State v. Wilson, 236 N.C. App. 472

On July 19, 2011, James Lewis Wilson (Defendant) exited a vehicle carrying a gun and confronted a group that included Timothy Lynch; Defendant testified he pointed the gun to disperse the crowd.
Witnesses testified Defendant cocked the slide, pointed the gun at Lynch, and tried to pull the trigger several times but the gun jammed; Defendant testified the slide was jammed and he did not point or pull the trigger after the crowd dispersed.
Police stopped the vehicle; they found Defendant’s gun with the safety on during a sweep.
Defendant was indicted (short form) for attempted first-degree murder on November 7, 2011; a jury convicted on March 20, 2013; Defendant orally appealed the next day.
On appeal Defendant argued (1) the short-form indictment was defective for omitting the element of malice aforethought and (2) trial counsel rendered ineffective assistance by conceding guilt during closing without Defendant’s consent.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the short-form indictment omitted an essential element (malice aforethought) for attempted first-degree murder	State argues the short form is sufficient to inform defendant of charge	Wilson argues omission of "malice aforethought" renders indictment insufficient and deprives court of jurisdiction	Court held indictment defective for failing to allege malice; arrested judgment on attempted first-degree murder and remanded for conviction/sentencing on attempted voluntary manslaughter
Whether defense counsel committed Harbison error by conceding guilt without defendant’s consent	State argues counsel’s closing remarks did not concede guilt to charged offense or a lesser-included offense	Wilson contends counsel admitted he pointed a gun at Lynch with intent to kill, constituting an unauthorized concession of guilt	Court held no Harbison error: counsel’s statements were equivocal, theoretical, and did not concede the charged offense or a lesser-included offense; no ineffective assistance shown

State v. Bullock, 154 N.C. App. 234 (2002) (short-form indictment that omits malice aforethought is insufficient; judgment must be arrested but conviction may be entered on lesser-included offense when supported)
State v. Harbison, 315 N.C. 175 (1985) (counsel’s concession of client’s guilt without consent is per se ineffective assistance)
State v. Fisher, 318 N.C. 512 (1986) (admission of an element by counsel that stops short of conceding guilt falls outside Harbison error)
State v. Robbins, 309 N.C. 771 (1983) (describing voluntary manslaughter as an unlawful killing without malice, premeditation, or deliberation)
State v. McKoy, 196 N.C. App. 650 (2009) (de novo review applies to sufficiency of an indictment)