STATE OF NORTH CAROLINA
v. Union County
No. 01 CRS 03808
MABLE LOUISE KNIGHT
Attorney General Roy Cooper, by Assistant Attorney General
Donald W. Laton, for the State.
Allen W. Boyer for defendant-appellant.
MARTIN, Judge.
Defendant was found guilty of assault with a deadly weapon
inflicting serious injury. He appeals from a judgment entered upon
the verdict, suspending a sentence of twenty-five to thirty-nine
months' imprisonment and placing defendant on supervised probation
for thirty months.
The State's evidence tended to show that defendant shot her
husband, David Knight (Knight), in the left thigh with a twenty-
five caliber handgun during an argument on 24 March 2001. Knight's
“leg gave out,” and he fell to the ground “hollering.” The police
who responded to the scene found Knight “moaning” and in “[a] lot
of pain.” He was taken by ambulance to Union Regional MedicalCenter. An x-ray revealed that the bullet was lodged in his
buttocks, where it remained as of the date of trial. The treating
physician estimated that the bullet had traveled six to eight
inches inside Knight's body. Knight was kept for two nights in the
hospital and had to walk on crutches for several days thereafter
Knight told police that defendant shot him. Defendant gave a
statement to police admitting to the shooting.
Defendant's first assignment of error reads as follows: “The
trial judge erred in not appointing standby counsel to assist the
Defendant in her defense.” In her brief to this Court, however,
defendant faults the trial court for failing to make certain that
her waiver of the right to counsel was knowing and voluntary. The
trial court's failure to appoint standby counsel for a defendant
proceeding in propria persona is an issue distinct and separate
from the validity of that defendant's waiver of her constitutional
right to counsel. See State v. Stanback, 137 N.C. App. 583, 586,
529 S.E.2d 229, 230-31 (2000) (“[N]either the statutory
responsibilities of standby counsel . . . nor the actual
participation of standby counsel . . . is a satisfactory substitute
for the right to counsel in the absence of a knowing and voluntary
waiver."). None of defendant's assignments of error allude to
her waiver of counsel. Absent a corresponding assignment of error,
defendant's argument challenging the waiver is not properly before
this Court for review. See State v. Thomas, 332 N.C. 544, 553-54,
423 S.E.2d 75, 80 (1992) (overruled on other grounds by State v.
Richmond, 347 N.C. 412, 495 S.E.2d 677 (1998)); N.C.R. App. P.10(a), (b)(1), (c)(1).
We note that the record on appeal contains two waiver of
counsel forms executed by defendant in both district and superior
court. "When a defendant executes a written waiver which is in
turn certified by the trial court, the waiver of counsel will be
presumed to have been knowing, intelligent, and voluntary, unless
the rest of the record indicates otherwise." State v. Warren, 82
N.C. App. 84, 89, 345 S.E.2d 437, 441 (1986). Nothing in the
record calls defendant's waiver into question.
We find no grounds to review the trial court's failure to
appoint standby counsel. Defendant did not request standby counsel
at trial and failed to assign plain error in the record on appeal.
Therefore, she has not properly preserved this issue. State v.
Ward, 354 N.C. 231, 555 S.E.2d 251 (2001) (citing N.C.R. App. P.
10(c)(4)). Moreover, under G.S. § 15A-1243 (2001), the appointment
of standby counsel is a matter left entirely to the trial court's
discretion. See State v. Seraphem, 90 N.C. App. 368, 368 S.E.2d
643 (1988). The North Carolina Supreme Court “has not applied the
plain error rule to issues which fall within the realm of the trial
court's discretion, and we decline to do so now.” State v. Steen,
352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000), cert. denied, 531 U.S.
1167, 148 L. Ed. 2d 997 (2001).
Defendant next claims the trial court erred in instructing the
jury that the wound allegedly sustained by Knight was a “serious
injury” as a matter of law. A trial court may give a peremptory
jury instruction on the element of serious injury if "the evidence'is not conflicting and is such that reasonable minds could not
differ as to the serious nature of the injuries inflicted.'" State
v. Hedgepeth, 330 N.C. 38, 54, 409 S.E.2d 309, 318-19 (quoting
State v. Pettiford, 60 N.C. App. 92, 97, 298 S.E.2d 389, 392
(1982)), cert. denied, 529 U.S. 1006, 146 L. Ed. 2d 223 (2000).
In electing to give the peremptory instruction, the trial
court relied upon our holding in State v. Crisp, 126 N.C. App. 30,
37, 483 S.E.2d 462, 466-67, appeal dismissed and disc. review
denied, 346 N.C. 284, 487 S.E.2d 559 (1997). In Crisp, the victim
was shot once in the leg. The bullet went through his calf muscle
before exiting his body. The victim suffered burning and numbness
and required assistance leaving the area. He received treatment at
a hospital. Based on these facts, “we decline[d] to disturb the
trial court's determination that [the] injury was 'serious' within
the meaning of N.C. Gen. Stat. § 14-32(a) and that reasonable minds
could not differ as to the seriousness of his injuries.” Id.
We agree that the Crisp decision controls here. The
uncontested evidence showed Knight was shot in the thigh. The
bullet traveled six to eight inches inside his body. His leg “gave
out” and he remained on the ground until paramedics took him to the
hospital. Knight experienced “a lot of pain[,]” which he described
as “burning like a hot coal.” He was hospitalized overnight and
had to use crutches for several days thereafter. We find Knight's
injury to be at least as serious as that sustained in Crisp.
Defendant expressly abandons her remaining assignment of
error. No error.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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