State v. Pettiford, 8215SC452

• Decision Date: 21 December 1982
• Docket Number: No. 8215SC452,8215SC452
• Citation: 60 N.C.App. 92,298 S.E.2d 389
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Andre Rush PETTIFORD.

Page 389

298 S.E.2d 389

60 N.C.App. 92

STATE of North Carolina v.Andre Rush PETTIFORD.

No. 8215SC452.

Court of Appeals of North Carolina.

Dec. 21, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender James H. Gold, Raleigh, for defendant.

WELLS, Judge.

The evidence for the State tended to show that during the course of an argument, defendant shot Lanny Watkins at close range in the face with a handgun--a small caliber pistol.Watkins was treated by Dr. Craig Price, who testified that he removed a metallic fragment which he believed to be a bullet from the frontal sinus area of Watkins' skull.Dr. Price testified that Watkins had a small entry wound with a large bruise on his eyebrow; that he found no powder burns on Watkins; that Watkins never lost consciousness and remained fully lucid up to the time of his treatment; and that Watkins suffered no impairment as a result of the injury.Watkins testified that he was hospitalized for ten days as a result of his injury.

Defendant's evidence was that the gun he pointed at Watkins was a .38 caliber pellet gun.

By his first assignment of error, defendant contends that the trial court erred in instructing the jury that "a bullet wound to the head with the bullet lodging in the head is a serious injury."Defendant argues that the question of whether an injury is serious is for the jury and that, by its instruction, the trial court kept that question from the jury.The dispositive issue raised by defendant's argument is whether in all cases such as the one now before us, the determination of whether an injury is serious must be resolved by the jury, on the facts of each case.Previous decisions of our appellate courts disclose substantially conflicting answers to this question.The issue may arise as follows: one, is there sufficient evidence to bring the case to the jury on the issue of serious injury; two, does the evidence justify submitting a lesser-included offense of assault, without the element of serious injury; and three, does the evidence allow a peremptory instruction on the element of serious injury.The underlying question is the same: whether a jury issue has been raised by the evidence as to the degree or nature of the injury inflicted.

The cases where the question was taken from the jury follow.

In State v. Daniels, 59 N.C.App. 63, 295 S.E.2d 508(1982) the victim was shot twice in the upper part of his body with a .32 caliber pistol, was hospitalized for 21 days, required surgery to remove one bullet, the other bullet remaining in the victim's body near the spine.Defendant offered no evidence as to the victim's injuries.The trial judge gave a peremptory instruction.In upholding a peremptory instruction we held that "... the evidence of ... injuries was uncontradicted, and [the] injuries were obviously serious.Although the instructions were erroneous, there was no prejudicial error because no reasonable trier of fact could have found that there was no serious injury."

In State v. Pugh, 48 N.C.App. 175, 268 S.E.2d 242(1980), the victim was stabbed in the breast and upper arm with a large butcher knife.We found no error in the trial court's refusing to submit to the jury the lesser included offense of assault with a deadly weapon, holding that defendant"inflicted serious bodily injury."

In State v. Davis, 33 N.C.App. 262, 234 S.E.2d 762(1977), ¹ the victim was struck in the back of the head, required surgery, was hospitalized for nine days, and had medical and hospital bills totaling $16,080.00.The trial judge gave a peremptory instruction and refused to submit the lesser included offense of assault with a deadly weapon.In finding no error, we held that "... Where, as in the case at bar, the State's evidence ... is uncontradicted and the injuries could not conceivably be considered anything but serious," then the trial court may give a peremptory instruction and should not submit the lesser included offense to the jury.

In State v. Springs, 33 N.C.App. 61, 234 S.E.2d 193, disc. rev. denied, 293 N.C. 163, 236 S.E.2d 707(1977), ² the victim was shot in the chest with a shotgun at close range, was unconscious for three days, was hospitalized for eight days, and lost two ribs and a lung.In upholding the trial court's peremptory instruction as to the serious nature of the injuries, we emphasized that the evidence as to injuries was "uncontradicted."

For other cases of similar import, seeState v. Williams, 31 N.C.App. 111, 228 S.E.2d 668, disc. rev. denied, 291 N.C. 450, 230 S.E.2d 767(1976);State v. Turner, 21 N.C.App. 608, 205 S.E.2d 628, appeal dismissed, 285 N.C. 668, 207 S.E.2d 751(1974);State v. Brown, 21 N.C.App. 552, 204 S.E.2d 861(1974).

The cases which have held that the issue of serious injury should be answered by the jury follow.

The leading case in this category seems to be State v. Jones, 258 N.C. 89, 128 S.E.2d 1(1962).In Jones, the victim was shot in the back and arm with a shotgun.The trial court gave the following instruction:

"I instruct you in this case if you find beyond a reasonable doubt the assault was made with a gun under such circumstances as calculated to create a breach of the peace that would outrage the sensibilities of the community, it would be an assault with a deadly weapon inflicting serious injury."

In holding that instruction to be such error as to require a new trial, Justice Higgins, writing for the court, said:

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.

Whether the assault is calculated to create a breach of the peace that would outrage the sensibilities of the community does not adequately or correctly describe the infliction of serious injury contemplated by G.S. 14-32.A simple assault committed by a prizefighter upon a cripple at a Legion convention may be calculated to create a breach of the peace that would outrage the sensibilities of the community.The instruction given by the court does not properly define the serious injury contemplated by the statute under which the indictment was drawn.The court did not give any other definition.

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; whether the witness remained in the hospital half an hour, overnight, or a week, are matters also undisclosed.

The evidence is sufficient to go to the jury on the question of serious injury, but the jury must make the finding under a correct charge.

Jones was relied on by our Supreme Court in State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626(1964), where the Court held that evidence of an automobile-related "whiplash" injury was sufficient to take the case to the jury on the element of serious injury.

Ferguson and Jones were relied on by the Court in State v. Joyner, 295 N.C. 55, 243 S.E.2d 367(1978), in holding that the injuries inflicted in the victim's rectum by insertion of a soft drink bottle were sufficient to take the case to the jury on the element of serious injury.The Court's opinion in Joyner included dicta, however, to the effect that whether serious injury has been inflicted must be determined according to the facts of each particular case, again citing Ferguson and Jones.See alsoState v. Boone, --- N.C. ---, 297 S.E.2d 585.

Ferguson and Jones were relied on by this Court in State v. Rotenberry, 54 N.C.App. 504, 284 S.E.2d 197(1981), cert. denied, 305 N.C. 306, 290 S.E.2d 705(1982), another shotgun incident, where the victim was...