An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-416 NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County Nos. 12 CRS 54391, 54395 TORRENCE WESLEY PEOPLES
Appeal by Defendant from judgment entered 5 December 2013
by Judge W. Robert Bell in Mecklenburg County Superior Court.
Heard in the Court of Appeals 8 September 2014.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.
Richard Croutharmel for Defendant.
BELL, Judge.
Defendant appeals from a judgment sentencing him to 103 to
136 months imprisonment for selling marijuana and obtaining
habitual felon status. On appeal, Defendant contends that he
was provided constitutionally ineffective assistance of counsel -2-
when his trial counsel admitted his guilt before the jury in his
opening statement without his consent after he had withdrawn his
defense of entrapment. Defendant further alleges that his trial
counsel’s performance was deficient and prejudiced the outcome
of his trial under traditional ineffective assistance of counsel
standards. After careful consideration of the parties’
arguments in light of the record and the applicable law, we
conclude that Defendant is not entitled to relief under either
theory.
I. Factual Background
A. Substantive Facts
On 20 September 2012, the Charlotte Mecklenburg Police
Department sanctioned a buy/bust operation in which police
officers would attempt to purchase drugs from street-level drug
dealers. On this particular night, officers selected a location
in Northwest Charlotte because of the high rate of violent
crimes, prostitution, and drug-related crimes which occurred
there. Officer Alex Saine arrived on the scene in an undercover
vehicle at around 9:25 p.m. Upon arriving, Officer Saine
observed Defendant standing with a group of three or four males
in a parking lot. Officer Saine made eye contact with Defendant
and gave Defendant a nod. Defendant approached the driver’s
side of Officer Saine’s vehicle after first returning the nod. -3-
Defendant asked Officer Saine what the officer desired from
him and Officer Saine told Defendant that he wanted some
“green,” which is a common term for marijuana. Officer Saine
did not recall Defendant inquiring whether or not he was a
police officer but Officer Saine testified that had Defendant
made such an inquiry, he would have told Defendant that he was
not an officer. After Officer Saine stated that he wanted $20
worth of “green,” Defendant stated that he did not have anything
on him and had Officer Saine drive him to his house. Upon
arriving, Officer Saine gave Defendant a marked $20 bill.
Defendant then went inside his home and returned with four bags
of marijuana, which he gave to Officer Saine. Defendant was
arrested after being driven back to the parking lot at which
contact was initially made.
When Defendant was arrested, he confirmed his address to
arresting officers and agreed to let them search his residence.
Officers found more bags of marijuana and a digital scale in a
location in Defendant’s room exactly where he informed them that
these items would be.
B. Procedural History
Defendant was indicted on 10 December 2012 for engaging in
the sale of a controlled substance, delivery of a controlled
substance, possession of a controlled substance with the intent -4-
to sell or deliver, possession of drug paraphernalia, and
obtaining habitual felon status. The charges against Defendant
came on for trial during the 4 December 2013 Criminal Session of
the Mecklenburg County Superior Court. The jury returned guilty
verdicts against Defendant on the charges of selling a
controlled substance, delivery of a controlled substance, and
having obtained habitual felon status. Judgment against
Defendant for delivering a controlled substance was arrested at
sentencing. The trial court entered judgment against Defendant
on 5 December 2013 for the sale of a controlled substance and
obtaining habitual felon status, sentencing him to a term of 103
to 136 months imprisonment. Defendant noted an appeal to this
Court from the trial court’s judgment.
II. Legal Analysis
Defendant raises two separate ineffective assistance of
counsel arguments on appeal. First, Defendant contends that he
received per se ineffective assistance of counsel on the basis
that his trial attorney admitted during his opening statement
that Defendant delivered marijuana to the undercover officer.
According to Defendant, although he initially gave his counsel
explicit consent on the record before the trial judge to admit
his guilt, such consent was “necessarily withdrawn” when he
finally understood that an entrapment defense would be -5-
unavailable. The entirety of Defendant’s argument rests on the
theory that the declaration by his trial attorney that Defendant
understood the futility of the defense evidenced a clear intent
to abandon any entrapment-based defense, which constituted an
implicit withdrawal of his consent previously given to his
attorney to admit the criminal acts before the jury in opening
statements.
Defendant also contends that, should this Court not find
ineffective assistance of counsel per se based upon his
counsel’s admission of his guilt during his opening statement,
this Court should still conclude that Defendant received
ineffective assistance of counsel because there was no
justifiable reason for his admission of his client’s guilt
during his opening statement in light of the fact that defense
counsel neither elicited nor presented any evidence tending to
suggest that Defendant was entrapped and made no similar
argument during closing arguments. In essence, Defendant argues
that his counsel acted in a constitutionally deficient manner
when he admitted Defendant’s guilt without pursing the
entrapment defense and this action prejudiced his case at trial.
We, however, do not agree with Defendant’s contentions.
A. Harbison Violation
1. Facts Surrounding Defendant’s Consent -6-
Prior to trial, Defendant was offered a plea agreement but
rejected the agreement in favor of going to trial. Defense
counsel informed the court that Defendant wished to assert an
entrapment defense stemming from the fact that Defendant had
asked Officer Saine if he was a law enforcement officer on three
occasions prior to making the drug deal and Officer Saine
responded untruthfully. In doing so, Defendant consented to
having his counsel admit during his opening statement that
Defendant committed the crimes charged. Defense counsel
informed the court that he had attempted to explain to Defendant
that an entrapment defense would not be available under those
facts and that he did not file a notice to the State that the
defense would be pursuing entrapment as an affirmative defense
for that reason.
Defendant then stated upon inquiry by the trial court that
he would allow his attorney to admit that he had sold drugs to a
law enforcement officer because Officer Saine had denied that he
was a law enforcement officer when Defendant questioned him.
Defendant claimed that his knowledge came from reading “the law
book.” However, the trial court informed Defendant that a lie
told by Officer Saine would not constitute a legal defense to
the crimes charged and it would not instruct the jury on an -7-
entrapment defense based on the facts alleged. After a bench
conference, counsel for Defendant stated:
Your Honor, we are at an impasse. [Defendant] now realize[s] that the defense is not a viable defense but at the same time doesn’t want to plea as charged. He wants to take the plea and I said, “No, the old plea is not available.”
The trial court made no further inquiry into the matter and,
instead, brought in the jury. During his opening statement,
defense counsel stated the following:
Well, this is a very weird case where the defense counsel really agree with the prosecutor’s narration of the facts, but in this case we don’t agree too much on what happened. The greatest agreement we have with the prosecutor’s case is that my client, when the officer approached him, he asked the officer several times are you [a] police officer. The officer said no, so my client felt he was misled when he provided the marijuana in question.
During the course of trial, the State elicited testimony
regarding the training that law enforcement officers receive
about telling suspects during undercover work that they are not
law enforcement officers. Defense counsel failed to question
Officer Saine with respect to whether or not he ever lied to
Defendant regarding his employment with the Charlotte
Mecklenburg County Police Department.
2. Harbison Analysis -8-
Generally, “[t]o prevail on a claim of ineffective
assistance of counsel, a defendant must first show that his
counsel’s performance was deficient and then that counsel’s
deficient performance prejudiced his defense.” State v. Allen,
360 N.C. 297, 316, 626 S.E.2d 271, 286, cert. denied, 549 U.S.
867, 127 S. Ct. 164, 166 L. Ed. 2d 116 (2006). However, our
Supreme Court has concluded “that ineffective assistance of
counsel, 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.” State v. Harbison, 315 N.C. 175, 180, 337
S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 106 S.
Ct. 1992, 90 L. Ed. 2d 672 (1986). Cases such as Harbison
“clearly indicate that the trial court must be satisfied that,
prior to any admissions of guilt at trial by a defendant's
counsel, the defendant must have given knowing and informed
consent, and the defendant must be aware of the potential
consequences of his decision.” State v. Maready, 205 N.C. App.
1, 7, 695 S.E.2d 771, 776, disc. review denied, 364 N.C. 329,
701 S.E.2d 247 (2010). Therefore, “[i]n order to ensure that a
defendant has consented to his counsel’s concessions of guilt, a
trial court must make an inquiry ‘adequate to establish that
defendant consented to the admissions made later by counsel -9-
during trial.’” State v. Johnson, 161 N.C. App. 68, 76, 587
S.E.2d 445, 451 (2003) (quoting State v. Berry, 356 N.C. 490,
514, 573 S.E.2d 132, 148 (2002)).
There is no allegation made in this case, nor is there
evidence in the record, to show that the trial court did not
engage in an adequate inquiry with Defendant regarding the
extent to which he consented to allow his trial counsel to admit
his guilt during opening statements. The record indicates that
Defendant understood his counsel’s statements would constitute
an admission of his guilt with respect to the crimes with which
he was charged and clearly indicated that the statements were to
be made by his trial counsel with his permission. Despite
Defendant’s clear, unambiguous consent, Defendant argues that
vague statements by his attorney on the record concerning
Defendant’s understanding of the futility of asserting an
entrapment defense were sufficient to constitute a withdrawal of
his consent. We disagree.
A careful reading of the record does not demonstrate any
withdrawal of consent by Defendant. Even on appeal, Defendant
does not argue that he told his trial counsel to refrain from
making an admission of guilt. The key to a Harbison issue is
whether guilt was admitted to the “jury without the defendant’s
consent.” Harbison, 315 N.C. at 180, 337 S.E.2d at 508. -10-
Defendant clearly consented to his counsel admitting his guilt.
Defendant never subsequently explicitly withdrew his consent.
To counter these facts, Defendant requests that this Court
extend the rule expressed in Harbison to situations in which a
Defendant has implicitly withdrawn his consent. However, our
Supreme Court, in State v. Berry, held that absent notice that a
defendant’s consent to the making of certain admissions is
contingent upon presenting a particular defense and a subsequent
withdrawal of that defense, a trial court does not act
improperly in assuming that the prior consent is still valid.
The defendant in Berry was indicted for first degree murder
and subsequently filed a notice of his intent to pursue a
defense of insanity. 356 N.C. at 494, 497, 573 S.E.2d at 137,
139. The defendant argued that the trial court erred when it
failed to determine that the defendant had withdrawn his consent
to allowing his attorneys to make certain concessions after
abandoning his insanity defense. Id. at 511, 573 S.E.2d at 147.
The defendant in that case informed the trial court that he was
aware of the trial strategy and had consented to the strategy.
Id. at 512-13, 573 S.E.2d at 147. After an opening statement in
which defense counsel made certain concessions to the jury and
after evidence had been presented by the State, the defense
became aware of exculpatory evidence. Id. at 513, 573 S.E.2d at -11-
147. In seeking a mistrial, the defendant’s attorneys argued
that they were not sure that they would have pursued an insanity
defense had they known of the exculpatory evidence. Id. Still,
after the motion for a mistrial was denied, counsel argued
during closing argument that the State had proven a case of
attempted first degree murder. Id. at 514, 573 S.E.2d at 148.
The Court found the defendant’s consent to have remained valid
on the basis that the defendant “did not expressly or impliedly
condition his consent to acknowledge aspects of guilt upon
presentation of an insanity defense” and “never formally
withdrew his insanity plea,” thereby failing to give “the trial
court notice of the change of strategy.” Id. at 514-15, 573
S.E.2d at 148.
As was the case with the defendant in Berry, Defendant
gave no indication to the trial court that his consent was
contingent upon the pursuit of an entrapment defense. Defendant
argues that the contingency of his consent to his making such an
admission was implicit in light of the fact that admitting any
guilt on his part served no functional purpose apart from a
trial strategy of pursuing an entrapment defense. However, this
argument was rejected in Berry, in which the Court found no
implied contingency in the defendant's consent. Had Defendant
stated that his consent to admitting his guilt was contingent -12-
upon an entrapment defense being pursued, this Court might have
been persuaded that an abandonment of his entrapment defense
amounted to a withdrawal of his consent.
Even if this Court were to find that Defendant’s consent to
admit his criminality was dependent upon a pursuit of his
entrapment defense, we find, as the Court did in Berry, that
Defendant failed to formally notify the court of his decision to
adopt a new defense strategy sufficiently to put the trial court
on notice that he was no longer pursuing an entrapment defense.
The statement relied upon by Defendant as evidencing the
withdrawal of his entrapment defense was his trial counsel's
comment that Defendant had come to a realization that an
entrapment defense was not viable. However, that statement
falls short of being a clear statement to the trial court that
Defendant was abandoning his prior defense strategy. Defendant,
on multiple occasions was told by the trial court that
entrapment was not a viable defense and that it would not
instruct the jury concerning entrapment based on the facts as
alleged. Defendant still sought to pursue the defense. Beyond
Defendant’s apparent stubbornness with respect to pursing a
futile defense, had the evidence during trial varied in
substance from that initially forecast by Defendant, an
entrapment defense could have been warranted. The lack of -13-
clarity in Defendant’s purported withdrawal was made apparent by
the direct examination of Officer Saine. The prosecutor
specifically asked Officer Saine questions regarding whether or
not he had lied to Defendant about the fact that he was a law
enforcement officer, the strategy behind the telling of such
lies and the propriety of his statement. We are unable, like
the State below, to determine that Defendant had clearly
withdrawn his entrapment defense.
Defendant would have this Court conclude from a vague
statement by his counsel that he had withdrawn his entrapment
defense and infer from that conclusion that he had withdrawn his
consent to a concession of guilt. This we cannot do. Had
Defendant clearly made his consent to a concession of guilt
contingent upon presenting his entrapment defense and then
clearly withdrawn the defense, we might have been persuaded to
hold in Defendant’s favor.
We do take the time to note that the better practice for
trial courts facing ambiguous statements regarding departure
from or abandonment of a particular defense strategy is to
question the defendant on the record in order to ascertain,
clearly, whether or not a particular defense strategy has been
abandoned and whether or not the consent to an admission of
guilt previously given has been withdrawn. It is for cases such -14-
as this that our Courts have always “urged ‘both the bar and the
trial bench to be diligent in making a full record of a
defendant’s consent when a Harbison issue arises at trial.’”
Id. at 514, 573 S.E.2d at 148.
B. Strickland Analysis
Defendant finally argues, under the Strickland standard of
ineffective assistance of counsel, that even if he did not
receive per se ineffective assistance of counsel, his conviction
should be overturned because there was no possible trial
strategy that could have warranted his trial counsel’s decision
to admit his guilt before the jury while failing to present any
evidence that would tend to show that Defendant was entrapped.
We disagree.
In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (1984), the Supreme Court held:
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. -15-
With respect to pursuing a trial strategy based upon entrapment,
this Court has held that “[a] defendant . . . must admit to
having committed the acts underlying the offense with which he
is charged in order to receive an entrapment instruction.”
State v. Sanders, 95 N.C. App. 56, 61, 381 S.E.2d 827, 830
(1989). Therefore, it stands to reason that if Defendant was
pursuing an entrapment-based defense, his trial counsel would
make a concession of guilt before the jury. Defendant contends
that this concession by his trial counsel without further
pursuit of the defense, either through cross-examination of the
State’s witnesses or presentation of evidence, is
constitutionally deficient performance and therefore meets the
first prong of the Strickland test.
However, this Court need not reach the issue of whether
trial counsel’s performance was constitutionally deficient.
State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985)
(holding that the reviewing “court need not determine whether
counsel’s performance was actually deficient” if it “can
determine at the outset that there is no reasonable probability
that in the absence of counsel’s alleged errors the result of
the proceeding would have been different”). In order for
Defendant to be entitled to a new trial, Defendant must also
meet the second prong under Strickland, “that counsel’s -16-
deficient performance prejudiced his defense.” Allen, 360 N.C.
at 316, 626 S.E.2d at 286. Defendant is not entitled to any
appellate relief unless this Court concludes that there was “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d
698. This, we cannot do.
Despite Defendant’s contention, we do not find the fact
that the jury returned guilty verdicts against Defendant only on
the charges that were conceded during opening statements
persuasive to show that these consessions prejudiced Defendant.
Officer Saine testified that Defendant approached him in a
parking lot to inquire what he wanted, that Officer Saine
requested marijuana, that Defendant offered to drive Officer
Saine to his residence in order to satisfy his request for
marijuana, that Officer Saine took Defendant to his residence
and gave Defendant a marked $20 bill, that Defendant entered his
residence while Officer Saine waited outside, that Defendant
returned to Officer Saine’s vehicle with four bags of marijuana
and handed them to Officer Saine, that the money exchanged had
been verified through matching serial numbers, and that multiple
other bags of marijuana were found in Defendant’s home in a
location described by Defendant when he consented to law -17-
enforcement officers conducting a search of his residence.
Defendant presented no testimony to the contrary and cross-
examination established no inconsistencies in the witnesses’
testimony. In light of this evidence, we are unable to conclude
that there is any reasonable probability that the outcome at
Defendant’s trial would have been any more favorable to
Defendant than was actually the case had Defendant’s trial
counsel refrained from making the challenged comments.
Therefore, Defendant is not entitled to a new trial.
III. Conclusion
For the reasons set forth above, we conclude that any
admission made by Defendant’s trial counsel did not result in
per se ineffective assistance of counsel. Furthermore, we
conclude that, in light of the weight of the evidence against
him, Defendant was not prejudiced by his trial counsel’s
performance. Therefore, the trial court’s judgment should, and
hereby does, remain undisturbed.
NO ERROR.
Judges ERVIN and MCCULLOUGH concur.
Report per Rule 30(e).