State v. Floyd, 369 N.C. 329

Background

In 2008 police chased defendant after a tip that he had a sawed-off shotgun; an officer saw him discard the gun and secured it. Defendant was arrested in 2010 and indicted in 2011 for possession of a firearm by a convicted felon, possession of a weapon of mass destruction, and attaining habitual felon status.
The felon-in-possession and habitual‑felon charges relied on a prior December 5, 2005 conviction for “attempted assault with a deadly weapon inflicting serious injury.”
At trial the State introduced the 2005 judgment; defendant moved to dismiss the felon‑in‑possession and habitual‑felon charges arguing that “attempted assault” is not a recognized offense in North Carolina. The trial court denied the motions.
A jury convicted defendant of the weapon‑of‑mass‑destruction charge, felon‑in‑possession, and attaining habitual‑felon status; the court imposed concurrent lengthy terms.
The Court of Appeals reversed as to the felon‑in‑possession and habitual‑felon convictions, holding attempted assault is not a cognizable offense in NC, and granted a new trial on the weapon charge because the trial court allegedly failed to resolve an impasse between defendant and counsel during cross‑examination.
The State petitioned for discretionary review; the North Carolina Supreme Court reversed the Court of Appeals as to the attempted‑assault issue, and vacated the IAC/new‑trial ruling, remanding for dismissal of the direct‑appeal IAC claim without prejudice to an MAR.

Issues

Issue	State's Argument	Floyd's Argument	Held
Whether “attempted assault with a deadly weapon inflicting serious injury” is a recognized offense that can support felon‑in‑possession and habitual‑felon predicates	Assault has multiple common‑law definitions; the show‑of‑violence definition allows attempted assault to be a cognizable inchoate crime	The 2005 conviction is a nullity because attempted assault is an "attempt to attempt" and not a recognized offense in NC	The Court held attempted assault (under §14‑32 context) is a recognized offense; reversed Court of Appeals on this point
Whether the trial court abused discretion by not resolving an alleged impasse between defendant and counsel during cross‑examination	Trial court did not clearly err in managing courtroom order; state defends proceedings	Defendant argues his right to control aspects of his defense and confront witnesses was violated because counsel refused his desired questions	The Court vacated the Court of Appeals’ grant of a new trial on this ground, concluding the cold record does not show an absolute impasse; IAC claim dismissed without prejudice to MAR

Key Cases Cited

State v. Currence, 14 N.C. App. 263, 188 S.E.2d 10 (N.C. Ct. App. 1972) (discussing attempted assault as "attempt to attempt")
State v. Roberts, 270 N.C. 655, 155 S.E.2d 303 (N.C. 1967) (describing two common‑law definitions of assault, including the show‑of‑violence rule)
State v. Hewett, 158 N.C. 627, 74 S.E. 356 (N.C. 1912) (opinion addressing intent allegation and discussing attempt in dictum)
State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (N.C. 1991) (when counsel and a fully informed defendant reach an absolute impasse on tactical decisions, the defendant’s choice controls and counsel should memorialize advice and client decision)
State v. Powell, 277 N.C. 672, 178 S.E.2d 417 (N.C. 1971) (elements of attempt: intent plus overt act beyond preparation)
State v. Birchfield, 235 N.C. 410, 70 S.E.2d 5 (N.C. 1952) (interpreting §14‑32 and treating "assault" in that statute as requiring assault and battery)
State v. Fair, 354 N.C. 131, 557 S.E.2d 500 (N.C. 2001) (direct‑review IAC claims may be dismissed without prejudice when the cold record is inadequate)