¶1concurring in part and dissenting in part.
¶2I concur with that portion of the majority which finds no error in the trial court’s instructions to the jury. I dissent from that portion which remands for an evidentiary hearing on the issue of whether the defendant consented to his counsel’s argument to the jury conceding defendant’s guilt to manslaughter. In my view, the defendant’s argument should be dismissed because defendant has made no factual assertion that he did not consent.
¶3In State v. Thomas, 327 N.C. 630, 397 S.E.2d 79 (1990), the Supreme Court case which sets the precedent for remanding for *172an evidentiary hearing, the defendant contended on appeal that he did not consent to his attorney’s closing argument. Id. at 630, 397 S.E.2d at 80. No such contention appears in this case. Rather, defendant contends that he is entitled to a new trial simply because the record is silent regarding his consent. Appellate courts should not remand for an evidentiary hearing without requiring the defendant to make a factual allegation that he did not consent to his counsel’s actions. The majority errs in holding to the contrary.
¶4I also take this opportunity to point out that the decision by the Supreme Court in State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), abandons the traditional test of prejudice in cases alleging ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674 (1984), adopting instead a rule requiring a new trial in every case wherein the defendant’s counsel, without defendant’s prior consent, concedes defendant’s guilt to a lesser offense submitted to the jury. If there is ultimately a factual determination in this case that defendant Baynes did not consent to his counsel’s argument to the jury, the Harbisonrule would be especially harsh to the victims in this case. The evidence of defendant Baynes’ torture of these children was overwhelming, corroborated and uncontradicted. This case presents an opportunity for the Supreme Court to reexamine the issue of whether every case involving defendant’s lack of consent to counsel’s argument conceding some guilt automatically requires a new trial without determining whether defendant was prejudiced by his counsel’s concession.
¶5In sum, I vote to dismiss defendant’s argument regarding his counsel’s argument to the jury, without prejudice to the defendant to raise the issue in a properly filed motion for appropriate relief.