Appeal by defendant from judgment entered 11 May 2006 by Judge
J.B. Allen, Jr., in Alamance County Superior Court. Heard in the
Court of Appeals 20 August 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Ronald M. Marquette, for the State.
Leslie C. Rawls for defendant appellant.
Defendant appeals judgments entered after a jury verdict of
guilty of first-degree murder. We determine there was no error.
Richard Antwaun Graves (defendant) was indicted for first-
degree murder and possession of a weapon of mass destruction. The
State presented evidence at trial which tended to show the
Defendant and Lora Ann Dawkins (Lora) lived together. On
the night of 14 June 2005, Lora's brother, Larry Laborn (Larry),
and several other family members pulled up in front of the couple's
house in a van. Larry told Lora that defendant may be involved with
another woman. Defendant arrived on a bicycle and went inside his and Lora's
residence. Lora was inside talking with defendant when Larry came
to tell Lora he was getting ready to leave. At this point, Larry
told defendant not to hurt his sister. Then Larry and Lora went
outside on the porch to talk. Larry was shot from inside the house
and died from the gunshot wound. Defendant ran out the back door of
the house after the shooting. Defendant turned himself into police
the next morning.
The trial judge dismissed the weapon charge at the close of
the State's evidence. The jury convicted defendant of first-degree
murder and the trial judge imposed a sentence of life imprisonment
without parole. Defendant appeals.
Defendant contends he received ineffective assistance of
counsel because his trial counsel violated his constitutional right
not to be a witness against himself by making certain remarks
during his opening statement. We disagree.
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),
, 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.
177, 337 S.E.2d at 505. Specifically, in Harbison
, our SupremeCourt ruled that the defendant received ineffective assistance of
counsel where he presented evidence that he had killed in
self-defense, and to defendant'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. The holding in
has also been applied to cases involving comments made by
attorneys during opening statements. See State v. Roache
, 358 N.C.
243, 283, 595 S.E.2d 381, 407-08 (2004).
We determine the instant case is distinguishable from
. The relevant remarks made by defendant's counsel were:
It appeared to [defendant] that the man was
going to come and assault him so he fired one
time with the shotgun and ran out the back
[H]e acted in what he considered to be
some defense of himself.
[Defendant] pleaded not guilty to the
events of June 14th. Now, what happened that
night and why it happened is very much in
dispute. . . . After you've heard the evidence
and the law you'll find him not guilty.
Defendant argues that by these remarks his trial counsel admitted
to his culpability and his admission constitutes ineffective
counsel per se.
However, we believe that trial counsel's statements
did not constitute an admission of guilt. In addition, the trial
judge was aware of the possibility of the issue because the judge
specifically questioned defendant's attorney whether there was
going to be a Harbison
issue. Defendant's counsel responded thathe will not admit to guilt of anything without [defendant's] open
statement in court giving him permission to do so.
Chief Judge MARTIN and Judge TYSON concur.
Report per Rule 30(e).
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