An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1696


Filed: 6 January 2004


v .                         Robeson County
                            No. 01 CRS 11322, 11324

    Appeal by defendant from judgment entered 26 July 2002 by Judge Gary L. Locklear in Robeson County Superior Court. Heard in the Court of Appeals 14 October 2003.

    Attorney General Roy A. Cooper, by Assistant Attorney General Fred C. Lamar, for the State.

    OSBORN & TYNDALL, P.L.L.C., by Amos Granger Tyndall, for the defendant-appellant.


    Fitzgerald Locklear (“defendant”) appeals his convictions of felonious larceny and first-degree kidnapping. For the reasons stated herein, we hereby vacate the convictions and remand for a new trial.
    The record on appeal shows the following pertinent events during the trial: During closing arguments defense counsel admitted that defendant committed the larceny with which he was charged without defendant's authorization to make this admission. Defendant was subsequently convicted of felonious larceny and first-degree kidnapping. It is from these convictions that defendant now appeals.

    The issues presented for appeal are whether the trial court erred by (I) failing to declare a mistrial after closing arguments where defense counsel conceded in his argument that defendant was guilty of larceny; (II) failing to dismiss the charges against defendant at the close of the evidence presented at trial; (III) failing to properly instruct the jury on the elements of first-degree kidnapping; and (IV) failing to properly instruct the jury on the elements of misdemeanor larceny and second-degree kidnapping.
    The dispositive issue on appeal is whether the trial court erred by failing to declare a mistrial following defense counsel's unauthorized admission of defendant's guilt. The State concedes that a conviction on the charge of felony larceny cannot stand where defense counsel makes such a prejudicial statement to the jury without the permission of the defendant.
     A mistrial should be granted “when there are improprieties in the trial so serious that they substantially and irreparably prejudice defendant's case and make it impossible for defendant to receive a fair and impartial verdict.” State v. Bonney, 329 N.C. 61, 73, 405 S.E.2d 145, 152 (1991) quoting State v. Warren, 327 N.C. 364, 376, 395 S.E.2d. 116, 123 (1990). Our Supreme Court has held that an admission of guilt by trial counsel without defendant's consent is a per se violation of the Sixth Amendment right to effective assistance of counsel, mandating a new trial. State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504,507-08 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672, 106 S. Ct. 1992 (1986).
    In the case sub judice, defense counsel during his closing arguments made the following statement:
    Now, about the larceny of the car, I'm not going to stand here and try to tell you that he didn't take the car. He took the car and drove it on down the road. That was [the witnesses's] testimony. But I would argue that there was no kidnapping....

After defense counsel concluded his closing argument, the judge excused the jury and conducted the following inquiry:
    The Court:    Mr. Chavis, in your closing argument you pretty much concede the larceny charge. That, I assume, is what you intended to do or not?

    Chavis:        Yes, your Honor. I mean, I couldn't stand there and tell them he didn't take the car.... I mean, I have to have some kind of credibility with the jury.

    The Court:    Let me ask your client, then.... Mr. Locklear, you heard your attorney's arguments before the jury. It may have been in a roundabout way, but it was pretty much an admission of the larceny of the car when he argued to the jury.... [D]id you authorize him to take that position?

    Defendant:    No, I didn't. No, I did not. He did that without my knowledge and understanding.

    For defense counsel to concede his client's guilt regarding a charge for which the jury has been asked to give a verdict is wholly improper and prejudicial. Once the trial court's inquiryrevealed that defendant had not authorized his counsel's admission of guilt, the trial court was required to declare a mistrial. We conclude that because the court erred by failing to declare a mistrial, we must vacate and remand this case for a new trial.
    It is not necessary for this Court to address defendant's remaining assignments of error. However, we note the State's brief concedes that
        the trial court erred in its charge to the jury regarding the elements of felony larceny based upon the lack of evidence as to the value of the vehicle, or that the indictment for felony larceny was “from the person.” The evidence was, however, sufficient to support a verdict for the lesser included offense of misdemeanor larceny.

Thus, we conclude that defendant may not be prosecuted again on the felonious larceny charge, or the first-degree kidnapping charge which would require the State to prove that defendant committed a felony. Accordingly, we remand this case for trial on the lesser included charge of misdemeanor larceny only.
    Vacate and remand.
    Judges Wynn and Elmore concur.
    Report per Rule 30(e).

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