State v. McAllister ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 221A19
Filed 25 September 2020
STATE OF NORTH CAROLINA
v.
ANTON THURMAN MCALLISTER
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 265 N.C. App. 309, 827 S.E.2d 538 (2019), finding no error in a
judgment entered on 22 August 2016 by Judge Richard S. Gottlieb in Superior Court,
Forsyth County. This matter was calendared for argument in the Supreme Court on
4 May 2020 but determined on the record and briefs without oral argument pursuant
to Rule 30(f) of the North Carolina Rules of Appellate Procedure.
Joshua H. Stein, Attorney General, by Adren L. Harris, Special Deputy Attorney
General, for the State-appellee.
Joseph P. Lattimore for defendant-appellant.
DAVIS, Justice.
This Court held in State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), that
a criminal defendant suffers a per se violation of his constitutional right to effective
assistance of counsel when his counsel concedes the defendant’s guilt to the jury
without his prior consent. In this case, we consider whether Harbison error exists
when defense counsel impliedly—rather than expressly—admits the defendant’s
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Opinion of the Court
guilt to a charged offense. Based on our determination that the rationale underlying
Harbison applies equally in such circumstances, we reverse the decision of the Court
of Appeals and remand with instructions.
Factual and Procedural Background
In January 2015, defendant met a woman named Stephanie Leonard during a
group session at Insight, a drug treatment facility in Winston-Salem. Within a week
of their introduction, defendant and Leonard began an intimate personal relationship
and moved into an apartment together that was paid for by Leonard’s mother.
On 16 February 2015, Leonard’s mother took Leonard grocery shopping and
also gave her $75 to purchase various other items she needed. After returning home
at approximately 5:00 p.m., Leonard and defendant consumed a bottle of wine over
several hours. Around 9:00 p.m., they decided to walk to a nearby BP gas station to
purchase cigarettes. As they approached the gas station, Leonard told defendant that
she wanted to go to a store to purchase another bottle of wine and started walking
away from the gas station. Defendant proceeded to curse and yell at Leonard because
he realized that she was in possession of additional money and had not informed him
of this fact. In an effort to placate defendant, Leonard gave him $20, at which point
he struck her in the face and caused her to fall to the ground and lose her wallet. The
two of them continued to argue as defendant began hitting her repeatedly in the face
because she could not locate her wallet. He then grabbed Leonard by the arm and
started pulling her back toward their apartment. Christopher Jackson, the cashier
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working at the gas station during the altercation, called for assistance from law
enforcement officers after he saw that a man had “jerked” a woman outside the store
and heard “the sound like of [sic] somebody hitting somebody.”
Upon returning to the apartment, defendant shoved Leonard through the
doorway and told her to be quiet. After unsuccessfully searching for Leonard’s wallet
inside the apartment, defendant resumed hitting her. Believing that Leonard was
hiding the money on her person, defendant removed her clothes. Leonard later
described being dragged and repeatedly struck by defendant, which resulted in her
bleeding from her face.
After initially telling defendant that she did not know what had happened to
her wallet, Leonard subsequently stated that the wallet might be in the kitchen. As
they made their way to the kitchen, Leonard attempted to escape the apartment but
was caught by defendant. Defendant then dragged her into the living room at which
point he got on top of her and resumed hitting her. He then placed his hand over
Leonard’s mouth and nose and attempted to suffocate her, at which point Leonard
began to fight back by hitting defendant in the face and biting his fingers. Leonard’s
fingers also went into defendant’s mouth, and he bit them. Defendant then attempted
to suffocate Leonard with a pillow until she made her body go limp to make him
believe that she had lost consciousness.
Shortly thereafter, defendant forced Leonard, whose face and hands were
covered in blood, to enter the bathroom. The two of them climbed into the bathtub
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where defendant washed the blood off of Leonard’s body. Upon exiting the bathroom,
defendant and Leonard got into bed, and they engaged in sexual intercourse.
On the following day, law enforcement officers from the Winston-Salem Police
Department arrived at the apartment to investigate the events that had occurred the
previous evening. One of the officers observed injuries to Leonard’s hands and face,
which he photographed. He also took pictures of numerous blood stains found
throughout the apartment. Later that evening, officers located defendant, who agreed
to be taken to the police station for a non-custodial interview concerning an
investigation involving a missing moped that was unrelated to his altercation with
Leonard.
During the interview, which was videotaped and later played for the jury at
defendant’s trial, he was asked a number of questions about the incident that had
occurred the previous night involving Leonard. Defendant stated that when he and
Leonard were outside the gas station, he got “kinda mad” at her for wanting to go to
another store because he was cold and wanted to go home. When asked why they
never actually entered the gas station, defendant responded that he had become
“pissed off” at Leonard for not appropriately communicating with him, which
eventually led to him pushing her to the ground. He acknowledged that “[he] was
wrong for pushing her.” Defendant stated that upon their return to the apartment,
Leonard communicated her desire to go back out again to buy wine, which prompted
the two of them to begin arguing.
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Defendant told officers that he and Leonard then got into a “tussle” during
which Leonard “retaliate[ed]” in a “rough” manner. Defendant admitted that he
“backhanded her” in the face at one point but that he did not mean to hurt her.
Defendant stated that for approximately ten minutes there was “a lot of grabbing and
tussling,” and that afterwards, the two went into the bathroom to clean Leonard up
because she was “spitting blood” as a result of the altercation.
When asked if Leonard had been injured in any way during the incident,
defendant responded that the following morning he observed that her bottom lip was
swollen from when he had “smacked her in the lip.” Defendant added that Leonard
had bitten his hand when he “grabbed her in the mouth” and that around this same
time he had likewise bitten her hand. Later in the interview, defendant denied having
forced Leonard to engage in sexual intercourse but stated the following: “[I]f I
smacked [her] ass up, then I smacked [her]; I can take the rap for that.” Following
the interview, defendant was arrested and taken into custody.
Defendant was indicted on charges of (1) habitual misdemeanor assault—
based on the underlying offense of assault on a female,1 (2) assault by strangulation,
(3) second-degree sexual offense, and (4) second-degree rape. The case came on for
trial in Superior Court, Forsyth County, on 15 August 2016.
1 “A person commits the offense of habitual misdemeanor assault if that person
violates any of the provisions of G.S. 14-33 and causes physical injury, or G.S. 14-34, and has
two or more prior convictions for either misdemeanor or felony assault, with the earlier of the
two prior convictions occurring no more than 15 years prior to the date of the current
violation.” N.C.G.S. § 14-33.2 (2019).
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Prior to opening statements, the State informed the trial court of a potential
Harbison-related issue regarding defendant’s statements to law enforcement officers
during his interview, and the following conversation ensued:
[THE STATE]: The only other thing I would mention, and
this would—just in anticipation opening [sic] statement,
the defendant did make some admissions in his statement
to law enforcement. I don’t know if any of that is something
that defense counsel is going to address in opening but if so
we probably need to have an inquiry regarding—
THE COURT: Harbison.
[THE STATE]: Right—admissions prior to.
The trial court then engaged in the following exchange with defense counsel:
THE COURT: Does the defense have any Harbison issues?
[DEFENSE COUNSEL]: Not immediately, Your Honor.
That’s not something I was expecting yet.
THE COURT: Are you expecting to make any comments in
your opening with regard to admissions?
[DEFENSE COUNSEL]: Well, Judge, we have a lot to say
about how and why he was interrogated which may brush
up against—
THE COURT: Well, can you get more specific than that.
Because I want to make sure your client understands that
the State has the burden to prove each and every element
of each claim and if you’re going to step into an admission
during opening then I need to make sure that he
understands that and he’s authorized you to do that.
[DEFENSE COUNSEL]: Not in opening, I can stipulate to
that.
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THE COURT: Well—okay. Let’s rereview that when we get
back from lunch. . . .
No other discussion of any Harbison-related issues occurred on the record
during the remainder of the trial. The State presented testimony from Leonard,
Leonard’s mother, Jackson, four law enforcement officers and two detectives with the
Winston-Salem Police Department, two forensic services technicians from the
Winston-Salem Police Department and the forensics services squad supervisor, a
nurse and a physician’s assistant from the Forsyth Medical Center emergency
department who treated Leonard’s physical injuries, and a nurse from the Forsyth
Medical Center who performed a sexual assault examination on Leonard. Defendant
did not present any evidence at trial.
During his closing argument, defense counsel referred to defendant’s 17
February 2015 videotaped interview with law enforcement officers, which had been
entered into evidence by the State and played for the jury during the State’s case in
chief. Specifically, defense counsel stated the following:
Now, the [State] went to great length to use the defendant’s
statements. These are his words, what he said. Well, let’s
start with the conditions under which he gave those
statements. 9:00 at night, surrounded by cops, pulled off
the street to make a voluntary statement. He goes in. He
starts talking to them about the moped, which was all a
ruse as we know, and indicates he’s had a few beers but
they ask him “you want to talk? Sure I’ll talk. I want to
help you out any way I can,” is what he kept saying. You
heard him admit that things got physical. You heard him
admit that he did wrong, God knows he did. They got in
some sort of scuffle or a tussle or whatever they want to
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call it, she got hurt, he felt bad, and he expressed that to
detectives. Now, they run with his one admission and say
“well, then everything Ms. Leonard—everything else Ms.
Leonard said must be true.” Because he was being honest,
they weren’t honest with him.
Later in his closing argument, defense counsel stated to the jurors that “you
may dislike Mr. McAllister for injuring Ms. Leonard, that may bother you to your core
but he, without a lawyer and in front of two detectives, admitted what he did and
only what he did. He didn’t rape this girl.” Defense counsel concluded his closing
argument by stating the following:
I asked you at the beginning [to] make the State prove their
case, make them. Have they? Anything but conjecture and
possibility? All I ask is that you put away any feelings you
have about the violence that occurred, look at the evidence
and think hard. Can you convict this man of rape and
sexual offense, assault by strangulation based on what
they showed you? You can’t. Please find him not guilty.
On 22 August 2016, the jury returned a verdict finding defendant guilty of
assault on a female and not guilty of all other charged offenses. The trial court entered
judgment on one count of habitual misdemeanor assault2 and sentenced defendant to
a term of fifteen to twenty-seven months imprisonment.
Defendant failed to give notice of appeal following his conviction. On 11 August
2017, however, he filed a petition for writ of certiorari to the Court of Appeals, which
was allowed. At the Court of Appeals, defendant argued that his defense counsel
2 Defendant stipulated prior to trial to the existence of two prior assault convictions.
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improperly conceded his guilt to the assault on a female charge during closing
arguments, thereby resulting in a denial of his constitutional right to effective
assistance of counsel pursuant to this Court’s decision in Harbison.
In a divided opinion, the Court of Appeals majority held that defendant was
not denied his right to effective assistance of counsel. State v. McAllister, 265 N.C.
App. 309, 827 S.E.2d 538 (2019). The majority concluded that where “counsel admits
an element of the offense, but does not admit defendant’s guilt of the offense, counsel’s
statements do not violate Harbison to show a violation of the defendant’s Sixth
Amendment rights.” Id. at 317, 827 S.E.2d at 544.
Judge Arrowood dissented, expressing his belief that defendant had shown a
per se violation of his right to effective assistance of counsel when defense counsel
elected “to highlight specific evidence that defendant physically injured the alleged
victim and argued to the jury that defendant honestly admitted to police what he did.”
Id. at 323, 827 S.E.2d at 547 (Arrowood, J., dissenting). Judge Arrowood further
stated his view that “[c]onsidering defense counsel’s argument in full, it is evident
defense counsel acknowledged defendant’s guilt on the assault on a female charge in
an attempt to cast doubt on the evidence of the more serious charges.” Id. On 11 June
2019, defendant filed a notice of appeal based upon the dissent with this Court.3
Analysis
3 Defendant also filed a petition for discretionary review in which he sought review of
an additional issue, which was denied by the Court.
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In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme
Court held that “the right to counsel is the right to the effective assistance of counsel,”
id. at 686 (citation omitted), and announced that in certain contexts “[a]ctual or
constructive denial of the assistance of counsel altogether is legally presumed to
result in prejudice,” id. at 692. In Harbison, this Court held that defense counsel’s
admission of his client’s guilt to a charged offense during an argument to the jury—
without the client’s prior consent—was one such example of an act so likely to be
prejudicial that it results in per se reversible error. Harbison, 315 N.C. at 180, 337
S.E.2d at 507–08.
In the present appeal, defendant contends that this is precisely what occurred
at his trial in that his defense counsel impliedly conceded his guilt to the charge of
assault on a female without his prior consent. In order to analyze his argument, we
deem it instructive to review in some detail both the Harbison decision and other
cases from this Court applying the principles set out therein to situations in which a
defendant’s attorney was alleged to have conceded his client’s guilt to a charged
offense during his argument to the jury.
In Harbison, the defendant was charged with the murder of his ex-girlfriend’s
boyfriend and the assault of his ex-girlfriend after shooting and severely injuring her.
Harbison, 315 N.C. at 177, 337 S.E.2d at 505–06. The defendant’s theory at trial was
that he acted in self-defense in shooting the victims, but during closing arguments,
his defense counsel stated the following:
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Ladies and Gentlemen of the Jury, I know some of you and
have had dealings with some of you. I know that you want
to leave here with a clear conscious [sic] and I want to leave
here also with a clear conscious [sic]. I have my opinion as
to what happened on that April night, and I don’t feel that
[the defendant] should be found innocent. I think he should
do some time to think about what he has done. I think you
should find him guilty of manslaughter and not first[-]
degree [murder].
Id. at 177–78, 337 S.E.2d at 506 (first and second alterations in original). On appeal,
the defendant asserted that defense counsel’s admission of his guilt and request that
the jury find him guilty of manslaughter constituted ineffective assistance of counsel
in violation of his Sixth Amendment rights. Id. at 178, 337 S.E.2d at 506.
In addressing the defendant’s argument, we noted that “[a]lthough this Court
still adheres to the application of the Strickland test in claims of ineffective assistance
of counsel, there exist ‘circumstances that are so likely to prejudice the accused that
the cost of litigating their effect in a particular case is unjustified.’ ” Id. at 179, 337
S.E.2d at 507 (quoting United States v. Cronic, 466 U.S. 648, 658 (1984)). We
proceeded to hold that “when counsel to the surprise of his client admits his client’s
guilt, the harm is so likely and so apparent that the issue of prejudice need not be
addressed.” Id. at 180, 337 S.E.2d at 507.
Our ruling was based largely on the principle that a defendant has an absolute
right to plead not guilty—a decision that must be made knowingly and voluntarily by
the defendant himself and only after he is made aware of the attendant consequences
of doing so. Id. We stated that “[w]hen counsel admits his client’s guilt without first
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obtaining the client’s consent, . . . [t]he practical effect is the same as if counsel had
entered a plea of guilty without the client’s consent” and denied his client the right
to have his guilt determined by a jury. Id. Accordingly, we concluded that “ineffective
assistance of counsel, per se in violation of the Sixth Amendment, has been
established in every criminal case in which the defendant’s counsel admits the
defendant’s guilt to the jury without the defendant’s consent.” Id. at 180, 337 S.E.2d
at 507–08. As a result, we awarded the defendant a new trial. Id. at 180–81, 337
S.E.2d at 508.
We reached a similar result in State v. Matthews, 358 N.C. 102, 591 S.E.2d 535(2004). In Matthews, the defendant was indicted for, among other things, first-degree
murder. During closing arguments, defense counsel stated the following:
You have a possible verdict of guilty of second-degree
murder. And then the third possibility is not guilty. I’ve
been practicing law twenty-four years and I’ve been in this
position many times. And this is probably the first time I’ve
come up in front of the jury and said you ought not to even
consider that last possibility.
And I’m not up here and I’m not telling you that
that’s a possibility. I’m not saying you should find Mr.
Matthews not guilty. That’s very unusual. And it kind of
cuts against the grain of a defense lawyer. But I’m telling
you in this case you ought not to find him not guilty because
he is guilty of something.
Id. at 106, 591 S.E.2d at 539. Defense counsel later stated that “[w]hen you look at
the evidence . . . you’re going to find that he’s guilty of second-degree murder.” Id.-12-
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In determining that these statements constituted a per se violation of the
defendant’s constitutional right to effective assistance of counsel, we held that
“[b]ecause the record does not indicate defendant knew his attorney was going to
concede his guilt to second-degree murder, we must conclude defendant’s attorney
made this concession without defendant’s consent, in violation of Harbison.” Id. at
109, 591 S.E.2d at 540. We therefore concluded that the defendant was entitled to a
new trial. Id. at 109, 591 S.E.2d at 540–41.
The defendant in State v. Fisher, 318 N.C. 512, 350 S.E.2d 334 (1986), was
indicted for first-degree murder after stabbing the victim. During closing arguments,
defense counsel—during the course of describing the elements of various homicide
offenses—stated that “[s]econd[-]degree [murder] is the unlawful killing of a human
being with no premeditation and no deliberation but with malice, illwill. You heard
[the defendant] testify, there was malice there . . . .” Id. at 533, 350 S.E.2d at 346.
Defense counsel went on to inform the jury that the verdict sheet would enable it to
find defendant not guilty, despite the defendant’s presence at the scene of the killing.
Id.On appeal from his conviction for first-degree murder, the defendant asserted
that he had suffered a violation of his constitutional rights under Harbison due to the
fact that his defense counsel admitted to the jury that the killing was done with
malice. Id. at 532, 350 S.E.2d at 346. We held that the case was “factually
distinguishable from Harbison in that the defendant’s counsel never clearly admitted
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guilt” but rather simply “stated there was malice [and] . . . told the jury that they
could find the defendant not guilty.” Id. at 532–33, 350 S.E.2d at 346.
In State v. Thomas, 329 N.C. 423, 407 S.E.2d 141 (1991), the defendant was
convicted of first-degree murder and first-degree sexual offense. On appeal, he argued
that he suffered from ineffective assistance of counsel because his defense counsel
conceded that he participated in the charged sexual act without his permission.
During closing arguments, defense counsel stated the following:
Don’t let me mislead you to think that I in any way condone
what occurred in the relationship in respect to the sexual
assault. . . .
Again, let me tell you that I don’t in any way condone what
[the defendant] did in that respect . . . .
In fact, it is illegal to do exactly what Dr. Hudson described
to you was done in this case, that is, to insert the telephone
receiver into her vagina after she was dead. . . . It is the
crime of . . . desecrating the body of the person that is dead.
Id. at 441, 407 S.E.2d at 153.
We held that those statements were not an admission of the defendant’s guilt
as to the sexual offense charge because, “[u]nlike defense counsel in Harbison, who
admitted his client’s guilt and asked the jury to return a verdict of guilty of
manslaughter . . . defense counsel here did not admit defendant’s guilt to first-degree
sexual offense or to any lesser included offense.” Id. at 442, 407 S.E.2d at 153. We
observed that defense counsel had merely informed the jury that the act alleged
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would only constitute the offense of desecrating a corpse—a crime with which the
defendant was not charged. Id. at 442, 407 S.E.2d at 153–54.
In State v. Greene, 332 N.C. 565, 422 S.E.2d 730 (1992), the defendant was
charged with first-degree murder after slapping a child in the head and ultimately
killing him. The defendant testified at trial and admitted to slapping the victim but
also stated that he did not mean to harm him. Id. at 570, 422 S.E.2d at 732. One of
the State’s witnesses testified that the defendant had told him that he had hit and
kicked the child. Id. at 573, 422 S.E.2d at 734. During closing argument, defense
counsel stated the following:
[The defendant] didn’t have anything to do with me being
here. Don’t use what I’ve said and done against him.
Wouldn’t be right. I’ve done my best. I’ve plowed the field.
And in my opinion, you probably won’t turn him free—find
him not guilty. And you very easily, I can see, that that slap
was negligent and harder than it ought to have been and
at that time, it was reckless disregard, and the judge will
charge you on that at the end of those four [sic]—
involuntary manslaughter. I don’t say you should find that,
but I concede—sitting on this jury—but I contend, ladies
and gentlemen, there’s no premeditation and deliberation.
Id. at 570, 422 S.E.2d at 733.
Upon the conclusion of defense counsel’s closing argument, the prosecutor
approached the bench and expressed his concern that defense counsel’s closing
argument may have been improper on the grounds that it constituted an admission
of guilt without the defendant’s consent. Id. The trial court then asked the defendant
if he wanted to give his counsel another opportunity to argue that he was innocent of
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all charges, and the defendant answered affirmatively. Id. at 571, 422 S.E.2d at 733.
Defense counsel then addressed the jury as follows:
Now, again, coming to the close, the defendant contends
there is no evidence to find him guilty of first[-]degree
murder—that is, got to find all six or five—no
premeditation, nobody—nothing showing he even, for a
blink of a minute, thought about killing somebody. No
deliberation going through his mind. Now is the time to kill
him. No malice. No hatred. No deliberately, like a baseball
bat as they illustrated in other things. No malice. In fact,
all love before and after. All love.
As to voluntary manslaughter, no intent down there. No
intent to murder. No reckless disregard of life. Again, all
love except the blows and the reflex motion, and it was too
hard.
But we don’t contend—he didn’t know it was going to be too
hard. I argue and contend that he didn’t know it was going
to be too hard. He didn’t know what he was doing.
Most of us, up before this, didn’t know that a slap on the
face could kill anybody. I mean, even a young child. Busted
his lip, he may.
Now, it’s been some people with nursing training and all,
I’m sure. Those are not supposed to be a lot of training, but
even involuntary manslaughter.
We contend that [the defendant] ought to leave here a free
man. . . .
Id. The defendant was found guilty of first-degree murder.
The defendant argued on appeal that defense counsel—without his consent—
had represented to the jury that it should find him guilty of involuntary
manslaughter in violation of Harbison. In rejecting his argument, we noted that
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although counsel told the jury that it could find that the “slap was negligent,” that it
was “harder than it ought to have been,” and that “it was reckless disregard,” he
ultimately stated “I don’t say you should find that.” Id. at 571–72, 422 S.E.2d 733.
We explained that there was no per se constitutional violation because “the argument
was that the defendant was innocent of all charges but if he were to be found guilty
of any of the charges it should be involuntary manslaughter because the evidence
came closer to proving that crime than any of the other crimes charged.” Id. at 572,
422 S.E.2d at 733–34. Accordingly, we held that “[t]his is not the equivalent of asking
the jury to find the defendant guilty of involuntary manslaughter and the rule of
Harbison does not apply.” Id. at 572, 422 S.E.2d at 734. We further stated that “[w]e
do not find anything . . . that approaches an admission of guilt” because “[t]he clear
and unequivocal argument was that the defendant was innocent of all charges.” Id.In State v. Harvell, 334 N.C. 356, 432 S.E.2d 125 (1993), the defendant was
indicted for first-degree murder and convicted of that offense. He contended on appeal
that his defense counsel had improperly told the jury that it should find him guilty of
voluntary manslaughter. Id. at 361, 432 S.E.2d at 127. During closing arguments,
defense counsel argued that the defendant was not guilty of first-degree or second-
degree murder and then stated the following: “I submit to you that based upon the
evidence presented in terms of a criminal offense, that the one that most closely—or
the one that is most closely kind [sic] to this is the offense of voluntary manslaughter,
that being there was provocation.” Id. We held that defense counsel’s statements did
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not constitute Harbison error because “defendant’s counsel never conceded that the
defendant was guilty of any crime” and did not say anything that was “the equivalent
of admitting that the defendant was guilty.” Id. at 361, 432 S.E.2d at 128. Instead,
counsel simply stated that if the evidence did tend to show that the defendant had
committed a crime, then that crime was voluntary manslaughter. Id.The defendant in State v. Hinson, 341 N.C. 66, 459 S.E.2d 261 (1995), was
convicted of first-degree murder. He argued on appeal that his defense counsel had
conceded his guilt during closing argument by referring to “Mr. Brown”—an
individual who had testified that he was with the defendant when the killing took
place and had taken a plea deal in exchange for his testimony—as being responsible
for the murder, thereby implicating the defendant in the crime. Id. at 78, 459 S.E.2d
at 268. Specifically, defense counsel stated the following:
Mr. Brown, when you [sic] going to stand up and take
responsibility, Mr. Brown? Mr. Brown wasn’t a tool. He
was the engine. He was the engine that made everything
possible. He is the tool without which [the defendant] could
not . . . even have gotten out of his yard. But Mr. Brown’s
going to be home for Christmas apparently.
Id. at 77–78, 459 S.E.2d at 268 (first alteration in original). We held that this case
was “wholly distinguishable from Harbison” because “nowhere in the record did
defense counsel concede that [the] defendant himself committed any crime
whatsoever” and that, to the contrary, he maintained throughout the trial that Mr.
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Brown—rather than the defendant—had killed the victim. Id. at 78, 459 S.E.2d at
268.
In State v. Wiley, 355 N.C. 592, 565 S.E.2d 22 (2002), the defendant was
convicted of first-degree murder and argued on appeal that Harbison error had
occurred during his defense counsel’s opening statement when counsel stated that
the defendant was at the scene of the crime and that physical evidence linked him to
the scene. Id. at 618, 565 S.E.2d at 41. In her opening statement, defense counsel
asserted that the identity of the killer and the credibility of the witnesses were the
chief issues in the trial. Id. Later in her remarks, defense counsel stated the following:
[DEFENSE COUNSEL:] You will only hear one
person testify who was present or anywhere near present
at the time that happened, and that person is Alicia Doster.
She was fourteen at the time it happened. She was a
runaway who stole her mother’s car and went to stay in an
abandoned house in the neighborhood. It was a house
where many of the young kids stayed and hung out. . . .
There’s evidence that there was smoking and
drinking and some drug use going on at that house. Now,
she’ll tell you that three people were involved and, you
know, that’s not disputed. Three people were apparently
involved in that. The first one is Alicia Doster, and she has
made a deal with the State of North Carolina to testify in
this case. . . .
Now, the second person who you’ll hear about is [the
defendant], and he’s sitting in this courtroom today . . . .
Now, there is one [more] person who you won’t see
here, you won’t hear from him, you won’t see him, you won’t
hear anything from him at all, and that is Justin Pallas.
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Opinion of the Court
And he’s not present in the courtroom and he won’t offer
any testimony at all.
....
[DEFENSE COUNSEL]: He was present at the time
that all of this happened, and Miss Doster will certainly
testify to that. . . .
....
You will hear and see plenty of physical evidence, as
well. Not much of this physical evidence will put [the
defendant] at the scene of the crime or at the scene where
the automobile was disposed of. There will be no
fingerprints on the car that belonged to [the defendant].
You will hear that six cigarette butts were found in the car.
Three of those belonged to two different males who were
not identified. Don’t know who put those cigarettes in the
car or when. Don’t know whose they were.
....
. . . Nothing else was found in the scene—at the
scene that belonged to [the defendant]. None of [the
defendant’s] fingerprints were found on the alleged murder
weapon.
Id. at 618–19, 565 S.E.2d at 41–42 (first and third alterations in original) (emphasis
added).
In rejecting the defendant’s argument based on Harbison, we noted that
“[a]dmitting a fact is not equivalent to an admission of guilt.” Id. at 620, 565 S.E.2d
at 42 (citing State v. Strickland, 346 N.C. 443, 454, 488 S.E.2d 194, 200 (1997)). We
further determined that “[a]lthough it is arguable that defense counsel signaled [that]
some physical evidence would be presented linking defendant to [the victim’s] car,
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Opinion of the Court
counsel made it clear that such evidence was of dubious validity because its origin
was unknown.” Id. at 619, 565 S.E.2d at 42. Accordingly, we held that “[p]laced in
context, [defense counsel’s] statements hardly constitute an admission.” Id.In State v. Roache, 358 N.C. 243, 595 S.E.2d 381 (2004), the defendant was
convicted of five counts of first-degree murder. On appeal, he argued that a Harbison
violation had occurred because during opening statements, his counsel recounted how
the defendant had shot another man in the head during the same crime spree that
included the killings for which he was on trial. Id. at 278, 595 S.E.2d at 404–05. We
held that defense counsel’s statement was not a per se violation of the defendant’s
right to effective assistance of counsel. Id. at 284, 595 S.E.2d at 408. We noted that
“[t]he act in Harbison that this Court found merited a new trial was counsel’s
admission of legal guilt as to the crime for which the defendant had been indicted and
for which the defendant was being tried.” Id. at 283, 595 S.E.2d at 408. As such,
because the shooting referenced by defense counsel in the opening statement “was
not at issue in this trial . . . this defendant was not harmed in the same manner as
the defendant in Harbison.” Id.The defendant in State v. Gainey, 355 N.C. 73, 558 S.E.2d 463 (2002), was
indicted for first-degree murder, first-degree kidnapping, and robbery with a
dangerous weapon. While making his opening statement and closing argument to the
jury, defense counsel noted the defendant’s involvement in the events surrounding
the death of the victim and argued that “if he’s guilty of anything, he’s guilty of
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Opinion of the Court
accessory after the fact. He’s guilty of possession of a stolen vehicle.” Id. at 93, 558
S.E.2d at 476. On appeal following a conviction on all charges, the defendant argued
that he was denied the right to effective assistance of counsel because his defense
counsel conceded his guilt without first receiving his express permission to do so. Id.
at 92, 558 S.E.2d at 476. We held that defense counsel’s statements did not rise to
the level of Harbison error. Id. at 93, 558 S.E.2d at 476.
[A]rgument that the defendant is innocent of all charges,
but if he is found guilty of any of the charges it should be
of a lesser crime because the evidence came closer to
proving that crime than any of the greater crimes charged,
is not an admission that the defendant is guilty of
anything, and the rule of Harbison does not apply.
....
In the present case, defense counsel never conceded
that defendant was guilty of any crime. Counsel merely
noted defendant’s involvement in the events surrounding
the death of the victim, arguing that “if he’s guilty of
anything, he’s guilty of accessory after the fact. He’s guilty
of possession of a stolen vehicle.” This was hardly the
equivalent of admitting that defendant was guilty of the
crime of murder. Defendant has taken defense counsel’s
statements out of context to form the basis of his claim, and
he fails to note the consistent theory of the defense that
defendant was not guilty.
Id. at 92–93, 558 S.E.2d at 476.
In State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005), the defendant was
convicted of first-degree murder, and on appeal he raised a Harbison claim after his
defense counsel conceded his guilt to the lesser-included offense of second-degree
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Opinion of the Court
murder without his prior consent. Id. at 694, 617 S.E.2d at 32. During closing
arguments, defense counsel stated the following:
And what I’m telling you folks right now, that right
there is enough for you to have reasonable doubt. The fact
that you have one expert who is saying [sic] can’t form the
specific intent to either rob or kill and the [S]tate’s own
expert comes in and says, I can’t rule it out 100 percent,
there’s your reasonable doubt right there. That’s all you
need. That’s the key to this case. That’s all you need. You
weigh the evidence out. You make that determination. But
right there is all the reasonable doubt you would need in
this case.
....
Again, I submit to you, as I think I said earlier, not
every homicide is a first[-]degree murder case, and there’s
plenty of second[-]degree murder cases out there that are a
whole lot bloodier and a whole lot more gory and a whole
lot more horrific than first[-]degree murder cases. The only
difference is a second[-]degree murder case lacks that
specific intent element, and I submit to you that’s where
we’re at in this case, folks. There is so much going on, there
is so much going on in this case. There is plenty of hooks
for you to hang your hat on and find reasonable doubt in
this case.
Id. at 694–95, 617 S.E.2d at 32. We held that the above-quoted statement was
“distinguishable from that made by the Harbison attorney and does not amount to
ineffective assistance” because defense counsel was not conceding guilt, but rather
“was arguing to the jury that[ ] without specific intent, the most serious crime for
which defendant could be convicted would be second-degree murder.” Id. at 696,
617 S.E.2d at 33.
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Opinion of the Court
Finally, the defendant in State v. Goss, 361 N.C. 610, 651 S.E.2d 867 (2007),
was convicted of first-degree murder. The sole issue for resolution at trial was
whether he was guilty of first-degree or second-degree murder. During closing
arguments, defense counsel stated that “[defendant’s] statement alone guarantees
he’ll serve a substantial amount of time in prison and face the terrible consequences
of a first[-]degree murder conviction.” Id. at 622, 651 S.E.2d at 875 (first alteration in
original). At the end of the closing argument, defense counsel asked the jury to
“return the verdict that the evidence supports, guilty of second[-]degree murder.” Id.
at 625, 651 S.E.2d at 876.
The defendant asserted on appeal that his defense counsel’s reference to first-
degree murder in the initial statement quoted above constituted a concession of his
guilt of that crime in violation of Harbison. Id. at 622–23, 651 S.E.2d at 875. We held
that there was no error under Harbison because “the only issue even contested at
defendant’s trial was whether he had committed first-degree or second-degree
murder, and trial counsel’s entire closing argument was directed toward undercutting
the first two theories of first-degree murder advanced by the State.” Id. at 625, 651
S.E.2d at 876. With regard to defense counsel’s assertion that the defendant was
guaranteed to suffer the consequences of a first-degree murder conviction, we noted
that “it appears that [defense counsel’s] reference to first-degree murder was
accidental and went unnoticed,” and we stated that this Court would not “interpret
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Opinion of the Court
Harbison to allow a defendant to seize upon a lapsus linguae uttered by trial counsel
in order to be awarded a new trial.” Id.***
Having reviewed this Court’s case law applying Harbison in the context of
concessions of guilt alleged to have been made by defense counsel during closing
argument, we must now apply those principles to the present case. Defendant’s
argument under Harbison relates to his attorney’s statements to the jury during
closing argument that were relevant to the offense of assault on a female—the only
one of the four charges for which he was convicted. “The elements of an assault on a
female are (1) an assault (2) upon a female person (3) by a male person (4) who is at
least eighteen years old.” State v. Wortham, 318 N.C. 669, 671, 351 S.E.2d 294, 296
(1987) (citing N.C.G.S. § 14-33(b)(2)). The trial court instructed the jury that in order
to convict defendant of assault on a female, the State was required to prove that (1)
defendant “intentionally assaulted the alleged victim by hitting her”; (2) that “the
alleged victim was a female person”; and (3) that the “defendant was a male person
at least 18 years of age.”
Based on our review of the trial transcript, it is readily apparent that the goal
of defense counsel in his closing argument was to rebut the State’s evidence in support
of the rape, sexual offense, and assault by strangulation charges—offenses that
carried penalties significantly greater than that for the crime of assault on a female.
During his closing argument, defense counsel never expressly mentioned the charge
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Opinion of the Court
of assault on a female but repeatedly addressed the other three charges against
defendant. At the conclusion of the closing argument, he asked the jury to find
defendant not guilty of the charges of “rape[,] sexual offense, [and] assault by
strangulation.” Once again, no mention was made by him of the assault on a female
charge.
Thus, this is not a case like Matthews or Harbison itself in which the
defendant’s attorney expressly asked the jury to find him guilty of a specific charged
offense. We agree with defendant, however, that a Harbison violation is not limited
to such instances and that Harbison should instead be applied more broadly so as to
also encompass situations in which defense counsel impliedly concedes his client’s
guilt without prior authorization.
The Court of Appeals reached a similar conclusion in State v. Spencer, 218 N.C.
App. 267, 720 S.E.2d 901 (2012). In Spencer, the defendant was convicted of eluding
arrest with a motor vehicle, assault with a deadly weapon on a government official,
and resisting a public officer. Id. at 267, 720 S.E.2d at 902. The defendant argued on
appeal that his defense counsel had conceded his guilt to the charges of resisting a
public officer and eluding arrest by making certain admissions to the jury without
obtaining his prior consent. Id. at 275, 720 S.E.2d at 906. During closing arguments,
counsel stated that the defendant “chose to get behind the wheel after drinking, and
he chose to run from the police” and that the law enforcement officer “was already
out of the way and he just kept on going, kept running from the police.” Id. The Court
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Opinion of the Court
of Appeals determined that defense counsel’s “statements cannot be construed in any
other light than admitting the defendant’s guilt.” Id. at 276, 720 S.E.2d at 906.
We believe that defense counsel’s statements here similarly amounted to an
implied admission of defendant’s guilt of the crime of assault on a female. During the
closing argument, counsel stated the following with regard to defendant’s videotaped
interview: “You heard him admit that things got physical. You heard him admit that
he did wrong. God knows he did.” Shortly thereafter, he stated with regard to
defendant’s videotaped interview that defendant was “being honest” with law
enforcement officers about his altercation with Leonard. Later in the closing
argument, defense counsel stated the following: “Jury, what I’m asking you to do is
you may dislike Mr. McAllister for injuring Ms. Leonard, that may bother you to your
core but he, without a lawyer and in front of two detectives, admitted what he did
and only what he did.” At the conclusion of the closing argument, he stated the
following:
I asked you at the beginning [to] make the State prove their
case, make them. Have they? Anything but conjecture and
possibility? All I ask is that you put away any feelings you
have about the violence that occurred, look at the evidence
and think hard. Can you convict this man of rape and
sexual offense, assault by strangulation based on what
they showed you? You can’t. Please find him not guilty.
The above-quoted statements are problematic for several reasons. First,
defense counsel attested to the accuracy of the admissions made by defendant in his
videotaped statement by informing the jurors that defendant was “being honest.”
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Opinion of the Court
During that interview, defendant admitted—among other things—that he (1) pushed
Leonard to the ground outside of the gas station; (2) “backhanded” her in the face; (3)
“smacked her in the lip”; (4) “grabbed her in the mouth” and also bit her hand; and
(5) “smacked [her] ass up” and that he “can take the rap for that.” By representing to
the jury that defendant was “being honest” when he made those statements during
the interview, defense counsel vouched for their truth, and, as such, there was no
reason for the jury to question the validity of any of defendant’s admissions.
Second, defendant’s attorney not only reminded the jury that defendant had
admitted he “did wrong” during the altercation in which Leonard got “hurt,” but
defense counsel then proceeded to also state his own personal opinion that “God
knows he did [wrong]”—thereby implying that there was no justification for
defendant’s use of force against Leonard. Shortly thereafter, he acknowledged that
the jurors might “dislike [defendant] for injuring Ms. Leonard” and that defendant’s
actions “may bother you to your core.” He also referred to the “violence” that had
occurred during the altercation.
Finally, at the very end of his closing argument, defense counsel asked the jury
to find defendant not guilty of every offense for which he had been charged except for
the assault on a female offense. By virtue of defense counsel overtly seeking a not
guilty verdict as to the three more serious charges against defendant, yet
conspicuously omitting mention of the assault on a female charge—indeed, by not
expressly mentioning that charge at all during the entire closing argument—the only
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Opinion of the Court
logical inference in the eyes of the jury would have been that defense counsel was
implicitly conceding defendant’s guilt as to that charge.
This Court’s post-Harbison case law has suggested that a per se violation of a
defendant’s right to effective assistance of counsel can occur where defense counsel’s
statements are the functional equivalent of an outright admission of the defendant’s
guilt as to a charged offense. See Strickland, 346 N.C. at 454, 488 S.E.2d at 200(“Defense counsel’s statements were not the equivalent of asking the jury to find
defendant guilty of any charge, and therefore, Harbison does not control.”);
Harvell, 334 N.C. at 361, 432 S.E.2d at 128 (holding that there was no Harbison error
where defense counsel’s statements were “not the equivalent of admitting that the
defendant was guilty of any crime”); Greene, 332 N.C. at 572, 422 S.E.2d at 734 (“This
is not the equivalent of asking the jury to find the defendant guilty[,] . . . and the rule
of Harbison does not apply.”). Today, we expressly hold that such an implied
admission of guilt can, in fact, constitute Harbison error.
The Court of Appeals majority applied an overly strict interpretation of
Harbison here by confining its analysis to (1) whether defense counsel had expressly
conceded defendant’s guilt of the assault on a female charge; or (2) whether counsel’s
statements “checked the box” as to each element of the offense.4 We believe, however,
4 For example, the Court of Appeals majority noted that defense counsel did not
concede that the age requirement for the offense of assault on a female had been satisfied.
However, the age of defendant was not in dispute.
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Opinion of the Court
that such an approach reflects too cramped of a construction of Harbison. Although
an overt admission of the defendant’s guilt by counsel is the clearest type of Harbison
error, it is not the exclusive manner in which a per se violation of the defendant’s
right to effective assistance of counsel can occur. In cases where—as here—defense
counsel’s statements to the jury cannot logically be interpreted as anything other
than an implied concession of guilt to a charged offense, Harbison error exists unless
the defendant has previously consented to such a trial strategy. In such cases, the
defendant is prejudiced in the same manner and to the same degree as if the
admission of guilt had been overtly made. Thus, our decision in this case is faithful
to the rationale underlying Harbison.
We recognize that on the facts of this case, such a trial strategy may well have
been in defendant’s best interests given his acquittal of the three most serious charges
against him. But that does not change the fact that under Harbison and its progeny
defense counsel was required to obtain the informed consent of defendant before
embarking on such a strategy that implicitly acknowledged to the jury his guilt of a
separately charged offense.
Finally, we emphasize that a finding of Harbison error based on an implied
concession of guilt should be a rare occurrence. However, the unique circumstances
contained in the record before us make this the unusual case in which such a finding
is appropriate.
In reaching a different result, the dissent falls into the trap of conflating the
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Opinion of the Court
Harbison issue with the entirely separate issue of whether defense counsel’s strategy
was effective in terms of obtaining an acquittal on the more serious offenses with
which defendant was charged. In so doing, the dissent misses the point. As noted
above, the relevant question under Harbison is not whether conceding defendant’s
guilt as to the least serious offense was a sound trial strategy. Rather, our inquiry
must focus on whether defense counsel admitted defendant’s guilt to a charged
offense without first obtaining his consent.
The dissent fails in its attempt to characterize defense counsel’s statements as
a request for the jury to find defendant not guilty of the assault on a female charge.
This failure is hardly surprising given that defense counsel—among other things—
affirmed the veracity of defendant’s statements in his videotaped interview in which
he admitted to having engaged in assaultive conduct toward Leonard and then
conceded that defendant had acted wrongfully. The unmistakable message sent by
defense counsel to the jury was that defendant was, in fact, guilty of the assault on a
female charge—a message that was magnified by defense counsel’s failure to ask for
a not guilty verdict as to that charge as he did for the other three charges. The
dissent’s interpretation of defense counsel’s closing argument is based on a tortured
construction of the words used by defendant’s attorney—words that could not
rationally have been understood by the jury as anything other than a concession of
defendant’s guilt as to this charge.
Finally, the dissent makes the assertion that as a result of our decision today
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Opinion of the Court
defense attorneys will be hesitant to engage in the strategy of acknowledging that
their client engaged in some form of moral wrongdoing in the hope of both enhancing
their own credibility and personalizing the defendant in the eyes of the jury. This
reluctance will exist, the dissent predicts, due to a fear that their representation will
be deemed to be constitutionally deficient if they employ such an approach. The
dissent’s concern is misguided, however, as nothing in our decision today precludes
such a strategy. But if that tactic includes either an explicit or implicit admission of
the defendant’s guilt of a charged offense, then prior consent from the defendant must
be obtained. It is the defendant—not his attorney—whose liberty is placed at risk as
a result of such a strategic decision.
***
Having determined that defense counsel impliedly conceded defendant’s guilt
of the offense of assault on a female, the only remaining issue is whether he did so
without defendant’s prior consent. The record reflects that before trial, the State
advised the trial court of the potential for a Harbison issue in light of the statements
contained in defendant’s videotaped interview. In response, the trial court made a
brief inquiry to defense counsel as to whether his opening statement was likely to
trigger any Harbison-related concerns, noting that defendant’s consent would be
required before any admissions of guilt could be made to the jury. After defense
counsel replied that he would not be making any such admissions during his opening
statement, the trial court stated its intention to revisit the issue following the lunch
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Opinion of the Court
recess. The record does not reveal any further discussion taking place during the
remainder of the trial as to the possibility of Harbison-related issues arising.
This Court has stated “that an on-the-record exchange between the trial court
and the defendant is the preferred method of determining whether the defendant
knowingly and voluntarily consented to an admission of guilt during closing
argument,” but we have also “declined to define such a colloquy as the sole
measurement of consent.” State v. Thompson, 359 N.C. 77, 119–20, 604 S.E.2d 850,
879 (2004) (citing State v. McDowell, 329 N.C. 363, 386–87, 407 S.E.2d 200, 213
(1991)). Moreover, we have made clear that the absence of any indication in the record
of defendant’s consent to his counsel’s admissions will not—by itself—lead us to
“presume defendant’s lack of consent.” State v. Boyd, 343 N.C. 699, 722, 473 S.E.2d
327, 339 (1996); see State v. House, 340 N.C. 187, 196, 456 S.E.2d 292, 297 (1995)
(“This Court will not presume from a silent record that defense counsel argued
defendant’s guilt without defendant’s consent.”).
As a result, we believe that the appropriate remedy is to remand this case to
the Superior Court, Forsyth County, for an evidentiary hearing to be held as soon as
practicable for the sole purpose of determining whether defendant knowingly
consented in advance to his attorney’s admission of guilt to the assault on a female
charge. See State v. Morganherring, 350 N.C. 701, 713, 517 S.E.2d 622, 630 (1999);
see also State v. Thomas, 327 N.C. 630, 631, 397 S.E.2d 79, 80 (1990). Following the
evidentiary hearing, the trial court shall expeditiously make findings of fact and
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Opinion of the Court
conclusions of law and enter an order. The trial court shall then certify the order, the
findings of fact and conclusions of law, and the transcript of the hearing to this Court.
See Thomas, 327 N.C. at 631, 397 S.E.2d at 80.
Conclusion
We reverse the decision of the Court of Appeals and remand with instructions
as set forth above.
REVERSED AND REMANDED.
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Justice NEWBY dissenting.
A criminal defense attorney may concede that a defendant has engaged in bad
behavior without admitting that the defendant has committed one of the crimes
charged. Indeed, it may be in the defendant’s best interests for his attorney to do so.
Admitting to the jury that a defendant has behaved poorly can enhance defense
counsel’s credibility and help the jury better understand what is really at issue in a
case. The majority’s decision today limits defense counsel’s ability to pursue this
common strategy and starts the Court down a slippery slope with no obvious stopping
point. The majority, content to refrain from considering whether defense counsel’s
statements actually harmed defendant, leaps beyond our precedent and says we must
assume the statements were prejudicial. Such an assumption should be reserved for
the rare, blatant case in which defense counsel makes an explicit admission of guilt
or uses words that constitute the functional equivalent of such an explicit admission.
That sort of admission did not occur in this case. Instead, defendant’s counsel merely
noted that defendant did wrong, but ultimately urged the jury to find him not guilty
of all charges. A successful ineffective assistance of counsel claim based on facts like
those at issue here requires proof of prejudice in accordance with the Strickland
standard. I respectfully dissent.
The Sixth Amendment to the United States Constitution guarantees criminal
defendants the right to effective assistance of counsel. In Strickland v. Washington,
STATE V. MCALLISTER
Newby, J., dissenting
466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the Supreme Court of the United
States held that a defendant’s right to effective assistance of counsel is violated when
the defense counsel’s errors were “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment” and when those errors
deprived the defendant of a fair trial. The Court left open the possibility, though, that
in some cases a defense counsel’s error is so egregious that prejudice to the defendant
may be presumed. Id. at 692, 104 S. Ct. at 2067.
In State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985), this Court,
recognizing a defendant’s right to plead not guilty, explained that prejudice to a
defendant may be presumed when defense counsel concedes a defendant’s guilt to the
jury without the defendant’s consent. When defense counsel does so, “the harm [to
the defendant] is so likely and so apparent that the issue of prejudice need not be
addressed.” Id. In Harbison, this Court presumed prejudice to the defendant because
defense counsel explicitly recommended that the jury find the defendant guilty of one
of the crimes charged. Id. at 177–78, 337 S.E.2d at 506.
The central issue in this case is whether defense counsel’s statements were so
likely to harm defendant that the issue of prejudice need not even be addressed. Id.
at 180, 337 S.E.2d at 507. According to this Court’s precedent, such a result only
occurs if defense counsel explicitly, or through the functional equivalent of an explicit
statement, admits the defendant’s guilt of a charged offense. State v. Strickland, 346
N.C. 443, 454, 488 S.E.2d 194, 200 (1997) (holding that Harbison did not control
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STATE V. MCALLISTER
Newby, J., dissenting
because “[d]efense counsel’s statements were not the equivalent of asking the jury to
find defendant guilty of any charge”).
Defense counsel’s statements in this case do not rise to that level of
egregiousness. In fact, defense counsel’s overall strategy in closing argument appears
sound.1 Defendant faced multiple serious charges, including charges of rape, sexual
offense, and assault by strangulation, with indisputable facts that he had in fact
injured the victim. Thus, the challenge to defense counsel was to help the jury
appreciate its legal duty while at the same time personalize his client. During closing
argument, defense counsel noted the following to the jury: “You heard [defendant]
admit that things got physical. You heard him admit that he did wrong. God knows
he did.” Defense counsel also noted that the jury “may dislike [defendant] for injuring
Ms. Leonard.” Finally, at the end of his argument, he told the jury the following:
I asked you at the beginning [to] make the State prove their
case, make them. Have they? Anything but conjecture and
possibility? All I ask is that you put away any feelings you
have about the violence that occurred, look at the evidence
and think hard. Can you convict this man of rape and
sexual offense, assault by strangulation based on what
they showed you? You can’t. Please find him not guilty.
1 The majority asserts that emphasizing the soundness of defense counsel’s strategy
misses the point. Certainly it is true that defense counsel may not directly admit a
defendant’s guilt to the jury without the defendant’s consent, no matter how good of a
strategy it may be. But in this case defense counsel clearly did not admit defendant’s guilt in
that manner. The question then is whether counsel’s statements were still so egregious that
harm to defendant may be presumed without further inquiry. In cases like this one when a
Harbison violation is not obvious, the Strickland analysis applies and the soundness of
defense counsel’s trial approach matters.
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STATE V. MCALLISTER
Newby, J., dissenting
The majority holds that through these statements defense counsel impliedly
admitted defendant’s guilt to the charge of assault on a female. That decision
contradicts both the language in which defense counsel’s argument is couched and
this Court’s repeated application of Harbison.
This Court has rejected almost every challenge brought under Harbison,
because rarely are defense counsel’s statements so egregious that harm to the
defendant can simply be assumed without any further inquiry. The only instances in
which we have held that such a violation occurred have been when defense counsel
specifically and explicitly urged the jury to find the defendant guilty of a crime. See
Harbison, 315 N.C. at 177–78, 337 S.E.2d at 506 (addressing statements made by
defense counsel telling the jury that “I don’t feel that [the defendant] should be found
innocent. I think he should do some time to think about what he has done. I think
you should find him guilty of manslaughter and not first[-]degree [murder]”); State v.
Matthews, 358 N.C. 102, 106, 591 S.E.2d 535, 539 (2004) (addressing a statement
made by defense counsel telling the jury that “you ought not to find him not guilty
because he is guilty of something”).
But in cases in which defense counsel merely admits that the defendant
committed a moral wrong, or only concedes the existence of an element of an offense,
no Harbison violation has occurred. In State v. Fisher, 318 N.C. 512, 350 S.E.2d 334(1986), the defendant was on trial for first-degree murder. Defense counsel admitted
to the jury that the defendant acted with malice, an element of second-degree murder.
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STATE V. MCALLISTER
Newby, J., dissenting
Id. at 533, 350 S.E.2d at 346. Nevertheless, this Court held that there was no per se
violation of the right to effective assistance of counsel under Harbison because the
defense counsel never admitted guilt but instead only admitted an element of a crime
while ultimately maintaining the defendant’s innocence. Id. at 532–33, 350 S.E.2d at
346.
In State v. Thomas, 329 N.C. 423, 441, 407 S.E.2d 141, 153 (1991), defense
counsel expressed to the jury multiple times that he did not condone the defendant’s
behavior and even described the defendant’s actions as a sexual assault. This Court
held that there was no Harbison violation because defense counsel did not specifically
admit that the defendant committed one of the crimes charged—first-degree murder
or first-degree sexual offense. Id. at 442, 407 S.E.2d at 153–54.
Finally, in State v. Greene, 332 N.C. 565, 573, 422 S.E.2d 730, 734 (1992), the
defendant was on trial for first-degree murder after slapping a child and killing him.
Defense counsel first conceded that the jury would likely find that the defendant
acted with reckless disregard for the victim’s life, but he later asserted that the
defendant did not actually act in that manner. Id. at 570–71, 422 S.E.2d at 733. This
Court held that there was no Harbison violation because even though defense counsel
said that the jury may find reckless disregard by the defendant, defense counsel did
not ultimately argue that the jury should do so. Id. at 571–72, 422 S.E.2d at 733–34.
In this case defense counsel did not claim that defendant should be found guilty
of assault on a female. Nor did his statements functionally constitute a request that
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Newby, J., dissenting
the jury should so find. Defense counsel did state that he thought defendant “did
wrong” by engaging in a physical altercation with Leonard. But to say an accused
person did something wrong is not the functional equivalent of saying that the person
committed one of the crimes charged. And, looking at his statements more
comprehensively, defense counsel did not insinuate that defendant committed one of
the crimes charged. Shortly before stating that defendant “did wrong,” defense
counsel explained that the case simply involved “two people in a new relationship
that got drunk and got in a fight and an argument, it’s as basic as that.”
Indeed, defense counsel was pursuing a reasonable and effective strategy of
jury persuasion. Defendant was charged with several serious offenses. In such cases
it is often in a defendant’s best interests for his counsel to concede to the jury that the
defendant has behaved poorly. Doing so can enhance defense counsel’s credibility and
enable counsel to direct the jury’s attention not to the question of whether the
defendant has done anything morally wrong, but whether the defendant has
committed one of the charged crimes. In this case that strategy appears to have been
effective: the jury acquitted defendant of all of the most serious charged offenses. So,
viewed in context, defense counsel’s statements of defendant’s wrongdoing and of
defendant’s injuring Leonard simply conceded the undisputed facts—that defendant’s
conduct was far from perfect and that defendant was, along with Leonard herself,
involved in activity that resulted in Leonard’s injuries. Those concessions did not
admit defendant’s guilt of any of the charges.
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Newby, J., dissenting
Further, defense counsel did not admit defendant’s guilt of assault on a female
simply by failing to emphasize defendant’s innocence of that crime during the closing
argument. At the end of his closing argument, defense counsel specifically expressed
that the jury could not return a guilty verdict on the charges of rape, sexual offense,
or assault by strangulation. The majority decides that the omission of the assault on
a female charge from that list is glaring and obvious and would cause a jury to believe
that defense counsel thought the jury should return a guilty verdict on that charge.
That analysis is purely speculative and fails to take the statement in context and in
accordance with the manner in which it is couched. First, it is reasonable to suspect
that an attorney may omit one item from a list of charges simply by accident. And it
is quite possible that the jury did not even notice the omission. Second, defense
counsel at the end of his closing argument appears to have urged the jury to return a
verdict of not guilty, without excepting any of the charges from that request.
Naturally understood, defense counsel’s statements during closing argument urged
not-guilty verdicts across the board. And, in any event, it was not unreasonable for
defense counsel to especially emphasize the importance of returning not-guilty
verdicts on the most serious offenses charged.
The majority also emphasizes that defense counsel told the jury that defendant
had been “honest” to police, in reference to a conversation in which defendant told
police about various acts of physical violence he committed against Leonard. First,
this statement comports with what appears to have been defense counsel’s overall
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STATE V. MCALLISTER
Newby, J., dissenting
theory of the case—that defendant and Leonard got in a fight, that defendant
committed a moral wrong, but that defendant is innocent of the crimes charged. And,
again, this Court has held that even admissions by defense counsel of elements of
offenses do not amount to admissions of the defendant’s guilt and so are not per se
reversible error under Harbison. See, e.g., Fisher, 318 N.C. at 532–33, 350 S.E.2d at
346. In fact, one wonders what the majority believes defense counsel should have said
about defendant’s statements to police. Because this statement by defense counsel
was not Harbison error, we cannot say that this is the sort of case in which no inquiry
into prejudice is required.
Ultimately, of course, the majority holds that it is the combination of all of
these decisions or mishaps by defense counsel that constituted an assertion to the
jury that defendant is guilty of assault on a female. However, all of that together is
still not enough to prove a Harbison violation. The point of our holding in Harbison
is that in the rare case a defense counsel’s statements are so egregious that harm to
the defendant is near certain and it would be a waste of judicial resources to
determine whether the defendant was actually prejudiced. See Harbison, 315 N.C. at
179, 337 S.E.2d at 507 (quoting United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct.
2039, 2046 (1984)) (“Although this Court still adheres to the application of the
Strickland test in claims of ineffective assistance of counsel, there exist
‘circumstances that are so likely to prejudice the accused that the cost of litigating
their effect in a particular case is unjustified.’ ”). So, the question is not whether
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STATE V. MCALLISTER
Newby, J., dissenting
defense counsel’s actions could have led the jury to believe that defendant was guilty
of assault on a female; the question is whether defense counsel’s statements were so
serious, because they were the functional equivalent of a direct and explicit admission
of defendant’s guilt, that significant harm to defendant is self-evident. Never have we
found a Harbison error on facts as tenuous as those on which the majority rests its
holding today.
Defense attorneys have a limited collection of tools at their disposal when in
front of juries. One of these is to admit obvious mistakes made by the defendant.
Doing so enhances the defense counsel’s credibility, personalizes the defendant, and
helps focus the jury’s attention on the legal questions it must answer. Before today
defense counsel could leverage their experience and discretion to pursue such a
strategy as long as they did not admit the defendant’s guilt without his consent.
Today the majority substantially removes this tool from defense attorneys. Moving
forward, defense counsel will hesitate to pursue this reasonable strategy out of fear
that their representation will be ruled constitutionally deficient. Here, defense
counsel’s statements, viewed in their context and their entirety, do not admit
defendant’s guilt of any of the offenses with which he was charged. The majority
wrongly holds that Harbison error occurred and thus presumes without further
consideration that the fundamental fairness of defendant’s trial was impaired. That
conclusion is simply inconsistent with this Court’s jurisprudence and excuses
defendant from making a showing of prejudice in accordance with Strickland when
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Newby, J., dissenting
he should be required to do so. The decision of the Court of Appeals should be
affirmed.
I respectfully dissent.
Justice ERVIN joins in this dissenting opinion.
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