An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-324


Filed: 2 December 2003


    v.                            Cabarrus County
                                Nos. 01 CRS 016205-12

    Appeal by defendant from judgments dated 1 May 2002 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 19 November 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Kathleen M. Waylett, for the State.

    Nancy R. Gaines for defendant-appellant.

    BRYANT, Judge.

    Adrian Marale Kirk (defendant) appeals from judgments dated 1 May 2002 entered consistent with a jury verdict finding defendant guilty of sale of cocaine, possession with intent to sell cocaine, trafficking in cocaine by possession, trafficking cocaine by transportation, possession with intent to sell marijuana, and sale of marijuana.
    On 1 October 2001, the Cabarrus County grand jury indicted defendant on two counts of possession with intent to sell and deliver cocaine, two counts of sale and delivery of cocaine, trafficking in cocaine by possession, trafficking in cocaine by transportation, possession with intent to sell and delivermarijuana, and sale and delivery of marijuana. Prior to jury selection, defense counsel informed the trial court that defendant would admit his guilt as to six of the charges while contesting the two trafficking charges.
    The trial court proceeded to question defendant about his decision to admit his guilt, as follows:
        COURT:        Now, with regard to all those cases your attorney has informed me at the bench that you do not contest your guilt on that; that you admit that you are in fact guilty and that he intends, in the jury selection process and throughout the trial, to tell the jury that you do not deny guilt with regard to those specific charges.

                    I understand also that you plead __ that you do contest trafficking in cocaine, the two charges; trafficking in cocaine by possession, trafficking in cocaine by transportation; that you contest that and you insist that you are not guilty. Is that correct?

        DEFENDANT:    Yes, sir.

        COURT:         Now, with regard to these other charges, all these other charges except the trafficking charges, does your attorney have your permission specifically to state to the jury that you do not contest your guilt regarding those cases and that you in fact admit that you are guilty regarding those cases?

        DEFENDANT:     Yes, sir.

        COURT:        You're sure about that?
        DEFENDANT:     (No response.)

        COURT:         I'm just asking. I've got to do this for the record.

        DEFENDANT:     Yes, sir.

        COURT:         Is that what you want to do in regard to the strategy about this case?

        DEFENDANT:     I'm confused but __

        COURT:         Okay, tell me how you're confused.

        DEFENDANT:    I mean, I did it so, I mean, I have no choice but to confess. But you're asking me are you sure about that like that's a bad thing.

        COURT:        No, I'm asking you __ my question is does your attorney have your permission to tell the jury about those cases, other than your trafficking cases, that you admit that you are guilty of those charges?

        DEFENDANT:    Yes, sir.

        COURT:         Okay. Now, you've thought about that a long time I assume; is that correct?

        DEFENDANT:     Yes, sir.

        COURT:        And you've talked about that at length with your attorney; is that correct?

        DEFENDANT:    Yes, sir.

        COURT:        Now, based upon your attorney's advice, among other things, you have concluded that that's a reasonable thing for you to do; is that right?

        DEFENDANT:    Yes, sir.
        COURT:        And separate and apart from your attorney's advice, is it your own independent decision that that be done with regard to those cases other than the trafficking cases?

        DEFENDANT:     Yes, sir.

        COURT:         All right. How far did you go in school?

        DEFENDANT:     I graduated high school in '93.

        COURT:         Where did you go to high school?

        DEFENDANT:     Central Cabarrus.

        COURT:         Did you do any work in school after that, go to college or anything?

        DEFENDANT:     No, sir.

        COURT:         Now, when was the last time you took any controlled substances, by way of medication or alcohol or anything like that?

        DEFENDANT:     I had a strawberry daiquiri yesterday.

        COURT:         Yesterday.

        DEFENDANT:     Yes, sir.

        COURT:         That's all?

        DEFENDANT:     Yes, sir.

        COURT:         So you're sober?

        DEFENDANT:     Yes, sir.

        COURT:         You know what you're doing?

        DEFENDANT:     Yes, sir.

        COURT:         All right. Thank you very much.
Afterwards, defense counsel admitted during the jury selection that defendant was guilty of all but the trafficking charges. In open court, defendant testified to selling marijuana to Detective Derrick Waller on 16 August 2001. He also stated he sold 3.5 grams of crack cocaine to Waller on 17 August 2001 and 27 grams of crack cocaine to him on 20 August 2001.

    The issue is whether the trial court erred by accepting defendant's admission of guilt as to six of the eight charges and by allowing the admission to be presented to the jury. Defendant argues the trial court failed to inquire as to his “understanding of the complete import of the admissions he made,” and that his admission should not have been allowed in light of his confusion and lack of understanding of his actions. We disagree.
    Due process requires that a defendant's consent to concede his guilt be given voluntarily and knowingly after being fully appraised of the consequences. State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985). Nevertheless, there is no “particular procedure that the trial court must invariably follow when confronted with a defendant's concession.” State v. Berry, 356 N.C. 490, 514, 573 S.E.2d 132, 148 (2002) (holding the defendant's written statement indicating that he was aware of the risks accompanying the submission of the insanity defense and the defendant's replies to the trial court indicating that he discussed with his counsel about the defense, understood it, and agreed to it were adequate to establish that the defendant consented to theadmissions made later by counsel during trial); see also State v. Perez, 135 N.C. App. 543, 548-50, 522 S.E.2d 102, 106-07 (1999) (holding the defendant had given consent to his counsel to admit before the jury some degree of culpability less than first-degree murder because the defendant testified under oath that he understood the consequences of the concession, had discussed it with his attorney, and believed that the strategy was in his best interest).
    In the present case, during the trial court's inquiry quoted above, defendant indicated he had discussed with his attorney about making the admission to the jury, reflected about this choice, believed that the admission would be in his interest, and voluntarily permitted his attorney to make the admission. The trial court assured that defendant's decision was knowing, voluntary, and intelligent by asking for clarification when defendant indicated that he was confused, repeating the previous question, and inquiring about his educational background and mental alertness. The trial court's inquiry was adequate to establish that defendant understood the consequences of his decision and consented to the admission made by his counsel to the jury. See Berry, 356 N.C. at 514-15, 573 S.E.2d at 148. In addition, by subsequently testifying as to his guilt, defendant further ratified his counsel's admission. Therefore, defendant's assignment of error is overruled.
    Defendant has failed to set out his remaining assignments of error in his brief. Because he has failed to present arguments orcite authorities for the remaining assignments of error, they are deemed abandoned. See N.C.R. App. P. 28(b)(6).
    No error.
    Chief Judge EAGLES and Judge LEVINSON concur.
    Report per Rule 30(e).

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