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State v. Harbison

Supreme Court of North Carolina
Dec 1, 1985
315 N.C. 175 (N.C. 1985)

Summary

holding prejudicial error where counsel requested that the jury find the defendant guilty of manslaughter instead of first-degree murder but "the defendant steadfastly maintained that he acted in self-defense"

Summary of this case from State v. Hester

Opinion

No. 400PA84

Filed 10 December 1985

1. Criminal Law 154.1, 156.2 — closing argument — effectiveness of counsel — no transcript — not raised on direct appeal — considered in discretion of court The Supreme Court elected to consider the effectiveness of defendant's counsel under its power of discretionary review even though defendant failed to raise the issue during a prior direct appeal of his conviction; moreover, the closing argument by defendant's counsel was preserved in the record in a form adequate to permit appellate review where the State never suggested that defendant mischaracterized the argument, the trial court based its denial of defendant's motion for appropriate relief on the closing argument as contained in the motion, and defendant's co-counsel set forth the substance of the closing argument in verified answers to interrogatories submitted with the motion. N.C.G.S. 7A-31, N.C.G.S. 15A-1446.

2. Constitutional Law 48 — ineffective assistance of counsel — guilt admitted in closing argument without client's consent Defendant received ineffective assistance of counsel where his counsel in a murder prosecution admitted his guilt during closing arguments and asked for a manslaughter conviction without defendant's consent. Ineffective assistance of counsel, per se in violation of the Sixth Amendment, is established in every criminal case in which defendant's counsel admits defendant's guilt to the jury without defendant's consent.

APPEAL by the defendant from the order of Judge Claude S. Sitton, entered June 12, 1984, in the Superior Court, BURKE County.

Lacy H. Thornburg, Attorney General by Lucien Capone III, Assistant Attorney General, for the State.

Adam Stein, Appellate Defender, by Malcolm Ray Hunter, Jr., First Assistant Appellate Defender, and Louis D. Bilinois [Bilionis], Assistant Appellate Defender, for the defendant-appellant.


The defendant was convicted of second degree murder and assault with a deadly weapon inflicting serious bodily injury. He received a life sentence for the second degree murder conviction and a ten year sentence for the assault conviction. The defendant appealed the murder conviction to the Supreme Court as a matter of right under N.C.G.S. 7A-27(a). The Supreme Court allowed the defendant's motion to bypass the Court of Appeals on his appeal in the assault case. The Supreme Court found no error. State v. Harbison, 293 N.C. 474, 238 S.E.2d 449 (1977).

On May 3, 1984, the defendant filed a motion for appropriate relief in the Superior Court, Burke County, alleging that he was denied effective assistance of counsel at his 1977 trial. On June 12, 1984, Judge Sitton denied the defendant's motion. On November 6, 1984, the Supreme Court allowed the defendant's petition for writ of certiorari to review the Superior Court's denial of his motion. Heard in the Supreme Court October 16, 1985.


The defendant assigns as error the trial court's denial of his motion for appropriate relief. He contends that during the closing arguments to the jury during his 1977 trial, his court appointed counsel admitted his guilt without his consent. He argues that this was ineffective assistance of counsel and violated his constitutional right to enter a plea of not guilty. We conclude that the court appointed counsel's admission of the defendant's guilt during the closing arguments to the jury is per se prejudicial error. The defendant is entitled to a new trial.

A complete review of the evidence presented at trial is found in the opinion of this Court on the defendant's prior appeal. 293 N.C. 474, 238 S.E.2d 449 (1977). The State's evidence tended to show that the defendant, William Harbison, Jr., and the prosecuting witness, Danna Franklin, had recently ended their relationship. The defendant had once professed that if he could not have Ms. Franklin, no man would. On the night of April 24, 1974, the defendant followed and overtook the car in which Ms. Franklin and the deceased, Morris Hardy, were traveling. The defendant stopped in front of Ms. Franklin's car, exited from his car, and shot both of them, seriously injuring Ms. Franklin and fatally wounding Mr. Hardy. The defendant took Ms. Franklin to the hospital and sought an ambulance for Mr. Hardy.

Throughout the 1977 trial, the defendant steadfastly maintained that he acted in self-defense. John McMurray, the court appointed attorney for the defendant, adhered to that defense during his cross-examination of the State's witnesses and during his presentation of the defendant's evidence. During the closing arguments, James Fuller, co-counsel, urged acquittal on the theory of self-defense. Mr. McMurray then made a closing argument expressing his personal opinion that his client should not be found innocent but should be found guilty of manslaughter. The defendant says in his Verified Motion for appropriate relief that Mr. McMurray made the following closing argument without the consent of the defendant:

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 William 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.

Before addressing the defendant's assignment of error, this Court must address the procedural issues raised by the State. First, the State asserts that the defendant failed to raise this issue during the direct appeal of his conviction and thereby waived his right to raise it now. Assuming arguendo that the State is correct, we choose nevertheless to consider this issue under our power of discretionary review granted by N.C.G.S. 7A-31 and 15A-1446.

Second, the State asserts that no transcript of the closing argument was made and that this failure requires dismissal of the appeal. State v. Sanders, 280 N.C. 67, 185 S.E.2d 137 (1971). We do not agree. The State has never suggested that the defendant has mischaracterized Mr. McMurray's argument. The trial court based its denial of the defendant's motion on the closing argument as contained in the motion. In verified answers to the interrogatories submitted with the motion, Mr. Fuller, the defendant's co-counsel, also set forth the substance of Mr. McMurray's closing argument during the 1977 trial. All such documents and matters were parts of the record on appeal. Therefore, the argument by Mr. McMurray was preserved in the record in a form adequate to permit appellate review of the defendant's assignment.

Turning to the merits of this appeal, the defendant contends that his counsel's admission of his guilt and plea for a manslaughter conviction constituted ineffective assistance of counsel in violation of his right to a fair trial under the Sixth and Fourteenth Amendments to the Constitution of the United States. The test for resolving claims of ineffective assistance of counsel was recently articulated by this Court and by the Supreme Court of the United States. In State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985), this Court adopted the Supreme Court's language in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and enunciated the following two-part test:

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 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.

Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693).

The defendant cites several cases in support of the proposition that a counsel's admission of his client's guilt, without the client's knowing consent and despite the client's plea of not guilty, constitutes ineffective assistance of counsel. In Wiley v. Sowders, 647 F.2d 642 (6th Cir. 1981), the defendant's lawyer admitted his client's guilt and pled for mercy. The court held the defendant was deprived of his Sixth Amendment right to effective assistance when his counsel admitted guilt without first obtaining the defendant's consent to this trial tactic. See also, King v. Strickland, 748 F.2d 1462 (11th Cir. 1984); Francis v. Spraggins, 720 F.2d 1190 (11th Cir. 1983); Young v. Zant, 677 F.2d 792 (11th Cir. 1982); Commonwealth v. Lane, 476 Pa. 258, 382 A.2d 460 (1978). Although we find such authority persuasive, we conclude that the defendant in the present case need not show any specific prejudice in order to establish his right to a new trial due to ineffective assistance of counsel.

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." United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657, 667 (1984); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Supreme Court has presumed prejudice in various Sixth Amendment cases. That Court has, for example, "uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding." Cronic, 466 U.S. at 659, 104 S.Ct. at 2047, 80 L.Ed.2d at 668, n. 25. See, e.g., Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1975) (defense counsel was not allowed to make closing argument); Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (prejudice presumed when counsel affected by actual conflict of interest). Likewise, 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.

A defendant's right to plead "not guilty" has been carefully guarded by the courts. See Wiley v. Sowders, 647 F.2d 642 (6th Cir. 1981). When a defendant enters a plea of "not guilty," he preserves two fundamental rights. First, he preserves the right to a fair trial as provided by the Sixth Amendment. Second, he preserves the right to hold the government to proof beyond a reasonable doubt. Wiley, 647 F.2d at 650.

A plea decision must be made exclusively by the defendant. "A plea of guilty or no contest involves the waiver of various fundamental rights such as the privilege against self-incrimination, the right of confrontation and the right to trial by jury." State v. Sinclair, 301 N.C. 193, 197, 270 S.E.2d 418, 421 (1980). Because of the gravity of the consequences, a decision to plead guilty must be made knowingly and voluntarily by the defendant after full appraisal of the consequences. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); N.C.G.S. 15A-1011 through 15A-1026; State v. Sinclair, 301 N.C. 193, 270 S.E.2d 418 (1980).

This Court is cognizant of situations where the evidence is so overwhelming that a plea of guilty is the best trial strategy. However, the gravity of the consequences demands that the decision to plead guilty remain in the defendant's hands. When 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 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. Wiley, 647 F.2d at 649-50.

For the foregoing reasons, we conclude 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. Accordingly, we must arrest the judgments against the defendant for murder and assault and remand these matters to the Superior Court, Burke County, with instructions to that court to award the defendant a new trial.

Judgments arrested; remanded for new trial.


Summaries of

State v. Harbison

Supreme Court of North Carolina
Dec 1, 1985
315 N.C. 175 (N.C. 1985)

holding prejudicial error where counsel requested that the jury find the defendant guilty of manslaughter instead of first-degree murder but "the defendant steadfastly maintained that he acted in self-defense"

Summary of this case from State v. Hester

holding counsel's admission of defendant's guilt without defendant's consent establishes ineffective assistance of counsel, a per se violation of the Sixth Amendment of the United States Constitution

Summary of this case from State v. Miller

holding that a defendant receives per se ineffective assistance of counsel when "the defendant's counsel admits the defendant's guilt to the jury without the defendant's consent"

Summary of this case from State v. Johnson

holding “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.”

Summary of this case from In re C.W.N.

holding counsel's admission of defendant's guilt without defendant's consent establishes ineffective assistance of counsel, a per se violation of the Sixth Amendment of the United States Constitution

Summary of this case from State v. Williams

holding counsel's admission of defendant's guilt without defendant's consent establishes ineffective assistance of counsel, a per se violation of the Sixth Amendment of the United States Constitution

Summary of this case from State v. Williams

finding where defendant's counsel admits to guilt in a criminal proceeding without defendant's consent to be per se ineffective assistance of counsel

Summary of this case from In re J.C.D.

recognizing that there are "situations where the evidence is so overwhelming that a plea of guilty is the best trial strategy"

Summary of this case from State v. Alexander

In Harbison, the Court held that a defendant receives ineffective assistance per se when trial counsel concedes guilt to the offense or to a lesser offense without the defendant's consent.

Summary of this case from Lawrence v. Branker

addressing statement by defense counsel that "I don't feel that [the defendant] should be found innocent"

Summary of this case from United States v. Dago

In State v. Harbison, 337 S.E.2d 504 (N.C. 1985), during closing argument, counsel admitted his client's guilt without his client's consent and urged that the jury find him guilty of manslaughter instead of first degree murder.

Summary of this case from Short v. United States

addressing statement by defense counsel that "I don't feel that [the defendant] should be found innocent"

Summary of this case from Alverson v. Sirmons

In State v. Harbison, 315 N.C. 175 (1985), the Court held that where a defendant's trial counsel, without consent from the defendant, admits the defendant's ultimate guilt to the jury, the defendant has been denied effective assistance of counsel.

Summary of this case from Boyd v. Lee

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.

Summary of this case from State v. McAllister

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.

Summary of this case from State v. McAllister

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.

Summary of this case from State v. McAllister

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.

Summary of this case from State v. McAllister

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]"

Summary of this case from State v. McAllister

In Harbison, defense counsel told the jury during closing argument that he did not "feel that [the defendant] should be found innocent.

Summary of this case from State v. Thompson

In Harbison, the defendant had not consented to his counsel's concession of guilt, and the trial court did not take steps to ascertain whether this strategy had been discussed with the defendant.

Summary of this case from State v. Thompson

In Harbison, we 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."

Summary of this case from State v. Matthews

In Harbison, 337 S.E.2d 504, defense counsel told the jury he thought his client should be found guilty of manslaughter and serve some time, thereby pursuing a strategy directly contrary to the position taken by the defendant that he was not guilty and shot the victim in self-defense.

Summary of this case from Sincock v. State

In State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 90 L.Ed.2d 672 (1986), we held that a defendant receives ineffective assistance of counsel per se when counsel concedes the defendant's guilt to the offense or a lesser included offense without the defendant's consent.

Summary of this case from State v. Berry

In 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), this Court held that an admission to the jury of defendant's guilt by defense counsel without the consent of the defendant constitutes ineffective assistance of counsel and a per se violation of the Sixth Amendment to the United States Constitution and Article I, Sections 19 and 23 of the North Carolina Constitution.

Summary of this case from State v. Wiley

In State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 90 L.Ed.2d 672 (1986), this Court held that a defendant has been denied effective assistance of counsel if his counsel admits his guilt to the jury without his consent.

Summary of this case from State v. Gainey
Case details for

State v. Harbison

Case Details

Full title:STATE OF NORTH CAROLINA v. WILLIAM HARBISON, JR

Court:Supreme Court of North Carolina

Date published: Dec 1, 1985

Citations

315 N.C. 175 (N.C. 1985)
337 S.E.2d 504

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