State Of North Carolina v. Maready

• Decision Date: 06 July 2010
• Docket Number: No. COA07-171-2.,COA07-171-2.
• Citation: 695 S.E.2d 771
• Parties: STATE of North Carolinav.Kenneth Wayne MAREADY.
• Court: North Carolina Court of Appeals

695 S.E.2d 771

STATE of North Carolinav.Kenneth Wayne MAREADY.

No. COA07-171-2.

Court of Appeals of North Carolina.

July 6, 2010.

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Appeal by Defendant from judgments entered 24 April 2006 by Judge Abraham P. Jones in Superior Court, Durham County. Heard in the Court of Appeals originally on 19 September 2007, and opinion filed 15 January 2008. Remanded to the Court of Appeals for reconsideration by order of the North Carolina Supreme Court on 12 December 2008.

Attorney General Roy Cooper, by Special Counsel Isaac T. Avery, III, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for Defendant-Appellant.

McGEE, Judge.

Kenneth Wayne Maready (Defendant) was convicted on 24 April 2006 of second-degree murder, felony eluding arrest, assault with a deadly weapon inflicting serious injury, two counts of assault with a deadly weapon, DWI, reckless driving, DWLR, misdemeanor larceny, and misdemeanor possession of stolen goods. The jury also found that Defendant had attained habitual felon status and further found, as an aggravating factor, that “[D]efendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person [.]” The trial court sentenced Defendant to prison terms of 270 months to 333 months for second-degree murder, 150 months to 189 months for assault with a deadly weapon inflicting serious injury, 150 months to 189 months for felony eluding arrest, 24 months for DWI, 150 days for each count of assault with a deadly weapon, 120 days for DWLR, 120 days for misdemeanor larceny, and 60 days for reckless driving; all sentences were to run consecutively and credit was given for time served. Judgment was arrested for misdemeanor possession of stolen goods.

Defendant appealed. A divided panel of our Court reversed and remanded to the trial court for a new trial based upon our holdings that a law enforcement stop of Defendant just prior to the traffic accident was improper, that the trial court erroneously instructed the jury on the element of intent, and that the trial court erroneously admitted several of Defendant's prior convictions of DWI into evidence. State v. Maready, 188 N.C.App. 169, 654 S.E.2d 769 (2008) ( Maready I ). The North Carolina Supreme Court reversed and remanded to our Court for consideration of assignments of error not addressed in Maready I. State v. Maready, 362 N.C. 614, 669 S.E.2d 564 (2008) ( Maready II ). More detailed statements of the facts may be found in Maready I and Maready II, and additional relevant facts will be discussed in the body of this opinion.

I.

In Defendant's tenth argument, he contended his trial counsel's assistance was per se ineffective, and he should therefore be awarded a new trial on his convictions for second-degree murder, and two counts of misdemeanor assault with a deadly weapon. In the alternative, Defendant requested that we remand to the trial court for a hearing to determine whether Defendant had properly consented to his trial counsel's admission of guilt to these three charges under State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985). Defendant requested no relief pursuant to Harbison for the remaining charges, and we therefore do not address them. See State v. Millsaps, 356 N.C. 556, 569-70, 572 S.E.2d 767, 776-777 (2002). We agreed that a hearing was required to determine whether Defendant gave informed consent for his counsel's admissions of guilt to the three above-listed charges. We remanded the matter to the trial court for a hearing by order entered 6 April 2009. We instructed the trial court to make findings of fact based upon the evidence presented at the hearing. The hearing was conducted by the trial court on 14 September 2009, and the trial court entered its order on the hearing on 14 October 2009. We allowed the parties to file supplemental briefs to augment their original arguments on appeal in light of the findings made by the trial court in its 14 October 2009 order.

Defendant initially pled not guilty to the charges for which he was tried. During closing argument, Defendant's counsel conceded that the State had met its burden with respect to the charges of DWI, reckless driving, DWLR and misdemeanor “larceny and/or possession of stolen property.” Defendant's counsel also made the following statements:

We do have the two misdemeanor assaults.... We don't contest those. They are inclusive in the events that have significant issues associated with them, but we don't contest those. And you can go and make your decisions accordingly.... [Defendant] holds absolute-holds responsibility for [the death of the victim]. I just argue it's not murder. It's Involuntary Manslaughter.

Defendant's counsel discussed the elements of involuntary manslaughter with the jury, stating that the second element was “that ... [D]efendant's impaired driving proximately caused the victim's death. That's true. [Defendant's] guilty of that and should be found guilty of that.” Defendant's counsel also stated that: “[Defendant's] already admitted to you guilt ... to ... Assault with a Deadly Weapon times two[.]”

At the close of all the evidence and after closing arguments, but before jury instruction, Defendant's counsel again admitted Defendant's guilt to the charges of reckless driving, DWI, DWLR and misdemeanor possession of stolen goods. The trial court asked Defendant: “Have you agreed that your attorney [concedes guilt to reckless driving, DWI, DWLR and misdemeanor possession of stolen goods]?” and Defendant answered, “Yes, sir.” Defendant also volunteered that he had consented to admit his guilt to the charge of misdemeanor larceny, and the following colloquy occurred:

[The State]: Misdemeanor Larceny. And there might even be the Involuntary Manslaughter, I believe, at one point. Maybe I misunderstood that part of the argument, but I thought when he was arguing-

The Court: There was also misdemeanor larceny, that's correct.

[Defense Counsel]: Your Honor, I argued that's what [Defendant] should be convicted of.

[The State]: Okay. Never mind then. I won't go there.

The matter was then dropped, and the trial court never asked Defendant if he had agreed to his counsel's admitting guilt on the charges of involuntary manslaughter or the two counts of assault with a deadly weapon.

The record of the trial was devoid of any evidence that Defendant gave informed consent to his counsel's admission of guilt for the charges of involuntary manslaughter or the two counts of assault with a deadly weapon. For this reason, we remanded to the trial court for an evidentiary hearing to determine whether Defendant gave his counsel the consent required by Harbison and its progeny, discussed below, for the admissions of guilt made at trial by Defendant's counsel. Our Supreme Court has stated that:

A defendant's right to plead “not guilty” has been carefully guarded by the courts. When a defendant enters a plea of “not guilty,” he preserves two fundamental rights. First, he preserves the right to a fair trial as provided by the Sixth Amendment. Second, he preserves the right to hold the government to proof beyond a reasonable doubt. A plea decision must be made exclusively by the defendant. “A plea of guilty or no contest involves the waiver of various fundamental rights such as the privilege against self-incrimination, the right of confrontation and the right to trial by jury.” State v. Sinclair, 301 N.C. 193, 197, 270 S.E.2d 418, 421 (1980). Because of the gravity of the consequences, a decision to plead guilty must be made knowingly and voluntarily by the defendant after full appraisal of the consequences. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); N.C.G.S. § 15A-1011 through § 15A-1026; State v. Sinclair, 301 N.C. 193, 270 S.E.2d 418 (1980).

Harbison, 315 N.C. at 180, 337 S.E.2d at 507 (citations omitted). The Harbison Court held that a defendant establishes a per se claim of ineffective assistance of counsel where the evidence shows the defendant's counsel admitted guilt to any charge without the defendant's informed consent. Id., 337 S.E.2d at 507-08. The Court in Harbison further held that this violation required that the defendant receive a new trial. Id. at 180-81, 337 S.E.2d at 508.

In State v. Matthews, 358 N.C. 102, 591 S.E.2d 535 (2004), the defendant's counsel argued to the jury that it should find his client guilty of second-degree murder, not first-degree murder. The record did not indicate that the defendant had given consent to his attorney to make this concession. The defendant was found guilty of first-degree murder and appealed. The defendant argued that his counsel's admission of the defendant's guilt to second-degree murder without the defendant's consent violated the holding in Harbison. The Matthews Court decided it did not have enough evidence in the record to make a determination concerning whether the defendant had consented to the admission of guilt, and remanded to the trial court for a hearing on the matter.

In Matthews, the trial court conducted a hearing and filed an order ruling that the defendant had consented to a strategy of arguing for a conviction on the lesser included charge of second-degree murder in order to avoid a first-degree murder conviction. The trial court's findings indicated that the defendant had never expressly agreed to the strategy, but he had been present in numerous meetings where this strategy was discussed and never objected or voiced any reservations. In fact, the defendant's counsel “was certain that defendant concurred with [the strategy.]” Id. at 107, 591 S.E.2d at 539. Our Supreme Court disagreed with the ruling of the trial court and remanded for a new trial.

The trial court found that defense counsel's trial strategy was “to convince the jury that defendant was guilty of something other than first degree murder.” The

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