An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 December 2005
STATE OF NORTH CAROLINA
v. Cumberland County
No. 03 CRS 52871
TERRY DELANE SINCLAIR
Appeal by defendant from judgment entered 21 October 2004 by
Judge Gregory A. Weeks in Cumberland County Superior Court. Heard
in the Court of Appeals 2 December 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas G. Meacham, Jr., for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Charlesena Elliott Walker, for defendant-appellant.
Terry Delane Sinclair (defendant) appeals from judgment
entered after a jury found him to be guilty of second degree
murder. We find no error.
The State's evidence tended to show that during the afternoon
of 9 March 2003, defendant came into Harold Oliver's (Oliver)
yard and engaged in a verbal argument with him. Defendant left
Oliver's yard and returned carrying a sword. The two men engaged
in a struggle over the sword. Defendant retrieved a shotgun from
a bystander, aimed the gun at Oliver, and fired it at Oliver's face
from a distance of four to five feet away. Shotgun pellets severed
Oliver's carotid artery, resulting in his death. Defendant testified that on the afternoon in question he heard
Oliver, his neighbor across the street, making insulting statements
about him to a visitor. Defendant uttered a profanity to Oliver,
causing Oliver to cross the street to confront him. Oliver told
defendant that he had something for [his] a-s and that he would
be right back. Fearing Oliver was going to get a weapon,
defendant went into his house and retrieved a sword. Defendant and
Oliver struggled over the sword. Defendant spotted his cousin
holding a shotgun. Defendant ran over to his cousin, grabbed the
shotgun, and pointed it at Oliver. As he attempted to engage the
safety, the gun discharged, striking Oliver in the face. After
seeing that Oliver was shot, he placed the sword and gun inside his
automobile and drove to a friend's house.
On 24 June 2003, defendant was charged with first-degree
murder. On 21 October 2004, defendant was found guilty of second
degree murder. The trial court sentenced defendant to a minimum
term of 200 months and a maximum term of 249 months imprisonment.
The sole issue on appeal is whether defendant received
ineffective assistance of counsel when his attorney admitted to the
jury that defendant had shot Oliver.
III. Ineffective Assistance of Counsel
Defendant argues he was denied effective assistance of counsel
when defense counsel stated during his opening statement to the
jury: (1) [i]t's not about whether the [S]tate is going to beable to prove that Mr. Sinclair shot Mr. Oliver, because he did;
and (2) the evidence is going to show . . . [i]t's not going to be
an intentional killing. It's going to be an accidental killing.
In State v. Harbison, our Supreme Court held a defendant is
denied effective assistance of counsel if his attorney, during
argument to the jury, admits the defendant's guilt without
obtaining the defendant's consent to the admission. 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).
Defendant argues his counsel impermissibly
conceded to his guilt without his consent.
After its decision in Harbison, our Supreme Court clarified
that the rule announced in Harbison
does not apply when counsel
argues that the defendant is innocent, but if the defendant may be
found guilty of anything, he is guilty of a lesser offense or
another crime because the evidence came closer to proving the
lesser offense or other crime. State v. Harvell, 334 N.C. 356,
361, 432 S.E.2d 125, 128 (1993).
In another subsequent decision,
State v. Strickland, the Court held that counsel did not admit the
defendant's guilt when he repeatedly stated the defendant was
holding the gun that killed the victim at the time the victim was
346 N.C. 443, 454, 488 S.E.2d 194, 200 (1997), cert. denied,
522 U.S. 1078, 139 L. Ed. 2d 757 (1998).
The Court noted that
Harbison did not control in Strickland because counsel's statements
were not the equivalent of asking the jury to find defendant
guilty of any charge. Strickland, 346 N.C. at 454, 488 S.E.2d at
200. Here, counsel did not ask the jury to find defendant guilty of
any crime and asserted Oliver's death was accidental as a defense.
Defense counsel did not concede or admit defendant was guilty of
any crime. This assignment of error is overruled.
Defendant received a fair trial free from the errors he
assigned and argued.
Judges MCCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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