STATE OF NORTH CAROLINA
Richmond County
v
.
Nos. 02 CRS 54567
03 CRS 1572
STEPHEN PATRICK CULLER
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth L. Oxley, for the State.
Jon W. Myers, for defendant-appellant.
CALABRIA, Judge.
Just after midnight on 29 December 2002, members of the
Richmond County Sheriff's Department and Rockingham Police
Department responded to a motion sensor alarm at the Tobacco World
warehouse at the intersection of State Highway 74 and Yates Hill
Road in Rockingham, North Carolina. Richmond County Sheriff's
Lieutenant Robert L. Smith (“Smith”) was the first officer to
arrive at the scene. Peering through a front window, Smith saw
Wayne Davis (“Davis”) inside the building. Davis had “tor[n] open”
the door separating the front retail area from the warehouse
storage area in back and “was coming out of the back of the area
where the cigarettes were[.]” Smith walked around to the loadingarea on the side of the building and saw that the door to the
loading bay had been pried open. A crowbar was lying on the ground
beside the door, and a vehicle was parked in the loading area.
Smith and his fellow officers entered the warehouse and arrested
Davis and Keith Gregory (“Gregory”), who were hiding in the storage
room among boxes of cigarettes. Rockingham Sheriff's Deputy
Michael Drumwright (“Drumwright”) then spotted Stephen Patrick
Culler (“defendant”) in the rear left-hand corner of the storage
room “balled up on top of some boxes in a blue hooded sweatshirt.”
Drumwright took defendant into custody.
Gregory testified that he, defendant, and Davis went to the
Tobacco Warehouse on 29 December 2002 “[t]o break in and steal
cigarettes.” He confirmed that all three of them went into the
building. Gregory gave a written statement to police in which he
claimed that he and defendant were driving around and drinking on
the night in question. After picking up Davis in East Rockingham,
Gregory drove to the Tobacco Warehouse. Defendant and Davis “got
out of the car with a crowbar and went around the building.” Upon
seeing the two men pry the door open, Gregory left the car and
followed them inside. They “were still inside the building when
the deputies arrived.”
Defendant was indicted on a charge of felonious breaking
and/or entering on 10 February 2003. Defendant was tried on the
charge, and a jury returned a guilty verdict on 4 June 2003.
Following return of the verdict, defendant pled guilty to attaining
the status of habitual felon. The trial court sentenced defendantto an active prison term of 143 to 181 months. Defendant appeals.
I. Ineffective Assistance of Counsel
On appeal, defendant claims his counsel rendered ineffective
assistance by failing to obtain his consent before conceding his
guilt for non-felonious breaking and/or entering to the jury during
his closing argument. He argues that the record “fails to
establish that the concession was voluntary, fails to establish
that the defendant gave prior consent, and fails to show[] that
defendant was even aware the concession would take place.”
Defendant also faults the trial court for allowing his counsel to
make this argument without first ascertaining whether the defendant
had consented. Defendant insists, “At no time did the trial court
make an inquiry into whether defendant had given counsel permission
to enter any type of admission or guilt concession during the
trial.”
Defense counsel renders ineffective assistance, “per se in
violation of the Sixth Amendment,” if counsel “admits the
defendant's guilt to the jury without the defendant's consent."
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 (1986). The
decision to concede guilt to a lesser included crime must "be made
exclusively by the defendant." Id. at 180, 337 S.E.2d at 507.
Moreover, the trial court must create a “clear record”
demonstrating that defendant's consent was knowing and voluntary
and based upon a full appreciation of the consequences. State v.
Perez, 135 N.C. App. 543, 547, 522 S.E.2d 102, 106 (1999), appealdismissed and disc. rev. denied, 351 N.C. 366, 543 S.E.2d 140
(2000). However, the trial court need not engage the defendant in
the formal colloquy required for a guilty plea under N.C. Gen.
Stat. § 15A-1022(a) (2003). Id. at 548, 522 S.E.2d at 106.
Indeed, 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). For
this Court to conclude that defendant authorized a concession by
his counsel, “the facts must show, at a minimum, that defendant
knew his counsel were going to make such a concession.” State v.
Matthews, 358 N.C. 102, 109, 591 S.E.2d 535, 540 (2004).
The trial transcript reveals that, during his closing
argument, defense counsel conceded “there was a crime committed[,]”
but claimed defendant had gone into the warehouse spontaneously
while out “drunk” and joy-riding and not with the intent to commit
larceny. Counsel then expressly asked the jury to “find
[defendant] guilty of non-felonious breaking and/or entering.” In
the jury's absence, the prosecutor asked the court to make a record
of defendant's consent to his counsel's concession to the lesser
included offense.
The trial court first asked defense counsel if he had
discussed this decision with defendant:
THE COURT: What say you to that, [counsel]?
Has that matter been discussed?
[COUNSEL]: Yes, we discussed that, Your
Honor. I discussed that with [defendant]
before.
The court then engaged defendant in the following colloquy: THE COURT: It is with your consent that your
attorney has made the argument that the jury
may find you guilty of non-felonious breaking
or entering?
THE DEFENDANT: Yes, sir. I understand, sir.
THE COURT: And so you did make an admission
to that extent?
THE DEFENDANT: Yes, sir.
. . .
THE COURT: . . . [F]or the record, do I
understand that you freely, voluntarily,
knowingly, and intelligently consent to the
argument made by counsel that this jury may
find you guilty of non-felonious breaking or
entering, and that you make an admission to
that extent?
THE DEFENDANT: Yes, sir. He has my consent.
He did a good job.
THE COURT: All right. And you're not
presently under the influence of any
medications or substance of any kind?
THE DEFENDANT: No, sir.
(Emphasis added).
“Although the better practice would be for defense counsel to
make a record of a defendant's consent to concessions or admissions
of guilt prior to making those concessions, . . . we conclude that
the trial court's inquiry was adequate to establish that defendant
had previously consented to his counsel's concession[.]” State v.
Johnson, 161 N.C. App. 68, 77, 587 S.E.2d 445, 451 (2003), appeal
dismissed and disc. rev. denied, 358 N.C. 239, 595 S.E.2d 693
(2004). Counsel acknowledged that he had conferred with defendant
prior to giving his closing argument, and defendant repeatedly
expressed his consent to and satisfaction with counsel's strategy. As such, defendant's ineffective assistance of counsel argument is
without merit.
The record on appeal contains additional assignments of error
not addressed by defendant in his appellant's brief. Pursuant to
N.C.R. App. P. 28(b)(6) (2004), we deem them abandoned.
No error.
Judges TIMMONS-GOODSON and LEVINSON concur.
Report per Rule 30(e).
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