The charge of “attempted assault with a deadly weapon inflicting serious injury” – an awkward mashup of seemingly incongruous terms – is now recognized as a felony offense in North Carolina.
The development occurred in the case of Corey Floyd, who pleaded guilty to the unusual charge after he was spotted carrying a sawed-off shotgun in his pants and ran from police, tossing the gun during the chase.
Two years later, when Floyd was arrested again on a gun charge, his earlier attempted assault conviction formed the basis of his indictment for possession of a firearm by a convicted felon and attaining habitual felon status.
On appeal, Floyd argued that North Carolina does not recognize attempted assault with a deadly weapon as a crime – and the Court of Appeals agreed in a unanimous decision. The court held that an attempt is an inherent part of an assault, which means that the charge essentially described an “attempt to attempt.”
But the issue divided the state Supreme Court, where Assistant Attorney General Joseph Hyde contended that the lower court had based its decision on an “overly narrow definition of assault.” His argument spurred the high court to reverse the Court of Appeals in a 2-1 decision that recognized the charge’s validity under the common law “show-of-violence rule.”
“Our jurisprudence regarding the show-of-violence rule appears to have evolved from early cases in which a person caused another to flee, leave a place sooner than desired, or otherwise alter course through the threatened use of a weapon,” Justice Barbara Jackson wrote in the court’s Dec. 21 opinion.
She reached back to an 1879 case, State v. Shipman, in which a defendant was convicted of assault for holding a knife while threatening another man, who fled. Jackson added that the rule “does not involve an attempt to cause injury to another person, but is based upon a violent act or threat that causes fear in another person.”
George Laughrun, a Charlotte criminal defense lawyer who reviewed the opinion at Lawyers Weekly’s request, said he was surprised that the court did not consider Floyd’s appeal through the lens of the state common law offense of going armed to the terror of the public, which is a misdemeanor. He referenced a case in which a gun-wielding man who boarded a bus was charged under the same common law theory.
“That almost sounds like what this was,” he added. “But an attempt at an attempt at something … that’s really stretching. Where do you get the serious injury part? I can understand where you shot at somebody and missed. There’s an attempt to inflict serious injury because I’m shooting at you.”
In a separate concurring opinion, Justice Paul Newby emphasized that the statutory definition of assault refers to a “completed battery,” therefore a defendant who intends to commit an assault with a deadly weapon but is unsuccessful would still be guilty of the attempt.
But Justice Cheri Beasley disagreed, contending in her dissent that the “show-of-violence theory of assault cannot be logically extended to an inchoate crime – namely, an attempt.” She added that a “show of violence causing someone to reasonably fear an injury is something less than even attempting to injure.”
“Therefore,” she wrote, “I would conclude that attempted assault with a deadly weapon inflicting serious injury is not a crime in North Carolina.”
While the court could not agree on whether to recognize attempted assault, the panel reached a consensus on a second issue in Floyd’s appeal that centered on whether his rights had been violated because his trial lawyer allegedly refused to ask a police detective certain questions that Floyd wanted answered during cross examination.
The Court of Appeals found that the trial judge failed to properly address the impasse between Floyd and his lawyer, violating Floyd’s constitutional right to control the nature of his defense. But the Supreme Court determined that the record was insufficient to affirm the lower court’s determination that Floyd was entitled to a new trial.
Floyd’s appellate attorney, Marilyn Ozer of Chapel Hill, was unavailable for an interview and a spokeswoman for the state Attorney General’s Office declined to discuss the case.
The 33-page opinion is State v. Floyd (Lawyers Weekly No. 010-007-17). An opinion digest is available at nclawyersweekly.com.