{ "id": 3734412, "name": "STATE OF NORTH CAROLINA v. KENNETH WAYNE MAREADY", "name_abbreviation": "State v. Maready", "decision_date": "2010-07-06", "docket_number": "No. COA07-171-2", "first_page": "1", "last_page": "35", "citations": [ { "type": "official", "cite": "205 N.C. App. 1" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "315 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716847 ], "opinion_index": -1, "case_paths": [ "/nc/315/0175-01" ] }, { "cite": "476 U.S. 1123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12995, 12899, 12492, 12429, 13010, 12883, 12756, 12661, 13047, 12568, 13049, 12828, 12351 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/1123-12", "/us/476/1123-01", "/us/476/1123-10", "/us/476/1123-08", "/us/476/1123-13", "/us/476/1123-11", "/us/476/1123-03", "/us/476/1123-07", "/us/476/1123-02", "/us/476/1123-06", "/us/476/1123-05", "/us/476/1123-09", "/us/476/1123-04" ] }, { "cite": "616 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633573 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "512" }, { "page": "512", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0500-01" ] }, { "cite": "622 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634478 ], "year": 2005, "pin_cites": [ { "page": "123", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0120-01" ] }, { "cite": "638 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637394 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "590-91" }, { "page": "590-91" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0584-01" ] }, { "cite": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "367" }, { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "614 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633133 ], "year": 2005, "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0337-01" ] }, { "cite": "617 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633690 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/617/0001-01" ] }, { "cite": "651 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639492 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/651/0867-01" ] }, { "cite": "626 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635151 ], "year": 2006, "pin_cites": [ { "page": "285", "parenthetical": "\"See Florida v. 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App.", "case_ids": [ 9440081 ], "year": 2001, "pin_cites": [ { "page": "173", "parenthetical": "\"[A] pronouncement by the trial court which does not require the employment of legal principles will be treated as a finding of fact, regardless of how it is denominated in the court's order.\" (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0169-01" ] }, { "cite": "605 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "parenthetical": "after applying the Harbison analysis, noting \"that the United States Supreme Court has recently discussed whether a concession of guilt by defense counsel constitutes ineffective assistance of counsel per se. See Florida v. Nixon [.]\"" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412029 ], "year": 2004, "pin_cites": [ { "parenthetical": "after applying the Harbison analysis, noting \"that the United States Supreme Court has recently discussed whether a concession of guilt by defense counsel constitutes ineffective assistance of counsel per se. See Florida v. Nixon [.]\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0547-01" ] }, { "cite": "608 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "380", "parenthetical": "\"Harbison applies when defense counsel concedes defendant's guilt to either the charged offense or a lesser included offense.\"" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 487", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470342 ], "year": 2005, "pin_cites": [ { "page": "501", "parenthetical": "\"Harbison applies when defense counsel concedes defendant's guilt to either the charged offense or a lesser included offense.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0487-01" ] }, { "cite": "171 N.C. App. 17", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8434434 ], "year": 2005, "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0017-01" ] }, { "cite": "677 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "510", "parenthetical": "\" 'a counsel's admission of his client's guilt, without the client's knowing consent and despite the client's plea of not guilty, constitutes ineffective assistance of counsel.' State v. Harbison, 315 N.C. 175, 179, 337 S.E.2d 504, 506-07 (1985" } ], "opinion_index": 0 }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "359 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801139 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0644-01" ] }, { "cite": "361 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739107 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0610-01" ] }, { "cite": "360 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787721 ], "year": 2006, "pin_cites": [ { "page": "315", "parenthetical": "\"See Florida v. Nixon, 543 U.S. 175, 178 (2004" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0297-01" ] }, { "cite": "543 U.S. 175", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3427198 ], "weight": 10, "year": 2004, "pin_cites": [ { "page": "192" }, { "page": "581", "parenthetical": "citations omitted" }, { "page": "190-91" }, { "page": "580-81", "parenthetical": "citations omitted" }, { "page": "178", "parenthetical": "'This capital case concerns defense counsel's strategic decision to concede, at the guilt phase of the trial, the defendant's commission of murder, and to concentrate the defense on establishing, at the penalty phase, cause for sparing the defendant's life.'" }, { "page": "186" }, { "page": "578", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/543/0175-01" ] }, { "cite": "407 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "212-13" } ], "opinion_index": 0 }, { "cite": "329 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552935 ], "year": 1991, "pin_cites": [ { "page": "385-86" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0363-01" ] }, { "cite": "604 S.E.2d 850", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "878-79" } ], "opinion_index": 0 }, { "cite": "359 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801733 ], "year": 2004, "pin_cites": [ { "page": "118-20" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0077-01" ] }, { "cite": "591 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "539" }, { "page": "540" }, { "page": "540" } ], "opinion_index": 0 }, { "cite": "358 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986844 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "108-09" }, { "page": "108-09" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0102-01" ] }, { "cite": "395 U.S. 238", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771759 ], "weight": 6, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0238-01" ] }, { "cite": "270 S.E.2d 418", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "421" } ], "opinion_index": 0 }, { "cite": "301 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564646 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0193-01" ] }, { "cite": "572 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "776-77" } ], "opinion_index": 0 }, { "cite": "356 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511555 ], "year": 2002, "pin_cites": [ { "page": "569-70" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0556-01" ] }, { "cite": "337 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 12, "year": 1985, "pin_cites": [ { "page": "507", "parenthetical": "citations omitted" }, { "page": "507-08" }, { "page": "508" }, { "page": "507" }, { "page": "507" }, { "page": "506-07" }, { "page": "507" }, { "page": "507" }, { "page": "507" }, { "page": "507-08" } ], "opinion_index": 0 }, { "cite": "669 S.E.2d 564", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2008, "pin_cites": [ { "parenthetical": "Maready II" }, { "page": "568-69", "parenthetical": "emphasis added" }, { "page": "568" } ], "opinion_index": 0 }, { "cite": "362 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150146 ], "weight": 2, "year": 2008, "pin_cites": [ { "parenthetical": "Maready II" }, { "page": "621", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0614-01" ] }, { "cite": "188 N.C. 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KENNETH WAYNE MAREADY" ], "opinions": [ { "text": "McGEE, Judge.\nKenneth Wayne Maready (Defendant) was convicted on 24 April 2006 of second-degree murder, felony eluding arrest, assault with a deadly weapon inflicting serious injury, two counts of assault with a deadly weapon, DWI, reckless driving, DWLR, misdemeanor larceny, and misdemeanor possession of stolen goods. The jury also found that Defendant had attained habitual felon status and further found, as an aggravating factor, that \u201c[Defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person[.]\u201d The trial court sentenced Defendant to prison terms of 270 months to 333 months for second-degree murder, 150 months to 189 months for assault with a deadly weapon inflicting serious injury, 150 months to 189 months for felony eluding arrest, 24 months for DWI, 150 days for each count of assault with a deadly weapon, 120 days for DWLR, 120 days for misdemeanor larceny, and 60 days for reckless driving; all sentences were to run consecutively and credit was given for time served. Judgment was arrested for misdemeanor possession of stolen goods.\nDefendant appealed. A divided panel of our Court reversed and remanded to the trial court for a new trial based upon our holdings that a law enforcement stop of Defendant just prior to the traffic accident was improper, that the trial court erroneously instructed the jury on the element of intent, and that the trial court erroneously admitted several of Defendant\u2019s prior convictions of DWI into evidence. State v. Maready, 188 N.C. App. 169, 654 S.E.2d 769 (2008) (Maready I). The North Carolina Supreme Court reversed and remanded to our Court for consideration of assignments of error not addressed in Maready I. State v. Maready, 362 N.C. 614, 669 S.E.2d 564 (2008) (Maready II). More detailed statements of the facts may be found in Maready I and Maready II, and additional relevant facts will be discussed in the body of this opinion.\nI.\nIn Defendant\u2019s tenth argument, he contended his trial counsel\u2019s assistance was per se ineffective, and he should therefore be awarded a new trial on his convictions for second-degree murder, and two counts of misdemeanor assault with a deadly weapon. In the alternative, Defendant requested that we remand to the trial court for a hearing to determine whether Defendant had properly consented to his trial counsel\u2019s admission of guilt to these three charges under State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985). Defendant requested no relief pursuant to Harbison for the remaining charges, and we therefore do not address them. See State v. Millsaps, 356 N.C. 556, 569-70, 572 S.E.2d 767, 776-77 (2002). We agreed that a hearing was required to determine whether Defendant gave informed consent for his counsel\u2019s admissions of guilt to the three above-listed charges. We remanded the matter to the trial court for a hearing by order entered 6 April 2009. We instructed the trial court to make findings of fact based upon the evidence presented at the hearing. The hearing was conducted by the trial court on 14 September 2009, and the trial court entered its order on the hearing on 14 October 2009. We allowed the parties to file supplemental briefs to augment their original arguments on appeal in light of the findings made by the trial court in its 14 October 2009 order.\nDefendant initially pled not guilty to the charges for which he was tried. During closing argument, Defendant\u2019s counsel conceded that the State had met its burden with respect to the charges of DWI, reckless driving, DWLR and misdemeanor \u201clarceny and/or possession of stolen property.\u201d Defendant\u2019s counsel also made the following statements:\nWe do have the two misdemeanor assaults. . . . We don\u2019t contest those. They are inclusive in the events that have significant issues associated with them, but we don\u2019t contest those. And you can go and make your decisions accordingly. . . . [Defendant] holds absolute \u2014 holds responsibility for [the death of the victim], I just argue it\u2019s not murder. It\u2019s Involuntary Manslaughter.\nDefendant\u2019s counsel discussed the elements of involuntary manslaughter with the jury, stating that the second element was \u201cthat . . . [Defendant's impaired driving proximately caused the victim\u2019s death. That\u2019s true. [Defendant\u2019s] guilty of that and should be found guilty of that.\u201d Defendant\u2019s counsel also stated that: \u201c[Defendant\u2019s] already admitted to you guilt... to ... Assault with a Deadly Weapon times two[.]\u201d\nAt the close of all the evidence and after closing arguments, but before jury instruction, Defendant\u2019s counsel again admitted Defendant\u2019s guilt to the charges of reckless driving, DWI, DWLR and misdemeanor possession of stolen goods. The trial court asked Defendant: \u201cHave you agreed that your attorney [concedes guilt to reckless driving, DWI, DWLR and misdemeanor possession of stolen goods]?\u201d and Defendant answered, \u201cYes, sir.\u201d Defendant also volunteered that he had consented to admit his guilt to the charge of misdemeanor larceny, and the following colloquy occurred:\n[The State]: Misdemeanor Larceny. And there might even be the Involuntary Manslaughter, I believe, at one point. Maybe I misunderstood that part of the argument, but I thought when he was arguing\u2014\nThe Court: There was also misdemeanor larceny, that\u2019s correct.\n[Defense Counsel]: Your Honor, I argued that\u2019s what [Defendant] should be convicted of.\n[The State]: Okay. Never mind then. I won\u2019t go there.\nThe matter was then dropped, and the trial court never asked Defendant if he had agreed to his counsel\u2019s admitting guilt on the charges of involuntary manslaughter or the two counts of assault with a deadly weapon.\nThe record of the trial was devoid of any evidence that Defendant gave informed consent to his counsel\u2019s admission of guilt for the charges of involuntary manslaughter or the two counts of assault with a deadly weapon. For this reason, we remanded to the trial court for an evidentiary hearing to determine whether Defendant gave his counsel the consent required by Harbison and its progeny, discussed below, for the admissions of guilt made at trial by Defendant\u2019s counsel. Our Supreme Court has stated that:\nA defendant\u2019s right to plead \u201cnot guilty\u201d has been carefully guarded by the courts. When a defendant enters a plea of \u201cnot guilty,\u201d he preserves two fundamental rights. First, he preserves the right to a fair trial as provided by the Sixth Amendment. Second, he preserves the right to hold the government to proof beyond a reasonable doubt. A plea decision must be made exclusively by the defendant. \u201cA plea of guilty or no contest involves the waiver of various fundamental rights such as the privilege against self-incrimination, the right of confrontation and the right to trial by jury.\u201d State v. Sinclair, 301 N.C. 193, 197, 270 S.E.2d 418, 421 (1980). Because of the gravity of the consequences, a decision to plead guilty must be made knowingly and voluntarily by the defendant after full appraisal of the consequences. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L. Ed. 2d 274 (1969); N.C.G.S. \u00a7 15A-1011 through \u00a7 15A-1026; State v. Sinclair, 301 N.C. 193, 270 S.E.2d 418 (1980).\nHarbison, 315 N.C. at 180, 337 S.E.2d at 507 (citations omitted). The Harbison Court held that a defendant establishes a per se claim of ineffective assistance of counsel where the evidence shows the defendant\u2019s counsel admitted guilt to any charge without the defendant\u2019s informed consent. Id., 337 S.E.2d at 507-08. The Court in Harbison further held that this violation required that the defendant receive a new trial. Id. at 180-81, 337 S.E.2d at 508.\nIn State v. Matthews, 358 N.C. 102, 591 S.E.2d 535 (2004), the defendant\u2019s counsel argued to the jury that it should find his client guilty of second-degree murder, not first-degree murder. The record did not indicate that the defendant had given consent to his attorney to make this concession. The defendant was found guilty of first-degree murder and appealed. The defendant argued that his counsel\u2019s admission of the defendant\u2019s guilt to second-degree murder without the defendant\u2019s consent violated the holding in Harbison. The Matthews Court decided it did not have enough evidence in the record to make a determination concerning whether the defendant had consented to the admission of guilt, and remanded to the trial court for a hearing on the matter.\nIn Matthews, the trial court conducted a hearing and filed an order ruling that the defendant had consented to a strategy of arguing for a conviction on the lesser included charge of second-degree murder in order to avoid a first-degree murder conviction. The trial court\u2019s findings indicated that the defendant had never expressly agreed to the strategy, but he had been present in numerous meetings where this strategy was discussed and never objected or voiced any reservations. In fact, the defendant\u2019s, counsel \u201cwas certain that defendant concurred with [the strategy.]\u201d Id. at 107, 591 S.E.2d at 539. Our Supreme Court disagreed with the ruling of the trial court and remanded for a new trial.\nThe trial court found that defense counsel\u2019s trial strategy was \u201cto convince the jury that defendant was guilty of something other than first degree murder.\u201d The trial court found that, because defendant consented to this overall strategy, and because \u201c[defendant's IQ was high,\u201d defendant implicitly allowed his trial counsel to concede his guilt. However, we conclude that Harbison requires more than implicit consent based on an over-' all trial strategy and defendant\u2019s intelligence. \u201c[T]he gravity of the consequences demands that the decision to plead guilty remain in the defendant\u2019s hands. When counsel admits his client\u2019s guilt without first obtaining the client\u2019s consent, the client\u2019s 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\u2019s consent. Counsel in such situations denies the client\u2019s right to have the issue of guilt or innocence decided by a jury.\u201d Harbison, 315 N.C. at 180, 337 S.E.2d at 507.\nMatthews, 358 N.C. at 108-09, 591 S.E.2d at 540.\nHarbison cites N.C. Gen. Stat. \u00a7\u00a7 15A-1011 through 1026, which concern acceptance of guilty pleas by the superior court. Harbison, 315 N.C. at 180, 337 S.E.2d at 507 (\u201cBecause of the gravity of the consequences, a decision to plead guilty must be made knowingly and voluntarily by the defendant after full appraisal of the consequences. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L. Ed. 2d 274 (1969); N.C.G.S. \u00a7 15A-1011 through \u00a7 15A-1026; State v. Sinclair, 301 N.C. 193, 270 S.E.2d 418 (1980).\u201d). Although our Supreme Court has not required that the mandates of N.C. Gen. Stat. \u00a7\u00a7 15A-1011 through 1026 be strictly followed before a defendant\u2019s counsel be allowed to concede the guilt of his client at trial, Harbison and Matthews clearly indicate that the trial court must be satisfied that, prior to any admissions of guilt at trial by a defendant\u2019s counsel, the defendant must have given knowing and informed consent, and the defendant must be aware of the potential consequences of his decision. See also State v. Thompson, 359 N.C. 77, 118-20, 604 S.E.2d 850, 878-79 (2004); State v. McDowell, 329 N.C. 363, 385-86, 407 S.E.2d 200, 212-13 (1991).\nN.C. Gen. Stat. \u00a7 15A-1011(a) states: \u201cA defendant may plead not guilty, guilty, or no contest \u2018(nolo contendere).\u2019 A plea may be received only from the defendant himself in open court except [under circumstances not relevant to this case.]\u201d N.C. Gen. Stat. \u00a7 15A-1011(a) (2005). N.C. Gen. Stat. \u00a7 15A-1022 states in relevant part:\n[A] superior court judge may not accept a plea of guilty or no contest from the defendant without first addressing him personally and:\n(1) Informing him that he has a right to remain silent and that any statement he makes may be used against him;\n(2) Determining that he understands the nature of the charge;\n(3) Informing him that he has a right to plead not guilty;\n(4) Informing him that by his plea he waives his right to trial by jury and his right to be confronted by the witnesses against him;\n(5) Determining that the defendant, if represented by counsel, is satisfied with his representation;\n(6) Informing him of the maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced, including that possible from consecutive sentences, and of the mandatory minimum sentence, if any, on the charge; and\n(b) .... The judge may not accept a plea of guilty or no contest from a defendant without first determining that the plea is a product of informed choice.\nN.C. Gen. Stat. \u00a7 15A-1022 (2005).\nSubsequent to our Supreme Court\u2019s decisions in Harbison and Matthews, the United States Supreme Court decided Florida v. Nixon, 543 U.S. 175, 160 L. Ed. 2d 565 (2004). In Nixon, the Supreme Court held that, because of the unique nature of death penalty cases, in certain circumstances involving trial strategy, admission of guilt to an offense at trial by a defendant\u2019s counsel without defendant\u2019s express consent will not constitute per se ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. Id.\nTo summarize, in a capital case, counsel must consider in conjunction both the guilt and penalty-phases in determining how best to proceed. When counsel informs the defendant of the strategy counsel believes to be in the defendant\u2019s best interest and the defendant is unresponsive, counsel\u2019s strategic choice is not impeded by any blanket rule demanding the defendant\u2019s explicit consent. Instead, if counsel\u2019s strategy, given the evidence bearing on the defendant\u2019s guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain.\nNixon, 543 U.S. at 192, 160 L. Ed. 2d at 581 (citations omitted) (emphasis added). The Nixon Court further stated that:\nAlthough such a concession [of guilt by a defendant\u2019s attorney] in a run-of-the-mine trial might present a closer question, the gravity of the potential sentence in a capital trial and the proceeding\u2019s two-phase structure vitally affect counsel\u2019s strategic calculus. Attorneys representing capital defendants face daunting challenges in developing trial strategies, not least because the defendant\u2019s guilt is often clear. Prosecutors are more likely to seek the death penalty, and to refuse to accept a plea to a life sentence, when the evidence is overwhelming and the crime heinous. In such cases, \u201cavoiding execution [may be] the best and only realistic result possible.\u201d\nId. at 190-91, 160 L. Ed. 2d at 580-81 (citations omitted) (emphasis added). The case before us is not a death penalty case, and the United States Supreme Court has not addressed the specific Sixth Amendment issue presented in the \u201crun-of-the-mine\u201d case before us. See State v. Allen, 360 N.C. 297, 315, 626 S.E.2d 271, 285 (2006) (\u201cSee Florida v. Nixon, 543 U.S. 175, 178 (2004) (\u2018This capital case concerns defense counsel\u2019s strategic decision to concede, at the guilt phase of the trial, the defendant\u2019s commission of murder, and to concentrate the defense on establishing, at the penalty phase, cause for sparing the defendant\u2019s life.\u2019)\u201d) (emphasis added); State v. Simmons, 2009 Minn. App. Unpub. LEXIS 21, 7 (Minn. Ct. App. Jan. 6, 2009) (\u201cThe Nixon holding is inapplicable here because this is not a murder case, nor is the death penalty at stake.\u201d). We find the case before us distinguishable from Nixon, as it is not a death penalty case. Further, subsequent to Nixon, the North Carolina Supreme Court has continued to apply the analysis set forth in Harbison, even in death penalty cases. See State v. Goss, 361 N.C. 610, 651 S.E.2d 867 (2007); State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005). Because our Supreme Court has not overruled Harbison and, in fact, continues to apply its holding after Nixon, we are bound by this precedent.\nWe are similarly bound by the post-Nixon precedent set by our Court. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d). Our Court has continued to apply the Harbison analysis since the Nixon opinion was filed. See State v. Goode, \u2014 N.C. App. -, -, 677 S.E.2d 507, 510 (2009) (\u201c \u2018a counsel\u2019s admission of his client\u2019s guilt, without the client\u2019s knowing consent and despite the client\u2019s plea of not guilty, constitutes ineffective assistance of counsel.\u2019 State v. Harbison, 315 N.C. 175, 179, 337 S.E.2d 504, 506-07 (1985). When this occurs, \u2018the harm is so likely and so apparent that the issue of prejudice need not be addressed.\u2019 Id. at 180, 337 S.E.2d at 507. We reiterate that \u2018[a] plea decision must be made exclusively by the defendant.... Because of the gravity of the consequences, a decision to plead guilty must be made knowingly and voluntarily by the defendant after full appraisal of the consequences.\u2019 Id.\u201d); State v. Harrington, 171 N.C. App. 17, 32, 614 S.E.2d 337, 349 (2005); State v. Alvarez, 168 N.C. App. 487, 501, 608 S.E.2d 371, 380 (2005) (\u201cHarbison applies when defense counsel concedes defendant\u2019s guilt to either the charged offense or a lesser included offense.\u201d) (citation omitted); State v. Randle, 167 N.C. App. 547, 550 n.1, 605 S.E.2d 692, 694 n.1 (2004) (after applying the Harbison analysis, noting \u201cthat the United States Supreme Court has recently discussed whether a concession of guilt by defense counsel constitutes ineffective assistance of counsel per se. See Florida v. Nixon [.]\u201d); see also unpublished opinions of our Court State v. Amick, 2009 N.C. App. LEXIS 388 (Apr. 21, 2009); State v. Barlowe, 2008 N.C. App. LEXIS 599 (Apr. 1, 2008); State v. Jacobs, 2008 N.C. App. LEXIS 7 (Jan. 15, 2008); State v. Graves, 2007 N.C. App. LEXIS 1962 (Sept. 18, 2007); State v. Wright, 2007 N.C. App. LEXIS 1460, 15-18 (July 3, 2007); State v. Manning, 2007 N.C. App. LEXIS 390, 6-8 (Feb. 20, 2007); State v. Verbal, 2006 N.C. App. LEXIS 865 (Apr. 18, 2006); State v. Ivey, 2006 N.C. App. LEXIS 682, 12-14 (Mar. 21, 2006); State v. Cameron, 2005 N.C. App. LEXIS 2700 (Dec. 20, 2005); State v. Sinclair, 2005 N.C. App. LEXIS 2597 (Dec. 6, 2005); State v. Cotten, 2005 N.C. App. LEXIS 1246 (July 5, 2005); State v. Martin, 2005 N.C. App. LEXIS 1126, 6-7 (June 7, 2005) (\u201cA defense attorney\u2019s specific admission of a defendant\u2019s guilt as to the crime for which defendant is being tried, or a lesser included offense, absent the defendant\u2019s consent, is a per se violation of a defendant\u2019s constitutional right to effective assistance of counsel under the Sixth Amendment. Harbison, 315 N.C. at 180, 337 S.E.2d at 507.\u201d); State v. Moorefield, 2005 N.C. App. LEXIS 1102 (June 7, 2005); State v. Miles, 2005 N.C. App. LEXIS 1020 (May 17, 2005); State v. Barr, 2005 N.C. App. LEXIS 640, 7-8 (Apr. 5, 2005); State v. Culler, 2005 N.C. App. LEXIS 105 (Jan. 18, 2005).\nIn the case before us, Defendant\u2019s counsel admitted Defendant\u2019s guilt to involuntary manslaughter, and two counts of assault with a deadly weapon. There was no indication at trial that Defendant was asked if he consented to these admissions, or that Defendant had given informed and voluntary consent to these admissions of his guilt.\nIn its 14 October 2009 order subsequent to the hearing on remand, the trial court made the following relevant findings of fact:\n1. This court has had the opportunity to observe the testimony and demeanor of the witnesses and assess their credibility. In this regard the court finds the testimony of [Defendant\u2019s counsel] to be credible in all respects.\n11. Prior to closing arguments, [Defendant\u2019s counsel] informed the Defendant that he was going to concentrate his closing arguments on the more serious offenses and admit the lesser offenses. This conversation occurred in the courtroom at the defense counsel table after all the evidence had been heard and immediately prior to the arguments.\n12. [Defendant\u2019s counsel] informed the Defendant that he believed the closing argument strategy was in the best interest of the Defendant.\n13. Defendant raised no questions and did not express any objections to [his counsel] regarding [his counsel\u2019s] closing argument strategy prior to the argument being made.\n14. After the closing argument the Defendant had no questions and did not raise any objections to [his counsel] or the court about the concessions that were made in the closing argument.\n15. After the closing arguments, and outside the presence of the jury, counsel for the State requested that the trial judge conduct an inquiry with the Defendant regarding the concessions.\n16. The trial judge asked the Defendant if he agreed to the concessions arid he stated \u201cYes, sir.\u201d\n17. Defendant expressed no objections to [his counsel] about the concessions while the trial judge made the inquiry of the Defendant.\n18. At no time during, or after, the trial court\u2019s inquiry of the Defendant did the Defendant express to [his counsel] that he did not understand what the trial court was asking him.\n21. At no time during the sentencing proceeding did the Defendant express any questions or objections to the concessions made by his counsel in the closing arguments.\nThese findings are supported by substantial evidence presented at the hearing, except finding sixteen, which stated: \u201cThe trial judge asked the Defendant if he agreed to the concessions and he stated \u2018Yes, sir.\u2019 \u201d Finding sixteen may be misleading, as Defendant only responded \u201cYes, sir[]\u201d when asked at trial if he had agreed to concede guilt to the charges of DWI, reckless driving, DWLR, and misdemeanor possession of stolen goods. Defendant then volunteered that he also conceded guilt to misdemeanor larceny. Defendant never agreed at trial that he conceded guilt to any of the remaining charges.\nAlthough this Court only ordered the trial court to conduct a Harbison hearing and make appropriate findings of fact, the trial court stated that \u201cout of an abundance of caution[,]\u201d it also made six \u201cconclusions of law.\u201d Several of these are properly considered findings of fact, and we will treat them as such. Dunevant v. Dunevant, 142 N.C. App. 169, 173, 542 S.E.2d 242, 245 (2001) (\u201c[A] pronouncement by the trial court which does not require the employment of legal principles will be treated as a finding of fact, regardless of how it is denominated in the court\u2019s order.\u201d (citations omitted)).\nThe trial court made the following determinative \u201cconclusion\u201d: \u201c2. Defendant\u2019s trial counsel did not obtain the Defendant\u2019s explicit consent to the concessions of guilt prior to the closing argument.\u201d We hold that the findings of fact made by the trial court at the Harbison hearing clearly and unequivocally indicate that Defendant never gave his counsel explicit consent to admit Defendant\u2019s guilt to involuntary manslaughter and two counts of assault with a deadly weapon.\nHarbison requires more than implicit consent based on an overall trial strategy[.] \u201c[T]he gravity of the consequences demands that the decision to plead guilty remain in the defendant\u2019s hands. When counsel admits his client\u2019s guilt without first obtaining the client\u2019s consent, the client\u2019s 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\u2019s consent. Counsel in such situations denies the client\u2019s right to have the issue of guilt or innocence decided by a jury.\u201d Harbison, 315 N.C. at 180, 337 S.E.2d at 507.\nMatthews, 358 N.C. at 108-09, 591 S.E.2d at 540. Therefore, though we do not doubt that Defendant\u2019s counsel was acting in a manner he believed to be the best trial strategy for Defendant, because Defendant\u2019s counsel failed to obtain Defendant\u2019s express consent before admitting Defendant\u2019s guilt to three charges before the jury, the rule set forth in Harbison and Matthews was violated. These admissions of Defendant\u2019s counsel to the jury thus constituted per se ineffective assistance of counsel.\nBecause we hold that Defendant\u2019s counsel was per se ineffective for admitting Defendant\u2019s guilt to two counts of assault with a deadly weapon and one count of involuntary manslaughter, a lesser included offense of second-degree murder, without obtaining Defendant\u2019s consent, we must vacate those judgments and grant Defendant\u2019s request for a new trial on counts 05 CRS 004158, 05 CRS 004159, and 05 CRS 042094. Because we do not vacate all of Defendant\u2019s convictions, we address Defendant\u2019s remaining arguments.\nII.\nDefendant further argues that he received ineffective assistance of counsel \u201cbecause his trial attorney failed to object to inadmissible State evidence, improper jury instructions, and unconstitutional entry of judgment.\u201d We disagree.\nIn order to prove ineffective assistance of counsel, a\ndefendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.\nStrickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984); see also State v. Lawson, 159 N.C. App. 534, 543, 583 S.E.2d 354, 360 (2003). Concerning the second prong of the Strickland test, Defendant\u2019s argument is as follows:\n[T]he question of prejudice is still open. If on appeal this Court refuses to review [Defendant's appellate arguments or applies the harsh \u201cplain error\u201d test to deny them on the ground they are not preserved for normal appellate review by virtue of counsel\u2019s failure to object, counsel\u2019s deficient performance will have been prejudicial.\nDefendant makes no argument that any of the errors Defendant attributes to his counsel in this portion of his brief deprived him of a fair trial. Defendant does not make a prejudice argument, but a conclusory statement, for which Defendant offers no factual or legal support. \u201cIssues ... in support of which no reason or argument is stated, will be taken as abandoned.\u201d N.C.R. App. P. 28(b)(6). \u201cThe body of the argument and the statement of applicable standard(s) of review shall contain citations of the authorities upon which the appellant relies.\u201d Id. This argument has been abandoned. Id.; Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 367 (2008).\nIII.\nIn Defendant\u2019s eighth argument, he contends the trial court committed prejudicial error in its instruction on the intent element for the three charges of assault with a deadly weapon. We agree.\nDuring the trial court\u2019s charge to the jury, it instructed the jury, inter alia, that, in order to convict Defendant of assault with a deadly weapon inflicting serious injury, the jury had to determine beyond a reasonable doubt that Defendant \u201cassaulted the victim by intentionally and without justification or excuse, by using [Defendant\u2019s vehicle to cause] an auto collision in which [the victim was seriously injured].\u201d After the trial court had instructed the jury on all charges, and the jury began its deliberation, the jury sent the trial court a note asking the trial court to re-read certain instructions, including the instruction for assault with a deadly weapon inflicting serious injury, which the trial court did. Subsequently, the jury sent the trial court another note which read: \u201cIn the definition of assault there\u2019s an issue with the word \u2018intent.\u2019 Can this be interpreted strictly only as absolutely intended ... to hit the other cars or can this be interpreted as the sum total of the actions caused the collision and this implies [intent]?\u201d The trial court brought out the jury, read the question back to the jury, and then stated: \u201cThe answer is, the latter portion of your question.\u201d \u201cIt can be interpreted as the sum total of the actions caused the collision and this implies intent.\u201d The jury then found Defendant guilty of assault with a deadly weapon inflicting serious injury.\nWe hold that, in answering the jury\u2019s question involving the meaning of intent, the trial court allowed the jury to convict Defendant based upon an improperly broad definition of intent. In order for a jury to convict a defendant of assault with a deadly weapon inflicting serious injury, it must find that it was the defendant\u2019s actual intent to strike the victim with his vehicle, or that the defendant acted with culpable negligence from which intent may be implied. State v. Jones, 353 N.C. 159, 164-65, 538 S.E.2d 917, 922-93 (2000) (\u201cThus, a driver who operates a motor vehicle in a manner such that it constitutes a deadly weapon, thereby proximately causing serious injury to another, may be convicted of AWDWISI provided there is either an actual intent to inflict injury or culpable or criminal negligence from which such intent may be implied.\u201d). In the present case, the trial court\u2019s answer to the jury\u2019s question could have allowed the jury to convict Defendant without a finding of either actual intent or culpable negligence. Because the trial court\u2019s instruction allowed the jury to convict Defendant of assault with a deadly weapon inflicting serious injury without a finding of the requisite intent, we must assume prejudice. State v. Weston, 273 N.C. 275, 283, 159 S.E.2d 883, 888 (1968).\nWe note that a determination by a jury that a defendant was driving while impaired, pursuant to N.C. Gen. Stat. \u00a7 20-138.1, can provide the requisite finding of culpable negligence. Jones, 353 N.C. at 165, 538 S.E.2d at 923. However, the trial court did not instruct the jury that it could find the requisite culpable negligence by making a determination that Defendant was driving while impaired. We further note that Defendant contends that the two convictions for misdemeanor assault with a deadly weapon should be overturned for the same erroneous instruction on intent. We agree, and so hold, though this holding will only be relevant if our holding above concerning the Harbison errors is overturned. We overturn Defendant\u2019s conviction for assault with a deadly weapon inflicting serious injury and remand for a new trial on count 05 CRS 04160.\nIV.\nIn Defendant\u2019s third argument, he contends the trial court committed plain error by admitting opinion testimony from State\u2019s witnesses without the witnesses first being admitted at trial as experts. We disagree.\nThe State called two police officers to testify concerning their opinions of how the accident occurred. These officers did not witness the accident, but gave their opinions indicating Defendant was at fault based upon their examination of the scene of the accident. The officers were not proffered as experts in accident reconstruction. This Court has held that opinion testimony of this kind is incompetent. Seay v. Snyder, 181 N.C. App. 248, 257-58, 638 S.E.2d 584, 590-91 (2007); see also Hughes v. Vestal, 264 N.C. 500, 503-07, 142 S.E.2d 361, 364-66 (1965). Defendant did not object to the testimony of the officers at trial, and thus waived regular review on appeal. State v. Valentine, 357 N.C. 512, 525, 591 S.E.2d 846, 856-57 (2003). Defendant does, however, expressly argue plain error on appeal, thus preserving the argument for plain error review. State v. Dennison, 359 N.C. 312, 312-13, 608 S.E.2d 756, 757 (2005).\nWe hold that the admission of the officers\u2019 opinion testimony concerning their purported accident reconstruction conclusions was error. Accident reconstruction opinion testimony may only be admitted by experts, who have proven to the trial court\u2019s satisfaction that they have a superior ability to form conclusions based upon the evidence gathered from the scene of the accident than does the jury. Hughes v. Vestal, 264 N.C. at 503-07, 142 S.E.2d at 364-66; Seay, 181 N.C. App. at 257-58, 638 S.E.2d at 590-91. However, we hold that Defendant fails in his burden of proving plain error. First, not only did Defendant fail to object to the opinion testimony during the State\u2019s direct examination of the officers, he elicited much of the same testimony on cross-examination. Had Defendant objected, his subsequent questioning of the State\u2019s witnesses on cross-examination would not have necessarily constituted a waiver of his prior objections for the purposes of appeal. State v. Wells, 52 N.C. App. 311, 314-15, 278 S.E.2d 527, 529-30 (1981). However, Defendant failed to object and then elicited the same testimony on cross-examination. Therefore, there is nothing in the record to indicate to us that this line of questioning was not one Defendant wished to pursue at trial. Furthermore, by failing to object, Defendant deprived the State of the opportunity to correct the error, and to proffer its witnesses as experts. We hold that Defendant has failed to prove plain error on the facts before us.\nV.\nIn Defendant\u2019s fourth argument, he contends that the trial court committed reversible error by admitting an officer\u2019s testimony that Defendant \u201chad just gotten out of jail recently.\u201d We disagree.\nWe first note that our Supreme Court referenced this testimony in Maready II. In support of its holding that the trial court\u2019s intent instruction, which allowed Defendant\u2019s prior convictions to be considered by the jury as proof of intent did not amount to prejudicial error, our Supreme Court said:\nIrrespective of defendant\u2019s prior convictions, the State presented such significant evidence of intent with regard to all the charges against defendant that we cannot say the challenged instruction probably affected the jury\u2019s verdicts. We call particular attention to the testimony regarding defendant\u2019s own statements on the day of the incident. During an earlier encounter with another deputy several hours before the wreck, defendant stated he had recently been released from jail, that his driver\u2019s license was suspended, and that \u201che didn\u2019t drive.\u201d Later, during the investigatory traffic stop, defendant admitted he had been drinking. Then, as he fled the scene of the stop, defendant \u201csaid that he was not going back to the penitentiary.\u201d These statements strongly demonstrate defendant\u2019s knowledge and understanding that he was driving illegally and was not going to stop.\nMaready II, 362 N.C. 614, 621, 669 S.E.2d 564, 568-69 (2008) (emphasis added). Because our Supreme Court used this testimony in support of its holding in this matter, we conclude our Supreme Court determined it was properly admitted. Even assuming arguendo the testimony was improper, we hold Defendant has failed in his burden of showing \u201cprejudice such that a different result [at trial] would have been likely had the evidence been excluded.\u201d State v. Barber, 93 N.C. App. 42, 45, 376 S.E.2d 497, 499 (1989). Defendant\u2019s driving record, which was admitted at trial, shows that Defendant had been sentenced to twelve months for DWI pn 27 August 2004. The traffic crash occurred on 12 February 2005. Evidence that Defendant had recently \u201cgotten out of jail\u201d was already before the jury. This argument is without merit.\nVI.\nIn Defendant\u2019s sixth argument, he contends that the trial court committed prejudicial error in allowing the State to allude to the trial court\u2019s ruling concerning reasonable suspicion for the initial stop of Defendant. We disagree.\nFirst, our Supreme Court has already determined that the initial stop of Defendant was supported by reasonable suspicion. Maready II, 362 N.C. at 620, 669 S.E.2d at 568. Second, assuming arguendo the State\u2019s argument was improper, upon a thorough review of the record, we hold that Defendant has failed to \u201cshow that there is a reasonable possibility a different result would have been reached had the error not occurred. N.C.G.S. \u00a7 15A-1443(a) (1999).\u201d State v. Allen, 353 N.C. 504, 509, 546 S.E.2d 372, 375 (2001). This argument is without merit.\nVII.\nIn Defendant\u2019s seventh argument, he contends that the trial court committed plain error in instructing the jury on the charge of \u201coperating a vehicle to elude arrest.\u201d We disagree.\nThe jury was correctly instructed on the charge of operating a vehicle to elude arrest. The jury then sent a request for re-instruction on the charge, specifically asking for re-instruction on the third element of the charge \u2014 that Defendant was fleeing or attempting to elude a law enforcement officer who was in the lawful performance of his duties. The trial court decided to re-instruct the jury on all four elements of the charge, and again correctly instructed the jury on the charge. The trial court repeated the correct charge in condensed form, then repeated it again, but did not include reference to the fourth element. Based on the facts of the case before it, the trial court\u2019s instruction concerning the fourth element required the jury to find two of the following beyond a reasonable doubt:\ngross impairment of [Defendant\u2019s] faculties while driving, due to the consumption of an impairing substance; a blood alcohol level of 0.14 or more within a relevant time after driving; reckless driving; negligent driving leading to an accident, causing... property damage in excess of $1,000 or personal injury; [or] driving while license revoked.\nSee N.C. Gen. Stat. \u00a7 20-141.5 (2005). In light of the jury\u2019s request to be re-instructed on only the third element of the charge, and the trial court\u2019s correct instruction on that element three times in close succession, and because Defendant admitted guilt at trial to at least two of the factors \u2014 reckless driving, and driving while license revoked\u2014 we do not find that the trial court\u2019s failure to include the fourth element in one of those three instructions amounts to plain error. Defendant has failed in his burden to prove any error was \u201c \u2018so basic, so prejudicial, so lacking in its elements that justice cannot have been done].]\u2019 \u201d State v. Wood, 174 N.C. App. 790, 793, 622 S.E.2d 120, 123 (2005) (citations omitted).\nVIII.\nIn Defendant\u2019s ninth argument, he contends that his convictions for DWI, DWLR, and reckless driving \u201cmust be vacated because entry of judgment in them and in the murder, operating a vehicle, and felony assault cases violates double jeopardy.\u201d Defendant has not preserved this argument for appellate review.\nThe Double Jeopardy Clause plays only a limited role in deciding whether cumulative punishments may be imposed under different statutes at a single criminal proceedings \u2014 that role being only to prevent the sentencing court from prescribing greater punishments than the legislature intended. We further reiterate that where our legislature \u201cspecifically authorizes cumulative punishment under two statutes, regardless of whether those- two statutes proscribe the \u2018same\u2019 conduct under Blockburger [v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 309 (1932)], a court\u2019s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.\u201d Missouri v. Hunter, 459 U.S. at 368-69, 74 L. Ed. 2d at 544. See State v. Price, 313 N.C. 297, 327 S.E.2d 863 (1985).\nState v. Gardner, 315 N.C. 444, 460-61, 340 S.E.2d 701, 712 (1986). Because the case before us involves convictions obtained at a single criminal proceeding, the outcome of Defendant\u2019s argument turns on whether our General Assembly intended to authorize cumulative punishment for the relevant statutes. Defendant states in his brief: \u201c[0]ur Legislature did not intend for multiple punishment in this situation.\u201d This is not an argument, but a conclusory statement for which Defendant offers no factual or legal support. \u201cIssues ... in support of which no reason or argument is stated, will be taken as abandoned.\u201d N.C.R. App. P. 28(b)(6). \u201cThe body of the argument and the statement of applicable standard(s) of review shall contain citations of the authorities upon which the appellant relies.\u201d Id. This argument has been abandoned. Id.; Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 367 (2008).\nNo prejudicial error in part, new trial in part.\nJudge ELMORE concurs.\nJudge ERVIN concurs in part and concurs in the result in part by separate opinion.\n. In the concurring opinion it is argued that the holding in Nixon should be applied to non-capital cases. However, as the concurring opinion\u2019s mention of the United States Supreme Court\u2019s order granting certiorari makes clear, the United States Supreme Court granted certiorari \u201cto resolve an important question of constitutional law, i.e., whether counsel\u2019s failure to obtain the defendant\u2019s express consent to a strategy of conceding guilt in a capital trial automatically renders counsel\u2019s performance deficient!.]\u201d Nixon, 543 U.S. at 186, 160 L. Ed. 2d at 578 (emphasis added).\n. The only mention of Nixon we find in any opinion of our Supreme Court is in State v. Al-Bayyinah, 359 N.C. 741, 757, 616 S.E.2d 500, 512 (2005), where, in dicta, our Supreme Court stated: \u201cThe United States Supreme Court has found that whether or not a defendant expressly consented to counsel\u2019s argument was not dispositive in finding ineffective assistance.\u201d Al-Bayyinah was filed on the same date as Campbell, which applied the Harbison analysis. Goss was filed after Al-Bayyinah. Furthermore, Al-Bayyinah was a capital case, and the defendant\u2019s objection was to admissions made by his attorney during the sentencing phase of the trial. \u201c[Our Supreme] Court has held that the rule in State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986), precluding defense counsel from admitting a defendant\u2019s guilt to the jury without the defendant\u2019s consent does not apply to sentencing proceedings.\u201d Al-Bayyinah, 359 N.C. at 757, 616 S.E.2d at 512 (citation omitted).\n. We disagree with the concurring opinion to the degree that it finds Nixon could control, and thus overturn, prior decisions of this Court or our Supreme Court. While this would be the case if Nixon held that a decision of our appellate courts (or a practice endorsed by our appellate courts) ran afoul of the United States Constitution, our appellate courts may set procedural and substantive requirements for our trial courts that exceed the constitutional minimum established by the United States Supreme Court. Mills v. Rogers, 457 U.S. 291, 300, 73 L. Ed. 2d 16, 23 (1982) (\u201cFor purposes of determining actual rights and obligations, however, questions of state law cannot be avoided. Within our federal system the substantive rights provided by the Federal Constitution define only a minimum. State law may recognize liberty interests more extensive than those independently protected by the Federal Constitution. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 12 (1979); Oregon v. Hass, 420 U.S. 714, 719 (1975); see also Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). If so, the broader state protections would define the actual substantive rights possessed by a person living within that State.\u201d). As long as Harbison sets a standard that meets or exceeds that set forth in Nixon, Nixon does not overrule Harbison in any manner, and Harbison controls.\n. In his supplemental brief, Defendant argues that he should be awarded a new trial on all counts. Defendant did not make this argument in his initial brief, and our remand was in response to, and limited by, the relief requested by Defendant in his initial brief. The only issue before the trial court on remand was whether Defendant had provided his counsel with informed consent to admit guilt to the two charges of assault with a deadly weapon and the single charge of involuntary manslaughter. We therefore make no determination concerning the adequacy of Defendant\u2019s admissions to these other charges. Defendant\u2019s attempt, through his supplemental brief, to change his argument on appeal, and the relief requested, is improper. We do not address Defendant\u2019s new arguments.", "type": "majority", "author": "McGEE, Judge." }, { "text": "ERVIN, Judge,\nconcurring in part and concurring in the result in part.\nAlthough I concur in the Court\u2019s conclusion that defendant is entitled to a new trial in the cases in which he was convicted of second degree murder based on his trial counsel\u2019s unconsented-to concession of guilt to involuntary manslaughter and in the remainder of the Court\u2019s opinion, I am unable to fully join in the logic by which the Court reaches its decision with respect to the \u201cconcession of guilt\u201d issue. As a result, I concur in part and concur in the result in part.\nAs the record clearly shows, defendant\u2019s trial counsel conceded his client\u2019s guilt of involuntary manslaughter, two counts of assault with a deadly weapon, driving while impaired, driving while license revoked, misdemeanor larceny, and misdemeanor possession of stolen property in his final argument to the jury. In making these concessions, defendant\u2019s trial counsel argued that he did \u201cnot contest\u201d the misdemeanor assault charges, so \u201cyou can go and make your decisions accordingly.\u201d After arguing that the jury should not convict defendant of assault with a deadly weapon with intent to kill inflicting serious injury, defendant\u2019s trial counsel discussed the second degree murder charge and argued that \u201cit\u2019s not murder,\u201d \u201c[i]t\u2019s Involuntary Manslaughter.\u201d As a result, defendant\u2019s trial counsel clearly conceded defendant\u2019s guilt of involuntary manslaughter and both counts of assault with a deadly weapon in his concluding argument to the jury.\nAfter all of the arguments of counsel had been completed, the prosecutor noted that \u201cthere were several charges that were either conceded or not contested by the defendant in the closing\u201d and asked the trial court to inquire as to whether defendant had consented to those concessions. At that point, the following proceedings occurred:\nTHE COURT: [Defense Counsel], I believe you did concede DWI, Driving While License Revoked, Reckless Driving, and Misdemeanor Possession of Stolen Goods; is that correct?\n[DEF COUNSEL]: That is correct, Your Honor.\nTHE COURT: So that\u2019s on the record.\n[PROSECUTOR]: Well, I think, Your Honor, what should be on the record is the defendant that he agreed for his attorney to do that.\nTHE COURT: Yes. Have the defendant stand up, please. Stand up here, Mr. Maready. Have you agreed that your attorney concede the \u2014 your guilt to Driving While Impaired, Driving While License Revoked, Reckless Driving, and Misdemeanor Possession of Stolen Goods?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: All right, thank you very much.\n[PROSECUTOR]: Your Honor, I think there may actually be more one. I think\u2014\nTHE DEFENDANT: Misdemeanor Larceny.\n[PROSECUTOR]: Misdemeanor Larceny. And there might even be the Involuntary Manslaughter, I believe, at one point. Maybe I misunderstood that part of the argument, but I thought when he was arguing\u2014\nTHE COURT: There was also Misdemeanor Larceny, that\u2019s correct.\n[DEF COUNSEL]:' Your Honor, I\u2019ve argued that\u2019s what he should be convicted of.\n[PROSECUTOR]: Okay. Never mind then. I won\u2019t go there.\nSince the issue of the extent, if any, to which defendant consented to the concessions of guilt made by his trial counsel during closing arguments was not fully explored during defendant\u2019s original trial, we remanded this case to the Durham County Superior Court for a further exploration of the consent issue.\nAs requested, the remand court took evidence and made findings of fact concerning the extent, if any, to which defendant and his trial counsel discussed the manner in which defendant\u2019s trial counsel would argue defendant\u2019s case to the jury and the extent to which defendant consented to the concessions which were made during his trial counsel\u2019s closing argument. On the basis of the evidence received at this remand hearing, the trial court made the following findings of fact:\n5. [Defendant\u2019s trial counsel] met with the Defendant on numerous occasions for trial preparation.\n6. There were numerous discussions and plea negotiations between the State and defense.\n7. All plea negotiations failed and the matter was tried in April of 2006.\n8. [Defendant\u2019s trial counsel\u2019s] primary trial strategy and goal was to focus on reducing the .second degree murder offense to some lesser offense.\n9. The Defendant did not have any objections or questions about the trial strategy when it was discussed with [his trial counsel].\n10. Faced with the overwhelming evidence of guilt to the lesser offenses, [Defendant\u2019s trial counsel] sought to avoid offending the sensibilities of the jurors by denying that the lesser offenses occurred.\n11. Prior to closing arguments, [Defendant\u2019s trial counsel] informed the Defendant that he was going to concentrate his closing argument on the more serious offenses and admit the lesser offenses. This conversation occurred in the courtroom at the defense table after all the evidence had been heard and immediately prior to the arguments.\n12. [Defendant\u2019s trial counsel] informed the Defendant that he believed that the closing argument strategy was in the best interest of the Defendant.\n13. The Defendant raised no questions and did not express any objections to [Defendant\u2019s trial counsel] regarding [Defendant\u2019s trial counsel\u2019s] closing argument strategy prior to the argument being made.\n14. After the closing argument the Defendant had no questions and did not raise any objections to [Defendant\u2019s trial counsel] or the court about the concessions that were made in the closing argument.\n15. After the closing arguments and outside the presence of the jury, counsel for the State requested that the trial judge conduct an inquiry with the Defendant regarding the concessions.\n16. The trial judge asked the Defendant if he agreed to the concessions and he stated \u201cYes, sir.\u201d\n17. The Defendant expressed no objections to [Defendant\u2019s trial counsel] about the concessions while the trial judge made inquiry of the Defendant.\n18. At no time during, or after, the trial court\u2019s inquiry of the Defendant did the Defendant express to [his trial counsel] that he did not understand what the trial court was asking him.\n19. After the jury, returned verdicts of guilty to second degree murder; misdemeanor larceny; misdemeanor possession of stolen goods; assault with a deadly weapon inflicting serious injury; two counts of assault with a deadly weapon; driving while impaired; driving while license revoked; careless and reckless driving; and felony eluding arrest, the court conducted a sentencing hearing.\n20. At the sentencing hearing that was held on April 24, 2006 the Defendant executed a Transcript of Plea form in which he admitted aggravating and grossly aggravating factors which related to the Driving While Impaired conviction; that he was satisfied with his attorney and his legal services; and that he did not have any questions about anything that had just been said or about anything else involving his case.\n21. At no time during the sentencing proceeding did the Defendant express any questions or objections to the concessions made by his counsel in the closing arguments.\nIn essence, the remand court found that, while defendant did not explicitly consent to all of the concessions that his trial counsel made during closing arguments, he was aware of and in general agreement with the strategy that his trial counsel followed throughout the trial,. including the strategy that his trial counsel employed during closing arguments. Based on this factual information, we are now required to determine whether the concessions made by defendant\u2019s trial counsel during his final argument to the jury constituted ineffective assistance of counsel.\nThe Supreme Court has clearly indicated that the standards for determining whether a criminal defendant received constitutionally deficient representation are the same under both the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 19 and 23 of the North Carolina Constitution. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (stating that, while the defendant has \u201cperhaps suggested] that the North Carolina test for ineffective assistance of counsel is separate from and less stringent than the standards for ineffective assistance of counsel under the federal constitution, as interpreted by Strickland v. Washington,\" 466 U.S. 668, 80 L. Ed. 2d 674 (1984), \u201c[w]e disagree\u201d). For that reason, despite the fact that this Court and the Supreme Court generally address ineffective assistance of counsel claims in Sixth Amendment terms, I believe that Braswell clearly indicates that such discussions implicate both federal and state constitutional protections.\nAt the time that the Supreme Court initially addressed the constitutional implications of a decision by a criminal defendant\u2019s trial counsel to concede guilt of one or more of the offenses with which that defendant had been charged or of a lesser included offense, the United States Supreme Court had not had the occasion to directly address that issue. As a result, when it decided State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672-73 (1986), the Supreme Court was writing on a relatively clean slate. In that case, the trial court found that defendant\u2019s trial counsel argued to the jury in a non-capital first degree murder case that:\nLadies and Gentlemen of the Jury, I know some of you and have had dealings with some of you. I know that you want to leave here with a clear [conscience] and I want to leave here also with a clear [conscience]. I have my opinion as to what happened on that April night, and I don\u2019t feel that [the defendant] 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.\nHarbison, 315 N.C. at 177-78, 337 S.E.2d at 506. In analyzing the defendant\u2019s ineffectiveness claim, the Supreme Court stated that the relevant test was the two-part inquiry enunciated in Braswell and Strickland. However, the Supreme Court pointed out that \u201cthere exist \u2018circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified,\u2019 \u201d such as cases in which \u201c \u2018counsel was either totally absent or prevented from assisting the accused during a critical stage of the proceeding.\u2019 \u201d Harbison, 315 N.C. at 179, 337 S.E.2d at 507 (quoting United States v. Cronic, 466 U.S. 648, 659, ftn. 25, 80 L. Ed. 2d 657, 667, 668, ftn. 25 (1984). For that reason, the Supreme Court concluded that, \u201cwhen counsel to the surprise of his client admits his client\u2019s guilt, the harm is so likely and so apparent that the issue of prejudice need not be addressed.\u201d Harbison, 315 N.C. at 180, 337 S.E.2d at 507. In addition, the Supreme Court noted that \u201c[a] plea decision must be made exclusively by the defendant\u201d and that, \u201c[b]ecause of the gravity of the consequences, a decision to plead guilty must be made knowingly and voluntarily by the defendant after full appraisal of the consequences.\u201d Harbison, 315 N.C. at 180, 337 S.E.2d at 507. Thus, the Supreme Court held that, \u201c[w]hen counsel admits his client\u2019s guilt without first obtaining the client\u2019s consent,\u201d \u201c[t]he practical effect is the same as if counsel had entered a plea of guilty without the client\u2019s consent.\u201d Harbison, 315 N.C. at 180, 337 S.E.2d at 507. As a result, for these reasons, the Supreme Court held \u201cthat ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant\u2019s counsel admits the defendant\u2019s guilt to the jury without the defendant\u2019s consent.\u201d Harbison, 315 N.C. at 180, 337 S.E.2d at 507-08.\nAlmost two decades later, the United States Supreme Court addressed the Sixth and Fourteenth Amendment implications of a decision by a criminal defendant\u2019s trial counsel to admit his client\u2019s guilt of a criminal offense without the client\u2019s express consent in Florida v. Nixon, 543 U.S. 175, 160 L. Ed. 2d 565 (2004). In Nixon, the defendant\u2019s trial counsel was faced with the daunting task of representing a defendant in a capital case in which the prosecution had a very strong case on the issue of guilt, leading the defendant\u2019s trial counsel to conclude that his only hope of saving his client\u2019s life was to concede his client\u2019s guilt of first degree murder and to focus his efforts on the capital sentencing proceeding. Although the defendant\u2019s trial counsel attempted to discuss this proposed strategy with his client on several occasions, the defendant would neither object nor consent to the recommended approach. As a result, the defendant\u2019s trial counsel followed his preferred strategy at trial in an ultimately unsuccessful attempt to save the defendant\u2019s life. After the Florida Supreme Court granted the defendant a new trial on the grounds that the defendant\u2019s trial counsel had provided him with constitutionally deficient representation in reliance on logic similar to that employed in Harbison, Nixon v. State, 857 So. 2d 172 (Fla. 2003), cert. granted, 540 U.S. 1217, 158 L. Ed. 2d 152, rev\u2019d and remanded, 543 U.S. 175, 160 L. Ed. 2d 565 (2004), the United States Supreme Court granted certiorari \u201cto resolve an important question of constitutional law, i.e., whether counsel\u2019s failure to obtain the defendant\u2019s express consent to a strategy of conceding guilt in a capital trial automatically renders counsel\u2019s performance deficient, and whether counsel\u2019s effectiveness should be evaluated under Cronic or Strickland.\" Nixon, 543 U.S. at 186, 160 L. Ed. 2d at 578. '\nAt the beginning of its analysis, the United States Supreme Court pointed out that \u201c [a]n attorney undoubtedly has a duty to consult with the client regarding \u2018important decisions,\u2019 including questions of overarching defense strategy;\u201d Nixon, 543 U.S. at 187, 160 L. Ed. 2d at 578 (quoting Strickland,, 466 U.S. at 688, 80 L. Ed. 2d at 674; that counsel\u2019s obligation to consult \u201cdoes not require counsel to obtain the defendant\u2019s consent to \u2018every tactical decision;\u2019 \u201d Nixon, 543 U.S. at 187, 160 L. Ed. 2d at 578 (quoting Taylor v. Illinois, 484 U.S. 400, 417-18, 98 L. Ed. 2d 798, 816 (1988); and that \u201ccertain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be mad\u00e9 for the defendant by a surrogate,\u201d including the right to plead guilty, waive a jury trial, testily on his or her own behalf, or note an appeal. Nixon, 543 U.S. at 187, 160 L. Ed. 2d at 578. After rejecting the equation between a concession of guilt and a guilty plea enunciated in Harbison, Nixon, 543 U.S. 189, 160 L. Ed. 2d at 579, and concluding that the defendant\u2019s trial counsel\u2019s \u201cconcession of [the defendant\u2019s] guilt does not rank as a \u2018fail[ure] to function in any meaningful sense as the Government\u2019s adversary,\u201d Nixon, 543 U.S. at 190, 160 L. Ed. 2d at 580, the United States Supreme Court concluded that, \u201cin a capital case, counsel must consider in conjunction both the guilt and penalty-phases in determining how best to proceed;\u201d that \u201c[w]hen counsel informs the defendant of the strategy counsel believes to be in the defendant\u2019s best interest and the defendant is unresponsive, counsel\u2019s strategic choice is not impeded by any blanket rule demanding the defendant\u2019s explicit consent;\u201d and that, \u201c[i]nstead, if counsel\u2019s strategy, given the evidence bearing on the defendant\u2019s guilt, satisfies the Strickland standard, that is the end of the matter,\u201d since \u201cno tenable claim of ineffective assistance of counsel would remain.\u201d Nixon, 543 U.S. at 192, 160 L. Ed. 2d at 581. As a result, Nixon suggests that the Sixth and Fourteenth Amendments require a criminal defendant\u2019s trial counsel to consult with him or her regarding matters of \u201coverarching defense strategy,\u201d to implement such strategic decisions upon which they are in agreement, to abide by the client\u2019s wishes in instances in which they are unable to agree, and to adopt whatever approach he or she reasonably deems appropriate in the event that the defendant refuses to engage in such strategic discussions.\nAt this point, contrary to the Court, I do not believe that either this Court or the Supreme Court has directly and clearly addressed the extent, if any, to which Nixon has altered the approach that the North Carolina courts have traditionally taken to the concession of guilt issue. To be sure, as the Court notes, this issue has been alluded to on several occasions in opinions of the Supreme Court and this Court. For example, in State v. Al-Bayyinah, 359 N.C. 741, 757, 616 S.E.2d 500, 512 (2005), cert. denied, 547 U.S. 1076, 165 L. Ed. 23 528 (2006), the Supreme Court stated that \u201cthe United States Supreme Court has found that whether or not a defendant expressly consented to counsel\u2019s argument was not dispositive in finding ineffective assistance,\u201d citing Nixon, while \u201cthis Court has held that the rule in\u201d Harbison \u201cprecluding defense counsel from admitting a defendant\u2019s guilt to the jury without the defendant\u2019s consent does not apply to sentencing hearings.\u201d See State v. Walls, 342 N.C. 1, 57, 463 S.E.2d 738, 768 (1995), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 794 (1996). Similarly, we noted in State v. Randle, 167 N.C. App. 547, 550, ftn. 1, 605 S.E.2d 692, 694, ftn. 1 (2004), in the course of addressing a Harbison claim, that \u201cthe United States Supreme Court has recently discussed whether a concession of guilt by defense counsel constitutes ineffective assistance of counsel per se,\u201d citing Nixon. Finally, this Court has discussed the interrelationship of Harbison and Nixon in at least one unpublished opinion. State v. LeGrand, 2006 N.C. App. LEXIS 2465 (2006) (noting that Nixon was decided after Harbison and concluding \u201cthat the trial court\u2019s failure to document defendant\u2019s express consent to defense counsel\u2019s admission that he had a prior felony conviction does not require us to find that defense counsel was per se ineffective\u201d and \u201cthat defense counsel\u2019s strategy, to admit to the jury that defendant was guilty of possession of a firearm by a convicted felon, while asserting self-defense, was not unreasonable\u201d). However, to the best of my knowledge, neither this Court nor the Supreme Court has directly addressed and resolved the issue of the continued viability of the \u201cexpress consent\u201d rule enunciated in Harbison in the aftermath of Nixon.\nAfter a careful review of the foundational decisions relating to ineffective assistance of counsel issues in this jurisdiction, I am inclined to believe that the test enunciated iri Nixon has, to the extent that it is inconsistent with the test enunciated in Harbison, superseded it. I reach this conclusion primarily because I believe, as the Supreme Court stated in Braswell, that there is no difference between the tests to be applied in identifying the presence of ineffective assistance of counsel under the federal and state constitutions in the North Carolina courts. A careful examination of the Supreme Court\u2019s opinion in Harbison makes it abundantly clear that the Court believed that it was deciding that case under the Sixth and Fourteenth Amendments. The clear implication of the Supreme Court\u2019s decision to adopt a unitary federal-state ineffectiveness standard in Braswell is that, when the United States Supreme Court addresses an ineffectiveness issue under the Sixth Amendment, its decision is controlling under both the federal and state constitutions. As a result, since the United States Supreme Court has now addressed the \u201cconcession of guilt\u201d issue for Sixth Amendment purposes, I am inclined to believe that the approach to that issue enunciated in Nixon is, to the extent that it differs from the approach enunciated in Harbison, controlling. However, since Nixon emphasizes the need for counsel to consult with his or her client about significant questions of \u201coverarching defense strategy\u201d and since conceding guilt to one or more offenses during final argument is, without question, an exceedingly important strategic question, I do not believe that we need to definitively resolve the issue of whether Nixon works a significant change in the analysis required by Harbison in order to decide this case.\nAside from the fact that the only \u201cconcession of guilt\u201d issues that are properly before us relate to defendant\u2019s convictions for second degree murder and assault with a deadly weapon, the record developed at trial demonstrates that defendant expressed consent to his trial counsel\u2019s decision to concede guilt to driving while impaired, driving while license revoked, reckless driving, and misdemeanor possession of stolen goods in the immediate aftermath of the closing arguments. In addition, defendant\u2019s injection of a reference to misdemeanor larceny, taken in context, amounts to acceptance of his trial counsel\u2019s concession of guilt to that offense as well. Although defendant testified at the hearing on remand that he did not understand what the trial court meant by \u201cconcession\u201d and that he specifically objected to his trial counsel\u2019s concessions immediately after the conclusion of his closing argument, the remand court did not adopt this testimony in its findings of fact. Given that the remand court had an opportunity to evaluate the defendant\u2019s demeanor and given that other components of defendant\u2019s testimony were of questionable credibility, the remand court had ample basis for declining to accept defendant\u2019s testimony to this effect. We have expressly held such after-the-fact expressions of consent to be sufficient compliance with Harbison, State v. Johnson, 161 N.C. App. 68, 76-78, 587 S.E.2d 445, 451 (2003), disc. review denied and appeal dismissed, 358 N.C. 239 (2004), and I see no reason why they should be deemed ineffective under Nixon. As a result, aside from the fact that this issue is not properly before us, I conclude that the record adequately reflects that defendant consented to his trial counsel\u2019s decision to concede his guilt of driving while impaired, driving while license revoked, reckless driving, and misdemeanor larceny.\nThe same cannot be said, however, of the decision by defendant\u2019s trial counsel to concede his client\u2019s guilt of involuntary manslaughter and two counts of assault with a deadly weapon. Although the involuntary manslaughter concession was mentioned during the post-argument colloquy between the trial court, counsel, and defendant, defendant never indicated his consent to his trial counsel\u2019s decision to concede defendant\u2019s guilt of that offense at that time. Instead, the most that can be said is that the prosecutor mentioned that concession in defendant\u2019s presence without any response from defendant. Although the record developed at the remand hearing reflects that defendant and his trial counsel had discussed issues of trial strategy prior to trial and that both defendant and his trial counsel were aware of the strength of the State\u2019s evidence, defendant\u2019s trial counsel admitted during the remand hearing that the defense had not conceded defendant\u2019s guilt of anything during the evidentiary portion of the trial. Furthermore, despite the fact that defendant\u2019s trial counsel did speak with defendant about the nature of the argument which he planned to make before he began speaking to the jury in very general terms, it is clear from the record that they had not discussed the possibility that defendant\u2019s trial counsel would concede defendant\u2019s guilt of any specific offense in his closing argument at any time before that point. In addition, the record does not contain any indication that defendant refused to consult with his trial counsel about fundamental questions of trial strategy or tactics prior to or during the trial. Had defendant simply refused to engage in such discussions, Nixon might permit me to vote to uphold defendant\u2019s convictions for second degree murder and two counts of assault with a deadly weapon in the event that such an outcome was otherwise appropriate under a traditional Strickland analysis. In this instance, however, the record reflects that defendant\u2019s trial counsel did not broach the subject of how to handle the final argument to the jury until immediately prior to the time when the parties made their summations, when defendant did not have sufficient time to discuss this subject with his trial counsel, and that defendant did not ratify his trial counsel\u2019s concessions in his subsequent colloquy with the trial court. As a result, despite the fact that defendant did not, according to the findings of fact made at the remand hearing, respond to his counsel\u2019s statement that he was going to concede guilt of certain offenses during his closing argument, I do not believe that a \u201cnon-response\u201d under this set of circumstances is what the United States Supreme Court had in mind when it found the representation at issue in Nixon to be constitutionally adequate. Thus, I conclude that, in light of my understanding of Nixon, defendant\u2019s trial counsel did not adequately consult with him prior to conceding his guilt of involuntary manslaughter and two counts of assault with a deadly weapon; that the record does not adequately reflect that defendant would have been uncooperative had such consultation been attempted; that defendant did not provide any \u201cafter the fact\u201d consent to the making of these concessions; and that the absence of consent to the making of these concessions deprived defendant of the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution as interpreted in Nixon.\nFurthermore, given that the Court, with my concurrence, has already decided that defendant is entitled to a new trial in the cases in which he has been convicted of two counts of assault with a deadly weapon because of an instructional error, I need not address the extent to which the unconsented-to concession of guilt justifies an award of a new trial in those cases under Nixon. In addition, given that defendant\u2019s trial counsel put his principal emphasis on persuading the jury to refrain from convicting defendant of second degree murder and given that the principal difference between second degree murder and the lesser included offenses that were submitted for the jury\u2019s consideration revolved around the existence of the required mens rea, an element that is difficult to reduce to a quantifiable set of facts, I also conclude that defendant would be entitled to a new trial in the homicide case even if the traditional Strickland prejudice standard applies under Nixon. As a result, given my ultimate conclusion that we do not need to address the issue of whether Nixon applies in lieu of Harbison in cases involving concession of guilt issues on this set of facts, I concur in the Court\u2019s conclusion that defendant is entitled to a new trial in the cases in which he was convicted of second degree murder and two counts of assault with a deadly weapon without adopting all of its logic. Thus, I concur in the Court\u2019s decision in part and concur in the result in part.\n. As the Court notes, an extensive discussion of the facts of this case can be found in the earlier opinions of this Corut and the Supreme Court in State v. Maready, 188 N.C. App. 169, 654 S.E.2d 769 (2008), and State v. Maready, 362 N.C. 614, 669 S.E.2d 564 (2008).\n. In addition, defendant\u2019s trial counsel suggested at one point in his summation that defendant was also guilty of misdemeanor death by vehicle, another lesser included offense of second degree murder.\n. As examples, the Harbison Court cited situations such as when the defendant\u2019s trial counsel is not allowed to make a closing argument, Geders v. United States, 425 U.S. 80, 47 L. Ed. 2d 592 (1975), or when the defendant\u2019s counsel labors under an actual conflict of interest. Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333 (1980). Harbison, 315 N.C. at 179, 337 S.E.2d at 507.\n. In fact, the Florida Supreme Court cited Harbison in deciding to remand the defendant\u2019s case for an evidentiary hearing on the consent issue in Nixon v. State, 758 So. 2d 618, 625 (2000), overruled by Philmore v. State, 937 So. 2d 578.\n. The Court treats Nixon as irrelevant to the present case on the grounds, at least in part, that the principles enunciated in that decision are only applicable in capital cases. Although there is no question but that Nixon itself was a capital case, that the capital nature of the case itself was referenced in the question posed by the United States Supreme Court in granting certiorari, and that the factual context against which the United States Supreme Court addressed the issues under consideration there affected the Court\u2019s analysis, I do not believe that the principles discussed in Nixon have no application outside the capital context. In fact, as the majority notes, Nixon discusses the fact that \u201csuch a concession in a run-of-the-mine trial might present a closer question\u201d than it does in the capital context. Nixon, 543 U.S. 190, 160 L. Ed. 2d at 580. In addition, the United States Supreme Court has clearly held that the same principles govern ineffectiveness claims in capital and non-capital cases. Strickland, 466 U.S. at 686-87, 80 L. Ed. 2d at 693. Finally, Nixon has been cited repeatedly in non-capital cases, see Valenzuela v. United States, 217 Fed. App. 486, 490 (2007) (citing Nixon in \u00a7 2255 proceeding arising from federal drug conspiracy case); United States v. Thomas, 417 F.3d 1053, 1057-58, cert. denied, 546 U.S. 1121, 163 L. Ed. 2d 909 (2006) (9th Cir. 2005) (citing Nixon in \u00a7 2255 proceeding arising from federal bank robbery convictions); D\u2019Agostino v. Budge, 163 Fed. Appx. 456, 457 (9th Cir. 2005), cert. denied, 547 U.S. 148, 164 L. Ed. 2d 815 (2006) (citing Nixon in \u00a7 2254 proceeding arising from state larceny and arson charges); Pennsylvania v. Cousin, 585 Pa. 287, 305-06, 888 A.2d 710, 721-22 (2005) (stating that, while Nixon was a capital case, \u201cit does not follow that the Court\u2019s holding in that case was meant to apply only in death penalty cases, particularly as the specific justification for the attorney\u2019s chosen strategy was not central to the [Nixon] Court\u2019s conclusion that counsel\u2019s course of action should be tested by reference to the actual prejudice standard of Strickland\u201d), although other courts have reached a conclusion consistent with that reached by the Court here. See People v. Bergerud, 223 P.3d 686, 699-700, ftn. 11 (2010) (finding Nixon inapplicable in a somewhat different factual situation because \u201cthe death penalty has been abandoned by the prosecution and the defendant explicitly objected to counsel\u2019s actions on his behalf\u2019). As a result, I am not persuaded that Nixon is only relevant in the capital context.\n. \u201cThe full impact of Nixon upon the legal guarantee of effective assistance of counsel is still unclear,\u201d S Scudder, \u201cComment: With Friends Like You, Who Needs a Jury? A Response to the Legitimization of Conceding a Client\u2019s Guilt,\u201d 29 Campbell Law Review 137, 164 (2006). However, at least two principal approaches appear to have developed in the decisions that have been rendered in reliance on Nixon. On the one hand, a number of decisions have applied the traditional Strickland standard to concession of guilt issues without giving any apparent weight to the extent to which the defendant\u2019s trial counsel consulted with the defendant. See United States v. Jones, 482 F.3d 60, 76-78 (5th Cir. 2006); Cousin, 585 Pa. at 308, 888 A.2d at 724. Conversely, other courts have emphasized Nixon\u2019s reference to the \u201cduty to consult\u201d language found in Strickland and have adopted an approach similar to that set forth in the text. See Valenzuela, 217 Fed. Appx. at 490 (stating that the duty to consult \u201cmay include obtaining a client\u2019s consent to certain strategies\u201d while noting that \u201cValenzuela has not introduced any evidence that Gold did not seek Valenzuela\u2019s consent or did not consult with Valenzuela about defense strategy\u201d); Cooke v. State, 977 A.2d 803, 840-53 (Del. 2009) (holding, in an opinion couched as a finding that Nixon was inapplicable, that trial counsel were ineffective for pursuing a guilty but mentally ill verdict in opposition to defendant\u2019s insistence upon the pursuit of a not guilty verdict). The United States Supreme Court has yet to address the manner in which Nixon should be applied in cases, such as this one, in which a defendant\u2019s trial counsel failed to consult with the defendant about the use of a concession of guilt as a trial strategy. However, given the emphasis upon the duty to consult found in Nixon and the Court\u2019s emphasis upon the defendant\u2019s failure to respond to his trial counsel\u2019s efforts to obtain consent in its analysis in Nixon, I believe that the better reading of Nixon is one that requires a defendant\u2019s trial counsel to consult with the defendant about the use of a concession of guilt strategy and to make reasonable efforts to obtain the defendant\u2019s consent.\n. I feel compelled to mention and discuss Nixon because both the remand court and the State in its supplemental brief appear to rely on Nixon in urging us to find that no Sixth Amendment violation occurred in this case and because, once Nixon has been introduced into the discussion in this case, I find myself unable to agree with the Court\u2019s treatment of that decision.\n. The Court concludes that, since the Supreme Court and this Court have continued to apply the analysis required by Harbison even after the United States Supreme Court decided Nixon, we would be violating the fundamental principles that we are bound by the decisions of the Supreme Court, Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985), and our own prior decisions, In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), in the event that we were to conclude that Nixon in any way impinged upon Harbison. However, since neither the Supreme Court nor this Court has directly addressed the impact of Nixon on Harbison and since the Supreme Court in Braswell clearly indicated that the same ineffectiveness standards applied under both the federal and state constitutions, I do not believe that we are required to ignore Nixon for purposes of deciding this case in the event that we were to conclude that it is otherwise relevant.\n. The Court correctly notes that a state may, if it chooses, establish greater protections under its own constitution than are available under the United States Constitution and suggests that Harbison reflects such an exercise of state authority. The fundamental problem with this argument is that nothing in Harbison or its progeny suggests that the Supreme Court was exercising its authority to act in that manner when it decided Harbison. Instead, as I have already noted, Harbison was decided under the Sixth and Fourteenth Amendments to the United States Constitution and makes no reference to any provision of the North Carolina Constitution.\n. Such a unitary standard does not, needless to say, apply in all inst\u00e1nces involving similar provisions of the federal and state constitutions. State v. Carter, 322 N.C. 709, 713, 370 S.E.2d 553, 555 (1988).\n. The case for treating Nixon as at least somewhat inconsistent with Harbison is particularly persuasive to me given that Nixon rejects two of the fundamental propositions on which Harbison rests, i.e., that an unconsented-to concession of guilt is tantamount to a plea of guilty and that such a concession of guilt constitutes a failure on the part of defense counsel to perform the required adversarial testing of the prosecutor\u2019s case.\n. At this point, in the absence of further guidance from the United States Supreme Court or our Supreme Court, I believe that Nixon would allow an attorney to make a tactically justified concession of guilt in the event that his or her client refused to either agree or disagree to his or her request for authorization to make such a concession without fear of being found to be constitutionally ineffective. Beyond that, however, it is not clear to me that Nixon requires a dramatic change in existing North Carolina constitutional jurisprudence, given its emphasis upon the importance of attorney-client consultation about crucial strategic issues and the fact that defense counsel are bound by their client\u2019s instructions with respect to fundamentally important strategic issues. Since the present case does not appear to involve a situation in which the client refused to consult with his or her attorney concerning the strategic wisdom of conceding guilt of certain offenses during closing argument and since we have awarded defendant a new trial in the misdemeanor assault cases on other grounds, I do not believe that we need to directly address the extent to which Nixon requires a new approach to the \u201cconcession\u201d issue in North Carolina in order to resolve this case.\n. In view of the fact that the trial court arrested judgment in the misdemeanor possession of stolen property case, defendant has not pursued a challenge to the decision of his trial counsel to concede his guilt of that offense on appeal.\n. The remand court found that defendant agreed with the concessions that his trial counsel made during his closing argument during the post-argument colloquy, which suggests that the remand court believed that defendant had approved of all of his counsel\u2019s concessions. However, to the extent that this finding represents a determination to that effect by the remand court, it lacks adequate evidentiary support, since the transcript of that colloquy clearly indicates that defendant only expressed approval of some, but not all, of the concessions of guilt made during his trial counsel\u2019s final argument. As a result, this particular factual finding lacks adequate evidentiary support.\n. For example, defendant denied having consumed any alcohol on the date of the incident from which the present charges resulted.\n. The record developed at the hearing on remand does not suggest that defendant\u2019s trial counsel told defendant of the exact concessions that he planned to make in advance of summation or that he asked defendant\u2019s authorization to make these concessions in the conversation which he had with defendant immediately prior to the beginning of his closing argument. Instead, the record simply reflects that defendant\u2019s trial counsel merely told defendant in very general terms what he was going to do.\n. The fact that defendant\u2019s trial counsel adopted a \u201cprimary strategy and goal [of] focus[ing] on reducing the second degree murder offense to lesser offense\u201d and that defendant \u201cdid not have any objections or questions about the trial strategy when it was discussed with\u201d his trial counsel is not tantamount to an agreement that it would be appropriate for defendant\u2019s trial counsel to concede defendant\u2019s guilt of a series of specific offenses during his closing argument to the jury.\n. Although the trial court found at the remand hearing that defendant did not tell his trial counsel or the trial court that he had any objections to the manner in which his case had been argued to the jury and that defendant expressed satisfaction with his lawyer at the time that \u201che admitted aggravating and grossly aggravating factors\u201d relating to his driving while impaired convictions, I am not comfortable concluding that the absence of such objections is tantamount to consent given the difficulty of \u201cunringing the bell\u201d at the time that the \u201cnon-objections\u201d to which the remand court points occurred.\n. Since Nixon does not address a situation in which a defendant\u2019s trial counsel concedes guilt without making an adequate attempt to consult with his client, the Supreme Court has not addressed the prejudice standard which should be applied in such instances. At least one state court has concluded that the Cronic automatic prejudice standard should be applied in such instances. Cooke, 977 A.2d 855.", "type": "concurrence", "author": "ERVIN, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Special Counsel Isaac T. Avery, III, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for Defendant-Appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH WAYNE MAREADY\nNo. COA07-171-2\n(Filed 6 July 2010)\n1. Constitutional Law\u2014 per se ineffective assistance of counsel \u2014 admission of guilt \u2014 failure to procure defendant\u2019s consent\nTrial counsel\u2019s assistance was per se ineffective and defendant was awarded a new trial on his convictions for second-degree murder and two counts of misdemeanor assault with a deadly weapon. The findings of fact made by the trial court at a hearing held pursuant to State v. Harbison, 315 N.C. 175, clearly and unequivocally indicated that defendant never gave his counsel explicit consent to admit defendant\u2019s guilt to those charges prior to the closing arguments.\n2. Appeal and Error\u2014 preservation of issues \u2014 argument deemed abandoned \u2014 no factual or legal support\nDefendant\u2019s argument that he received ineffective assistance of counsel because his trial attorney failed to object to inadmissible evidence, improper jury instructions, and unconstitutional entry of judgment was deemed abandoned where defendant failed to make a prejudice argument supported by factual or legal support.\n3. Criminal Law\u2014 instructions \u2014 erroneous answer to jury question \u2014 definition of intent\nThe trial court committed prejudicial error in its answer to the jury\u2019s question about the meaning of the word \u201cintent\u201d in the context of the jury instruction for assault with a deadly weapon and assault with a deadly weapon inflicting serious injury. The trial court\u2019s answer allowed the jury to convict defendant based on an improperly broad definition of intent.\n4. Evidence\u2014 lay opinion testimony \u2014 accident reconstruction \u2014 no plain error\nThe trial court erred in admitting opinion testimony from two police officers concerning a car accident based on their examination of the scene after the accident. The officers did not witness the accident and were not offered as experts in accident reconstruction. However, defendant failed to show plain error as he elicited the same testimony on cross-examination.\n5. Evidence\u2014 prior jail sentence \u2014 no error \u2014 no prejudicial error\nThe trial court did not err in admitting a police officer\u2019s testimony that defendant had just gotten out of jail recently. Even assuming arguendo that the admission of this evidence was improper, defendant failed to show prejudice where defendant\u2019s driving record was admitted at trial and showed that he had previously been sentenced to 12 months incarceration for driving while intoxicated.\n6. Jury\u2014 instructions \u2014 operating a vehicle to elude arrest\u2014 no plain error\nThe trial court did not commit plain error in its instructions to the jury on the charge of operating a vehicle to elude arrest. Defendant failed to show how the trial court\u2019s omission of the fourth element of the offense in one of four times it instructed the jury on the charge was prejudicial.\n7. Appeal and Error\u2014 preservation of issues \u2014 argument deemed abandoned \u2014 no factual or legal support\nDefendant\u2019s argument that his convictions for multiple offenses violated the prohibition against double jeopardy was deemed abandoned where defendant failed to make any argument with factual or legal support.\nERVIN, Judge, concurring in part and concurring in the result in part.\nAppeal by Defendant from judgments entered 24 April 2006 by Judge Abraham R Jones in Superior Court, Durham County. Heard in the Court of Appeals originally on 19 September 2007, and opinion filed 15 January 2008. Remanded to the Court of Appeals for reconsideration by order of the North Carolina Supreme Court on 12 December 2008.\nAttorney General Roy Cooper, by Special Counsel Isaac T. Avery, III, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for Defendant-Appellant." }, "file_name": "0001-01", "first_page_order": 29, "last_page_order": 63 }