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					No.COA06-67                                     EIGHTH DISTRICT

                 NORTH CAROLINA COURT OF APPEALS

      ****************************************************

STATE OF NORTH CAROLINA          )
                                 )
         v.                      )    From Lenoir County
                                 )    05 CRS 50219, 1529
CEDRIC GENE BRUNTON              )

      ****************************************************

                      DEFENDANT-APPELLANT’S BRIEF

      ****************************************************
                             INDEX

TABLE OF AUTHORITIES...........................................II

QUESTIONS PRESENTED.............................................1

STATEMENT OF THE CASE...........................................2

STATEMENT OF JURISDICTION.......................................2

STATEMENT OF THE FACTS..........................................2

ARGUMENT........................................................6

CONCLUSION.....................................................35

CERTIFICATE OF SERVICE.........................................35

APPENDIX.......................................................36
                               ii

                      TABLE OF AUTHORITIES

                              CASES

Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L.
     Ed. 2d 815 (1966)........................................ 11

State v. Aytche, 98 N.C. App. 358, 391 S.E.2d 43
     (1990)................................................... 28

State v. Blakeney, 352 N.C. 287, 531 S.E.2d 799 (2000) 18, 19, 25

State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985)........ 19

State v. Eury, 317 N.C. 511, 347 S.E.2d 447 (1983),
     cert denied 484 U.S. 887, 108 S. Ct. 42 (1987)... 20, 22, 23

State v. Everhart, 96 N.C. App. 1, 384 S.E.2d 562
     (1989), aff’d 326 N.C. 777, 392 S.E.2d 391 (1990)........ 30

State v. Ewell, 168 N.C. App. 98, 606 S.E.2d 914
     (2005)................................................... 33

State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626 (1964)........ 31

State v. Hall, 57 N.C. App. 561, 291 S.E.2d 812 (1982)........ 20

State v. Hamilton, 77 N.C. App. 506, 512, 335 S.E.2d
     506, 510 (1985), cert. denied, 315 N.C. 593, 341
     S.E.2d 33 (1986)......................................... 32

State v. Heptinstall, 309 N.C. 231, 306 S.E.2d 109
     (1983)................................................... 14

State v. James, 321 N.C. 676, 365 S.E.2d 579 (1988)........... 29

State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458 (1980)..... 11, 12

State v. Jones, 258 N.C. 89, 128 S.E.2d 1 (1962).............. 30

State v. Jordan, 321 N.C. 714, 365 S.E.2d 617 (1988).......... 19

State v. Macon, 346 N.C. 109, 484 S.E.2d 538 (1997)........... 20

State v. McNeill, 346 N.C. 233, 485 S.E.2d 284 (1996)......... 32

State v. Nelson, 341 N.C. 695, 462 S.E.2d 225 (1995).......... 26

State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)........ 27, 33
                               iii
State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494
     (1983)................................................... 28

State v. Pettiford, 60 N.C. App. 92, 298 S.E.2d 389
     (1982)................................................... 31

State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980)......... 7, 8

State v. Richardson, 341 N.C. 658, 462 S.E.2d 492
     (1995).................................................... 7

State v. Simpson, 299 N.C. 377, 261 S.E.2d 661 (1980)......... 26

State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980)............. 7

State v. Thaggard, 168 N.C. App. 263, 608 S.E.2d 774
     (2005).................................................... 7

State v. Williams, 31 N.C. App. 111, 228 S.E.2d 668
     (1976)................................................... 30

State v. Williams, 284 N.C. 67, 73, 199 S.E.2d 409,
     413(1973)................................................. 8

State v. Wood, 126 N.C. App. 581, 592, 486 S.E.2d 255,
     261 (1997)............................................... 29

Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
     2052, 80 L.Ed.2d 674 (1984).............................. 19

United States v. Bakker, 925 F.2d 728 (4th Cir. 1991)......... 17

                            STATUTES

N.C. Gen. Stat. § 14-32(a).................................... 28

N.C. Gen. Stat. § 14-32(b).................................... 28

N.C. Gen. Stat. § 14-33(c) (1)(2004).......................... 28

N.C. Gen. Stat. § 14-34.1.................................. 7, 11

N.C. Gen. Stat. § 15A – 1231(b)............................... 27

N.C. Gen. Stat. § 15A-1001(a)............................. 13, 17

N.C. Gen. Stat. § 15A-1002.................................... 17

N.C. Gen. Stat. § 7A-27(b)..................................... 2

N.C. Gen. Stat. §§ 15A-1442 and 1444........................... 2
                               iv
N.C. Gen. Stat. §§ 15A-901 – 910.............................. 21

N.C.R. App. P. 10(b)(2)....................................... 33

N.C.R. App. P. 10(b)(3)........................................ 7

N.C.R. App. P. 28.............................................. 2

                        OTHER AUTHORITIES

American Psychological Association, Diagnostic and
     Statistical Manual of Mental Disorders, Fourth
     Edition.............................................. 15, 16

Irving Joyner, Criminal Procedure in North Carolina,
     2d Ed............................................ 14, 21, 22

N.C.P.I. -- Crim. 120.12 DEFINITION OF SERIOUS INJURY.
           November 1998...................................... 31

Ronald Smothers, Judge Says Bakker Can Stand Trial,
     N.Y. Times, Sept. 7, 1989...................... 15, Appendix
No.COA06-67                                     EIGHTH DISTRICT

                 NORTH CAROLINA COURT OF APPEALS

      ****************************************************

STATE OF NORTH CAROLINA         )
                                )
         v.                     )    From Lenoir County
                                )    05 CRS 50219, 1529
CEDRIC GENE BRUNTON             )

      ****************************************************

                      DEFENDANT-APPELLANT’S BRIEF

      ****************************************************



                          QUESTIONS PRESENTED
     1.   The trial court erred by failing to dismiss the charge
of Discharging a Weapon Into Occupied Property at the close of
all the evidence due to insufficiency of the State’s case. This
was in violation of N.C. Gen. Stat. §15A-1227, the Fourteenth
Amendment to the United States Constitution and Article One, § 19
of the North Carolina Constitution.

    T. p. 208, l.7

     2.   The trial court erred when it failed to revisit the
issue of the defendant’s competency to stand trial at the close
of the state’s evidence.     This was in violation of N.C. Gen.
Stat. §§ 15A-1001 and 1002, the Fourteenth Amendment to the
United States Constitution and Article One, Sections 19, 23, 25,
and 36 of the North Carolina Constitution.

    T. pp. 190, l.24 - p. 195, l.8

     3.   Defense counsel provided ineffective assistance of
counsel to the Defendant, Cedric Gene Brunton, by offering the
testimony of prosecuting witness Alexander Sutton, and Officer
Lolita Brown-Chapman.   This was in violation of the Sixth and
Fourteenth Amendments to the United States Constitution and
Article One, § 23 of the North Carolina Constitution.

    T. pp. 197 – 202, 202 - 305
                                 2

     4.   The trial court committed plain error by failing to
instruct the jury on the lesser included offense of misdemeanor
Assault with a Deadly Weapon. This was in violation of N.C. Gen.
Stat. §§ 15A-1231 and 15A-1237(b), the Sixth and Fourteenth
Amendments to the United States Constitution and Article One, §§
19, 23, 35 and 36 of the North Carolina Constitution.

    T. pp. 216 - 224
                       STATEMENT OF THE CASE
     This was an action heard at the Criminal Session of Superior
Court in Lenoir County between April 23 and 24, 2005, presided
over by the Honorable Allen Cobb, Jr., on a bill of indictment
charging the defendant, Cedric Gene Brunton, with Assault With a
Deadly Weapon With Intent to Kill Inflicting Serious Injury,
Discharging a Firearm Into Occupied Property and two counts of
misdemeanor Injury to Personal Property.

     After presentation of witnesses by both the State and the
defendant, the jury returned verdicts of guilty of Assault With a
Deadly Weapon Inflicting Serious Injury, Discharging a Firearm
Into Occupied Property and two counts of misdemeanor Injury to
Personal Property.

     A separate hearing was then held before the jury on an
indictment charging that the defendant had achieved the status of
being a Habitual Felon.    After presentation of evidence by both
the State and the defendant, the jury found the defendant guilty
of being a Habitual Felon.

     Judge Cobb consolidated the charges for one judgment and
imposed a Class C active sentence of from 90 – 117 months.

                    STATEMENT OF JURISDICTION

Pursuant to Appellate Rule 28(b)(4), jurisdiction for this appeal
derives from N.C. Gen. Stat. §§ 15A-1442 and 1444 and N.C. Gen.
Stat. § 7A-27(b). This appeal is from a final order.

                       STATEMENT OF THE FACTS
    At about 1:00 p.m. on July 17, 2005, Alexander Sutton, age

25, sometime student, and a convicted felon, was driving his car

down Martin Luther King Boulevard in Kinston.    (T. pp. 30 -33,

36, 66, 199) As he drove he saw a “young lady” he had “seen in
                                                            3

church a couple of times.” Although, he did not know her well

enough to call her by name,1 he stopped and asked her if she

needed a ride since it was cold outside.

         The “young lady” said she needed a ride to “pick up some

clothes,” and gave Sutton directions to “the defendant’s house”2

on East Washington Avenue. Sutton parked the car in the driveway.

She got out of car and went inside.                                   Sutton never saw this “young

lady” again. After she had been in the house “a little while,”

Sutton          got     out      of     his     vehicle         and     went       and     loitered        by    the

street. (T. pp. 34)

         As he was “lollygagging” and “wasting time” in the street at

the front of the defendant’s house, Sutton heard the screen door

on the house slam, and then saw the defendant fumbling through

the pocket of his coat. (T. p. 34) Sutton knew the defendant, who

was his second cousin and was known by the family as “Dick.” (T.

p. 31 - 32)

         According to Sutton, the defendant suddenly pulled out a

“big         black        handgun.”           The      defendant           was      “mumbling,          cussing,

talking real loud and crazy, and pointing a gun.”                                              Before Sutton




         1
             At no point in his testimony was Sutton able to recall the “young lady’s” name.
         2
          Although he testified the “young lady’ gave him directions to the “defendant’s house,” Sutton later testified
he “didn’t know exactly who lived there.” (T. p. 35) This is interesting in light of Sutton’s later testimony that it
“wasn’t really a surprise” when he saw the defendant, his second cousin, come out of his house. (T. p. 35)
                                                           4

knew it, the defendant began to fire without any provocation.3

(T. p. 36) The first shot hit Sutton’s car, the second shot hit

Sutton in the arm and passed through it. (T. p. 35, 38)

         Sutton left his vehicle in the driveway of the defendant’s

house, and fled the scene by running through the yards of the

defendant’s and other residences. He made his way to the vicinity

of “Six Churches,” several blocks from the scene.                                             While in that

vicinity a passer-by saw that he was bleeding, and called the

police and an ambulance for him.                               (T. p. 38, 54)

         When EMT’s arrived at the “Six Churches” area, they were

able         to   stop     the      bleeding          to       Sutton’s       arm      by     applying         some

pressure to the wound. As stated by Sutton, “I had a little

bandage on me to stop the flow of blood.” (T. p. 59) Before going

to the Lenoir Memorial Hospital Emergency Room, Sutton returned

to the area of the defendant’s house in an ambulance. At that

time, he noticed that his car had been moved from the driveway to

the street. (T. p. 43 - 44) The ambulance then took Sutton to the

Emergency Room, where he was treated and released after a “few

hours.” (T. pp. 60 - 61) While at the Emergency Room Sutton was

interviewed by an officer, who found him alert and talkative. (T.

pp. 66 - 67) After being released from the ER, Sutton returned to

the scene, retrieved his vehicle and drove it home. (T. p. 63)



         3
          Sutton heard a total of four shots. (T. pp. 53 - 54) A total of four expended, .40 caliber shell casings were
found by law enforcement officers investigating this matter. (T. p. 128 – 129, 155)
                                                       5

Although Sutton denied having any firearms in his vehicle at the

time        of    the    incident         (T.     p.       64),    law      enforcement           officers

processing Sutton’s vehicle found a shotgun, along with 12-gauge

and 410-shotgun shells. (T. pp. 180 - 181)

        A search warrant was obtained for the defendant’s residence

by law enforcement officers. (T. p. 68 - 69) After forcing their

way into the residence, they found no one at home.                                          The officers

did find: two pit-bull dogs; a .22 caliber rifle (and associated

ammunition);            a     Taurus       .357      Magnum        revolver         (and       associated

ammunition);            and    two      loaded      .223      caliber        “banana        clip”      rifle

magazines.           (T. pp. 151 - 152) Conspicuous by their absence were

women’s clothes or anything associated with women.4

        Finally, Ms. Glyceria Brown testified that she lived at 310

East Washington Avenue in Kinston, and was the defendant’s next

door neighbor on January 17, 2005. (T. pp. 78 – 82, 90) She was

employed by the DuPont Company and worked rotating shifts. On the

date        in    question,       she     had     worked       the     midnight        to    eight       a.m.

shift.           (T. pp. 84, 94 - 95)

        After getting off on the morning of January 17, 2005, Ms.

Brown went home and watched a little television.                                      She fell asleep

watching television sometime after 10:00 a.m. (T. pp. 83 -84. 95)

Later on that day, Ms. Brown was awakened by a police officer



        4
           According to Sutton’s testimony, the mysterious “young lady” he took to the defendant’s residence was
going to that location to “pick up some clothes.” (T. p. 34)
                                                      6

banging on her door. The officer asked her if she knew anything

about the shooting that had taken place next door. Ms. Brown

replied that she was a sound sleeper and did not “hear a thing.”

(T. p. 85)

        A day of two later,5 Ms. Brown’s son came home for a visit

and she went to her armoire to fetch some towels for him. While

doing this, “a bullet casing thing fell on the floor, and then I

looked around and I saw a hole on my wall, a hole on my armoire…

… So we called the police” (T. p. 86.) The police came to her

residence, diagramed and photographed the damage, and recovered a

spent projectile from Ms. Brown. (T. pp. 163- 166)

                             ARGUMENT
     1.   The trial court erred by failing to dismiss the charge
of Discharging a Weapon Into Occupied Property at the close of
all the evidence due to insufficiency of the State’s case. This
was in violation of N.C. Gen. Stat. §15A-1227 the Fourteenth
Amendment to the United States Constitution and Article One, § 19
of the North Carolina Constitution.

        T. p. 208, l.7

        A. Standard of Review

        Upon a motion to dismiss criminal charges for insufficiency

of the evidence, the trial court must determine "whether there is

substantial evidence (1) of each essential element of the offense

charged, or of a lesser offense included therein, and (2) of

defendant's          being      the     perpetrator          of    such      offense."         State      v.



        5
        January 17, 2005 was a Monday. Ms. Brown testified that she noticed the damage to her home and armoire
on Wednesday or Thursday of that week.
                                           7

Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). "Substantial

evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion." State v. Smith, 300

N.C.   71,   78-79,   265   S.E.2d    164,      169   (1980).   The   evidence    is

considered in the light most favorable to the State, and the

State is entitled to every reasonable inference arising from it.

Powell, 299 N.C. at 99, 261 S.E.2d at 117. The trial court does

not weigh the evidence or determine witnesses' credibility. Id.

"It is concerned 'only with the sufficiency of the evidence to

carry the case to the jury.'" State v. Thaggard, 168 N.C. App.

263, 281, 608 S.E.2d 774, 786 (2005). In order to preserve any

error, a defendant who offers evidence must renew his motion to

dismiss pursuant to N. C. Rule of Appellate Procedure 10(b)(3)

and State v. Richardson, 341 N.C. 658, 462 S.E.2d 492 (1995).

       B. Discussion of Facts & Relevant Authority

       Cedric Brunton was charged in Count II of the indictment in

05 CRS 50219 with Discharging a Firearm Into Occupied Property in

violation of N.C. Gen. Stat. § 14-34.1. (R. p. 6) Defense counsel

made motions to dismiss at the close of both the State’s and the

defendant’s    evidence.     (T.     pp.       189,   208)   The   defendant     was

convicted as charged in Count II. (R. p. 35, T. p. 227)

       N.C. Gen. Stat. § 14-34.1(a) reads:

            Any person who willfully or wantonly discharges or
       attempts to discharge any firearm or barreled weapon
       capable of discharging shot, bullets, pellets, or other
       missiles at a muzzle velocity of at least 600 feet per
                                        8

      second into any building, structure, vehicle, aircraft,
      watercraft, or other conveyance, device, equipment,
      erection, or enclosure while it is occupied is guilty
      of a Class E felony.

      A person is guilty of this offense 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. Williams, 284 N.C. 67, 73,
      199 S.E.2d 409, 413(1973).

      Defendant respectfully contends that there is no evidence in

the record from which a jury could conclude that this defendant,

Cedric   Brunton,   knew   or   had     reasonable   grounds   to    know   that

Glyceria Brown was inside her home at 310 East Washington Avenue

at the time he allegedly fired shots at Alexander Sutton. This is

so even when the evidence is taken             “in the light most favorable

to the State,” and this Court applies “every reasonable inference

arising from it.” Powell, 299 N.C. at 99, 261 S.E.2d at 117.

      The evidence before this Court indicates that Ms. Glyceria

Brown lived at 310 East Washington Avenue in Kinston, and was the

defendant’s next door neighbor on January 17, 2005. (T. pp. 78 –

82,   90)   She   was   employed   by    the   DuPont   Company     and   worked

rotating shifts. On the date in question, she had worked the

midnight to eight a.m. shift. (T. pp. 84, 94 - 95)

      After getting off on the morning of January 17, 2005, Ms.

Brown went home and watched a little television. She fell asleep

watching television sometime after 10:00 a.m. (T. pp. 83 -84. 95)
                                                        9

Later on that day, Ms. Brown was awakened by a police officer

banging on her door. The officer asked her if she knew anything

about the shooting that had taken place next door.                                                Ms. Brown

replied that she was a sound sleeper and did not “hear a thing.”

(T. p. 85)

        Most conspicuously absent from Ms. Brown’s testimony is any

evidence that:

             (1) Ms. Brown had seen or spoken to the defendant
        on the morning of January 17, 2005, prior to the
        shooting;

             (2) Ms. Brown and the defendant had any personal
        knowledge of each other; (T. p. 91)6

             (3) The defendant had seen Ms. Brown entering,
        exiting, or in the yard of her home that morning;

             (4) The defendant had seen anyone else entering,
        exiting, or in the yard of Ms. Brown’s home prior to
        the shooting;

             (5) The defendant was aware that Ms. Brown was
        working the “grave yard shift” at the DuPont Company
        during the week of January 17, 2005, and that she had
        gone home to sleep prior to her next work shirt.

        What       evidence          does      exist        on     the      issue       of     defendant’s

knowledge of Ms. Brown’s whereabouts immediately prior to, during

or immediately after the shooting tends to negate any inference

that he knew or should have known Ms. Brown was inside her home:




        6
          For instance, Ms. Brown was unable to pinpoint with any specificity whatsoever how long she had been
neighbors with the defendant.. “He had been there for a while, and I don’t know exactly when.” (T. p. 91, l. 4 - 5)
                                    10

            (1) Ms. Brown lived alone.

            (2) She worked a “rotating shift,” and had never
            discussed her work schedule with the defendant.
            (T. pp. 94 - 95) (emphasis added)

         (3) On January 17, 2005, Ms. Brown got home from
    work sometime between 8:00 a.m. and 10:30 - 11:00 a.m.
    (T. p. 84)

         (3) The incident in question happened about 1:00
    p.m. on January 17, 2005. (T. pp. 36, 66)

         (4) Ms. Brown slept through the entire shooting
    incident, and was completely unaware of it until the
    police woke her up by knocking on her door later in the
    day of January 17th. (T. p. 85)

         (5) Ms. Brown was seldom at home, and if she was
    there, she was usually asleep. (T. p. 91)7

    The only evidence from which the defendant might have had

any reason to believe that someone was inside Ms. Brown’s home

was that Ms. Brown’s car was parked at the residence at the time

of the shooting. (T. p. 93) Defendant maintains that this fact,

standing alone, is insufficient to show that someone was inside

the residence at the time of the shooting.          Common sense, logic

and life experience in this country tell us that one may not

conclude that someone is inside a residence simply because a car

is parked at that residence.

    Since    there   is   no   evidence   from   which   the   jury   could

reasonably conclude that this defendant knew or had reasonable

grounds to know Ms. Brown’s residence was occupied at the time he
                                                 11

allegedly shot at Alexander Sutton, the trial court erred in

refusing     to    grant      his     motions       to    dismiss.        Defendant-Appellant

respectfully requests that this Court remedy that error, and set

aside the verdict with respect to Count II of the indictment in

05 CRS 50219 - wherein the defendant was charged with Discharging

a Firearm Into Occupied Property in violation of N.C. Gen. Stat.

§ 14-34.1.

     2.   The trial court erred when it failed to revisit the
issue of the defendant’s competency to stand trial at the close
of the state’s evidence.     This was in violation of N.C. Gen.
Stat. §15A-1001 and 1002, the Fourteenth Amendment to the United
States Constitution and Article One, Sections 19, 23, 25, and 36
of the North Carolina Constitution.

    T. pp. 190, l.24 - p. 195, l.8

    A. Standard of Review

    “[T]he conviction of an accused person while he is legally

incompetent violates due process…” Pate v. Robinson, 383 U.S.

375, 378, 86 S. Ct. 836, 837, 15 L. Ed. 2d 815, 818 (1966). When

a trial judge conducts a hearing on the competency of a defendant

to stand trial, “the court's findings of fact, if supported by

evidence, are conclusive on appeal." State v. Jenkins, 300 N.C.,

578, 582, 268 S.E.2d 458, 461 (1980).

    B. Discussion of Facts & Relevant Authority

    N.C. Gen. Stat. § 15A-1001(a) sets forth the test used to

determine a defendant’s competency to stand trial:




    7
        On cross examination, Ms. Brown stated: “I work all the time, so I’m very seldom home. When I was
                                                    12

              No person may be tried, convicted, sentenced, or
         punished for a crime when by reason of mental illness
         or defect he is unable to understand the nature and
         object of the proceedings against him, to comprehend
         his own situation in reference to the proceedings, or
         to assist in his defense in a rational or reasonable
         manner. This condition is hereinafter referred to as
         "incapacity to proceed."

The “statute clearly sets forth in the disjunctive three tests of

mental incapacity to proceed, and the failure to meet any one

would suffice to bar criminal proceedings against a defendant.”

State v. Jenkins, 300 N.C. 578, 583, 268 S.E.2d 458, 462 (1980).

         In the case at bar, Defendant-Appellant does not contest the

trial         court’s            original,        pre-trial     ruling      concerning        the

defendant’s capacity to stand trial. (R. p. 19, T. pp. 15 – 16,

250      –     257)        Instead,         Defendant-Appellant         turns   this    Court’s

attention to the colloquy between the trial court and defense

counsel at the close of the State’s evidence. (T. p. 190, l. 24 –

195, l. 8)

         At      the      close        of   the   State’s     evidence,     defense     counsel

brought         to      the      court’s      attention     that   he    had    met    with   the

defendant prior to the beginning of court that day, and that

several problems had arisen between lawyer and client:

         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 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 virtually no help whatsoever, in


home I was asleep.” (T. p. 91, l. 5 - 6)
                                     13

      this 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 am asking the
      court to instruct Mr. Brunton, in these matters, hoping
      to gain some understanding as far as what he would like
      to do in this matter. (T. p. 191) [emphasis added]

      The trial court responded to counsel’s request for help by

reciting the defendant’s rights concerning self incrimination and

his right to testify. The trial court then asked the defendant if

he   understood   his   rights.     (T.   p.   191    -   192)   The   defendant

responded very equivocally: “I reckon.               I don’t know… A little

bit… I don’t understand…” (T. pp. 192 - 193)

      What the trial court apparently failed to comprehend was the

import   of   defense   counsel’s   statements       about   the   defendant’s

mental state, in combination with the defendant’s responses to

the court. What defense counsel was telling the trial court was

that his client’s mental condition had begun to significantly

deteriorate, and that neither he nor the defendant’s mother – who

had spoken with the defendant prior to court – could reach him.

Although not expressed in the words of N.C. Gen. Stat. § 15A-

1001(a), it was clear that defense counsel had serious doubts

about his client’s ability “to comprehend his own situation in

reference to the proceedings, or to assist in his defense in a

rational or reasonable manner.” Moreover, defendant’s responses

tended to corroborate counsel’s assessment.
                                           14

    While the burden of placing the defendant’s competency at

issue usually rests with defense counsel, the issue may also be

raised by the prosecutor or the trial court. Indeed, “[w]hen

neither the defense attorney nor the prosecutor raises the issue

under   circumstances        that       demonstrate       that     the     defendant’s

competency    should    be      inquired      into,   the     trial      court   has    a

constitutional   duty      to    make    an     appropriate      inquiry.”       Irving

Joyner, Criminal Procedure in North Carolina, 2d Ed., § 10.2.                          As

our Supreme Court has stated:

         [A] conviction cannot stand where defendant lacks
    capacity to defend himself.    '[A] 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. Heptinstall, 309 N.C.
    231, 236, 306 S.E.2d 109, 112 (1983). (citations
    omitted)

    Here     there   was     more   than        substantial      evidence    that      the

defendant was likely becoming incompetent. Moreover, the evidence

the trial court had relied on when it found defendant competent,

was substantially different than the situation before the court

at the close of the State’s evidence.

    It should be noted from the outset, that the trial court

based its pre-trial findings, in large part, on the report issued

by Dr. James Groce of Dorothea Dix Hospital. Dr. Groce’s findings

were arrived at after interviewing and testing the defendant in a

calm,   therapeutic     environment,          where   a   person      of    borderline
                                                         15

intelligence8 would feel far less emotionally threatened.                                                       Dr.

Groce’s observations were also somewhat dated.                                         Defense counsel’s

observations,             as     compared          to     Dr.      Groce’s,         were       made      on     the

morning of the day the defendant was placed on trial.

        Second, the stress of trial can have a deleterious effect on

defendants           –    even      those       who      do     not     suffer        from      significant,

exacerbating               problems             such          as        borderline              intellectual

functioning.9 See Ronald Smothers, Judge Says Bakker Can Stand

Trial, N.Y. Times, Sept. 7, 1989. (attached as Appendix One)10

        Third, the defendant became significantly less communicative

between the pre-trial hearing and the colloquy held at the close

of State’s evidence. The change in defendant’s demeanor at the

pre-trial hearing on his competency and the colloquy, late in his

trial, is obvious and startling.                              (T. pp. 11- 14, 192 - 193)

        Fourth, although the defendant had expressed an aversion to

an offered plea bargain (T. p.13) there is nothing in the record,

including Dr. Groce’s report or the defendant’s conduct at trial,




        8
           The American Psychological Association defines Borderline Intellectual Functioning, as “an IQ in the 71 –
84 range.” American Psychological Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition, p. 684.
        9
          “MR. CLEAVENGER:… Mr. Brunton’s history of addictions and so on, coupled with his limited IQ,
coupled with what appears to be some significant emotional problems creates a true barrier for him
understanding certain significant matters.” (T. p. 193) [emphasis added]
        10
            At the 1989 trial of Rev. Jim Bakker, Bakker an ordained minister, suffered a “panic attack” caused by the
stress of the trial. Bakker was committed to federal custody at the Butner Correctional Institute, and examined by
psychiatric personnel. Subsequently, he was found competent to stand trial and the trial continued on to a verdict.
                                                          16

to indicate he was malingering.11                                The evidence reflected in the

record        demonstrates             that       the      defendant’s            psychiatric             problems

were real, becoming worse as the trial progressed, and not the

product of a sophisticated criminal feigning illness.

         Defendant-Appellant contends that defense counsel, when he

made his remarks about the intellectual and emotional functioning

of the defendant at the close of the state’s case, made the

functional equivalent of a motion to have his client re-examined

with respect to capacity to proceed. (T. pp. 189 - 195)                                                   As trial

counsel said, “I just wanted it out in the open court that this

issue has been addressed and raised.” (T. p. 194, l. 25 - 25)

         Even if counsel failed to make his wishes with respect to a

new competency examination completely clear to the trial court,

the court had substantial evidence before it- based on its own

observations and counsel’s remarks - to order a new inquiry into

defendant’s capacity to proceed. Moreover, the law imposed a duty

on the trial court to intervene.12




         11
            The American Psychological Association defines “malingering,” in part, as: “The essential feature of
Malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms
motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation,
evading criminal prosecution, or obtaining drugs.” American Psychological Association, Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, p. 683



         12
           Part of the problem here may have been that the trial court did not realize that it had a duty to intervene ex
mero motu, in the presence of substantial new evidence of the defendant’s incompetence. “THE COURT: Well we
have in the court’s opinion already visited this issue.” (T. p. 194, l. 8 - 9); “THE COURT: [sic] Asking me to take on
another role and I’m not prepared to do that and can’t do that.’ (T. p. 194, l. 23 - 24)(emphasis added)
                                        17

    N.C. Gen. Stat. § 15A-1002 provides that the question of the

capacity to proceed may be raised at “any time,” not just prior

to trial.      Trial counsel’s request for a second hearing at the

close of the State’s evidence is clearly within the purview of

the statute.

    In a similar situation in United States v. Bakker, 925 F.2d

728 (4th Cir. 1991), the trial court adjourned an ongoing trial

after the defendant’s attorney stated “that Bakker was unable to

assist in his own defense due to psychological problems.” Id. at

736. The trial court then held a competency hearing and ordered

Bakker sent to a federal facility for a psychiatric examination.

This happened three days after the beginning of the five-week

trial. Id. at 732, 736. The trial recessed for a week and a

second competency hearing was then held.                At that point, two

expert witnesses testified that Bakker was competent to proceed,

and the trial court ordered the trial resumed.            Id. at 736.

    At    the     close   of   the   State’s    evidence,     Cedric     Brunton

manifested an obvious inability “to comprehend his own situation

in reference to the proceedings, or to assist in his defense in a

rational or reasonable manner.” N.C. Gen. Stat. § 15A-1001(a).                    A

procedure identical to the one resorted to by the trial court in

Bakker   should    have   been   used    to    assess   and   deal     with    the

defendant’s evident mental deterioration. “[A] conviction cannot

stand where defendant lacks capacity to defend himself.”                      Since
                                            18

the    record    shows    that   there      was    substantial    evidence    of   the

defendant’s incompetency confronting the trial court at the close

of    the   State’s       evidence,    and        the   trial   court    refused   to

intervene, the defendant should be granted a new trial.

     3.   Defense counsel provided ineffective assistance of
counsel to the Defendant, Cedric Gene Brunton, by offering the
testimony of prosecuting witness Alexander Sutton, and Officer
Lolita Brown-Chapman.   This was in violation of the Sixth and
Fourteenth Amendments to the United States Constitution and
Article One, § 23, of the North Carolina Constitution.

       T. pp. 197 – 202, 202 – 305

       A. Standard of Review

       “To successfully assert an ineffective assistance of counsel

claim, defendant must satisfy a two-prong test. First, he must

show that counsel's performance fell below an objective standard

of reasonableness.          Second, once defendant satisfies the first

prong, he must show that the error committed was so serious that

a reasonable probability exists that the trial result would have

been different absent the error.”                   State v. Blakeney, 352 N.C.

287, 307, 531 S.E.2d 799, 814 -815 (2000).

     B. Discussion of Facts & Relevant Authority

       Defendant-Appellant           contends       that    the    trial     counsel

committed       crucial     errors     by    calling       Alexander     Sutton    and

Investigator      Brown-Chapman       as    the     defendant’s   only     witnesses.

This “defense” constituted “ineffective assistance of counsel.”
                                        19

Strickland     v.   Washington,   466   U.S.   668,   104   S.   Ct.   2052,   80

L.Ed.2d 674 (1984), and State v. Braswell, 312 N.C. 553, 324

S.E.2d 241 (1985).

       Defendant realizes that most ineffective assistance claims

are properly brought in a Motion for Appropriate Relief rather

than on direct appeal. State v. Jordan, 321 N.C. 714, 719, 365

S.E.2d 617, 620 (1988). However, this case presents the extremely

rare    case    when    counsel’s   “ineffective      assistance”       can    be

litigated on direct appeal because the face of the record on

appeal reveals: (1) that counsel’s performance was deficient as a

matter of law; (2) that there could have been no strategic reason

for counsel’s behavior; and (3) that defendant was irrevocably

prejudiced.     State v. Blakeney, supra.

       The record itself shows not only the existence of major

errors by trial counsel, but also reveals that there could be no

strategic reason for making these errors.               See, Strickland v.

Washington, Id.        (“ineffectiveness” claim requires showing that

trial counsel did not exercise a reasonable tactical judgment).

Moreover, the Defendant-Appellant was irreparably prejudiced by

counsel’s errors.
                                      20

      In this case, trial counsel called only two witnesses on the

defendant’s behalf:       (1) the alleged victim, Alexander Sutton,

and (2) the lead detective, Lolita Brown-Chapman.               Both of these

witnesses had been called by the State during its case-in-chief.

(Sutton, T. pp. 30 – 47; Brown-Chapman, T. pp. 65 – 68)                      Both

were cross-examined by defense counsel. (Sutton, T. pp. 47 - 65;

Brown-Chapman, T. pp. 68 - 77)

      In so doing, defense counsel surrendered defendant’s right

to opening and closing arguments to the jury.              “Rule 10 of the

General Rules of Practice for the Superior and District Courts

states that 'if no evidence is introduced by the defendant, the

right to open and close the argument to the jury shall belong to

him.'"13 State v. Macon, 346 N.C. 109, 113, 484 S.E.2d 538, 540

(1997).     The right to a closing argument is a substantial right,

and   the   defendant    may   not    be   deprived   of   it    by   judicial

discretion. State v. Eury, 317 N.C. 511, 347 S.E.2d 447 (1983),

cert denied 484 U.S. 887, 108 S. Ct. 42 (1987). It is reversible

error not to allow a defendant to have the closing argument when

he has introduced no evidence. State v. Hall, 57 N.C. App. 561,

291 S.E.2d 812 (1982).

      Thus, last argument is a valuable resource and not one to be

surrendered    lightly   or    with   insufficient    reason.         “For   the
                                                           21

practicing attorney, the high point of every trial is the closing

argument…The closing argument gives the attorney the opportunity

to      examine           the       witnesses’             testimony,              the       credibility              of

witnesses,            and      how      to     apply        the      law      in     light        of     the      jury

instructions that the judge will issue.”                                         Irving Joyner, supra,

§11.16.

         Defendant-Appellant                     respectfully                contends             that,         where

defense         counsel         squanders           his      client’s          right       to     last       closing

argument           without          sufficient             reason,          he      commits          ineffective

assistance           of     counsel.              Defendant-Appellant                    further         contends,

that absent a compelling reason apparent in the record mandating

a reason to do so, counsel’s decision to recall the complaining

witness          and        the      lead        investigator               constitutes              ineffective

assistance as a matter of law.

         In this case, defense counsel can think of no reason why

competent counsel would wish to recall the State’s chief civilian

witness/victim                to      the       stand        along         with        the       State’s          lead

investigator.                 Any      questions           counsel         had      for     these        witnesses

during the defense case could have and should have been asked on

cross-examination during the State’s case.                                              Pursuant to North

Carolina’s recently revised discovery laws, N.C. Gen. Stat. §§

15A-901 – 910, “open file” discovery by the State is mandated.




         13
            If the defendant decides not to offer evidence and relies instead upon the weaknesses of the state’s case, the
right to open and close the arguments belongs to the defense.” Irving Joyner, Criminal Procedure in North Carolina,
                                                         22

Defense counsel could hardly claim that he was “surprised” by

anything in the State’s case.                              As a result, any claim that the

State may make that defense counsel was somehow surprised by the

State’s           case     is     ephemeral.            Moreover,           defense          counsel         never

claimed to be surprised by anything during the trial, except his

own client’s bizarre behavior.

         Appellate counsel realizes that he must show not only that

counsel’s performance was deficient as a matter of law, but also

that      defendant          was        irrevocably           prejudiced           thereby        by     defense

counsel’s          decision          to     surrender           his     client’s          right       to     final

closing           argument.             Defendant-Appellant                 has      not     been       able      to

locate any case law exactly on point, but argues this case ought

to be governed by the principles set forth in State v. Eury, Id.

         In Eury, a capital case,14 the trial court prohibited one of

the defendant’s lawyers from addressing the jury during closing

argument.           Our Supreme Court found this to be not only error, but

prejudicial            error        -     despite         the      fact       that       one      could        only

speculate on what the second lawyer would have said to the jury

and whether it would have had any measurable effect on the jury’s

verdict:




2d Ed., § 10.2.
         14
             While the defendant in Eury was charged with firs-degree murder and tried capitally, she was sentenced by
the jury to life imprisonment.
                                            23

       The right to closing argument is a substantial legal
       right of which a defendant may not be deprived by the
       exercise of a judge's discretion… In instant case there
       was strong evidence of defendant's guilt. However, one
       can only speculate as to how the jury would have
       reacted had defendant not been deprived of her
       substantial right to have both counsel make closing
       argument. We, therefore, hold that the ruling of the
       trial judge constituted prejudicial error. Eury, Id at
       517, at 450.

       Defendant-Appellant argues by analogy that a defendant may

not    have     his   substantial       right     to   final       closing     argument

surrendered by the deficient or incompetent actions of counsel;

and, that – even though evidence of the defendant’s guilt is

strong - one can only speculate as to how the jury would have

reacted had defendant not been deprived of his substantial right

to have his counsel make the final closing argument.

       Not only did defense counsel’s decision to recall State’s

witnesses Sutton and Brown-Chapman cost his client final closing

argument, but each witness actively harmed his client’s case.

This harm constitutes “ineffective assistance” separate and apart

from    trial    counsel     surrendering         defendant’s      right     to     final

closing argument.

       Alexander      Sutton,    the    state’s     chief    witness     and      alleged

victim,   was     recalled      and    asked     questions    by    defense       counsel

about: (1) the identity of the “young lady” who first directed

him to the defendant’s house; (2) the nature of the wound he

allegedly     received     from       the   defendant;      (3)    how   the      shotgun

located in his vehicle got there; (4) his criminal record; and,
                                                          24

(5) the defendant’s apparent theory of the case.15 (T. pp. 196 -

202)

         This line of questioning was amazingly ineffective because:

(1) it allowed Sutton to reiterate the major portions of his

earlier         story;         (2)       it     allowed          him       to     garner         sympathy           by

exhibiting           his      wound       to     the      jury;       (3)       it    allowed         Sutton        to

explain that he had no idea how the shotgun got into his trunk,

other than it must have left there by a family member; and, (4)

it allowed him to deny the defendant’s apparent theory of the

case point by point.16

         It is difficult to discern what possible reason, if any,

trial         counsel       may     have       had      for     recalling            Investigator            Brown-

Chapman.          Brown-Chapman did state in response to trial counsel’s

questions:           (1)      that       she      did     not      recall         speaking          to     another

officer at the scene about the location of the shell casings

found by the police; (2) that she did not prematurely formulate

any sort of an analysis about what happened at the scene by

talking to another officer; (3) that although, she was aware that

Alexander Sutton                 was a convicted felon, who had a shotgun in his

trunk, she believed his version of events when Sutton told her he




         15
           Defendant apparently contended that Alexander Sutton came to his house and began kicking his front door.
Defendant told him to leave. Sutton then stated, “You must know who I am,” went to his car, got a gun and returned
to defendant’s porch. Defendant then shot Sutton out of fear that he was about to be killed or injured. (T. pp. 13, -14,
199 – 200, 246)
                                                        25

did not knowingly bring a gun to the scene, and: (4) that she did

not agree with defense counsel’s theory about the effects of

being wounded by a .40 caliber round. (T. pp. 202- 206) None of

what         Investigator            Brown-Chapman              had       to      say       advanced          the

defendant’s case in any way, shape or form; most of it simply

corroborated and bolstered the State’s version of events.

        In addition to depriving defendant of his right to final

closing argument, trial counsel bolstered the State’s version of

events and damaged whatever his theory of the case was.                                                    Trial

counsel’s actions in calling Alexander Sutton and Investigator

Brown-Chapman as the defendant’s only witnesses denied defendant

his right to effective assistance of counsel under both the State

and Federal constitutions.                        This is so because defense counsel’s

actions,         during       the     defendant’s            presentation            of    his      evidence,

were: (1) deficient as a matter of law; (2) were motivated by no

reasonable            strategic           reason;            and      (3)       the       defendant           was

irrevocably prejudiced thereby. State v. Blakeney, supra.

     4.   The trial court committed plain error by failing to
instruct the jury on the lesser included offense of misdemeanor
Assault with a Deadly Weapon. This was in violation of N.C. Gen.
Stat. §§ 15A-1231 and 15A-1237(b), the Sixth and Fourteenth
Amendments to the United States Constitution and Article One, §§
19, 23, 35 and 36 of the North Carolina Constitution.

        T. pp. 216 – 224



        16
           See footnote 15, for defendant’s “apparent theory” of the case. Appellate counsel notes that this was the
defendant’s “apparent theory” of the case because trial counsel deprived a reviewing court of his actual theory of
defense by failing to move that closing argument be recorded in this matter.
                                             26

      A. Standard of Review

      (1)    Jury Instructions – Lesser Included Offenses

      “The     trial    court   is    required          to   submit     lesser    included

degrees of the crime charged in the indictment when and only when

there is evidence of guilt of the lesser degrees. The presence of

such evidence is the determinative factor. Where all the evidence

tends   to   show      that   the    crime      charged      in   the    indictment      was

committed,      and     there   is    no        evidence      tending     to     show   the

commission of a crime of lesser degree, the principle does not

apply and it would be erroneous for the court to charge on the

unsupported lesser degree.” State v. Simpson, 299 N.C. 377, 381,

261 S.E.2d 661, 663 (1980). (citations omitted) “Where there is

conflicting evidence as to an essential element of the crime

charged, the court should instruct the jury with regard to any

lesser included offense supported by any version of the evidence.

If the lesser included offense is not supported by the evidence,

it should not be submitted, regardless of conflicting evidence.”

State v. Nelson, 341 N.C. 695, 697, 462 S.E.2d 225, 226 (1995).

      “No party may 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
                                               27

presence of the jury.” State v. Odom, 307 N.C. 655, 659, 300

S.E.2d 375, 378 (1983).

       (2)    “Plain Error”

       This assignment of error may be subject to “plain error”

analysis.”        Under        the    “plain    error”     doctrine       a   defendant   is

entitled to relief whenever 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" or where 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,
       Id. at 660, at 378 (1983).

  B. Discussion of Facts & Relevant Authority

       1. The necessity for an instruction on a misdemeanor Assault
          With a Deadly Weapon, a lesser-included offense.

       At the close of all the evidence in the first phase of this

trial, a jury instruction conference was held as required by N.C.

Gen. Stat. § 15A – 1231(b). With respect to the charge of Assault

With    a    Deadly   Weapon         With   Intent    to     Kill    Inflicting     Serious

Injury      (Count    I   of    the    indictment     in     05     CRS   50219),   defense

counsel orally requested that the trial court instruct the jury

on the lesser-included offense of Assault With a Deadly Weapon

Inflicting      Serious        Injury.         The   trial    court       granted   defense

counsel’s request. (T. p. 219) The record reveals that defense
                                         28

counsel failed to move the trial court, orally or in writing, to

instruct on the lesser included of misdemeanor Assault With a

Deadly Weapon.      (T. pp. 208 – 213)                 Trial counsel failed to

object to the trial court’s charge prior to jury deliberations.

(T. p.     224 - 225)

    Defendant-Appellant contends that the trial court committed

prejudicial    error,     and   in    the     alternative      “plain    error”      by

failing to instruct the jury on the lesser included assault with

a deadly weapon. Defendant-Appellant further contends that the

determination of whether of not Alexander Sutton’s arm injury was

“serious” should have been resolved by the jury.

    The     elements     of   assault   with     a    deadly    weapon   inflicting

serious injury are "(1) an assault (2) with a deadly weapon (3)

inflicting serious injury (4) not resulting in death." State v.

Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990); see also

N.C. Gen. Stat. § 14-32(b). (2004). Assault with a deadly weapon

is a lesser-included offense of assault with a deadly weapon

inflicting serious injury. See State v. Owens, 65 N.C. App. 107,

110, 308 S.E.2d 494, 497 (1983) and N.C. Gen. Stat. § 14-33(c)

(1)(2004).

    "The term 'serious injury' as employed in N.C. Gen. Stat. §

14-32(a)    means   physical     or     bodily       injury    resulting     from    an

assault with a deadly weapon. Whether serious injury has been

inflicted    must   be    determined     according       to    the   facts    of    the
                                      29

particular case." State v. James, 321 N.C. 676, 688, 365 S.E.2d

579, 586-87 (1988); see also State v. Wood, 126 N.C. App. 581,

592, 486 S.E.2d 255, 261 (1997). "Pertinent factors" to consider

when    determining    whether    an       injury     was    serious      include

"hospitalization,     pain,   blood    loss,   and    time    lost   at   work.”

State v. Wood, Id., at 592, at 261.

       Defendant-Appellant    contends     that     the   undisputed   evidence

shows the following about Alexander Sutton’s injury:

            1. A gunshot hit Sutton in the arm and passed
       through it. (T. p. 35, 38)

            2. He bled as a result, but was able to flee to
       the “Six Churches” area of Kinston. (T. p. 38)

            3. After EMT’s    arrived at Sutton’s location, they
       were able to stop      the bleeding to Sutton’s arm by
       applying pressure to   the wound. As stated by Sutton, “I
       had a little bandage    on me to stop the flow of blood.”
       (T. p. 59)

            4. Before going to the Lenoir Memorial Hospital
       Emergency Room, Sutton returned to the area of the
       defendant’s house in an ambulance. He alertly noticed
       that his car had been moved from the driveway to the
       street. (T. pp. 43 - 44)

            5. The ambulance then took Sutton to the Emergency
       Room where he was treated and released after a “few
       hours.” (T. pp. 60 - 61)

            6. While at the Emergency Room, Sutton was
       interviewed by an officer – who found him alert and
       talkative. (T. pp. 66 - 67)

            7. After, being released from the ER, Sutton
       returned to the scene, retrieved his vehicle and drove
       it home.
                                      30

    Absent from Sutton’s account was any statement’s concerning

his level or pain and suffering.             No other witness testified

about his or her observations about Sutton’s physical condition,

except Investigator Brown-Chapman – who found Sutton “alert and

talkative” while lying in bed in the ER. (T. p. 66) While Sutton

suffered   some   blood   loss,    EMT’s   stopped   the   blood   loss   with

pressure and “a little bandage.” (T. p. 59) Sutton failed to

testify that he lost time at either school or work.

    The necessity for instructing the jury as to an included

crime of lesser degree than that charged arises when there is

evidence from which the jury could find that such included crime

of lesser degree was committed. The presence of such evidence is

the determinative factor.         State v. Williams,       31 N.C. App. 111,

228 S.E.2d 668 (1976). Whether or not an injury may be said to be

“serious” within the meaning of the statute depends upon its

severity and the painful effect it may have had on the victim.

This is an issue for the jury to determine upon the particular

facts of each case.        State v. Everhart, 96 N.C. App. 1, 384

S.E.2d 562 (1989), aff’d 326 N.C. 777, 392 S.E.2d 391 (1990).

    In State v. Jones, 258 N.C. 89, 128 S.E.2d 1 (1962), the

victim suffered the following injuries:

         The prosecuting witness was shot in the back and
    arm with a .410 shotgun, loaded with bird shot. He went
    to the hospital where 17 shot were removed. Whether the
    shot were removed by a knife, tweezers, or the finger
    nails, is undisclosed. How deep the shot penetrated
    into the flesh after passing through the clothing;
                                                         31

         whether the witness remained in the hospital half an
         hour,   overnight, or   a   week, are  matters   also
         undisclosed. Id. at 89, at 3.

In Jones, our Supreme Court held that this evidence raised an

issue as to whether or not the victim had suffered a “serious

injury,” and further held that this question must be decided by a

“properly instructed jury.” Id. at 89, at 3. A similar result was

arrived at in State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626

(1964), with respect to a “whiplash injury.”

         Defendant-Appellant recognizes that this Court has held that

when the evidence is not conflicting on the fact of whether a

serious         injury        has      occurred,          then       the      trial       court       need       not

instruct on the lesser-included offense. State v. Pettiford, 60

N.C.          App.     92,      298       S.E.2d         389       (1982).          Defendant-Appellant

contends, however, that in this case there was enough evidence,

depending upon how one interprets that evidence, to instruct on

the lesser-included offense of Assault With a Deadly Weapon.

         Defendant-Appellant                  maintains           that       the      necessity           for      an

instruction on the lesser-included offense was heightened in this

case for two reasons. First, the trial court did not give the

general definition of "serious injury" prescribed by the pattern

jury instructions.17 (T. p. 219) Second, our appellate courts have



         17
            N.C.P.I. -- Crim. 120.12 defines serious Injury as “such injury as causes great pain and suffering.” Our
Supreme Court has stated: “The term 'inflicts serious injury' means physical or bodily injury resulting from an assault
with a deadly weapon with intent to kill. The injury must be serious but it must fall short of causing death. Further
definition seems neither wise nor desirable. Whether such serious injury has been inflicted must be determined
according to the particular facts of each case." State v. Ferguson, Id at 560, at 627 - 628.
                                             32

purposefully left the definition of "serious injury" open for

broad   interpretation          by    juries.       Defendant-Appellant           maintains

that the definition of "serious injury" has been left amorphous

and undelineated precisely because this is the kind of decision

particularly        suited     for   a     jury,    which    will      employ   community

standards      as   to   whether      the    evidence       in   any    particular       case

supports such a finding. "In 'borderline’ or close cases, our

courts have consistently expressed a preference for submitting

issues to the jury." State v. Hamilton, 77 N.C. App. 506, 512,

335   S.E.2d    506,     510    (1985),      cert.    denied,     315    N.C.     593,    341

S.E.2d 33 (1986). Defendant-Appellant contends this is one of

those cases.

      2. It was “plain error” for the trial court not to instruct
         on the lesser-included offense of misdemeanor Assault
         With a Deadly Weapon.

      Defendant-Appellant            is     mindful     of       the    admonitions        of

N.C.G.S. 15A-1231(b) concerning jury instructions ("any party may

tender written instructions."), and Rule 21 of the General Rules

of Practice for the Superior and District Courts ("If special

instructions are desired, they should be submitted in writing to

the trial judge at or before the jury instruction conference.")

See also, State v. McNeill, 346 N.C. 233, 485 S.E.2d 284 (1996).

Defendant-Appellant concedes that trial counsel did not tender a

written   instruction          to    the    trial    court       as    required    by     the
                                             33

foregoing     authorities,        nor   did       he    make    an     oral      request     for

misdemeanor Assault With a Deadly Weapon.                        Additionally, defense

counsel failed to object to the trial court’s instructions as

required by North Carolina Rule of Appellate Procedure 10(b)(2)

and   State      v.   Odom,      Id.         Nevertheless,           Defendant-Appellant

contends that he may avail himself of the “plain error” doctrine

created     by     Odom.        This    is    so       because       the       trial    court’s

“instructional error” in this matter had “a probable impact on

the jury’s finding that the defendant was guilty.” Odom at 660,

at 378.

      In determining whether “plain error” has been committed, an

appellate court must examine the entire record to determine if

that error had a probable impact on the jury. State v. Ewell, 168

N.C. App. 98, 606 S.E.2d 914 (2005). Defendant-Appellant contends

that the failure of the trial court to instruct on the lesser-

included    offense        of   misdemeanor       Assault       With       a   Deadly    was   a

denial of fundamental right belonging to him and worked a grave

injustice     in    this    case.       Examination        of    the       “entire      record”

reveals that:

           1. Although suffering a gunshot wound, the bullet
      completely   passed   through   Sutton’s  arm  without
      additional injury. (T. p. 35, 38)

           2. Blood loss was apparently minimal, and                                   was
      easily stopped by “a little bandage.” (T. p. 59)

           3. Sutton was taken to the Emergency Room, where
      he was treated and released after a “few hours.”  (T.
      pp. 60 - 61)
                               34


         4. While at the Emergency Room, Sutton was
    interviewed by an officer – who found him alert and
    talkative. (T. pp. 66 - 67)

         5. After, being released from the ER, Sutton
    returned to the scene, retrieved his vehicle and drove
    it home.

         6. Absent from Sutton’s account of the vents in
    question, was any statement’s from Sutton concerning
    his level or pain and suffering.

         7. No other witness testified about his or her
    observations about Sutton’s physical condition, except
    Investigator Brown-Chapman – who found Sutton lying in
    bed but alert and talkative. (T. p. 66)

         8. Sutton failed to testify that he lost time at
    school or work.

As a result, Defendant-Appellant respectfully contends that he

has met the “plain error” standard and is therefore, entitled to

a new trial with respect to Count I of the indictment in 05 CRS

50219.
                                  35

                            CONCLUSION

    For all the foregoing reasons, defendant respectfully

contends that he entitled to:

    1.   Dismissal of Count II of the indictment in 05 CRS 50219,

Discharging a Firearm Into Occupied Property.

    2.   A new trial with respect to all other charges.

    Respectfully submitted this the 20th day of March, 2006.




                                       ELECTRONICALLY SUBMITTED_____
                                       Paul F. Herzog, Esq.
                                       Attorney-at-Law
                                       210 E. Russell St., #101
                                       Fayetteville, NC 28301
                                       Telephone: 910-483-9500
                                       Fax: 910-483-9524
                                       paulfherzog@hotmail.com

                                       ATTORNEY FOR DEFENDANT


                CERTIFICATE OF FILING AND SERVICE

     I hereby certify that the original Defendant-Appellant’s
Brief has been filed electronically pursuant to Rule 26.

     I further hereby certify that a copy of the above and
foregoing Defendant-Appellant’s Brief has been duly served upon
Ms. Angel E. Gray, Assistant Attorney General, John Umstead
Hospital, 1003 12th Street, Butner, North Carolina 27509, by
first-class mail, postage prepaid.

                   This the 20th day of March, 2006.



                                ELECTRONICALLY SUBMITTED_________
                                Paul F. Herzog
                                Attorney at Law
                                36

                              APPENDIX


Ronald Smothers, Judge Says Bakker Can Stand Trial, N.Y. Times,
Sept. 7, 1989

http://query.nytimes.com/gst/fullpage.html?sec=health&res=950DE6D
9133CF934A3575AC0A96F948260
                                                    37




September 7, 1989


JUDGE SAYS BAKKER CAN STAND TRIAL
By RONALD SMOTHERS, SPECIAL TO THE NEW YORK TIMES

       A Federal judge ruled today that Jim Bakker was competent to stand trial after a
psychiatrist testified that ''a panic attack'' and not any permanently debilitating mental disorder or
psychosis gripped the former television evangelist last week.
        ''Our evaluation did not find Mr. Bakker suffering from severe mental disease or defect,''
said the psychiatrist, Dr. Sally Johnson. ''What we did see was that he was involved in a life
circumstance and problem that has serious implications for him and the stress of that brought him
to our doorstep.'' Found Cowering on Floor
        Dr. Johnson is chief of psychiatry at the Butner Federal Correctional Institute, where Mr.
Bakker was committed for psychiatric testing last week after his lawyer reported finding the
television minister hallucinating and cowering on his office floor.
       Pending the result of the evaluations, Federal District Judge Robert Potter had suspended
Mr. Bakker's trial on 24 charges of fraud and conspiracy in connection with the now-defunct PTL
ministry that he founded. Mr. Bakker resigned from the ministry in 1987 amid a sex and money
scandal.
       After the psychiatrist's testimony at a two-hour hearing this morning, Judge Potter asked
Mr. Bakker, who was brought to court in leg irons and handcuffs, to rise. The judge asked Mr.
Bakker whether he understood what was going on and whether he felt he could assist his lawyers.
To each question, the 49-year-old defendant answered ''yes sir.''
       Asked if he could go on, Mr. Bakker added in subdued tones:
       ''I'm very tired but I believe I can do that.''
      Testimony then resumed in the trial that came to a dramatic halt five days ago, when Mr.
Bakker had been taken from the courthouse in shackles and leg irons. Tammy Bakker Appears
       Dr. Basil Jackson of Milwaukee, a psychiatrist who is a family friend, told the judge that
day, outside the jury's presence, that Mr. Bakker believed that people gathered outside the
courthouse took on the form of animals intent on attacking and destroying him.
        Today, making her first appearance at the courthouse, Mr. Bakker's wife, Tammy Faye,
strode through a phalanx of television cameras before the day's hearings carrying fresh clothing
for her husband.
        Asked about her Mr. Bakker's condition, she shouted: ''I don't know. That's what I am here
to find out.''
                                                 38

        Later, when testimony in the trial resumed, four former employees of PTL and its 2,300-
acre Heritage USA theme park, told of their hurt and frustration as they watched the ministry
collect money from thousands of followers but not keep many of their promises to the
contributors.
        Mr. Bakker is on trial for wire and mail fraud and conspiracy in connection with the sale of
tens of millions of dollars in ''lifetime partnerships'' in the ministry. Each partnership cost $1,000
and guaranteed the buyer three free nights' lodging each year for life at the theme park in Fort
Mills, S. C., 12 miles south of here. Charged With Bilking Ministry
       The Government charges that the ministry never built enough lodging to support the
arrangement and that Mr. Bakker and some close aides diverted more than $4 million of the $158
million in proceeds for bonuses and the maintenance of lavish life styles.
        Two of those aides were found guilty in a trial that ended last month and a third pleaded
guilty to the charges. All are scheduled to testify for the Government in Mr. Bakker's trial.
        Dr. Johnson, the psychiatrist who testified today, said Mr. Bakker's condition was brought
on by an episode last Wednesday when Steve Nelson, a former PTL vice president, collapsed on
the stand while being cross-examined. Dr. Johnson said that Mr. Bakker had ''mixed feelings''
about Mr. Nelson, a former friend who he felt was lying about events covered in the indictment.
Mr. Bakker wanted Mr. Nelson to ''just go away,'' the doctor quoted him as saying, and suddenly
got his wish when the witness collapsed. Mr. Nelson returned the next day and said he felt fine.
       ''It was very frightening to him and he said that that night for the first time in three years
his whole situation came clear to him and he started to cry and release powerful emotions,'' Dr.
Johnson said.
        After that episode, Dr. Johnson said, Mr. Bakker told of getting a mild sedative from Dr.
Jackson, the family friend, to help him sleep. But the next day, as Mr. Bakker prepared to go to
court, he was found cowering in a fetal position and shortly after that perceived the reporters
outside the courthouse as animals. 'Large Ants With Antennae'
        ''He described them as being like large ants with antennae,'' she said, claiming that the
earphones worn by some of the television technicians could give that impression. ''He did not lose
sight of the fact that they were the press so I did not label that a hallucination.''
         She said that all of these things coming together had precipitated a panic attack. Mr.
Bakker was not ''faking it'' she said, but added that those around him ''inadvertently fueled his
panic'' rather than assuring him that things would be all right.
       She said she thought it unlikely that such an attack would recur because the same set of
circumstances were not likely to be repeated.

				
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