An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                   NO. COA14-416
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:    21 October 2014



STATE OF NORTH CAROLINA


      v.                                      Mecklenburg County
                                              Nos. 12 CRS 54391, 54395
TORRENCE WESLEY PEOPLES




      Appeal by Defendant from judgment entered 5 December 2013

by Judge W. Robert Bell in Mecklenburg County Superior Court.

Heard in the Court of Appeals 8 September 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Joseph L. Hyde, for the State.

      Richard Croutharmel for Defendant.


      BELL, Judge.


      Defendant appeals from a judgment sentencing him to 103 to

136   months   imprisonment      for   selling     marijuana     and   obtaining

habitual felon status.          On appeal, Defendant contends that he

was provided constitutionally ineffective assistance of counsel
                                          -2-

when his trial counsel admitted his guilt before the jury in his

opening statement without his consent after he had withdrawn his

defense of entrapment.         Defendant further alleges that his trial

counsel’s performance was deficient and prejudiced the outcome

of his trial under traditional ineffective assistance of counsel

standards.        After      careful      consideration           of    the     parties’

arguments in light of the record and the applicable law, we

conclude that Defendant is not entitled to relief under either

theory.

                             I. Factual Background

                             A. Substantive Facts

      On   20   September     2012,    the       Charlotte       Mecklenburg     Police

Department      sanctioned    a     buy/bust         operation    in    which    police

officers would attempt to purchase drugs from street-level drug

dealers.     On this particular night, officers selected a location

in   Northwest    Charlotte       because       of   the   high     rate   of    violent

crimes,    prostitution,      and    drug-related          crimes      which    occurred

there.     Officer Alex Saine arrived on the scene in an undercover

vehicle    at   around    9:25     p.m.         Upon    arriving,      Officer     Saine

observed Defendant standing with a group of three or four males

in a parking lot.        Officer Saine made eye contact with Defendant

and gave Defendant a nod.              Defendant approached the driver’s

side of Officer Saine’s vehicle after first returning the nod.
                                       -3-

      Defendant asked Officer Saine what the officer desired from

him   and   Officer    Saine    told     Defendant   that    he    wanted     some

“green,” which is a common term for marijuana.                    Officer Saine

did   not   recall    Defendant   inquiring    whether      or   not   he    was   a

police officer but Officer Saine testified that had Defendant

made such an inquiry, he would have told Defendant that he was

not an officer.        After Officer Saine stated that he wanted $20

worth of “green,” Defendant stated that he did not have anything

on him and had Officer Saine drive him to his house.                          Upon

arriving,    Officer    Saine     gave   Defendant   a   marked        $20   bill.

Defendant then went inside his home and returned with four bags

of marijuana, which he gave to Officer Saine.                     Defendant was

arrested after being driven back to the parking lot at which

contact was initially made.

      When Defendant was arrested, he confirmed his address to

arresting officers and agreed to let them search his residence.

Officers found more bags of marijuana and a digital scale in a

location in Defendant’s room exactly where he informed them that

these items would be.

                          B. Procedural History

      Defendant was indicted on 10 December 2012 for engaging in

the sale of a controlled substance, delivery of a controlled

substance, possession of a controlled substance with the intent
                                            -4-

to    sell    or    deliver,    possession         of    drug   paraphernalia,       and

obtaining habitual felon status.                  The charges against Defendant

came on for trial during the 4 December 2013 Criminal Session of

the Mecklenburg County Superior Court.                    The jury returned guilty

verdicts       against     Defendant        on     the    charges     of   selling    a

controlled substance, delivery of a controlled substance, and

having       obtained     habitual     felon       status.        Judgment    against

Defendant for delivering a controlled substance was arrested at

sentencing.        The trial court entered judgment against Defendant

on 5 December 2013 for the sale of a controlled substance and

obtaining habitual felon status, sentencing him to a term of 103

to 136 months imprisonment.                 Defendant noted an appeal to this

Court from the trial court’s judgment.

                                II. Legal Analysis

      Defendant       raises    two    separate         ineffective   assistance     of

counsel arguments on appeal.                First, Defendant contends that he

received per se ineffective assistance of counsel on the basis

that his trial attorney admitted during his opening statement

that Defendant delivered marijuana to the undercover officer.

According to Defendant, although he initially gave his counsel

explicit consent on the record before the trial judge to admit

his   guilt,       such   consent     was    “necessarily       withdrawn”   when    he

finally       understood       that    an        entrapment     defense    would     be
                                          -5-

unavailable.         The entirety of Defendant’s argument rests on the

theory that the declaration by his trial attorney that Defendant

understood the futility of the defense evidenced a clear intent

to abandon any entrapment-based defense, which constituted an

implicit     withdrawal      of    his    consent   previously        given       to   his

attorney to admit the criminal acts before the jury in opening

statements.

       Defendant also contends that, should this Court not find

ineffective         assistance     of    counsel    per       se    based    upon      his

counsel’s admission of his guilt during his opening statement,

this    Court       should    still      conclude   that        Defendant        received

ineffective         assistance     of     counsel       because      there       was   no

justifiable     reason       for   his    admission      of   his    client’s       guilt

during his opening statement in light of the fact that defense

counsel neither elicited nor presented any evidence tending to

suggest      that    Defendant     was     entrapped      and      made     no   similar

argument during closing arguments.               In essence, Defendant argues

that his counsel acted in a constitutionally deficient manner

when    he     admitted      Defendant’s        guilt     without         pursing      the

entrapment defense and this action prejudiced his case at trial.

We, however, do not agree with Defendant’s contentions.

                              A. Harbison Violation

                1. Facts Surrounding Defendant’s Consent
                                        -6-

    Prior to trial, Defendant was offered a plea agreement but

rejected the agreement in favor of going to trial.                       Defense

counsel informed the court that Defendant wished to assert an

entrapment defense stemming from the fact that Defendant had

asked Officer Saine if he was a law enforcement officer on three

occasions      prior   to   making    the     drug   deal   and   Officer     Saine

responded untruthfully.             In doing so, Defendant consented to

having   his    counsel     admit    during    his   opening      statement    that

Defendant      committed    the      crimes    charged.        Defense   counsel

informed the court that he had attempted to explain to Defendant

that an entrapment defense would not be available under those

facts and that he did not file a notice to the State that the

defense would be pursuing entrapment as an affirmative defense

for that reason.

    Defendant then stated upon inquiry by the trial court that

he would allow his attorney to admit that he had sold drugs to a

law enforcement officer because Officer Saine had denied that he

was a law enforcement officer when Defendant questioned him.

Defendant claimed that his knowledge came from reading “the law

book.” However, the trial court informed Defendant that a lie

told by Officer Saine would not constitute a legal defense to

the crimes charged and it would not instruct the jury on an
                                        -7-

entrapment defense based on the facts alleged.                 After a bench

conference, counsel for Defendant stated:

            Your   Honor,   we   are  at   an   impasse.
            [Defendant] now realize[s] that the defense
            is not a viable defense but at the same time
            doesn’t want to plea as charged.    He wants
            to take the plea and I said, “No, the old
            plea is not available.”

The trial court made no further inquiry into the matter and,

instead, brought in the jury.                 During his opening statement,

defense counsel stated the following:

            Well, this is a very weird case where the
            defense   counsel  really  agree   with the
            prosecutor’s narration of the facts, but in
            this case we don’t agree too much on what
            happened.    The greatest agreement we have
            with the prosecutor’s case is that my
            client, when the officer approached him, he
            asked the officer several times are you [a]
            police officer. The officer said no, so my
            client felt he was misled when he provided
            the marijuana in question.

During   the    course     of    trial,    the    State   elicited   testimony

regarding   the   training       that   law    enforcement   officers   receive

about telling suspects during undercover work that they are not

law enforcement officers.             Defense counsel failed to question

Officer Saine with respect to whether or not he ever lied to

Defendant      regarding        his     employment    with    the    Charlotte

Mecklenburg County Police Department.

                            2. Harbison Analysis
                                              -8-

    Generally,         “[t]o        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

deficient performance prejudiced his defense.”                                   State v. Allen,

360 N.C. 297, 316, 626 S.E.2d 271, 286, cert. denied, 549 U.S.

867, 127 S. Ct. 164, 166 L. Ed. 2d 116 (2006).                                         However, our

Supreme      Court    has   concluded          “that      ineffective             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.”          State v. Harbison, 315 N.C. 175, 180, 337

S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S. 1123, 106 S.

Ct. 1992, 90 L. Ed. 2d 672 (1986).                                 Cases such as Harbison

“clearly indicate that the trial court must be satisfied that,

prior   to    any    admissions          of   guilt      at        trial    by     a    defendant's

counsel,     the     defendant      must      have       given       knowing          and    informed

consent,      and    the    defendant         must       be       aware     of    the       potential

consequences of his decision.”                  State v. Maready, 205 N.C. App.

1, 7, 695 S.E.2d 771, 776, disc. review denied, 364 N.C. 329,

701 S.E.2d 247 (2010).              Therefore, “[i]n order to ensure that a

defendant has consented to his counsel’s concessions of guilt, a

trial court must make an inquiry ‘adequate to establish that

defendant     consented       to    the       admissions           made     later       by    counsel
                                              -9-

during trial.’”            State v. Johnson, 161 N.C. App. 68, 76, 587

S.E.2d 445, 451 (2003) (quoting State v. Berry, 356 N.C. 490,

514, 573 S.E.2d 132, 148 (2002)).

      There is no allegation made in this case, nor is there

evidence in the record, to show that the trial court did not

engage      in    an    adequate    inquiry         with      Defendant       regarding   the

extent to which he consented to allow his trial counsel to admit

his guilt during opening statements.                       The record indicates that

Defendant understood his counsel’s statements would constitute

an admission of his guilt with respect to the crimes with which

he was charged and clearly indicated that the statements were to

be   made    by    his    trial    counsel      with       his    permission.       Despite

Defendant’s       clear,     unambiguous consent,                 Defendant argues        that

vague    statements         by    his    attorney        on      the   record    concerning

Defendant’s        understanding         of    the       futility        of   asserting    an

entrapment defense were sufficient to constitute a withdrawal of

his consent.           We disagree.

      A careful reading of the record does not demonstrate any

withdrawal of consent by Defendant.                        Even on appeal, Defendant

does not argue that he told his trial counsel to refrain from

making an admission of guilt.                   The key to a Harbison issue is

whether guilt was admitted to the “jury without the defendant’s

consent.”          Harbison,       315   N.C.       at     180,    337    S.E.2d   at     508.
                                         -10-

Defendant clearly consented to his counsel admitting his guilt.

Defendant never         subsequently explicitly             withdrew his      consent.

To    counter    these    facts,      Defendant        requests   that    this      Court

extend the rule expressed in Harbison to situations in which a

Defendant has implicitly withdrawn his consent.                          However, our

Supreme Court, in State v. Berry, held that absent notice that a

defendant’s      consent     to   the    making        of   certain     admissions     is

contingent upon presenting a particular defense and a subsequent

withdrawal       of   that    defense,       a    trial       court   does    not     act

improperly in assuming that the prior consent is still valid.

       The defendant in Berry was indicted for first degree murder

and    subsequently      filed    a   notice      of    his    intent    to   pursue    a

defense of insanity.          356 N.C. at 494, 497, 573 S.E.2d at 137,

139.    The defendant argued that the trial court erred when it

failed to determine that the defendant had withdrawn his consent

to    allowing    his    attorneys      to   make      certain    concessions       after

abandoning his insanity defense.                 Id. at 511, 573 S.E.2d at 147.

The defendant in that case informed the trial court that he was

aware of the trial strategy and had consented to the strategy.

Id. at 512-13, 573 S.E.2d at 147.                 After an opening statement in

which defense counsel made certain concessions to the jury and

after evidence had           been presented         by the State, the          defense

became aware of exculpatory evidence.                   Id. at 513, 573 S.E.2d at
                                            -11-

147.     In seeking a mistrial, the defendant’s attorneys argued

that they were not sure that they would have pursued an insanity

defense had they known of the exculpatory evidence.                           Id.    Still,

after    the   motion      for      a    mistrial   was     denied,    counsel       argued

during closing argument that the State had proven a case of

attempted first degree murder.                 Id. at 514, 573 S.E.2d at 148.

The Court found the defendant’s consent to have remained valid

on the basis that the defendant “did not expressly or impliedly

condition      his    consent       to    acknowledge       aspects    of     guilt    upon

presentation         of   an   insanity       defense”      and       “never        formally

withdrew his insanity plea,” thereby failing to give “the trial

court notice of the change of strategy.”                          Id. at 514-15, 573

S.E.2d at 148.

        As was the case with the defendant in Berry, Defendant

gave    no   indication        to   the    trial    court    that     his    consent    was

contingent upon the pursuit of an entrapment defense.                           Defendant

argues that the contingency of his consent to his making such an

admission was implicit in light of the fact that admitting any

guilt on his part served no functional purpose apart from a

trial strategy of pursuing an entrapment defense.                           However, this

argument was rejected in Berry, in which the Court found no

implied contingency in the defendant's consent.                             Had Defendant

stated that his consent to admitting his guilt was contingent
                                            -12-

upon an entrapment defense being pursued, this Court might have

been persuaded that an abandonment of his entrapment defense

amounted to a withdrawal of his consent.

      Even if this Court were to find that Defendant’s consent to

admit    his    criminality        was     dependent          upon    a    pursuit     of    his

entrapment defense, we find, as the Court did in Berry, that

Defendant failed to formally notify the court of his decision to

adopt a new defense strategy sufficiently to put the trial court

on notice that he was no longer pursuing an entrapment defense.

The     statement      relied      upon     by     Defendant          as     evidencing      the

withdrawal of his entrapment defense was his trial counsel's

comment    that       Defendant      had    come      to      a     realization       that    an

entrapment      defense      was    not    viable.            However,       that    statement

falls short of being a clear statement to the trial court that

Defendant was abandoning his prior defense strategy.                                Defendant,

on    multiple      occasions        was    told        by     the    trial        court     that

entrapment      was    not   a     viable       defense       and     that    it    would    not

instruct the jury concerning entrapment based on the facts as

alleged.       Defendant still sought to pursue the defense.                               Beyond

Defendant’s      apparent        stubbornness       with          respect     to    pursing    a

futile     defense,      had       the     evidence          during       trial     varied    in

substance       from    that       initially        forecast          by     Defendant,       an

entrapment      defense      could       have    been    warranted.            The    lack     of
                                        -13-

clarity in Defendant’s purported withdrawal was made apparent by

the     direct    examination     of    Officer        Saine.      The    prosecutor

specifically asked Officer Saine questions regarding whether or

not he had lied to Defendant about the fact that he was a law

enforcement officer, the strategy behind the telling of such

lies and the propriety of his statement.                    We are unable, like

the     State    below,   to     determine      that     Defendant    had     clearly

withdrawn his entrapment defense.

       Defendant    would      have    this    Court    conclude     from    a    vague

statement by his counsel that he had withdrawn his entrapment

defense and infer from that conclusion that he had withdrawn his

consent to a concession of guilt.                   This we cannot do.                 Had

Defendant clearly         made his consent         to a     concession      of guilt

contingent       upon   presenting      his    entrapment       defense     and    then

clearly withdrawn the defense, we might have been persuaded to

hold in Defendant’s favor.

       We do take the time to note that the better practice for

trial    courts    facing      ambiguous      statements    regarding       departure

from    or   abandonment    of    a    particular       defense    strategy       is   to

question the defendant           on the record          in order to       ascertain,

clearly, whether or not a particular defense strategy has been

abandoned and whether or not the consent to an admission of

guilt previously given has been withdrawn.                  It is for cases such
                                       -14-

as this that our Courts have always “urged ‘both the bar and the

trial    bench    to   be   diligent    in    making   a   full      record   of   a

defendant’s consent when a Harbison issue arises at trial.’”

Id. at 514, 573 S.E.2d at 148.

                            B. Strickland Analysis

    Defendant finally argues, under the Strickland standard of

ineffective      assistance    of   counsel,    that     even   if    he   did   not

receive per se ineffective assistance of counsel, his conviction

should    be     overturned   because     there    was     no   possible      trial

strategy that could have warranted his trial counsel’s decision

to admit his guilt before the jury while failing to present any

evidence that would tend to show that Defendant was entrapped.

We disagree.

    In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064, 80 L. Ed. 2d 674 (1984), the Supreme Court held:

            A convicted defendant’s claim that counsel’s
            assistance was so defective as to require
            reversal of a conviction or death sentence
            has two components.     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   the   defendant  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.
                                       -15-

With respect to pursuing a trial strategy based upon entrapment,

this Court has held that “[a] defendant . . . must admit to

having committed the acts underlying the offense with which he

is    charged    in   order   to   receive        an   entrapment    instruction.”

State v. Sanders, 95 N.C. App. 56, 61, 381 S.E.2d 827, 830

(1989).       Therefore, it stands to reason that if Defendant was

pursuing an entrapment-based defense, his trial counsel would

make a concession of guilt before the jury.                     Defendant contends

that    this    concession    by     his     trial     counsel    without    further

pursuit of the defense, either through cross-examination of the

State’s        witnesses      or      presentation         of       evidence,        is

constitutionally deficient performance and therefore meets the

first prong of the Strickland test.

       However, this Court need not reach the issue of whether

trial     counsel’s      performance       was    constitutionally         deficient.

State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985)

(holding that the reviewing “court need not determine whether

counsel’s       performance    was     actually        deficient”     if    it     “can

determine at the outset that there is no reasonable probability

that in the absence of counsel’s alleged errors the result of

the    proceeding     would   have     been      different”).       In     order    for

Defendant to be entitled to a new trial, Defendant must also

meet    the     second     prong     under       Strickland,     “that     counsel’s
                                           -16-

deficient performance prejudiced his defense.”                         Allen, 360 N.C.

at 316, 626 S.E.2d at 286.                  Defendant is not entitled to any

appellate relief unless this Court concludes that there was “a

reasonable probability            that, but       for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d

698.    This, we cannot do.

       Despite Defendant’s contention, we do not find the fact

that the jury returned guilty verdicts against Defendant only on

the     charges       that   were    conceded        during     opening       statements

persuasive to show that these consessions prejudiced Defendant.

Officer       Saine    testified     that    Defendant      approached        him    in   a

parking       lot    to   inquire    what    he   wanted,       that    Officer      Saine

requested      marijuana,     that       Defendant     offered    to    drive    Officer

Saine    to    his    residence     in    order   to    satisfy     his   request     for

marijuana, that Officer Saine took Defendant to his residence

and gave Defendant a marked $20 bill, that Defendant entered his

residence      while      Officer   Saine    waited      outside,      that    Defendant

returned to Officer Saine’s vehicle with four bags of marijuana

and handed them to Officer Saine, that the money exchanged had

been verified through matching serial numbers, and that multiple

other bags of marijuana were found in Defendant’s home in a

location       described     by     Defendant     when     he    consented      to    law
                                             -17-

enforcement         officers    conducting          a     search        of     his   residence.

Defendant      presented       no   testimony           to   the    contrary         and   cross-

examination         established       no    inconsistencies             in     the   witnesses’

testimony.      In light of this evidence, we are unable to conclude

that there is any reasonable probability that the outcome at

Defendant’s         trial     would        have    been      any        more    favorable      to

Defendant      than    was     actually       the       case      had    Defendant’s        trial

counsel       refrained        from        making        the       challenged         comments.

Therefore, Defendant is not entitled to a new trial.

                                    III. Conclusion

       For    the    reasons    set        forth    above,        we    conclude      that    any

admission made by Defendant’s trial counsel did not result in

per    se    ineffective       assistance          of    counsel.            Furthermore,      we

conclude that, in light of the weight of the evidence against

him,    Defendant       was    not     prejudiced            by    his       trial    counsel’s

performance.         Therefore, the trial court’s judgment should, and

hereby does, remain undisturbed.



       NO ERROR.

       Judges ERVIN and MCCULLOUGH concur.

       Report per Rule 30(e).
