An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA04-1640


Filed: 4 October 2005


v .                                 Granville County
                                    No. 02 CRS 054672

    Appeal by defendant from judgment entered 10 June 2004 by Judge Howard E. Manning, Jr., in Granville County Superior Court. Heard in the Court of Appeals 24 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Thomas G. Meacham, Jr., for the State.

    Robert C. Trenkle for defendant appellant.

    McCULLOUGH, Judge.

    Defendant (Lindo Nickerson) appeals from conviction and judgment for attempted first-degree murder. We hold that he received a fair trial, free from prejudicial error.

    The State's evidence tended to show that shortly after 3:30 a.m. on 23 December 2002, defendant arrived at the home of the victim, Christine Harris, and shot her. Defendant was in a relationship with Harris, and earlier that evening, defendant and Harris had been playing cards with Harris' daughter and Toby Artis, who was in a relationship with Harris' daughter. Apparently, defendant believed that Harris was having an affair with Toby Artis. When defendant arrived at Harris' house on 23 December2003, Harris was at her kitchen table, and Artis was lying on her couch. Defendant entered the house and said, “I told you next time I catch you with another man I was going to kill both of y'all.” Defendant then produced a gun and fired at Artis, but missed him. Defendant attempted another shot at Artis, but the gun did not fire, and Artis ran out of the house and hid in the woods. As he was running away, Artis saw defendant grab Harris, pull her towards him, and point his gun at her chest. Defendant pulled the trigger, but the gun again failed to discharge. After a few minutes, when Artis saw defendant drive away, he went to a neighbor's house to call for help. According to Artis, the gun that defendant had wielded was one that he had seen defendant carry on prior occasions, a .25 caliber automatic handgun.
    When emergency personnel arrived, Harris was found lying on the floor, unresponsive, with blood around her nose and eyes. A paramedic saw an entrance wound for a bullet between Harris' eyes. Harris was taken to an emergency room and later placed in an intensive care unit. A CAT scan taken at the hospital revealed that a bullet entered Harris' head at the bridge of her nose, passed through her left eye socket, shattered the bone near her left eye, twice traversed brain tissue, came through the skull, and came to rest just beneath the scalp above and behind her left ear. As a result of this injury, Harris suffered the loss of vision in her left eye, weakness on one side of her body, memory loss, and difficulty following commands and carrying on a conversation. Though she experienced difficulty doing so, Harris testified atdefendant's trial and identified defendant as the person who shot her.
    Defendant presented the testimony of his mother, who indicated that defendant lives with her and was at her residence at the time that Harris was shot.
    A jury convicted defendant of attempted first-degree murder, and the trial court imposed a sentence of 280 to 345 months' imprisonment. Defendant now appeals.
    In his first argument on appeal, defendant contends that the short-form indictment charging him with attempted first-degree murder is fatally defective. The attempted murder indictment at issue alleges that defendant “unlawfully, willfully and feloniously did with malice aforethought attempt to kill and murder [the victim].” Our Supreme Court has recently held that the use of practically identical language was sufficient to charge a defendant with attempted murder. State v. Jones, No. 389PA04, slip op. at 9, __ N.C. __, __, __ S.E.2d __, __ (filed 19 August 2005) (“[W]e hold that [N.C. Gen. Stat.] § 15-144 . . . implicitly authorizes the state to utilize a short-form indictment to charge attempted first-degree murder. [W]hen drafting such a[n] indictment, it is sufficient for . . . the state to allege 'that the accused person feloniously, willfully, and of his malice aforethought, did [attempt to] kill and murder' the named victim.”). This assignment of error is overruled.
    Defendant next contends that the trial court erred by denying his motion to dismiss the charge of attempted first-degree murder because there was insufficient evidence of specific intent to kill the victim formed after premeditation and deliberation. This contention lacks merit.
    A trial court should deny a motion to dismiss if, considering the evidence in the light most favorable to the State and giving the State the benefit of every reasonable inference, “there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). “[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both.” State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981).
    “The elements of attempted first-degree murder are: (1) a specific intent to kill another; (2) an overt act calculated to carry out that intent, which goes beyond mere preparation; (3) malice, premeditation, and deliberation accompanying the act; and (4) failure to complete the intended killing.” State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004), cert. denied sub nom Queen v. North Carolina, ___ U.S. __, 161 L. Ed. 2d 285 (2005). “Intent to kill may be inferred from the nature of [an attack], the manner in which it was made, the conduct of the parties, and other relevant circumstances.” State v. James, 321 N.C. 676, 688, 365S.E.2d 579, 586 (1988).
    Premeditation and deliberation may be shown from “want of provocation on the part of the [victim], the conduct of and statements of the defendant before and after the [attack], [and] the brutality of [defendant's conduct] . . . .” State v. Trull, 349 N.C. 428, 448, 509 S.E.2d 178, 191-92 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80 (1999). In addition, “'the condition of the victim's body, the nature of the wounds, and evidence that the murder was [attempted] in a brutal fashion [provide the] circumstances from which premeditation and deliberation can be inferred.'” State v. Hyde, 352 N.C. 37, 54, 530 S.E.2d 281, 293 (2000) (citation omitted), cert. denied, 531 U.S. 1114, 148 L. Ed. 2d 775 (2001).
    In the instant case, there was evidence that defendant entered Harris' home, reminded her that he had previously threatened to kill her, brandished a gun, grabbed Harris, and attempted to shoot her in the chest. Further, there was evidence from which it could be inferred that defendant used his gun to shoot Harris in the head, causing her to suffer debilitating injuries. This evidence was more than sufficient to permit a jury finding that defendant's attempted killing of Harris was intentional, premeditated and deliberate. As such, the trial court properly declined to dismiss the charge of attempted first-degree murder.
    This assignment or error is overruled.
    Defendant next contends that the trial court erred by denying a motion by his trial attorney to withdraw as counsel. We do not agree.
    The record indicates that, just prior to trial, defense counsel filed a motion to withdraw because defendant had a “complete lack of trust and confidence” in him. The motion noted that defendant had told counsel that he was dissatisfied with his representation, had written letters to the presiding judge alleging that trial counsel was not representing him well and that counsel had a conflict of interest because he was friends with people in the District Attorney's office, and had consistently failed to follow counsel's advice. At a hearing on the motion to withdraw, trial counsel conceded that he was defendant's fifth court- appointed lawyer and stated that he had “done [his] dead-level-best for defendant.” When given an opportunity to speak on the matter, defendant said the following:
    Well, the reason [for the problem with trial counsel] . . . is because you know, he come to me and he made statements that I won't_-he don't think that I'd get a fair trial in this county. I probably would in the next county, but not this county. And it's not because of racial, or something like that. But, you know, and then he's saying that, you know, maybe the victim and the witness for the State, that he know they're going to get up here and lie on me because of hatred. And, you know, coming to me and tell me and ask me if there was anything that he knew that I knew that he hadn't done for me that he could do. I mean, he's the lawyer. You know, I mean, do what you got to do, you know.

The trial court indicated that the motions filed by defense counsel had been appropriate and that, in the court's experience, defensecounsel was “an excellent trial lawyer.” The motion to withdraw was denied.
    Generally, “[t]he decision to substitute counsel rests solely in the discretion of the trial court.” State v. Morgan, 359 N.C. 131, 146, 604 S.E.2d 886, 895 (2004). However, “[a] trial court is constitutionally required to appoint substitute counsel whenever representation by counsel originally appointed would amount to denial of defendant's right to effective assistance of counsel.” State v. Thacker, 301 N.C. 348, 352, 271 S.E.2d 252, 255 (1980).
        [W]hen 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 . . . defendant, denial of defendant's request to appoint substitute counsel is entirely proper. [The North Carolina Supreme] Court has held that a disagreement over trial tactics generally does not render the assistance of the original counsel ineffective.

Id. To establish ineffective assistance of counsel, defendant must show that (1) his trial counsel “made errors so serious as to support a finding that he was not functioning as the 'counsel' guaranteed by the Sixth Amendment," and (2) "there is a reasonable probability that, but for counsel's errors, there would have been a different result [at trial].” State v. Fisher, 318 N.C. 512, 533-34, 350 S.E.2d 334, 346-47 (1986).
    The present defendant contends that he received ineffective assistance of counsel because his attorney failed to (1) file more than one motion in the case, (2) cross examine a testifying doctorabout toxicology results for Harris (the victim), (3) ask investigators about the level of intoxication of Artis (the eyewitness), (4) explore the “possibilities of violence connected with this type of residence,” (5) explore Artis' role in the shooting and the nature and extent of a mental disability suffered by Artis, and (6) call more than one witness for the defense. However, our review of the transcript reveals that defense counsel's performance was sufficient. For example, defense counsel filed an extensive discovery request; requested, received, and participated in a voir dire examination of Harris to test her competency to testify; offered an alibi witness during the defense's presentation of evidence; and made motions to dismiss at the close of the State's evidence and at the close of all of the evidence. Moreover, defense counsel's cross-examination of Artis spans approximately fifty-three pages of the transcript and includes questions about drug and alcohol use by Artis on the night of the shooting, the possibility that Artis had participated in illegal drug deliveries that night, and disparities between Artis' trial testimony and a statement made to the police. Defense counsel also questioned Artis concerning a mental disability resulting from a previous mental breakdown.
    On the facts, we are unpersuaded that defendant's trial attorney failed to function as constitutionally guaranteed counsel, and we discern no abuse of discretion in the trial court's denial of counsel's motion to withdraw. This assignment of error is overruled.
    In his final argument on appeal, defendant contends that the trial court erred by permitting Harris (the victim) to testify because she was not a competent witness. We disagree.
    As a general rule, “[e]very person is competent to be a witness.” N.C. Gen. Stat. § 8C-1, Rule 601(a) (2003). However, “[a] person is disqualified to testify as a witness when the court determines that he is (1) incapable of expressing himself concerning the matter as to be understood, either directly or through interpretation by one who can understand him, or (2) incapable of understanding the duty of a witness to tell the truth.”  N.C. Gen. Stat. § 8C-1, Rule 601(b) (2003). “[T]he competency of a witness 'is a matter which rests in the sound discretion of the trial judge in the light of his examination and observation of the particular witness.'” State v. Hicks, 319 N.C. 84, 89, 352 S.E.2d 424, 426 (1987) (citation omitted).
    Our review of the transcript reveals that, due to the injuries she suffered in relation to the instant case, Harris experienced some difficulty communicating. However, she was not totally incapable of expressing herself, and there is no indication in the record that she was incapable of understanding her obligation to be truthful. As such, we discern no abuse of discretion by the trial court in permitting her to testify. This assignment of error is overruled.
    With respect to each of the foregoing arguments, defendant hasalso alleged constitutional error. Our review of the record, transcripts, and briefs in this case reveal that defendant's constitutional arguments are completely without merit.
    No error.
    Judges McGEE and JACKSON concur.
    Report per Rule 30(e).

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