State v. Baynes

ORR, Judge. The defendant raises two issues on appeal. He argues that his constitutional right to effective assistance of counsel pursuant to the Sixth and Fourteenth Amendments of the United States Constitution and Article I, §§ 19, 23 and 24 of the North Carolina Constitution has been violated by the statements made to the jury by defense counsel during closing arguments. He further argues that the Pattern Jury Instructions on Battered Child Syndrome unconstitutionally relieved the State of its burden of proving the elements of the crime beyond a reasonable doubt. I. The defendant first contends that he was denied effective assistance of counsel when his attorney conceded his guilt of the lesser included offense of involuntary manslaughter in closing arguments. Since we are unable to discern from the record whether the defendant did in fact consent to the statements of his attorney during closing argument to the jury, we remand for an evidentiary hearing to determine whether the defendant allowed his attorney to make the argument at issue here. The typical test for ineffective assistance of counsel is the same under both the federal and state constitutions. “A defendant is entitled to relief if he can show both (1) that his counsel’s performance fell below an objective standard of reasonableness, and (2) that his counsel’s deficient representation was so serious as to deprive him of a fair trial.” State v. Thomas, 329 N.C. 423, 439, 407 S.E.2d 141, 151 (1991), quoting State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985); see also Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984). However, as the defendant points out, in State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986), the North Carolina Supreme Court held that a violation of a defendant’s Sixth Amendment right to counsel was shown where defense counsel, without the defendant’s consent, admitted the defendant’s guilt, and recommended that jurors convict him of manslaughter rather than murder. “[A]ny concession of a client’s guilt absent a consent by defendant to do so constitutes ineffective assistance of counsel per se.” State v. McDowell, 329 N.C. 363, 386, 407 S.E.2d 200, 213 (1991). Only “where a knowing consent has been demonstrated, . . . [should] the issue concerning ineffective assistance of counsel be . . . examined pursuant to the normal ineffectiveness standard [169] set forth in Strickland v. Washington.” Id. at 387, 407 S.E.2d at 213 (citations omitted). In the case at bar, counsel for the defense made the following statements to the jury during his closing argument. Now, let me tell you what I think — what I contend he’s guilty of. I don’t think he’s guilty of second degree murder. I think he’s guilty of involuntary manslaughter. Now, again, you listen to His Honor as he instructs the jury. I think the behavior that Mr. Baynes demonstrated that morning shows criminal negligence, but not the malice that the State has tried to allege here. So, I say to you it doesn’t have to have the malice —I say to you his behavior at that time was criminally negligent, because it was reckless and it was careless, and it showed a thoughtless disregard of the consequences and the behavior, and a heedless indifference to her. The trial judge instructed the jury on second-degree murder and involuntary manslaughter. While the State contends in its brief before this Court that the defendant’s statements during sentencing “can only be an admission of guilt . . .”, we find that these statements alone are insufficient to infer consent to the defense attorney’s argument. Whether defendant gave consent for his attorney to concede his guilt during the guilt determination phase is the dispositive question in the determination of the potential Sixth Amendment violation under Harbison. This post-verdict statement standing alone cannot foreclose the issue of consent by the defendant to the attorney’s oral argument to the jury during the guilt phase of a trial. In the case sub judice, the defendant stated, “Well, I would like to say one thing. I would like to say I’m very sorry to the family of Faith Williamson, and to the children and to the Court. And, I would like to thank the jury for going through their patience of going along with the trial.” While these statements may indicate remorse on the part of the defendant, standing alone they do not rise to the level of evidence necessary to show knowing consent as mandated by McDowell and Thomas. [170] In both McDowell and Thomas, clear evidence was presented that tended to show the defendant knowingly consented to the actions of his attorney at the time of closing arguments. In Thomas, on remand by the North Carolina Supreme Court, an evidentiary hearing was held on the issue of consent. State v. Thomas, 327 N.C. 630, 397 S.E.2d 79 (1990). The trial judge found as a fact that the defendant had consented to the attorney’s admission to the murder as a matter of trial strategy in order to hold the State to its burden of proof on a sexual offense charge; there was in fact a writing which recorded the defendant’s consent. In McDowell, the trial judge questioned the defendant just prior to his attorney’s closing argument to ensure that he had specifically authorized the concessions in thé argument. The court then further advised the defendant that if at any time the defendant felt that his attorney exceeded the authority he had given, he (the defendant) was to raise his hand and the judge would stop the attorney from further argument, “so we can make sure the only arguments to the jury is [sic] within the authority you granted.” McDowell at 386, 407 S.E.2d at 213. In the instant case, the record fails to disclose any evidence presented at trial which indicates whether an informed and knowing consent was given by the defendant. Since here, unlike in Harbison, the State has questioned the defendant’s assertion that he did not in fact consent to the argument of his attorney and the record is silent on that point, in the exercise of our supervisory powers over the trial divisions, we remand this case to the superior court for an evidentiary hearing to determine whether the defendant knowingly consented to counsel’s concessions of the defendant’s guilt. State v. Sanders, 319 N.C. 399, 354 S.E.2d 724 (1987); see also N.C. Gen. Stat. § 7A-32(b). If the defendant did not consent, then a new trial would be mandated, although we note our concern that an unscrupulous lawyer has nothing to lose for his client by failing to obtain prior consent to the attorney making an unauthorized admission of guilt to a lesser offense. If the jury accepts the attorney’s argument, the defendant potentially escapes conviction of a more serious charge. If the defendant is convicted of the more serious charge, under Harbison, the defendant appears to be guaranteed an automatic new trial by virtue of the ineffective assistance argument based on lack of consent. [171] II. As to the defendant’s second assignment of error, we find no merit to his argument that the Pattern Jury Instructions given to the jury impermissibly shifted the burden of proof to the defendant in violation of In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368 (1970). The disputed instruction given to the jury by the trial judge states: [I]f you find from the evidence, beyond a reasonable doubt, that at the time when the victim died, she had sustained multiple injuries at different locations on her body, and that those injuries were at different stages of healing. And, if you find that the physical condition of the victim’s body was inconsistent with any explanation as to the cause of the victim’s injuries, given at or about the time of her death, you may consider such facts, along with all other facts and circumstances in determining whether the injury which caused the victim’s death was intentionally inflicted, and not the product of accident or misadventure. The above instruction, N.C.P.I., Crim. 206.35, was approved by this Court in State v. Hitchcock, 75 N.C. App. 65, 330 S.E.2d 240, disc. review denied, 314 N.C. 334, 333 S.E.2d 493 (1985). We therefore overrule this assignment of error. Remanded. Judge EAGLES concurs. Judge COZORT concurs in part and dissents in part.