State v. Crump, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 1, 2020)

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.