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.

    TYSON, Judge.

    Terry Delane Sinclair (“defendant”) appeals from judgment entered after a jury found him to be guilty of second degree murder. We find no error.

I. Background

    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. Defendant appeals.

II. Issue

    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 shot. 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.

IV. Conclusion

    Defendant received a fair trial free from the errors he assigned and argued.
    No error.
    Judges MCCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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