Criminal Practice – Constitutional – Ineffective Assistance Claim – Opening Statement Concession

Defendant was charged with, among other offenses, possession of a firearm by a felon. During his opening statement, defense counsel told the jury that defendant possessed a firearm. Thereafter, the trial judge conducted a colloquy with defendant, who said defense counsel had his permission to make that admission to the jury. Although the better practice is to ascertain whether a defendant consents to the admission of guilt prior to the admission, in this case, the post-admission inquiry was sufficient to determine that defendant had given his consent.

We find no error in defendant’s conviction of possession of a firearm by a felon.

Defense counsel gave notice of his intent to offer justification as a defense more than four months before the trial. Before jury selection, the trial court discussed with defense counsel the justification defense and the potential need for an inquiry pursuant to State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985).

During opening statements that were not captured on the record, defense counsel apparently conceded that defendant had possessed a firearm. After opening statements, the trial court inquired whether defendant had consented to the concession, and defendant answered in the affirmative.

These facts, taken together, show that defendant understood and consented to his counsel’s concession. Accordingly, defense counsel’s performance was not per se ineffective under Harbison.

State v. Galloway (Lawyers Weekly No. 012-219-23, 7 pp.) (Allegra Collins, J.) Appealed from Forsyth County Superior Court (David Hall, J.) Hyrum Hemingway and Lisa Bradley for the state; Sarah Holladay for defendant. North Carolina Court of Appeals (unpublished)