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
STATE V. GIVENS
Opinion of the Court
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;
-2-
STATE V. GIVENS
Opinion of the Court
(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
-3-
STATE V. GIVENS
Opinion of the Court
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-
-4-
STATE V. GIVENS
Opinion of the Court
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)).
-5-
STATE V. GIVENS
Opinion of the Court
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
-6-
STATE V. GIVENS
Opinion of the Court
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
-7-
STATE V. GIVENS
Opinion of the Court
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
-8-
STATE V. GIVENS
Opinion of the Court
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:
-9-
STATE V. GIVENS
Opinion of the Court
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
- 10 -
STATE V. GIVENS
Opinion of the Court
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
- 11 -
STATE V. GIVENS
Opinion of the Court
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.
- 12 -
STATE V. GIVENS
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
- 13 -
STATE V. GIVENS
Opinion of the Court
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).
- 14 -
STATE V. GIVENS
Opinion of the Court
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).
- 15 -
STATE V. GIVENS
Opinion of the Court
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.
- 16 -
STATE V. GIVENS
Opinion of the Court
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.
- 17 -