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State v. Randle12/21/2004
egree sexual offense."
Upon conclusion of defense counsel's closing argument, the trial court expressed concern that counsel had implicitly conceded defendant's guilt to the lesser-included offenses of second degree rape and second degree sex offense. Defense counsel did not believe he had made any such concessions. The trial judge conducted a hearing outside the presence of the jury, asking defendant whether he had authorized defense counsel to concede guilt to the lesser-included offenses. Defendant stated that he did not authorize such concessions. The trial judge then asked defendant whether he desired a mistrial. After consultation with defense counsel, defendant said he did not desire a mistrial.
Defendant was convicted of all charges. Defendant was sentenced to a term of 288 to 355 months in prison for first degree rape and first degree burglary. Additionally, defendant was sentenced to a term of 230 to 285 months in prison for first degree sex offense and attempted first degree burglary, to be served at the expiration of the preceding sentence. Defendant appeals.
I.
By his first assignment of error, defendant contends that defense counsel's closing arguments at trial implicitly conceded defendant's guilt to lesser-included offenses without first obtaining defendant's consent, thereby constituting ineffective assistance of counsel per se. We disagree.
Defendant argues that defense counsel implicitly admitted defendant's guilt to the lesser-included offenses of second degree rape and second degree sex offense, without first obtaining defendant's consent, by (1) arguing that defendant was not guilty of first degree rape and sex offense, (2) focusing prominently on the difference between first degree and second degree rape and sex offense (i.e. the element of serious injury ), and (3) by failing to focus on lack of penetration, a necessary element in both first and second degree rape and sex offense. Defendant argues that when defense counsel implicitly concedes guilt to a lesser-included offense, the court should look beyond the words to the practical effect of such an argument and find ineffective assistance of counsel per se. Defendant further argues that the failure of defendant to move for a mistrial does not cure per se ineffective assistance of counsel.
The Supreme Court of North Carolina has held that per se ineffective assistance of counsel "has been established in every criminal case in which the defendant's 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). During closing arguments in State v. Harbison, defense counsel stated, without defendant's consent, that "`I don't feel that William should be found innocent. I think he should do some time to think about what he has done. I think you should find him guilty of manslaughter and not first degree.'" Id. at 178, 337 S.E.2d at 506. Consequently, the Court found ineffective assistance of counsel per se and remanded the case for a new trial. Id. at 180-81, 337 S.E.2d at 507.
The Supreme Court of North Carolina recently applied the Harbison rule in State v. Matthews, 358 N.C. 102, 591 S.E.2d 535 (2004). In Matthews, the Court found per se ineffective assistance of counsel where defense counsel conceded defendant's guilt to second degree murder, a lesser-included offense, without defendant's permission. See id. at 109, 591 S.E.2d at 540. In closing arguments to the jury, defense counsel in Matthews said "`I'm telling you in this case you ought not to find him not guilty because he is guilty of something.'" "`When you l
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