# Appendix — North Carolina v. Harbison

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1453%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 1123

## Text

85-1337 a om =>

Supreme Court, U.S.

IN THE FEB 8 1986
Supreme Court of the United Strtegevo

A-58

How many years?
Since September °48, I believe.

You've practiced law some thirty-eight (38) years
approximately?

Since — continuously since that time.

Have you ever in your lifetime been disbarred?
[53]

No, sir.

Have you ever in your lifetime been suspended by the

North Carolina Bar or any Bar Association in

America?

No, sir.

Have you ever in your lifetime ever been publicly

reprimanded by the North Carolina Bar or any other

Bar Association in this World?

No, sir.

Have you ever in your life ever even received a private

censure from the North Carolina Bar or any other Bar

Association?

No, sir.

Have you ever been held in contempt of court?

No, sir.

Are you a trial lawyer?

A-S59

Yes, sir.

Approximately how many murder cases have you
defended in your thirty-eight (38) years of practice,
Mr. McMurray?

it’s difficult to say. Last night I thought about that. |
could sit here and tell you fifteen (15) to twenty (20)
that | can remember..

First degrees?

[54]
Most of the time they’re charged with first degree. |
can remember the case, generally the judge. I can

remember the facts in all of them. I know the result in
all of them.

Now, it gets more difficult those that just don’t
come to your mind. So, it’s hard for me to give a
precise number.

And I believe that your counsel that’s asking questions
of you have had — been on opposite sides of several
very serious homicide cases, have we not?

Well, we’ve been on the same side and on the opposite
side.

Did you appear as counsel in the case of State of
North Carolina versus Clay Cooper?

Yes, sir.
Did | likewise appear with you, sir?

Yes, sir.

A-60

Q. Did you appear as counsel with Mr. Bruce
Vanderbloemen in the case State of North Carolina
versus Woods?

A. Yes. Brian Eugene Woods, yes, sir.

Q. Approximately when were you appointed as counsel
for State versus Harbison by the court in Burke

[SS]

County in relation to when the events occurred?

A. I think the—lI think the homicide occurred about
midnight, I believe, on April 25th, 1976, if I have the
date correct. He was taken into custody that night
and it was probably the next morning, and was lodged
in the jail in Caldwell County. And he was in jail in
Caldwell County over the weekend.

My best recollection is that | was appointed when
he came back to Burke County, probably the early
part of that week which would have been the 27th of
Aprii, probably.

Q. Did you have bail set for your client after you were
appointed, or was he released on bail, regardless of
who set it?

A. Icannot recall how bail was set, but it was set, because
I took him home, as I recall, about midnight when
bond was made for him.

Was that shortly after you were appointed?

Yes, sir.

Q. Did you go to the scene of this homicide?

)

A-61

Yes, sir. | went to the scene. | can recall having — I
knew generally where it was, but I found it. I had
talked to Detective James Pruitt,

[56]

who was the principal investigating officer. At the
time I went to the scene the glass was still on the road.
The area that had been disturbed along the shoulder
where the car was resting when the officers found it
was available.

So, I did make a survey of that scene. I went to the
home that’s closest to this occurrence. I| talked to a
Mrs. Buff, whom I had known. She knew nothing
about it, except she heard the shots. That was the
extent of my on-scene investigation.

MR. BYRD: If it please the Court and counsel, the
Clerk apparently inadvertently did not present the
total record of the proceeding. It was called to my
attention. And this ought to be part of the marking,
whatever that number is.

CHAIRMAN McMILLAN: The Court record is
marked As Court’s Exhibit 3 consisting of two folders,
76-CR-3682.

MR. BYRD: And we would ask you inquire of the
Clerk if this is part of the —

CHAIRMAN McMILLAN: (Interposing) You're
now handing me a folder entitled “Exhibits, August —
August 30, 1976,” two case file numbers listed, one of
which was the one read, 76-CR-3682. The other

[57]

is 76-CR-3865 which is the other folder, State versus
William Harbison, Jr. Also are what appears to be the
court reporter’s notes.

A-62

MR. JOINES: That's right.

CHAIRMAN McMILLAN: All right, sir. We will
include those in the file.

MR. BYRD: Thank you.

(Mr. Byrd) I hand you a folder which is part of the
official record of State versus Harbison and Court
Ex—part of Court Exhibit Number 3, Mr. Mc
Murray, and ask you if those pictures and all those
exhibits in there were introduced in the trial of State
versus Harbison?

(Counsel hands documents to witness who peruses
same.)

Yes, sir. The photographs —I don’t need to give the
number —that are in this manila envelope were
introduced by the State as exhibits.

The diagrams made by Detective James Pruitt,
which are marked State’s Exhibits 22 and 19, were
introduced by the State, and two other documents |
think that have no particular bearing.

CHAIRMAN McMILLAN: Do you offer those?

MR. BYRD: Yes, sir. Well, they're already offered.
I believe the —the Bar counselor, |

[58]

believe, offered them. I just want to be sure that the
Commission saw them.

CHAIRMAN McMILLAN: All right.

These envelopes are the plastic envelopes that the
various bullets and such as that were originally in at
the time received in court.

A-63

- Did you appear at the preliminary hearing for Mr.
Harbison?

Yes, sir.

Did you interview Mr. Harbison at length prior to the
preliminary hearing and subsequent thereto?

Yes, sir.

Did Mr. Harbison write out for you on a yellow pad
what he had to say about this incident?

Yes, sir, at my request. I told him to write in detail
what had occurred, and he did that and delivered it to
me.

i hand you a yellow pad and ask you if that is a yellow
pad?

Yes, sir.

Review it and ask you if that is the signed statement
by your client, William Harbison, Jr., that he wrote
out and gave to you that you just referred to?

[59]
Yes, sir.

MR. BYRD: Id like to have that marked for —
number — Defendant McMurray’s number four.

(DEFENDANT'S EXHIBIT A,
McMURRAY HEARING,
MARKED FOR IDENTIFICATION.)

(Mr. Byrd) Will you read the first sentence, and these
pages are not numbered, about page eight if we count
front and back. Some are written on the front and
back, are they not?

Yes.
Read that.

“I came on down the road because | thought she was
just clowning around but all of a sudden she hit her
brakes and I had to jam on mine to keep from running
into her and she pulled off and I lost control of my car
but managed to hold on to it.”

Shall I proceed?

No, sir.
MR. BYRD: We now offer this exhibit in its
entirety into evidence.
[60]

CHAIRMAN McMILLAN: Any objection, Mr.
Lunsford?

MR. LUNSFORD: Yes. This exhibit was not
listed on the pretrial order and | haven’t seen it.

MR. BYRD: You may see it, sir.

MR. LUNSFORD: And it appears to be a lengthy
document.

CHAIRMAN McMILLAN: While you're — go
ahead and examine it. While you’re doing that, what
did you tell me these were, Exhibit 17A?

MR. BYRD: I didn’t tell you anything, sir. Mr.
McMurray —

THE WITNESS: (Interposing) Those were the
exhibits that had the bullets and various other things
that related to the—from hands —results from a
paraffin test, | believe, and such as that. And when
they were found in the Sheriff's office, the bullets were
not in there. That’s the form in which they were
found.

CHAIRMAN McMILLAN: All right. But they’re
now blank — or empty.

THE WITNESS: They’re empty.
CHAIRMAN McMILLAN: Empty. All right. 1
[61]
just wanted the record to show that they were turned
over to us empty.
THE WITNESS: That’s correct.
(Mr. Lunsford reviews Defendant’s Exhibit 4.)
MR. LUNSFORD: All right. Thank you.
MR. BYRD: We offer this into evidence.

CHAIRMAN McMILLAN: Any objection, Mr.
Lunsford?

MR. LUNSFORD: We think it’s irrelevant.

CHAIRMAN McMILLAN: All right. It’s ad-
mitted.

(Mr. Byrd) Mr. McMurray, would you just tell us
rather succintly the matters that you did do after you
were employed in preparing to defendant Mr.
Harbison on first degree murder and assault with a
deadly weapon, inflicting serious injury with intent to
kill which were consolidated for trial, just the —
succinctly tell us what you did as a lawyer?

A.

I interviewed the officers; there were several officers
involved. Basically James Pruitt was the detective. |
obtained —I asked —I interviewed Mr. Harbison,
and | talked with his family. I asked him to write this
statement to give me while things were fresh in his
mind, all

[62]

the details that he could remember at that particular
time. I went to the scene. That’s basically what I did
insofar as talking to witnesses. After Mr. Fuller got in
it, we met on one occasion at the Holiday Inn.

He was very interested in the tire. We discussed
that. He was also interested in whether or not in
following a car on this road one could ascertain
whether or not the car was occupied either by one or
two occupants.

And, so, we got out on the country road with
someone driving a car ahead of us and he and I were
in the car behind; and we were travelling the road ai
the speed we thought that they would by travelling, at
the distance that we ascertained they were following to
determine if he could have determined whether or not
there was a driver or a driver and an occupant.

We had interviewed a good many witnesses. I had
obtained a list of about twelve (12) potential witnesses
that knew him. He had worked at one of the State
units, the prison department. I think I had gotten his
work record and what his reputz:ion was.

[63]

I talked at length with his father and his mother.
They were very concerned about his involvement. And
Jim Fuller and I talked by telephone and corre-
sponded prior to trial.

And I think —I think Mr. Fuller is correct that he

A-67

was there on Sunday before the trial, and we worked
on it constantly from that date until the trial time.

Did you do some research?

Yes, sir. We basically studied the law of self-defense
and laws that applied to a homicide occurring in the
heat of anger, the heat of passion. What effect a
homicide as a result of panic would be. And the
genera! law of homicide.

And you were reasonably familiar with those laws
already, were you not, sir?

Well, I don’t know that studying that 1 really
ascertained anything I had not been exposed to. And
to this day —I don’t know anything to this day about
this case that I did not know in April of 1976.

Nothing knew developed —

(Interposing) They’ve surprised me with some of the
things they’ve said. I didn’t know what —some

[64]

of the comments that have been made in this
grievance. | —those things have surprised me..

Did you at your client’s suggestion ask Judge Friday
to permit you to withdraw?

I received the information that Jim Fuller had been
employed by the family. I cannot say whether or not
that was a tentative employment or not. I made a note
in my record that there had been a statement made to
me that he was going to be employed and that I would
be requested to withdraw; and | told him I’d be very
glad to withdraw and would have been.

A-68

Is that your usual practice when a private lawyer is
employed and you’re court appointed to —

(Interposing) This is the only time that I’ve ever been
required to stay in a case after private counsel — that |
can recall, after private counsel has been employed.

Judge Friday declined to allow me to withdraw, and
that settled it.

Did that declination by Judge Friday have any effect
whatsoever upon your dedication to your client in
defense of his case?

No, sir
[65]

In the trial of this cause, did you represent Mr.
Harbison to the best of your legal ability?

Yes, sir. And I was very —I was satisfied with what
we had done in retrospect; as I look back today I do
not know —and so many cases you try and you realize
you’ve made a mistake, you’ve left out something or
that you should have proceeded in a different fashion.

Today I cannot write a scenario or a record and say
that I should have done this or should have declined
to do this, because the verdict was as much as any
reasonable attorney could expect. Because we were
down to rock bottom; we were down to where you
were dealing with reality and you have to — when you
get in the trial of a case like this, there comes a time
when you’ve got to make a tough decision, to leave the
dream world about what you may hope may occur.

And after eight years I cannot come up with a
different position —and if I have an opportunity I can
explain my position —that I should have taken a

A-69

different position in this case if 1 was going to seek
what | thought—what I considered in my best
judgment was the best for William Harbison.

[66]

I can’t say that about every case, because there are
cases when | get through with them things have gone
quite to the contrary to what I thought they would go.
I realize I’ve made mistakes —and I’m not saying we
didn’t make mistakes in this case — but the result —
the development of this case was as good as any
reasonable attorney can do.

Now, whether you pick out the finest attorney in
America and say he could have cleared William
Harbison, that’s —that’s a dream world; that’s
fantasy; that’s hope. And we are dealing with reality.

Was he being tried under the felony murder rule as
well as premeditation and deliberation?

Mr. Greene had indicated to us that he would try this
case on the basis of premeditation, first degree, based
on malice, second degree or manslaughter. I had been
involved in a case with Judge Friday; I knew he
would — in all probability —submit the felony mur-
der.

We had a conference at the bench and he — we dis-
cussed the fact that the State and I had understood
that we would not proceed on felony

[67]

murder. Judge Friday said that was his decision, as it
was. He then told us that he would submit the felony
murder as the first issue and would charge the jury
that they must consider this issue first.

If they answered that first issue “yes”, that would
complete the homicide trial.

That would be first degree murder?

That would have been first degree murder.

And then did he tell you the second issue he was going
to submit would be first degree murder on
premeditation and deliberation?

Yes, sir. And they’re on second sheets. He gave the
jury the sheets. Felony murder and then premeditated
murder and then down the line second degree
manslaughter, involuntary manslaughter or not
guilty.

After Judge Friday would not admit the tire, did you
have any evidence other than the —whatever the
defendant Harbison testified himself or self-defense?

May I answer that not directly? I'll come to a direct
answer. The tire was basically Mr. Fuller’s idea. That,
in my recollection, is the only

[68]

injection —the only different method of proceeding
that was involved in this case when he got in the case. |
do not place as much importance on the tire as he
seemed to by his testimony yesterday.

The physical evidence in this case —and you can’t
get away from it —according to Mr. Harbison’s own
testimony was that after a pursuit of some five (5)
miles — and even in his testimony at rather high rates
of speed, because he said rocks were being thrown
against his car and such as that, stopped his car on this
remote rural road twenty-five (25) to thirty (30) feet in
front of Danna Franklin’s car.

The glass shows that she was on the right-hand side
of the road at that time. These pictures show that

Sane nee ee

A-71

when the car accelerated it stopped some twenty-five
(25) feet distant from where she originally had been
stopped by him completely off the road.

That’s as far as it ever travelled, according to the
State’s evidence?

And the pictures show that. And the glass shows it.
The location of the car shows it. The pictures show

[69]

where the highway sign was on the Jamestown Road
to show that — you fix the location of it. And there is
no way physically that you could have told a jury that
she was going down the center of the road to try to run
over somebody. And that’s — you've got to consider
the fact that she had testified, emotionally. We had to
stop the trial two times..

Was her eye shot out?

And she was sitting there with an opaque eye. They
had put a glass eye in that was a temporary eye that
was Opaque, white. Seated there and said to him, in
effect is how she testified, you didn’t give us a chance.
We were trying to get around you and you shot us
point-blank, and the car was stopped some twenty-
five (25) feet from where the glass was.

And there’s no way, not physically, unless he
positioned himself in front of the car. He got out on
the left-handed side of the car and walked back, and
she had driven the car trying to go around him. The
physical evidence showed it. These diagrams show it.
The pictures show it.

You just couldn’t convince a reasonable jury

A-72

[70]

or any jury that she tried to run over him on that
particular occasion.

So, I don’t lay a great deal of stress on the tire. It
would make no difference to the jury whether the tire
is in evidence or not. It didn’t get in. But when the tire
didn’t get in, the only evidence we had of self-defense
was that he said she tried to run over him.

He wasn’t struck. At most that was a nonfelonious
assault. You can’t — you can’t stretch it any farther
than that. You can’t — you can’t get to any conclusion
but what he was the aggressor. And by driving and
stopping her on a remote country road at twelve
o'clock at night, getting out of a car with a gun either
in his belt or in his hand —she said in his hand; he
said in his belt —she would have had the right to
exercise whatever force was necessary to protect her
life, even running over him.

But she didn’t do that. She went to the side. He was
the aggressor. You can’t get away from the fact that
he used excessive force. And here in this courtroom
today you can’t understand it, but when the Solicitor
is talking about firing

[71]

three shots —not one —one, two, three at point-
blank range in the backs of two people as he did. One
shot in Morris Hardy’s back right in the middle and
came out right at his breast bone. She was hit in the
back. Unarmed. He was in no danger — never said he
was in any danger.

The car was going by him when he shot. He shoots
in a side window three times, kills a man, puts the
girl’s eye out and flees the scene.

And this man dies there in front seat with this little

eee Se ee

A-73

girl with her eye so damaged that she’s in shock. And
then come and say that you could manufacture self-
defense out of that and get up and enthusiastically
argue to a jury to turn him loose. There isn’t any jury
that would have said we're going to set him free and let
him walk the streets again.

And Mr. Fuller talks about possibilities. There is —
sometimes when you’ve got some emotion on your
side that the jury might take the facts and come down
to a lesser degree or acquit somebody because of a
peculiar reason. The flow was the other way on this
occasion because you still had a living participant in
that tragedy.

[72]

With that girl sitting there telling his story with her
injury apparent, telling how she tried to flee him afier
he’d followed her for five miles, saying that he needed
a gun to go back when he thought that just this little girl
weighing a hundred pounds was in the car and he
needed a gun in his hand or in his belt to go back to
protect himself, to expect a reasonabie jury to think
that he needed that for his self-protection is beyond
credulity. You're in the — you're in the wishful stage;
you're in the dream world.

And that didn’t occur on this occasional because the
hard reality was that he left a man to die there on that
remote country road with a girl in shock and fled the
scene.

And did the Solicitor tell you that he was going to try
him for first degree murder?

Mr. Greene never made us any offer. He wouldn’t
make us an offer. He just would not talk about any
lesser plea, never did.

Q.

To Ff. 2: 2

A-74

All right, sir. Now, when Mr. Fuller argued to the
jury, were you there?

Yes, sir.

Had Mr. Larry Jacobs, who is now deceased, opened
[73]

as a Pros — one of the Prosecutors?

He did.
Do you have?

(Interposing) I’ve got my notes over there in my
thing.

I'm handing you a bunch of legal pads and many,
many pages, and ask you if those were your notes that
you kept during the trial of State versus Harbison —

(Interposing) These are some of the notes.
—or at least a part of them?
Yes, sir.

Does a section of them have the jury argument?

Yes, sir.

MR BYRD: Id like to have marked as D-5, am I
correct —five yellow sheets. And would Your Honor
permit me to tear them away from the other portions
of the notes?

MS. BRYANT: Are you admitting the whole thing
or —

MR. BYRD: (Interposing) No.

A-85

Did he ever speak to you at all about your jury
argument, Mr. Harbison?

No, sir.

Has he to this hour ever spoken to you?
(Interposing) Not directly.

The first time you ever heard of this was in copy of an
interrogatory in the spring of ’84 in the post-convic-
tion hearing?

| think that’s correct, yes.

Mr. Fuller sent you a copy of his response, is that
correct?

Yes.

During seven and a half or eight years, did anybody
ever say anything to you about your jury argument in
the defense of William Harbison, jr.?

His mother wrote me a letter thanking me. I’ve got
that note

MR. BYRD: Mark this, Madam Reporter —
Madam Clerk.

(DEFENDANT'S EXHIBITS 5, 6 AND 7,
McMURRAY HEARING,
MARKED FOR IDENTIFICATION.)

[87]

(Mr. Byrd) I hand you an exhibit marked Defen-

e>°e > © >

dant’s Exhibit Number 6 and ask you if it’s addressed
to John McMurray, Attorney, Ervin Building,
Morganton, North Carolina? (Counsel hands exhibit
to witness who peruses same.)

Yes.

Does it have a postmark, by chance, on it?

Glen Alpine.

Does it have a date, something °77?

December 9, 1977.

Was that after the Opinion of the Supreme Court had
come down and Mr. Harbison shortly prior to that
time had been brought to the Superior Court to have

his life sentence imposed?

I’m sure that is, but I don’t remember the precise time
of the —.

(Interposing) It will speak in the record, won't it?
Yes.

Will you read that to the panel?
MR. LUNSFORD: Objection. That’s hearsay.
CHAIRMAN McMILLAN: Overruled. Go ahead.

[88]

(Reading Defendant’s Exhibit 6) “Dear Mr. Mc
Murray Thank you for trying to help William Jr. the
pressure have been great but being colored the cards
are stack against us before Court even starts Thank

wae te AP had Noa as

A-87

you so much” It’s signed here Margaret Harbison;
then over on the right it says “to someone specially
thoughtful YOU! Margaret & William Harbison”

MR. LUNSFORD: Motion to strike.
CHAIRMAN McMILLAN: Denied.

(Mr. Byrd) I hand you Defendant’s Exhibit Number 7
and ask you if you responded on November the
10th — or error — December the 10th, ’77 and, if so,
will you please read that to the panel?

(Counsel hands Exhibit 7 to witness who peruses
same.)

Yes, sir. I haven’t seen this letter for eight years. It’s
the first time I’ve seen it.

You turned your file over to me when you hired me,
did you not?

Yes, sir, without reading it.

This is dated December 10th, 1977. “Mr. and Mrs.
William Harbison, P.O. Box 724, Glen Alpine, North
Carolina 28628 Dear Mr. and Mrs. Harbison: I ever
much appreciate your note received this date. The
Opinion has been filed in the office of the

[89]

Clerk of Superior Court however I have not received
it in the advance sheets. I have read the Opinion.

“If you should want to read this Opinion if you will
let me know | will make you a copy of it when
received.

“I feel like we did about all that could be done in this
case and I felt that the reduction from first degree to
the second degree and from the 20 year to the 10 year

A-88

assault was satisfactory as far as we were concerned.
Our problem was the severity of the sentence and
North Carolina follows this rule that this is not
reversible error as long as this is within allowable
limits.

“I do believe and hope that the fact that William
was convicted of second degree rather than first
degree will be of substantial benefit to him with
reference to the time he will be required to serve and
other prison rights and benefits.

“Yours very truly, John H. McMurray.”

MR. BYRD: We offer that into evidence.
CHAIRMAN McMILLAN: It’s admitted.

MR. LUNSFORD: What number was that?
MR. BYRD: Seven. You may examine him.
MR. LUNSFORD: May I have a moment, please,

sir
[90]
CROSS

CHAIRMAN McMILLAN: Five-Minute recess.

(SHORT BREAK: 11:20 — 11:32.)

CHAIRMAN McMILLAN: All right. We're back
in session. Cross—examination.

rT 7 Ff

A-89

CROSS-EXAMINATION BY MR. LUNSFORD:

Mr. McMurray, prior to making your closing
argument, you did not discuss what you were going to
argue with Mr. Harbison, did you?

No, sir. I discussed it with Mr. Fuller.

You did not discuss it with Mr. Harbison?

No, sir.

And he did not authorize you to suggest to the jury

that he should be convicted of manslaughter, did he?
MR. BYRD: Object to the form of the question.

MR. LUNSFORD: This is cross-examination.
CHAIRMAN McMILLAN: Well, ovecruled.

He did not suggest to me anything. We discussed
various defenses. Had we been relying on self—defense
alone, we would have plead not guilty by reason of
self-defense. We surely had no intent at

[91]

any time to abandon the possibility of manslaughter
based on killing in the heat of passion.

Those — those defenses were discussed. We would
have been very foolish to have said —under this
evidence — that we'll rely only on that very narrow,
vague, faint, ephemeral possibility of self-defense.

Let me ask you one more time, Mr. Harbison. Did he
ever authorize you to suggest to the jury he should be
convicted —

CHAIRMAN McMILLAN: (Interposing) It’s Mr.
McMurray.

o> © >

A-90

MR. LUNSFORD: Excuse me?
CHAIRMAN McMILLAN: Mr. McMurray.

(Mr. Lunsford) Mr. McMurray. | beg your pardon.
Did Mr. Harbison authorize you to suggest to the
jury that the jury should convict him of manslaughter?

MR. BYRD: Objection.
CHAIRMAN McMILLAN: Overruled.

(Mr. Lunsford) Your answer is?
No, sir.
Do you recall receiving the letter of notice from the

Grievance —from the Chairman of the Grievance
Committee which has been identified and introduced

[92]

into evidence as the Plaintiffs Exhibit Number 1, do
you not?

Yes, sir.

And attached to that was an item identified as the
Substance of Grievance in which the allegation of Mr.
Harbison were summarized?

Yes, sir.

And you admit receiving that?

Yes, sir.

And as was your duty under the rules of the State Bar,

you responded to that letter of notice and the
allegations contained in the Substance, did you not?

I did.

o> © >

A-91

And your response was contained in a letter to Rivers
D. Johnson, Chairman of the Grievance Committee,
dated September Ist, 1984, was it not?

If the date’s correct I responded.

MR. BYRD: Let him see it if you don’t mind.
MR. LUNSFORD: Yes, sir. I'll be happy to.
(Counsel hands exhibit to witness who peruses same.)
(Mr. Lunsford) this was the Plaintiffs Exhibit

Number 2. That letter, Plaintiff's Exhibit Number 2,
was your response to the Letter of Notice, was

[93]

it not?
Yes.

And on page five of that letter you signed the letter?

Yes, sir.

And under the rules of the State Bar, it was your
obligation to make a full and fair disclosure of the
facts and circumstances pertaining to those allega-
tions was it not?

Yes, sir.
MR. BYRD: Objected to.

(Mr. Lunsford) Did you understand — excuse me.
MR. BYRD: That’s a matter of law.

CHAIRMAN McMILLAN: Read the question
back. I’m sorry.

a + .s

A-92

(QUESTION READ: PAGE 93, LINES 7-10.)

CHAIRMAN McMILLAN: I don’t understand the
question, so I’ll sustained the objection.

MR. LUNSFORD: That’s probably poorly phrased.
My appologies.

(Mr. Lunsford) In responding to the Letter of Notice
[94]

Mr. McMurray, did you attempt to candidly and
truthfully explain what had happened in this
connection, your actions?

Yes. In a limited fashion, | —to the questions asked,
yes.

Let me direct your attention to page four of your
letter, to the second full paragraph beneath your
sub — subparagraph four (4), “Statements to the
jury.” Would you please read that to yourself.

I’ve read it.

Have you had that opportunity?

(Nods head affirmatively.).

Now, Mr. McMurray, let me also direct your
attention to the first full paragraph on that page — I’m
sorry — would you please read that?

(Reading document) “On the homicide charge | stated

to the jury that on this evidence ! was of the opinion
defendant would be convicted fo some criminal

offense, but he should be found guilty only of
manslaughter.”

MR. BYRD: We object for the reason before that
we objected that nobody should be able to reconstruct
the jury arguments except Judge Friday.

CHAIRMAN McMILLAN: All right. Overruled.
[95]

(Mr. Lunsford) And reading down further on that
page, isn’t it a fact that you made the following
statement in your letter: “I knew some of the jurors
and believed that they would take a realistic view of
this case and as a consequence | determined that it was
necessary to try to persuade the jury to pass the felony
murder issue and then not convict the defendant of
either first or second degree murder but rather that the
fair vercict would be manslaughter.”

Was that your statement in this letter to the
Grievance Committee, sir?
Yes.

MR. LUNSOFRD: We have no further questions.

REDIRECT

REDIRECT EXAMINATION BY MR. BYRD:

Now, wouid you explain the two paragraphs of your
letter that you sent back to the Bar? And I’ll ask you
before you explain if you had reviewed your file or
your jury notes at the time you responded?

I did not review the file on response. I was naive, |
suppose, in thinking that there was a focus

[96]

on me that — moving toward censure. I wrote that,
sir, to the best of my recollection.

I had not thought at the time that I would be
required to make exact quotes. To this day | cannot,
word for word, state what I said. I can’t honestly say
whether I said — whether the word opinion has some
bearing or not in the final outcome in this case;
whether I said you may convict him, you will convict
him, I am of the opinion you'll convict him, the — |
never said as he suggested that he should get time.
That was not the thrust of my argument.

I was trying to honestly indicate to the Bar that |
had taken the position that we did not have a
self-defense plea and that the only way we would
by-pass felony murder was to get the jury to consider
the degrees of murder.

And that I — and I did make a statement; but to say
that I can quote that verbatim today is beyond my
ability. 1 remember a lot of things as this matter has
come up and | —if this transcript of my argument to
the jury is ever found, I| feel sure that a statement with
that import is in it.

Whether I ever alluded to it at another time,
[97]
I don’t know.

I’m sure there were some —there may have been
later on in the argument that — my notes say that first
degree would be a harsh unjust verdict, and I may
have alluded at that time that they should not find him
guilty of more than manslaughter.

And in your inquiry from the Bar, this was the fourth
or fifth inquiry; there’s numerous inquiries about not

3 ke an

> © > ©

A-95

going to the scene and not protecting the tire and
many things; this is just a portion of a long letter that
the plaintiff's counsel asked you about, isn’t it?

Yes. 1—1I didn’t —again, I didn’t think, you know,
that — think that one element was more serious than
the other. The fact that I hadn’t gone to the scene, Mr.
Fuller makes that statement; that statement is not
correct. I don’t know how or why he made the
statement. It just is not correct.

I never told him that. Apparently, he relies on
Harbison for that purpose.

Because you do know you went, don’t you?

Well, I went, and I remember going; and I would not
[98]

have told him I did not go.

After you employed our law firm on or about the 28th

of December, 1984, did you and your counsel make a

diligent search for the jury transcription of the
argument — the transcription of the jury arguments?

I have. I’ve been through all the exhibits in the Burke
County Courthouse which were in a manila folder
with the name of the defendant on them..

Did you: go through them with the court officials?
I went with the assistant clerk.

Were they locked up in a room somewhere?

They were — yes. They were in a safe type room to

which the clerk has a key. We also went to a storage
room upstairs on the main—on the—where the

A-96

courtrooms are and searched there in some boxes that
were there.

We went to the Sheriff's office and found — found
the Sheriffs file of this case, but did not find any
notes.

Did you find notes of the trial? I hand you a part of
the Court Exhibit, the number | do not remember.

MS. BRYANT: Court Number 3.
[99]
CHAIRMAN McMILLAN: Court three.

(Mr. Byrd) Court three. —and ask you if you found
those in the records —

(Interposing) I did not—TI did not personally find
these, no.

You did not find those? All right?
Those were —those were found by someone else.

All right, sir. I hand you Defendant’s Exhibit Number
2, which was a letter from the Court Reporter Clara T.
Cline dated January 6, 1977 and ask you to read that.
That was identified by Mr. Fuller.

(Counsel hands exhibit to witness who peruses same.)

This is addressed to me dated January 6, 1977.
(Reading document) “Mr. John McMurray, Attorney
At Law, Morganton, North Carolina Re: State
versus William Harbison, Jr. Transcript Dear Mr.
McMurray:

“Enclosed is the first section (237) pages of the
transcript of the trial of State versus William
Harbison, Jr.

A-97

“Please accept my apology for the delay in getting
this to you. Since I began typing on the transcript,
several things have come up to prevent me from being
able to work on the transcript

[100]
as I hoped I would be able to.

“The remainder of the transcript, in my estimation,
will be approximately 350 pages, and | cannot say at
this time when it will be completed; however, | shall
work on it as much as I possibly can. For the next
several weeks | will be in Court, so therefore, my
typing time will be limited.

“By a copy of this letter to Mr. Fuller, I would like to
inquire of you and him as to whether or not | should
type the arguments of the attorneys to the jury. Unless
i hear from either of you, I will not type the
arguments, since it is customary—since it isn’t
customary to type the argument unless requested to
do so.

“If either of you have any questions regarding the
transcript, please do not hesitate to get in touch with
me.

“With kind regards, Sincerely yours, Clara T. Cline,
signed ‘Clara Cline’, “with a carbon copy to Mr.
James Fuller.

Did you request that the jury arguments be typed?

No, sir.

Did Mr. Fuller ever suggest to you that the jury
arguments be typed?

A-98

[101]

No, sir. He never suggested that and never suggested
anything about the jury argument. I|—I never can
recall any critical comment about the jury. I was as
close to them as 1 am to you. I never observed — and
as you’re arguing you see what’s going on —I never
observed any colloquy between him — I’m not saying
it didn’t go on. But the idea of calling me a son of a
bitch and thinking that that’s the last time — that
nobody would comment about that for eight years is
hard for me to understand, particularly when him
mother and father were very cordial to me.

And the courtroom was filled with his friends,
because I can remember very distinctly the reaction
when the verdict came out —.

(Interposing) You put about twenty some of them on
the stand, hadn’t you, a great number of them, hadn’t
you?

There were — I don’t know the number, but we put a
lot of witnesses on the stand as indicated in the record,
and none of his friends or relatives ever made a critical
comment. The—absent critical comments, I had
talked to his parents. In this —

[102]

in making up the appeal I corresponded with Mr.
Fuller numerous times. Our relationship was very
cordial. If James Harbison at that time was displeased
with this verdict, it’s beyond my credulity that they
would never have commented to me.

I can’t believe that my attitude to this court is so
radically different from Mr. Fuller that I would have
the feeling that we had done as much as lawyers could
do in—in representing him, as contrasted with his

A-99

idea that he is displeased; unless he’s seeking a
miracle. We were as successful in defending him as
attorneys of our capabilities generally are.

Let me ask you this. Did you or did you not, based
upon your jury notes and your best memory, say to
the jury in the trial of the Harbison case, quote,
“ladies and gentlemen of the jury, | know some of you
and have had dealing with some of you. I know you
want to leave here with a clear conscience. | have my
opinion as to what happened on that April night, and
I don’t feel that William should be found innocent. |
think he should

[103]

do some time to think about what he has done. | think
you should find him guilty of manslaughter, not first
degree,” end quote.

Did you, sir, say that or not?

I did not say that. When I argued this case, Judge
Friday was as close to me as Mr. McMillan is.

And do you talk in a loud voice usually?

Well, the jury is seated like that first row there and I —
in a case like this | don’t whisper to them. For that
reason I get back to about where the — this is — and
I’m backed up to where the Judge is. So, the Judge
could have reached out and touched me

Now, if you know Judge Friday, he’s not going to
let something go on in his courtroom that may imperil
a lengthy difficult trial such as this is.

Had he already stopped somebody from saying the
word “liar”?

A.

Q.

I was not the one that said that.

I understand that. Had he already stopped someone?

Yes. I’m not sure who said that, and I won’t make a
suggestion; but I would not have suggested my

[104]

client get time. That’s not my prerogative. I was trying
to reduce it from — from first degree, or second degree
to manslaughter; that’s not my preogative. What I
said, I don’t know. But if I were up there making
statements that would — after Judge Friday had tried
this case for several days —and it was an emotional
trial. It’s hard to realize today as you sit in this room
here the emotion there was there. And to think that
Judge Friday would not have reached out and tapped
me on the shoulder and told me that, Mr. McMurray,
you're — whispered to me or sent the jury out —.

(Interposing) That you were admitting your —?

— Judge Friday is not that kind of Judge. He’s got no
hesitance about telling me what to do in his court;
that’s his responsibility. And he did on this occasion.
At one time I sought to put something in the record
that —to preserve the fact that Mr. Greene and I had
discussed it, and he said he wouldn’t allow — that he
would not proceed on felony murder.

And what — did he admonish you what he’d do to you
if you tried to put that in?

With —in very clear, unequivocal terms
[105]

Is it in the record there what he said?

No, sir. It’s not in the record. Were were at the bench.
I got the message. Judge Friday was right. But |
was — we had this tension at the time. Judge Friday
was presiding, but we were pushing as hard as we
could. And—and he says, you can’t do that, and
added a few things that let me know that I couldn’t do
it. And I did not do it, but we made an effort to do it.

But Judge Friday would not have permitted me to
have made an argument — he, having tried many cases
like this, would be obviously in error. I can’t read
Judge Friday’s mind, but I’m satisfied Judge Friday
concluded that we obtained a verdict of second degree
and of a ten-year felony, that we had acted as well as
attorneys in North Carolina should act and dispose
themselves in the trial of a serious criminal case such
as this.

What happened—what was the emotion and
response when Judge Friday gave Mr. Harbison life
on second degree? First, what was your reaction when
he gave him life on second degree?

Well, —
MR. LUNSOFRD: (Interposing) Objection. This
[106]

far exceeds the scope of direct and cross—-examination,
and I don’t think it’s appropriate at this point on
redirect.

CHAIRMAN McMILLAN: Well, it does, but go
ahead.

I was an advocate. | was caught up in the trial. We
had done everything we could and felt like we had
been successful in reducing it from mandatory life
imprisonment. And I was disappointed that we did
not get a term for years. But I’ve heard enought

A-102

sentences like that that | don’t have the emotional
outburst that occurred.

But the audience—when Judge Friday said |
sentence you to life imprisonment, there was a
murmuring in the courtroom, audible, ohhh — by
numerous people. It was spontaneous.

What was the air as Judge Friday was leaving the
courtroom to go home from this trial?

The murmuring continued.

Did you see Judge Friday as he went out to get on the
elevator?

Yes, sir.
Tell what occurred?

Well, they were in the lobby. You go from the
[107]

courtroom into the lobby and the people had come
out there and were still murmuring and talking. |
can’t tell you what it was, but it was like a cacophony
of voices talking at the same time which was a
emotional reaction.

And I think that that emotional reaction occurred
because we had gotten this matter reduced from the
mandatory life sentence and they were given some
hope and that life imprisonment struck that hope out
from under them, and they were murmuring against it
was they were gripped in the emotion of what had
transpired.

MR. BYRD: I have no further questions.
CHAIRMAN McMILLAN: All right. Now, since

A-103

he did exceed your scope, do you have any other
questions, Mr. Lunsford?

MR. LUNSOFRD: We have no further questions
at this time.

CHAIRMAN McMILLAN: Do you have ques-
tions?

MR. SHERWOOD: One. Mr. McMurray, you’ve
stated in your testimony here that you had
reservations about this self-defense thing all the way.
Do you have anything in your file which would
indicate you wrote your client and said, I’ve got

[108]

reservations about this, | don’t think we ought to do
this, or we ought not to do this?

No. I did not write him any letters. Our correspondence
was always one-to-one. I’m sure that he and I discussed
the heat of passion; that had been my thrust of the case
from the beginning.

From all the evidence he had told me about, from
the— James Pruitt, the Deputy Sheriff, and the
physical evidence, | felt like that was a — that was a
realistic plea, something to get your teeth into,
something you really could work on; but I did not
face-to-face say to William Harbison, I am going to
undertake to argue that you should not be found
guilty of first or second degree or that the maximum
verdict should be — be manslaughter.

MR. SHERWOOD: But you don-t have any letter
or anything which indicates you questioned the —

(Interposing) No, sir.
MR SHERWOOD: —the not guilty?

The — Judge Friday’s submitting —

A-104

MR. SHERWOOD: (Interposing) You've an-
swered my question.

[109]

CHAIRMAN McMILLAN: Do you have any
further questions? ,

MR. SHERWOOD: No.

CHAIRMAN McMILLAN: Do you have any
questions?

MS. BRYANT: Yes. I’m concerned about — and
want to hear from you — how you see your role in the
adversarial process, vis-a-vis, the presumption of
innocence and how that — what weight that carries
and how you see your role with that weight in the
adversarial process, as in the criminal trial?

Well, in this particular case, after William Harbison
testified, it was my legal responsibility to interpret
what he testified to as best I know how and take the
position that most favorably deals with what his
testimony showed. Because | think that if —if I am
obligated in the case in which I exercise my judgment
that there is not a self-defense plea that has any
possibility of success, if | am obligated under those
terms where the—where I conclude there is no
possibility of success to make that argument to the
jury, then I am in violation of a standard, if that’s
what it requires.

[110]

I don’t see my role as the inflexible.

MS. BRYANT: Well, if there is a conflict between
your interpretation of his testimony or what you see
the case as being and the right of the defendant in this
case to have the presumption of innocence and
pleading not guilty or whatever grounds he wants to

A-105

plead on, how do you see — what is the relative weight
of those two? Do you see them as being equal, one
more weighted than the other or —

(Interposing) I can’t answer of equal weight.. But a
defendant cannot make the judgments on this case as
to whether or not he is the aggressor — generally they
have no knowledge whatsoever about what it means
to be an aggressor. They have no knowledge about
how it weighs — whether or not they’ve used excessive
force. They have no knowledge about their right to
use whaiever force is necessary to repel an assault.

The lawyer has got to make that decision, and he
cannot be bound by his client. If he is, then a trial gets
to be sort of woodened —

MS. BRYANT: (Interposing) Well, after it having
been — after advising a client of all of

[111]

those issues, then what has— where do you see the
weight then? Who has— what has the most weight,
your judgment or that client’s decision of what they
want to do?

If a client came to me and said that at all costs I want
to plead not guilty, if | though that he had no — that
that was an unreasonable request, then | suppose my
duty would be either to withdraw or acquiesce to what
he was requesting me.

I don’t think as a lawyer —I don’t think in good
conscience, if someone says, | want you to plead
self-defense, that I can plead self-defense when there
is no self-defense.

MS. BRYANT: And when you feel there is no
self-defense, then, how do you see the relative weight
of the client’s desire to plead and your feelings?

A.

A-106

Well, I think it depends on whether the client has
made any statement to you. Normally you do the best
you can for a client, and we don’t —we didn’t get
down in this case in which I asked him or he told me
that at all costs I want to plead self-defense.

I think if he had, then I would have had to
[112]
have made the motion to withdraw on that grounds.

MS. BRYANT: So, are you saying that you weren’t
clear — strike that.

Are you saying that you had some notion that you
had Mr. Harbison’s permission to ask the jury —

(Interposing) I did not have his permission. We did
not have any agreement. We had—we had not
abandoned defenses other than self-defense. We did
not discuss those with him as such.

We had no agreement that our sole plea would be
self-defense. If it was, it would seem to me that we
would have plead not guilty by reason of self-defense.

MS. BRYANT: Well, I guess the fair question is,
how did you perceive Mr. Harbison’s objective?

His objective was to obtain the best results possible
under the evidence of this case.

MS. BRYANT: I recall you earlier saying that you
did not say that he should serve some time. So, are
you saying that all references to any statements you
might have made that he should serve some time to
think about what he had done were not true?

I did not make that statement. I’d be very surprised

A-107

[113]

if the record was found that I said that. I just can’t
comprehend making that kind of statement. I’ve —

MS. BRYANT: (Interposing) Mr. Fuller —

— never made a statement like that, never made a
statement like that in addressing a jury.

MS. BRYANT: Mr. Fuller made comments about
some thrust to the extent of you being between two
extremes and his position being extreme. Do you
recall that part of your argument —

(Interposing) I don’t recall —
MS. BRYANT: —to the jury?

—that. There is in my notes a question that —
something about the harshness of first degree and the
middle ground. I have difficulty recalling that
statement. I may well have made that. I —1 can’t —
when you ask about saying that he should serve time,
I can be unequivocal. When you ask me whether or
not I said about a middle ground, I may very well have
argued that, because my thrust was that we were
seeking to obtain a verdict that was other than first
degree or second degree.

MS. BRYANT: And going back to your perception
that—or your notion and feeling — understanding
that Mr. Harbison wanted the best result he could

[114]

obtain. Did you feel that from your talking to him or
interviewing him any agreements that you all did
make that he had given you any kind of direction as to
how he —any limitations on that?

He did not give us any direction, placed no limitation

A -108

on it. Our discussion — I’m sure that — our approach
was, do the best we could. We had no idea exactly
how the evidence was going to come down.

Mr. Fuller thought he’d get the tire in; he didn’t.
The —I did not know—lI had a general idea how
Dianna Franklin would testify; but we had to see what
her testimony — what effect that would have on the
jury. We were, as in most cases, going to do the best
we could.

MS. BRYANT: Well, do you believe that it was the
defendant’s right to determine in the first instance how
he would plead and to determine any matters that
would happen in the trial that would effect, you know,
these —the plea of not guilty?

I don’t think he has the right to tell me to argue
self-defense if there is no self-defense. I guess the
right at that point in time, if he insists on that, |
should report that to the court and tell

[115]

the court that—that in good conscience, I don’t
believe I could make that argument, and ask the court
to continue the case and release me from it.

MS. BRYANT: And did you believe that that was
what Mr. Harbison wanted?

No. There had been no—there had been no
discussion along those lines. We had — we had talked
about heat of passion; we had talked about the tire; we
had talked about the fact that he didn’t have the
intent. But, we were going to deal with those as best
we knew how.

There’s a case that’s come down, incidentally, from
the Court of Appeals that says that a lawyer is not
obligated to plead self-defense even though his client

may insist on it which came out after this case, long
after this.

CHAIRMAN McMILLAN: Do you have further
questions?

MS. BRYANT: Unh-unh (no).

CHAIRMAN McMILLAN: Mr. McMurray, fol-
lowing the jury verdict, did you argue to Judge Friday
on sentencing?

I do not believe there was any argument on
sentencing. I have no recollection of any argument on
sentencing.

[116]

I’m sure Judge Friday inquired if we had anything
further to say.

CHAIRMAN McMILLAN: And was sentencing
imposed immediately?

Sentencing was imposed soon after the verdict came
in, within — I can’t talk about the time. I don’t know.
It may well be —it may well be that we had — you
know, I would — I would believe that if we had argued
all these points, | would — 1 would — my recollection
would be that we would have asked Judge Friday to
be as lenient as he could and talked in those terms,
which we normally do.

But I have no recollection of that.

CHAIRMAN McMILLAN: Do you have any
recollection of —in your jury argument, making the
statement that there are things in this young man
worth saving, or wrods to that effect?

I think that that’s in my notes, and I’m sure I made
that type argument. William Harbison is an

A-110

intelligent young man, and he’s got a very fine family.
And he had attended Western Piedmont Community
College and had made a very good record. He’s well
thought of by the people there. And I think my —in
talking

[117]

about the family and him, that I would have argued
those positions.

CHAIRMAN McMILLAN: Do you recall saying
something to the effect, I don’t believe you’re going to
accept the argument from my friend from Charlotte?

No, sir. 1 would not have been overtly —it would
have been very foolish of me to have been overtly
critical of his argument. I, frankly, don’t think that his
position and my position was detrimental to us. He
argued one position, under very difficult circum-
stances, and if I come back and argue another, I think
the two of them working together may have been
beneficial to us in getting the jury to by-pass felony
murder and consider a lesser degree.

CHAIRMAN McMILLAN: There’s a distinction
in my mind from saying “I think you ought to find
him guilty of manslaughter,” on the one hand and
saying on the other hand that “if you accept
everything that the District Attorney has attempted to
show, the most he is guilty of is manslaughter”.

Do you accept that—there being a distinction
between the two?
I think there is a distinction. I did not argue
[118]

that he should be convicted of manslaughter. In
undertaking to get them to move from the degrees of

A-111

murder, I argued he should not be found guilty of any
offense greater than manslaughter.

I’m not arguing for a conviction. I’m arguing for
acquittal of first degree and second degree.

CHAIRMAN McMILLAN: Did you, as a part of
your argument also argue for total acquittal as Mr.
Fuller had done?

Whether at the end of my argument I made the
statement that you normally do that you must find
this — you should find this defendant not guilty, I do
not have that recollection. I can’t recall the words that
I used to wind it up.

If I was asked to—my best recollection, my
conclusion would have been that William should not
be found guilty of murder in the first degree of murder
in the second degree. Now, whether I said not guilty, I
just don’t recall.

CHAIRMAN McMILLAN: Is it your best
recollection that the thrust of your argument was
calculated to be that the should be found guilty of
manslaughter?

No. My thrust was that he should not be found guilty
[119]

of murder in the first degree or murder in the second
degree.

I did not know how to even get them to consider
that except in the way that I did. There may be other
methods of doing it.

CHAIRMAN McMILLAN: All right, sir. Now,
do those questions from the panel provoke questions
from counsel?

MR. BYRD: The answer is, no.

A-112

MR. LUNSFORD: Nothing from the State Bar.

CHAIRMAN McMILLAN: Thank you, Mr.
McMurray.

(WITNESS EXCUSED: 12:12 P.M.)

CHAIRMAN McMILLAN: Next witness.

MR. BYRD: Ms. Clara Cline. While she’s coming,
we offer now Plaintiffs Exhibit Number 2 as
identified by Mr. Fuller and now been testified to by
Mr. McMurray.

CHAIRMAN McMILLAN: It’s admitted.

MR. BYRD: We, likewise, offer Exhibit Number 5,
the notes of Mr. McMurray’s file relating to the jury
argument.

CHAIRMAN McMILLAN: Admitted.

APPENDIX N
[77]
VOLUME 2B

MR. LESLIE FARFOUR,
DIRECT

Having been first duly sworn
was examined and testified
as follows:

DIRECT EXAMINATION BY MR. McMAHON:

Q. State your name please?

ie eS FF

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rio 6: CS

A-113

Leslie A. Farfour, Sr.

And where do you live?

Morganton, North Carolina.
Where — how old are you, Mr. Farfour?

Do I have to answer that?

CHAIRMAN McMILLAN: No, sir. Give us
within five years.

72.
(Mr. McMahon) Mr. Farfour, were you present at the
trial of the State versus William Harbison, Jr. back in
1976, that’s the subject of this action?
I] was.
Why were you present?
I was called on the jury.
And did you in fact sit on the jury of the case?
I was actually the foreman of the jury.
[78]
Now, do you remember that trial?

I do.

Do you remember who was the judge?

Judge Friday, yes, sir.

> @ - @

A-114

Do you remember who the lawyers were?
I do.
Who were they?

Mr. McMurray and an associate and Mr. Greene and
his associate, | don’t know — Mr. Jacobs, deceased.

When you refer to Mr. McMurray’s associate, could
you be referring to the gentlemen who testified here
yesterday, Mr. Fuller?

The one with the loud coat.

CHAIRMAN McMILLAN: He apologized for
that coat.

MR. BYRD: He was going on vacation.
CHAIRMAN McMILLAN: That’s what he said..
(Mr. McMahon) Did you understand that as you —

after you were selected for the jury that mr. Fuller and
Mr. McMurray were working together?

Yes, I was.

You referred to him as Mr. McMurray’s associate.

Did you get the impression that he was literally
[79]

an associate?

He was — he was assistant. I changed the wording. He
was the assistant in this trial only.

Okay. Do you remember the arguments made by the
lawyers to you there in the jury box?

A-115

Well, most of it, I do.

Do you remember John McMurray making his
argument to you?

I remember his the most.
Why is that?

He made such a strong plea, and all during the trial |
had my mind set almost at the end that it was a first
degree as far as 1 was concerned. But his plea was so
vigorous, so — I was so impressed — I didn’t know he
had it in him, because I’ve been knowing him; and
that’s the reason that I remember that.

Do you recall anything about his —can you describe
his emotion, if any, that he portrayed?

He was very vivacious and that was the thing that
made me think about how — his delivery was great.

Well, what was your reaction as a juror in this
[89]

case to Mr. McMurray’s argument?

Well, as 1 told you, I had in my mind before we
went — went back to the jury room that it was a first
degree murder, completely. Until I heard his plea,
would you call it? I’m not a lawyer. 1 just —in plain
language his argument to us, he sort of gave me a —
made me hesitate as to whether it was first degree or
not.

Did his argument appear to you there on the jury to be
sincere?

A-116

Very sincere. This is what I meant to say. It was very
sincere. Conscientious. Very vivacious.

Did he argue at length, do you recall if it was long?

I can’t —I can’t truthfully say that. I don’t know how
long it was. We listened to the other lawyers as well as
to the charge from the judge and I just don’t know
how long it was.

Now, after you — do you recall any other things about
the argument of John McMurray?

In what way are you talking about?.

Well, my question to you is, after you heard the
argument of McMurray or during that argument, do
you ever recall his suggesting

[81]

that you ought to find William Harbison guilty of
anything?

I don’t remember that statement whatsoever, and |
have been listening here for two (2) days trying to
remember that and I never heard that —I mean, to
me, I never heard it.

When you —

(Interposing) He might have said it but I didn’t hear
it.

Well, when you left the Courtroom after hearing all of
the arguments, was it your reaction and is it your
memory now that Mr. McMurray had asked you or
suggested that you as a juror shouid find his client
guilty or anything?

; ere. - 29

A-117

No, I don’t recall anything like that. He didn’t ask us
me — didn’t ask us anything.

Now —

(Interposing) He was pleading for his client, you call
him a client.

Unh-hunh (affirmative). Do you recall the delibera-
tions of the jury, after you began your deliberations?

I do.
[82]
You say you were the foreman?
I was the foreman.
Did you — were you the person in charge of taking —
(Interposing) The polls.
How did you do that?

I took the poll about every thirty (30) minutes, to try
to see how close we were to an agreement.

What sort of method did you use in taking a poll?

I passed out pencil and paper. I got it from the jailer,
whatever his name was.

Do you recall the issues or papers that the judge gave
to you when you went back to the jury room?

Yes, he gave us four verdicts that we could render:
first, second, manslaughter and acquittal.

A-118

Q. Now what —after you selected a foreman, what was
the first discussion in the jury room concerning?

A. I asked.one by one, each one of them, what they
thought, just right out of the bat. I said I don’t want
any arguments at all, just what do you think, how
would you vote if we voted

[83]
right now?.
Was there a unanimous vote at that time?
No. It was about — including me — I went in with the
first degree idea but then I changed to second degree.
At no time, whatsoever, was manslaughter or
acquittal brought up. We didn’t even discuss it. We
were so close.
Do you recall how long you deliberated?
Now, the first day, I think we had to leave and go
spend the night in a motel. It wasn’t the Holiday Inn,
either.

I won’t ask you where but do you —

(Interposing) It was England’s Motel or something
like that, I don’t know what the name of it is now.

Q. Do you—at the time you left that night, did you
make any inquiries or ask any questions of the judge?

A. I came back to ask him if we could skip over one.
One what?

One of the verdicts and go to the next one and talk
about it.

* A-119

Do you recall which verdict that was?

| think it was the first degree and we wanted to
[84]

move up —! wanted to move it up to see if I couldn't
get a quicker verdict.

Now, do you recall whether, when you were given the
issues by the judge, Judge Friday, do you remember

anything about an issue on felony murder?

Well, not in those exact words. As I say, I'm not a
lawyer.

Okay?
My son is, but I’m not.

Do you recall receiving two slips of paper or just one
with the issues on it with the possible verdicts?

I don’t recall that. I don’t recall if it was one (1) or two
(2) but I had the slip or slips of paper in my hand..

But you do recall asking a question of Judge Friday?
(Interposing) That's right.

—aeas to whether the jury could skip over the first issue
and go to the second?

That’s right, and go to the second. And he said | could
do anything | wanted to, | think.

So when you —so when you went back in to

, A-120

[85]
begin your deliberations again, did you take another
poll?
As I told you, I tried to take a poll every 30 minutes.

Well, when you found out that you could skip, did
you take a poll then?

I took a poll then, and it was the next day late that we
finally agreed on the second degree.

During the entire time that the jury was out and you
presided as foreman, | take it there was some
disagreement among the jurors as to your unanimous
verdict?

That’s right.
What was that disagreement over?
Whether it would be first or second degree. The other
two (2) weren't even brought up.
MR. McMAHON: That’s all.
They had already —they had already set in their mind
either first or second.
MR. McMAHON: That’s all the questions I have.
CHAIRMAN McMILLAN: Mr. Lunsford?
MR LUNSFORD: We have no questions of
[86]
Mr. Farfour.

CHAIRMAN McMILLAN: Mr. Farfour, do you
recall any mention by the lawyers saying —the

defense lawyers — saying that the defendant ought to
serve some time?

I don’t recall that at all. That’s what I’ve been trying
to get in the last two (2) days, from listening to all
these eloquent speeches and all. | don’t recall that at
all. I don’t recall the — Lawyer McMurray saying that
at all.

CHAIRMAN McMILLAN: All right, sir.
MS. BRYANT: Can you tell us what you do recall?

What I do now?
MS. BRYANT: Unh-hunh (affirmative).

I’m retired.

CHAIRMAN McMILLAN: No. She wanted to
know what you do recall about the argument.

Oh, what I do recall. I see. I though you said at home.

MR. McMILLAN: He doesn’t do anything at
home.

MS. BRYANT: We've asked you what —I’m
asking can you tell us what you do recall about

[87]

the arguments of defense counsel?

Well, I recall —the most vivid thing in my mind is
how they tried to get self-defense out of that car going
to the right of William Harbison, and, if they were
going to hit him, why didn’t they go to the left and and
knock him out? But he didn’t, he went by him.

MS. BRYANT: Okay, I’m asking — you’re — can
you tell me what you recall about the argument?

A-122

You know that’s eight (8) years ago? Would you recall
anything eight (8) years ago? I don’t think you would
either. I just—I know Mr. McMurray did an
excellent job in defending this man because we were
all set for first degree, 1 was at least and most of the
others. And I was the one that kept them in so long
because I listened to his defense and it sort of put a
question in my mind. I says, that boy could have been
so jealous of his girlfriend, or used to be girlfriend that
it excited him and that’s when he did what he did, |
would think being so jealous, that he just got angry —
angry jealous, and | think that’s the worst kind.

; [88]

CHAIRMAN McMILLAN: And was Mr. Mc
Murray arguing that to you?

I can’t say that he was. That was just in my opinion, |
think. Well, I was listening to the whole trial, and |
tried to hear it all m my mind.

CHAIRMAN McMILLAN: All right, sir. Thank
you, Mr. Farfour.

(WITNESS EXCUSED: 4:55 P.M.)

A-123

APPENDIX O

NORTH CAROLINA
WAKE COUNTY

BEFORE THE
DISCIPLINARY HEARING COMMISSION
OF THE
NORTH CAROLINA STATE BAR

[FILED: 1985 March 28]

THE NORTH CAROLINA STATE BAR,
Plaintiff,

V.

JOHN H. McMURRAY,
Attorney,
Defendant.

FINDINGS OF FACT
CONCLUSIONS OF LAW
AND
ORDER OF DISMISSAL

This cause was heard by the undersigned, duly appointed
Hearing Committee of the Disciplinary Hearing Commis-
sion of the North Carolina State Bar on Friday and
Saturday, March 15 and 16, 1985. The Plaintiff was
represented by L. Thomas Lunsford, II, and the Defendant
was represented by Robert B. Byrd, Lawrence D.
McMahon, and Sam J. Ervin, IV. Based upon the
evidence and the stipulations of the parties which have
been placed of record, the Committee makes the following
FINDINGS OF FACT:

A-124

. The Plaintiff, the North Carolina State Bar, is a

body duly organized under the laws of North
Carolina and was the proper party to bring this
proceeding under the authority granted it in
Chapter 84 of the General Statutes of North
Carolina, and the Rules and Regulations of the
North Carolina State Bar promulgated thereunder.

. The Defendant, John H. McMurray, was admitted
to the North Carolina State Bar on September 7,
1948, and is and was at all times referred to herein,
an Attorney at Law, licensed to practice law in the
State of North Carolina subject to the Rules,
Regulations and Code of Professional Responsibil-
ity of the North Carolina State Bar and the laws of
the State of North Carolina.

. At and during all of the times hereinafter referred
to, the Defendant was actively engaged in the
practice of law in the State of North Carolina and
maintained a.law office in the City of Morganton,
Burke County, North Carolina.

William’ Harbison, Jr., (Harbison) was the defendant
in two criminal cases in the Burke County Superior
Court which were styled State of North Carolina v.
Willian Harbison, Jr. and numbered 76 CR 3865
and 76 CR 3862. In 76CR 3865, he was charged with
first degree murder and in 76 CR 3862, he was
charged with felonious assault.

These cases were consolidated for trial and were
tried during the term of Superior Court beginning
August 30, 1976. The Honorable John R. Friday
presided.

Harbison was represented in these cases by the
Defendant John H. McMurray (McMurray) of the
Burke County Bar and James C. Fuller, Jr. (Fuller)

12.

13,

15.

A-125

of the Mecklenburg County Bar. McMurray had
been appointed by the court to represent Harbison.
Fuller was privately retained by Harbison’s family.

Prior to trial, Harbison expressed to his attorneys
Fuller and McMurray that he desired to plead not
guilty and further desired that his plea of self-defense
be pursued throughout the trial.

Harbison entered a plea of not guilty to all charges.

Harbison testified in accordance with his defense of
self-defense.

Judge Friday ultimately charged the jury on the
defense of self-defense.

At no time did Harbison authorize McMurray to
abandon the plea of not guilty or the defense of self-
defense.

Following the close of the evidence, both of
Harbison’s lawyers argued to the jury. Fuller argued
first for acquittal based on self-defense.

After Fuller’s argument and the argument of the
District Attorney, McMurray gave a closing
argument for the defense. As a part of his closing
argument, McMurray made reference to the
evidence being sufficient to convict his client of
manslaughter.

Although the court reporter, Clara T. Cline, did
make stenographic notes of the closing arguments
along with the rest of the proceedings, a transcription
of her notes of the closing arguments was never
requested or made. Although a diligent search for
the notes was made when this matter arose in 1984,
they have not been located and are deemed lost.

The Committee is unable to determine by clear,
cogent and convincing evidence exactly what was
included in the entire closing argument of

16.

17.

19.

20.

A-126

McMurray. The Commttee is unable to determine
whether any of the following possibilities occurred:
(1) whether McMuray couched his argument with
respect to conviction of manslaughter in the
alternative to an argument for acquittal; (2) whether
he argued on the theory that the evidence for the
State, taken in the light most favorable to the State,
warranted at most a conviction of manslaughter; or
(3) whether he abandoned the defense of self-defense
entirely, abandoned the plea of not guilty and based
his entire closing argument on the theory that his
client was in fact guilty of manslaughter.

Harbison was found guilty by the jury of second
degree murder and felonious assault. Judge Friday
sentenced Harbison to life imprisonment for murder
and to 10 years imprisonment for assault. Harbison
thereafter served notice of appeal and McMurray
and Fuller were appointed by th Court to represent
Harbison on appeal.

The murder conviction was appealed by right
directly to the North Carolina Supreme Court. A
motion to by-pass the North Carolina Court of
Appeals was granted relative to the assault case and
the cases on appeal were consolidated.

Neither of Harbison’s attorneys assigned as error
before the North Carolina Supreme Court any
aspect of the closing argument of McMurray.

On November I1, 1977, the North Carolina
Supreme Court filed its decision in State vy.
Harbison, 293 N.C. 475. The Court found no error
and affirmed the conviction.

A federal habeas corpus proce-ding was thereafter
filed on Harbison’s behalf relative to his conviction.
No question of impropriety was raised concerning
McMurray’s closing argument.

A-127

21. The first time McMurray was made aware of any
allegation of impropriety concerning his closing
argument was during 1984, approximately eight
years after the Harbison trial.

Based upon the foregong Findings of Fact, the
Committee makes the following Conclusions of Law:

1. The client who stands accused of a crime has an
absolute right to decide how to plead. Although his
lawyer has a professional obligation to assist him in
making that decision by informing him of
considerations relevant to his best interests, the
decision is exclusively that of the client. See EC7-7
and 7-8. Once a decision to plead not guilty is made,
it is the lawyer’s duty under DR7-101(A)(1) toemploy
every reasonably available means, including reliance
upon the presumption of innocence and the
assertion of any reasonabiy available defense, to
achieve his client’s lawful objectives. Included within
the client’s lawful objectivs can be acquittal and/or,
when authorized by the client, the conviction of
a lesser included offense. Indeed, the client’s best
interests may be served by a decision to argue solely
for conviction of a lesser included offense and to
abandon all arguments for acquittal. However, it is
necessary to realize that such a decision, like the
decision of how to plead, is for the client to make,
and is binding upon the lawyer.

2. In a homicide case, once a criminal defendant has
made the decision to plead not guilty, has
instructed his attorney to maintain his innocence
under the theory of self-defense, has testified in
accordance with that theory, and has an expectation
that the trial judge will charge the jury on that
defense, the attorney cannot, absent permission of
his client, abandon the defense of self-defense and
the presumption of innocence and argue exclusively
for a conviction of a lesser included offense. To do so

A-128

would amount to the compromising of the client’s
earlier decision with respect to his plea.

3. The lawyer is permitted, and in fact may havea duty,
to argue in the alternative to acquittal, that the
evidence of the State would at most permit a finding
of guilt of some lesser included charge.

4. Because the Plaintiff has failed to prove in this case
by clear, cogent convincing evidence what was said
by the Defendant in the entirety of his closing
argument, the Committee concludes that the
Plaintiff's case should be dismissed for failure to
sustain the burden of proof.

IT IS THEREFORE ORDERED that this case
be dismissed.

This the 28th day of March, 1985.
/s/ John B. McMillan, Chairman

/s/ Harry Sherwood

Dissenting:

/s/ Angela R. Bryant

A-129

DISSENT

The State Bar proved by clear, cogent, convincing,
credible, uncontroverted and competent evidence that
Attorney McMurray said in the jury argument at issue
herein that the criminal defendant, Harbison, should be
convicted of manslaughter. Attorney McMurray in his
written statement in response to the grievance admitted. “I
stated to the jury that on his evidence I| was of the opinion
defendant would be convicted of some criminal offense,
but he should be found guilty only of manslaughter.” The
State Bar further proved by clear, cogent convincing,
credible, uncontroverted and competent evidence that
Attorney McMurray made statements to the jury that
suggested that his client would and/or should be convicted
without the prior consent of, cogsultation with or
knowledge of his client or co-counsel. Moreover, the
statement and suggestion that his client should be convicted
of manslaughter was in subversion of and inconsistent with
the criminal defendant’s plea of not guilty based on self-
defense., The clear, cogent, convincing and competent
evidence further showed that Attorney McMurray made
the statement in his jury argument intentionally and that he
believed that a decision to suggest or confess his client’s
guilt to the jury was a matter in his professional discretion
about which he did not have to consult with his client. All
the competent and credible evidence taken together proved
that Attorney McMurray violated DR7-101(A)(1) in this
instance.

As an advocate, a lawyer should resolve in favor of his
client any doubts as to the bounds of the law and urge any
permissible construction of the law favorable to his client
without regard to the likelihood that it will ultimately
prevail. (E.C. 7-3 and 7-4). In the criminal trial at issue
here, the trail judge had indicated that he would be
instructing the jury on self-defense, so the criminal
defendant’s objective of a not guilty verdict based on
self-defense was “non-frivolous” as a matter of law.

A-130

A lawyer should advise his client vigorously if in his
professional opinion an adverse result is likely from a
certain course of conduct or strategy; however, on matters
affecting the merits of the cause and involving non-legal
factors (e.g. the likelihood of a particular jury reaction or
the impact of race, cultural differences, socio-economic
status and/or sympathy), the decision about objectives and
methods is for the client after consultation with his lawyer.
(EC7-5, 7-7, 7-8 and 7-24). In this case, defendant Harbison
did not receive the benefit of confronting the opinion and
experience of his lawyer because Attorney McMurray did
not advise or consult with him. As a result, defendant
Harbison was not accorded the human integrity inherent in
having a personal advocate in the adversary process. He felt
abandoned by the very person who was supposed to be on
his side. Our system affords each of us the human dignity
that comes with the opportunity to maintain our innocence
to the end. The criminal defendant serves the time not the
attorney. If a lawyer cannot seek the lawful objective of his
client in litigation, he must confront and consult with his
client, and if necessary, request permission to withdraw
without revealing any confidences to the Court that would
prejudice his client. See DR7-102(B)(1).

I was influenced by the ten or more defense witnesses who
presented inadmissible opinion evidence for the defendant
and “for the record only” on the ultimate issues to be
determined by his hearing committee, so I must infer that it
is very likely that the other committee members were also
influenced. Most of those witnesses did not present any
admissible evidence. In hindsight, the defendant should
have been limited to an offer of proof by affidavit,
deposition or statement for the record, because of the
volume of the improper evidence and because of the highly
political nature of the witnesses, 1.e., a federal court judge, a
former senator, superior court judges, the attorney general
and the chairman of the Democratic Party.

Finally, | will examine the significance of the racial

A-131

implications of this situation. The criminal trial arose out of
an interracial relationship between a Black male defendant
and the victims, a white female and a Black male. It is my
opinion that the impact of the racial character of this
situation was not taken into account in the lawyer-client
relationship nor in the criminal trial. It is clear from this
experience and from an examination of social-
psychological literature, that even in 1985 and surely in 1976,
negative racial attitudes do affect the response of lawyers,
clients, and jurors to sexually-motivated crimes when the
parties are of difference races. The lack of awareness and
sensitivity to the impact of racial differences on the ethical
and professional decisions of lawyers can best be
exemplified by a quote from a note written te Attorney
McMurray by defendant Harbison’s mother which was
introduced as defendant’s exhibit #6: “Thank you for trying
to help William Jr. The pressures have been great But being
colored the cards are stack against us before Court even
Starts”.

For all of the above stated reasons, I strenuously and
respectfully dissent from paragraph fifteen of the “Findings
of Fact”, paragraph four of the “Conclusions of Law” and
from the dismissal of Plaintiff's case based thereon. The
State Bar carried its burden of proof that the conduct of
Attorney McMurray violated DR7-101(A)(1).

A-132

APPENDIX P

No. 400PA84
Filed: 1985 May 13

TWENTY-FIFTH DISTRICT — BURKE

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SUPREME COURT OF NORTH CAROLINA

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STATE OF NORTH CAROLINA
V
WILLIAN HARBISON, JR.

MOTION IN DIMINUTION OF THE RECORD
ON APPEAL OR TO REMAND FOR AN
EVIDENTIARY HEARING

The Honorable Chief Justice and Associate Justices of the
North Carolina Supreme Court

The State of North Carolina respectfully moves this court
to accept the attached transcript of hearing and exhibits in
the case of THE NORTH CAROLINA STATE BAR v.
JOHN H. McMURRAY, NO. 84-CHC-16, in diminution
of the record on appeal previously filed herein or, in the
alternative, to remand this matter to the Superior Court of
Burke County for an evidentiary hearing. As grounds
therefore the State shows unto the Court the following:

STATEMENT OF FACTS

Defendant was convicted of second degree murder and
assault with a deadly weapon inflicting serious bodily injury
in Burke County Superior Court on August 30, 1976. He
received a life sentence on the murder conviction and a ten
year sentence on the assault conviction (Rpp 12-13). Those
convictions were affirmed by this Court on November 11,
1977. (Rpp. 15-24); State v. Harbison, 293 N.C. 474, 242
S.E. 2d 844 (1977). On 9 December 1983 the Honorable

A-133

Woodrow Jones, Chief Judge, United States District Court
for the Western District of North Carolina, denied
defendant’s petition for a writ of habeas corpus in Harbison
v. North Carolina, No. A-C-83-225 (W.D.N.C. 9 Dec.
1983).

On May 3, 1984 defendant filed a motion for appropriate
relief, pro se, in the Burke County Superior Court, alleging
for the first time that he had been denied effective assistance
of counsel at trial. Defendant specifically alleged (among
other grounds) that his court appointed attorney, John
McMurray, made the following statement during closing
argument, without defendant’s authorization.

Ladies and Gentlement of the jury, | know some
of you and have had dealings with some of you. |
know that you want to leave here with a clear
conscious [sic] and I want to leave here with a
clear conscious [sic]. | have my opinion as to what
happened on that April night, and I don’t feel
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. (Rpp. 26-27).

This statement was not based on a direct quote from a
transcript since the arguments of counsel were not
transcribed. (See Tr. p. 511). The only other evidence of Mr.
McMurray’s argument before the Superior Court was a
reponse by defendant’s retained counsel, James Fuller, to

an interrogatory in March 1984 in which Mr. Fuller stated,

During his argument, | was quite surprised to hear
him [Mr. McMurray] suggest that Mr. Harbison
should be convicted of manslaughter. He asked
the jury to choose between two “extreme views,”
that advanced by me and by the District
Attorney....(Rp. 31).

The motion for appropriate relief was decided by Judge
Claude S. Sitton on I1 June 1984. Judge Sitton did not hold

A-134

an evidentiary hearing but relied on the motion,
interrogatories, the files and the appellate review. (Rp. 32).
He simply concluded that although the comments
attributed to Mr. McMurray were not proper, they were not
prejudicial. Judge Sitton did not make an express finding
that Mr. McMurray had in fact made the statement
attributed by defendant. No evidence was received from Mr.
McMurray, the trial judge or others present at trial.

Defendant submitted a petition for writ of certiorari to
this Court on 22 June 1984 (filed 11 July 1984). The petition
was allowed on 6 November 1984 with review limited to
“whether trial counsel’s argument to the jury constituted
prejudicial error.” The record on appeal was certified on 9
January 1985 and submitted to this Court.

On II June 1984, the same day that Judge Sitton denied
the motion for appropriate relief, defendant filed a
grievance against Mr. McMurray with the North Carolina
State Bar, concerning the subject matter of this appeal. The
case came on for public hearing on March I|5and 16, 1985.
Several witnesses testified under oath including defendant,
Mr. Fuller, Mr. McMurray and Judge Friday, (who
presided at defendant’s 1976 trial), and the jury foreman.
The evidence concerning the content of Mr. McMurray’s
argument was conflicting. Mr. McMurray specifically
denied making the statement attributed to him by
defendant (Tr. of Bar Hearing, ol. 2A pp. 102-03) and,
further testified that,

I did not argue that he should be convicted of
manslaughter. In undertaking to get them [the
jury] to move from the degrees of murder, |
argued that he should not be found guilty of any
offense greater than manslaughter. I’m not
arguing for a conviction. I’m arguing for acquittal
of first degree and second degree.

(Tr. of Bar Hearing, Vol. 2A, pp. 117-18).
Judge Friday testified that he could not recall what Mr.

A-135

McMurray’s argument was but was sure that he would not
have allowed Mr. McMurray to make the statement
attributed by defendant, but would have stopped him even
in the absence of an objection. (Tr. of Bar Hearing Vol. 2A,
pp. 145-46). The foreman of the jury, Leslie Farfour also
testified, stating that he had no recollection of Mr.
McMurray suggesting that the jury find defendant guilty of
anything. Mr. Farfour died just recently.

Subsequent to the conclusion of the hearing the
Disciplinary Hearing Commission dismissed the grievance
with one dissent) finding that

The Committee is unable to determine by clear,
cogent and convincing evidence exactly what was
included in the entire closing argument of
McMurray. The committee is unable to determine
whether any of the following occurred:

(1) whether McMurray couched his argument
with respect to conviction of manslaughter in the
alternative to an argument for acquittal;

(2) whether he argued on the theory that the
evidence for the State taken in the light most
favorable to the State, warranted at most a
conviction of manslaughter; or

(3) whether he abandoned the defense of self-
defense entirely, abandoned the plea of not guilty
and based his entire closing argument on the
theory that his client was in fact guilty of
manslaughter.

(Order of Dismissal of State Bar, Finding of Fact #15).
QUESTION PRESENTED

Whether the State’s Motion in Diminution of the Record
on Appeal or to Remand for an Evidentiary Hearing should
be granted?

A-136

DISCUSSION

The issue to be decided on this appeal has been succinctly
stated by this Court in its Order allowing defendant’s
petition for writ of certiorari. That issue is,

Whether trial counsel’s argument to the jury
constituted prejudicial error?

It is obvious that this issue cannot be resolved until there
has been a determination of what counsel’s argument
actually was.

No transcript of the argument was made and the court
reporter cannot locate her notes. (Tr. of Bar Hearing, Vol. 2
pp. 120-31). Nor has there been a judicial finding as the con-
tent of that argument. When Judge Sitton decided the motion
for appropriate relief he only had the 8 year old recollection of
defendant and James Fuller before him. When his order
denying relief is read in context, it is clear that he was
making a finding only that defendant had not shown
prejudice sufficient to warrant a new trial even though the
argument attributed to Mr. McMurray was improper. This
is analagous to a dismissal for failure to state a claim under
Rule 12(b)(6) of the Rules of Civil Procedure which
assumes the truth of the allegations. He held no evidentiary
hearing on the pro se motion apparently reasoning that this
was not necessary in view of his holding. See, N.C.G.S.
§15A-1420(c)(2). However, the subsequent disciplinary
proceeding before the State Bar reveals that there is a
question of fact which should be resolved.

The State respectfully submits that an accurate
resolution of the issue presented in this case is dependent
upon a judicial determination as to the actual content and
thrust of Mr. McMurray’s argument. That determination
may be made in one of two ways. First, the case could be
remanded to the Superior Court of Burke County for an
evidentiary hearing on the defendant’s Motion for
Appropriate Relief under N.C.G.S. §15A-1420(c)(2)(4),
compare, N.C.G.S. §15A-1418(b); and State v. Hurst, 304
N.C. 709, 285 S.E. 2d 808 (1982).

A-137

A second alternative would be for this court to accept the
transcript of the State Bar proceedings in diminution of the
record on appeal since that proceeding was, in fact, an
evidentiary hearing with full rights to call and require the
attendance of witnesses, present evidence take sworn
testimony, cross-examine witnesses, etc. After review of the
transcript of those proceedings this Court may make its
own determination as to the content of Mr. McMurray’s
argument, or conversely, decide that such a determination
cannot be made. In the latter event defendant’s appeal
would properly be dismissed as it is his duty to preserve the
record on appeal or seek a stipulation from the District
Attorney on the matter in question. State v. Bennett, 308
N.C. 530, 302 S.E. 2d 786 (1983). Mr. Fuller testified at the
State Bar hearing that he did not request the court reporter
to transcribe the arguments (Tr. of Bar Hearing, Vol. | pp.
167-68). Defendant’s exhibit 2, introduced at the Bar hhearing
shows that the court reporter wrote to counsel specifically
asking if the arguments should be transcribed. However,
court reporter also testified that no one had asked her to
transcribe the arguments. (Tr. of Bar Hearing Vol. 2 p. 127).
Nor is the fact the District Attorney agreed to the record on
appeal equivalent to a stipulation that defendant’s rendition
of Mr. McMurray’s argument contained in the Mottion for
Appropriate Relief is accurate.

Another important justification for acceptimg the
transcript of the Bar proceedings in diminution of the
record on appeal is that it sheds light upon both Mr. Fuller’s
and Mr. McMurray’s perceptions of the case and how the
jury was reacting. This is critical for, as the U.S. Supreme
Court recently stated in Strickland v. Washington, ——

U.S. 80 L.Ed.2d 674 694 (1984),

A fair assessment of attorney performamce
requires that every effort be made to eliminate the
distorting effects of hindsight. to reconstruct the
circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counssel’s
perspective at the time....

A-138

In summary, the State submits that the best interests of
justice will be served by proceeding only after there has been
a judicial determination as to the actual content of and
reasons for Mr. McMurray’s argument.

CONCLUSION

For the reasons stated above, the State’s Motion in
Diminution of the Record on Appeal orto Remand for an
Evidentiary Hearing should be granted.

Respectfully submitted,

LACY H. THORNBURG
Attorney General

/s/ Lucien Capone III

Assistant Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, North Carolina 27602
Telephone: (919) 733-7387

A-139

APPENDIX Q

SUPREME COURT OF NORTH CAROLINA
Area Code 919 733-3723 P.O. Box 2170
Raleigh, North Carolina 27602

June I1, 1985

Mr. Lucien Capone, III
Assistant Attorney General

Department of Justice
Raleigh, N.C. 27602

Re: State v. William Harbison, Jr.
No. 400PA84

Dear Mr. Capone:

Attorney General’s Motion In Diminution of Record on
Appeal or to Remand for an Evidentiary Hearing has been
filed and the following order entered:

“Denied by order of the Court in conference this
the 4th day of June 1985.

/s/ Fry, J.
For the Court

Accordingly, the Attorney General shall have up to and
including 27 June 1985 to file his brief in this Court.

Very truly yours,

J. Gregory Wallace
Clerk of the Supreme Court

JGW:wdp

A-140

xc: Mr. Adam Stein, Appellate Defender
Mr. Malcom Ray Hunter, Jr., Ist Assistant Appellate
Defender
Mr. Major A. Joines, Clerk of Superior Court
Mr. Robert E. Thomas, District Attorney

nn ee il

A-141

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that | am an Assistant Attorney
General for the State of North Carolina, and that I have
served copies of the foregoing APPENDIX by depositing
same in the United States mail at Raleigh, North Carolina,

first class postage prepaid, to:

Mr. Louis D. Bilionis

Box 1070
Raleigh, North Carolina 27602

This 13th day of February, 1986.

/s/Barry S. McNeill
Assistant Attorney General
Attorney for Petitioner

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1453%3A2. Public record. Not legal advice.