The State presented evidence at trial tending to show the
following: shortly after noon on 7 March 2001, defendant approached
the apartment door of Danielle and Maneke Purchase. Defendant did
not live in the same apartment complex as the Purchases, but
frequently visited his fiancée who lived there. Mrs. Purchase
answered the door and noticed that defendant was very angry and was
pacing back and forth. She also noticed that defendant had a gun
under his coat. Defendant told Mrs. Purchase that he was an SBI
agent and that he needed to speak to her husband about scratches on
his car. Mrs. Purchase described defendant's behavior as “bizarre”
and “frightening” and was not making much sense. After a ten or
fifteen minute conversation, defendant calmed down and left.
Later that night, Mrs. Purchase picked her husband up from
work, and on the way home told him about the conversation she had
with defendant. She asked her husband to speak to defendant about
the situation. When they arrived home, Mr. Purchase went to
defendant's fiancée's apartment, but defendant was not there.
Mr. Purchase then began to clean out his car in the parking
lot of the apartment complex. As part of that process, he removed
a .22 caliber pistol from the glove box of his car. Mr. Purchase
bought the gun for his wife's protection, but she did not like
having it in the house so she kept it in the glove box in the car.
Mr. Purchase put the gun in his coat pocket intending to put it
back in the house.
Just as Mr. Purchase finished cleaning his car, defendantdrove into the parking lot. Mr. Purchase called to defendant and
started walking toward defendant. Mr. Purchase testified that
defendant spoke to him in an angry tone, called him a M----- F-----
and said, “Let me tell you how it's going to be.” Defendant had
his hand inside of his coat and Mr. Purchase thought defendant was
going to pull out a badge. Mr. Purchase also became angry and the
two exchanged heated words. When the two were approximately five
feet apart, defendant withdrew a gun from his coat and shot Mr.
Purchase in the hand. Defendant continued firing as Mr. Purchase
retreated behind his car.
Mr. Purchase then began to run toward his apartment. As he
neared his apartment door, he pulled his gun from his pocket and
turned to fire. At that time, defendant shot Mr. Purchase in the
stomach. Mr. Purchase fired three rounds from his gun, attempting
to scare off defendant, but defendant continued walking toward Mr.
Purchase, repeating over and over, “Why don't you just die” and
continued firing until he was out of bullets.
Mr. Purchase was able to make it into his apartment. The
Purchases decided to drive to the hospital rather than await an
ambulance because Mr. Purchase had already lost a lot of blood.
Mr. Purchase had gunshot wounds to the wrist and stomach, as a
result of which he remained hospitalized for approximately ten days
and was out of work for approximately three months.
The defendant testified on his own behalf at trial. His
testimony tended to show that someone at the apartment complex was
vandalizing his car, and he thought that it was someone who livedtwo or three doors down from him, but not Mr. Purchase. Defendant
decided to talk to Mrs. Purchase about the problem and asked her to
tell the people he suspected of causing the damage to stay away
from his car. Defendant denied ever telling Mrs. Purchase that he
was with the SBI.
On the evening of the shootings, defendant received a phone
call from his fiancée and decided to go there to see what was
happening. Prior to going to his fiancée's home, defendant drove
to his residence where he called the police because he was
concerned that there was going to be some type of altercation.
When he arrived at the apartment complex, he noticed Mr. Purchase
standing in the doorway of his apartment. Defendant testified that
he saw Mr. Purchase go to his bedroom and defendant assumed that
Mr. Purchase was going to get a gun.
As defendant got out of his car, he noticed Mr. Purchase
coming toward him. According to defendant, Mr. Purchase was
cursing and was not making any sense. Defendant tried to calm him
down, to no avail. Mr. Purchase then reached into his pocket and
started to pull out a gun, but the gun got hung up on his coat.
Defendant said he then took the safety off his gun and fired one
shot, intending to wound, not kill, Mr. Purchase.
Mr. Purchase fell backwards as a result of the shot, fired two
shots from his gun, and then got up and staggered toward his
apartment, firing four more shots as he went. Defendant did not
fire any more shots because he was concerned that he might hit Mrs.
Purchase and the Purchases' daughter who were standing in thedoorway of their apartment.
Defendant obtained the gun used in the shooting from a friend
specifically for use that night. Afterwards, he destroyed the gun.
The police recovered bullets and a magazine but never recovered the
gun.
Defendant first argues that the trial court erred by failing
to record the jury charge conference. We disagree.
G.S. . 15A-1231(b) provides that “[b]efore the arguments to
the jury, the judge must hold a recorded conference on instructions
out of the presence of the jury.” The statute further provides
that the “failure of the judge to comply fully with the provisions
of this subsection does not constitute grounds for appeal unless
his failure . . . materially prejudiced the case of the defendant.”
Here, the trial court failed to hold a recorded conference as
required by G.S. . 15A-1231(b). However, in an affidavit submitted
as part of the record on appeal, defendant's trial counsel Charles
R. Gurley acknowledged: that at the conclusion of the evidence and
before arguments to the jury, a charge conference was held outside
the presence of the jury; that the trial judge advised defense
counsel and the district attorney of the instructions he intended
to include in the charge to the jury and inquired of defense
counsel whether any additional instructions were requested; that
the only modification requested by defense counsel was to include
in the jury charge an instruction on the “Highest Aim of Every
Legal Contest,” which was allowed; and that the instructions givento the jury were the instructions requested by and agreed to by
defense counsel at the charge conference. This, together with our
holding above, leads us to believe that defendant cannot show
material prejudice as required by the statute. Thus, this
assignment of error is overruled.
Defendant next argues as error the trial court's failure to
instruct the jury on the lesser included offense of assault with a
deadly weapon inflicting serious injury. We disagree.
We initially note that
A party may not assign as error any portion of
the jury charge or omission therefrom unless
he objects thereto before the jury retires to
consider its verdict, stating distinctly that
to which he objects and the grounds of his
objection; provided, that opportunity was
given to the party to make the objection out
of the hearing of the jury, and, on request of
any party, out of the presence of the jury.
N.C. R. App. P. 10(b)(2). Here, defense counsel at trial did not
request an instruction on the lesser included offense and did not
object to the trial court's failure to give such an instruction.
Thus, we must review this assignment of error for “plain error.”
Our courts have consistently held that
the plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done, or where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,
or the error has resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings orwhere it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(internal citations and quotation marks omitted).
However, as this Court has previously noted
The plain error rule does not negate Rule
10(b)(2) and as is explained in
Odom, rarely
will an improper instruction which not
objected to (or in this case not requested)
justify reversal. Instead of the prejudicial
error contained in N.C.G.S. § 15A-1443, we
must determine whether the jury instruction
was erroneous, and if so, whether it had a
probable impact on the jury's verdict.
State v. Washington, 142 N.C. App. 657, 662, 544 S.E.2d 249, 252
(2001),
disc. review denied, 353 N.C. 532, 550 S.E.2d 165 (2001).
G.S. § 14-32(a) lists the elements of assault with a deadly
weapon with intent to kill inflicting serious injury as: (1) an
assault; (2) with a deadly weapon; (3) with intent to kill; and (4)
inflicting serious injury not resulting in death. Here, defendant
pointed a .40 caliber handgun at Mr. Purchase and shot him in the
wrist and the stomach. A handgun is a deadly weapon per se.
State
v. Powell, 238 N.C. 527, 78 S.E.2d 248 (1953). Thus, there was an
assault with a deadly weapon. Additionally, there is undisputed
testimony that as a result of the injuries, Mr. Purchase was
hospitalized for approximately ten days and was required to miss
work for approximately three months. Mr. Purchase clearly suffered
serious injury.
Defendant contends, however, that there was conflicting
evidence as to the intent to kill element, and that the trial courterred by not instructing the jury on the lesser included offense of
assault with a deadly weapon inflicting serious injury.
Defendant's intent to kill may be inferred from the nature of
the assault, the manner in which it was made, the conduct of the
parties and other relevant circumstances.
State v. James, 321 N.C.
676, 688, 365 S.E.2d 579, 586 (1988)(
citing State v. Thacker, 281
N.C. 447, 189 S.E.2d 145 (1972)). Here, the following evidence
supports an inference of intent to kill: (1) defendant obtained the
handgun used in the shooting specifically for use that night; (2)
defendant shot Mr. Purchase twice at close range with a large
caliber handgun with the specific intent of wounding him; and (3)
defendant continued firing at Mr. Purchase until he ran out of
ammunition while repeatedly saying “Why don't you just die.” This
evidence shows without equivocation that defendant intended to use
lethal force. There was sufficient evidence introduced at trial to
support every element of the offense of assault with a deadly
weapon with intent to kill inflicting serious injury. This
assignment of error is overruled.
Defendant finally argues that he was denied effective
assistance of counsel in that his trial counsel failed to request
an instruction on a lesser included offense and failed to offer any
mitigating factors for defendant's sentencing.
This Court has continually held that
claims of ineffective assistance of counsel
should be considered through motions for
appropriate relief and not on direct appeal.
A motion for appropriate relief is preferable
to direct appeal because in order to defend
against ineffective assistance of counselallegations, the State must rely on
information provided by defendant to trial
counsel, as well as defendant's thoughts,
concerns, and demeanor. [O]nly when all
aspects of the relationship are explored can
it be determined whether counsel was
reasonably likely to render effective
assistance. Thus, superior courts should
assess the allegations in light of all the
circumstances known to counsel at the time of
representation.
State v. Stroud, 147 N.C. App. 549, 553-54, 557 S.E.2d 544, 547
(2001) (internal citations and quotation marks omitted),
cert.
denied, 356 N.C. 623, 575 S.E.2d 758 (2002).
Because we are unable to resolve upon the record before us
whether defendant was denied effective assistance of counsel due to
either of these alleged omissions, we overrule this assignment of
error without prejudice to defendant's right to file a motion for
appropriate relief in the superior court.
No error.
Judges MCGEE and STEELMAN concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***