STATE OF NORTH CAROLINA v. DONNIE RAY NUNNALLY
No. 216A25
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 22 May 2026
BERGER, Justice.
Jeff Jackson, Attorney General, by Ashley Weathers, Special Deputy Attorney General, for the State-appellant.
Joseph P. Lattimore for defendant-appellee.
BERGER, Justice.
A Durham County jury found defendant guilty of possession of a firearm by a felon and two counts of assault with a deadly weapon. Defendant was sentenced in the aggravated range to twenty-four to thirty-eight months in prison for possession of a firearm by a felon, to run consecutively with a 150-day sentence for the misdemeanor assaults.
In separate colloquies with the trial court, defendant stipulated that he had a
A divided panel of the Court of Appeals determined that “the record fails to show whether defendant knowingly consented in advance to his trial counsel‘s admission of guilt” and remanded the case to the trial court for an evidentiary hearing on that issue alone. State v. Nunnally, No. COA24-550, 2025 WL 2234017, at *5 (N.C. Ct. App. Aug. 6, 2025). Because defendant stipulated on the record to defense counsel‘s purported concessions and counsel did not explicitly or implicitly concede defendant‘s guilt, we reverse.
Defendant was indicted on two counts of assault with a deadly weapon with intent to kill and one count of possession of a firearm by a felon following an August 2021 incident with his former girlfriend, Geneicia Connor. Ms. Connor was following her uncle, Paul Connor, in her vehicle while helping him move to a new home. A black van pulled in front of Ms. Connor‘s car at a traffic signal, and defendant jumped out of the van holding a gun. Ms. Connor exited her vehicle, and defendant hit her with the gun, causing her to fall backwards into the grass. Seeing Ms. Connor fall, Mr. Connor exited his own car and saw defendant fire “two or three shots” in Ms. Connor‘s direction. Then defendant turned towards Mr. Connor and “shot at least three, four rounds.” No one was struck by any of the rounds.
Defendant‘s matter came on for trial in January 2023. During pretrial proceedings, defendant, his attorney, and the State executed and filed a written stipulation with the trial court in which defendant admitted that he had a prior felony conviction. Thereafter, a colloquy between defendant and the trial court occurred on the record concerning the stipulation.
THE COURT: All right. The Court has been handed a stipulation of the parties that reads, “In September 27, 2004, in Guilford County Superior Court, the Defendant pled guilty to a felony that was committed on December 19th, 2003, in violation of the laws of the State of North Carolina.”
. . . .
Well, [defense counsel], I assume you‘re stipulating for the
purpose of avoiding the jury hearing what the felony is, is that right? [DEFENSE COUNSEL]: That is correct, Your Honor. . . .
. . . .
THE COURT: Mr. Nunnally, can you stand up for just a minute? I‘ve just got to ask you a question.
Mr. Nunnally, did you understand what your lawyer just said? That basically by virtue of this stipulation, basically it‘s just something you—on which your lawyer and the State‘s lawyer agree. They‘re basically agreeing that you were convicted of a felony on September 24—September 27th, excuse me, 2004 in Guilford County.
That basically does admit an element of the offense. Your lawyer can‘t do that without your permission. Does he have your permission to do that?
DEFENDANT: Is it in my best interest?
[DEFENSE COUNSEL]: Yeah. Otherwise they‘re going to read what the felony was.
DEFENDANT: Yes, I agree.
THE COURT: Okay. So he does have your permission to do that?
DEFENDANT: Yes.
During trial, defense counsel informed the trial court that the court “needed to possibly make a [separate] Harbison inquiry because there may be a point in the trial when the defense may admit [defendant] actually possessed the firearm.” The trial court engaged in a second colloquy with defendant.
THE COURT: Mr. Nunnally, can you stand for me? Just got to ask you a quick question. It‘s kind of [the] same
question I asked you before about the other stipulation. Your lawyer has told me that there may be a point in this trial, either during one of his arguments or maybe if you testify—don‘t know whether that‘s going to happen yet or not—where he may concede on your behalf that you actually possessed a firearm during this incident. Because that‘s an element of one of the crimes, I have to ask you whether or not he has your permission to do that, because he‘s not allowed to concede any element of the crimes without your permission.
There may be tactical reasons why that‘s a good idea or not. I don‘t know, that‘s between you and your lawyer. But I just need to know whether or not he has your permission, if he does that.
DEFENDANT: He has my permission. Can I ask you a question?
. . . .
THE COURT: . . . Right now I‘m just trying to find out whether or not—because the point in time that that admission may come out might happen before we get to the point of testifying. I don‘t know. And I just need to make sure he‘s got your permission to do that because that‘s required. And so if he does, fine, just tell me so; if not, then I need to know that too.
. . . .
THE COURT: Just trying to find out if your lawyer has permission from you to admit during this incident you may have possessed a firearm. That‘s all.
. . . .
THE COURT: So does he have your permission?
DEFENDANT: Yes, sir.
At the close of the State‘s evidence, defendant declined to testify or put on any
The circumstances that you can draw the deduction from is what Mr. Connor said. He was standing mere feet, standing over Geneicia Connor when he pulled the trigger. If he had intended to kill her, Paul Connor‘s words, a reasonable and prudent person, he‘d have done it. . . .
From every other witness that absolutely would have looked like he was shooting at her. But Paul Connor says he wasn‘t. Then turned as Mr. Connor is coming. Same thing. Mr. Connor said he was close enough. I mean, closer than we are. And missed with multiple shots. That‘s a circumstance where you can say just a horrible shot. Or you can say never intended to kill.
The State says, why would you ever shoot a gun at somebody without an intent to kill? Warning shots scare people off. There‘s lots of reasons, whether they are rational reasons or reasons you would do, that‘s a different issue. But certainly just the fact that you point a gun in the direction of somebody and pull the trigger does not prove beyond a reasonable doubt that you had an intent to kill that person, especially when all the other circumstances are you didn‘t even strike them. And you were close enough that if that was your intent, you would not have missed.
You know, the State wants to quote the stuff from the Court of Appeals, natural consequences. Pointing a gun at somebody and shooting, if you intend to kill them a natural consequence is you hit them. Pointing a gun at somebody
and shooting and not hitting them is a natural consequence of not having an intent to kill that person. Just because someone points a gun in the direction of somebody does not mean there was an intent to kill.
The jury found defendant guilty of two counts of misdemeanor assault with a deadly weapon and one count of possession of a firearm by a felon. The jury also found as an aggravating factor that defendant committed these offenses while on pretrial release for other charges.1 The trial court sentenced defendant in the aggravated range to twenty-four to thirty-eight months in prison for the possession of a firearm by a felon conviction, to run consecutively with a 150-day sentence for the misdemeanor assaults.
Defendant appealed, arguing “he received per se ineffective assistance of counsel because the record does not establish whether he knowingly consented to his counsel‘s implicit admission of guilt to the possession of a firearm by a convicted felon charge.” Nunnally, 2025 WL 2234017, at *1. A divided panel at the Court of Appeals held that “the record fails to show whether defendant knowingly consented in advance to his trial counsel‘s admission of guilt.” Id. at *5. The majority remanded for an evidentiary hearing “to determine whether defendant understood the consequence of the concession of the second element.” Id.
The dissent argued that “[t]he record establishes that [defendant] expressly
The State filed a notice of appeal based upon the dissent below.2 We reverse for the reasons stated herein.
II. Discussion
“A defendant‘s right to counsel includes the right to the effective assistance of counsel.” State v. Braswell, 312 N.C. 553, 561 (1985); see
Generally, “[w]hen a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel‘s conduct fell below an objective standard of reasonableness.” Braswell, 312 N.C. at 561–62 (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)). To succeed on such a claim, a defendant must show (1) “that counsel‘s performance was deficient” and (2) “that the deficient
The two-part Strickland test recognizes that “litigants are not entitled to receive ‘perfect’ trials; instead, they are entitled to receive ‘a fair trial, free of prejudicial error.’ ” State v. Malachi, 371 N.C. 719, 733 (2018) (quoting State v. Ligon, 332 N.C. 224, 243 (1992)). Thus, “a showing of prejudice is generally required before appellate relief is granted in this jurisdiction.” Id. at 734. But North Carolina is among the minority of jurisdictions that will presume prejudice under the second prong of Strickland when defense counsel admits a defendant‘s guilt without the defendant‘s consent. See Harbison, 315 N.C. at 180.
In Harbison, the defendant was charged with first-degree murder and assault with a deadly weapon. He argued on appeal that his trial counsel admitted his guilt without his consent. 315 N.C. at 177. There, during closing argument, the defendant‘s counsel stated to the jury, “I don‘t 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.” Id. at 177–78. Ultimately, the defendant was convicted of second-degree murder and assault with a deadly weapon inflicting serious bodily injury. Id. at 176.
While the concession made by counsel is an important consideration, the rationale underlying Harbison is focused on consent. The Court stated that a
We concluded that “when counsel to the surprise of his client admits his client‘s guilt, the harm is so likely and so apparent that the issue of prejudice need not be addressed.” Id. Thus, “[i]neffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant‘s counsel admits the defendant‘s guilt to the jury without the defendant‘s consent.” Id. Stated another way, when counsel concedes a defendant‘s guilt without consent, prejudice is presumed and the defendant is not required to demonstrate any specific harm.
More recently, in State v. McAllister, 375 N.C. 455 (2020), this Court extended Harbison to implied concessions but reinforced that a defendant‘s consent is the critical focus of any Harbison inquiry. See id. at 477. There, the defendant was charged with multiple offenses, including assault on a female. Id. at 458–59. In his videotaped interview with law enforcement, the defendant admitted that he assaulted the female victim but denied the more serious offenses with which he was charged, including rape. Id. at 459.
The Court determined that Harbison “encompass[es] situations in which defense counsel impliedly concedes his client‘s guilt without prior authorization,” id. at 473, and remanded the case for an evidentiary hearing on consent, id. at 477. While no singular definition of implied concession was provided,3 the Court held that
Ultimately, although failing to provide a consistent and workable definition for implied concession, McAllister remained faithful to the touchstone of Harbison: a trial counsel‘s admission of a defendant‘s guilt, whether explicit or implicit, is per se ineffective assistance of counsel unless the defendant consented to the admission. The McAllister Court remanded for an evidentiary hearing “for the sole purpose of determining whether [the] defendant knowingly consented in advance to his attorney‘s admission of guilt,” McAllister, 375 N.C. at 477, thereby acknowledging that a defendant‘s consent conclusively defeats any Harbison claim.
Accordingly, the Harbison–McAllister framework is appropriate when “a client‘s autonomy, not counsel‘s competence, is in issue.” See McCoy, 584 U.S. at 426. In other words, when counsel usurps the defendant‘s exclusive “ability to decide whether to maintain his innocence” by conceding guilt without the defendant‘s4
But the inverse is also true. With a defendant‘s consent, counsel is permitted to concede the defendant‘s guilt to the jury. Similarly, when a defendant stipulates to elements of a crime on the record, counsel may present argument to the jury in accord with those stipulations. See State v. McNeill, 346 N.C. 233, 238 (1997) (no Harbison error when the “defendant signed the stipulation, understood its effect, and realized that the information contained therein could be presented to the jury“); see also State v. Matthews, 358 N.C. 102, 109 (2004) (no Harbison error when the “defendant knew his counsel were going to make such a concession“). Thus, when the record reveals a defendant knowingly stipulated to certain elements of an offense and his counsel‘s concessions do not exceed the scope of those stipulations, no Harbison error has occurred.
We have stated that “an on-the-record exchange between the trial court and the defendant is the preferred method of determining whether the defendant knowingly and voluntarily consented to an admission of guilt during closing argument.” McAllister, 375 N.C. at 477 (cleaned up). And while Harbison does not “specif[y] a particular procedure that the trial court must invariably follow when confronted with a defendant‘s concession, . . . we have urged both the bar and the trial
On appeal, defendant argued that “even though the record reveals his consent to the separate concession of both elements of the charge, it does not show his appreciation and understanding that such concessions equated to an admission of guilt.” Nunnally, 2025 WL 2234017, at *3. But defendant‘s argument ignores that the stipulations he agreed to on the record match counsel‘s purported concessions to the jury, and review of the record herein establishes that the purported concessions were not made to the surprise of defendant.
In addition to the written stipulation signed by defendant which related to his prior felony conviction, the trial court conducted two separate colloquies with defendant. During the first colloquy, defendant confirmed his authorization to admit the written stipulation after counsel explained it precluded the State from disclosing the nature of defendant‘s underlying felony conviction to the jury. The trial court then inquired if the defendant understood that his stipulation “admit[ted] an element of the offense” and if counsel had his permission to make the admission. After defendant asked on the record if the stipulation was “in [his] best interest,” counsel said yes. The trial court asked defendant again, “does [counsel] have your permission to do that?” Defendant replied in the affirmative.
Defendant cannot reasonably contend that he was surprised by defense counsel‘s purported admissions or the effects thereof because he knowingly consented to the admissions after the trial court engaged in two separate Harbison colloquies. During both colloquies, defendant was directed to consult with his attorney about questions he may have related to the concessions. Further, defendant asked counsel whether stipulating to the prior felony conviction was in his best interest, demonstrating that he was informed and engaged in his defense. Defendant thereafter made the decision to consent to counsel‘s actions.
Unlike in Harbison and McAllister where there was no evidence of consent, defendant here stipulated on the record to both elements of possession of a firearm
But even if we were unable to conclude from the record whether defendant consented, defendant‘s Harbison claim still fails because counsel did not explicitly or implicitly concede guilt or otherwise exceed the scope of defendant‘s stipulations. In fact, defendant admits that “counsel did not explicitly convey his surrender in
At the outset, we note that defendant faces a high bar. McAllister cautioned that a “finding of Harbison error based on an implied concession of guilt should be a rare occurrence.” Id. at 476. Indeed, courts “must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689; see also People v. Johnson, 538 N.E.2d 1118, 1125 (Ill. 1989) (“[A] defendant faces a high burden before he can forsake the two-part Strickland test.“).
Upon reviewing counsel‘s purported admissions during closing argument, we conclude that the concessions in McAllister are distinguishable from counsel‘s statements in this case. Here, counsel did not “attest[ ] to the accuracy” of the State‘s evidence or insert “his own personal opinion” about defendant‘s actions. See McAllister, 375 N.C. at 474. During closing, counsel merely commented on Mr. Connor‘s testimony—explicitly labeling the remarks as “Paul Connor‘s words” rather than his own—and argued that if Mr. Connor‘s description of events is accepted, then defendant did not necessarily have the intent to kill. Specifically, counsel argued “the fact that you point a gun in the direction of somebody and pull the trigger does not prove beyond a reasonable doubt that you had an intent to kill that person” and “[j]ust
Defendant argues that defense counsel “embraced the testimony of the State‘s witnesses that [defendant] fired a gun at two people, thereby depriving [defendant] of his right to have the jury determine whether the State met its burden on that issue.” But “embracing” testimony is not conceding guilt. And defendant‘s logic would seemingly require counsel to ignore and refrain from commenting on adverse testimony proffered by the State.
Defendant also relies on McAllister to argue that “by not expressly mentioning [the possession of a firearm by a felon charge] at all during the entire closing argument—the only logical inference in the eyes of the jury would have been that defense counsel was implicitly conceding defendant‘s guilt” to that offense. But even in McAllister this factor was not dispositive. There, the defense counsel‘s concessions sent an “unmistakable message” of the defendant‘s guilt, “a message that was magnified by defense counsel‘s failure to ask for a not guilty verdict as to that charge as he did for the other three charges.” McAllister, 375 N.C. at 476 (emphasis added). In other words, a defense counsel‘s failure to argue a specific charge cannot be the sole basis for finding an implied concession occurred. Instead, a reviewing court must
Further, the failure to argue is often evidence of competent and effective advocacy rather than per se ineffective assistance of counsel. “In situations where there is overwhelming evidence of guilt and no defense, if counsel contests all charges he is liable to lose credibility with the trier of fact when it comes to charges where a legitimate defense exists.” Johnson, 538 N.E.2d at 1125. And not only is this tactic often a sound trial strategy, but ethical considerations might demand attorneys take that approach in certain cases. See
While these distinctions may appear to be subtle, they are crucial to preserving the role of defense counsel. Competent defense counsel will directly confront the State‘s strongest evidence while maintaining their client‘s innocence, and in doing so, reviewing courts must be mindful that counsel must be granted sufficient latitude to address the realities of the State‘s evidence and arguments. Harbison error is therefore appropriately limited to the “rare occurrence,” see McAllister, 375 N.C. at 476, where counsel admits guilt “to the surprise of his client.” See Harbison, 315 N.C. at 180.
Not only is this leeway for counsel a practical necessity, but it also reinforces the principles underlying Harbison. There, per se ineffective assistance of counsel
III. Conclusion
We decline to extend Harbison in a way that perverts its intended protections by hindering the ability of defense counsel to effectively advocate for their clients and advance arguments in accord with their client‘s stipulations. To assert a Harbison violation, the record must (1) establish that the defendant did not consent to an admission by counsel and (2) clearly demonstrate that an admission of guilt occurred. When the record reveals the defendant‘s express consent to counsel‘s purported admissions, Harbison‘s per se rule is not applicable.
The majority below concluded that “the record fails to show whether defendant knowingly consented in advance to his trial counsel‘s admission of guilt.” Nunnally, 2025 WL 2234017, at *5. But that conclusion overlooks that defendant stipulated on the record to counsel‘s purported concessions and presupposes that an admission of
REVERSED.
STATE V. NUNNALLY
Newby, C.J., concurring
The majority‘s analysis of defendant‘s Sixth Amendment ineffective assistance of counsel (IAC) claim is a correct application of State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), and its progeny. Defendant failed to show that his counsel‘s performance was deficient. We therefore have no reason to proceed past the deficient-performance prong of the Strickland Test, meaning we have no occasion to invoke the Harbison Rule of presumed prejudice in this case. Therefore, I respectfully concur.
I write separately to highlight that the Harbison Rule has been undermined by the United States Supreme Court. In a future case where this Court must reach the prejudice prong of the Strickland Test and is asked to apply the Harbison Rule, or where the parties ask us to reconsider the Harbison Rule, we should realign our Sixth Amendment IAC jurisprudence with controlling authority from the United States Supreme Court.1
In our analysis, we acknowledged the general standard for IAC claims—the two-pronged Strickland Test:
First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 178-79, 337 S.E.2d at 506 (quoting State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984))). But we also cited United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984), where the United States Supreme Court recognized that some instances of deficient performance “are so likely to prejudice the accused that the cost
We took for granted that a defense counsel performs deficiently when he concedes guilt without the defendant‘s knowing, voluntary consent, and we also concluded that a concession of guilt without the defendant‘s knowing, voluntary consent is a type of deficient performance that warrants Cronic‘s presumption of prejudice. See id. at 178-80, 337 S.E.2d at 506-07. We stated, “[W]hen counsel to the surprise of his client admits his client‘s guilt, the harm is so likely and so apparent that the issue of prejudice need not be addressed.” Id. at 180, 337 S.E.2d at 507.
The upshot of Harbison was the adoption of an automatic rule: “[I]neffective assistance of counsel, per se in violation of the Sixth Amendment, [is] established in every criminal case in which the defendant‘s counsel admits the defendant‘s guilt to the jury without the defendant‘s consent.” Id. at 180, 337 S.E.2d at 507-08 (emphasis added). So long as a defendant could show that his counsel conceded guilt without knowing, voluntary consent, the defendant‘s Sixth Amendment right to counsel would be deemed violated automatically. There would be no further inquiries into whether defense counsel‘s concession was the result of reasonable professional judgment or whether there was a reasonable probability of a different outcome but for the concession. This Court subsequently expanded the Harbison Rule “to also encompass situations in which defense counsel impliedly concedes his client‘s guilt without prior authorization.” State v. McAllister, 375 N.C. 455, 473, 847 S.E.2d 711, 722 (2020).
According to the United States Supreme Court, Cronic‘s presumption of prejudice is “narrow” and is to be applied “infrequently.” Id. at 190, 125 S. Ct. at 562. The United States Supreme Court clarified that the “Cronic Exception” to the prejudice prong has a high threshold. For it to apply, defense counsel must “fail [to] meaningfully oppose the [State‘s] case,” “entirely fail[ ] to function as the client‘s advocate,” “entirely fail[ ] to subject the [State]‘s case to meaningful adversarial testing,” and “fail to function in any meaningful sense as the [State‘s] adversary.” Id. at 179, 189-90, 125 S. Ct. at 555, 561-62. This “failure must be complete.” Id. at 190, 125 S. Ct. at 562 (quoting Bell v. Cone, 535 U.S. 685, 696-97, 122 S. Ct. 1843, 1851 (2002)). Thus, “[a] presumption of prejudice is not in order based solely on a defendant‘s failure to provide express consent to a tenable [concession] strategy
The United States Supreme Court held that the Florida Supreme Court had erred by automatically treating every instance of a defense counsel‘s conceding guilt without the defendant‘s permission as an instance of deficient performance warranting Cronic‘s presumption of prejudice. Instead, IAC claims asserting that defense counsel conceded guilt without the defendant‘s knowing, voluntary consent are supposed to be fully evaluated under both prongs of the Strickland Test. The defendant must establish (1) that his counsel‘s performance was deficient, and (2) that the deficient performance prejudiced his defense. Infrequently, a defense counsel‘s concession of guilt without the defendant‘s knowing, voluntary consent may amount to a complete failure to function as the defendant‘s advocate. On those uncommon occasions, the “narrow” Cronic Exception may be invoked and the prejudice prong may be presumptively satisfied.
Harbison—like the Florida Supreme Court‘s decision in Nixon—flips this arrangement on its head and allows the Cronic Exception to effectively swallow the general rule, which requires review of both prongs of the Strickland Test. Under Harbison, every instance of a defense counsel‘s conceding guilt without the defendant‘s knowing, voluntary consent is treated as an instance of deficient performance where “the harm is so likely and so apparent that the issue of prejudice need not be addressed.” 315 N.C. at 180, 337 S.E.2d at 507. By always presuming that
Although Harbison was issued by this Court, the case concerned the Sixth Amendment right to counsel only—i.e., it was based exclusively on federal law. Id. at 178, 180, 337 S.E.2d at 506-07. The United States Supreme Court is the ultimate authority on questions of federal law, see State v. Tirado, 387 N.C. 104, 128-30, 911 S.E.2d 51, 69-71 (2025), including the test for determining when conduct constitutes IAC in violation of the Sixth Amendment.
Accordingly, we should follow Nixon in future cases when considering IAC claims under the Sixth Amendment. But because the Harbison Rule is ultimately not triggered in this case, and because the State did not argue for the realignment of our Sixth Amendment IAC jurisprudence with Nixon, this is not the case to address our Harbison jurisprudence. That case is in the future. I respectfully concur.
STATE V. NUNNALLY
Riggs, J., dissenting
I disagree with the majority‘s conclusion that Mr. Nunnally stipulated on the record to defense counsel‘s purported concessions and that the alleged stipulations presupposed that an admission of guilt took place for the possession of a firearm by a felon offense. While I agree with the majority that “the rationale underlying Harbison is focused on consent,” majority supra Part II, the record does not clearly establish that Mr. Nunnally knowingly consented to the second element of the possession of a firearm by a felon offense. This case is a closer call than what the majority portrays it to be, and I would hold that the Court of Appeals did not err in remanding this matter for an evidentiary hearing on that question. Thus, I respectfully dissent.
The offense of possession of a firearm by a felon has only two essential elements: (1) the defendant has been convicted of a felony,1 and (2) the defendant subsequently possessed a firearm. State v. Mercer, 373 N.C. 459, 462 (2020) (citing State v. Floyd, 369 N.C. 329, 333 (2016)). Defense counsel commits per se ineffective assistance of counsel when, “to the surprise of his client[,] . . . counsel admits the
I agree with the majority that defense counsel focused his closing argument predominantly on the counts of assault with a deadly weapon with intent to kill, rather than the possession offense, and did not explicitly argue the possession offense‘s elements. However, in the process of arguing about the intent element of the assault offenses, defense counsel implicitly conceded Mr. Nunnally‘s guilt to the possession offense. Defense counsel argued, “Yes, the witnesses said it was pointed at them. Well, clearly it wasn‘t pointed directly at them or they would have been shot. . . . [Defendant] must have been shooting around [the witness].” In this and other similar statements, defense counsel could not have made the argument that Mr. Nunnally did not intend to shoot the witnesses without implicitly conceding that Mr. Nunnally was holding and firing the weapon. Therefore, defense counsel effectively conceded Mr. Nunnally‘s guilt to possession of a firearm by a felon. See
In concluding that defense counsel made no actual concession, the majority insists that Mr. Nunnally‘s case is distinguishable from McAllister. I disagree. In McAllister, the defendant was charged with rape, a sexual offense, assault by strangulation, and assault on a female. Id. at 458-59. In closing argument, defense counsel never explicitly mentioned the assault on a female charge. Id. at 473. Instead, defense counsel focused on the other charges and conceded that the defendant “engaged in assaultive conduct” in arguing for the jury to find defendant not guilty of the other charges, without mentioning the assault on a female charge. Id. at 473-76. This Court concluded that “the only logical inference in the eyes of the jury would have been that defense counsel was implicitly conceding defendant‘s guilt as to [the assault on a female] charge.” Id. at 474. Like defense counsel in McAllister, defense counsel here did not explicitly mention the possession charge in closing, focused on the other charges, and conceded that Mr. Nunnally was in possession of a weapon in arguing that Mr. Nunnally should not be found guilty of the other charges.2
Turning to the issue of whether Mr. Nunnally consented to defense counsel conceding his guilt, the court engaged in two Harbison colloquies with Mr. Nunnally regarding each element of the possession offense. With respect to the second element, the following discussion took place between the court and Mr. Nunnally:
THE COURT: . . . Madam Reporter, during the testimony of the last witness, we had a brief bench conference in which defense counsel informed me that I needed to possibly make a Harbison inquiry because there may be a point in the trial when the defense may admit the Defendant actually possessed the firearm.
Is that correct, [defense counsel]?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Mr. Nunnally, can you stand up for me? Just got to ask you a quick question. It‘s kind of same question I asked you before about the other stipulation.
Your lawyer has told me that there may be a point in this trial, either during one of his arguments or maybe if you testify—don‘t know whether that‘s going to happen yet or not—where he may concede on your behalf that you actually possessed a firearm during this incident. Because that‘s an element of one of the crimes, I have to ask you whether or not he has your permission to do that, because he‘s not allowed to concede any element of the crimes without your permission.
There may be tactical reasons why that‘s a good idea or not. I don‘t know, that‘s between you and your lawyer. But I just need to know whether or not he has your permission, if he does that.
DEFENDANT: He has my permission. Can I ask you a question?
THE COURT: Sure. Be careful not to tell me anything about the confidential conversations between you and your lawyer, but, yes, you may ask me a question.
DEFENDANT: I wanted to be, you know, open and honest, you know, during the whole court—
THE COURT: Yes, sir.
DEFENDANT: —situation. And I‘m not going to hold anything back. So, you know, the court could proceed efficiently and not waste anybody‘s time. And that‘s why—
[DEFENSE COUNSEL]: We‘re not at that point yet, so—we‘ll get to that. He‘s asking about—the decision on whether to testify or not.
THE COURT: Oh, I see.
[DEFENSE COUNSEL]: And that will happen once the State—
THE COURT: Oh, yes, we‘ll have a conversation about that later, Mr. Nunnally. You don‘t have to decide that right now, but I will ask you some questions about that, too, later.
Right now I‘m just trying to find out whether or not—because the point in time that that admission may come out might happen before we get to the point of you testifying. I don‘t know. And I just need to make sure he‘s got your permission to do that because that‘s required. And so if he does, fine, just tell me so; if not, then I need to know that too.
DEFENDANT: You know, I didn‘t want to like waste, you know, court—and I wanted to kind of like explain to you, because I never had a chance—
[DEFENSE COUNSEL]: That‘s not—this is the trial. We‘re not—
THE COURT: Just trying to find out if your lawyer has permission from you to admit that during this incident you may have possessed a firearm. That‘s all.
DEFENDANT: At a later date, you know, during the trial, will I get a chance to talk to you?
THE COURT: You‘ll have, yes, an opportunity to testify. We will discuss that decision later.
DEFENDANT: Thank you.
THE COURT: So does he have your permission?
DEFENDANT: Yes, sir.
THE COURT: Thank you. That‘s all I need to know.
From the start, as shown by defense counsel‘s request for the court to perform a Harbison inquiry, defense counsel clearly intended to concede the possession element and did in fact concede the possession element during closing. Beyond forecasting the concession, this exchange also highlights several different problems with the Harbison inquiry. Divorced from full context, Mr. Nunnally‘s statements of “[h]e has my permission” and “[y]es, sir” would seem to indicate Mr. Nunnally consented on the record to his counsel conceding the second element of possession of a firearm. Indeed, the majority casts the colloquy in that light by not including the full discussion that occurred. But in viewing the colloquy in full, Mr. Nunnally is plainly distracted and myopically focused on making sure he can ask the trial court about his choice whether to testify. The court seemed to recognize that because it
Taken together, it is not clear whether Mr. Nunnally understood the potential consequences of providing consent for conceding to the possession element—that he was in effect conceding to the whole, completed offense and accepting the significant sentence that would accompany his guilt.3 This Court has held that where the defendant stipulates to all the elements of the offense defense counsel may infer consent to admit a defendant‘s guilt to the whole offense. See State v. McNeill, 346 N.C. 233, 238 (1997).
I agree with the majority‘s initial framing of the central intent of the Harbison inquiry: acknowledging that “[a] defendant‘s right to plead ‘not guilty’ has been carefully guarded by the courts” and must “remain in the defendant‘s hands” given the gravity of the consequences. See Harbison, 315 N.C. at 180. And there are instances where a defendant may choose, in collaboration with counsel, to concede guilt to an offense or element as part of an agreed-upon trial strategy. See, e.g., State v. Thompson, 359 N.C. 77, 115-20 (2004) (holding no ineffective assistance of counsel where defendant had consented to the trial strategy); State v. Moore, 286 N.C. App. 341, 345-50 (2022) (same); State v. Holder, 218 N.C. App. 422, 424-28 (2012) (same). But, while it is certainly desirable for defendants to effectively collaborate with defense counsel and pursue trial strategies that are in the defendant‘s best interest, at the end of the day, the choice to concede guilt remains in the defendant‘s hands as “[i]t is the defendant—not his attorney—whose liberty is placed at risk as a result of
Accordingly, I would hold that defense counsel implicitly conceded Mr. Nunnally‘s guilt to possession of a firearm by a felon. And, based on the second colloquy, the record fails to establish Mr. Nunnally‘s knowing consent to the second element of the possession offense. Therefore, I respectfully dissent and would hold that the Court of Appeals judgment should be affirmed.
Justice EARLS joins in this dissenting opinion.
Notes
McAllister articulated at least three different standards for determining when an implied concession has occurred. At one point, McAllister states that Harbison error occurs “where defense counsel‘s statements are the functional equivalent of an outright admission of the defendant‘s guilt.” 375 N.C. at 475. Later, the Court, in circular fashion, posits that an implied admission occurs when “defense counsel‘s statements to the jury cannot logically be interpreted as anything other than an implied concession of guilt.” Id. And finally, McAllister also suggests that an implied concession occurs when defense counsel declines to expressly argue an offense during closing and “the only logical inference in the eyes of the jury would have been that defense counsel was implicitly conceding [the] defendant‘s guilt as to that charge.” Id. at 474.
The last standard is particularly unhelpful, as we discuss in greater detail herein. Such a dubious statement by the McAllister Court is perhaps defensible under the facts of that case, but we are doubtful that formulation would serve as an effective standard going forward as there are many reasons counsel may choose not to argue a particular point or issue to a jury.
The jury ultimately found Mr. Nunnally guilty of two counts of misdemeanor assault with a deadly weapon and one count of possession of a firearm by a felon. For the possession conviction, Mr. Nunnally received a sentence of twenty-four to thirty-eight months. Had Mr. Nunnally pleaded guilty to the possession offense, a trial court would have had to comply with