State v Avery, (03-919) 06/01/2004

Appeal by defendant from judgments dated 18 May 2001 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 21 April 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Edwin W. Welch, for the State.

John T. Hall for defendant-appellant.

    BRYANT, Judge.

    Robert Earl Avery (defendant) appeals judgments dated 18 May 2001 entered consistent with his convictions for first-degree murder and robbery with a dangerous weapon.
    The State's evidence tended to show the following: On 18 May 2000, the body of Eric Bryan Bish, an employee of North Carolina State University, was found lying dead on the floor of the Method Station Post Office located in Raleigh, North Carolina. The cause of death was a gunshot wound to the head. At the time the body was discovered, the University-owned vehicle (vehicle) Bish had been driving was not located in the vicinity of the post office.
    At a bus stop across the street from the post office, police discovered a bag containing a North Carolina identification cardbearing defendant's picture and address, and papers bearing defendant's name and address. Police went to the address listed on the papers where they spoke to Sam Greene, who stated that defendant did not currently live with him, although defendant had lived with him for a few months in the past. Greene also informed the police that defendant had mental health problems.
    The next morning, defendant drove to Greene's home in the vehicle Bish had signed out the previous day, whereupon Greene telephoned the police who arrived and placed defendant under arrest. The police found that the license plate assigned to the vehicle had been replaced with a license plate stolen in Durham the previous day. The police retrieved the vehicle keys from defendant, and conducted a search of the vehicle. Inside the vehicle, police found a folding knife and a .32 caliber revolver with one fired casing and four live rounds.
    At trial, the State presented the following evidence: The fingerprints of both defendant and Bish were found in the vehicle; State Bureau of Investigation forensic firearm expert Scott Jones concluded the bullet taken from Bish's skull had been fired from the .32 caliber revolver found in the stolen vehicle; and during a police interview, defendant admitted having removed a license plate from a vehicle in Durham. Upon defendant's arrest, the stolen Durham license plate was found on the vehicle.
    On rebuttal, forensic psychiatrist Bob Rollins testified for the State and recalled his interview with defendant: defendant stated that when he arrived in Raleigh, he determined he needed toget a car and leave town. In order to complete his mission, defendant needed to rob someone. Having taken a bus from downtown Raleigh to the Method Station Post Office, defendant, with a gun and a pocket knife in his possession, went into the post office and shot someone. After leaving the post office, defendant stole a license plate, altered some stickers on the vehicle, rode around, and was arrested the next morning.
    Defendant presented evidence of his history of mental health problems. He also presented the testimony of psychologist James Hilkey, who stated his diagnosis that defendant is schizophrenic, is paranoid, and engages in psychotic behavior.

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The issues on appeal are whether: (I) defendant received ineffective assistance of counsel when his attorneys conceded his guilt to the offenses charged; and (II) use of the short-form murder indictment was unconstitutional.

    Defendant argues he received ineffective assistance of counsel, in that his attorneys conceded defendant's guilt to the crimes without his consent.
    “A defendant is entitled to relief [for ineffective assistance of counsel] if he can show both (1) that his counsel's performance fell below an objective standard of reasonableness, and (2) that his counsel's deficient representation was so serious as to deprive him of a fair trial.” State v. Thomas, 329 N.C. 423, 438-39, 407 S.E.2d 141, 151 (1991) (the defendant contends “that he was deniedhis Sixth Amendment right to effective assistance of counsel when defense counsel, without defendant's consent, conceded to the jury that the defendant had committed second-degree murder[, but not first-degree murder,] and had completed at least one element of the sexual offense”).
    A client's rights to a fair trial and to put the State to the burden of proof is completely swept away when counsel admits his client's guilt without first obtaining his client's consent. State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985). The pragmatic effect is the same as if counsel had entered a guilty plea without the client's consent. Id.; see State v. Perez, 135 N.C. App. 543, 547, 522 S.E.2d 102, 106 (1999) (“A concession of guilt by a defendant's counsel has the same practical effect as a guilty plea, because it deprives the defendant of his right against self-incrimination, the right of confrontation and the right to trial by jury.”). The decision to make a concession of guilt as a trial strategy is therefore a decision which may only be made by the defendant. Perez, 135 N.C. App. at 547, 522 S.E.2d at 106; accord Harbison, 315 N.C. at 180, 337 S.E.2d at 507-08 (“[I]neffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant's counsel admits the defendant's guilt to the jury without the defendant's consent.”).
    Due process requires that a defendant's “consent must be given voluntarily and knowingly by the defendant after full appraisal of the consequences, and a clear record of a defendant's consent.” Perez, 135 N.C. App. at 547, 522 S.E.2d at 106. The same formalities as mandated by statute for a plea of guilty, however, are not required. Id., 135 N.C. App. at 547-48, 522 S.E.2d at 106.
    In the instant case, prior to opening statements, defense counsel informed the trial court as follows:
    We will concede that Mr. Bish died as the result of a single gunshot wound that was fired from a thirty-two caliber weapon that was found in the State vehicle that Mr. Bish had checked out in order to go on a field trip that he was preparing to go on. In addition, we will concede that [defendant] fired that weapon causing the wound to Mr. Bish. And we will also concede that [defendant] did in fact take away the vehicle that at least that belonged to the State, but was in the custody and control of Mr. Bish at the time of death.

    In addition, your Honor, we will concede that [defendant's] involvement in this particular matter constitutes at least some crime and I believe that's the concessions that will be made.

Immediately thereafter, the trial court asked defendant to take the stand, whereupon the following colloquy occurred:
THE COURT: First, have you discussed your case with your lawyers and are you satisfied with their legal services?

[DEFENDANT]: Yes, Yes.

THE COURT: Okay. Have Mr. Gammon and Mr. Zeszotarski explained to you that they're about to make an opening statement to this jury and they are about to tell this jury some things involving your conduct on the date in question that will admit some criminal responsibility for your conduct?

[DEFENDANT]: Yes.

THE COURT: Okay. Do you feel like you understand what they've said about that?
[DEFENDANT]: Yes.

THE COURT: Okay. I _ they have your permission to do that?

[DEFENDANT]: Yes.

THE COURT: Do you want to ask me any questions about it?

[DEFENDANT]: No.

THE COURT: All right, sir.

    The transcript in the case sub judice not only reflects defendant's consent to his attorneys' trial strategy, but the record on appeal also reflects defendant's ability to voluntarily and knowingly give consent, despite his argument that his low IQ and mental illness prohibited such ability. Specifically, the record reflects forensic psychologist James Hilkey's testimony that: defendant had an IQ of 77 and was not mentally retarded; defendant could read at a high school level; and defendant suffered from schizophrenia but was competent to assist his attorneys in his defense. Board certified forensic psychiatrist Bob Rollins also testified that defendant was not mentally retarded and was competent to stand trial.
    Moreover, the trial court again questioned defendant regarding whether he understood the significance of his attorneys' concessions. The transcript reflects the following colloquy:
    MR. GAMMON: Your, Honor, . . . as an officer of the Court I must bring to the Court's attention during closing argument on behalf of [defendant], I plan to concede that he has committed the crime of armed robbery and in addition will concede that he has committed the crime of first[-]degree murder under the felony murder rule.    I have spoken to defendant and Mr. Zeszotarski and I have both spoken with him about that. . . . I believe that defendant understands why we are doing that and the consequences of us doing that . . . and to the extent that we believe he can understand that we think he understands that and we have his consent to do that.

THE COURT: . . . We talked earlier and I asked you whether or not at that time that you were satisfied with your lawyers . . . and the job they're doing for you. You told me at that time that you were satisfied with their legal services. Are you still satisfied with their legal services?

[DEFENDANT]: Yeah.

THE COURT: . . . They have advised me in your presence that they would like to take the position that you are not guilty of first[- ]degree murder by premeditation and deliberation with malice, but that they are prepared to concede that you are responsible for the death of Mr. Bish and therefore guilty of felony murder, that is to say that you killed him during the course of a robbery.

. . . You need to understand that in this courtroom you don't have to concede to anything. You don't have to admit anything. You do not have any burden of proving or disproving anything to this jury. The State has the sole responsibility of proving your guilt to any crime. You are presumed innocent. You may through your lawyers admit guilt if that's what you want to do, but you're not required to, do you understand that, sir? Do you understand that?

[DEFENDANT]: Yeah, I talked with them, you know, several times . . . .

    The trial court then explained to defendant the definition of robbery with a dangerous weapon and felony murder and questioned defendant whether he understood the significance of conceding to having committed these crimes. Defendant answered in theaffirmative. When the trial court asked defendant if he was prepared to allow his lawyers to admit that he committed these crimes, defendant answered in the affirmative. Further, the trial court questioned defendant if he thought this concession would be in his best interests, and defendant answered in the affirmative. The trial court next asked defendant if he understood the punishments for these crimes, to which defendant answered in the affirmative. Finally, the trial court then questioned defendant whether he understood he was not required to admit his guilt. Defendant again answered in the affirmative.
    Directing its attention toward defendant's attorneys, the trial court questioned if they had defendant's consent to make the concessions, to which they answered in the affirmative. The trial court also questioned defendant's attorneys whether they had consulted with Drs. Hilkey and Rollins concerning defendant's competency and ability to assist in his own defense. Defendant's attorneys answered in the affirmative. The trial court then found: “defendant's decision is fully informed and intelligently made with full recognition of all constitutional rights, including those rights that he is relinquishing by this concession.”
    This assignment of error is overruled.

    Defendant next argues that the use of a short-form murder indictment violated his constitutional rights, as the indictment failed to list all the necessary elements of first-degree murder. This argument is summarily overruled. See State v. Anderson, 355N.C. 136, 558 S.E.2d 87 (2002); State v. Long, 354 N.C. 534, 557 S.E.2d 89 (2001); State v. Wilson, 354 N.C. 493, 556 S.E.2d 272 (2001); State v. King, 353 N.C. 457, 546 S.E.2d 575 (2001), cert. denied, 534 U.S. 1147, 151 L. Ed. 2d 1002 (2002); State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000); State v. Call, 353 N.C. 400, 545 S.E.2d 190 (2001).
    No error.
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

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