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State v. Randle12/21/2004
ook at the evidence . . . you're going to find that he's guilty of second-degree murder.'" Id. at 106, 591 S.E.2d at 539. The Supreme Court ordered a new trial. Id. at 109, 591 S.E.2d at 540-41.
However, our Supreme Court has found no Harbison violation where defense counsel did not expressly admit the defendant's guilt. See, e.g., State v. Gainey, 355 N.C. 73, 93, 558 S.E.2d 463, 476 (2002) (finding no Harbison violation where defense counsel did not admit guilt of murder, but rather stated that "`if he's guilty of anything, he's guilty of accessory after the fact'"); State v. Hinson, 341 N.C. 66, 78, 459 S.E.2d 261, 268 (1995) (finding no Harbison violation where defense counsel did not concede that defendant himself committed any crime); State v. Fisher, 318 N.C. 512, 532-33, 350 S.E.2d 334, 346 (1986) (finding no Harbison violation where defense counsel conceded malice but did not clearly admit guilt, and told the jury it could find defendant not guilty).
In State v. Greene, 332 N.C. 565, 422 S.E.2d 730 (1992), the Supreme Court of North Carolina held that an argument by counsel that defendant is innocent of all charges, but if found guilty of any charge it should be of a lesser crime because the evidence comes closer to proving the lesser crime than any of the greater crimes charged, is not an admission of defendant's guilt to the lesser charge and, therefore, the rule of Harbison does not apply. Greene, 332 N.C. at 572, 422 S.E.2d at 733-34. In State v. Harvell, 334 N.C. 356, 432 S.E.2d 125 (1993), the Supreme Court reiterated its holding in Greene, finding that defense counsel's statement that if the evidence tended to establish the commission of any crime then it would be a lesser-included offense was not the equivalent of admitting the defendant was guilty of any crime. Harvell, 334 N.C. at 361, 432 S.E.2d at 128.
The case at bar is factually distinguishable from Harbison and Matthews and is analogous to the line of cases finding no per se ineffective assistance of counsel. Unlike in Harbison and Matthews, counsel in the case at bar never actually admitted the guilt of defendant to any charge, nor did counsel claim that defendant should be found guilty of some offense. As a result, no Harbison violation occurred. Instead, this case falls within the line of cases where the Harbison rule does not apply and no per se ineffective assistance of counsel is found. Like in Greene and Harvell, defense counsel in this case advocated for defendant's innocence by arguing that there was no penetration of the victim. Specifically, counsel told jury members that they must "weigh the evidence and make a decision, but in both of those cases, first degree rape, second degree rape, there's got to be penetration." Counsel attempted to cast doubt on the existence of penetration, arguing that defendant ejaculated on himself. Finally, defense counsel argued "there's reasonable doubt here because there are factors that need to be considered in either of the rape charges as to whether or not penetration actually occurred."
Furthermore, defense counsel argued that defendant should not be charged with first degree rape or first degree sex offense because there was no "serious injury" to the victim. Specifically, defense counsel stated that "the judge is going to instruct you that the difference between first degree rape and second degree rape is the serious injury and if there is reasonable doubt, if you're not fully satisfied and entirely convinced of the serious physical injury, then you're to consider second degree rape." Defense counsel then attempted to cast doubt on the seriousness of Harris' injuries and told the jury that, after considering the doubt as to penetration, "then when y
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