Criminal Practice – Constitutional – Assistance of Counsel – Speeding to Elude Arrest – Motions to Dismiss – Lesser Included Offenses

State v. Daniels. (Lawyers Weekly No. 11-016-0189, 9 pp.) (Linda Stephens, J.) Appealed from Wake County Superior Court. (R. Allen Baddour, J.) N.C. App. Unpub. Click here for the full text of the opinion.

Holding: Even if defense counsel did fail to move for dismissal, defendant was not prejudiced since the state showed that he drove 60 mph in a 35-mph zone on a public street while being pursued by a police car with its flashing lights and siren activated.

No error in defendant’s conviction of speeding to elude arrest.

Even though the arresting officers incorrectly testified that careless and reckless driving and speeding are lesser included offenses of misdemeanor speeding to elude arrest, defense counsel’s failure to rebut the testimony does not indicate that defense counsel was unfamiliar with the elements of any of these offenses.

It seems equally plausible that defense counsel did not rebut the testimony because he was more interested in making clear to the jury that defendant was not charged with these other offenses than arguing the finer points of legal terms of art with a non-lawyer. There could have been numerous strategic reasons for failing to rebut the testimony of the officers, none of which we need conjure or discuss, and each of which would be equally, or more, plausible reasons for failing to rebut the testimony than defense counsel’s failure to read the single statute governing his client’s charged offense.

No error.