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North Carolina Supreme Court Announces Harbison Applies When Defense Counsel Implies Defendant’s Guilt Without Prior Consent


by Douglas Ankney

The Supreme Court of North Carolina extended State v. Harbison, 337 S.E.2d 504 (N.C. 1985) (holding per se violation of defendant’s constitutional right to effective counsel when counsel concedes guilt to jury without defendant’s prior consent), to include cases where defense counsel impliedly – rather than expressly – admits the defendant is guilty of a charged offense.

Anton Thurman McAllister repeatedly slapped his live-in girlfriend, Stephanie Leonard, outside a gas station. McAllister then forced Leonard back to their apartment. An attendant at the gas station reported the altercation.

Once inside the apartment, McAllister continued to hit Leonard and twice attempted to suffocate her. McAllister then forced Leonard into the bathtub where he washed the blood from Leonard’s body. Afterward, they went to bed and had sexual intercourse.

The following evening, officers located McAllister. He agreed to accompany the officers to the police station for a non-custodial interview. The interview was videotaped, during which McAllister stated he: (1) pushed Leonard to the ground outside the gas station, (2) backhanded her in the face, (3) smacked her in the lip, (4) grabbed her in the mouth, (5) bit her hand, and (6) “smacked [her] ass up.”

McAllister proceeded to jury trial on an indictment that charged (1) assault on a female, (2) assault by strangulation, (3) second-degree sexual offense, and (4) second-degree rape. The videotaped statement was played to the jury, and during closing argument, defense counsel stated: “You heard him admit that things got physical. You heard him admit that he did wrong. God knows he did.” Defense counsel further told the jury that McAllister was “being honest” with the officers about the altercation. Defense counsel then added, “Jury ... you may dislike Mr. McAllister for injuring Ms. Leonard, 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.” 

At the end of defense counsel’s closing argument, he said: “I asked you at the beginning [to] make the State prove their case, make them. Have they? Anything but conjecture and possibility? 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.”

The jury acquitted McAllister of all charges except the assault on a female. McAllister proceeded via a petition for writ of certiorari to the Court of Appeals to argue that his attorney improperly conceded his guilt to the charge of assault on a female; consequently, he was denied effective assistance of counsel pursuant to Harbison. A divided Court of Appeals affirmed, and McAllister appealed to the North Carolina Supreme Court.

The Court observed “[i]n Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court held that ‘the right to counsel is the right to the effective assistance of counsel.’” While the North Carolina Supreme Court adheres to the test enunciated in Strickland to determine if counsel was effective, there are “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 (1984). When counsel admits a defendant’s guilt without obtaining the defendant’s permission to do so, “the harm is so likely and so apparent that the issue of prejudice need not be addressed.” Harbison.

In Harbison, the defendant was charged with the murder of his ex-girlfriend’s boyfriend and assault based on shooting the ex-girlfriend. The defendant pleaded not guilty and proceeded to trial under the theory that he had acted in self-defense. But during closing arguments, defense counsel said, “I don’t feel [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].” 

The North Carolina Supreme Court’s holding in Harbison was based primarily on the principle that a defendant has an absolute right to plead not guilty. The Harbison Court reasoned: “When counsel admits his client’s guilt without first obtaining the client’s consent, ... [t]he practical effect is the same as if counsel had entered a plea of guilty without the client’s consent,” denying the client his right to have his guilt determined by a jury. Therefore, any time a defendant’s counsel admits the defendant’s guilt to the jury without the defendant’s consent, it is per se ineffective assistance of counsel. Harbison.

In the instant case, counsel did not expressly tell the jury that McAllister was guilty nor did counsel explicitly request the jury to find McAllister guilty of any offense. But counsel’s remarks that McAllister was “being honest” in the videotape wherein he admitted to the elements of assault on a female coupled with counsel’s request of the jury to find McAllister not guilty of rape, of sexual offense, and of assault by strangulation (but consciously omitting a request for a not guilty verdict on the assault on a female) implied to the jury that counsel was admitting guilt as to the offense of assault on a female. And if counsel did so without McAllister’s consent, it was per se ineffective assistance of counsel based on the rationale of Harbison. 

The Court announced “that a Harbison violation is not limited to” cases in which defense counsel expressly concedes guilt without defendant’s prior consent; instead, “Harbison should … be applied more broadly so as to also encompass situations in which defense counsel impliedly conceded his client’s guilt without prior authorization.”

Because the Court of Appeals ruled that Harbison requires counsel to expressly admit guilt, the Court reversed the judgment. But the Court could not determine whether or not counsel had McAllister’s consent to imply guilt to the assault charge as a trial strategy to obtain acquittal on the more serious charges. 

Accordingly, the Court remanded to the trial court to determine whether McAllister consented. See: State v. McAllister, 847 S.E.2d 711 (N.C. 2020). 

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