State v. McAllister, 375 N.C. 455

In Feb 2015 Anton Thurman McAllister violently assaulted Stephanie Leonard; he later gave a videotaped police interview admitting various acts of physical violence and saying “I can take the rap for that.”
McAllister was indicted for habitual misdemeanor assault (based on assault on a female), assault by strangulation, second-degree sexual offense, and second-degree rape; the videotaped interview was admitted at trial.
Before trial the State warned of a potential Harbison issue; the trial court briefly inquired of defense counsel, who said he would not make admissions in opening; no further on-the-record consent colloquy occurred.
In closing defense counsel repeatedly vouched that McAllister had been “honest,” acknowledged that “he did wrong,” argued the jury should acquit on rape/sexual offense/strangulation, but never expressly addressed the assault-on-a-female count.
Jury acquitted McAllister of the three more serious charges and convicted him of habitual misdemeanor assault (assault on a female); the Court of Appeals affirmed in a divided decision interpreting Harbison narrowly.
The North Carolina Supreme Court held that Harbison error can arise from implied (not only express) admissions of guilt, reversed the Court of Appeals, and remanded for an evidentiary hearing on whether McAllister consented to defense counsel’s implied concession.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Harbison covers implied—not just express—admissions of guilt	State / COA: Harbison applies only to explicit admissions or functional equivalents that clearly ask jury to convict	McAllister: Harbison should apply where counsel’s statements implicitly concede guilt without client consent	Supreme Court: Harbison applies to implied concessions when statements "cannot logically be interpreted" otherwise
Whether defense counsel’s closing here amounted to an implied admission of assault on a female	State: Counsel merely conceded wrongdoing/unchallenged facts and argued acquittal on more serious counts	McAllister: Counsel vouched for the videotaped admissions, said defendant “did wrong,” omitted the assault charge from his acquit list — implying concession	Court: Counsel’s statements functionally conceded guilt of assault on a female
Whether consent existed and appropriate remedy	State: Record silence does not prove lack of consent; no on-the-record colloquy required	McAllister: No evidence of prior consent; counsel did not warn or obtain authorization	Court: Remand for prompt evidentiary hearing to determine whether McAllister knowingly consented; if not, Harbison error warrants new trial

State v. Harbison, 315 N.C. 175 (N.C. 1985) (per se ineffective assistance when counsel concedes defendant’s guilt to jury without consent)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel; prejudice requirement except in rare presumptive cases)
United States v. Cronic, 466 U.S. 648 (U.S. 1984) (circumstances may be so likely to prejudice that prejudice is presumed)
State v. Matthews, 358 N.C. 102 (N.C. 2004) (Harbison error where counsel conceded guilt to lesser included offense without consent)
State v. Fisher, 318 N.C. 512 (N.C. 1986) (distinguishing Harbison where counsel admitted an element but not guilt)
State v. Thomas, 329 N.C. 423 (N.C. 1991) (statements of wrongdoing not Harbison error absent concession of charged offense)
State v. Greene, 332 N.C. 565 (N.C. 1992) (no Harbison error where counsel argued innocence overall despite noting lesser offense possibility)
State v. Spencer, 218 N.C. App. 267 (N.C. Ct. App. 2012) (Court of Appeals recognizing implied admissions can constitute Harbison error)