State v. Bryant, ___ N.C. App. ___, 2021-NCCOA-696 (Dec. 21, 2021)

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.