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.
TIMMONS-GOODSON, Judge.
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).
*** Converted from WordPerfect ***