Criminal Practice – Assault with a Deadly Weapon with Intent to Kill Inflicting Serious Injury – First Impression – Lesser Included Offense – Simple Assault – Serious Injury Element – Jury Instructions – Self-Defense – Constitutional – Attorneys – Ineffective Assistance Claim

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State v. Hope (Lawyers Weekly No. 12-07-1133, 20 pp.) (Donna S. Stroud, J.) Appealed from Randolph County Superior Court (V. Bradford Long, J.) N.C. App.

Holding: Even though it was up to the jury to decide whether the pipe defendant used in the assault was actually a deadly weapon, since the state presented uncontroverted evidence of serious injury, defendant was not entitled to a jury instruction on simple assault.

We find no error in defendant’s conviction of assault with a deadly weapon with intent to kill inflicting serious injury.

The trial court correctly refused to give N.C. Pattern Jury Instruction Crim. 308.40 on self-defense since it does not explain how the self-defense claim relates to the jury’s findings on the deadliness of the weapon.

By contrast, instruction 308.45 explains the relationship between the jury’s finding on the deadly weapon element and self-defense. The trial court gave defendant a choice between 308.45 and no self-defense instruction at all. Defense counsel chose to have no self-defense instruction given. Therefore, any error in the trial court’s failure to give the 308.45 instruction was invited error. Defendant has thus waived appellate review concerning this alleged error.

Even if – in declining to have the 308.45 instruction given – defense counsel’s representation of defendant fell below an objective standard of reasonableness, there was overwhelming evidence of defendant’s guilt, including the seriousness of the victim’s injuries. The only evidence favorable to defendant was his statement to the police that he body-slammed the victim after the victim hit him in the mouth and in the leg and that defendant had an old scab on his leg where he claimed the victim hit him with the pipe. This evidence formed the whole basis of defendant’s self-defense claim. Given the overwhelming evidence against defendant, there is no reasonable probability that, but for trial counsel’s error, the result would have been different.