Appeal by defendant from judgment entered 24 August 2005 by
Judge W. Allen Cobb, Jr. in Lenoir County Superior Court. Heard in
the Court of Appeals 18 October 2006.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Angel E. Gray, for the State.
Paul F. Herzog for defendant-appellant.
HUNTER, Judge.
Cedric Gene Brunton (“defendant”) appeals from judgment of the
trial court entered consistent with jury verdicts finding him
guilty of assault with a deadly weapon inflicting serious injury,
discharging a weapon into occupied property, and two counts of
injury to personal property. The jury also found defendant guilty
of habitual felon status. Defendant argues the trial court erred
in (1) failing to hold a second competency hearing at the close of
the State's evidence; (2) denying defendant's motion to dismiss the
charge of discharging a weapon into occupied property based on
sufficiency of the evidence; (3) failing to instruct the jury on
the lesser-included offense of assault with a deadly weapon; and(4) allowing defendant to proceed with ineffective assistance of
counsel. For the reasons stated herein, we find no error.
On 23 August 2005, the trial court held a competency hearing
pursuant to the State's request to declare defendant competent to
stand trial. The trial court heard testimony from defendant and
his probation officer, Shane Foxworth (“Foxworth”). The trial
court also considered evidence of a forensic psychiatric competency
evaluation performed in July of 2005. The evaluation found
defendant competent to proceed to trial.
At the competency hearing, defendant testified that he
understood he was being charged with a felony, but “want[ed] to
know where all that c[a]me from.” Defendant also testified that he
did not find the State's current offer of a plea bargain
acceptable, and that he preferred to proceed to trial. Foxworth
testified that defendant was difficult to deal with but understood
and complied with directions. Foxworth denied that defendant was
irrational; rather, defendant “just didn't want to or feel that he
needed to be on probation.” According to Foxworth, defendant
believed “[h]e was unfairly prosecuted, perhaps in that the
conditions of probation didn't necessarily apply to him, maybe in
respect to those.” However, defendant “seem[ed] to understand what
[Foxworth was] telling him and the consequences of what [Foxworth
was] instructing him to do[.]”
Following presentation of the evidence at the competency
hearing, the trial court found that defendant failed to establish that his reluctance to
take the plea offered, because of the possible
maximum punishment, is the product of a
mentally ill mind, but rather, the mind of a
street-wise convict brought once more into
contact with the criminal justice system. The
defendant is able to appear in court in a
presentable fashion with no inappropriate
[a]ffect or behavior. The defendant seemed to
be able to answer questions on a timely basis
and in a basic understandable fashion. He is
able to communicate coherently although
sometimes inaudibl[y]. The defendant can
therefore assist in his defense in a rational
or reasonable manner.
The trial court therefore granted the State's motion to declare
defendant competent to stand trial, and the case proceeded to trial
that same day.
During defendant's trial, the State presented evidence tending
to show the following: On the afternoon of 17 January 2005,
Alexander Sutton (“Sutton”), a student at Lenoir Community College
in Kinston, North Carolina, was driving his vehicle when he saw a
young woman he recognized walking beside the street. Sutton did
not know the woman by name, but he stopped his vehicle and asked
her if she needed a ride. The woman accepted his offer and
instructed him to drive to defendant's home, where she said she
needed to retrieve some clothing. Sutton was acquainted with
defendant, who was his second cousin, but he did not realize the
house belonged to defendant. Sutton parked his car in defendant's
driveway and waited for the woman to return. After a few minutes,
Sutton got out of the car to wait. Sutton testified that:
I was standing out there on the edge of the
street, and I just, I heard the screen door on
the house slam. I heard the door slam and Iturn[ed] around and I [saw] the defendant
fumbling in his coat[,] and when he c[a]me out
of his coat he had a big black handgun. The
only instinct I knew at that time was to go to
my vehicle and get out of there, [but] before
I [could] get to my car I just started
hearing, bangs, and I remember my car getting
hit [and] right before I stepped to my car, I
got hit.
Sutton described defendant as “mumbling, cussing, talking real loud
and crazy, and pointing a gun.” Sutton stated that “[b]efore [he]
kn[e]w it . . . [defendant] was shooting it.” Sutton heard four
gunshots altogether. The first two bullets struck the trunk of his
car and his upper arm. He did not know where the next two bullets
went. Four bullet shell casings were later found in front of
defendant's home. After he was shot, Sutton fled the scene on
foot. He ran a few blocks until he found a woman who summoned
emergency assistance on his behalf. He was taken to the hospital,
where he was treated for the gunshot wound to his arm.
Later that afternoon, officers from the Kinston Department of
Public Safety investigating the shooting interviewed defendant's
next-door neighbor, Glyceria Brown (“Brown”). Brown stated that
she knew defendant, and that he “did things around the house for
me.” Brown informed the officers that she had worked the overnight
shift at her employment, that she had fallen asleep around 10:30
that morning with the television on, that she was a sound sleeper,
and that she did not hear the shooting. Both of Brown's
automobiles were parked in her driveway at the time of the
shooting. The next day, Brown discovered a “bullet casing thing” between
some towels she kept in an armoire in her bedroom. Brown then
noticed there was a hole in her armoire and in her bedroom wall.
She called the police, who discovered a bullet lying on the floor
of her bedroom. The hole in Brown's bedroom wall extended through
the exterior wall of her home. The path of the bullet found in
Brown's armoire was from the exterior of her home, through her
bedroom wall, over her bed, and into her armoire on the opposite
side of the room.
At the close of the State's evidence, the trial court inquired
whether defendant intended to present evidence. Counsel for
defendant replied as follows:
The answer is yes, I think we are going to put
on some evidence, but the issue that is
confronting me is Mr. Cedric Brunton as to
whether he's going to testify, and I have
talked to Mr. Brunton about it at 8 o'clock
this morning. His mother has spoken with him
as well, and the biggest problem that we have
in this case is that Mr. Brunton may be
mentally competent to stand trial, but he is
not emotionally competent to stand trial, and
consequently he is, he is virtually no help
whatsoever in, in the case; and in fact I
cannot get a straight answer from him as to
whether he wants to take the stand, or
understands the risks if he does, versus what
benefits might be if he didn't; and therefore,
I'm asking the Court to instruct Mr. Brunton,
in those matters, hoping to gain some
understanding as far as what he would like to
do in this matter.
The trial court responded that it could not “delve into the sphere
of trial tactics” but that it would instruct defendant as to his
right under North Carolina law to testify, as well as his privilegenot to testify. The trial court then instructed defendant
accordingly, and asked him whether or not he understood. Defendant
replied, “I reckon I do. I don't know. I don't know.” The trial
court asked defendant if it should repeat any part of the
instructions. Defendant responded, “I don't understand, understand
it.” Counsel for defendant stated:
It has been documented by Dorothea Dix
that, that the defendant has an IQ that is
minimum as far as that goes, and so in some
respect wording may, may create a barrier as
much as anything. But as they've also
indicated in the report that Mr. Brunton's
history of addictions and so on, coupled with
his limited IQ, coupled with what appears to
be some significant emotional problems
create[] a true barrier for him understanding
certain significant matters.
The trial court stated that it had “already visited this issue.”
Counsel for defendant advised the trial court that he was “just
. . . unable to determine what Mr. Brunton's wishes are about
testifying or not testifying. I don't know what he wants to do.”
The trial court informed counsel for defendant that it could not
“take on another role.” Counsel stated that he didn't “know what
more to do” but that he was “prepared to go forward.”
Counsel for defendant then called Sutton to testify. Sutton
denied going to defendant's house to purchase drugs, but admitted
he was a convicted felon, and that he had a shotgun in the trunk of
his car when he went to defendant's house. Sutton stated that he
could not remember the name of the young woman whom he drove to
defendant's home, and that he never saw her again. Sutton deniedthat he had threatened to kill defendant with a gun when defendant
would not allow Sutton to enter his home.
Officer Lolita Brown-Chapman of the Kinston Department of
Public Safety gave further testimony on behalf of defendant. She
agreed that, as a convicted felon, Sutton was not allowed to
possess a firearm, and that had he been discovered with such, he
would have been charged. Defendant did not testify.
Upon reviewing the evidence, the jury found defendant guilty
of assault with a deadly weapon inflicting serious injury,
discharging a weapon into occupied property, and two counts of
injury to personal property. The jury also found defendant guilty
of habitual felon status. The trial court consolidated the charges
and sentenced defendant to a presumptive term of imprisonment of
90-117 months. Defendant appeals.
I. Competency Hearing
Defendant argues the trial court erred in failing to conduct
a second competency hearing at the close of the State's case.
Defendant contends that, although he was initially found competent
by the trial court, there was “substantial evidence” to show that
he “was likely becoming incompetent” by the close of the State's
case. Although defendant concedes that defense counsel never
actually requested a second competency hearing, counsel's “remarks
about the intellectual and emotional functioning of the defendant
at the close of the [S]tate's case, [were] the functional
equivalent of a motion to have his client re-examined with respect
to capacity to proceed.” Alternatively, defendant argues the trialcourt should have ordered a second competency hearing
sua sponte.
Defendant contends he should be granted a new trial. We find no
merit in this argument.
First, contrary to defendant's argument, the statements by
defense counsel do not support the inference that counsel requested
a second competency hearing. To the contrary, defense counsel
admitted to the trial court that his client remained “mentally
competent to stand trial.” Rather, it is apparent that defense
counsel was having difficulties ascertaining his client's wishes on
whether or not defendant intended to testify, and he sought the
trial court's assistance in instructing defendant. Defense
counsel's frustration with defendant was perhaps not unexpected,
given the evidence submitted at defendant's competency hearing, all
of which tended to show that defendant was a difficult person to
deal with. The psychiatrist who administered defendant's
competency evaluation explicitly warned that, “[b]ased on his
episodes of past poor cooperation, [defendant] may not cooperate
with an attorney, but . . . he is capable of cooperating with an
attorney if he chooses to do so.”
Second, while it is true that the “'trial court has a
constitutional duty to institute,
sua sponte, a competency hearing
if there is substantial evidence before the court indicating that
the accused may be mentally incompetent[,]'”
State v. Young, 291
N.C. 562, 568, 231 S.E.2d 577, 581 (1977) (quoting
Crenshaw v.
Wolff, 504 F.2d 377, 378 (8th Cir. 1974)), there was no such
substantial evidence before the court in the instant case tosuggest that defendant lacked the capacity to proceed. The trial
court had conducted a competency hearing for defendant only the
previous day. At the competency hearing, the State presented
substantial evidence of defendant's competency, as well as his
tendency to be difficult and uncooperative. There was no evidence
before the trial court that defendant's mental state had
significantly deteriorated in the previous twenty-four hours, only
renewed evidence that defendant was a difficult client. The trial
court therefore did not err in failing to hold a second competency
hearing.
See State v. Heptinstall, 309 N.C. 231, 237, 306 S.E.2d
109, 112 (1983) (holding that, in reviewing the defendant's
testimony as a whole, and “taking into account [the] defendant's
tendency to be manipulative” there was little evidence to suggest
that the defendant lacked capacity to proceed and therefore no duty
of the trial court on its own motion to reopen the question of the
defendant's competency). We overrule this assignment of error.
II. Motion to Dismiss
By further assignment of error, defendant contends the trial
court erred in denying his motion to dismiss the charge of
discharging a firearm into occupied property, in that the State
failed to present sufficient evidence that defendant knew or had
reasonable grounds to know that Brown was home at the time he fired
his weapon at Sutton.
“When considering a motion to dismiss on the grounds of
insufficiency of the State's evidence, the trial court must
determine whether there is substantial evidence of each element ofthe offense and that defendant committed that offense.”
State v.
Coleman, 161 N.C. App. 224, 232, 587 S.E.2d 889, 894 (2003).
“Substantial evidence is such relevant evidence as is necessary to
persuade a rational juror to accept a conclusion.”
State v.
Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003),
cert.
denied, 541 U.S. 1088, 159 L. Ed. 2d 252 (2004). “'In determining
the sufficiency of the evidence we consider it in the light most
favorable to the State.'”
State v. Shaw, 164 N.C. App. 723, 728,
596 S.E.2d 884, 888 (quoting
State v. Lynch, 327 N.C. 210, 215, 393
S.E.2d 811, 814 (1990)),
disc. review denied, 358 N.C. 737, 602
S.E.2d 676 (2004).
A person is guilty of discharging a firearm into occupied
property if he “'intentionally, without legal justification or
excuse, discharges a firearm into an occupied building with
knowledge that the building is then occupied by one or more persons
or when he has reasonable grounds to believe that the building
might be occupied by one or more persons.'”
State v. James, 342
N.C. 589, 596, 466 S.E.2d 710, 715 (1996) (quoting
State v.
Williams, 284 N.C. 67, 73, 199 S.E.2d 409, 412 (1973)); N.C. Gen.
Stat. § 14-34.1 (2005).
In the light most favorable to the State, there was evidence
from which a reasonable juror could conclude that defendant either
knew or had reason to know that the Brown residence was occupied
when he fired his weapon at Sutton. Brown testified that she was
acquainted with defendant and that he helped her around the house.
Brown was home and asleep at the time of the shooting. Hertelevision set was turned on. Most notably, both of Brown's
vehicles were parked in the driveway in front of her home. Where
all the vehicles belonging to an individual are parked in front of
that individual's residence, common sense and everyday experience
would tend to indicate the likelihood of the owner being at home.
See State v. Hicks, 60 N.C. App. 718, 721, 300 S.E.2d 33, 35 (1983)
(noting the converse proposition that where no cars are parked in
front of a residence, such fact would tend to support an inference
that no one was at home. However, where the residence has a
garage, such fact would explain the absence of any parked cars in
front of the residence). From this evidence, a reasonable juror
could conclude that defendant knew or should have known the
building was occupied at the time he discharged his weapon.
Compare State v. Everette, 172 N.C. App. 237, 242, 616 S.E.2d 237,
241 (noting that the fact that the restaurant was located in an
area where other establishments were open until the early morning
hours showed that it was reasonable to believe that the restaurant
was also open and occupied at the time of the 2:30 a.m. shooting),
stay granted on other grounds, 360 N.C. 69, 620 S.E.2d 199 (2005).
III. Serious Injury
Defendant next argues the trial court committed plain error in
failing to instruct the jury on the lesser-included offense of
assault with a deadly weapon. Defendant contends there was
conflicting evidence as to whether the injury to Sutton was
sufficiently serious to support the instruction of assault with a
deadly weapon inflicting serious injury, and that the lesser-included offense should therefore have been submitted for the
jury's consideration. Defendant concedes that our review of this
assignment of error is limited to that of plain error. Plain error
is error so fundamental as to amount to a miscarriage of justice or
which probably resulted in the jury reaching a different verdict
than it otherwise would have reached.
State v. Odom, 307 N.C. 655,
660, 300 S.E.2d 375, 378 (1983).
“It is well settled that 'a defendant is entitled to have all
lesser degrees of offenses supported by the evidence submitted to
the jury as possible alternate verdicts.'”
State v. Drumgold, 297
N.C. 267, 271, 254 S.E.2d 531, 533 (1979) (quoting
State v. Palmer,
293 N.C. 633, 643-44, 239 S.E.2d 406, 413 (1977)). However, “[a]n
instruction on a lesser-included offense must be given only if the
evidence would permit the jury rationally to find defendant guilty
of the lesser offense and to acquit him of the greater.”
State v.
Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002). “'Where
the State's evidence is positive as to each element of the offense
charged and there is no contradictory evidence relating to any
element, no instruction on a lesser[-]included offense is
required.'”
Id. at 562, 572 S.E.2d at 772 (quoting
State v.
Thomas, 325 N.C. 583, 594, 386 S.E.2d 555, 561 (1989)). The trial
court examines the record to determine the presence or absence of
any evidence that might convince a reasonable juror to convict the
defendant of the lesser-included offense.
Id.
Whether a serious injury has been inflicted is a factual
determination generally left for the jury to decide underappropriate instructions.
State v. James, 321 N.C. 676, 688, 365
S.E.2d 579, 586-87 (1988). A jury may consider such pertinent
factors as hospitalization, pain, loss of blood, and time lost at
work in determining whether an injury is serious.
State v. Owens,
65 N.C. App. 107, 111, 308 S.E.2d 494, 498 (1983). “Evidence that
the victim was hospitalized, however, is not necessary for proof of
serious injury.”
State v. Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d
309, 318 (1991). Notably, “[i]n the absence of conflicting
evidence, a trial judge may instruct the jury that injuries to a
victim are serious as a matter of law if reasonable minds could not
differ as to their serious nature.”
Id. at 54, 409 S.E.2d at 318-
19 (holding that reasonable minds could not differ as to the
seriousness of the victim's physical injuries, where she sustained
a bullet wound to her ear which caused daily ringing in her ear at
the time of trial, as well as powder burns and lacerations on her
hand and head).
Defendant argues the State presented insufficient evidence
that the victim, Sutton, was seriously injured. We disagree. The
State presented evidence tending to show that Sutton was injured
when he was struck by a bullet to his upper arm. Sutton wrapped
material around his arm to staunch the flow of blood, then sought
emergency assistance. Sutton was lying on the ground when
emergency responders arrived at the scene. They subsequently
applied pressure to stop the bleeding, then bandaged Sutton's arm.
He was later transported to the hospital, treated, and released.
The entrance and exit wounds Sutton sustained were visible at trialeight months later. From this evidence, a reasonable juror could
conclude that Sutton sustained serious injury.
See Hedgepeth, 330
N.C. at 53-55, 409 S.E.2d at 318-19. Defendant presented no
evidence to contradict that of the State's regarding the serious
nature of Sutton's injury. Notably, under
Hedgepeth, the trial
court could have instructed the jury (but did not do so) that the
injury to Sutton was a serious one as a matter of law.
See id.
The trial court therefore did not err in failing to submit the
lesser-included offense of misdemeanor assault to the jury, much
less committed plain error. We overrule this assignment of error.
IV. Effective Assistance of Counsel
Finally, defendant argues he was denied effective assistance
of counsel. Although defendant acknowledges that “most ineffective
assistance claims are properly brought in a Motion for Appropriate
Relief rather than on direct appeal[,]” he asserts that “this case
presents the extremely rare case when counsel's 'ineffective
assistance' can be litigated on direct appeal[.]” Defendant
contends his counsel's performance was deficient as a matter of
law, with no strategic basis for his behavior, resulting in
irrevocable prejudice to defendant. We do not agree.
“A defendant's right to counsel includes the right to the
effective assistance of counsel.”
State v. Braswell, 312 N.C. 553,
561, 324 S.E.2d 241, 247 (1985). “When a defendant attacks his
conviction on the basis that counsel was ineffective, he must show
that his counsel's conduct fell below an objective standard of reasonableness.”
Id. at 561-62, 324 S.E.2d at 248. To meet this
burden, the defendant must satisfy the following two-part test:
“First, the defendant must show that
counsel's performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial,
a trial whose
result is reliable.”
Id. (quoting
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed.
2d 674, 693 (1984)).
“The fact that counsel made an error, even an unreasonable
error, does not warrant reversal of a conviction unless there is a
reasonable probability that, but for counsel's errors, there would
have been a different result in the proceedings.”
Id. at 563, 324
S.E.2d at 248. “This determination must be based on the totality
of the evidence before the finder of fact.”
Id. Thus,
“a court need not determine whether counsel's
performance was deficient before examining the
prejudice suffered by the defendant as a
result of the alleged deficiencies. The
object of an ineffectiveness claim is not to
grade counsel's performance. If it is easier
to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which
we expect will often be so, that course should
be followed.”
Id. (quoting
Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699).
Defendant contends his counsel's performance was deficient in
that counsel for defendant decided to call two State's witnesses
during defendant's presentation of evidence. Defendant argues thatthe same evidence could have been presented during cross-
examination, without sacrificing defendant's right to opening and
closing arguments to the jury. Defendant contends there could have
been “
no strategic reason for counsel's behavior,” and that he was
irrevocably prejudiced thereby. We find no merit in this argument.
First, there could have been several reasons behind defense
counsel's strategy. From reviewing the record as a whole, it is
clear that defendant's theory of the case was one of self-defense.
Defendant encouraged the jury to believe that Sutton arrived at
defendant's home seeking drugs and threatened to kill defendant
when he did not allow Sutton to enter his home. Defense counsel
was frustrated in his attempts to advance this theory of the case,
however, by defendant's apparent refusal to cooperate, particularly
in regards to whether or not defendant would testify. At the close
of the State's case, defense counsel could not ascertain whether or
not defendant intended to testify. Recalling several of the
State's witnesses bought defendant additional time to decide
whether or not to testify, and to effectively communicate his
wishes to his attorney. The testimony brought out during
defendant's presentation of the evidence cast some doubt on the
State's case. Moreover, while it is true that defense counsel
could have elicited the same information from the State's witnesses
during cross-examination, the questions asked by defense counsel,
specifically targeting defendant's theory of the case,
strategically highlighted the weaknesses in the State's case at a
time shortly before the jury would retire to deliberate. Further, there is little to suggest that defense counsel's
performance, even if deficient in some measure, had any effect on
the outcome at trial. The State presented strong evidence that
defendant deliberately fired four shots from a firearm. One of
these shots struck Sutton; the second struck Sutton's vehicle; and
one of the shots penetrated defendant's next-door neighbor's home.
Defendant presented little evidence to rebut the State's position.
Given these facts, there is no reasonable probability that, but for
counsel's recall of the State's witnesses and resulting sacrifice
of the closing argument, there would have been a different result
in the proceedings. We therefore overrule this assignment of
error.
In the judgment of the trial court we find
No error.
Judges HUDSON and CALABRIA concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***