              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-710

                                Filed: 1 March 2016

Mecklenburg County, No. 13 CRS 248513–14

STATE OF NORTH CAROLINA

             v.

ARTHUR LEE GIVENS


      Appeal by defendant from order entered 11 November 2014 by Judge Eric L.

Levinson in Mecklenburg County Superior Court. Heard in the Court of Appeals 12

January 2016.


      Attorney General Roy Cooper, by Special Deputy Attorney General I. Faison
      Hicks, for the State.

      Michael E. Casterline, for defendant-appellant.


      BRYANT, Judge.


      Where defendant has not met his burden to show that defense counsel was

deficient by not fulfilling a promise made to the jury in his opening statement,

defendant was not prejudiced and is not entitled to a new trial.

      Arthur Lee Givens, defendant, and Donald Everette Gist, the victim, became

acquainted in the fall of 2014 while they both stayed at Schameka Earl’s home for a

few weeks. At first, Gist got along well with both Earl and defendant. After a few

weeks, however, both Earl and defendant began having issues with Gist. Defendant,

who testified at trial, said Gist began threatening him, and other people in the house
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had to intervene to keep peace between them, as he and Gist “had each other’s

throat.” On one occasion, defendant saw Gist carrying a handgun tucked into his

pants as he walked around Earl’s house. A few days after Thanksgiving, on or about

4 December 2013, after suspecting that Gist had a gun in her house, Earl testified

that she told Gist to move out.

      On 6 December 2013, the day of Gist’s murder, Earl, defendant, and Tonya

McCaster were at Earl’s house.       McCaster testified that defendant received a

telephone call and, after he hung up, defendant said he “was gonna murder him.”

Defendant left and returned less than ten minutes later. Upon his return to Earl’s

house, he said, “I did it.” McCaster testified that she heard sirens and the sound of

an ambulance and police cars. Defendant then left Earl’s house quickly.

      Also on 6 December 2013, Jason Dobie, who was staying in a home near Earl’s

house, left to walk to the Queens Mini Mart. As he was walking there, he heard

several gunshots.   After he heard the gunshots, defendant ran past him in the

direction of Earl’s house. As defendant passed Dobie, Dobie heard defendant say “he

shouldn’t have crossed me.” Dobie arrived at the Queens Mini Mart to see Gist lying

dead on the pavement.

      The Queens Mini Mart operated a surveillance camera at the time of the

shooting. This camera’s footage depicted the scene before and during the shooting.

The video footage showed, inter alia, the following: (1) defendant at the Mini Mart;



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(2) that Gist had no weapon in his hand; (3) that Gist did not walk towards or

otherwise approach defendant; (4) before Gist was shot, he started walking away from

defendant; (5) defendant pulled out a gun as Gist continued to walk away from

defendant; (6) defendant shot Gist a total of five times, killing him; and (7) even after

defendant shot Gist and Gist was on the ground, defendant continued to shoot him.

Defendant testified that he believed Gist had a gun, based on a bulge he saw on Gist’s

person. Defendant also testified that he “felt eminent [sic] danger at the time.” Four

days later, defendant was arrested.

      Forensic evidence revealed that Gist had gunshot wounds to the head, torso,

back, and hands, and that the cause of death was from gunshot wounds to the head

and chest, each one of which was independently lethal. The police found no weapons

on Gist after his death, but the medical examiner found a crack pipe in Gist’s clothing.

      Defendant was indicted on charges of first-degree murder and possession of a

firearm by a felon on 16 December 2013. Defendant was tried on 17–21 November

2014 in the Criminal Superior Court of Mecklenburg County, before the Honorable

Eric L. Levinson.

      Before trial, defendant’s attorney filed notice of intent to assert self-defense

and also requested a Harbison hearing. During the Harbison hearing, defendant

acknowledged that he had reviewed the discovery in his case; he had a basic

understanding of the concept of self-defense; it was his decision as to whether or not



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his attorney could ask the jury to convict him of voluntary manslaughter; and he

understood he could assert self-defense without making any concessions. Defendant

specifically acknowledged that he agreed with his attorney’s plan to concede to the

jury that defendant had possessed a gun and that he had killed Gist by shooting him.

The trial court concluded that defendant made these decisions knowingly,

voluntarily, and intelligently. Thereafter, defendant pled guilty to the charge of

possession of a firearm by a felon, with no plea agreement or other representation

from the State. The trial court continued judgment upon sentencing.

      At trial, during defense counsel’s opening statement, he told the jurors that

the evidence would show that defendant’s conduct had been justified:

             [Defendant] did kill Mr. Gist. There is no question about
             that. . . . The question is was the conduct justified. When
             you hear all of the evidence you’re going to find that his
             conduct was justified based on everything that had
             happened in the weeks before and what finally led up to
             this event. . . . I believe the evidence that you will hear and
             in the end everything will say he was justified.

      At the charge conference following the presentation of all the evidence, defense

counsel requested an instruction on voluntary manslaughter, saying that imperfect

self-defense supported the instruction. The trial court denied that request. Defense

counsel also requested an instruction on second-degree murder, which the trial court

granted. After the trial court explained that it would instruct the jury only on first-




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degree and second-degree murder, defense counsel made a motion for a mistrial based

on his own ineffective assistance of counsel. The motion for a mistrial was denied.

      Defendant was found guilty of first-degree murder.             The trial court

consolidated the conviction for possession of a firearm with the first-degree murder

conviction and sentenced defendant to life in prison without parole.        Defendant

appeals.

      ___________________________________________________________________

      On appeal, defendant argues that trial counsel’s failure to produce promised

evidence amounts to ineffective assistance of counsel.        Specifically, defendant

contends that because defense counsel specifically promised that the evidence would

show the jury that defendant’s conduct was justified, but none of the evidence

presented suggested that defendant’s shooting the victim was justified or done in self-

defense, defense counsel’s failure to deliver on his promise to the jury amounted to

ineffective assistance of counsel. We disagree.

      “[I]neffective assistance of counsel claims ‘brought on direct review will be

decided on the merits when the cold record reveals that no further investigation is

required, i.e., claims that may be developed and argued without such ancillary

procedures as the appointment of investigators or an evidentiary hearing.’ ” State v.

Thompson, 359 N.C. 77, 122–23, 604 S.E.2d 850, 881 (2004) (citation omitted)

(quoting State v. Fair, 354 N.C. 131, 166, 577 S.E.2d 500, 524 (2001)).



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             To prevail on a claim of ineffective assistance of counsel, a
             defendant must first show that his counsel’s performance
             was deficient and then that counsel’s performance
             prejudiced his defense. Deficient performance may be
             established by showing that counsel’s representation fell
             below an objective standard of reasonableness. Generally,
             to establish prejudice, a defendant must show that there is
             a reasonable probability that, but for counsel’s
             unprofessional errors, the result of the proceeding would
             have been different.       A reasonable probability is a
             probability sufficient to undermine confidence in the
             outcome.

State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (internal citations and

quotation marks omitted).      Further, when a court undertakes to engage in this

analysis,

             every effort [must] be made to eliminate the distorting
             effects of hindsight . . . . Because of the difficulties inherent
             in making the evaluation, a court must indulge a strong
             presumption that counsel’s conduct falls within the wide
             range of reasonable professional assistance; that is, the
             defendant must overcome the presumption that, under the
             circumstances, the challenged action “might be considered
             sound trial strategy.”

Strickland v. Washington, 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694–95 (1984) (citation

omitted).

      Defendant argues that if defense counsel had not relied on a strategy of self-

defense, defendant would not, at his attorney’s suggestion, have conceded essential

elements of the crime. Defendant further contends that defense counsel should have

been aware that the evidence was legally insufficient to support any type of defensive



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force instruction and that defense counsel’s deficient performance was exacerbated

by the promise made to the jury that there would be evidence of justification for the

shooting.

      In support of his argument, defendant relies on two cases, State v. Moorman,

320 N.C. 387, 358 S.E2d 502 (1987), and Anderson v. Butler, 858 F.2d 16 (1st Cir.

1988), contending that each stands for the proposition that a promise made by defense

counsel in an opening statement which counsel does not ultimately fulfill amounts to

a per se instance of ineffective assistance of counsel, requiring a new trial. However,

these cases are either highly distinguishable (Moorman), or not controlling authority

(Anderson).

      In Moorman, the N.C. Supreme Court noted that defense counsel’s “promised

defense severely undercut the credibility of the actual evidence offered at trial . . . .”

320 N.C. at 401, 358 S.E.2d at 511. Including his failing to deliver on a promised

defense, the defendant’s trial counsel in Moorman committed, inter alia, a wide array

of incredibly egregious acts of misconduct: (1) he told the jury in his opening

statement that he would produce “one critical piece of evidence” which would show it

was physically impossible for the defendant to have raped the victim, even though he

had not adequately investigated the facts of the case; (2) he did not locate or interview

any witnesses before the trial started; (3) he never prepared his own client for trial,

and he never discussed his testimony or the questions he could expect to be asked on



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direct or cross-examination; (4) he took a wide combination of powerful drugs during

the trial, which caused his speech to be slurred and caused him to fall asleep at trial

(including during cross-examination of the defendant); and (5) he labored under a

conflict of interest in that he had a “public cause” of establishing a racially motivated

prosecution. Id. at 393–97, 358 S.E.2d at 506–08.

      Unlike the defendant’s appeal in Moorman, in the instant case defendant’s

entire appeal, based on ineffective of assistance of counsel, rests upon the assumption

that defense counsel misled defendant into conceding, admitting, and stipulating to

factual matters that were hotly disputed and subject to meaningful controversy. This

was not the case. Here, defendant conceded and stipulated only to facts as to which

there could be no dispute, given what the Queens Mini Mart video surveillance

footage undeniably showed.

      First, the trial court conducted a comprehensive Harbison inquiry.               A

“Harbison inquiry” regards the principle enunciated in State v. Harbison, 315 N.C.

175, 337 S.E.2d 504 (1985), in which the N.C. Supreme Court held that “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.” Id. at 179,

337 S.E.2d 506–07. Accordingly, “[b]ecause of the gravity of the consequences” of

pleading guilty, an “inquiry” with defendant is conducted, which involves a thorough

questioning of the defendant by the trial court in order to ensure that his “decision to



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plead guilty . . . [is] made knowingly and voluntarily . . . after full appraisal of the

consequences.” Id. at 180, 337 S.E.2d at 507 (citations omitted) (“[T]he gravity of the

consequences demands that the decision to plead guilty remain in the defendant’s

hands. When counsel admits his client’s guilt without first obtaining the client’s

consent, the client’s rights to a fair trial and to put the State to the burden of proof

are completely swept away.”); see State v. Holder, 218 N.C. App. 422, 425–28, 721

S.E.2d 365, 367–69 (2012) (holding that defense counsel’s concession during his

closing argument of defendant’s guilt of a lesser-included offense was not per se

ineffective assistance of counsel where defendant consented to his attorney’s

concession); State v. Maready, 205 N.C. App. 1, 12–13, 695 S.E.2d 771, 779–80 (2010)

(reviewing a trial court’s Harbison hearing to determine whether defendant explicitly

consented to defense counsel’s concessions made during closing argument); State v.

Johnson, 161 N.C. App. 68, 77–78, 587 S.E.2d 445, 451 (2003) (concluding “that the

trial court’s [Harbison] inquiry was adequate to establish that defendant had

previously consented to his counsel’s concession[s]”).

      Here, the trial court’s Harbison inquiry with defendant revealed that

defendant “knowingly and voluntarily” consented to allow defense counsel to make

certain concessions to the jury—specifically, that he had possessed a gun and killed

the victim by shooting him—and gave permission for his attorney to argue for a

voluntary manslaughter conviction:



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THE COURT: . . . [Y]ou understand that it is your
independent decision on whether or not to make certain
concessions or to, you know, allow [defense counsel] to
argue certain things?

Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: And has [defense counsel], you know, in the
last weeks or months shared with you the [d]iscovery? For
example, the materials that the government has provided
in terms of what their case or information looks like?

[DEFENDANT]: Yes, sir.

THE COURT: And do you have some basic understanding
about what self-defense means?

[DEFENDANT]: Yes, sir.

THE COURT: And do you understand that no matter what
[defense counsel] has said to you or other lawyers or others
have said to you that again, it is your independent decision
on whether or not to allow your counsel to basically tell the
jury that they should convict you of voluntary
manslaughter?

Do you understand that?

[DEFENDANT]: Yes, sir.

THE COURT: And that you could still assert, assuming
that the Court at some point allows the argument to be
made to the jury, but do you understand that it is not
required as a matter of law that you concede anything in
order to allow you to argue self-defense?

Stated differently, you know, the Court might still allow
you to ask the jury to find self-defense here even if you


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            didn’t make any concessions or allow [defense counsel] to
            argue any of these things; do you understand that?

            [DEFENDANT]: Yes, sir.

            THE COURT: But did you have any questions for me about
            this subject?

            [DEFENDANT]: No, sir.            My attorney went over
            everything.

            THE COURT: And are you in agreement that your lawyers
            should be permitted to make concessions to the jury, being
            that you possessed a firearm, that you shot numerous
            times resulting in – shot the decedent resulting in his
            death?

            And furthermore your agreement to give them flexibility to
            argue that they should convict you of voluntary
            manslaughter as we go through this trial, is that your
            desire, your wish?

            [DEFENDANT]: Yes, sir.

      Unlike the defense counsel in Moorman, here, it was further revealed during

the Harbison inquiry that defense counsel (1) met with defendant more than fifteen

times during the week prior to trial; (2) went over all of defendant’s anticipated

testimony and all of the State’s discovery and evidence, including the Queens Mini

Mart video footage; and (3) went over all the elements of the charges of murder and

manslaughter under North Carolina law and the legal doctrines of excessive force

and perfect versus imperfect self-defense. We also note that counsel in the instant

case made several motions before and during trial on behalf of defendant, made



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several objections to questions posed to witnesses by the State, and vigorously and

extensively cross-examined the State’s witnesses.        Further, there is no evidence

defense counsel had any conflict of interest, was under the influence of drugs, or fell

asleep during trial.

      Ultimately, Moorman is distinguishable because, here, defense counsel’s

performance was not deficient, as his efforts on behalf of defendant illustrate, and

defendant cannot show prejudice, as the State presented overwhelming evidence at

trial to prove beyond a reasonable doubt that defendant did commit first-degree

murder. Such evidence was completely independent of any concession, admission, or

stipulation by defendant or his attorney.

      In Anderson, a First Circuit case on which defendant relies, defense counsel

made a “dramatic” promise to the jury in his opening statement related to extremely

material and exculpatory testimony. 858 F.2d at 17. The evidence was available to

defense counsel, and he could have presented it to the jury, as promised, but he chose

not to do so. He had told the jury he would call a psychiatrist and a psychologist but,

without calling any doctors, rested his case based on lay witness testimony only. Id.

The First Circuit held that “to promise . . . such powerful evidence, and then not

produce it, could not be disregarded as harmless. We find it prejudicial as a matter

of law.” Id. at 19.




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                                  Opinion of the Court



      Not only is Anderson not controlling authority, but also, to the extent Anderson

stands for the proposition that defense counsel’s failure to fulfill a promise made in

an opening statement constitutes an act of per se ineffective assistance of counsel

mandating a new trial, the United States Court of Appeals for the Fourth Circuit

eschewed Anderson and the concept of such a bright-line rule:

             [In] United States v. McGill, 11 F.3d 223 (1st Cir. 1993),
             the First Circuit appeared to read narrowly its Anderson
             decision. The court said: “Although a failure to produce a
             promised witness may under some circumstances be
             deemed ineffective assistance, . . . the determination of
             inefficacy is necessarily fact based. . . .”

             We agree with the reasoning of the more recent First
             Circuit decision and with Judge Breyer’s dissenting
             opinion in Anderson, both of which adhere to Strickland’s
             express warning that:

                   No particular set of detailed rules for
                   counsel’s conduct can satisfactorily take
                   account of the variety of circumstances faced
                   by defense counsel or the range of legitimate
                   decisions regarding how best to represent a
                   criminal defendant. Any such set of rules
                   would interfere with the constitutionally
                   protected independence of counsel and
                   restrict the wide latitude counsel must have
                   in making tactical decisions.

             . . . In our view, assuming counsel does not know at the
             time of the opening statement that he will not produce the
             promised evidence, an informed change of strategy in the
             midst of trial is “virtually unchallengeable[.]” Were we to
             adopt [the defendant’s] position, we would effectively be
             instructing defense counsel to continue to pursue a trial
             strategy even after they conclude that the original strategy


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              was mistaken or that the client may be better served by a
              different strategy.

Turner v. Williams, 35 F.3d 872, 903–04 (4th Cir. 1994) (internal citations omitted)

(quoting Strickland, 466 U.S. at 688–89, 80 L. Ed. 2d at 694), rev’d on other grounds

in O’Dell v. Netherland, 95 F.3d 1214, 1222 (4th Cir. 1996).

       This Court and the North Carolina Supreme Court have both likewise rejected

a bright-line rule in favor of a fact-specific approach that evaluates the prejudice to

the defendant. See, e.g., State v. Mason, 337 N.C. 167, 176–77, 177 n.1 (1994) (quoting

Moorman, 320 N.C. at 401–02, 358 S.E.2d at 511) (finding opening remarks made by

defense counsel did not constitute a “promised defense” in the context determined to

be at issue in Moorman, and noting that in Moorman, the N.C. Supreme Court based

its holding on several facts, including defense counsel’s “wide-ranging opening

assertions,” but also his use of drugs and “his drowsiness, lethargy, and

inattentiveness during portions of the trial”); State v. Ortez, 178 N.C. App. 236, 249–

50, 631 S.E.2d 188, 198 (2006) (distinguishing Moorman and finding that defense

counsel kept its “promise” to the jury where evidence introduced at trial corroborated

defendant’s opening statement); see also State v. Floyd, No. COA12-1123, 2013 WL

2163808, *8 (N.C. Ct. App. May 21, 2013) (unpublished) (distinguishing Moorman

where defense counsel’s failure to recall a witness, standing alone, did not rise to the

level of ineffective assistance of counsel).




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      However, one particularly unique incident occurred in this case, which

requires consideration.    At the charge conference, defense counsel argued that

imperfect self-defense supported an instruction on voluntary manslaughter. He also

asked for an instruction on second-degree murder.          The trial court denied an

instruction on self-defense, but stated it would instruct the jury on first-degree and

second-degree murder. Defendant’s trial attorney then made a motion for a mistrial

based on his own ineffective assistance of counsel:

             At this time I think for the record I’ll make a motion for a
             mistrial based on the ineffective assistance of counsel. We
             made a concession at the beginning in opening arguments,
             jury selection, our questioning all based in anticipation of
             getting the voluntary manslaughter [jury instruction]. My
             client relied upon my representations there and
             conceivably to his detriment at this point. And would ask
             the Court to consider a mistrial at this time.

The trial court denied the motion, stating that “certainly there was a reasonable effort

and argument [by defense counsel] to try to make out a showing for self-defense.”

      The U.S. Supreme Court has laid out a test, which North Carolina has adopted,

see State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985), which places a very high

burden on defendants to establish ineffective assistance of counsel: “The benchmark

for judging any claim of ineffectiveness must be whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be

relied on as having produced a just result.” Strickland, 466 U.S. at 686, 80 L.Ed.2d

at 692–93 (emphasis added).


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      Despite defense counsel’s own argument to the court that his representation of

defendant constituted ineffective assistance of counsel, the record does not support

the argument that defense counsel’s performance “so undermined the adversarial

process that the trial cannot be relied on as having produced a just result.” Id. To

the contrary, the record is replete with motions defense counsel made on behalf of

defendant, objections made at trial, and thorough cross-examination of the State’s

witnesses.   Further, defendant testified to his contentious relationship with the

victim, and that he felt threatened by the victim who possessed, at varying times, a

knife and a gun. Defendant testified that he saw what he thought was a gun on the

victim, that he feared for his life, and that is why he shot the victim and kept shooting.

      This testimony could be considered as evidence of justification, such that

defendant’s challenge that counsel failed to fulfill a promise made in his opening

statement is without merit. Defense counsel promised and delivered evidence, but it

was for the jury to determine whether to believe that evidence. Defense counsel,

through the adversarial process, not only put forth a defense for defendant, but also

forced the State to prove its case beyond a reasonable doubt and challenged the State

at every reasonable opportunity. In moving for mistrial based on his own alleged

ineffective assistance of counsel, defense counsel contrived to demonstrate his zealous

advocacy on behalf of his client by choosing to effectively fall on his own sword.




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      Defendant has not shown that defense counsel was deficient and that his trial

was prejudiced as a result. Accordingly, defendant’s argument that he received

ineffective assistance of counsel and is entitled to a new trial is overruled.

      NO ERROR.

      Judges DILLON and ZACHARY concur.




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