Criminal Practice – Specific Intent – Assault with a Deadly Weapon with Intent to Kill Inflicting Serious Injury

“Specific intent to kill” is a necessary element of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI), but not for certain lesser-included offenses on which the jury was not instructed; the trial court denied Defendant’s request that the jury be instructed on said lesser-included offenses; and there is a reasonable possibility that the evidence of Defendant’s intoxication during the assault was sufficient to create reasonable doubt in the mind of at least one juror that Defendant, indeed, had the “specific intent to kill” Victim.

We vacated the judgment and remanded for a new trial.

Defendant was convicted of AWDWIKISI. On appeal, he assigned five errors, including the trial court’s failure to instruct the jury on lesser-included offenses. Among other things, Defendant contended there was not sufficient evidence from which the jury could infer that his hands and feet were used in the fight as a “deadly weapon.” Video evidence shows Victim essentially laying defenseless on concrete at some point during the fight. As Victim lay defenseless, Defendant repeatedly kicked and punched Victim in the head over the course of several minutes. Evidence shows Victim suffered severe injuries due to Defendant’s assault. We concluded this evidence was sufficient for the jury to infer that Defendant’s hands and feet were deadly weapons in the context of his assault of Victim, as he lay defenseless.

Defendant further contended there was not sufficient evidence to prove the intent element, i.e., he had the requisite intent to kill Victim during the assault. The State must prove that Defendant had the specific intent to kill Victim during the assault; that is, it is not enough for the evidence to show that Defendant merely intended to strike the blows which could cause death, as one of the elements of AWDWIKISI is that the assault “not result[ ] in death.” Defendant, though, contended the State had the additional burden of showing, not only a specific intent to kill, but also that this intent was formed only after premeditation and deliberation. We disagree that the State had this additional burden in proving AWDWIKISI. A specific intent to kill may be formed in a defendant’s mind without premeditation and deliberation, for instance, in response to some sudden provocation. And our Supreme Court has never held that the “intent to kill” must be formed after premeditation and deliberation to sustain a conviction of AWDWIKISI. We concluded that the evidence was sufficient for the jury to reasonably infer that Defendant had the specific intent to kill Victim during the assault. Specifically, we noted the violent nature and extent of Defendant’s attack as Victim lay helpless and the statement made by Defendant to a neighbor passing by that he “wanted to” kill Victim. It was for the jury to determine whether Defendant’s intoxication rose to the level as to impair Defendant’s ability to commit a specific intent crime.

Vacated and remanded for a new trial.

State of North Carolina v. James Rondell Powell (Lawyers’ Weekly No. 011-214-25, 23 pp.) (Chris Dillon, J.) Appealed from Robeson County Criminal Superior Court (James Gregory Bell, J.) Attorney General Jeff Jackson, by Assistant Attorney General Reginaldo E. Williams, Jr., for the State. Wyatt Early Harris Wheeler LLP, by Stanley F. Hammer, for the defendant-appellant. North Carolina Court of Appeals