218 N.C. App. 267
N.C. Ct. App.2012Background
- Defendant was convicted of eluding arrest with a motor vehicle, assault with a deadly weapon on a government official, and resisting a public officer.
- Evidence shows the vehicle fled from police at high speed, ran a stop sign, and narrowly avoided officers as it accelerated toward them.
- Officer Battle testified the vehicle approached him, and he had to jump back to avoid being struck; another officer corroborated the danger.
- Sentencing included 25–30 months for eluding and AWDW and 60 days for resisting an officer; defendant appeals.
- Defendant argues (a) failure to instruct on a lesser offense and (b) ineffective assistance of counsel; the court addresses both.
- Court holds no error in omitting the lesser offense instruction and dismisses the ineffective-assistance claim without prejudice for a relief hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lesser-included offense instruction | Defendant asserts error for not instructing on misdemeanor assault on a government official. | State argued Batchelor controls; vehicle’s deadly-use should be treated as per Batchelor/Clark outcomes. | No reversible error; vehicle deadly weapon as a matter of law; no lesser instruction required. |
| Ineffective assistance—counsel admissions | Defendant contends trial counsel admitted guilt without consent during closing. | Citing Harbison/Maready, such admissions constitute per se ineffective assistance; consent unknown. | Dismissed without prejudice to allow relief relief hearing on consent issue. |
Key Cases Cited
- State v. Boozer, 707 S.E.2d 756 (N.C. App. 2011) (plain error when no evidence of lesser offense is presented)
- State v. Batchelor, 606 S.E.2d 422 (N.C. App. 2005) (deadly weapon determination often factual; keep jury option on lesser offense)
- State v. Clark, 689 S.E.2d 555 (N.C. App. 2007) (whether deadly weapon instruction should go to jury depends on evidence; distinguish Batchelor)
- State v. Harbison, 337 S.E.2d 504 (N.C. 1985) (per se ineffective assistance when counsel admits guilt without consent)
- State v. Maready, 695 S.E.2d 771 (N.C. App. 2010) (remand for evidentiary hearing on consent and relief)
- State v. Johnson, Unknown (N.C. App. 2011) (recognizes per se ineffective assistance when counsel concedes guilt)