State v. Parker

Opinions

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-90

Filed 3 October 2023

Gates County, No. 18CRS50300

STATE OF NORTH CAROLINA

v.

TERRELL JERMAINE PARKER, Defendant.

Appeal by defendant from judgment entered 21 July 2022 by Judge Wayland

J. Sermons Jr. in Gates County Superior Court. Heard in the Court of Appeals 22

August 2023.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Robert C. Montgomery for the State.

Sarah Holladay, for defendant-appellant.

FLOOD, Judge.

Terrell Jermaine Parker (“Defendant”) appeals his conviction for first-degree

murder arguing (1) he received ineffective assistance of counsel, (2) the trial court

erred in its jury instructions, and (3) the trial court erred by failing to intervene ex

mero motu in the State’s closing argument. For the reasons discussed below, we

disagree.

I. Facts and Procedural Background

At first, the night of 21 December 2018 was as most nights were for

Defendant—uneventful. After getting off work, he met his friend Marcus Walton

Opinion of the Court

(“Walton”) at Defendant’s cousin’s house where together they drank bourbon, played

Spades, and talked about the possibility of going to see a street race later that

evening. Around 9:00 p.m., Walton received a call from Dominique Hathaway

(“Hathaway”) who informed Defendant and Walton that their barber was going on

break until after Christmas, so if they wanted to get their hair cut, they would have

to go that evening. Upon hearing this news, Walton and Defendant finished their

drinks and headed over to get their hair cut by their barber at his in-home

barbershop. Upon arrival, Defendant crossed paths with Isaac Jermaine Hawk

(“Hawk”), who was on his way out of the barbershop. Defendant and Hawk had a

contentious relationship, dating back to when they were teenagers; so, when Hawk

appeared friendly towards Defendant, it took Defendant by surprise. Defendant

asked Hawk if the two could speak outside, and Hawk agreed. The two spoke about

comments Hawk had allegedly made about the baby Defendant and his girlfriend

recently had together—implying Hawk, not Defendant, was the father. Hawk denied

making the comments, and the conversation ended in a handshake.

After leaving, Hawk went to the home of Rashawn Goodman (“Goodman”),

where a few other people including Aaron Eason (“Eason”) had gathered. While

there, Hawk told Eason about the conversation he had just had with Defendant,

calling it “an argument.” After about an hour or two, Eason and Hawk left Goodman’s

home in separate cars, both driving to Hawk’s residence. While on the way to Hawk’s

residence, Eason began receiving several phone calls from blocked numbers. After

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five or so calls, Eason answered the phone and recognized the voice of the caller to be

Hathaway, who asked to speak with Hawk. Eason explained he was not with Hawk,

and the conversation ended.

Upon arrival at Hawk’s residence, Eason received another call, this time from

Defendant. Eason passed the phone to Hawk, who spoke with Defendant for

approximately two minutes. After the conversation ended, Hawk changed out of flip

flops and into tennis shoes then reported that Defendant was on his way over.

A few minutes later, a car driven by Hathaway pulled into Hawk’s driveway,

and Defendant emerged from the back-passenger seat. Defendant walked up the

driveway towards Hawk, and the two began arguing face-to-face with each other. As

the two argued, they began walking back down the driveway, towards Hathaway’s

car, with Defendant walking backwards. After about three to five minutes of arguing,

a fist-fight broke out between Defendant and Hawk in which both men landed a few

blows. Due to it being dark outside, witnesses could not tell who swung the first

punch.

After a few minutes of fighting, Defendant continued walking backwards away

from Hawk, while Hawk, with his hands up, continued to walk towards Defendant.

At that point, Defendant pulled out a gun and began shooting Hawk. Hawk was shot

five times and died in his driveway. Before first responders arrived, Defendant,

Hathaway, and Walton fled the scene.

A short distance from Hawk’s residence, Hathaway wrecked his car. At this

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point, Defendant got out, threw his gun in the woods, and started walking through

the night towards Virginia.

Meanwhile, responding to the emergency call, Deputy David Adkins (“Deputy

Adkins”) began traveling towards Hawk’s residence. On his way, he noticed

Hathaway and Walton standing on the side of the road after having wrecked their

vehicle. After checking in at the scene of the shooting at Hawk’s residence, Deputy

Adkins doubled back to check on Hathaway and Walton, each of whom was observed

to be uninjured and unharmed.

Approximately four hours after the shooting, a law enforcement officer found

Defendant walking on the side of the road and detained him. A search of Defendant

revealed no weapon, and while he did smell of alcohol, Defendant showed no signs of

impairment and only some minor scratches on his palms.

II. Jurisdiction

Appeal to this Court lies of right from the final judgment of a superior court.

N.C. Gen. Stat. § 7A-27(b) (2021).

III. Analysis

Defendant raises several issues on appeal, all of which arise from the

proceedings of his trial, which took place between 18 and 21 July 2022. Defendant

contends that, during his trial, he received ineffective assistance of counsel, and the

trial court erred in both its jury instructions and by failing to intervene ex mero motu

during the State’s closing arguments.

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A. Ineffective Assistance of Counsel

To begin, Defendant asserts he received ineffective assistance of counsel

(“IAC”) when his attorney (1) conceded Defendant’s guilt prior to obtaining

Defendant’s consent, and (2) undermined Defendant’s testimony during closing

arguments. Upon review, we hold these arguments lack merit and accordingly,

conclude there was no IAC.

Whether a defendant received IAC at trial is a question of law reviewable de

novo. State v. Wilson, 236 N.C. App. 472, 475, 762 S.E.2d 894, 896 (2014). “Under a

de novo review, [this] [C]ourt considers the matter anew and freely substitutes its

own judgment for that of the lower tribunal.” State v. Biber, 365 N.C. 162, 168, 712

S.E.2d 874, 878 (2011) (citation omitted).

To prevail on his IAC claim, Defendant must first “show that counsel’s

performance was deficient[,]” which requires a showing that counsel “made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064, 80 L. Ed. 2d 674, 688 (1984). Next, Defendant must show “that the deficient

performance prejudiced the defense[,]” which requires a showing that “counsel’s

errors were so serious as to deprive the defendant of a fair trial whose result is

reliable.” Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 688.

1. Conceding Guilt Without Prior Informed Consent

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In his first IAC claim, Defendant contends he is entitled to a new trial because

his counsel “conceded his guilt without first obtaining his express, informed consent.”

It is per se prejudicial error for counsel to concede a defendant’s guilt without

obtaining prior consent. State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507

(1985). In addition to an explicit admission of guilt, an “implied admission of guilt

can, in fact, constitute a Harbison error.” State v. McAllister, 375 N.C. 455, 475, 847

S.E.2d 711, 723 (2020). Counsel may, however, without consent, remind the jury it

could find the defendant guilty of a lesser-included offense, if any, if it does not find

defendant guilty of the charged offense. State v. Campbell, 359 N.C. 644, 696, 617

S.E.2d 1, 33 (2005).

Here, Defendant claims his counsel violated Harbison when he conceded or

implied Defendant’s guilt during closing arguments without Defendant’s consent.

In Harbison, the defendant was convicted of second-degree murder and assault with

a deadly weapon following a closing argument from his counsel in which counsel

stated, “I have my opinion as to what happened on that April night, and I don’t feel

that [defendant] should be found innocent.” Harbison, 315 N.C. at 177-78, 337 S.E.2d

at 506. The Harbison court held defense counsel’s closing argument was per se

prejudicial error because, “[w]hen 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.” Id. at 180, 337 S.E.2d at 507.

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Here, Defendant draws this Court’s attention to certain statements made by

defense counsel to bolster his argument that defense counsel conceded guilt without

Defendant’s prior consent. Defendant’s counsel’s statements read, in relevant part:

Now was his use of force excessive? That is a jury question. I will come back to that in a minute. If you find that to be excessive, that is manslaughter. That’s voluntary manslaughter. If you find the use of force to be excessive, that is voluntary manslaughter. ....

Was the use of force excessive under the circumstances? Consider all things that were happening, consider he is going 116 feet backwards. You decide whether the use of force is excessive. But if it was excessive, that is voluntary manslaughter. That is not first degree murder. That is not second degree murder. That is voluntary manslaughter.

A de novo review of the Record, however, reveals Defendant’s counsel neither

stated nor implied Defendant’s guilt. These statements made by Defendant’s counsel

are more akin to the statements made by defense counsel in Campbell, where counsel

for the defendant pointed out to the jury that the element of specific intent was the

only difference between first and second-degree murder; thus, without specific intent,

the most serious crime the defendant could be convicted of was second-degree murder.

See Campbell, 359 N.C. at 696, 617 S.E.2d at 33. Our Supreme Court held counsel’s

statements to the jury regarding specific intent did not constitute IAC.

Here, Defendant was charged with first-degree murder, and the transcript

reveals his counsel advocating for the jury to find Defendant either not guilty, or

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guilty of voluntary manslaughter. Under Campbell, those statements did not render

his assistance ineffective. Further, because our review of the Record reveals that

Defendant’s counsel neither stated nor implied Defendant’s guilt, the inquiry under

Harbison of whether or not Defendant’s consent was obtained is rendered moot. See

Harbison, 315 N.C. at 180, 337 S.E.2d at 507. Finally, nothing in our review of the

Record indicates Defendant’s counsel was deficient such that he was deprived a fair

trial. See Strickland, 466 U.S. at 687, 104 S. Ct. 2064, 80 L. Ed. 2d at 688. For those

reasons, we hold there was no IAC pertaining to Defendant’s first claim.

2. Undermining Defendant’s Testimony in Closing Arguments

In his second IAC claim, Defendant argues his counsel rendered “ineffective

assistance by directly undermining [Defendant’s] testimony in closing argument.”

To prevail on an IAC claim for statements made during closing arguments, a

defendant has the burden of showing their counsel’s statements were incoherent and

failed to negate the elements of the crime for which they were charged. State v.

Moore, 286 N.C. App. 341, 351, 880 S.E.2d 710, 717 (2022). When closing arguments

fail to provide any positive advocacy, however, then counsel can be considered

ineffective. State v. Davidson, 77 N.C. App. 540, 545-46, 335 S.E.2d 518, 521–22

(1985).

Here, Defendant specifically contends he received IAC when, during closing

arguments, his counsel directly contradicted Defendant’s own testimony. The

statements made by defense counsel, however, do not rise to the level of being

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“incoherent” or lacking of any “positive advocacy.” See Moore, 286 N.C. App. at 351,

880 S.E.2d at 717; see also Davidson, 77 N.C. App. at 545-46, 335 S.E.2d at 521–22.

For example, Defendant points to the fact that, in his own testimony, he claims to

have fallen asleep in Hathaway’s car, then woke up to realize he was at Hawk’s house;

whereas, in closing arguments, defense counsel stated Defendant intentionally went

to Hawk’s house that evening.

He went over to the house. He shouldn’t have gone to the house. That was stupid. He went over to the house but he didn’t go to kill nobody, he went over there to talk to him. Boys done pumped him up talking junk. He went there to finish the conversation. He ain’t go over there to fight. That man ain’t no fighter. Somebody done choked you out. He ain’t over there to fight that man. He went over to talk, to finish the conversation.

Things turned sour and this is where we are. There is no premeditation, there is no deliberations. There is no cool state of mind. You have two grown men fighting over a female and they are intoxicated. I can’t say it enough.

Here, defense counsel’s statement is far from incoherent or lacking positive

advocacy. While it is true the statements seem to contradict Defendant’s testimony

that he had “dozed off” in the car and then woke up to find himself at Hawk’s house,

nothing else in the Record corroborates Defendant’s statement. Additionally, in

closing arguments, defense counsel actively worked to negate the elements of first-

degree murder by stating:

Now if it was premeditation and deliberation [Defendant] would have pulled the gun out and shot [Hawk] right then when he got out of the car.

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Let me ask you this, why would a man that wants to kill somebody talk to him? ... So they talk, they have a conversation. And it gets heated. Five to eight minutes. Now why didn’t [Defendant] shoot [Hawk]? Then Hawk, who doesn’t take no junk, don’t take no mess, putting his shoes on, ready to fight, he starts punching on [Defendant] right here. He starts punching on him. [Defendant] is over there to talk. [Defendant] told you. Ladies and gentlemen, if [Defendant] was over there to shoot that man, he would have shot him. There is no way in the world we could get around the fact this man retreated all the way to the end of that driveway and didn’t even pull that trigger. You know he was asking for help. You know he was asking for help. There is no way in the world.

The statements made by defense counsel hardly rise to the level of being

incoherent or ineffective. See Moore, 286 N.C. App. at 351, 880 S.E.2d at 717.

Throughout his closing argument, defense counsel made several attempts to impress

upon the jury that Defendant lacked the requisite intent to be found guilty of first-

degree murder. Moreover, while it is true that counsel’s account of how Defendant

wound up at Hawk’s house on the evening of 21 December differs from Defendant’s

own testimony, counsel’s statements were not so serious as to deprive Defendant of a

fair trial. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 688.

For those reasons, we hold there was no IAC pertaining to Defendant’s second claim.

B. Jury Instructions

Next, Defendant argues the trial court erred in failing to instruct the jury on

stand your ground laws and by instructing the jury on the aggressor doctrine.

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Decisions regarding the trial court’s jury instructions are reviewed by this

Court de novo. State v. Jenkins, 202 N.C. App. 291, 296, 688 S.E.2d 101, 105 (2010).

When objections are made to the trial court’s jury instruction, this Court reviews to

determine whether an error was committed and whether a different result would

have been reached but-for that error. N.C. Gen. Stat. § 15A-1443(a) (2021). Where

counsel fails to object, however, this Court reviews for plain error. N.C. R. App. P.

10(a)(4). A plain error is one that is so grave, it results in a “miscarriage of justice or

in the denial to appellant of a fair trial[.]” State v. Odom, 307 N.C. 655, 660, 300

S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th

Cir. 1982)).

Defendant contends the trial court made two errors—the first in failing to

instruct the jury on stand your ground rights under N.C. Gen. Stat. § 14.51-3 (2021),

and the second when it instructed the jury on the aggressor doctrine. Counsel for

Defendant did not object to either of the jury instructions, so we review for plain error.

See N.C. R. App. P. 10(a)(4).

As stated above, a plain error constitutes a “miscarriage of justice” or denial of

a fair trial. See Odom, 307 N.C. at 660, 300 S.E.2d at 378. Our de novo review of the

Record reveals enough facts that jury instructions regarding the aggressor doctrine

were warranted, and instructions on stand your ground laws were not. For example,

the testimony indicating Defendant may have initiated the fight during a phone call

with Hawk, prior to arriving at Hawk’s residence, supports the trial court’s decision

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to instruct the jury on the aggressor doctrine. Further, instruction on stand your

ground laws is only applicable in spaces where a person has lawful right to be; here,

the only evidence supporting Defendant’s contention that he had a lawful right to be

at Hawk’s residence was nebulous testimony about a street race potentially

happening nearby. See N.C. Gen. Stat. § 14.51-3 (“A person is justified in the use of

deadly force and does not have a duty to retreat in any place he or she has the lawful

right to be if . . . he or she reasonably believes that such force is necessary to prevent

imminent death or great bodily harm[.]”).

Given those facts, this Court does not conclude that the instructions given to,

or omitted from the jury, constitute a miscarriage of justice. See Odom, 307 N.C. at

660, 300 S.E.2d at 378. For that reason, we conclude there was no plain error in the

trial court’s jury instructions.

C. Ex Mero Motu Intervention

Finally, Defendant asserts the trial court erred when it failed to intervene ex

mero motu in the State’s closing argument.

“When [a] defendant fails to object to an argument, this Court must determine

if the argument ‘was so grossly improper that the trial court erred in failing to

intervene ex mero motu.’” State v. Walters, 357 N.C. 68, 101, 588 S.E.2d 344, 364

(2003) (quoting State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002)).

During closing arguments, counsel has “the right to inform the jury of the

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punishment prescribed by law[.]” State v. Walters, 294 N.C. 311, 314, 240 S.E.2d 628,

630 (1978).

Defendant takes specific issue with the following statements made by the State

during its closing argument:

Did [Defendant] tell you the minimum punishment for second degree murder is 144 months? Did [Defendant] tell you the minimum punishment for voluntary manslaughter is 38 months? Less time than it took this case to come to trial is the minimum. Who doesn’t think this case is serious? Who doesn’t think this case is serious? Its just trying to invoke some sympathy or some pity for [Defendant], that’s all it is about. That’s why they just tell you the max. They don’t tell you the minimum.

Defendant argues “[i]t was plainly and grossly improper for the [State] to argue

that the jury should not convict [him] of voluntary manslaughter because the

sentence he might receive would not be sufficiently severe.” While suggesting that

the minimum sentence would not be severe enough punishment might run afoul of

the unspoken rules of courtroom etiquette, it is not, in fact, against the law. Walters

tells us that counselors have the right to inform the jury of the punishments

prescribed, and here, counsel for both Defendant and the State made clear what the

minimum and maximum sentences could be. See Walters, 294 N.C. at 314, 240 S.E.2d

at 630. For that reason, we conclude the trial court did not err when it failed to

intervene during the State’s closing argument.

IV. Conclusion

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After careful review, we conclude Defendant did not receive ineffective

assistance of counsel and accordingly, we dismiss both of Defendant’s ineffective

assistance of counsel claims. Further, we conclude the trial court neither erred nor

plainly erred by deciding to instruct the jury on the aggressor doctrine but not stand

your ground laws. Finally, we hold the trial court did not err when it neglected to

intervene in the State’s closing argument.

NO ERROR.

Chief Judge STROUD and Judge STADING concur.

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