Criminal Practice – Assault with a Deadly Weapon on a Government Official – Motor Vehicle – No Lesser Included Offense – Ineffective Assistance Claim

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State v. Spencer (Lawyers Weekly No. 12-07-0068, 16 pp.) (Donna S. Stroud, J.) Appealed from Pasquotank County Superior Court. (Marvin K. Blount, J.) N.C. App. Click here for the full-text opinion.

Holding: Officer Battle testified that, as he approached defendant’s vehicle after a high-speed chase, defendant’s vehicle started “coming towards me at a very fast pace,” “as the vehicle was coming towards me, I step[ped] out of the way,” “the vehicle started to head towards me and at that point I jumped back, jumped maybe eight or nine feet,” and “I knew … [defendant] had gained traction and he was accelerating back on the road. Due to my closeness of myself and his vehicle, at that point I felt like my life was in danger.” Officer Hudson testified that he “saw the vehicle move forward in the direction of where Officer Battle was standing….”

As used here, defendant’s vehicle was a deadly weapon as a matter of law. Therefore, the trial court did not err in failing to instruct the jury on a lesser-included offense.

Where defense counsel’s statements to the jury admitted defendant’s guilt to both resisting a public officer and eluding arrest, we dismiss defendant’s ineffective assistance of counsel claim without prejudice to defendant’s right to file a motion for appropriate relief so that an evidentiary hearing may be held on the issue of whether defendant consented to his counsel’s admissions in the closing argument.