In State v. Wishart, an unpublished opinion of the North Carolina Court of Appeals filed in August of 2026, the Court found that the defendant’s jury trial and conviction for first degree murder were free of errors. Although the Court analyzed several issues on appeal, here we will focus on the defendant’s ineffective assistance of counsel claim that the court analyzed under State v. Harbison.
In May of 2021, Ms. Wishart invited her ex-husband to her house so that he could pick up a computer server. According to the trial testimony of one of the couple’s children, once the ex-husband was inside the house, Ms. Wishart retrieved a firearm from a kitchen cabinet. The child then heard the ex-husband say Ms. Wishart’s name, there was a loud noise, and then the ex-husband fell to the floor. Ms. Wishart called 911 after the shooting and followed the instructions of the dispatcher. Two officers arrived at the scene later and they did not notice any signs of forced entry or of a struggle. They discovered Ms. Wishart’s firearm with one used casing. Later, Ms. Wishart’s right thumbprint was discovered on the firearm. The responding officers both testified at trial that Ms. Wishart communicated with them, followed their instructions, and did not appear to be suffering any kind of mental health episode.
During the trial, Ms. Wishart’s counsel made some key statements that were later raised in her appeal. During argument, defense counsel stated: “If the State can’t rule out premeditation and deliberation did not exist, then where you would be is second-degree murder…..Under the law, second-degree murder is sort of the default. You can only get to first-degree murder if you can provide the planning and deliberation necessary under the elements that are going to be set out in the law. “ Counsel went on to say: “Obviously, (Ms. Wishart) shot her ex-husband. Something happened. But it wasn’t a plan, which is the only question.” Also, during closing argument, Ms. Wishart’s attorney asserted that she was mentally ill, that she acted in self-defense, that her ex-husband had threatened her, and that she did not plan to kill her ex-husband.
As a part of her claim of ineffective assistance of counsel, Ms. Wishart argued to the Court of Appeals that her counsel’s arguments “implicitly conceded she had committed second-degree murder.” In order to evaluate the strength of this argument, the Court applies the holding in State v. Harbison to the facts of this case. In Harbison, the North Carolina Supreme Court held that ineffective assistance of counsel occurs where defense counsel admits a defendant’s guilt to the jury without consent, because such an admission hampers a jury from making the decision of guilt or innocence. An error under Harbison materializes whenever a defense counsel’s statements to the jury cannot be logically interpreted as anything but an admission of guilty to the criminal offense that has been charged.
The court found no Harbison error here because it deemed the statements made by counsel were consistent with the evidence that was presented at trial and that the statements were neither express nor implied admissions of Ms. Wishart’s guilt. The Court looked at the statements in their entirety and within the context of defense counsel’s full and complete closing argument. In the Court’s view, the statements were merely made to emphasize that the State had a high burden of proof to meet in order to convict on firs-degree murder and that defense counsel believed that burden had not been met.
In many instances where a Harbison issue may arise during trial, the trial court may recess the proceedings and out of the presence of the jury inquire of the defendant if they understand the argument that their counsel is making and if they consent to such an argument. It is unclear whether or not the trial court made such an inquiry in this case. However, when such an inquiry is made, a defendant generally has an even more difficult task of succeeding on an ineffective assistance of counsel claim under Harbison.
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