State v. Floyd
| Decision Date | 21 December 2016 |
| Docket Number | No. 474PA14,474PA14 |
| Parties | STATE of North Carolina v. Corey Deon FLOYD |
| Court | North Carolina Supreme Court |
369 N.C. 329
794 S.E.2d 460
STATE of North Carolina
v.
Corey Deon FLOYD
No. 474PA14
Supreme Court of North Carolina.
Filed December 21, 2016
Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State-appellant.
Marilyn G. Ozer, Chapel Hill, for defendant-appellee.
JACKSON, Justice.
In this case we consider whether a prior conviction for "attempted assault with a deadly weapon inflicting serious injury" can support later charges for possession of a firearm by a convicted felon and attaining habitual felon status. We also consider whether defendant is entitled to a new trial on the basis that the trial court failed to act appropriately to address an impasse between defendant and his attorney concerning the questioning of a prosecution witness on cross-examination. We answer
the first inquiry in the affirmative. As to the second, we vacate the Court of Appeals’ opinion and remand for entry of an order dismissing defendant's appeal without prejudice to his right to file a motion for appropriate relief.
On 16 October 2008, Kinston police received information that a man was "hanging" in a specific area of town while "carrying around" a "sawed-off shotgun ... in his pants." Upon reaching the scene and seeing the man—whom one of the officers recognized as defendant—officers began chasing him. Detective Robbie Braswell, who was directly behind defendant, observed defendant pull a shotgun from the waistband of his pants and throw it over a fence into a yard. Detective Braswell stopped chasing defendant and secured the weapon.
Defendant was arrested approximately two years later. On 31 January 2011, defendant was indicted for possession of a firearm by a convicted felon, possession of a weapon of mass destruction, and attaining habitual felon status. The indictment for possession of a firearm by a convicted felon listed the underlying felony as "N.C.G.S. 14[-]32(a) Attempted Assault With a Deadly Weapon Inflicting Serious Injury," with defendant having "pled guilty on December 5, 2005," for which he was "sentenced to 25-30 months in the North Carolina Department of Corrections."1 This conviction also was listed in the habitual felon indictment as one of the three prior felony offenses required to support a finding of habitual felon status. Defendant pleaded not guilty to all charges.
The case proceeded to trial in October 2013. The State submitted a copy of the 5 December 2005 judgment showing the prior conviction
for attempted assault with a deadly weapon inflicting serious injury. At the close of the State's evidence, defendant moved to dismiss the possession of a firearm by a convicted felon charge for insufficiency of the evidence on grounds that the underlying felony conviction listed in the indictment as the basis for this charge, attempted assault with a deadly weapon, is not a recognized crime in North Carolina. In addition to the 5 December 2005 judgment, the State submitted copies of two other prior felony conviction judgments in support of the habitual felon charge. Defendant moved to dismiss the habitual felon charge on the same grounds, asserting that the 5 December 2005 felony conviction is invalid. The trial court denied both motions. The jury found defendant guilty of possession of a weapon of mass destruction, possession of a firearm by a
convicted felon, and attaining habitual felon status. The trial court sentenced defendant to two concurrent terms of 151 to 191 months of imprisonment.
Defendant appealed. In a unanimous decision, the Court of Appeals concluded that "attempted assault is not a recognized criminal offense in North Carolina" and therefore that defendant's 2005 conviction for attempted assault with a deadly weapon inflicting serious injury could not support the convictions for possession of a firearm by a convicted felon and attaining habitual felon status. Floyd , 238 N.C.App. at 115, 766 S.E.2d at 366. In pertinent part, the court reasoned:
In State v. Currence , 14 N.C.App. 263, 188 S.E.2d 10, cert. denied , 281 N.C. 315, 188 S.E.2d 898–99 [ (1972) ], we ... not[ed] that an assault consists of "an overt act or attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another." Id. at 265, 188 S.E.2d at 12 (quoting State v. Roberts , 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967) ). As a result, since the effect of an attempted assault verdict was to find the defendant guilty of an "attempt to attempt" and since "[o]ne cannot be indicted for an attempt to commit a crime where the crime attempted is in its very nature an attempt," id. we held that an attempted assault is simply not a recognized criminal offense in this jurisdiction.
Floyd , 238 N.C.App. at 114, 766 S.E.2d at 366 (second alteration in original). Accordingly, the court held that the trial court erred by denying defendant's motions to dismiss the charges of possession of a firearm by a convicted felon and attaining habitual felon status. Id . at 127, 766 S.E.2d at 374.
Turning to the remaining charge of possession of a weapon of mass destruction, the Court of Appeals concluded that the trial court failed to identify and properly address an impasse that arose between defendant and his trial counsel. The Court of Appeals determined that this failure violated defendant's constitutional right to control the nature of his defense and therefore granted defendant a new trial on this charge. Id . at 127–28, 766 S.E.2d at 374. The State filed a petition for discretionary review, which we allowed on 9 April 2015.
In its appeal the State argues that the Court of Appeals’ conclusion that attempted assault is not a recognized criminal offense in North Carolina was based upon an overly narrow definition of assault. As a result, the State contends that the Court of Appeals incorrectly held that defendant's 2005 conviction for attempted assault with a deadly weapon inflicting serious injury could not support the convictions for possession of a firearm by a convicted felon and attaining habitual felon status. We agree.
The offense of possession of a firearm by a convicted felon has two essential elements: (1) the defendant has been convicted of a felony, and (2) the defendant subsequently possessed a firearm. N.C.G.S. § 14-415.1(a) (2015). A person may be charged with attaining habitual felon status when he or she "has been convicted or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof." Id . § 14-7.1 (2015). In this case the State relied upon defendant's 2005 conviction for attempted assault with a deadly weapon inflicting serious injury to support charges against him pursuant to these statutes. Accordingly, the validity of defendant's convictions depends upon whether attempted assault with a deadly weapon inflicting serious injury is recognized as a criminal offense pursuant to our current law.
"The two elements of an attempt to commit a crime are: (1) An intent to commit it, and (2) an overt act done for that purpose, going beyond mere preparation, but falling short of the completed offense." State v. Powell , 277 N.C. 672, 678, 178 S.E.2d 417, 421 (1971) (citations omitted). An attempt crime "is punishable under the next lower classification as the offense which the offender attempted to commit." N.C.G.S. § 14-2.5 (2015). As a logical matter, these principles may be applied to the offense of assault with a deadly weapon inflicting serious injury in a straightforward fashion. A person who intends to "assault[ ] another person with a deadly weapon and inflict[ ] serious injury," and who does an overt act for that purpose
going beyond mere preparation, but who
ultimately fails to complete all the elements of this offense—for example, by failing to inflict a serious injury—would be guilty of the attempt rather than the completed offense. N.C.G.S. § 14-32(b).
In Currence our Court of Appeals highlighted a different consideration: this Court has indicated that a person "cannot be indicted for an attempt to commit a crime where the crime attempted is in its very nature an attempt." 14 N.C.App. at 265, 188 S.E.2d at 12 (quoting State v. Hewett , 158 N.C. 627, 629, 74 S.E. 356, 357 (1912) ). The court stated that
assault is generally defined as "an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm."
Id. at 265, 188 S.E.2d at 12 (quoting Roberts , 270 N.C. at 658, 155 S.E.2d at 305 ). The court then reasoned that attempted assault amounted to "an attempt to attempt." Id. at 265, 188 S.E.2d at 12 (quotation marks omitted).
Initially, we note that reliance upon Hewett...
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