Harbison error. 

In this Duplin County case, the Court of Appeals remanded the case to the trial court for an evidentiary hearing on whether defendant consented to defense counsel’s admissions of guilt.

Defendant was charged with breaking or entering, larceny, and possession of stolen goods after a series of break-ins in 2017 at a power plant that was not operational. At trial, defense counsel exhibited issues with hearing loss. Defendant also noted the issue of hearing loss before testifying in his own defense, although the trial court did not take any action on the information. During closing arguments, defense counsel said “Let me level with you. I agree it’s not good to be caught in the act while being in somebody else’s building without consent,” and mentioned “caught” and “in the act” several times, referring to defendant being on the power plant property. Slip Op. at 5.

Reviewing defendant’s arguments on appeal, the court agreed that defense counsel’s statements that defendant possessed stolen keys from the plant and entered the plant’s warehouse without permission amounted to admissions of guilt for lesser included misdemeanors of breaking or entering and possession of stolen goods. The court noted that under State v. Harbison, 315 N.C. 175 (1985), and subsequent precedent, a violation of the defendant’s constitutional right to counsel occurs whenever defense counsel expressly or impliedly admits guilt without the defendant’s consent, and this violation does not require a showing a prejudice to justify a new trial. Id. at 8-9. Here, defense counsel made admissions of guilt, but the record did not reflect any consent from defendant. As a result, the Court of Appeals remanded to the trial court for an evidentiary hearing on whether defendant consented in advance to these concessions of guilt.  

In this Alamance County case, defendant appealed his conviction for first-degree murder, arguing ineffective assistance of counsel and error by the trial court admitting lay witness opinion testimony. The Court of Appeals found no ineffective assistance of counsel and no prejudicial error by the trial court. 

In December of 2018, defendant sold drugs to the murder victim; the victim used a fake $100 bill to purchase the drugs from defendant. Defendant soon realized he had received a fake bill, and repeatedly contacted the victim, arguing that she owed him money. Eventually defendant and a friend went to the apartments where victim resided, and after a short exchange the victim was shot; she later died of her wounds. At trial, defendant’s counsel informed the trial court that defendant planned to concede that he fired the shot that killed the victim, and that he may argue defendant was guilty of lesser included offenses. Defendant indicated that he consented to this strategy during a colloquy with the trial court. Defendant’s counsel subsequently argued that defendant was struggling with the victim over a bag of drugs and he fired a shot that was not premeditated. 

The court first examined defendant’s per se ineffective assistance of counsel argument, noting that defendant consented to the strategy of admitting a shot was fired, effectively admitting to defendant’s guilt for second-degree murder, and thus could not argue ineffective assistance on this point. Examining defendant’s alternative argument that he received prejudicially ineffective assistance of counsel, the court explained that (1) defendant consented to his counsel’s strategy of self-defense, but then decided to invoke his Fifth Amendment right not to testify, sabotaging the strategy, (2) defendant’s witness offered testimony useful for raising doubts about the processing of the crime scene, and (3) defense counsel’s closing argument was coherent and attempted to negate the elements of first-degree murder. 

Reviewing the trial court’s admission of lay opinion testimony that it would be easier to lure the victim with promises instead of threats, the court could find no prejudicial error. Explaining that the State did not even refer to this testimony in closing arguments, instead simply referencing this concept as a commonsense notion, the court found that defendant failed to show any reasonable possibility that the jury would have reached a different verdict. 

In this Onslow County case, defendant appealed the denial of his motion for appropriate relief (“MAR”) due to ineffective assistance of counsel. In July of 2015, defendant went to jury trial for sexual offenses with a minor and was convicted. After the trial, defendant sent a letter to the trial court requesting a mistrial due to his counsel making an admission of guilt during closing argument. In March of 2016, defendant’s MAR was rejected by the Court of Appeals because defendant’s counsel did not expressly admit guilt or admit each element of each offense during the closing statement in question. Defendant petitioned the Supreme Court for review, which was granted in September of 2017.

The Supreme Court vacated the Court of Appeals decision on defendant’s MAR, and remanded with instructions for the trial court to hold an evidentiary hearing on defendant’s motion. The trial court held this hearing in May of 2019, received only an affidavit from defense counsel with no other evidence or testimony, and then denied defendant’s MAR.

After the trial court’s denial, defendant filed a petition for writ of certiorari with the Court of Appeals. In February of 2020, the Court of Appeals determined that the trial court’s evidentiary hearing was insufficient, vacated the trial court’s order, and remanded the case for an evidentiary hearing. The trial court held a second hearing in September of 2020, allowing testimony from defendant and his counsel, and several documentary exhibits. However, the trial court again denied the MAR on March 31, 2021. Defendant filed a second petition for writ of certiorari and the Court of Appeals granted the petition in July of 2021.

With the current opinion, the Court of Appeals considered whether defendant’s counsel made implied admissions of guilt by admitting that defendant engaged in a sexual act with the victim and that the victim was below the statutory age of consent. The defendant had denied making a statement to police admitting sexual conduct between himself and the victim, and the statement was the subject of a failed motion to suppress during the trial. However, defense counsel presented the disputed admission as truthful in the closing statement. The Court of Appeals found that this served as an implied admission of guilt under the framework of State v. Harbison, 315 N.C. 175 (1985). The court reversed and remanded to the trial court for an evidentiary hearing to determine if defendant consented to this admission of guilt in advance.

The defendant was indicted for seven crimes arising from a domestic violence incident. The defendant severely beat his wife, resulting in her being hospitalized for six days where she was treated for extensive swelling and bruising to face and neck, fractures to rib bones and bones around her eyes, strangulation, contusions, and kidney failure induced by toxins released from skeletal muscle destruction. Following trial, the defendant was convicted of six of the seven charges and was sentenced to four consecutive sentences totaling 578 to 730 months. The defendant appealed.

(1) On appeal, the defendant first argued that the trial court committed plain error in failing to instruct the jury on the lesser-included offense of attempted voluntary manslaughter because the evidence showed that the defendant lacked the requisite intent for attempted first-degree murder. The defendant contended that the State failed to conclusively prove he had the requisite intent of premeditation and deliberation to commit first-degree murder because evidence at trial showed that he assaulted his wife spontaneously in response to adequate provocation. In rejecting this argument, the Court of Appeals noted that there was overwhelming evidence at trial supporting premeditation and deliberation. Although the wife admitted during trial that she stabbed the defendant in the chest with a knife, the defendant’s testimony confirmed that the subsequent assault lasted multiple hours, and the defendant testified that he “knew what he was doing” and agreed that he “could have left at any time.” Slip op. at ¶ 27. The Court thus held that this the defendant’s testimony did not warrant an instruction on attempted voluntary manslaughter.

(2) The defendant next argued that the trial court did not ensure the defendant had knowingly consented before allowing defense counsel to concede the defendant’s guilt to multiple charges. The defendant contended that statements made by his defense counsel during opening and closing statements constituted an implied admission of his guilt because counsel (i) told the jury that the defendant “beat” his wife and (ii) argued only against the charge of first-degree murder and did not mention the defendant’s other charges in closing argument. The Court of Appeals held that defense counsel’s reference to the defendant having beaten his wife did not amount to a Harbison error because the defendant chose to testify on his own behalf, under oath, with full awareness that he did not have to testify. The defendant then repeatedly admitted that he beat his wife. The Court concluded that defense counsel repeated the defendant’s own testimony, then urged the jury to evaluate the truth in defendant’s words, and that defense counsel’s statements could logically be interpreted as a recitation of facts presented at trial.

(3) The defendant’s final argument was that the trial court erred by denying his motion to dismiss the charge of first-degree kidnapping because the State failed to introduce sufficient evidence of confinement separate from that which was inherent in the commission of the assaults on his wife. In rejecting this argument, the Court reasoned that the State presented evidence that the defendant confined his wife to her apartment through actions apart from confinement inherent in the many instances of assault, and the evidence allowed a reasonable inference that the defendant chose to wholly confine his wife to her apartment to prevent her from seeking aid.

Following defense counsel’s opening statements in a Possession with Intent to Sell or Deliver Heroin and Possession of Drug Paraphernalia case where the defendant was indicted as a habitual felon, the State expressed concern that defense counsel had made admissions necessitating a Harbison inquiry.  Though defense counsel said “I don’t think we admitted anything,” the trial court held a colloquy where the defendant stated that the arguable admissions were made with his consent.  While the transcript did not contain defense counsel’s opening statements, the Court of Appeals concluded there was enough information in the transcript to determine that defense counsel, although he admitted the defendant possessed a baggie of a substance that later would be identified as heroin, had not made a Harbison admission to PWISD Heroin because he did not admit the element that defendant had the intent to sell or deliver the substance.  Nevertheless, the Court of Appeals went on to determine that the statements could have been admissions to the lesser included offense of heroin possession or admissions to Possession of Drug Paraphernalia and therefore “possibly trigger[ed] Harbison.”  Assuming a Harbison inquiry was required, the trial court’s colloquy with the defendant was adequate to ascertain the defendant’s consent to the admissions.  The Court also noted that the colloquy was adequate with respect to any admissions defense counsel may have made regarding habitual felon status, a status to which the defendant later pleaded guilty after a voluntariness inquiry.

The defendant was charged with first degree burglary after she was found inside the victims’ home in the early morning hours, having taken items from their cars and placed them inside a purse belonging to one of the homeowners. The defendant appeared to be impaired at the time she was arrested. She claimed during the encounter that, alternatively, she was an emergency medical worker, someone had chased her inside the house, and someone had invited her to the house.

(1) Before making an opening statement, defense counsel notified the court that he would be admitting all of the elements of the charged offense besides intent. The trial court asked the defendant whether she understood and agreed with this decision. She said she did. While defense counsel’s express or implied admission of the defendant’s guilt of a charged offense to the jury without the defendant’s consent is per se ineffective assistance of counsel, such an admission may be made with the defendant’s consent. Here, the trial court had an exchange with the defendant where she expressed her understanding and agreed to admit the elements of felony breaking and entering other than intent. Therefore, even assuming, without deciding, that defense counsel impliedly admitted that defendant was guilty of misdemeanor breaking and entering, that admission was consensual and did not constitute ineffective assistance of counsel.

(2) An expert in forensic psychology testified for the defendant that she had diagnosed the defendant with post-traumatic stress disorder, severe alcohol use disorder, severe amphetamine use disorder, and a personality disorder. The expert testified that the defendant admitted to using methamphetamine daily and that such use can result in a methamphetamine-associated psychosis which presents with delusions, paranoia, and hallucinations. The expert characterized the defendant’s symptoms as congruent with this condition.

During closing argument, the prosecutor attacked the expert’s credibility, stating that “‘psychosis is quite convenient as an excuse’” and that the defendant “‘had Dr. James come and testify . . . with the end in mind.’” Slip op. at 14. The prosecutor argued to the jury that the expert was “‘paid by the defense, for the defense, to give good stuff for the defense’” and that “‘[y]ou get what you put out. What you put in, you get out.’” Id. After questioning the utility of Dr. James’s diagnoses of the defendant, the prosecutor remarked to the jury, “‘So I ask you to take that for what it is. At the end of the day, hired by the defense, for the defense, to say good things for the defense . . . .’” Id. The defendant did not object to the remarks. The court of appeals held that the prosecutor’s remarks were improper because they went beyond arguing that the expert witness was potentially biased, which is permissible. Instead, the prosecution impermissibly suggested to the jury that the defendant’s expert was paid to fabricate an excuse for her conduct and acts, regardless of the truth. The court explained:

By arguing that psychosis was an “excuse,” Dr. James testified with an end in mind, Dr. James was paid “to give good stuff for the defense,” and Dr. James was hired “to say good things for the defense,” the prosecutor inappropriately suggested that Dr. James “should not be believed because [s]he would give untruthful or inaccurate testimony in exchange for pay.”

 Slip op. at 14 (quoting, in last clause of last sentence, State v. Huey, 370 N.C. 174, 183 (2017)).

While these remarks were improper, the court of appeals held that in the absence of an objection by the defendant, they were not so grossly improper as to impede the defendant’s right to a fair trial. The court noted that similar remarks had been held not to amount to prejudicial error. Moreover, the court said it could not conclude that the remarks were so prejudicial as to merit a new trial considering the substantial amount of evidence tending to show that the defendant had the requisite intent for first-degree burglary.

(3) The Court vacated the civil judgment for attorney’s fees and remanded the matter to the trial court for a waiver by the defendant or a hearing on the issue. Although at trial the defendant stated she had no objection to the entry of a civil judgment, she did not know at that time the number of hours her appointed counsel planned to submit or what amount she would owe. She was, therefore, deprived of a meaningful opportunity to be heard before the judgment was entered.

In this sex offense case, the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial and instead giving a curative instruction to the jury in response to the State’s objectionable questioning of a witness.  Defense counsel did not admit the defendant’s guilt over his objection in violation of State v. Harbison or McCoy v. Louisiana by admitting an element of the charged offense in closing argument.

(1) Prior to trial in response to the defendant’s motion to exclude certain potential testimony, the State agreed to refrain from asking a detective about the victim’s grandmother allegedly pressuring the victim not to testify.  At trial, the State asked the victim about the manner in which she had been pressured not to testify and the defendant objected.  The trial court sustained the objection but denied the defendant’s motion for a mistrial, instead issuing a curative instruction striking the testimony from the record and from the jury’s consideration.  The Court of Appeals determined that the trial court did not abuse its discretion in denying a mistrial and properly exercised its discretion and cured any potential prejudice by issuing the curative instruction and polling the jury.

(2) Even if defense counsel admitted an element of second-degree forcible sexual offense by saying in closing argument that the State would have had a “slam-dunk incest case” if the defendant and the victim were related to each other and referring to an issue of consent under the “dirty and unpalatable” facts of the case, counsel did not violate the defendant’s Sixth Amendment rights by admitting the defendant’s guilt without his consent.  The court explained that defense counsel’s statements may have constituted admissions of the “sexual act with another person” element of the crime, but did not constitute an admission of guilt because counsel “vociferously argued” that the defendant did not perpetrate the sexual contact “by force and against the will” of the victim, another element of the crime.  First addressing the issue through the lens of ineffective assistance of counsel, the court explained that an admission of an element does not constitute an admission of guilt and consequently counsel’s comments were not a Harbison violation.  The court then distinguished defense counsel’s admission of “at most” an element of the offense from the situation in McCoy v. Louisiana, ___ U.S. ___, 138 S. Ct. 1500 (2018) where defense counsel admitted his client’s guilt and found that no Sixth Amendment structural error occurred.

This Pitt County case involved charges of attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury (“AWDWIKISI”) and felony breaking or entering. Before trial, the defendant signed a document allowing his attorney to argue that he was guilty of assault with a deadly weapon inflicting serious injury (“AWDWISI”). This “Harbison acknowledgement” stated that the defendant understood his right to plead not guilty and have all issues in his case tried; that the defendant understood he was not required to concede guilt as to any offense; that he voluntarily admitted guilt to the assault while understanding the consequences of that admission; and that he authorized his attorney to argue his guilt of that offense to the jury. The trial court conducted a colloquy with the defendant where the defendant orally reaffirmed the terms of the document. At trial, defense counsel argued that the defendant was guilty of AWDWISI but lacked the intent to kill necessary to support the first-degree attempted murder (or AWDWIKISI). The jury convicted on all counts and the defendant appealed. He argued that his admission of guilt to the assault was not knowing or voluntary and that he therefore received ineffective assistance of counsel. He also claimed the trial court’s Harbison colloquy was deficient.

(1) Under State v. Harbison, 315 N.C. 175 (1985), it is per se ineffective assistance of counsel for defense counsel to admit a defendant’s guilt to an offense without the defendant’s consent. The defendant argued that his admission to the assault was effectively an admission to attempted murder. AWDWISI and attempted first-degree murder have different elements and AWDWISI is not a lesser-included offense of attempted first-degree murder. Thus, the admission to AWDWISI did not admit guilt to attempted murder. Further, the defendant knowingly and voluntarily admitted guilt to that assault, and his attorney never conceded guilt to attempted murder. The defendant therefore could not demonstrate ineffective assistance of counsel.

(2) Before accepting an admission of guilt at trial, the record should reflect the defendant’s knowing and informed consent to the admission. Here, it did:

The record demonstrates that Defendant fully understood that trial counsel was going to concede guilt to AWDWISI, and the Defendant expressly consented to the concession. Further, Defendant specifically acknowledged that he understood the consequences of such admission. Id. at 11.

Thus, the trial court’s Harbison colloquy with the defendant was proper. In addition to his appeal, the defendant filed a motion for appropriate relief (“MAR”) in the appellate division. Denying that motion, the court found that no Harbison violation occurred and that the defendant could not therefore show the existence of a ground for relief under the MAR statute. The convictions were thus unanimously affirmed.

State v. Cook, 246 N.C. App. 266 (Mar. 15, 2016)

(1) In this murder case, counsel’s statement in closing argument did not exceed the scope of consent given by the defendant during a Harbison inquiry. In light of the Harbison hearing, the defendant knowingly, intelligently and voluntarily, and with full knowledge of the awareness of the possible consequences agreed to counsel’s concession that he killed the victim and had culpability for some criminal conduct. The court noted that counsel’s trial strategy was to argue that the defendant lacked the mental capacity necessary for premeditation and deliberation and therefore was not guilty of first-degree murder. (2) The Harbison standard did not apply to counsel’s comments regarding the “dreadfulness” of the crimes because these comments were not concessions of guilt. Considering these statements under the Strickland standard, the court noted that counsel pointed out to the jury that while the defendant’s crimes were horrible, the central issue was whether the defendant had the necessary mental capacity for premeditation and deliberation. The defendant failed to rebut the strong presumption that counsel’s conduct was reasonable. Additionally no prejudice was established given the overwhelming evidence of guilt.

In this murder case, trial counsel did not render ineffective assistance by failing to produce evidence, as promised in counsel’s opening statement to the jury, that the shooting in question was justified or done in self-defense. After the trial court conducted a Harbison inquiry, defense counsel admitted to the jury that the defendant had a gun and shot the victim but argued that the evidence would show that the shooting was justified. The concession regarding the shooting did not pertain to a hotly disputed factual matter given that video surveillance footage of the events left no question as to whether the defendant shot the victim. The trial court’s Harbison inquiry was comprehensive, revealing that the defendant knowingly and voluntarily consented to counsel’s concession. The court also rejected the defendant’s argument that making unfulfilled promises to the jury in an opening statement constitutes per se ineffective assistance of counsel. And it found that because counsel elicited evidence supporting a defense of justification, counsel did not fail to fulfill a promise made in his opening statement. The court stated: “Defense counsel promised and delivered evidence, but it was for the jury to determine whether to believe that evidence.”

In an attempted murder case, counsel did not commit a Harbison error when he stated during closing argument: “You have heard my client basically admit that while pointing the gun at someone, he basically committed a crime: Assault by pointing a gun.” Because assault by pointing a gun is not a lesser-included of the charged offense, counsel’s statement fell outside of Harbison. 

In a murder case, trial counsel did not impermissibly concede the defendant’s guilt under Harbison. Although defense counsel never explicitly conceded the defendant’s guilt during trial, she did make factual concessions, including admitting that the defendant was present at the shooting and that he believed that he was participating in a plan to commit a robbery. The court found that it did not need to decide whether the factual admissions constituted an admission of guilt to first degree felony-murder given that the defendant expressly consented to counsel’s admissions. 

In an appeal from a conviction obtained in the Eve Carson murder case, the court held that counsel did not commit a Harbison error (unconsented to admission of guilt by counsel). Even taken out of context, the remark at issue did not even approach a concession of guilt.

The court dismissed the defendant’s Harbison claim without prejudice to it being raised in a motion for appropriate relief. During closing argument, defense counsel stressed that the defendant was a drug user, not a drug dealer. With regard to a charge of possession of drug paraphernalia, counsel stated “finding him guilty of the drug paraphernalia I would agree is about as open and shut as we can get in this case, but finding him guilty of the selling, you don’t have the seller.” The court noted that this statement conceded guilt. However, because of the incomplete record as to consent by the defendant, the court dismissed without prejudice. 

The court rejected the defendant’s Harbison claim (it is ineffective assistance of counsel for a defense lawyer to concede guilt without the defendant’s consent) where defense counsel raised the admission with the trial court before it was made and the defendant consented to counsel’s strategy.

Although concluding that counsel admitted the defendant’s guilt to the jury, the court dismissed the defendant’s Harbison claim without prejudice to his right to file a motion for appropriate relief on that basis in the trial court. Counsel conceded guilt to resisting a public officer and eluding arrest when he stated, among other things, that the defendant “chose to get behind the wheel after drinking, and he chose to run from the police[,]” and “[the officer] was already out of the way and he just kept on going, kept running from the police.” However, the record did not indicate whether the defendant had consented to these admissions.

The court dismissed the defendant’s Harbison claim without prejudice in order for it to be raised by way of a motion for appropriate relief in the trial division. As to a charge of resisting an officer, defense counsel had argued to the jury that “[T]he elements are there. They were officers of the law. They were discharging a duty of their office. We are not contending they were doing anything unlawful at the time and he didn’t obey. He delayed them. He obstructed them, he resisted them[.]” The court concluded that such statements cannot be construed in any other light than admitting the defendant’s guilt. However, the court determined, based on the record on appeal, it was unclear whether the defendant consented to this admission of guilt.

(1) Defense counsel did not commit a Harbison error during the habitual felon proceeding by admitting that the defendant had pled guilty to three felonies. Although defense counsel admitted the defendant’s prior convictions, he never argued that the jury should find that the defendant had attained habitual felon status and in fact suggested that the jury take certain mitigating factors into account. (2) Even if such an admission occurred, the defendant would not be entitled to relief because Harbison does not apply to a habitual felon proceeding. 

Because defense counsel admitted the defendant’s guilt to assault with a deadly weapon and involuntary manslaughter to the jury without obtaining the defendant’s express consent, counsel was per se ineffective under State v. Harbison, 315 N.C. 175 (1985). A majority of the panel distinguished the United States Supreme Court’s holding in Florida v. Nixon, 543 U.S. 175 (2004) (under federal law, when the defendant alleges ineffective assistance due to an admission of guilt, the claim should be analyzed under the Strickland attorney error standard), on grounds that Nixon was a capital case and the case before the court was non-capital. The majority further concluded that post-Nixon decisions by the North Carolina Supreme Court and the court of appeals required it to apply the Harbison rule.

No Harbison error occurred in this murder case where the defendant consented, on the record, to counsel’s strategy of admitting guilt.

Show Table of Contents