An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1112


Filed: 5 July 2005


v .                                 Halifax County
                                    No. 02 CRS 057253

    Appeal by defendant from judgment entered 10 March 2004 by Judge Cy A. Grant in Halifax County Superior Court. Heard in the Court of Appeals 12 May 2005.

    Attorney General Roy Cooper, by Assistant Attorney General William B. Crumpler, for the State.

    Miles & Montgomery, by Mark Montgomery, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant appeals from conviction and judgment for first- degree murder. We find no error.
    On 2 November 2002, defendant shot and killed Tiffany Shields. At the time of the shooting, Shields was sitting in an automobile in a driveway along Highway 903 near Scotland Neck, North Carolina. She was meeting a friend she planned to pick up en route to a party being thrown by a man named “Rocky.” Defendant and Shields were in a romantic relationship and were living together, but defendant feared that Shields might be leaving him for Rocky. Defendant was not invited to Rocky's party.    On the night of the shooting, defendant pulled up behind Shields' car and blocked the driveway. He began screaming for Shields to get out of the car and come with him. When she refused, he produced a handgun. Despite Shields' requests that defendant not fire, he discharged the gun within inches of the driver's side window of her car. After firing a second shot, he retreated towards his own vehicle. He fired three more shots as Shields' car began rolling backwards.
    An investigation revealed that Shields had been shot by two different guns. During an autopsy, portions of two 9-mm bullets were recovered from Shields' face, and one .45 caliber bullet was recovered from her chest. The .45 caliber bullet which struck Shields' chest was traveling from her left to her right as it entered her body; the 9-mm bullets that struck her face were traveling in the opposite direction. In a statement given to the police, defendant claimed that he “was trying to shoot over the car.”
    Prior to jury selection, defense counsel informed the trial court that defendant had authorized him to admit that defendant was guilty of second-degree murder. The trial court inquired of defendant whether he had discussed such a strategy with his attorney, whether he had been given an opportunity to ask questions about the strategy, and whether he understood that, if trial counsel made such admissions, defendant would be admitting that he was guilty of second-degree murder. After receiving answers in the affirmative, the trial court permitted defense counsel to proceedwith this strategy. During his closing argument, defendant's attorney contended that the jury should return a verdict of guilty of second-degree murder as opposed to first-degree murder because the killing was not premeditated and deliberate.
    The jury convicted defendant of first-degree murder, and the trial court imposed a sentence of life imprisonment without parole. Defendant now appeals.

    In his first argument on appeal, defendant contends that he received per se ineffective assistance of counsel because his trial attorney commented during closing argument that there was evidence of intent to kill the victim. Defendant argues that the challenged comments were tantamount to an admission of guilt which he did not authorize his attorney to make. This contention lacks merit.
    “When counsel admits his client's guilt without first obtaining the client's consent, the client's rights to a fair trial and to put the State to the burden of proof are completely swept away. The practical effect is the same as if counsel had entered a plea of guilty without the client's consent.” State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986). Under such circumstances, “[an] admission of the defendant's guilt during the closing arguments to the jury is per se prejudicial error.” Id. at 177, 337 S.E.2d at 505. Specifically, in Harbison, our Supreme Court ruled that the defendant received ineffective assistance of counsel where he presented evidence that he had killed in self-defense, and todefendant's surprise, his attorney expressed an opinion during his closing argument that the jury should return a verdict of guilty of voluntary manslaughter as opposed to first-degree murder. Id. at 177-78, 337 S.E.2d at 506.
    However, the Supreme Court has distinguished Harbison from a case in which a defense attorney admitted that there was evidence of malice to support a verdict of second-degree murder but “did not admit guilt, as he told the jury that they could find the defendant not guilty.” State v. Fisher, 318 N.C. 512, 533, 350 S.E.2d 334, 346 (1986). In this latter situation, a constitutional violation is not presumed. Id. Rather, defendant must show that (1) his trial counsel “made errors so serious as to support a finding that he was not functioning as the 'counsel' guaranteed by the Sixth Amendment,” and (2) “there is a reasonable probability that, but for counsel's errors, there would have been a different result [at trial].” Id. at 533-34, 350 S.E.2d at 346-47 (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)).
    In the instant case, defendant gave his attorney permission to admit that he was guilty of second-degree murder, and he contested the first-degree murder charge. During his closing argument, defense counsel made the following comments:
    Sure as heck you can find [the ballistics evidence] as evidence of intent to kill. And just as I said, second- degree murder involves the intent to kill. . . .

    You know, being out of control doesn't mean you're not guilty of second-degree murder. It doesn't mean you didn't have the intent to kill. . . .
    Intent to kill is not enough. And that's what there's plenty of proof of in this case. Five shots shows intent to kill.

As defendant properly notes, defense counsel apparently misunderstood second-degree murder to include, as an element, the requirement that a killing be intentional. See State v. Rich, 351 N.C. 386, 391-92, 527 S.E.2d 299, 302 (2000) (noting that malice, the requisite mens rea for second-degree murder, does not necessarily mean an actual intent to take human life). However, we are not persuaded that defense counsel admitted that defendant was guilty of more than second-degree murder.
    Defendant's brief implies that trial counsel in effect admitted that defendant was guilty of first-degree murder. First- degree murder is statutorily defined as “[a] murder . . . perpetrated by . . . any . . . kind of willful, deliberate, and premeditated killing . . . .” N.C. Gen. Stat. § 14-17 (2003).
        Premeditation means thought over beforehand for some length of time, however short, but no particular time is required for the mental process of premeditation. Deliberation does not require brooding or reflection for any appreciable length of time, but imports the execution of an intent to kill in a cool state of blood without legal provocation, and in furtherance of a fixed design.

State v. Myers, 299 N.C. 671, 677, 263 S.E.2d 768, 772 (1980) (citations omitted). Defense counsel consistently argued that defendant was not guilty of first-degree murder because the killing was not premeditated and deliberate.
    Thus, defense counsel did not admit that defendant necessarily intended to kill the victim and did not concede that defendantcommitted first-degree murder. As such, the rule set forth in Harbison does not require a finding of per se ineffective assistance of council in the instant case. Therefore, it is defendant's duty to establish deficient performance by his attorney that likely affected the outcome of his trial. Fisher, 318 N.C. at 533-34, 350 S.E.2d at 346-47.
    We are unpersuaded that defendant has met his burden. Although defendant's attorney seemed to be mistaken about the culpability required to commit second-degree murder, there is no indication in the record that his mistake resulted in deficient performance at trial. Indeed, defense counsel merely indicated there was evidence from which intent could be inferred, but he did not tell the jury that defendant intended to kill the victim. Moreover, to the extent that defense counsel mischaracterized the law, the jury was properly instructed on the law by the trial court. Therefore, even assuming arguendo that counsel's performance was deficient, there is not a reasonable probability that there would have been a different result at trial in the absence of such allegedly deficient representation.
    This assignment of error is overruled.
    In his second argument on appeal, defendant contends that the trial court erred by failing to submit voluntary manslaughter as a lesser included offense to the jury. The trial court submitted first-degree murder, second-degree murder, and not guilty aspossible verdicts, and the jury returned a verdict of guilty of first-degree murder.
    We note that, because defendant failed to request an instruction on voluntary manslaughter, plain error review is appropriate. “In deciding whether a defect in the jury instruction constitutes 'plain error,' [an] appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.” State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983). In the absence of such impact, relief is unavailable for an alleged instructional error to which a defendant has not objected. Id.
    Our Supreme Court has held that “[w]hen the jury is instructed on possible verdicts for first-degree murder and second-degree murder and the jury convicts on the basis of first-degree murder, any failure to instruct on a possible verdict for manslaughter cannot be harmful to the defendant.” State v. Ginyard, 334 N.C. 155, 160, 431 S.E.2d 11, 14 (1993). Under such circumstances, any error in failing to instruct on manslaughter is harmless error. Id.
    Accordingly, even assuming arguendo that the trial court should have instructed on voluntary manslaughter, any error was harmless where an instruction on second-degree murder was given and the jury nonetheless convicted defendant of first-degree murder. Furthermore, any error by the trial court did not rise to the level of plain error. This assignment of error is overruled.
    Defendant has also filed a motion for appropriate relief, in which he contends that he received ineffective assistance of counsel because his trial attorney failed to request an instruction on voluntary manslaughter. Given our holding that defendant was not prejudiced by the absence of a manslaughter instruction, there is no reasonable probability that, but for counsel's failure to request such an instruction, there would have been a different result at trial. See Fisher, 318 N.C. at 533-34, 350 S.E.2d at 346-47 (reciting the standard for ineffective assistance of counsel). Therefore, the motion for appropriate relief is denied.
    No error.
    Judges TIMMONS-GOODSON and STEELMAN concur.
    Report per Rule 30(e).

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