{
  "id": 8526076,
  "name": "STATE OF NORTH CAROLINA v. LARRY BRINDLE",
  "name_abbreviation": "State v. Brindle",
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  "last_updated": "2023-07-14T17:15:19.573584+00:00",
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  "casebody": {
    "judges": [
      "Judges Webb and Johnson concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. LARRY BRINDLE"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Chief Judge.\nDefendant contends that he was denied effective assistance of counsel and, thus, due process of law. Defendant alleges, first, that his counsel\u2019s failure to object to incompetent testimony from the witness, Sheila Christie, and second, \"that his failure to request the trial court to instruct the jury on the defense of accident were errors amounting to a denial of effective assistance of counsel. We find no merit in defendant\u2019s contentions.\nSheila Christie testified that defendant shot Ray Anderson. In response to the prosecutor\u2019s question whether defendant aimed the gun before shooting, Ms. Christie testified, \u201cI\u2019d say so.\u201d Defendant argues that this response was an opinion which should have been objected to by defense counsel. We disagree. Ms. Christie\u2019s testimony was admissible as a shorthand statement of fact. See State v. Brower, 289 N.C. 644, 224 S.E. 2d 551 (1976), reconsideration denied, 293 N.C. 259, 243 S.E. 2d 143 (1978).\nAs to defendant\u2019s second allegation, the evidence indicates and defendant himself testified that although he did not intend to hurt anyone, he intentionally fired the pistol. When, as here, defendant intended to and did fire a shot resulting in injury to the victim, defendant is not entitled to an instruction on the defense of accident or misadventure. State v. Efird, 37 N.C. App. 66, 245 S.E. 2d 226 (1978), cert. denied, 301 N.C. 98 (1980).\nCounsel\u2019s performance was well within the range of competence demanded of attorneys in criminal cases. See State v. Weaver, 306 N.C. 629, 295 S.E. 2d 375 (1982); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed. 2d 763 (1970). Ineffective assistance of counsel claims are not intended to promote judicial second-guessing on questions of strategy and trial tactics. State v. Milano, 297 N.C. 485, 256 S.E. 2d 154 (1979), overruled on other grounds, State v. Grier, 307 N.C. 628, 300 S.E. 2d 351 (1983).\nDefendant next contends that the trial judge erred in submitting to the jury the issue of assault with intent to kill inflicting serious injury under G.S. 14-32(a), since there was no evidence of intent to kill. Defendant, however, failed to prove any prejudice; the jury conviction of the lesser included offense described in G.S. 14-32(b) rendered harmless any errors in the charge with respect to the more serious offense, described in G.S. 14-32(a). State v. Harris, 23 N.C. App. 77, 208 S.E. 2d 266 (1974); State v. Hearns, 9 N.C. App. 42, 175 S.E. 2d 376 (1970). Nor did defendant prove that the jury verdict was affected by the judge\u2019s charge. See State v. Hearns, supra.\nNo error.\nJudges Webb and Johnson concur.",
        "type": "majority",
        "author": "VAUGHN, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Ann Reed, Special Deputy Attorney General, for the State.",
      "Dozier, Brackett, Miller, Pollard and Murphy, by Richard S. Gordon, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LARRY BRINDLE\nNo. 8319SC836\n(Filed 21 February 1984)\n1. Constitutional Law \u00a7 48\u2014 failure to demonstrate ineffective assistance of counsel\nThere was no merit to defendant\u2019s contentions that he was denied effective assistance of counsel when he failed to object to testimony from a witness which was admissible as a shorthand statement of fact and when his counsel failed to request an instruction on defense of accident since defendant was not entitled to such an instruction.\n2. Assault and Battery \u00a7 14.4\u2014 no prejudicial error in submission of issue to jury which was unsupported by evidence\nDefendant failed to show prejudice in the trial court\u2019s submission to the jury of the issue of assault with intent to kill inflicting serious injury under G.S. 14-32(a) in that there was no evidence of intent to kill since the jury convicted defendant of the lesser included offense described in G.S. 14-32(b), assault with a deadly weapon inflicting serious injury.\nAppeal by defendant from Long, James M., Judge. Judgment entered 24 March 1983 in Superior Court, ROWAN County. Heard in the Court of Appeals 8 February 1984.\nDefendant was charged with assault with a deadly weapon with intent to kill, inflicting serious injury. The jury found him guilty under G.S. 14-32(b) of assault with a deadly weapon inflicting serious injury.\nThe State\u2019s evidence tended to show:\nOn 19 September 1982, defendant, defendant\u2019s daughter, Wayne Anderson, his brother Ray Anderson, and some other friends went to watch the automobile races at the Concord Motor Speedway. Defendant\u2019s daughter was Ray Anderson\u2019s date. After the races, defendant drove the group to his house. Defendant appeared angry and drove recklessly.\nUpon arriving at defendant\u2019s residence, Ray, who had parked in defendant\u2019s driveway, put the key into the ignition of his car and prepared to leave. Defendant followed Ray to his car, cursing him and telling him that he should have asked permission before dating his daughter. Wayne Anderson, who had been watching, jumped on the hood of Ray\u2019s car and told defendant to leave Ray alone and to fight him if defendant wanted to fight someone. Defendant, instead, swung at Ray, who blocked and hit defendant. Wayne then jumped on defendant\u2019s back and tried to separate them. Defendant stepped backward, and Ray, thinking that the fight was over, walked away.\nThe fight, however, was not over. Defendant pulled a pistol from his pocket and struck Wayne on the head. Defendant then turned and fired two or three shots in Ray\u2019s direction. One bullet struck Ray in his lower left leg. Defendant then punched Wayne in the nose and threatened to kill anyone who touched Ray.\nDefendant\u2019s evidence tended to show:\nWhen the group arrived at defendant\u2019s house after the races, defendant told Ray that he did not approve of his daughter meeting guys away from home and that if Ray wanted to date her, to come to his house and ask her for a date. Ray flew into a rage and began yelling and cursing. Wayne came over, sat on the hood of the car, kicked defendant in the head and grabbed him by the neck. Both Ray and Wayne began hitting defendant. Wayne was still holding defendant by the neck when defendant pulled out a pistol he had been carrying in his pocket and fired two shots at the ground. One shot accidentally hit Ray.\nAttorney General Edmisten, by Ann Reed, Special Deputy Attorney General, for the State.\nDozier, Brackett, Miller, Pollard and Murphy, by Richard S. Gordon, for defendant appellant."
  },
  "file_name": "0716-01",
  "first_page_order": 748,
  "last_page_order": 751
}