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Criminal Practice – Harbison Error – Closing Argument – ‘Caught in the Act’ – Defendant’s Consent

In his closing argument, defense counsel made several references to defendant having been “caught in the act.” Such statements required defendant’s consent under State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985). The record does not indicate that defense counsel or the trial court engaged with defendant – who maintained his innocence throughout the trial – about his right to consent to any admission by counsel.

We remand to the trial court for an evidentiary hearing to determine whether defendant knowingly consented in advance of his counsel’s admissions of guilt to misdemeanor breaking or entering and misdemeanor possession of stolen goods. We dismiss defendant’s remaining ineffective-assistance claims without prejudice to defendant filing a motion for appropriate relief below.

State v. Hester (Lawyers Weekly No. 011-248-22, 18 pp.) (Lucy Inman, J.) Appealed from Duplin County Superior Court (Michael Stone, J.) Jeremy Lindsley for the state; Christopher Heaney for defendant. 2022-NCCOA-906


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