IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-726
Filed: 7 May 2019
Forsyth County, No. 15 CRS 51537
STATE OF NORTH CAROLINA
v.
ANTON THURMAN MCALLISTER
Appeal by defendant from judgment entered 22 August 2016 by Judge Richard
S. Gottlieb in Forsyth County Superior Court. Heard in the Court of Appeals
13 February 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Adren
L. Harris, for the State.
Joseph P. Lattimore for defendant-appellant.
TYSON, Judge.
Anton Thurman McAllister (“Defendant”) appeals by petition for writ of
certiorari from a judgment entered after a jury’s conviction of one count of habitual
misdemeanor assault. We find no error.
I. Background
Defendant met the victim, Stephanie Leonard, at a drug treatment facility
group session in Winston-Salem. Soon after they met, Defendant moved into Ms.
Leonard’s apartment.
STATE V. MCALLISTER
Opinion of the Court
On the evening of 16 February 2015, Defendant and Ms. Leonard jointly
consumed a large bottle of wine at a table inside Ms. Leonard’s apartment. Around
9:00 p.m., they decided to walk to a nearby BP gas station to purchase cigarettes.
Before arriving at the BP gas station, Ms. Leonard decided she wanted more wine
and the pair began walking towards another store.
At this point, Defendant realized Ms. Leonard had not disclosed to him that
she had money. Ms. Leonard testified that Defendant hit her in the face and knocked
her to the ground, causing her to lose her wallet in the fall. Ms. Leonard got up and
began to walk back towards the BP station. Defendant continued to strike her in the
face. A cashier at the BP heard the struggle and saw Defendant “jerk” Ms. Leonard
around outside of the store. The cashier called the police. Winston-Salem police
responded to the call, but did not find Defendant or Ms. Leonard. An officer recovered
Ms. Leonard’s wallet and identification card at the scene.
The couple eventually returned to Ms. Leonard’s apartment. Ms. Leonard
testified that her face was bleeding and Defendant continued to hit her and drag her
around the apartment. During the struggle, as Ms. Leonard struck at Defendant, her
fingers entered his mouth and his fingers entered hers. Ms. Leonard testified that
she bit Defendant’s fingers and he bit her fingers back. At some point during the
altercation, Ms. Leonard got into the bathtub. Defendant washed blood off of her
body and splashed the blood-water mixture onto the walls.
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Opinion of the Court
Ms. Leonard went into her bedroom. Defendant attempted to force Ms.
Leonard to perform fellatio. Defendant and Ms. Leonard then engaged in sexual
intercourse and both fell asleep.
The next day, 17 February, Winston-Salem police arrived at the BP station to
meet Ms. Leonard and investigate the assault. Officer P.M. Felske testified he
observed Ms. Leonard’s “cut lip and swollen lip and that it appeared that she had
been assaulted.” Law enforcement officers also entered and examined Ms. Leonard’s
apartment. Officer Christopher Ingram observed and photographed Ms. Leonard’s
injuries and the blood stains the officers had observed in the apartment, on the floor
of the bathroom and walls of the bathtub.
Officer J.A. Henry collected a security video recorded at the BP station on 16
February and observed Defendant present in the area of that same BP on the evening
of 17 February. Defendant agreed to go to the police department to speak with
officers about an unrelated incident. At the police station, Defendant agreed to
discuss the incident between himself and Ms. Leonard. Defendant purportedly
admitted he had pushed Ms. Leonard and engaged in other physical contact.
Defendant was indicted for habitual misdemeanor assault and charges of
second-degree rape, second-degree sex offense, and assault by strangulation.
On 22 August 2016, the jury returned verdicts finding Defendant guilty of
assault on a female, the underlying felony for habitual misdemeanor assault, and not
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STATE V. MCALLISTER
Opinion of the Court
guilty of all the other offenses. Defendant admitted to the predicate misdemeanor
assault convictions for habitual misdemeanor assault. The trial court entered
judgment sentencing Defendant to a term of 15 to 27 months imprisonment for
habitual misdemeanor assault.
Defendant failed to file a notice of appeal. On 19 July 2017, Defendant filed a
pro se “Motion to Modify and Terminate Sentence for Ineffective Assistance of
Counsel.” The trial court treated Defendant’s motion as a motion for appropriate
relief (“MAR”) and denied the motion without an evidentiary hearing.
Defendant filed a petition for writ of certiorari with this Court on
11 August 2017. By order entered 29 August 2017, this Court allowed the petition
“for the purpose of reviewing the judgment entered . . . on 22 August 2016.”
On 17 October 2018, Defendant filed an appellate brief, and at the same time
filed a second petition for writ of certiorari seeking review of the trial court’s
27 July 2017 order denying the MAR. The second petition was referred to this panel
for consideration.
II. Jurisdiction
This Court reviews Defendant’s criminal conviction by writ of certiorari
granted on 29 August 2017 pursuant to N.C. Gen. Stat. § 15A-1422(c)(3) (2017).
III. Issue
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Opinion of the Court
Defendant asserts his counsel conceded his guilt to the offense of habitual
misdemeanor assault on a female which constitutes a per se denial of his
constitutional right to effective assistance of counsel.
IV. Standard of Review
“On appeal, this Court reviews whether a defendant was denied effective
assistance of counsel de novo.” State v. Wilson, 236 N.C. App. 472, 475,
762 S.E.2d
894, 896 (2014).
V. State v. Harbison
In State v. Harbison, 315 N.C. 175, 180,
337 S.E.2d 504, 507 (1985), our
Supreme Court held that where “counsel admits his client’s guilt without first
obtaining the client’s consent, the client’s rights to a fair trial and to put the State to
the burden of proof are completely swept away.” The Court stated the practical effect
is the same as if defense “counsel had entered a plea of guilty without the client’s
consent.”
Id.
Our Supreme Court in Harbison requires a defendant’s consent to be on the
record to allow his counsel’s concession of defendant’s guilt of one or more of the
offenses for which he is charged. An “ineffective assistance of counsel, per se in
violation of the Sixth Amendment, [is] 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.
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STATE V. MCALLISTER
Opinion of the Court
Defendant argues his trial counsel admitted or conceded his guilt on the
misdemeanor charge of assault on a female without his consent and asserts he is
entitled to a new trial. The State argues that no Harbison violation occurred because
counsel did not expressly concede Defendant’s guilt to a charged crime or only
admitted one element of a charged offense.
The facts and statements of the present case fall squarely within the rationale
of the precedents cited by the State from the Supreme Court of North Carolina and
our Court, where Defendant’s counsel may have admitted an element of the offense,
but he did not expressly concede the crime charged or all other elements of the
charged crime.
A. State v. Gainey
In State v. Gainey, 355 N.C. 73, 93,
558 S.E.2d 463, 476 (2002), our Supreme
Court rejected the defendant’s assignment of error asserting his counsel’s argument
violated Harbison. The Court recognized that “defense counsel never conceded that
defendant was guilty of any crime.”
Id. Counsel merely noted 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 accessory after the fact. He’s guilty of possession
of a stolen vehicle.”
Id. (defendant was charged with murder, kidnapping, and
robbery). The Court noted the defendant had “taken defense counsel’s statements
out of context to form the basis of his claim, and . . . fail[ed] to note the consistent
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STATE V. MCALLISTER
Opinion of the Court
theory of the defense that defendant was not guilty.” Id. The defendant’s Harbison
objections were overruled.
Id.
B. State v. Fisher
In State v. Fisher, 318 N.C. 512,
350 S.E.2d 334 (1986), the defendant was
charged with and tried for first-degree murder. His counsel argued:
His Honor is going to submit to you a verdict form—Madam
Clerk, do we have it drawn up yet? Thank you. In which its
going to say, Ladies and Gentlemen of the Jury, Do you find
the defendant guilty of murder in the first degree and then
down below that it’s going to say Do you find him guilty of
second degree. Second degree is the unlawful killing of a
human being with no premeditation and no deliberation
but with malice, illwill. You heard Johnny testify, there
was malice there and then another possible verdict is going
to say Do you find him guilty of voluntary manslaughter.
Voluntary manslaughter is the killing of a human being
without malice and without premeditation. It’s a killing.
And it also has not guilty, remember that too. I asked you
about that and it’s not a not guilty as in some trial I wasn’t
there, I don’t know a darn thing about it, I wasn’t there,
never been to Silversteen, never will go there. There are
some that say, some defenses that say not guilty, that I was
there. It’s stupid to be there, it don’t make mama proud of
being there but I was there.
Id. at 533,
350 S.E.2d at 346.
Our Supreme Court held defendant-Fisher was not entitled to a new trial as
the counsel’s comments did not admit his guilt and counsel’s statement did not fall
within the line of cases showing a Harbison violation. Id. Even though Fisher’s
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Opinion of the Court
counsel admitted malice, an element of the offense, the Court held that his counsel
did not admit his client was guilty to murder as charged. Id.
Our Court has also recognized, “[a]dmission by defense counsel of an element
of a crime charged, while still maintaining the defendant’s innocence, does not
necessarily amount to a Harbison error.” See, e.g., State v. Wilson, 236 N.C. App. 472,
477,
762 S.E.2d 894, 897 (2014) (“Because this purported admission by Defendant’s
counsel did not refer to either the crime charged or to a lesser-included offense,
counsel’s statements in this case fall outside of Harbison. At best, an admission by
Defendant’s trial counsel that Defendant pointed a gun at [victim] while still
maintaining Defendant’s innocence of attempted first-degree murder, would appear
to place counsel’s statements within the rule in [State v.] Fisher, and thus still outside
of Harbison.”).
C. State v. Randle
In State v. Randle, 167 N.C. App. 547, 550,
605 S.E.2d 692, 693 (2004), this
Court reviewed a defendant’s assertion his counsel had implicitly conceded his guilt
to a lesser-included offense during closing argument without first obtaining his
consent. Defendant’s counsel told the jury
they must be entirely convinced of each and every element
of the crimes. As serious injury is the essential difference
between first and second degree rape, defense counsel then
attempted to cast doubt on the seriousness of the mental
and physical injuries to [the victim] by arguing [the victim]
did not suffer serious injury.
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STATE V. MCALLISTER
Opinion of the Court
Id. at 549,
605 S.E.2d at 693.
Defendant’s counsel also summarized evidence that the defendant had
ejaculated on himself. Id. In his final sentence to the jury, defense counsel argued,
“Teddy Randle is not guilty of first degree rape. Teddy Randle is not guilty of first
degree sexual offense.”
Id. Our Court distinguished the Randle case from the
requirements of Harbison because “counsel in the case at bar never actually admitted
the guilt of defendant to any charge, nor did counsel claim that defendant should be
found guilty of some offense.”
Id. at 552,
605 S.E.2d at 695.
D. State v. Maniego
The State also cites State v. Maniego, 163 N.C. App. 676, 683,
594 S.E.2d 242,
246, appeal dismissed, review denied,
358 N.C. 737,
602 S.E.2d 369 (2004), in which
the defendant argued his counsel’s opening statement violated Harbison. The
defendant’s counsel stated:
Maniego put himself in the vehicle with Clifford Miller and
David Brandt. He put himself driving the vehicle, he put
himself at the scene where David Brandt was murdered by
Clifford Miller. Through his statements, you’ll hear his
testimony in this case and he did make three different
statements. The first two are incomplete. The third one is
the final version. It’s the truth about his involvement in
these crimes, and it will show to you that he did not aid and
abet in the killing of David Brandt by Clifford Miller, nor
did he act in concert with Clifford Miller to kill David
Brandt. The fact that he’s at the scene where these acts
occurred is not enough for you to find him guilty of these
crimes.
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STATE V. MCALLISTER
Opinion of the Court
Id. at 684, 594 S.E.2d at 247. This Court held no Harbison violation had occurred to
award a new trial because “[a]dmitting a fact is not equivalent to admitting guilt.”
Id. (citation omitted).
E. Defendant’s Cases
A review of cases cited by Defendant, wherein this Court awarded new trials
based upon counsels’ admissions of their client’s guilt in closing arguments, also
reflects the fallacy of Defendant’s argument. Defendant’s assertion that his counsel’s
statements in closing argument denied his constitutional right to effective counsel
under Harbison is clearly not supported by these cases.
In State v. Maready, 205 N.C. App. 1, 4-5,
695 S.E.2d 771, 774-75 (2010), the
defendant pled not guilty and was tried before a jury. During his closing argument,
defense counsel “conceded that the State had met its burden with respect to the
charges of DWI, reckless driving, DWLR and misdemeanor ‘larceny and/or possession
of stolen property.’”
Id. at 4,
695 S.E.2d at 774. Counsel also made the following
statements:
We do have the two misdemeanor assaults. . . . We don’t
contest those. They are inclusive in the events that have
significant issues associated with them, but we don’t
contest those. And you can go and make your decisions
accordingly. . . . [Defendant] holds absolute—holds
responsibility for [the death of the victim]. I just argue it’s
not murder. It’s Involuntary Manslaughter.
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Opinion of the Court
Id. at 4,
695 S.E.2d at 774-75. This Court found:
Defendant’s counsel discussed the elements of involuntary
manslaughter with the jury, stating that the second
element was “that . . . [D]efendant’s impaired driving
proximately caused the victim’s death. That’s true.
[Defendant’s] guilty of that and should be found guilty of
that.” Defendant’s counsel also stated that: “[Defendant’s]
already admitted to you guilt . . . to . . . Assault with a
Deadly Weapon times two[.]”
At the close of all the evidence and after closing arguments,
but before jury instruction, Defendant’s counsel again
admitted Defendant’s guilt to the charges of reckless
driving, DWI, DWLR and misdemeanor possession of
stolen goods.
Id. at 4-5,
695 S.E.2d at 775. The facts before us are clearly distinguishable from
counsel’s admissions and statements in Maready. See
id.
Defendant also cites State v. Spencer, 218 N.C. App. 267, 275,
720 S.E.2d 901,
906 (2012), wherein the defendant was charged with resisting a public officer and
eluding arrest. See
N.C. Gen. Stat. § 20-141.5(a) (2017) (“It shall be unlawful for any
person to operate a motor vehicle on a street, highway, or public vehicular area while
fleeing or attempting to elude a law enforcement officer who is in the lawful
performance of his duties.”).
The defendant’s counsel’s closing argument in Spencer admitted the defendant
“chose to get behind the wheel after drinking, and he chose to run from the police”
and “Officer Battle was already out of the way and he just kept on going, kept running
from the police.” Spencer, 218 N.C. App. at 275,
720 S.E.2d at 906. This Court held
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STATE V. MCALLISTER
Opinion of the Court
counsel had conceded defendant’s guilt to resisting a public officer and to eluding
arrest. This Court remanded the case for a determination of whether the defendant
had received the proper Harbison warnings. Id.
VI. Crimes Charged
Defendant’s other charges of second-degree rape, second-degree sexual offense,
and assault by strangulation were submitted to the jury, in addition to the habitual
misdemeanor assault charge. The habitual misdemeanor assault premised upon an
assault on a female, was the only count the jury convicted defendant of committing.
The State’s evidence tended to show Defendant had assaulted and struck Ms.
Leonard by pushing her down, biting her, and hitting her in the face, causing injuries
of scrapes and bruises to her back and fingers, and bleeding and swelling of her lips.
The trial court instructed the jury that in order for them to find Defendant
guilty, the State must prove three things beyond a reasonable doubt: (1) Defendant
intentionally assaulted the alleged victim by hitting her; (2) the alleged victim was a
female; and, (3) Defendant was a male over the age of 18. The elements of habitual
misdemeanor assault are: (1) a simple assault or a simple assault and battery or
affray; (2) which causes physical injury; and, (3) two or more prior convictions for
either misdemeanor or felony assault. N.C. Gen. Stat. § 14-33.2 (2017).
Counsel’s closing argument asserted two people had gotten drunk and argued,
which escalated into a fight. Counsel stated, “You heard him admit that things got
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STATE V. MCALLISTER
Opinion of the Court
physical. You heard him admit that he did wrong. God knows he did.” Counsel’s
statements relayed and summarized the evidence before the jury, which included
both the officer’s testimony and Defendant’s recorded hour-and-a-half long video
interview with officers, shown to the jury. In the video interview, Defendant made
the statements that were summarized in counsel’s closing argument. Counsel
repeated his assertion that Defendant and Ms. Leonard were “[t]wo drunk people
[who] got into an argument.”
While defense counsel acknowledged the jurors may “dislike Mr. McAllister for
injuring Ms. Leonard,” he did not state Defendant “assaulted,” struck, pushed, bit, or
committed any of the specific acts or elements as alleged by the State. Further,
counsel did not acknowledge Defendant’s age or prior criminal record, both elements
of habitual misdemeanor assault.
Our controlling precedents above hold 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. Counsel’s statements before us are not consistent with the facts of either
Maready or Spencer, in which per se violations are presumed by counsel’s admission
of a client’s guilt to crimes or all the elements thereof without the client’s consent.
Fisher, 318 N.C. at 533,
350 S.E.2d at 346; Wilson,
236 N.C. App. at 476,
762 S.E.2d
at 897.
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STATE V. MCALLISTER
Opinion of the Court
Here, counsel’s conduct was not per se deficient under Harbison to award a new
trial.
VII. Strickland v. Washington
Since counsel’s statements do not fall within Harbison as per se ineffective
assistance, Defendant’s claim of ineffective assistance of counsel must be analyzed
using the Strickland factors. Strickland v. Washington, 466 U.S. 668, 687,
80 L. Ed.
2d 674, 693 (1984). A defendant’s claim of ineffective assistance of counsel has two
components:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in
the adversary process that renders the result unreliable.
Id.
However, here, Defendant presents no argument tending to show he was
prejudiced by counsel’s asserted deficient performance to such an extent the outcome
of the trial would have been different, but for the alleged errors. Defendant has not
demonstrated or argued any prejudice. Defendant is not entitled to a new trial on
this issue. Id.
VIII. Motion for Appropriate Relief
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STATE V. MCALLISTER
Opinion of the Court
Defendant petitioned this Court on 18 October 2018 to issue another writ of
certiorari to review on the merits the trial court’s denial of his “Motion to Modify and
Terminate Sentence for Ineffective Assistance of Counsel,” which the trial court
treated as a motion for appropriate relief (“MAR”). The trial court found Defendant’s
motion presented only matters of law and raised no factual issues to require an
evidentiary hearing. The court summarily denied defendant’s MAR on 27 July 2017.
Defendant had filed his earlier 11 August 2017 petition for writ of certiorari to
this Court. On 29 August 2017, this Court allowed Defendant’s petition for the
limited purpose of reviewing the 22 August 2016 habitual misdemeanor assault
judgment entered immediately after defendant’s trial.
In his MAR, Defendant asserted, inter alia, his trial counsel had a conflict of
interest because his law firm had represented the victim in a similar criminal matter.
He asserted claims of ineffective assistance of counsel by his failure to object to
alleged false statements of the police, failure to share discovery materials with
defendant, and “many constitutional violations.”
Defendant failed to provide any supporting affidavits or other evidence beyond
the bare assertions in his motion. The General Statutes require a MAR to be
supported by affidavit or other documentary evidence. N.C. Gen. Stat. § 15A-1420(b)
(2017). “A defendant who seeks relief by motion for appropriate relief must show the
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STATE V. MCALLISTER
Opinion of the Court
existence of the asserted ground for relief. Relief must be denied unless prejudice
appears.” N.C. Gen. Stat. § 15A-1420(c)(6) (2017).
Defendant’s failure to provide affidavits or other evidence provided no basis for
the trial court to review and be able to determine whether an evidentiary hearing
would be required. See State v. Payne, 312 N.C. 647, 669,
325 S.E.2d 205, 219 (1985)
(Because defendant submitted no supporting affidavits or other documentary
evidence with his motion for appropriate relief and the alleged fact was not
ascertainable from the record or transcripts submitted, the Court “cannot address the
merits of defendant’s request for appropriate relief”); State v. Aiken,
73 N.C. App. 487,
501,
326 S.E.2d 919, 927 (1985) (“Since defendant did not comply with G.S. 15A–
1420(c)(6), the trial court’s summary denial of the motion for appropriate relief was
not error.”).
Without any factual support, the trial court’s summary denial of Defendant’s
MAR was proper. Defendant’s subsequent and pending petition for writ of certiorari
filed 17 October 2018 is denied.
IX. Conclusion
This case is controlled by the precedents and holdings in Gainey, Fisher,
Randle, and Maniego. Defendant received a fair trial, free from prejudicial errors he
preserved and argued. Defendant admitted to his prior assault convictions to support
the charge for habitual misdemeanor assault.
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STATE V. MCALLISTER
Opinion of the Court
There is no error in the jury’s verdict or in the judgment entered thereon.
Defendant’s pending petition for writ of certiorari filed 17 October is denied. It is so
ordered.
NO ERROR.
Judge STROUD concurs.
Judge ARROWOOD dissenting with separate opinion.
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No. COA18-726 – State v. McAllister
ARROWOOD, Judge, dissenting.
I respectfully dissent. I would hold that, under State v. Harbison, 315 N.C.
175,
337 S.E.2d 504 (1985), cert. denied,
476 U.S. 1123,
90 L. Ed. 2d 672 (1986), there
was a per se violation of defendant’s right to effective assistance of counsel.
On appeal, defendant first argues that he was denied his constitutional right
to effective assistance of counsel when his counsel conceded he was guilty of assault
on a female during closing arguments. Defendant relies on our Supreme Court’s
decision in Harbison, and contends his counsel’s concession amounts to a per se
violation of the Sixth Amendment, thereby requiring a new trial.
In Harbison, the Court noted that it recently adopted in State v. Braswell, 312
N.C. 553,
324 S.E.2d 241 (1985), the two-part test for resolving claims of ineffective
assistance of counsel enunciated by the United States Supreme Court in Strickland
v. Washington,
466 U.S. 668,
80 L. Ed. 2d 674 (1984). Harbison,
315 N.C. at 178,
337
S.E.2d at 506. That two-part test requires:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.
STATE V. MCALLISTER
ARROWOOD, J., dissenting
Braswell, 312 N.C. at 562,
324 S.E.2d at 248 (quoting Strickland,
466 U.S. at 687,
80
L. Ed. 2d at 693) (emphasis omitted). Our Supreme Court has more recently
explained the test and the required showings as follows:
To prevail on a claim of ineffective assistance of counsel, a
defendant must first show that his counsel’s performance
was deficient and then that counsel’s deficient performance
prejudiced his defense. Deficient performance may be
established by showing that counsel’s representation fell
below an objective standard of reasonableness. Generally,
to establish prejudice, a defendant must show that there is
a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.
State v. Allen, 360 N.C. 297, 316,
626 S.E.2d 271, 286 (citations and quotation marks
omitted), cert. denied,
549 U.S. 867,
166 L. Ed. 2d 116 (2006).
In Harbison, however, the Court recognized that, “[a]lthough [it] 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.’ ” 315 N.C. at 179,
337 S.E.2d
at 507 (quoting United States v. Cronic,
466 U.S. 648, 658,
80 L. Ed. 2d 657, 667
(1984)). For example, “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. The Court reasoned,
[w]hen counsel admits his client’s guilt without first
obtaining the client’s consent, the client’s rights to a fair
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STATE V. MCALLISTER
ARROWOOD, J., dissenting
trial and to put the State to the burden of proof are
completely swept away. The practical effect is the same as
if counsel had entered a plea of guilty without the client’s
consent. Counsel in such situations denies the client’s
right to have the issue of guilt or innocence decided by a
jury.
Id. Consequently, the Court held 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 507-508.
In the present case, the State brought the potential for a Harbison issue to the
trial court’s attention prior to opening statements. The State explained that
defendant did make some admissions in a statement to law enforcement and
cautioned that the court may need to make a Harbison inquiry if defense counsel is
going to address the admissions in the opening statements. The trial court then
questioned the defense as follows:
THE COURT: Does the defense have any Harbison issues?
[DEFENSE]: 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]: 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
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STATE V. MCALLISTER
ARROWOOD, J., dissenting
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]: Not in opening, I can stipulate to that.
The exchange ended with the court stating, “[l]et’s rereview that when we get back
from lunch.” The court, however, did not come back to the issue. In fact, there is no
further mention of the potential Harbison issue in the record.
The evidence presented by the State at trial included a video of defendant’s
interview with police. In that interview, defendant admitted to a physical altercation
with the alleged victim that resulted in the alleged victim sustaining injuries.
It appears from the record that defense counsel knew the interview was
damaging to defendant’s case and addressed it during the closing arguments.
Defense counsel suggested to the jury that the interview was coercive, noting that it
was “9:00 at night, surrounded by cops, pulled off the street to make a voluntary
statement[,]” and they begin talking to defendant about a moped that is unrelated to
these charges. Defense counsel then, however, made the following statements:
You heard [defendant] 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 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 [the alleged victim] --
everything else [the alleged victim] said must be true.”
Because [defendant] was being honest, they weren’t honest
with him.
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STATE V. MCALLISTER
ARROWOOD, J., dissenting
Following these statements, defense counsel returned to highlighting the coercive
nature of the interview, stating, “[t]wo detectives for three hours into midnight. The
whole time he’s thinking he’s going home.”
Later in the closing argument, defense counsel stated that “[the alleged victim]
was injured by [defendant]” and addressed the severity of the charges by stating,
“[t]his is as serious as it gets, second-degree rape, second-degree sexual assault,
assault by strangulation.” Defense counsel did not mention the assault on a female
charge serving as the underlying offense for habitual misdemeanor assault. Finally,
in concluding the arguments to the jury, defense counsel stated,
Jury, what I’m asking you to do is you may dislike
[defendant] for injuring [the alleged victim], 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. . . .
. . . 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.
Defendant now contends these statements by defense counsel during closing
arguments amounted to a concession of guilt to the charge of assault on a female
without his consent, in violation of Harbison. In response to defendant’s Harbison
argument, the State briefly contends that this case does not fall under the prohibition
in Harbison because “there was never any specific concession of guilt” because
5
STATE V. MCALLISTER
ARROWOOD, J., dissenting
“[c]ounsel never stated to the jury that defendant was guilty of assault on a female in
contrast to the counsel in Harbison.” The State cites various cases in which our courts
have determined there were no Harbison violations, such as cases in which counsel
admitted an offense that was not charged, see State v. Gainey, 355 N.C. 73,
558 S.E.2d
463, cert. denied,
537 U.S. 896, 154 L. Ed. 2d. 165 (2002); State v. Wilson,
236 N.C.
App. 472,
762 S.E.2d 894 (2014), or cases in which counsel did not concede all
elements of the offense charged, see State v. Hinson,
341 N.C. 66,
459 S.E.2d 261
(1995); State v. Fisher,
318 N.C. 512,
350 S.E.2d 334 (1986); State v. Maniego,
163
N.C. App. 676,
594 S.E.2d 242 (2004). The State further contends that defense
counsel in this case “asked the jury to find defendant not guilty of the charged
offenses” at the close of his argument.
Upon review of these cases, I would hold defense counsel’s statement to the
jury in closing arguments amounted to a concession of defendant’s guilt to assault on
a female. Defense counsel did not simply recite evidence, he choose 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. It appears defense
counsel used this strategy in order to cast doubt on the allegations of more serious
offenses that defendant did not admit to police. Defense counsel further indicated
defendant was wrong for his actions, defendant felt bad about his actions, and
explicitly stated “he did wrong, God knows he did.” I agree with defendant that
6
STATE V. MCALLISTER
ARROWOOD, J., dissenting
defense counsel’s statements amount to an admission to assault on a female,
distinguishing this case from those cases cited by the State. Furthermore, the State
mischaracterizes defense counsel’s final plea to the jury to find defendant not guilty.
As shown above, defense counsel only emphasized the serious nature of second-degree
rape, second-degree sexual assault, assault by strangulation. Defense counsel then,
after repeating those three charges, asked the jury to find defendant not guilty.
Considering 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.
For the majority of the State’s response, the State does not focus on the
substance of defense counsel’s argument. Instead, the State focuses on defense
counsel’s strategy. The State emphasizes that the uncontroverted evidence was that
defendant admitted to police during the interview that he got physical with the
alleged victim and contends it was a valid trial strategy for defense counsel to accept
the evidence of assault on a female and argue doubt in the evidence of the more severe
charges. The State asserts that this was defendant’s “only viable defense” and
acknowledges that it was successful because defendant was acquitted of the more
severe charges. Thus, the State argues defense counsel was not ineffective and
defendant cannot show prejudice. This argument by the State, however, does not
address the Harbison issue.
7
STATE V. MCALLISTER
ARROWOOD, J., dissenting
“[M]atters of trial strategy . . . are not generally second-guessed by this Court.”
State v. Prevatte, 356 N.C. 178, 236,
570 S.E.2d 440, 472 (2002), cert. denied,
538 U.S.
986,
155 L. Ed. 2d 681 (2003). However, just as our Supreme Court explained in
Harbison, this Court has explained that
[a] concession of guilt by a defendant’s counsel has the
same practical effect as a guilty plea, because it deprives
the defendant of his right against self-incrimination, the
right of confrontation and the right to trial by jury.
Therefore, a decision to make a concession of guilt as a trial
strategy is, like a guilty plea, a decision which may only be
made by the defendant and a concession of guilt may only
be made with the defendant’s consent. Due process
requires that this consent must be given voluntarily and
knowingly by the defendant after full appraisal of the
consequences and a clear record of a defendant’s consent is
required.
State v. Perez, 135 N.C. App. 543, 547,
522 S.E.2d 102, 106 (1999) (citations omitted),
appeal dismissed and disc. review denied,
351 N.C. 366,
543 S.E.2d 140 (2000).
[This Court] reject[ed], however, [the] defendant’s
argument that an acceptable consent requires the same
formalities as mandated by statute for a plea of guilty. Our
Supreme Court has found a knowing consent to a
concession of guilt in compliance with Harbison where the
record showed the defendant was advised of the need for
his authorization for the concession, defendant
acknowledged that he had discussed the concession with
his counsel and had authorized it, and the defendant
thereafter acknowledged that his counsel had made the
argument desired by him.
Id. at 547-48, 522 S.E.2d at 106 (citations omitted).
8
STATE V. MCALLISTER
ARROWOOD, J., dissenting
Here, defendant does not question the strategy of defense counsel, because that
is not at issue. Defendant only challenges defense counsel’s concession of guilt on the
charge of assault on a female without his authorization. I agree with defendant that
there is nothing in the record to show that he agreed to defense counsel’s concession.
Therefore, under Harbison, there was a per se violation of defendant’s right to
effective assistance of counsel. No further showing is required. Accordingly, I would
hold defendant is entitled to a new trial on the charge of assault on a female, the
underlying offense for habitual misdemeanor assault.
Defendant also seeks for this Court to review the trial court’s denial of his MAR
pursuant to his second petition for writ of certiorari filed at the same time as his
appellate brief on 17 October 2018. Unlike the majority, I would simply deny
defendant’s second petition as moot because of my determination defendant is
entitled to a new trial on the first issue.
For the reasons above, I dissent.
9
