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.