Opposition Brief — North Carolina v. Harbison

‘EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

Supreme Court. US.

FILED

APR 241986

JOSEPH F. SPANION. JR.

CLERK

ee ee ee ee ee ee a ee ee ee ee ee eee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1985

STATE OF NORTH CAROLINA

Petitioner,

Vv.

WILLIAM HARBISON, JR.

Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court of North Carolina

BRIEF FOR THE RESPONDENT

IN OPPOSITION

Malcolm Ray Hunter, Jr.

Appellate Defender

Office of the Appellate

Post Office Box 1070

Raleigh, North Carolina

(919) 733-9490

Defender

27602

COUNSEL OF RECORD FOR RESPONDENT

Louis D. Bilionis

Assistant Appellate Defender

COUNSEL FOR RESPONDENT

9 —-— .. eee

QUESTION PRESENTED

WHETHER THE NORTH CAROLINA SUPREME

COURT CORRECTLY CONCLUDED THAT IT IS

ESSENTIAL TO OUR ADVERSARIAL CRIMINAL

PROCESS THAT ANY DECISION TO CONCEDE

GUILT -- WHETHER FORMALLY BY PLEA OR

FUNCTIONALLY BY ARGUMENT TO THE JURY --

BE MADE BY THE ACCUSED AND NOT, AS HERE,

BY A LAWYER IN DIRECT CONTRAVENTION OF

HIS CLIENT'S EXPRESSED WISHES.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...cceccccccccnccccvesesecccccceceseces i

OPINION BELOW ..cccccccccccccncccccccsccccceseevesesssees I

JURISDICTION ..cccccecccececvvcccccccccecesesessseseseses |

CONSTITUTIONAL PROVISIONS INVOLVED ...ceeeeeeeceeeeeeecee 2

STATEMENT ..ccccccccccccccccccccccccccccecseeesseeseeeess FS

ARGUMENT ..ccccccccccccccccccvccccsccceecscesesscessseses B

CONCLUSION eeererereerereereereeeeeeeereeeeereeeereereeeeeeeereeeeee 22

TABLE OF AUTHORITIES

Cases

Boykin v. Alabama,

395 Ceme 238 (1969) *eeeoeeeeeeeeeenrteeeeeeneeneeeeeeeeee 14

Brookhart v. Janis,

ee Wee 2 COE) Wee ek d 66000066665 bea Kee eken TS

Cabana v. Bullock,

38 Cr. L. Rptr. 3093 (U.S. Jan. 22, 1986)

(No. 84-1236) eeeeeeveeeeeeeeeeereeeereeereeeereeereeeeee 12

Commonwealth v. Lane,

SER Bae Gee Cems USTED ccacandcnciescirticcscoccciae ES

Connecticut v. Johnson,

460 Bas 73 (1983) eee eeeeeeeeeeeeeeeeeeeeeeeeeeeee 19

Cuyler v. Sullivan,

446 Sates 335 (1980) eoeeeeveeveeeeeeeeeeeeeeeeeeeeeeeeee 10

Faretta v. California,

422 U.S. 806 (1975) eeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 13

Francis v. Spraggins,

720 F.2d 1190 (llth Cir. 1983), cert.

denied, U.S. » 105 S.Ct. 1776 (1985) ....2-5 17

Gedders v. United States,

425 Dawe 80 (1976) eeeeeeeeeeeeeeeeeeeeeeneeeeeeeeee 10

Hill v. Lockhart,

54 U.S.L.W. 4006 (U.S. Nov. 18, 1985)

(No. 84-1103) eeeeverereeeerereeereereereeeeeeereereeree 12,13,19

In re Winship,

397 Ued< 358 (1970) eeeeeeeeeeeeeeeeneeeeeee 8,10,18,19

iii

King v. Strickland,

748 F.2d 1462 (llth Cir. 1984), cert.

denied, U.S. » 105 §.Ct. 2020 (1985) .... 18,19

McKaskle v. Wiggins,

WS Gates. BOW CRORE) ccnccececccacacecusedecanvccacnes U9

McNeal v. Wainwright,

Tae Uuae WTO COSTER CEG. TOBA) cacaccacdecrenvecsers 19

Mullaney v. Wilbur,

RAE Ween OR CASTE) cccaceccscesenccecse Be iOe 8S, 86, t9

Nix v. Whiteside,

54 U.S.L.W. 4194 (U.S. Feb. 26, 1986)

(No. 84-1321) e@eeoeveveeeeeeeeeeeeeeeeeeeeeeeeee eee 10,21

People v. Hattery,

I11.2d , 4866 N.BE.2d 513 (1968S) wescess 16-19, 20

State v. Braswell,

See Baty Sas, BOS S.B. BE BAT C&9BS) cecccccsarewsasa £3

State v. Harbison,

315 N.C. 175, 337 S.E.2d 504 (1985) ....0.e.00+ passim

State v. Harbison,

293 BiG. 674, 238 S.B.26 449 CI9T7T) cacececaeccecece 3

State v, Lamn,

Bae Bccn S202, GE Si. B26 TOS CI9SO) scccccccacesscses J

State v. Reynolds,

SGT Mees Fees S207 SiB. 26 SSF CASC2Z). cavicccccavecsrce F

State v. Sinclair,

SUL BuGs £93, 270 S.B.26 416 (1960) wecccccccsesess 12

Strickland v. Washington,

466 > F 668 (1984) eeeeoeeeeeveeeeeeneeeeeeeeeeeee passim

United States v. Cronic,

466 Uebs 648 (1984) e*eeeeeeeeeveeeeeeeeeeeeeeeeeee passim

United States v. Leifried,

TBE Feae SEw COCR Civ. WSSE) cecccccesecscecceseces 19

Wiley v. Sowders,

647 F.2d 642 (6th Cir.), cert. denied,

454 U.S. 1091 (1981) eeeeneveeeeeeeeeeeeeereeeeeeeeeee 17

Young v. Zant,

77 F.2d 792 (llth Cir. 1982) eeeeoeeeeeeeeeveeeeeeeeee 18

Constitutional Provisions

U.S. Comet. Amend. VI siccccvacccescccsceavessecocees BORGIR

0.8. Gonet. Amend. EIV, See. 1 ccsccccocscsseccrssce SOSRIS

Raids Const. Art. as Sec. 19 eeeeveeeeeeveeeeeeeeeneereeeeeeeee 2

N.C. Const. Art. iw Sec. 23 eeeereeeereereeeeeerereereereeeeee ase

Statutes and Rules

28 U.S.C. 1257

eeeeeeeereeeeeeeeeeeeseeeeeeeeeeeeeeeeeeeeesd 1

28 U.S.C. 2254

Comer eeerececnececccvecccncceccceceseccese 12

MaGeSeSs BRON? cancnsccccesessecsccescccesecssccccescences $

N.C.G.S. 15A-1011] through 15A-1026 ...ccecccccccccsesees 12

MoC.C.S. LSA—142Z2Z(])CS) woccccccvccvccccsccccecsccseseces S&

Rule 32, North Carolina Rules

OF Appellate Proceeure cccsccecesccsecsecsevecsecsese 1

Miscellaneous

Standard 4-5.2, ABA Standards for Criminal

Justice (2nd ed. 1980) eoeeenereeeeeeeeeeeeeeeeeeeeeeee 21

North Carolina Code of Professional Responsibility:

Disciplinary Rule 7-101(A)(1) eee e eee eee eee ee eer eeee 21

Ethical Consideration 7-7 *eeeieneeeeeneeneeeneeeeeeeeee 21

Ethical Consideration 7-8 eeeeeeeeeeeeeeeeeeeeeeeee 21

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1985

No. 85-1337

STATE OF NORTH CAROLINA, Petitioner,

Vv.

WILLIAM HARBISON, JR., Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court of North Carolina

BRIEF FOR THE RESPONDENT

IN OPPOSITION

OPINION BELOW

The opinion of the Supreme Court of North Carolina,

reported at 315 N.C. 175, 337 S.E.2d€ 504 (1985), is

reproduced in the Petitioner's Appendix. (Pet. App. Al-A7)

JURISDICTION

The judgment of the Supreme Court of North Carolina was

entered on December 30, 1985.! The State's petition for

writ of certiorari, invoking the jurisdiction of this Court

under 28 U.S.C. 1257, was filed on February 8, 1986.

1The opinion of the Supreme Court of North Carolina was

filed on December 10, 1985. The judgment of the Court (as

well as the Court's mandate) is entered twenty (20) days

after the date of the filing of the opinion. N.C. R. App.

P. 32.

CONSTITUTIONAL PROVISIONS

INVOLVED

In the Supreme Court of North Carolina, the Sixth and

Fourteenth Amendments to the United States Constitution and

Article I, Sections 19 and 23 of the North Carolina

Constitution were asserted by the Respondent.

U.S. Const. Amend. VI provides:

In all criminal prosecutions the

accused shall enjoy the right to a

speedy and public trial, by an

impartial jury of the state and

district wherein the crime shall

have been committed, which district

shall have been previously

ascertained by law, and to be

informed of the nature and cause of

the accusation; to be confronted

with the witnesses against him; to

have compulsory process for

obtaining witnesses in his favor,

and to have the assistance of

counsel for his defense.

U.S. Const. Amend. XIV, Sec. 1 provides:

All persons born or naturalized

in the United States, and subject

to the jurisdiction thereof, are

citizens of the United States and

of the State wherein they reside.

No state shall make or enforce any

law which shall abridge the

privileges or immunities of

citizens of the United States; nor

shall any state deprive any person

of life, liberty, or property,

without due process of law; nor

deny to any person within its

jurisdiction the equal protection

of the laws.

N.C. Const. Art. I, Sec. 19 provides:

No person shall be taken,

imprisoned, or disseized of his

freehold, liberties, or privileges,

or outlawed, or exiled, or in any

manner deprived of his life,

liberty, or property, but by the

law of the land. No person shall

be denied the equal protection of

the laws; nor shall any person be

subject to discrimination by the

State because of race, color,

religion, or national origin.

N.C. Const. Art. I, Sec. 23 provides:

In all criminal prosecutions,

every person charged with crime has

the right to be informed of the

accusation and to confront the

accusers and witnesses with other

testimony, and to have counsel for

defense, and not be compelled to

give self-incriminating evidence,

or to pay costs, jail fees, or

necessary witness fees of the

defense, unless found guilty.

STATEMENT

On May 3, 1984, William Harbison, Jr., filed a pro se

motion for appropriate relief in the Superior Court for

Burke County alleging that he was denied effective

assistance of counsel at his 1976 triel for homicide and

felonious assault. (Pet. App. A42-A46) Harbison's verified

pleading focused upon the closing argument of John H.

McMurray, his court-appointed counsel. McMurray, it was

alleged, conceded that the defendant was not innocent and

indeed deserved punishment. "I don't feel," McMurray

allegedly said, “that 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." (Pet. App. A44-A45)

That closing argument came as a surprise to Harbison,

whose plea had been not guilty because he steadfastly

maintained that he acted in self-defense and deserved no

punishment at all. Harbison admitted firing several shots

at a vehicle driven by Danna Franklin, a _ periodic

girlfriend, and it was shown that the shots wounded Franklin

and killed a passenger, Morris Hardy. But Harbison, who

testified, denied that it was the cold-blooded killing of a

perceived rival suitor suggested by the prosecution.

The event, according to the defense, arose in a

decidedly different way. Harbison and Franklin had taken to

meeting clandestinely on secluded backroads to hide their

interracial relationship. Often, they would signal their

desire to get together by flashing the lights of their cars

at one another when they would pass on the local streets.

On the night in question, Harbison saw the lights of

Franklin's car flash at him and he assumed that a rendez-

vous was suggested. As was the custom, Harbison followed

the Franklin car along country roads. But he became

concerned when the Franklin car travelled so fast and so

erratically. It gradually occurred to Harbison that the

vehicle was being driven by someone other than Franklin --

likely Franklin's father, who stood opposed to Harbison's

relationship with his daughter.

Finally overtaking the vehicle, Harbison left/his car

and approached the other car on foot. Suddenly, the car

accelerated toward him. Fearing for his safety, Harbison

drew his gun and fired two shots at the car's tire. The car

kept coming at the defendant and he discharged three more

shots in a panic while side-stepping the vehicle.

McMurray's argument also surprised James C. Fuller,

Jr., who appeared as co-counsel for the defendant at trial.

(Pet. App. A51) Until McMurray's reversal of course, both

Fuller and McMurray had been adhering to their client's

claim of self-defense. Indeed, Fuller pressed that chosen

defense in his own closing argument that was delivered to

the jury before McMurray's. Like Harbison, Fuller was

neither consulted nor even warned about McMurray's decision

to break rank and confess Harbison's guilt.

The jury evidently disagreed with the prosecution's

theory of the case, for it refused to find Harbison guilty

of first degree murder.? But the jury evidently agreed with

McMurray; instructed on self-defense, the jury rejected the

defense and found the defendant guilty of second degree

murder and assault with a deadly weapon inflicting serious

injury.3 If the sentence Harbison received is any measure,

he enjoyed no unexpected windfall from McMurray's unwanted

concession of guilt. A life sentence, the sternest sentence

available under North Carolina law at the time of his trial,

was imposed. On direct appeal, the Supreme Court of North

Carolina affirmed. See State v. Harbison, 293 N.C. 474, 238

S.E.2d 449 (1977).

In the state post-conviction proceeding, the

prosecution filed no response to Harbison's allegations.

The Superior Court, without holding an evidentiary hearing,

simply denied Harbison's motion for appropriate relief.

Still proceeding pro se, Harbison then petitioned the

Supreme Court of North Carolina for review by way of writ of

certiorari.* The Court granted the writ, appointed North

Caroline's Appellate Defender to represent Harbison, and

2In North Carolina, first degree murder is the unlawful

killing of a human being with malice and with a specific

intent to kill with premeditation and deliberation. E .

N.C.G.S. 14-17; State v. Lamm, 232 N.C. 402, 61 S.E.2d 188

(1950). Second degree murder differs from first degree

murder in that no specific intent, premeditation, or

deliberation need be established. E.g., State v. Reynolds,

307 N.C. 184, 297 S.E.2d 532 (1982).

3In the assault case, the jury rejected a possible

finding that Harbison intended to kill Danna Franklin.

“There is no right of appeal to North Carolina's

appellate courts from a denial of a post-conviction motion

for appropriate relief brought after the conclusion of the

direct appeals process. N.C.G.S. 15A-1422(c)(3).

ee a

specified that its review would be “limited to whether trial

counsel's argument to the jury constituted prejudicial

error.” (Pet. App. A5S6)

As Petitioner points out at length (Pet. at 8-10), the

North Carolina State Bar conducted an independent

disciplinary proceeding against McMurray while Harbison's

case was pending in the Supreme Court. Omitted from the

State's discussion, however, is the fact that the three-

member Bar panel unanimously concluded that McMurray's

alleged conduct constituted a violation of his duties under

North Carolina's Code of Professional Responsibility. The

Bar panel divided only on whether the alleged facts were

satisfactorily established. (Pet. App. Al23-Al31)

Petitioner now draws liberally from evidence adduced

during the Bar's proceeding, but the Supreme Court of North

Carolina specifically denied Petitioner's request to make

those matters part of the record.> (Pet. App. A139) The

certified record of the case as it appeared to the Supreme

Court of North Carolina, accordingly, will fail to support

many of Petitioner's factual assertions and will not contain

many materials now gathered in Petitioner's Appendix.

The Supreme Court of North Carolina, in a unanimous

opinion, vacated Respondent's convictions and remanded the

cases for a new trial. As a first step in its analysis, the

Court examined McMurray's argument in light of the facts of

the case and found that the closing argument was

functionally equivalent to the entry of a plea of guilty to

SOmitted from the Petitioner's Appendix is Harbison's

response to the State's request to enlarge the record in the

Supreme Court of North Carolina. Harbison opposed the

request because he was not a litigant in the Bar proceeding,

had no say in the conduct of that litigation, and could

neither call witnesses nor proffer argument there.

the crime of manslaughter. It was a concession of guilt

that was unauthorized by Harbison and in fact was contrary

to his chosen plea, his chosen defense at trial, and his

testimony at trial. Reasoning that a lawyer has no power or

discretion to overrule a client's plea of not guilty, the

Court concluded that Harbison was the victim of ineffective

aassistance. 315 N.C. at 180, 337 S.E.2d at 507 (reproduced

at Pet. App. A6). While "cognizant of situations where the

evidence is so overwhelming that a plea of guilty is the

best trial strategy," the Court nonetheless believed that

such a strategy is permissible only when it is conducted

with the approval of the client. "(T]he gravity of the

consequences demands that the decision to plead guilty

remain in the defendant's hands." Id.

Turning to the question of prejudice, the Court found

what it thought obvious -- a lawyer's unauthorized

concession of his client's guilt causes a trial to lose

certain of the fundamental attributes that allow us to say

that a fair trial has been had:

[W]hen counsel to the surprise of

his client admits his client's

guilt, the harm is so likely and so

apparent that the issue of

prejudice need not be addressed.

* * *

When counsei admits his client's

guilt without first obtaining the

client's consent, the client's

rights to a fair trial and to put

the State to the burden of proof

are completely swept away. The

practical effect is the same as if

counsel had entered a plea of

guilty without the client's

consent. Counsel in such

situations denies the client's

right to have the issue of guilt or

innocence decided by a jury.

Harbison suffered prejudice -- as would virtually any

individual standing in his shoes. He was denied advocacy of

his interests, an uncompromised test of the State's case

under In re Winship, 397 U.S. 358 (1970), and Mullaney v.

Wilbur, 421 U.S. 684 C2975), and an uncompromised

determination of his case by a jury.

The Supreme Court of North Carolina paid heed to

evidence adduced at Harbison's trial and consulted its prior

opinion affirming the convictions on direct appeal. 315 N.C.

at 177-78, 337 S.E.2d at 505-06 (Pet. App. A2-A3). The

Court likewise was aware of the unusual factual and

procedural nuances in the case -- the alleged lateness of

Harbison's motion and the State's claim of laches; the

absence of a transcript of McMurray's closing argument and

the State's corresponding claim of procedural default; the

want of an evidentiary hearing in the Superior Court; the

lack of findings of fact by the lower court; Harbison's

reliance on only his verified pleading and Fuller's answers

to interrogatories; and the Bar proceeding and the divided

panel's determination.

In answer to some of the peculiar procedural and

factual problems raised by the State, the Court invoked its

special discretionary powers to reach the merits. Id. at

178, at 506 (Pet. App. A3-A4).

ARGUMENT

To the Supreme Court of North Carolina, the prejudice

in this case was obvious. Respondent was denied the

experience of a true adversarial trial and the right to

insist that the prosecution prove its case without the

benefit of a concession of guilt to any offense charged in

the bill of indictment.

In so concluding, the Supreme Court of North Carolina

conducted a straightforward application of the principles

enunciated in Strickland v. Washington, 466 U.S. 668 (1984),

and United States v. Cronic, 466 U.S. 648 (1984). it

awarded a new trial because McMurray's action transformed

Harbison's trial into something less than the true

adversarial proceeding contemplated by the constitution.

The operative principle that has animated this Court's

Sixth Amendment analysis was stated succinctly by Justice

Stevens in Cronic:

When a true adversarial criminal

trial has been conducted -- even if

defense counsel may have made

demonstrable errors -- the kind of

testing envisioned by the Sixth

Amendment has occurred. But if the

process loses its character as a

confrontation between adversaries,

the constitutional guarantee is

violated.

466 U.S. at 656-57 (footnotes omitted). The Supreme Court

of North Carolina identified several essential attributes of

a true adversarial proceeding that were missing from

Harbison's trial.

Indispensable to a true adversarial criminal trial is

loyal advocacy -- however effective -- anc it was

unmistakably absent at a critical point in Harbison's trial.

"That a person who happens to be a lawyer is present at

trial alongside the accused .. . is not enough to satisfy

the constitutional command." Strickland, 466 U.S. at 685.

10

No matter how skillful or competent, a lawyer by definition

must remain the client's representative and must stand as a

loyal advocate of the accused's cause and not his own.

After all, the accused and not the lawyer is the party to

the proceeding:

Representation of a criminal

defendant entails certain basic

duties. Counsel's function is to

assist the defendant, and hence

owes the client a duty of loyalty,

a duty to avoid conflicts of

interest. From counsel's function

as assistant to the defendant

derive[s] the overarching duty to

advocate the defendant's cause.

Id. at 685. "[T]he adversarial process protected by the

Sixth Amendment requires that the accused have ‘counsel

acting in the role of an advocate.'” Cronic, 466 U.S. at

656 (quoting Anders _v. California, 386 U.S. 738, 743

(1967)). See also Nix v. Whiteside, 54 U.S.L.W. 4194, 4196

(U.S. Feb. 26, 1986)(No. 84-1321); Cuyler v. Sullivan, 446

U.S. 335 (1980); Gedders v. United States, 425 U.S. 80

(1976).

McMurray abandoned the role of advocate and became an

active and vocal adversary of Harbison's own expressed

wishes and interests. To the jury, and certainly to

Harbison, there arose a profound conflict of interest

between client and counsel. Harbison wanted an acquittal

and McMurray was asking for a conviction on a lesser

offense. The scene does not resemble the true adversarial

proceeding the constitution demands. An adversary was

seated in the chair reserved for the loyal advocate.

Another sine qua non of a true adversarial proceeding

is the requirement, under In re Winship and Mullaney v.

ll

Wilbur, that the State be held to its burden of proof beyond

reasonable doubt:

Of course, the Sixth Amendment

does not require that counsel do

what is impossible or unethical.

If there is no bona fide defense to

the charge, counsel cannot create

one and may disserve the interests

of his client by attempting a

useless charade. At the same time,

even when no theory of defense is

available, if the decision to stand

trial has been made, counsel must

hold the prosecution to its heavy

burden of proof beyond reasonable

doubt.

Cronic, 466 U.S. at 656 n.19 (citations omitted)(emphasis

supplied). See also Strickland, 466 U.S. at 685 ("a fair

trial is one in which evidence subject to adversarial

testing is presented to an impartial tribunal for resolution

of issues defined in advance of the proceeding").

That fundamental attribute likewise was missing from

Harbison's trial. The Supreme Court of North Carolina

examined the record before it and found that McMurray's

argument had an effect tantamount to the entry of a plea of

guilty without Harbison's consent. 315 N.C. at 180, 337

S.E.2d at 507 (Pet. App. A6). To the Court, there appeared

a reasonable probability that Harbison's issues were not

resolved by an impartial jury's application of the law to

the evidence. Although the jury was instructed on the law

of self-defense, the Court saw no legitimate reason to

believe that the jury gave self-defense an unbiased

consideration in the wake of McMurray's unauthorized

concession of Harbison's guilt. Although the trial court

instructed the jury on the presumption of innocence and the

State's burden of proof, the Supreme Court similarly saw no

legitimate reason to believe that the jury fairly considered

Harbison's possible innocence.

12

Far from ignoring the question of prejudice, the

Supreme Court found it and identified it. That finding

should be accorded respect consistent with the principles of

federalism embodied in 28 U.S.C. 2254.6 See Strickland, 466

U.S. at 698; see alen Cabana v. Bullock, 38 Cr. L. Rptr.

3093 (U.S. Jan. 22, 1986)(No. 84-1236).

Given that finding, the Court's decision this Term in

Hill v. Lockhart, 54 U.S.L.W. 4006 (U.S. Nov. 18, 1985)(No.

84-1103), proves strikingly similar to the decision below.

In Hill, the principles articulated in Strickland and Cronic

were applied to challenges to guilty pleas based on

ineffective assistance of counsel. Speaking particularly to

the second, or "prejudice," requirement of Strickland,

Justice Rehnquist concluded for the majority that:

[I]n order to satisfy the

"prejudice" requirement, the

defendant must show that there is a

reasonable probability that, but

for counsel's errors, he would not

have pleaded guilty and would have

insisted on going to trial.

54 U.S.L.W. at 4008 (emphasis supplied)(footnote omitted).

The Supreme Court of North Carolina's decision in this

case rests comfortably within Hill's ambit. The record

shows beyond any doubt that Harbison insisted on pleading

not guilty and insisted on going to trial. What Harbison

received as a consequence of McMurray's unauthorized plea on

his behalf, however, was only the hollow shell of a trial --

6It is worthy of mention that the Supreme Court of

North Carolina apparently believed that the effect of

McMurrey's argument also contravened State law principles

governing an accused's rights relative to the plea. The

Court pointed to the seminal North Carolina authorities on

that issue -- N.C.G.S. 15A-1011 through 15A-1026 and State

v. Sinclair, 301 N.C. 193, 270 S.E.2d 418 (1980).

13

a proceeding where the impartial jury determination of

guilty or not guilty in accordance with Mullaney v. Wilbur

which Harbison sought was effectively foreclosed.

The Supreme Court of North Carolina also discerned yet

another fundamental attribute of our criminal process that

was absent from Harbison's case. As this Court's opinions

teach, our constitution command: a very limited but

absolutely indispensable respect for an accused's autonomy

as a competent human being. That immutable respect was

denied to Harbison.

Concern for essential human dignity has independent

force within the Anglo-American system of criminal justice.

It is a virtue that contributes to the legitimacy and

integrity of our adversarial process. The constitution

reserves certain core decisions to citizens and _ those

decisions must be upheld strictly and without equivocation

even when they are demonstrably unwise. While there is much

to be said, for instance, in support of the adage that the

litigator who represents himself has a fool for a client, it

is fairly settled that a per _se constitutional violation,

without a need to show particular prejudice, is demonstrated

where a defendant is deprived of the right of self-

representation under Faretta v. California, 422 U.S. 806

(1975). "The Counsel Clause itself, which permits the

accused ‘to have the Assistance of Counsel for his defence,'

implies a right in the defendant to conduct his own defense,

with assistance at what, after all, is his, not counsel's

triei." McKaskle_v. Wiggins, 465 U.S. 168, 174

(1984)(emphasis in original). As evidenced by the Court's

decision this Term in Hill v. Lockhart, a functionally

14

similar respect is accorded the plea decision reserved to an

accused under Boykin v. Alabama, 395 U.S. 238 (1969); an

involuntary plea -- however wise it might truly have been --

must be set aside if the accused would not have tendered it

but for the ineffective counsei of a lawyer. See _ also

Brookhart v. Janis, 384 U.S. 1 £4(1966)(counsel cannot

override client's plea of not guiity by proffering

functional equivalent of a plea of guilty).

Whatever autonomy the constitution guarantees’ to

Harbison was usurped. His unequivocal plea, defense, and

claim of innocence were overruled by the unsolicited fiat of

his attorney. Had the true adversarial process contemplated

by the constitution been at work, Harbison's expressed

wishes in what, after all, was his case would have been

accorded more respect.

II

To properly test Petitioner's argument, it is perhaps

best to articulate two fundamentally different scenarios

that Petitioner does not distinguish.

The first involves a lawyer who, without any notice to

or any implicit or explicit consent from his client,

concedes his client's guilt to an offense when his client

steadfastly has denied any and all culpability. The second

involves a lawyer who advises his client to permit a

concession of some culpability in the hope of limiting the

potential damage, who obtains the client's consent, and who

then carries out the client's informed wishes. The former

features fundamental departures from the adversarial process

we expect. It is, of course, Harbison's case. The latter

shows a lawyer seeking to effectuate his client's interests

15

within the adversarial process. It is the case that

Petitioner seeks to litigate.

Petitioner's discussion of Strickland's "prejudice"

requirement is premised upon the assumption that a lawyer

possesses the discretion and legitimate authority to plead

his client guilty to a charge even against his client's

expressed wishes. That central premise is. proffered

rhetorically by Petitioner's consistent references’ to

McMurray's decision to admit his client's guilt as

"tactical" or "strategic." In this area of the law, such

labels connote particular lines of thinking and trigger the

application of particular legal doctrines. And indeed, the

"tactical" label contributes precisely that disservice in

Petitioner's argument.

Under Strickland and Cronic -- as well as in North

Carolina under State v. Braswell, 312 N.C. 553, 324 S.E.2d

241 (1985) -- it is widely understood that lawyers enjoy

considerable latitude over "tactical" matters without regard

to their clients' wishes or demands. Within the "tactical"

zone, only seriously egregious errors in judgment will

constitute, in the first instance, ineffectiveness. And

because "[a]ttorney errors come in an infinite variety and

are as likely to be utterly harmless in a particular case as

they are to be prejudicial," Strickland, 466 U.S. at 693,

the defendant generally should be required to prove a

particular prejudice linked to the outcome of the case. So

runs Petitioner's argument here.

Petitioner's argument would seem better advanced in a

case where the premise fits the facts -- namely, a case in

which the lawyer ineffectively advises his client to confess

his guilt to a lesser offense at the conclusion of the

evidence and the client consents to counsel's suggestion.

In those circumstances, the probable impact on the jury's

deliberations might become the exclusive concern because the

adversarial process has not been fundamentally altered. The

question Petitioner presents here really might be raised in

such a case.’ But thet is another case. McMurray ventured

into an area where he possessed no power and no discretion.

When McMurray embarked as he did, he transformed the nature

of the proceedings. Petitioner's argument fails to account

satisfactorily for these facts.

III

\

The Supreme Court of North Carolina in fact was not the

first appellate court to hold, post-Strickland, that per se

ineffective assistance of counsel is established when a

lawyer, by way of argument to the jury, concedes his

client's guilt in a manner at odds with the defendant's

earlier plea of not guilty and without the client's consent.

One month before Harbison's case was decided, the Supreme

Court of Illinois so held in People v. Hattery, I11.2d

» 488 N.E.2d 513 (1985), vacating a death penalty case on

direct appeal.

7Petitioner's Question Presented is "Whether a tactical

decision made by counsel for a criminal defendant to admit,

during jury argument, his client's guilt of a lesser-

included offense but seek acquittal of the offense charged,

constitutes a per _se violation of the defendant's Sixth

Amendment right to the effective assistance of counsel?"

17

)

The Illinois Court followed two federal decisions

handed down before Strickland’ and assessed the legal

climate as follows:

In similar cases, courts have held

that the admission of an accused's

guilt by his defense attorney

violates the defendant's sixth

amendment right to the effective

assistance of counsel. See Mullins

v. Evans (10th Cir. 1980), 622 F.2d

505; State v. Wiplinger (Minn.

1984), 343 N.W.2d Sse; People v.

Fisher (1982), 119 Mich. App. 445,

326 N.W.2d 537; People v. Schultz

(1978), 85 Mich. App. 527, 271

N.W.2¢ 305; People v. Carter

(1976), 41 Ill. App. 3d 425, 354

N.E.2d 482. Cf. Mende Vv. Rednont

(1972), 50 Ill.2d ° E.

766 (defense counsel's closing

argument in which he admitted

defendant's guilt constituted

denial of due process).

After considering the actions of

the defense counsel in the present

case we are convinced that the

prosecution's case was not

subjected to the “meaningful

adversarial testing" required by

the sixth amendment. (United

States v. Cronic (1984), 466 U.S.

8, . ~Ct. 2039, 2045, 80

L.Ed.2d 65, 666.)

d. at » at 518.

Finding substantial support, as did its counterpart in

North Carolina, the Illinois Supreme Court went on to reject

the notion that a lawyer possesses the "tactical" or

"strategic" discretion to stand in opposition to his

client's plea of not guilty:

The State argues that defense

counsel's actions were sound

strategic decisions because the

8see Francis v. Spra ins, 720 F.2d 1190 (llth Cir.

1983), cert. denied » 105 S.Ct. 1776 (1985);

Wiley v. Sowders, 647 F.2d 642 (6th Cir.), cert. denied, 454

U.S. 1091 (1981).

=

18

evidence of defendant's guilt was

overwhelming. We disagree.

Although counsel's strategy may

have been reasonable in light of

the evidence -- a point we need not

consider -- it was an impermissible

one. .. . Counsel may not

concede his client's guilt in the

hope of obtaining a more lenient

sentence where a plea of not guilty

has been entered, unless the record

adequately shows that defendant

knowingly and intelligently

consented to his counsel's

strategy.

, at 519.9

Ho

a

.

©

iad

Finally, the Illinois Court likewise recognized the

prejudice that necessarily follows when a lawyer abandons

his client's informed wishes concerning a plea of not

guilty. The Court could not square the adverse implications

that such action poses under Winship and Mullaney with the

clear admonition in Cronic that “even when no theory of

defense is available, if the decision to stand trial has

been made, counsel must hold the prosecution to its heavy

9The Illinois Supreme Court could have drawn support

from other decisions that have found it fundamentally wrong

for a lawyer to concede a client's guilt against the

client's expressed wishes. See King v. Strickland, 748 F.2d

1462 (llth Cir. er ert. denied, U.S. 105 S.Ct.

2020 (1985); Youn Fant 677 F.2d 792 (llth | Cir. 1982);

Commonwealth v. —* 387 i. 2d 460 (Pa. 1978).

19

burden of proof beyond reasonable doubt." Id. at

519,10

IV

Important policy considerations have been cited in

support of the principles enunciated in Strickland and

Cronic. Petitioner believes they have been undermined by

the Supreme Court of North Carolina, summarizing its

concerns as follows:

If the North Carolina Supreme

Court's decision remains

uncorrected any attorney error may

now be fair game for inclusion in

the limited category of per se

violations as the lower courts use

the Sixth Amendment to second-

guess, on a case by case basis,

those tactical decisions of defense

counsel which appear unwise,

regardless of whether the defendant

10, strict adherance to the dictates of Winship and

Mullaney is essential to the true adversarial process our

constitution requires. Both United States v. Cronic, 466

U.S. 648 (1984) and Hill v. Lockhart, 54 U.S.L.W. 4006 (U.S.

Nov. 18, 1985)(No. 84-1103), so attest; Winship's progeny --

and particularly Connecticut v. Johnson, 460 U.S. 73 (1983)

-- are firm on the issue.

There have been some abberant decisions in the lower

appellate courts, e.g. United States v. Leifried, 732 F.2d

388 (4th Cir. 1984); McNeal v. Wainwri ht, 722 F.2d 674

(llth Cir. 1984), and they should be attributed to a failure

to appreciate the deleterious implications that an

unauthorized concession of guilt to any offense poses under

Winship and Mullaney.

Even so, the conflict among the lower courts alleged by

Petitioner seems more apparent than real. Respondent's

research has revealed no appellate decision reached after

the opinions were handed down in Cronic and Strickland v.

Washington, 466 U.S. 668 (1984), that stands in conflict

with the decision of the Supreme Court of North Carolina.

The cases cited by Petitioner to show a supposed conflict

are, with the exception of King v. Strickland, 748 F.2d 1462

(llth Cir. 1984), cert. denied (U.S. __, 105 S.Ct. 2020

(1985), earlier cases. See Pet. at 14 n. 8, 17-18. The

Eleventh Circuit granted habeas corpus relief in King on the

basis of ineffective assistance and the case does not appear

to present a true conflict in principle.

20

was actually prejudiced. Such a

stow awe ar ANMwwhie

burden on the trial courts and the

State since defense counsel are in

sole control of the creation or

prevention of such errors.

(Pet. at 15)

The Supreme Court of North Carolina did not

characterize its action as “second-guessing." Like the

Illinois Supreme Court in Hattery, the North Carolina Court

held that a lawyer has no power to do without his client's

consent what McMurray did in this case. No reasons or

thought processes are “second-guessed" because they are

simply irrelevant.

Nor does the Supreme Court of North Carolina's holding

create an “intolerable burden" for its lower trial courts

and the finality of their judgments. The holding is clear

and easily followed. When applied to grant relief, it will

be applied only because a defendant's plea of not guilty has

been overruled by a lawyer who is unwilling to respect his

client's constitutional right to elect a full adversarial

trial on the merits and advocate accordingly.

Petitioner is correct, however, in noting that the

prosecution is not perfectly positioned to prevent a lawyer

from acting as McMurray did. But the existence of stern

disciplinary rules should deter the responsible members of

the profession from taking unlawful and unethical actions.

In that vein, it is essential to reiterate one of the few

things Petitioner neglects to mention about the North

Carolina State Bar proceedings lodged against McMurray. The

Bar panel unanimously held that it is a violation of the

State's standards of professional conduct for a lawyer to

21

admit a client's guilt to any offense to a jury without the

client's consent.!1 (Pet. App. A127-A128)

North Carolina lawyers will be deterred and the State's

interest in the finality of its valid and feir criminal

convictions will be satisfied.

l1lThe Supreme Court of North Carolina did not resort in

its opinion to any canons of ethics or standards of

professional conduct. The case thus does not call into

question the weight that such precepts should be given in

Sixth Amendment cases. Cf. Nix v. Whiteside, 54 U.S.L.W.

4194, 4196 (U.S. Feb. 26, 1986)(No. 84-5786)(reserving the

question for a future case).

Ethical and professional norms of course were relevant

to the North Carolina State Bar. The Bar panel relied upon

Disciplinary Rule 7-101(A)(1) of North Carolina’s Code of

Professional Responsibility and Ethical Considerations 7-7

and 7-8 under the code. The disciplinary rule requires that

a lawyer employ every reasonable means -- including reliance

upon the presumption of innocence and the asbertion of any

reasonably available defense -- to achieve a client's lawful

objectives. The ethical considerations, read together, make

clear that it is for the client alone to decide what plea

should be entered and whether an affirmative defense will be

waived.

The Bar panel could have found additional support from

the American Bar Association. Standard 4-5.2 of the

Association's Standards for Criminal Justice (2nd ed. 1980)

provides that “[cJertain decisions relating to the conduct

of the case are ultimately for the accused... [including]

(i) what plea to enter; (ii) whether to waive jury trial;

and (iii) whether to testify in his or her own behalf." The

Association's Commentary to Standard 4-5.2 pointedly notes

that “in a murder prosecution, the defendant, rather than

the defense attorney, should determine whether the court

should be asked to submit to the jury the lesser included

offense of manslaughter."

22

CONCLUSION

| The petition for writ of certiorari should be denied.

Respectfully submitted,

Mle lu , He?

Malcolm Ray Hunter, Jr.

Appellate Defender

Office of the Appellate Defender

Post Office Box 1070

Raleigh, North Carolina 27602

(919) 733-9490

COUNSEL OF RECORD FOR

RESPONDENT

Louis D. Bilionis ,

Assistant Appellate Defender

COUNSEL FOR RESPONDENT