Opinion
No. COA11–1162.
2012-07-3
STATE of North Carolina v. Victor Manuel VASQUEZ.
Attorney General Roy Cooper, by Special Deputy Attorney General G. Patrick Murphy, for the State. C. Scott Holmes for Defendant–Appellant.
Appeal by Defendant from judgment entered 29 October 2010 by Judge Timothy S. Kincaid in Superior Court, Mecklenburg County. Heard in the Court of Appeals on 3 April 2012. Attorney General Roy Cooper, by Special Deputy Attorney General G. Patrick Murphy, for the State. C. Scott Holmes for Defendant–Appellant.
McGEE, Judge.
Victor Manuel Vasquez (Defendant) was convicted of first-degree murder on 29 October 2010. Defendant was sentenced to life imprisonment without parole. Defendant appeals.
The evidence at trial tended to show that on 11 April 2008, Gregorio Hernandez (Mr. Hernandez) was fatally shot in Mecklenburg County, North Carolina. Defendant, along with a man named Alfonso Caballero (Mr. Caballero), drove to an auto repair shop and dealership (the auto repair shop) where Mr. Hernandez worked. Defendant was armed with a .45 caliber pistol, and Mr. Caballero was armed with a .38 caliber pistol.
A statement Defendant gave to police on the day of the shooting was published to the jury. In his statement, Defendant said he drove Mr. Caballero to the auto repair shop, but did not know what Mr. Caballero intended to do once they reached the auto repair shop. Defendant claimed Mr. Hernandez had agreed to fix a car for Mr. Caballero, but had never returned the car to Mr. Caballero. According to Defendant's statement, when Defendant and Mr. Caballero arrived at the auto repair shop, Mr. Caballero said, “I want to talk to [Mr. Hernandez] [.]” Defendant initially remained in the car. Defendant stated that, “[a]s soon as [Mr. Caballero] got out” of the car, Mr. Caballero and Mr. Hernandez started shooting at one another. Defendant then exited the car.
Defendant stated that he first saw Mr. Hernandez shoot at Mr. Caballero and Defendant got out of the car in order to defend Mr. Caballero. As Defendant left the car, he saw Mr. Hernandez, “holding his stomach ... [a]nd ... point [ing][a] gun at [Defendant].” Defendant indicated that he then shot Mr. Hernandez twice with a .45 caliber pistol, once in the head, and once again in the chest.
Dr. James Michael Sullivan (Dr. Sullivan), a forensic pathologist, testified that, in his capacity as a medical examiner for Mecklenburg County, he performed an autopsy on Mr. Hernandez. Dr. Sullivan testified that he found four separate gunshot wounds on Mr. Hernandez's body, consisting of one wound to the head, one wound to the chest, and two wounds to the victim's right arm. The State also presented evidence that the bullet recovered from Mr. Hernandez's head was from a .45 caliber gun, and the bullet recovered from the chest was from a .38 caliber gun.
I. Issues on Appeal
Defendant raises the following issues on appeal: (1) whether Defendant's counsel “committed ineffective assistance of counsel by admitting elements of guilt without the consent of ... Defendant[;]” and (2) whether the trial court committed plain error by allowing Defendant's trial counsel to admit elements of guilt without inquiring of Defendant whether Defendant consented to that strategy.
II. Admission of Guilt
Defendant first argues that he received per se ineffective assistance of counsel because his trial attorney admitted Defendant's guilt without first consulting Defendant. Specifically, Defendant argues that “during opening and closing statements counsel for ... Defendant made statements admitting guilt, and the trial court never made an inquiry whether ... Defendant consented to these admissions.” Defendant asserts that: “In the opening statement, counsel for Defendant said that ... [D]efendant admitted to shooting Mr. Hernandez.” Defendant also calls our attention to his trial counsel's statement that Defendant did not “dispute most of what the State has to offer as evidence, but it is the details as to the big question of whether or not the unfortunate shooting of Gregorio Hernandez was first degree murder or something else.” Defendant also argues in his brief that during closing argument, his trial counsel conceded that Defendant “shot Mr. Hernandez in the head because he thought Mr. Hernandez was going to shoot and kill [Defendant].”
Defendant argues that, by making the challenged statements, his trial counsel admitted “elements of guilt” without first consulting Defendant and obtaining Defendant's consent. Per se prejudicial error occurs “[w]hen counsel admits his client's guilt without first obtaining the client's consent[.]” State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985). We first note that Defendant's trial counsel did not actually admit Defendant's guilt. Rather, Defendant's counsel admitted that Defendant shot Mr. Hernandez, conduct which, in and of itself, does not amount to first-degree murder. Defense counsel argued that the question for the jury to determine would be whether Defendant, having shot Mr. Hernandez, was guilty of first-degree murder or “something else.” Defense counsel's statement, made during closing, shows that Defendant's theory of the case was that he shot Mr. Hernandez in defense of Mr. Caballero. Thus, defense counsel's statements are not admissions of guilt to first-degree murder. At most, defense counsel's statements amounted to admissions of some, but not all, factual elements of a crime.
However, Defendant also contends the trial court erred by failing to inquire of Defendant as to “whether he consented to these admissions of important elements of the offense.” Defendant cites no authority in support of his interpretation of defense counsel's statements as admissions of guilt, nor does Defendant cite any authority for the proposition that an admission of an element of an offense is tantamount to an admission of guilt. In his brief, Defendant relies on State v. Matthews, 358 N.C. 102, 108, 591 S.E.2d 535, 540 (2004). Matthews involved a trial counsel's strategy “ ‘to convince the jury that defendant was guilty of something other than first degree murder.’ “ Id. Our Supreme Court noted that, in Matthews, the record did not indicate that the defendant had been informed that his attorney planned to carry out the strategy of conceding the defendant's guilt to second-degree murder. Id. at 109, 591 S.E.2d at 540. Because the attorney in Matthews conceded guilt of a lesser-included offense without first obtaining the consent of the defendant, the Court held that a Harbison violation had occurred and ordered a new trial. Id. at 109,591 S.E.2d at 540–541.
We find Matthews distinguishable from the present case because, as stated above, Defendant's counsel never admitted Defendant's guilt to any crime. There were also no lesser-included offenses submitted to the jury. The jury was asked solely to determine whether Defendant was guilty or not guilty of first-degree murder. Thus, defense counsel's statement that the jury needed to determine “whether or not the unfortunate shooting of [Mr.] Hernandez was first-degree murder or something else” was not an admission of Defendant's guilt to a lesser-included offense, but a statement of fact that the jury would be responsible for deciding whether Defendant was, or was not, guilty of the specific crime of first-degree murder.
None of the cases that Defendant cites involve Harbison errors arising out of trial counsel's admission of an element of a crime, nor have we discovered any cases that would support Defendant's argument. Instead, our research suggests the opposite. See, e.g., State v. Fisher, 318 N.C. 512, 532–33, 350 S.E.2d 334, 346 (1986) (“The case sub judice is factually distinguishable from Harbison in that the defendant's counsel never clearly admitted guilt.... Although counsel stated there was malice, he did not admit guilt, as he told the jury that they could find the defendant not guilty.”); State v. Maniego, 163 N .C.App. 676, 683–684, 594 S.E.2d 242, 246–247 (2004) (holding that a statement indicating that the defendant was at the scene of a crime was not a concession of guilt); State v. Gainey, 355 N.C. 73, 93, 558 S.E.2d 463, 467 (2002) (explaining that the statement, “if he's guilty of anything, he's guilty of accessory after the fact. He's guilty of possession of a stolen vehicle” was not an admission that defendant was guilty of any crime); State v. Harvell, 334 N.C. 356, 361, 432 S.E.2d 125, 128 (1993) (“[T]he defendant's counsel never conceded that the defendant was guilty of any crime. He merely noted that if the evidence tended to establish the commission of any crime, that crime was voluntary manslaughter. This was not the equivalent of admitting that the defendant was guilty of any crime.”).
Based on the foregoing, we hold that the statements of defense counsel at trial did not constitute an admission of guilt to the crime of first-degree murder. We therefore find no per se ineffective assistance of counsel under Harbison. While defense counsel conceded that Defendant shot Mr. Hernandez, this concession, viewed in the context of the trial, was part of a consistent theory that Defendant was not guilty of first-degree murder. See Gainey, 355 N.C. at 93, 558 S.E.2d at 476.
As the present case “does not fall with the Harbison line of cases where violation of the defendant's Sixth Amendment rights are presumed, [D]efendant's claim of ineffective assistance of counsel [can only] be analyzed using the Strickland factors.” Fisher, 318 N.C. at 533, 350 S.E.2d at 346. From the record provided, we cannot make a determination as to whether the performance of defense counsel constitutes ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674 (1984). Thus, in the present case, “the appropriate remedy, if any, is for ... [D]efendant to file, either before or after direct appeal, a motion for appropriate relief in the superior court based upon ineffective assistance of counsel pursuant to N.C.G.S. § 15A–1415 (b)(3).” State v. House, 340 N.C. 187, 196–197, 456 S .E.2d 292, 297 (1995).
III. Requirement of Hearing
Defendant next argues that the trial court erred by failing to conduct a Harbison hearing concerning whether Defendant consented to his trial counsel's admission of guilt. However, as we have concluded Defendant's counsel made no admission of guilt, we need not address Defendant's second argument that the trial court was required to make a Harbison inquiry regarding the alleged guilt concession.
No error. Judges STEPHENS and HUNTER, JR. concur.
Report per Rule 30(e).