State v. Brindle

311 S.E.2d 692 (1984)

STATE of North Carolina v. Larry BRINDLE.

No. 8319SC836.

Court of Appeals of North Carolina.

February 21, 1984.

*693 Atty. Gen. Rufus L. Edmisten by Ann Reed, Sp. Deputy Atty. Gen., Raleigh, for the State.

Dozier, Brackett, Miller, Pollard & Murphy by Richard S. Gordon, Charlotte, for defendant-appellant.

VAUGHN, Chief Judge.

Defendant contends that he was denied effective assistance of counsel and, thus, due process of law. Defendant alleges, first, that his counsel's 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's contentions.

Sheila Christie testified that defendant shot Ray Anderson. In response to the prosecutor's question whether defendant aimed the gun before shooting, Ms. Christie testified, "I'd say so." Defendant argues that this response was an opinion which should have been objected to by defense counsel. We disagree. Ms. Christie's 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).

As to defendant's 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).

Counsel's 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's claims are not *694 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).

Defendant 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's charge. See State v. Hearns, supra.

No error.

WEBB and JOHNSON, JJ., concur.