IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-149
Filed 19 March 2025
Duplin County, Nos. 19 CRS 50740, 218
STATE OF NORTH CAROLINA
v.
DEONTE D. MEADOWS
Appeal by defendant from judgment entered 28 March 2023 by Judge Douglas
B. Sasser in Duplin County Superior Court. Heard in the Court of Appeals
15 January 2025.
Attorney General Jeff Jackson, by Special Deputy Attorney General Robert C. Ennis, for the State.
Ryan Legal Services, PLLC, by John E. Ryan, III, for defendant.
ARROWOOD, Judge.
Deonte D. Meadows (“defendant”) appeals from judgment entered
28 March 2023 upon his convictions of possession of a firearm by a felon and first-
degree murder. On appeal, defendant argues: (1) defendant’s counsel was per se
ineffective by conceding guilt without permission and (2) the trial court erred by
failing to intervene ex mero motu when the State made improper closing arguments.
For the following reasons, we vacate defendant’s convictions and remand for a new
trial. STATE V. MEADOWS
Opinion of the Court
I. Background
The evidence at trial tended to show the following:
At around 12:41 am on 8 July 2016, Duplin County Sheriff’s Deputy Evan
Brock (“Deputy Brock”),1 along with Sergeant Kennedy and Corporal Turner,
responded to a call from Dondi Hutcherson Sr. (“Mr. Hutcherson Sr.”), reporting a
break-in and a gunshot injury to his son. Upon arriving to the scene, Deputy Brock
noticed that there was forced entry at the front door of the home. Inside the home,
Deputy Brock found different sized bullet casings on the floor in the living room.
When the officers proceeded further into the home, they found Dondi Hutcherson, Jr.
(“the victim”) lying face down on the floor, and determined that he was deceased.
Mr. Hutcherson Sr. informed Deputy Brock that when he arrived home that
evening, he saw a pair of shoes in the road and noticed the front door to his home was
open. Upon walking to the front door, he noticed it had been kicked in and saw bullets
on the floor. When he walked into the home, he saw his son lying face down on the
floor with blood around him.
Defendant was indicted on charges of murder and possession of a firearm by a
felon on 28 May 2019. Neither indictment mentioned any other actors or suspects
and only discussed the actions of defendant.
1 At the time of trial, Brock was an officer with the North Carolina State Highway Patrol as a highway
patrolman in Duplin County, and the transcript reflects his status as an Officer. However, because he was a deputy with the Duplin County Sheriff’s Office at the time of the incident, we refer to him accordingly in the opinion.
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Prior to trial, defendant filed a motion to dismiss the charge of first-degree
murder, arguing that law enforcement officers “failed to properly secure and process
the crime scene.” Furthermore, defendant argued that law enforcement officers failed
to preserve evidence that could have tested and may have exonerated defendant.
After a hearing on the motion to dismiss, the trial court ultimately ruled that there
was no indication that evidence had been disturbed or tampered with and denied the
motion to dismiss.
The trial commenced on 13 March 2023. During trial, the trial court heard a
motion in limine related to potential gang involvement by the defendant. The trial
court ultimately held that evidence of the defendant’s gang involvement was
admissible to establish motive, intent, planning, preparation, and the identity of the
perpetrator.
Leslie Daugherty, a forensic scientist at the North Carolina State Crime
Laboratory, testified as to the physical evidence that was found at the scene of the
crime. She testified that she could not match the imprints of shoes that were found
on the front door, which had been forcibly entered, to the shoes found outside the
home.
Thus, much of the State’s case rested on testimony given by defendant’s former
partner, Nalja Burton (“Ms. Burton”). During trial, Ms. Burton, who had previously
dated and lived with defendant at the time of the incident, testified that the shoes
found at the crime scene were loaned to defendant by his former roommate. Ms.
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Burton further testified that defendant had been in a gang known as Eight Trey Crips
along with two men who were known to Ms. Burton as “Ducc” and “Chapo.”
Ms. Burton testified that on the night of the incident, defendant had received
a call from his gang brothers “to handle some business.” She had given defendant
the shoes that were found at the scene of the crime prior to defendant leaving their
home with Ducc and Chapo. When defendant, Ducc, and Chapo returned to Ms.
Burton’s apartment, she observed them pacing and sweating. She testified that they
came back with “a whole bunch of money and a lot of weed” and they proceeded to
divide both the money and the weed between the three of them. She indicated that
another member of the gang, nicknamed “Dehigh,” was responsible for ordering
Chapo, Ducc, and defendant to pursue the victim, and “was the one that paid them.”
According to Ms. Burton, Dehigh and Ducc had a higher position in the gang than
defendant and Chapo. Ms. Burton also noted that defendant was not wearing shoes
when he returned to their home. According to Ms. Burton, when defendant arrived
back to their home on the evening of 7 July 2016, he admitted to her that he had
killed the victim and that he “moved up in the gang.”
The State only brought charges against defendant and did not bring charges
against Ducc and Chapo, who Ms. Burton had testified had been present at the scene
of the incident that night. In addition to Ms. Burton’s testimony, the State also played
for the jury several phone calls between Ms. Burton and defendant, which the State
argued corroborated Ms. Burton’s testimony that defendant was the shooter.
-4- STATE V. MEADOWS
During trial, the court conducted a Harbison inquiry with defendant. The trial
court specifically questioned defendant about the State eliciting testimony from
witnesses regarding a prior felony conviction. The prior felony in question was a
conviction of felony flee to elude arrest committed on 18 February 2014. The trial
court confirmed that the defendant consented to a stipulation that he had previously
been convicted of a felony. Beyond asking about this prior felony conviction, the trial
court did not inquire about, and the defendant did not provide, consent to discuss any
other stipulations or admissions of guilt.
Notably, prior to and during trial, defendant sought new counsel on three
different occasions. First, pursuant to defendant’s request, his trial counsel filed a
motion to withdraw on 22 December 2022, which the trial court denied.
Subsequently, on 9 January 2023, during pre-trial motions, defendant’s counsel
motioned for withdrawal stating that defendant had lost confidence in his ability to
represent him. The trial court ultimately denied this motion. Finally, on
20 March 2023, defendant’s counsel made an oral motion for withdrawal as
defendant’s counsel during the trial. Defendant’s counsel stated that defendant was
“not happy with [his] representation[,]” felt that counsel was “not representing
vigorously enough or zealously enough,” and that his “continued representation [was]
not in his best interest.” However, defendant’s counsel stated that he had no ethical
reasons why he could not continue to represent defendant. Accordingly, the trial
court, after acknowledging that they had not observed any actions or lack thereof to
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indicate that defendant’s counsel was not fulfilling his ethical obligations in providing
effective and zealous representation, denied the motion.
Following the close of evidence, the trial court conducted a charge conference
to determine the appropriate jury instructions to provide. The parties specifically
discussed whether to include an instruction about acting in concert. That proposed
instruction requested by the State read: “The defendant’s act need not have been the
only cause nor the nearest cause. It is sufficient if it occurred with some other cause
acing [sic] at the same time, which in combination with caused the death of the
victim.” The trial court specifically stated it would not provide an instruction to the
jury about acting in concert and denied the State’s request to include such instruction
in the jury charge.
After the charge conference, the trial proceeded to closing arguments. The
State presented its closing argument first, stating as follows:
First, we told you during jury selection that you will hear evidence that the defendant was not the only person responsible for the murder of the victim, but he is the only person on trial in front of all of you. For you to fulfill your duty, you have to decide this defendant’s guilt. You’ve all promised that you would not consider or be distracted by the fact that others were involved, because it is your duty to determine this defendant’s guilt. And as we discussed during jury selection, as His Honor will instruct you with regard to the law on proximate cause, His Honor will tell you that the defendant’s act may not have been the only cause nor the nearest cause. It is sufficient if it occurred with some other cause happening at the same time, which in combination would have caused the victim’s death. Either acting by himself or with others, the defendant is
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absolutely guilty of murder.
The State later stated,
Now, when you consider the evidence, the State doesn’t have to prove that the defendant actually fired the shot that actually killed the victim. If he committed one act that contributed to the victim’s death, he is just as guilty as everybody else. But we know that he did more than one act, ladies and gentlemen. We know that he actually went in there with a loaded firearm with the intent to commit murder and fired multiple shots at the victim, which resulted in his death.
The State proceeded to make arguments regarding acting in concert, ignoring the
trial court’s denial of the request for an instruction and without any objection by the
defendant’s counsel:
[T]he State must prove the defendant’s acts were the proximate cause of the victim’s death. We talked about this earlier. A proximate cause is a real cause, a cause without which the victim’s death would not have occurred. Of course, shooting at a human being is a proximate cause. But he doesn’t have to actually cause the fatal shot. If he did something, acting himself or help with others, to cause the proximate death of the victim, he is guilty of first- degree murder.
Following the State’s closing arguments and a brief recess, counsel for
defendant presented his closing arguments. Defendant’s counsel made several
comments throughout his closing arguments related to defendant and the possibility
of his guilt. Specifically, defendant’s counsel stated,
We have discovered other things about Deonte. Deonte is a soldier. He’s at the bottom of the totem pole. When I say a soldier, Ducc is the top guy. He’s the guy with authority
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over a lot of people. Chapo is below Ducc, and Deonte is the guy at the bottom, under Chapo. Of course, under Ducc. He’s like a soldier. Higher-ups, sergeants, officers tell a soldier to go and do this and that. That’s a soldier’s job, not to question orders. Go do it. Deonte is the guy at the bottom, like a soldier.
What else have we discovered about Deonte and how it happened, about Deonte? The call came the night of the incident, and the call is like, “Hey, dude, we’ve got a job. Do you want to -- do you want to come join us on the venture?” He was not given an option. The bossman and the sub- bossman show up in a, probably, muscle truck, pick him up. Deonte could not say, “Well, I’m interested,” “I’m not interested.” When the bossman shows up, hey, got to go. You have no choice in the matter. Deonte had no choice in the matter. They came, they picked him up. We have no idea whether he went voluntarily, whether he went grudgingly. What we do know is he had no choice.
Defendant’s counsel went on to state:
We have no idea what went on, because -- I told you -- I promised you at the beginning, the fact that there was no eyewitness, there is no video, there is no photo, will cause problems for the State. We circle back. We are right here. We have no idea what happened. We don’t know what -- is it Ducc who kicked the door down? Is it Deonte? We have no clue. We don’t know who was holding up a .45 caliber weapon. I don’t know who was holding a 9-millimeter weapon. We don’t even know how -- in fact, how many people went inside the residence. . . . Maybe all three of them were there. Maybe you might -- you might reasonably conclude that all three of them were there, but, again, we have no idea -- we really don’t have any idea what happened. Again, we don’t -- we don’t know whether all three of them were there. We don’t know which one was holding which firearm. We don’t know who fired that fatal shot. We have no clue. That’s the State’s burden they did not --they failed to meet.
-8- STATE V. MEADOWS
However, later in his oral arguments, defendant’s counsel admitted defendant was at
the scene of the crime:
What is the point? It shows at least one of the shooters, terrified, don’t know what he’s doing, necessary or unnecessary, just firing, because he was in a state of panic, under high stress. Doesn’t want to be there. Evidence doesn’t show anything about Deonte’s state of mind, but what we do know is he went there under the orders of these higher-ups. I submit to you that it is reasonable to suppose he was only concerned about himself, only concerned about carrying out orders of his higher-ups. He had no intent whatsoever. He was supposed to act the way -- he was trying to act the way he was supposed to under these circumstances.
But we know a little bit more about -- if you are to believe the State’s evidence -- if you were to draw the State’s evidence, it he was, indeed, Deonte; it was indeed Deonte who left one shoe or two shoes on the roadway; we also know a little bit more. He’s terrified. Ms. Morton took pains to explain to you there was only one person in the house, unarmed. They know he was there. But how does, allegedly, Deonte act? Terrified. It’s like Jurassic Park. Dinos are coming. He’s running, shoe falls off. He’s in such a hurry, he doesn’t even have the time to put the shoe back on, if you were to believe that’s what happened, based on the State’s evidence.
After closing arguments, the trial court gave jury instructions which did not
include any acting in concert instruction. The jury deliberated and returned a guilty
verdict on the charge of first-degree murder. Defendant filed oral notice of appeal on
28 March 2023 in open court.
II. Discussion
On appeal, defendant argues: (1) counsel for defendant was per se ineffective
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by conceding guilt without permission and (2) the trial court erred by failing to
intervene ex mero motu in the State’s improper closing arguments. Because we find
a Harbison violation, we need not address the second argument.
A. Harbison violation
Defendant contends that his counsel was per se ineffective by conceding guilt
without first receiving permission from defendant. Specifically, defendant argues
that his counsel impliedly admitted defendant’s guilt when he stated during closing
arguments that defendant went to the home of the victim with Ducc and Chapo on
the night of the incident. Based upon the facts in this case, we agree.
Under the Sixth and Fourteenth Amendments of the United States
Constitution, a “defendant’s right to counsel includes the right to the effective
assistance of counsel.” State v. Braswell, 312 N.C. 553, 561 (1985) (citing McMann v.
Richardson, 397 U.S. 759, 771 (1970)). Generally, in order to establish a claim for
ineffective assistance of counsel, “the defendant must show that counsel’s
performance was deficient” and “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
In some cases, there exist “circumstances that are so likely to prejudice the
accused that the cost of litigating their effect in a particular case is unjustified.” State
v. Harbison, 315 N.C. 175, 179 (1985). One such circumstance is:
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
- 10 - STATE V. MEADOWS
completely swept away. The practical effect is the same as if counsel had entered a plea of guilty without the client’s consent.
Id. at 180. Thus, a “per se in violation of the Sixth Amendment[] 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.” Id.
In State v. McAllister, our Supreme Court held that “[a]lthough an overt
admission of the defendant’s guilt by counsel is the clearest type of Harbison error, it
is not the exclusive manner in which a per se violation of the defendant’s right to
effective assistance of counsel can occur.” 375 N.C. 455, 475 (2020). Rather, “[i]n
cases where . . . defense counsel’s statements to the jury cannot logically be
interpreted as anything other than an implied concession of guilt to a charged offense,
Harbison error exists unless the defendant has previously consented to such a trial
strategy.” Id.
Regarding consent, “an on-the-record exchange between the trial court and the
defendant is the preferred method of determining whether the defendant knowingly
and voluntarily consented to an admission of guilt during closing argument,” but our
Courts have also “declined to define such a colloquy as the sole measurement of
consent.” Id. at 477 (citations and quotation marks omitted). Additionally, “the
absence of any indication in the record of defendant’s consent to his counsel’s
admissions will not—by itself—lead us to ‘presume defendant’s lack of consent.’ ” Id.
(citations omitted). Following a conclusion that a defendant’s trial counsel violated
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Harbison by making an admission of guilt without defendant’s consent, the proper
course is to reverse and remand for a new trial. Id. at 464.
In this case, defendant maintained his innocence throughout trial and during
the only Harbison inquiry at trial, gave his counsel consent to discuss only his
previous conviction of felony fleeing to evade arrest. There is no evidence in the
record to suggest that at any other point before or during trial defendant’s counsel
sought or obtained informed consent from defendant to discuss his presence at the
crime scene or his involvement with the gang the evening of the incident.
Accordingly, the record reflects that defendant gave consent to discuss his previous
conviction, but not his presence at the crime scene, which coupled with the fact that
defendant maintained his innocence throughout trial leads us to the conclusion that
defendant did not knowingly or voluntarily consent to an admission that he was
present at the crime scene during closing argument.
However, there were several instances where both the State and defendant’s
counsel erred in presenting their closing arguments. During the State’s closing
argument, the prosecutor stated:
And as we discussed during jury selection, as His Honor will instruct you with regard to the law on proximate cause, His Honor will tell you that the defendant’s act may not have been the only cause nor the nearest cause. It is sufficient if it occurred with some other cause happening at the same time, which in combination would have caused the victim’s death. Either acting by himself or with others, the defendant is absolutely guilty of murder. (emphasis added)
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However, at the charge conference, the trial judge had specifically decided not to
provide a jury instruction on acting in concert because only defendant was named in
the indictment and there was no other mention of anyone else acting with him or even
being present at the scene of the crime. The rejected instruction specifically read as
“[t]he defendant’s act need not have been the only cause nor the nearest cause. It is
sufficient if it occurred with some other cause acting at the same time, which in
combination with caused the death of the victim.” The trial judge expressed concern
with the instruction opening up a situation that is not in accordance with the
indictment. The State did not bring charges against Ducc or Chapo and defendant
was the only person being charged with first-degree murder out of all the individuals
allegedly present at the scene of the incident. Essentially, the State disregarded the
trial court’s ruling at the charge conference that acting in concert was not an
appropriate method to prove defendant’s guilt. In direct contravention of the court’s
ruling the State argued that because defendant was present at the scene of the crime
with Ducc and Chapo, he could be found guilty of first-degree murder, based upon a
theory of acting in concert.
Defendant’s trial counsel, in addition to failing to object to this improper
argument, made several statements during his closing argument that amounted to
an implied admission of guilt on this theory. First, defendant’s counsel admitted that
defendant went with Ducc and Chapo to defendant’s home when he stated,
We have discovered other things about Deonte. Deonte is a
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soldier. He’s at the bottom of the totem pole. When I say a soldier, Ducc is the top guy. He’s the guy with authority over a lot of people. Chapo is below Ducc, and Deonte is the guy at the bottom, under Chapo. Of course, under Ducc. He’s like a soldier. Higher-ups, sergeants, officers tell a soldier to go and do this and that. That’s a soldier’s job, not to question orders. Go do it. Deonte is the guy at the bottom, like a soldier.
What else have we discovered about Deonte and how it happened, about Deonte? The call came the night of the incident, and the call is like, “Hey, dude, we’ve got a job. Do you want to -- do you want to come join us on the venture?” He was not given an option. The bossman and the sub- bossman show up in a, probably, muscle truck, pick him up. Deonte could not say, “Well, I’m interested,” “I’m not interested.” When the bossman shows up, hey, got to go. You have no choice in the matter. Deonte had no choice in the matter. They came, they picked him up. We have no idea whether he went voluntarily, whether he went grudgingly. What we do know is he had no choice.
Defendant’s counsel clearly stated to the jury that defendant did indeed go with Ducc
and Chapo to the victim’s house, albeit apparently under duress. His counsel further
stated, “[e]vidence doesn’t show anything about Deonte’s state of mind, but what we
do know is he went there under the orders of these higher-ups. I submit to you that
it is reasonable to suppose he was only concerned about himself, only concerned about
carrying out orders of his higher-ups.”
These statements, coupled with the State’s closing arguments that directed the
jury to find guilt if defendant was acting with the other two perpetrators, imply guilt.
Defense counsel’s statements could not be interpreted as anything other than an
implied admission of guilt when the State specifically told the jury that defendant is
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guilty if he was present at the scene of the incident. This is particularly problematic
where there was limited physical evidence tying defendant to the scene.
In State v. McAllister, defense counsel conceded that defendant, who had been
charged with the crime of assault against a female, had gotten physical with the
victim. See id. at 472. Specifically, defense counsel stated, “[y]ou heard him admit
that things got physical. You heard him admit that he did wrong, God knows he did.
They got in some sort of scuffle or a tussle or whatever they want to call it, she got
hurt, he felt bad, and he expressed that to detectives.” Id. at 460. Although defense
counsel later asked the jury to find defendant not guilty for the other three crimes
defendant had been charged with, he never mentioned anything about finding
defendant not guilty for assault against a female. Because defense counsel admitted
that the defendant had gotten physical with the victim, our Supreme Court noted this
statement reminded the jury that defendant admitted that defendant had “did
wrong” to the victim.
The statements made by defendant’s counsel in this case are analogous. Here,
defendant’s counsel admitted that defendant, although he had no choice, followed
orders from other gang members who were in a higher position than defendant and
conceded that defendant went along with them to the victim’s house. Defendant’s
counsel effectively confirmed Ms. Burton’s testimony when she discussed the call
defendant had received from Ducc and Chapo on the night of the incident. This
amounts to an implied admission that although defendant was following orders, he
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was also a participant in the crime in question.
While recognizing the McAllister Court’s admonition “that a finding of
Harbison error based on an implied concession of guilt should be a rare occurrence[,]”
McAllister, 375 N.C. at 376, we believe defendant’s counsel’s statements in this case
present such a rare occurrence. Accordingly, defendant’s counsel committed a per se
Harbison violation in violation of defendant’s Sixth and Fourteenth Amendment right
to effective counsel by making an implied admission of guilt without defendant’s
consent. We arrest judgment and remand for a new trial.
B. Intervention Ex Mero Motu
The remaining issue on appeal is whether the trial court erred in not
intervening ex mero motu during the State’s closing arguments when the State
instructed the jury that they may find guilt from defendant’s mere presence at the
scene of the incident. However, arresting the judgment from the trial court and
ordering a new trial moots the need for us to address that contention.
III. Conclusion
For the foregoing reasons, we vacate judgment and remand this matter to the
trial court for a new trial.
JUDGMENT VACATED; REMANDED FOR NEW TRIAL.
Judge COLLINS concurs.
Judge STADING dissents by separate opinion.
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STADING, Judge, dissenting, writing separately.
I would hold that Defendant’s trial counsel did not render ineffective assistance
of counsel because he did not impliedly admit Defendant’s guilt. However, even if
trial counsel had made such admission, since the cold record is silent as to whether
Defendant knowingly and voluntarily consented to any implied admission of guilt,
Defendant’s appeal should be dismissed without prejudice. See State v. House, 340
N.C. 187, 196, 456 S.E.2d 292, 297 (1995); see also State v. McAllister, 375 N.C. 455,
477, 847 S.E.2d 711, 725 (2020). Additionally, I would hold that the trial court did
not err by declining to intervene ex mero motu during the State’s closing argument.
I. Implied Admission of Guilt
A. Harbison Error
If trial counsel “admits the defendant’s guilt to the jury without the defendant’s
consent[,]” such act amounts to a “per se” violation of the defendant’s Sixth
Amendment right to counsel. State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504,
507–08 (1985). “Although an overt admission of the defendant’s guilt by counsel is
the clearest type of Harbison error, it is not the exclusive manner in which a per se
violation of the defendant’s right to effective assistance of counsel can occur.”
McAllister, 375 N.C. at 475, 847 S.E.2d at 723. A Harbison error could also occur if
“defense counsel’s statements cannot be logically interpreted as anything other than
an implied concession of guilt to a charged offense . . . unless the defendant has
previously consented to such a trial strategy.” Id. The circumstances under which STATE V. MEADOWS
STADING, J., dissenting
our Court determines the existence of “a Harbison error based on an implied
concession of guilt should be a rare occurrence.” Id. at 476, 847 S.E.2d at 724.
Our Supreme Court has stated “that an on-the-record exchange between the
trial court and the defendant is the preferred method of determining whether the
defendant knowingly and voluntarily consented to an admission of guilt during
closing argument”; yet, it has “declined to define such a colloquy as the sole
measurement of consent.” Id. at 477, 847 S.E.2d at 724 (citation omitted). Moreover,
“the absence of any indication in the record of defendant’s consent to his counsel’s
admissions will not—by itself—lead us to ‘presume defendant’s lack of consent.’ ” Id.
at 477, 847 S.E.2d at 725 (citation omitted).
Here, Defendant contends that his trial counsel’s closing argument impliedly
admitted Defendant’s guilt by conceding Defendant was present at the victim’s house
with two others implicated in the crimes. Even so, this admission does not qualify as
admission of guilt. See State v. Wiley, 355 N.C. 592, 620, 565 S.E.2d 22, 42 (2002)
(“Admitting a fact is not equivalent to an admission of guilt.”). With respect to the
offenses Defendant faced at trial, his trial counsel recalled the State’s factual points
for the jury before discounting them. In doing so, trial counsel consistently made
qualifying statements such as “I’m not admitting to anything,” “I’m not saying
anything they said happened,” and “If you were to believe the State’s evidence . . . .”
After recalling these factual points, Defendant’s trial counsel then discussed
the elements required to sustain a conviction as well as the requisite burden of proof:
2 STATE V. MEADOWS
I told you from the beginning, what the State is asking you to do is send the young man over there to prison to spend the rest of his natural life, and the State’s burden, by law, is strict and high. This is one of those they have done nothing to satisfy. We have no idea what went on, because -- I told you -- I promised you at the beginning, the fact that there was no eyewitness, there is no video, there is no photo, will cause problems for the State. We circle back. We are right here. We have no idea what happened. We don’t know what -- is it Ducc who kicked the door down? Is it [Defendant]? We have no clue. We don’t know who was holding up a .45 caliber weapon. I don’t know who was holding a 9-millimeter weapon. We don’t even know how -- in fact, how many people went inside the residence. . . . How did Chapo’s bandanna end up inside the residence? What . . . did Najla Burton really know about what happened? Based on that -- I’m asking you, because nobody knows -- is it reasonable to conclude that -- there are twice as many 9-millimeter shell casings as .45 caliber and Chapo’s bandanna was inside the residence. Maybe all three of them were there. Maybe you might -- you might reasonably conclude that all three of them were there, but, again, we have no idea -- we really don’t have any idea what happened. Again, we don’t -- we don’t know whether all three of them were there. We don’t know which one was holding which firearm. We don’t know who fired that fatal shot. We have no clue. That’s the State’s burden they did not -- they failed to meet. . . . It’s the State’s burden to prove who fired that shot, or to prove that shot caused -- in conjunction with some other shot, caused the death. Nothing of that sort has been brought forth.
A holistic view of trial counsel’s closing shows that he raised the State’s factual
contentions to demonstrate that they failed to prove Defendant’s guilt beyond a
reasonable doubt. See State v. Goss, 361 N.C. 610, 626, 651 S.E.2d 867, 877 (2007)
(citation omitted) (“Statements or remarks in closing argument ‘must be viewed in
context and in light of the overall factual circumstances to which they refer.’ ”); see
3 STATE V. MEADOWS
also State v. Jackson, 292 N.C. App. 616, 626, 899 S.E.2d 34, 42 (2024) (“[I]n viewing
the entirety of defense counsel’s statements in context, we hold those statements
cannot logically be interpreted as an implied concession of Defendant’s guilt.”).
Defense counsel’s statements do not amount to an implied admission of guilt.
Furthermore, coupling the State’s closing argument with Defendant’s trial counsel’s
argument to reach a determination of ineffective assistance stretches beyond the four
corners of Harbison, 315 N.C. 175, 337 S.E.2d 504, and McAllister, 375 N.C. 455, 477,
847 S.E.2d 711. The trial court cautioned the jury that it “will instruct on the law in
this case,” and, indeed the trial court declined to instruct the jury on acting in concert.
I lament that the majority’s result expands the current boundaries of precedent.
B. Defendant’s Consent
Even assuming trial counsel’s statements violated Harbison, the cold record
does not reveal whether Defendant knowingly and voluntarily consented to these
admissions. As in State v. House, we “will not presume from a silent record that
defense counsel argued defendant’s guilt without defendant’s consent.” 340 N.C. at
196, 456 S.E.2d at 297. Rather, “[i]n this situation the appropriate remedy, if any, is
for a defendant to file, either before or after direct appeal, a motion for appropriate
relief in the superior court based upon ineffective assistance of counsel.” Id. at 196–
97, 456 S.E.2d at 297.
Such result is consistent with the ruling in State v. McAllister. 375 N.C. 455,
847 S.E.2d 711. In McAllister, our Supreme Court determined that “defense counsel’s
4 STATE V. MEADOWS
statements . . . amounted to an implied admission of defendant’s guilt of the crime of
assault on a female.” Id. at 473, 847 S.E.2d at 722. Since the cold record was silent,
the Court remanded the matter “for an evidentiary hearing to be held as soon as
practicable for the sole purpose of determining whether defendant knowingly
consented in advance to his attorney’s admission of guilt to the assault on a female
charge.” Id. at 477, 847 S.E.2d at 725. Accordingly, even if defense counsel’s
concession could be construed as an implied admission of guilt, the appropriate
remedy in this scenario is to dismiss Defendant’s appeal without prejudice so that he
may file a motion for appropriate relief with the Superior Court.
II. The State’s Closing Argument
Trial courts have a duty, “upon objection, to censor remarks not warranted by
either the evidence or the law, or remarks calculated to mislead or prejudice the jury.
If the impropriety is gross it is proper for the court even in the absence of objection to
correct the abuse ex mero motu.” State v. Sanderson, 336 N.C. 1, 15, 442 S.E.2d 33,
42 (1994) (citations and quotation marks omitted). “To establish such an abuse, [the]
defendant must show that the prosecutor’s comments so infected the trial with
unfairness that they rendered the conviction fundamentally unfair.” State v. Ward,
354 N.C. 231, 250, 555 S.E.2d 251, 264 (2001) (citation and quotation marks omitted).
“[T]he comments must be viewed in the context in which they were made and in light
of the overall factual circumstances to which they referred.” State v. Call, 349 N.C.
382, 420, 508 S.E.2d 496, 519 (1998).
5 STATE V. MEADOWS
Defendant maintains his trial was fundamentally unfair and the trial court
should have intervened, without prompting, as the State “injected its own acting-in-
concert instructions and stamped [the trial court’s] imprimatur upon it”:
The question you-all have to ask yourselves during deliberations is how do you know that the defendant was the one that committed murder. First, we told you during jury selection that you will hear evidence that the defendant was not the only person responsible for the murder of the victim, but he is the only person on trial in front of all of you. For you to fulfill your duty, you have to decide this defendant’s guilt. You’ve all promised that you would not consider or be distracted by the fact that others were involved, because it is your duty to determine this defendant’s guilt. And as we discussed during jury selection, as His Honor will instruct you with regard to the law on proximate cause, His honor will tell you that the defendant’s act may not have been the only cause nor the nearest cause. It is sufficient if it occurred with some other cause happening at the same time, which in combination would have caused the victim’s death. Either acting by himself or with others, the defendant is absolutely guilty of murder. .... Now when you consider the evidence, the State doesn’t have to prove that the defendant actually fired the shot that actually killed the victim. If he committed one act that contributed to the victim’s death, he is just as guilty as everybody else. .... But he doesn’t have to actually cause the fatal shot. If he did something, acting himself or help with others, to cause the proximate death of the victim, he is guilty of first- degree murder.
This argument did not amount to gross impropriety. See State v. Frye, 341
N.C. 470, 491, 461 S.E.2d 664, 674 (1995) (The prosecutor’s arguments summarizing
6 STATE V. MEADOWS
aggravating and mitigating circumstances “were not grossly improper and did not
require the trial court to intervene ex mero motu” since they “were substantially
correct, even if slightly slanted toward the State’s perspective.”) Moreover, this
claimed error of law “whispered into the ear of the jury” by the prosecution, was cured
by the trial court’s correct jury instructions. See State v. Barden, 356 N.C. 316, 366,
572 S.E.2d 108, 140 (2002) (“The statements made by the prosecutor, while not
technically correct, were not so misleading that the trial court erred by failing to
intervene ex mero motu. Most important, any misstatements of law by the prosecutor
were cured by proper instructions given by the trial court when it charged the jury.”).
The issue of proximate cause, as correctly instructed to the jury by the trial court,
cured any alleged defect within the State’s closing argument. Therefore, the trial
court did not abuse its discretion by failing to intervene ex mero motu.