# Opposition Brief — North Carolina v. Harbison

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## Record

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

## Text

‘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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1453%3A3. Public record. Not legal advice.