In his first assignment of error, defendant contends that the
trial court erred by denying his
pro se motion for continuance
and/or motion for substitute counsel.
Normally, our review of a denial of a motion for continuance
is restricted to whether the trial court abused its discretion; and
the denial will not be disturbed absent a showing of abuse of that
discretion.
State v. Barnard, 346 N.C. 95, 104, 484 S.E.2d 382,
387 (1997). However, when the motion is based on a constitutional
issue, “the trial court's action involves a question of law which
is fully reviewable on appeal.”
Id. Here, defendant argues that
the trial court violated both his federal and state constitutional
rights by denying his motion for new or substitute counsel and/orallowing defendant additional time to retain other counsel. The
crux of defendant's argument is that the trial court erred by
failing to appoint substitute counsel when his court-appointed
counsel provided ineffective assistance. Defendant contends his
counsel was ineffective because he failed to subpoena an officer as
requested by defendant. We disagree with defendant's contention.
The Sixth Amendment guarantees that an accused shall have the
right to have effective assistance of counsel for his defense.
State v. Hutchins, 303 N.C. 321, 335, 279 S.E.2d 788, 797 (1981),
cert. denied, 464 U.S. 1065, 79 L. Ed. 2d 207 (1984). “The right
of an indigent defendant charged with a criminal offense to have
counsel appointed to represent him at his trial is not 'an empty
formality' but is intended to guarantee effective assistance of
counsel.”
State v. Robinson, 290 N.C. 56, 65, 224 S.E.2d 174, 179
(1976) (quoting
State v. Sneed, 284 N.C. 606, 612, 201 S.E.2d 867,
871 (1974)). This constitutional right, however, does not include
the right to “insist that competent counsel . . . be removed and
replaced with [substitute counsel] just because the defendant has
become dissatisfied with his services.”
Id. at 66, 224 S.E.2d at
179. “In order to be granted substitute counsel, defendant must
show “'good cause, such as a conflict of interest, a complete
breakdown in communication, or an irreconcilable conflict which
leads to an apparently unjust verdict.'”
State v. Gary, 348 N.C.
510, 516, 501 S.E.2d 57, 62 (1998) (quoting
State v. Sweezy, 291
N.C. 366, 372, 230 S.E.2d 524, 528-29 (1976)). Our Supreme Court
has stated that, a disagreement between the defendant and hiscourt-appointed counsel over trial tactics is not sufficient to
require the trial court to replace court-appointed counsel with
another attorney.
Robinson, 290 N.C. at 66, 224 S.E.2d at 179.
“[T]he type of defense to present and the number of witnesses to
call is a matter of trial tactics, and the responsibility for these
decisions rests ultimately with defense counsel.”
State v.
McDowell, 329 N.C. 363, 384, 407 S.E.2d 200, 211 (1991).
In the instant case, the decision to subpoena the arresting
officer rather than the officer who impounded defendant's vehicle
upon arrest was a trial tactic properly decided by defendant's
counsel. The fact that defendant did not agree with his counsel's
decision does not provide a basis for replacement of counsel.
Defendant further argues that because a disagreement over his
counsel's trial tactics existed, a detailed inquiry was necessary
to determine whether counsel could effectively represent defendant
at trial. This argument is without merit.
It has been well established that when faced with claims of
conflicts or requests for dismissal of counsel, the trial court
“must satisfy itself
only that present counsel is able to render
competent assistance and that the nature or degree of conflict is
not such as to render that assistance ineffective.”
State v.
Thacker, 301 N.C. 348, 353, 271 S.E.2d 252, 256 (1980) (emphasis
added). The trial court is only obligated to inquire into
defendant's reasons “to the extent necessary to determine whether
defendant will receive effective assistance of counsel.”
State v.
Poole, 305 N.C. 308, 312, 289 S.E.2d 335, 338 (1982). “Once itbecomes apparent that the assistance of counsel has not been
rendered ineffective, the trial judge is not required to delve any
further into the alleged conflict.”
Id. at 311-12, 289 S.E.2d at
338. When it “appears to the trial court that the original counsel
is reasonably competent to present defendant's case and the nature
of the conflict between defendant and counsel is not such as would
render counsel incompetent or ineffective to represent that
defendant, denial of defendant's request to appoint substitute
counsel is entirely proper.
Thacker, 301 N.C. at 352, 271 S.E.2d
at 255.
In the instant case, the record reveals that the trial judge
adequately inquired into defendant's reasons for wanting substitute
counsel. Defendant expressed dissatisfaction with his attorney
because he felt that his attorney “[did not] seem to have [his]
best interest at heart” and . . . “[did not] seem to want to do the
things that [he] asked him.” Although defendant contends that
distrust and hostility existed between he and his attorney which
ultimately led to a breakdown of communications, he expressed to
the trial court that his counsel “did fine” up until his decision
to not subpoena the impounding officer. Clearly, the inquiry into
defendant's reasons for wanting substitute counsel was based merely
upon a trial tactic and nothing more.
Further, the trial court was provided with detailed
information regarding the defense counsel's decision not to
subpoena the impounding officer. The prosecution noted that the
decision not to subpoena the impounding officer was based on thefact that the officer had no knowledge nor jurisdiction over the
incident in question. With this information, the trial court
determined that defendant's assertion for wanting substitute
counsel was nothing more than an attempt to have his case
continued. While some situations may require an in-depth inquiry
and detailed findings of fact, the conflict in the present case
is
clearly not one of them. The trial court made sufficient inquiry
to learn that the conflict in the present case was not such as to
render defense counsel's assistance ineffective. This assignment
of error is therefore overruled.
In his second assignment of error, defendant contends the
trial court committed plain error by allowing the State to
repeatedly ask leading questions during the direct examination of
Smith. Defendant concedes that he objected only once to the
questions posed by the prosecutor; however, he argues that this
Court should review the entire direct examination of the victim
under plain error.
Plain error is “fundamental error, something so basic so
prejudicial, so lacking in its elements that justice cannot have
been done, or . . . grave error which amounts to a denial of a
fundamental right of the accused[.]”
State v. Odom, 307 N.C. 655,
660, 300 S.E.2d 375, 378 (1983) (quoting
U.S. v. McCaskill, 676
F.2d 995, 1002 (4th Cir.),
cert. denied, 459 U.S. 1018, 74 L. Ed.
2d 513 (1982)). For an error at trial to amount to plain error,
the “appellate court must be convinced that absent the error the
jury would have reached a different verdict.”
State v. Reid, 322N.C. 309, 313, 367 S.E.2d 672, 674 (1988). Therefore, in order to
prevail under a plain error analysis, defendant must show that “(1)
there was error and (2) without this error, the jury would probably
have reached a different verdict.”
State v. Najewicz, 112 N.C.
App. 280, 294, 436 S.E.2d 132, 141 (1993),
disc. review denied, 335
N.C. 563, 441 S.E.2d 130 (1994).
A leading question is defined as one “which suggests the
desired response and one which may frequently be answered 'yes' or
'no.'”
State v. Mitchell, 342 N.C. 797, 805, 467 S.E.2d 416, 421
(1996) (citation omitted). “However, a question is not necessarily
leading simply because it may be answered yes or no.”
Id.
Further, a ruling on the admissibility of a leading question is
left to the sound discretion of the trial court and will not be
reversed in the absence of an abuse of discretion.
Id. at 806, 467
S.E.2d at 421.
Having carefully reviewed the entire direct examination of
Smith, we conclude that the trial court did not abuse its
discretion in the manner in which it permitted the State to
proceed. The questions posed merely directed Smith toward the
specific matter being addressed without suggesting the desired
answer.
Assuming arguendo that the questions were leading,
defendant has failed to demonstrate how the admissibility of these
questions resulted in prejudicial error. This assignment of error
is overruled.
By his next assignment of error, defendant contends that the
trial court committed plain error by allowing the State tointroduce inadmissible hearsay. Defendant challenges Smith's
testimony that “[t]he doctors told me I'm going to have arthritis
and arthritis pain for the rest of my life[.]” Defendant argues
that the admission of this hearsay testimony was error in that it
was offered to prove the truth of the matter asserted, that the
victim had been seriously injured. We disagree.
Hearsay is defined as “a statement, other than one made by the
declarant while testifying at trial or hearing, offered in evidence
to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-
1, Rule 801(c)(1999). Assuming for the purpose of this argument
that the statement was hearsay, we find no prejudicial error in its
admission because the statement adds little to the State's
evidence. The fact that Smith suffered from arthritis pain after
the incident did not go to the severity of the injury. We do not
believe that there is a reasonable probability the trial court
would have reached a different outcome had the statement been
excluded. At trial, Smith testified that defendant fired a shot
wounding him in his right and left ankles. Smith further testified
to the loss of blood he sustained, the weakness he suffered and to
the surgery required. This was sufficient evidence for a jury to
determine that Smith sustained a serious injury, therefore, the
admission of Smith's statement regarding arthritis was harmless.
This assignment of error is overruled.
In his next assignment of error, defendant contends that the
trial court committed plain error by allowing irrelevant testimony
regarding a subsequent event between defendant and Smith. At trialSmith testified that after the 5 July 1999 incident, he and
defendant got into an altercation at Belhaven City Hall. Defendant
did not object to this testimony at trial, but argues that this
evidence was irrelevant and inadmissible under N.C. Gen. Stat. §
8C-1, Rule 401 as it demonstrates the defendant's propensity to
harm. We disagree.
The admission of “irrelevant evidence is harmless unless
defendant shows that he was so prejudiced by the erroneous
admission that a different result would have ensued if the evidence
had been excluded.”
State v. Moctezuma, 141 N.C. App. 90, 93-94,
539 S.E.2d 52, 55 (2000). Defendant has the burden of
demonstrating that he was prejudiced by the admission of the
evidence.
Id. In light of the other evidence of the seriousness
of the injury against him, defendant has failed to show that there
was a reasonable probability that the outcome of the trial would
have been different without the error. We therefore conclude that
the admission of the altercation testimony does not rise to the
level of plain error and this assignment of error is overruled.
In his fifth assignment of error, defendant contends that the
trial court erred by denying his motion to dismiss at the close of
all the evidence. We disagree.
“In ruling on a motion to dismiss, the issue before the trial
court is whether substantial evidence of each element of the
offense charged has been presented, and that defendant was the
perpetrator of the offense.”
State v. Carr, 122 N.C. App. 369,
371-372, 470 S.E.2d 70, 72 (1996). “Substantial evidence is 'suchrelevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'”
State v. Rogers, 109 N.C. App. 491, 504,
428 S.E.2d 220, 228 (1993)(quoting
State v. Smith, 300 N.C. 71, 78-
79, 265 S.E.2d 164, 169 (1980)),
disc. review denied, 334 N.C. 625,
435 S.E.2d 348 (1993),
cert denied, 511 U.S. 1008, 128 L. Ed. 2d 54
(1994). “If the trial court determines that a reasonable inference
of the defendant's guilt
may be drawn from the evidence, it must
deny the defendant's motion and send the case to the jury even
though the evidence may also support reasonable inferences of the
defendant's innocence.”
State v. Smith, 40 N.C. App. 72, 79, 252
S.E.2d 535, 540 (1979). All the evidence, whether direct or
circumstantial, is to be considered in the light most favorable to
the State, with the State being entitled to every reasonable
inference to be drawn from the evidence.
Carr, 122 N.C. App. at
372, 470 S.E.2d at 72.
Defendant contends that there was insufficient evidence to
support a finding that the victim was seriously injured. We
disagree.
The elements of the charge of assault with a deadly weapon
with intent to kill inflicting serious injury under N.C. Gen. Stat.
§ 14-32(a)(1999)are: (1) an assault (2) with a deadly weapon (3)
with intent to kill (4) inflicting serious injury (5) not resulting
in death.
See State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d
43, 47 (1990). “Serious injury is a 'physical or bodily injury'
that is 'serious,'” but falls short of causing death.
State v.
Streeter, ___ N.C. App. ____, 553 S.E.2d 240, 242 (2001)(quoting
State v. Williams, 29 N.C. App. 24, 26, 222 S.E.2d 720, 721,
cert.
denied, 289 N.C. 728, 224 S.E.2d 676 (1976)). Whether such serious
injury has been inflicted must be determined according to the
particular facts of each case.
State v. Hedgepeth, 330 N.C. 38,
53, 409 S.E.2d 309, 318 (1991),
cert. denied, 529 U.S. 1006, 146 L.
Ed. 2d 223 (2000). “A jury may consider such pertinent factors
such as hospitalization, pain, loss of blood, and time lost at work
in determining whether an injury is serious.”
Id.
In the instant case, the evidence revealed Smith suffered a
wound resulting when a bullet entered his right and passed through
his left ankle requiring hospital treatment. At trial, Smith
testified as to the pain he sustained at the time of injury, the
blood loss, the weakness, his inability to walk, his surgery and
the use of pain medication for a period of one month after surgery.
We hold that this evidence was sufficient for a jury to determine
that Smith suffered a serious injury. This assignment of error is
overruled.
In his final assignment of error, defendant contends that the
trial court erred by ordering him to pay restitution. This
argument is without merit.
At the sentencing hearing the prosecutor recommended the entry
of an order for restitution in the amount of $8,172.29 to cover
Smith's medical expenses and lost wages. The court then
specifically asked defendant if he had “anything to say” about the
recommendation and defendant replied “no sir.”
The court proceeded to recite the basis for the restitutionrecommendation in open court. The recommended restitution sum was
then entered on defendant's judgment and commitment and at no time
prior to the entry did defendant object to the recommendation.
To preserve a question for appellate review, a party must
present the trial court with a timely objection or motion stating
the specific grounds for the ruling the party desired the court to
make.
See N.C.R. App. P. 10(b)(1) (2002). Defendant has failed to
preserve the restitution issue for appeal and therefore this
assignment of error is dismissed.
Based upon the foregoing analysis, we hold that defendant
received a fair trial, free from prejudicial error.
No error.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
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