Criminal Practice – Constitutional – Ineffective Assistance of Counsel – Closing Argument – Admission of Guilt – No Affirmative Consent

State v. Maready. (Lawyers Weekly No. 10-07-0618, 49 pp.) (Linda M. McGee, J.) (Sam Ervin IV, concurring in part and concurring in the result in part) Appealed from Durham County Superior Court. (Abraham P. Jones, J.) On remand from the N.C. Supreme Court. N.C. App.

Holding: Without obtaining defendant’s consent, defense counsel told the jury during closing argument that defendant was guilty of involuntary manslaughter and assault with a deadly weapon. Under State v. Harbison, 315 N.C. 175, 337

S.E.2d 504 (1985), this was ineffective assistance of counsel.

Defendant is entitled to a new trial on counts 05 CRS 004158, 05 CRS 004159, and 05 CRS 042094.

Under Harbison, the trial court must be satisfied that, prior to any admissions of guilt at trial by a defendant’s counsel, the defendant must have given knowing and informed consent, and the defendant must be aware of the potential consequences of his decision.

In Florida v. Nixon, 543 U.S. 175 (2004), the U.S. Supreme Court held that, because of the unique nature of death penalty cases, in certain circumstances involving trial strategy, admission of guilt to an offense at trial by a defendant’s counsel without defendant’s express consent will not constitute per se ineffective assistance of counsel in violation of the Sixth Amendment.

We find the case before us distinguishable from Nixon, as it is not a death penalty case. Further, subsequent to Nixon, the N.C. Supreme Court has continued to apply the analysis set forth in Harbison, even in death penalty cases. Because our Supreme Court has not overruled Harbison and, in fact, continues to apply its holding after Nixon, we are bound by this precedent.

In the case before us, defendant’s counsel admitted defendant’s guilt to involuntary manslaughter and two counts of assault with a deadly weapon. There was no indication at trial that defendant was asked if he consented to these admissions or that defendant had given informed and voluntary consent to these admissions of his guilt.

We remanded for an evidentiary hearing to determine whether defendant gave his counsel consent for the admissions of guilt made at trial by defendant’s counsel.

The trial court determined in part, “2. Defendant’s trial counsel did not obtain the defendant’s explicit consent to the concessions of guilt prior to the closing argument.”

We hold that the findings of fact made by the trial court at the Harbison hearing indicate that defendant never gave his counsel explicit consent to admit defendant’s guilt to involuntary manslaughter and two counts of assault with a deadly weapon.

Though we do not doubt that defendant’s counsel was acting in a manner he believed to be the best trial strategy for defendant, because defendant’s counsel failed to obtain defendant’s express consent before admitting defendant’s guilt to three charges before the jury, the rule set forth in Harbison was violated.

These admissions of defendant’s counsel to the jury thus constituted per se ineffective assistance of counsel.

Because we hold that defendant’s counsel was per se ineffective for admitting defendant’s guilt to two counts of assault with a deadly weapon and one count of involuntary manslaughter, a lesser included offense of second-degree murder, without obtaining defendant’s consent, we must vacate those judgments and grant defendant’s request for a new trial on counts 05 CRS 004158, 05 CRS 004159, and 05 CRS 042094.

In addition, in response to a question by the jury during deliberations, the trial court committed prejudicial error in its instruction on the intent element for the three charges of assault with a deadly weapon: “It can be interpreted as the sum total of the actions caused the collision and this implies intent.”

The jury found defendant guilty of assault with a deadly weapon inflicting serious injury.

We hold that, in answering the jury’s question involving the meaning of intent, the trial court allowed the jury to convict defendant based upon an improperly broad definition of intent. In order for a jury to convict a defendant of assault with a deadly weapon inflicting serious injury, it must find that it was the defendant’s actual intent to strike the victim with his vehicle, or that the defendant acted with culpable negligence from which intent may be implied.

The trial court’s answer to the jury’s question could have allowed the jury to convict defendant without a finding of either actual intent or culpable negligence.

Because the trial court’s instruction allowed the jury to convict defendant of assault with a deadly weapon inflicting serious injury without a finding of the requisite intent, we must assume prejudice.

We note that a determination by a jury that a defendant was driving while impaired, pursuant to G.S. § 20-138.1, can provide the requisite finding of culpable negligence. However, the trial court did not instruct the jury that it could find the requisite culpable negligence by making a determination that defendant was driving while impaired.

We further note that defendant contends that the two convictions for misdemeanor assault with a deadly weapon should be overturned for the same erroneous instruction on intent. We agree, and so hold, though this holding will only be relevant if our holding above concerning the Harbison errors is overturned. We overturn defendant’s conviction for assault with a deadly weapon inflicting serious injury and remand for a new trial on count 05 CRS 04160.

Defendant also challenges the trial court’s admission of police testimony as to how the accident – which they did not witness – happened..

She State called two police officers to testify concerning their opinions of how the accident occurred. These officers did not witness the accident, but they gave their opinions indicating defendant was at fault based upon their examination of the scene of the accident.

The officers were not proffered as experts in accident reconstruction. This court has held that opinion testimony of this kind is incompetent.

The admission of the officers’ opinion testimony concerning their purported accident reconstruction conclusions was error. Accident reconstruction opinion testimony may only be admitted by experts, who have proven to the trial court’s satisfaction that they have a superior ability to form conclusions based upon the evidence gathered from the scene of the accident than does the jury.

However, we hold that defendant fails in his burden of proving plain error.

First, not only did defendant fail to object to the opinion testimony during the state’s direct examination of the officers, but he also elicited much of the same testimony on cross-examination.

Had defendant objected, his subsequent questioning of the state’s witnesses on cross-examination would not have

necessarily constituted a waiver of his prior objections for the purposes of appeal. However, defendant failed to object and then elicited the same testimony on cross-examination. Therefore, there is nothing in the record to indicate to us that this line of questioning was not one defendant wished to pursue at trial.

Furthermore, by failing to object, defendant deprived the state of the opportunity to correct the error and to proffer its witnesses as experts. We hold that defendant has failed to prove plain error.

Concurrence

(Ervin, J.) Defendant’s trial counsel conceded his client’s guilt of involuntary manslaughter, two counts of assault with a deadly weapon, driving while impaired, driving while license revoked, misdemeanor larceny, and misdemeanor possession of stolen property in his final argument to the jury.

The remand court found that, while defendant did not explicitly consent to all of the concessions that his trial counsel made during closing arguments, he was aware of and in general agreement with the strategy that his trial counsel followed throughout the trial, including the strategy that his trial counsel employed during closing arguments. Based on this factual information, we are now required to determine whether the concessions made by defendant’s trial counsel during his final argument to the jury constituted ineffective assistance of counsel.

I do not believe that either this court or the N.C. Supreme Court has directly and clearly addressed the extent, if any, to which Nixon has altered the approach that the N.C. courts have traditionally taken to the concession of guilt issue.

After a careful review of the foundational decisions relating to ineffective assistance of counsel issues in this jurisdiction, I am inclined to believe that the Nixon test has, to the extent that it is inconsistent with Harbison, superseded it.

I believe that there is no difference between the tests identifying ineffective assistance of counsel under the federal and state constitutions in the N.C. courts. A careful examination of Harbison makes it clear that the court believed that it was deciding that case under the Sixth and Fourteenth Amendments.

The clear implication of the Supreme Court’s decision to adopt a unitary federal-state ineffectiveness standard is that, when the U.S. Supreme Court addresses an ineffectiveness issue under the Sixth Amendment, its decision is controlling under both the federal and state constitutions.

Since the U.S. Supreme Court has now addressed the “concession of guilt” issue for Sixth Amendment purposes, I believe that the Nixon approach is, to the extent that it differs from the Harbison approach, controlling.

Despite the fact that defendant’s trial counsel did speak with defendant about the nature of the argument which he planned to make before he began speaking to the jury in very general terms, it is clear from the record that they had not discussed the possibility that defendant’s trial counsel would concede defendant’s guilt of any specific offense in his closing argument at any time before that point. In addition, the record does not contain any indication that defendant refused to consult with his trial counsel about fundamental questions of trial strategy or tactics prior to or during the trial.

Defendant’s trial counsel did not broach the subject of how to handle the final argument to the jury until immediately before the parties made their summations, when defendant did not have sufficient time to discuss this subject with his trial counsel Defendant did not ratify his trial counsel’s concessions in his subsequent colloquy with the trial court.

I conclude that, under Nixon, defendant’s trial counsel did not adequately consult with him prior to conceding his guilt of involuntary manslaughter and two counts of assault with a deadly weapon; that the record does not adequately reflect that defendant would have been uncooperative had such consultation been attempted; that defendant did not provide any “after the fact” consent to the making of these concessions; and that the absence of consent to the making of these concessions deprived defendant of the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments.

I also conclude that defendant would be entitled to a new trial in the homicide case even if the traditional Strickland prejudice standard applies under Nixon.

I concur in the court’s award of a new trial in the cases in which he was convicted of second-degree murder and two counts of assault with a deadly weapon without adopting all of its logic. Thus, I concur in the court’s decision in part and concur in the result in part.