State v. McAllister, 138 N.C.App. 252, 530 S.E.2d 859 (Sept. 25, 2020)

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.

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