Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 10/18/2021
E.g., 10/18/2021

The trial court did not err by denying the defendant’s motion to dismiss first-degree murder charges where the victim was in utero at the time of the incident but was born alive and lived for one month before dying.

Because of a procedural error by the State, the court declined to address an issue regarding the born alive rule presented in the State’s appeal of a trial court’s order dismissing capital murder charges. The defendant shot a woman who was pregnant with twins. Although the bullet did not strike the fetuses, the injury caused a spontaneous abortion. While both twins had heartbeats, experts said that they were pre-viable.

(1) In a case in which the victim died after consuming drugs provided by the defendant and the defendant was convicted of involuntary manslaughter, the trial court did not err by instructing the jury on second-degree murder and the lesser offense of involuntary manslaughter. The defendant objected to submission of the lesser offense. The evidence showed that the defendant sold the victim methadone and that the defendant had nearly died the month before from a methadone overdose. There was no evidence that the defendant intended to kill the victim by selling him the methadone. This evidence would support a finding by the jury of reckless conduct under either second-degree murder or involuntary manslaughter. (2) The court also rejected the defendant’s argument that under G.S. 14-17, he only could have been convicted of second-degree murder for his conduct.

The defendant appealed from his conviction for the first-degree murder of his grandfather based on the felony murder rule using the attempted murder of his mother with a deadly weapon as the predicate felony. The trial court instructed the jury that it could find the defendant guilty of first-degree murder if it found that he killed his grandfather as part of a continuous transaction during which he also attempted to murder his mother using either his hands or arms or a garden hoe as a deadly weapon. The defendant appealed, arguing that his hands and arms were not properly considered a deadly weapon for purposes of the felony murder rule and that the trial court’s erroneous instruction that the jury could find that he attempted to murder his mother using a garden hoe was prejudicial error.

The defendant was at the home of his mother and grandfather on November 5, 2013. He owed money to both and they had recently told him that they would lend him no more.  As his mother went outside the defendant followed behind her, saying he was leaving to go to work. His mother walked into a storage shed behind the house, where she remained for five or 10 minutes. She did not hear the defendant get into his car or hear the vehicle leave. While she was in the shed, she thought she heard raised voices. She came out to check on her father. As she walked toward the house, she felt someone put an arm around her neck. Her attacker put a hand over her nose and mouth and she lost consciousness. The next thing she remembered was someone opening her eyelid as she lay on the ground. She saw defendant’s face and thought he was there to help her.

The defendant worked from 11 p.m. to 7 a.m., returning home the following morning. When he got home he saw that his mother had been attacked and called for emergency assistance. The defendant’s grandfather was dead when the paramedics arrived. He was face down near the back door, covered in blood, with a large pool of blood around his head. A garden hoe covered in blood was next to his body. The grandfather’s wallet was near his body and did not contain the money usually kept there.

The defendant denied his involvement in the assault and murder. He gave different explanations for the presence of scratches on his arm. DNA evidence from the scene did not connect him to the crime. The defendant’s mother (who experienced a traumatic brain injury) initially told investigators that the defendant left the home before she was attacked and said the person who attacked her was shorter than the defendant and was wearing a ski mask. She testified differently at trial, stating that it was the defendant who had choked her and that there had been no ski mask.

The trial court instructed the jury on multiple theories of first-degree murder, including the felony-murder rule using the attempted murder of the defendant’s mother as the predicate felony. As to the deadly weapon requirement, the court told the jury that the “State contends and the defendant denies that the defendant used his hands and/or arms, and or a garden hoe as a deadly weapon.” The jury convicted the defendant of first-degree murder based on this theory, and the defendant appealed.

The supreme court relied upon a “virtually uninterrupted line of appellate decisions from this Court and the Court of Appeals interpreting the reference to a ‘deadly weapon’ in N.C.G.S. § 14-17(a) to encompass the use of a defendant’s hands, arms, feet, or other appendages” and the “fact that the General Assembly has not taken any action tending to suggest that N.C.G.S. § 14-17(a) should be interpreted in a manner that differs from the interpretation deemed appropriate in this line of decisions” to establish that the General Assembly intended for the term “deadly weapon” to include a defendant’s hands, arms, feet or other appendages. The court rejected the defendant’s invitation to overrule or limit to child victims its holding in State v. Pierce, 346 N.C. 471 (1997) that the offense of felony child abuse could serve as the predicate felony for felony-murder when the defendant used his hands as a deadly weapon in the course of committing the abuse. The court also rejected the defendant’s invitation to rely on State v. Hinton, 361 N.C. 207 (2007) for the proposition that the term “deadly weapon” has different meanings in different contexts and should have a felony-murder specific definition. The Hinton court held that the reference to “any firearms or other dangerous weapon, implement or means” as used in N.C.G.S. § 14-87(a) (defining robbery with a dangerous weapon) did not encompass the use of a defendant’s hands because the statute was intended to provide a “more severe punishment when the robbery is committed with the ‘use or threatened use of firearms or other dangerous weapons’” than when the defendant committed common law robbery, which did not involve the use of such implements. The court reasoned that the logic in Hinton had no application to its interpretation of the felony-murder statute as nothing in the language or legislative history of G.S. 14-17 suggested that its reference to “deadly weapon” should be defined in a way that differed from the traditional definition, which included a person’s appendages.

Finally, the court rejected the notion that its interpretation meant that every killing perpetrated with the use of a defendant’s hands, arm, legs, or other appendages could constitute felony murder, thus undermining the General Assembly’s attempt to limit the scope of the rule when it revised the statute in 1977. The court noted that the extent to which hands, arms, legs, and other appendages can be deemed deadly weapons depends upon the nature and circumstances of their use, including the extent to which there is a size and strength disparity between the perpetrator and his or her victim. Moreover, something more than a killing with hands, arms, legs, or other bodily appendages must be shown (a felony) to satisfy the rule.

The court then considered whether the trial court’s instructions to the jury that it could find that the defendant attempted to murder his mother using a garden hoe was prejudicial error, concluding that it was as there was a reasonable possibility that the jury would not have convicted the defendant of first-degree murder without the erroneous instruction. The court explained that to conclude otherwise, “[w]e would be required to hold that the State’s evidence that defendant killed his grandfather as part of a continuous transaction in which he also attempted to murder his mother using his hands and arms as a deadly weapon was so sufficiently strong that no reasonable possibility exists under which the jury would have done anything other than convict defendant of first-degree murder on the basis of that legal theory.” The sharply disputed evidence over whether the defendant was the perpetrator, including the lack of physical evidence, the defendant’s trial testimony, and the conflicting nature of the statements made by the defendant’s mother, prevented the court from concluding that the error was harmless. Even more central to the court’s analysis was the dispute over the extent to which the defendant’s hands and arms were a deadly weapon. The court noted that although the size and strength differential between defendant and his mother was sufficient to permit a determination that defendant’s hands and arms constituted a deadly weapon, the differences were not so stark as to preclude a reasonable jury from concluding that defendant’s hands and arms were not a deadly weapon. If the jury had reasonably concluded that the defendant’s hands and arms were not used as a deadly weapon, it could not have convicted the defendant of the first-degree murder of his grandfather on the basis of the felony-murder rule, contrary to the suggestion in the jury instruction. As a result, the Court held that the trial court’s instruction concerning the use of the garden hoe as a deadly weapon during defendant’s alleged attempt to murder his mother was prejudicial error necessitating a new trial for the murder of his grandfather.

Justice Newby, joined by Justice Morgan, concurred in part and dissented in part. He agreed with the majority that the defendant’s hands and arms were deadly weapons, but disagreed that the instruction regarding the garden hoe resulted in prejudicial error.

Justice Earls concurred in the result only in part and dissented in part. She agreed with the majority that the instruction regarding the garden hoe was error warranting a new trial. She dissented from the majority’s conclusion that a jury could properly consider a person’s hands, arms, feet, or other body parts to be deadly weapons for purposes of the felony murder statute, reasoning that the legislative history and spirit of the statute demonstrate that the deadly weapon requirement refers to an external instrument.

The defendant was convicted by a jury of first-degree murder under the felony-murder rule. The underlying felony was statutory rape of a child under 13. And yet the jury acquitted the defendant of the charge of statutory rape of a child under 13.  The defendant appealed, arguing that statutory rape of a child under 13 could not support a felony-murder conviction because it lacks the necessary intent to support such a charge. He also argued that because the jury acquitted him of the predicate felony, his first-degree murder conviction must be vacated. The Court of Appeals rejected both arguments.

(1) The Court of Appeals determined that while the offense of statutory rape does not require that the defendant intended to commit a sexual act with an underage person, it does require that the defendant intend to commit a sexual act with the victim. The Court held that this intent satisfies the intent required for a crime to serve as the basis for a felony-murder charge. The Court distinguished the sort of intent required to engage in vaginal intercourse with a victim from the culpable negligence required to commit the offense of assault with a deadly weapon inflicting serious injury based on driving a vehicle while impaired, which the court held in State v. Jones, 353 N.C. 159 (2000), was insufficient to support a felony-murder charge. Statutory rape requires that the person be purposely resolved to participate in the conduct that comprises the criminal offense.

(2) The Court of Appeals determined that the jury verdicts finding the defendant (a) guilty of felony murder with statutory rape as the underlying felony but (b) not guilty of statutory rape were inconsistent but were not legally contradictory or, in other words, mutually exclusive. The Court of Appeals reasoned that a jury could rely on the act of committing statutory rape to support a felony murder conviction without also having a conviction of statutory rape. Indeed, the State could proceed to trial on such a felony murder theory without also charging statutory rape.

The Court noted that a defendant is not entitled to relief for a merely inconsistent verdict as it is not clear in such circumstances “‘whose ox has been gored.’” (Slip op. at ¶ 44 (quoting United States v. Powell, 469 U.S. 57, 65 (1984)). The jury may have thought the defendant was not guilty. Equally possibly, it may have reached an inconsistent verdict through mistake, compromise, or lenity. The defendant receives the benefit of the acquittal, but must accept the burden of conviction.

Rejecting the defendant’s ineffective assistance of counsel claim with respect to his first-degree felony murder conviction, the court also rejected the proposition that a felony murder conviction cannot be predicated on a felony of shooting into occupied property where that felony also was the cause of the victim’s death. Reviewing the relevant case law, the court concluded:

[I]t is clear that neither the Supreme Court nor this Court has ever expressly recognized an exception to the felony murder rule for the offense of discharging a weapon into occupied property. At most, North Carolina courts have recognized a very limited “merger doctrine” that precludes use of the felony murder rule in situations where the defendant has committed one assault crime against one victim and the State seeks to use that assault as the predicate felony for a felony murder conviction.

In this case where the defendant was convicted of felony murder with the underlying felony being felony child abuse, the court rejected the defendant’s argument that the merger doctrine prevents conviction of first-degree felony murder when there is only one victim and one assault. Although a defendant cannot be sentenced for both the underlying felony and first-degree felony murder, that did not occur here.

(1) The evidence was sufficient to submit felony murder to the jury on the basis of felony larceny with a deadly weapon being the underlying felony. The court rejected the defendant’s argument that the State failed to show that a beer bottle found at the crime scene was used as a “deadly weapon” within the meaning of the homicide statute, G.S. 14-17. The State’s evidence showed, among other things that the murder victim’s injuries could have been caused by the bottle. Thus, the State presented sufficient evidence that the broken beer bottle constituted a deadly weapon. The court also rejected the defendant’s argument that the State failed to prove that the defendant used the broken bottle during the commission of the felonious larceny, noting that the evidence showed that after incapacitating the victim with the broken bottle the defendant stole the victim’s vehicle. Finally, the court rejected the defendant’s argument that the State failed to prove that the killing was committed in the perpetration of the larceny, finding sufficient evidence of a continuous transaction. (2) Where the defendant was convicted of felony murder with the underlying felony being felony larceny, the trial court erred by failing to arrest judgment on the underlying felony.

State v. Juarez, 243 N.C. App. 466 (Oct. 6, 2015) rev’d on other grounds, 369 N.C. 351 (Dec 21 2016)

Felony discharging of a firearm into an occupied vehicle can serve as an underlying felony supporting a charge of felony murder.

In this first-degree murder case, the court rejected the defendant’s argument that there was an insufficient relationship between the felony supporting felony-murder (discharging a firearm into occupied property) and the death. The law requires only that the death occur “in the perpetration or attempted perpetration” of a predicate felony; there need not be a causal “causal relationship”’ between the felony and the homicide. All that is required is that the events occur during a single transaction. Here, the defendant stopped shooting into the house after forcing his way through the front door; he then continued shooting inside. The defendant argued that once he was inside the victim attempted to take his gun and that this constituted a break in the chain of events that led to her death. Even if this version of the facts were true, the victim did not break the chain of events by defending herself inside her home after the defendant continued his assault indoors.

In this child homicide case, the trial court did not err by denying the defendant’s motion to dismiss a charge of felony-murder based on an underlying felony child abuse. Prior to the incident in question the victim was a normal, healthy baby. After having been left alone with the defendant, the victim was found unconscious, unresponsive, and barely breathing. The child’s body had bruises and scratches, including unusual bruises on her buttocks that were not “typical” of the bruises that usually resulted from a fall and a recently inflicted blunt force injury to her ribs that did not appear to have resulted from the administration of CPR. An internal examination showed extensive bilateral retinal hemorrhages in multiple layers of the retinae, significant cerebral edema or swelling, and extensive bleeding or subdural hemorrhage in the brain indicating that her head had been subjected to a number of individual and separate blunt force injuries that were sufficiently significant to damage her brain and to cause a leakage of blood. Her injuries, which could have been caused by human hands, did not result from medical treatment or a mere fall from a couch onto a carpeted floor.

The evidence was sufficient to support a first-degree felony-murder conviction when the underlying felony was armed robbery and where the defendant used the stolen item—a .357 Glock handgun—to commit the murder and the two crimes occurred during a continuous transaction.

The trial court properly submitted felony-murder to the jury based on underlying felony of attempted sale of a controlled substance with the use of a deadly weapon. The defendant and an accomplice delivered cocaine to the victim. Approximately one week later, they went to the victim’s residence to collect the money owed for the cocaine and at this point, the victim was killed. At the time of the shooting, the defendant was engaged in an attempted sale of cocaine (although the cocaine had been delivered, the sale was not consummated because payment had not been made) and there was no break in the chain of events between the attempted sale and the murder.

On March 13, 2016, the defendant was out at a bar in Greensboro with his nephews and several other people to celebrate a friend’s birthday. As they were leaving the bar around 2:00 a.m., another group of men approached and one of them asked a woman in the defendant’s group if she would perform sexual acts for money. The defendant’s group rebuked the other man, and the defendant’s group left the parking lot in two vehicles. When they were stopped at a red light, a vehicle occupied by the second group of men pulled up next to the vehicle in which the defendant was riding. One of the men in the second group smashed a bottle against the defendant’s vehicle, and the second group pursued the defendant’s group at high speed as they drove away. The vehicles all pulled into a nearby parking lot, where two off-duty police officers were parked in a patrol vehicle. As the occupants exited their vehicles, a large fight broke out involving different clusters of people, and one person (“Jones”) was killed. Additional officers responded to the scene and attempted to break up the multiple altercations. None of the officers saw a weapon being used, but Jones and several other individuals had suffered deep lacerations, and their statements to the officers on scene indicated the defendant was the one who cut them with a knife. As the fights were being broken up, an officer saw the defendant walking back towards a vehicle, ignoring commands to stop, and making a furtive movement to throw something into the car. Officers checked the car and found a bloody knife on the driver’s seat. The defendant was searched and also found to have “bath salts” in his pocket. The medical examiner concluded that stab wounds consistent with the knife found in the car caused Jones’ death. Additional evidence indicating that the defendant was the person who mortally wounded Jones included blood found on the defendant’s shoes and clothing, the defendant’s close proximity to the wounded individuals, the defendant’s DNA on the knife, and the defendant’s statements to a private investigator that others were stomping and hitting him so he pulled a knife out of his pocket and “came out swinging.”

The defendant was charged with first-degree murder, possession of 4-chloromethcathinone, and attaining habitual felon status. At the conclusion of a jury trial on the substantive charges, the jury was instructed on first-degree murder, second-degree murder, voluntary manslaughter, and the controlled substance offense. The jury convicted the defendant of voluntary manslaughter and drug possession. On appeal, the defendant argued that the trial court should have granted his motion to dismiss for insufficient evidence based on self-defense (or that he received ineffective assistance of counsel if that argument was deemed not adequately preserved), and that the trial court erred in its jury instruction regarding voluntary manslaughter.

Because the jury only convicted the defendant of manslaughter, rather than first- or second-degree murder, and because the state did not advance the theories that the defendant had either killed in the heat of passion or was the initial aggressor, the appellate court concluded that the only issue it needed to determine was whether the state’s evidence was sufficient to withstand a motion to dismiss a charge of voluntary manslaughter premised on a killing that would be second-degree murder (committed with malice) but for the fact that the defendant had an imperfect claim of self-defense (based on his use of excessive force). To survive such a motion, the state’s evidence would have to show that the defendant: (1) intentionally wounded Jones; (2) proximately causing his death; (3) under a reasonable belief that use of force was necessary to avoid death or great bodily harm; but (4) the force used was greater than necessary to prevent such harm. Viewed in the light most favorable to the state, there was sufficient evidence in this case from which a reasonable juror could find each of those four factors, and the motion to dismiss was properly denied.

The defendant also argued on appeal that the parties had agreed to use pattern jury instruction 206.10, but the trial court’s actual instructions to the jury did not directly follow the pattern instruction language. If true, a challenge to that instruction would be preserved for appellate review even though the defense did not object. But based on its review of the record, the appellate court held that there was not an agreement to use a specific instruction, so its review of the jury instructions was limited to plain error. After reviewing the instructions as a whole, the appellate court found that the trial court had adequately instructed the jury as to each element and lesser-included offense. “Because the jury was informed of the essential elements it would have to find beyond a reasonable doubt in order to convict defendant of voluntary manslaughter, the trial court did not err in its jury instructions.”

The evidence was sufficient with respect to the defendant’s voluntary manslaughter conviction. The defendant was charged with first-degree murder. At trial the defendant admitted that he shot and killed his wife. He argued however that as a result of diabetes, his blood sugar was dangerously low at the time of the shooting, causing him to act in a manner that was not voluntary. The defendant moved for a directed verdict on the first-degree murder charges as well as the lesser charges of second-degree murder and voluntary manslaughter. The judge denied this motion and the jury found him guilty of voluntary manslaughter. The court rejected the defendant’s argument that acting in the “heat of passion” was an element of voluntary manslaughter, noting that for this offense the State need only prove that the defendant killed the victim by an intentional and unlawful act and that the defendant’s act was a proximate cause of death. Here, the defendant admitted that he shot his wife. His sole defense was that he did not act voluntarily due to low blood sugar, which put him in a state of automatism. The State presented expert testimony that he was not in such a state. Thus, there was substantial evidence from which the jury could reject the defendant’s automatism defense and conclude that the defendant intentionally shot and killed his wife—the only elements necessary to prove voluntary manslaughter.

The trial court did not err by denying the defendant’s motion to dismiss a voluntary manslaughter charge. The court rejected the defendant’s argument that there was insufficient evidence that she killed the victim by an intentional and unlawful act, noting that although there was no direct evidence that the defendant was aware that she hit the victim with her car until after it occurred, there was circumstantial evidence that she intentionally struck him. Specifically, the victim had a history, while under the influence of drugs and/or alcohol (as he was on the day in question), of acting emotionally and physically abusive towards the defendant; when the victim was angry, he would tell the defendant to “[g]et her stuff and get out,” so the defendant felt “trapped”; on the day in question the victim drank alcohol and allegedly smoked crack before hitting the defendant in the face, knocking her from the porch to the yard; the defendant felt scared and went “to a different state of mind” after being hit; before driving forward in her vehicle, the defendant observed the victim standing in the yard, near the patio stairs; and the defendant struck the stairs because she “wanted to be evil too.” The court concluded: “From this evidence, a jury could find Defendant felt trapped in a cycle of emotional and physical abuse, and after a particularly violent physical assault, she decided it was time to break free.”

In a case where the defendant was found guilty of involuntary manslaughter on the theory that he committed an unlawful act which proximately caused the victim’s death, the trial court committed reversible error by refusing to give a jury instruction on defense of others as an affirmative defense to the unlawful act at issue. The defendant was involved in an altercation at a waterfront bar that resulted in the death of the victim. The defendant’s version of the events was that the victim fell into the water and drown after physical contact by the defendant; the defendant claimed to be defending his friend Jimmy, who had been shoved by the victim. The unlawful act at issue was the offense of affray. On appeal the defendant argued that the trial court committed reversible error by refusing to instruct the jury on defense of others as an affirmative defense to the crime of affray. The defendant asserted that his only act—a single shove—was legally justified because he was defending his friend and thus was not unlawful. The court agreed. It noted that the state Supreme Court has previously sanctioned the use of self-defense by a defendant as an appropriate defense when the defendant is accused of unlawfully participating in affray. Where, as here, the State prosecuted the defendant for involuntary manslaughter based on the theory that the defendant committed an unlawful act (as opposed to the theory that the defendant committed a culpably negligent act) “the defendant is entitled to all instructions supported by the evidence which relate to the unlawful act, including any recognized affirmative defenses to the unlawful act.” Here, the evidence supports the defendant’s argument that the instruction on defense of others was warranted. Among other things, there was evidence that Jimmy felt threatened when shoved by the victim; that the defendant immediately advanced towards the victim in response to his contact with Jimmy; that the victim punched and kicked the defendant; and that the defendant only struck the victim once. The defendant was thus entitled to a defense of others instruction to affray. The court was careful to note that it took no position as to whether the defendant did in fact act unlawfully. It held only that the defendant was entitled to the instruction. The court also noted that the issue in this case is not whether self-defense is a defense to involuntary manslaughter; the issue in this case is whether self-defense is an affirmative defense to affray, the unlawful act used as the basis for the involuntary manslaughter charge.

 

The trial court did not commit plain error by failing to instruct the jury on the lesser-included offense of involuntary manslaughter. In the context of a shooting, the charge of involuntary manslaughter requires evidence of the absence of intent to discharge the weapon. This fact distinguishes involuntary manslaughter from its voluntary counterpart, which requires proof of intent. The defendant’s argument fails because there was no evidence at trial suggesting that the defendant did not intend to shoot his wife. Rather, the defendant’s defense relied on his argument that he was in a state of automatism--a complete defense to all criminal charges--which the jury rejected. Here, there was no evidence suggesting that the shooting was an accident.

The trial court erred by denying the defendant’s motion to dismiss a second-degree murder charge where there was insufficient evidence of malice and the evidence showed that the death resulted from a mishap with a gun. The court remanded for entry of judgment for involuntary manslaughter.

The trial court properly denied the defendant’s motion to dismiss a charge of involuntary manslaughter. The primary issue raised in the defendant’s appeal was whether there was sufficient evidence that the defendant committed a culpably negligent act which proximately resulted in the victim’s death. The evidence showed that the defendant became angry at the victim during the defendant’s party and “kicked or stomped” his face, leaving the victim semiconscious; the defendant was irritated that he had to take the victim to meet the victim’s parents at a church; instead of taking the victim to the church, the defendant drove him to an isolated parking area and again beat him; the defendant abandoned the victim outside knowing that the temperature was in the 20s and that the victim had been beaten, was intoxicated, and was not wearing a shirt; the defendant realized his actions put the victim in jeopardy; and even after being directly informed by his father that the victim was missing and that officers were concerned about him, the defendant lied about where he had last seen the victim, hindering efforts to find and obtain medical assistance for the victim. On these facts, the court had “no difficulty” concluding that there was sufficient evidence that the defendant’s actions were culpably negligent and that he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.

The trial court did not err by denying the defendant’s motion to dismiss a charge of involuntary manslaughter where a person under 21 years of age died as a result of alcohol poisoning and it was alleged that the defendant aided and abetted the victim in the possession or consumption of alcohol in violation or G.S. 18B-302. The court rejected the defendant’s argument that the State was required to prove that the defendant provided the victim with the specific alcohol he drank on the morning of his death. The court concluded that the evidence was sufficient, stating:

The evidence established that defendant frequently hosted parties at her home during which defendant was aware that underage people, including [the victim], consumed alcohol. On at least one occasion, defendant was seen offering alcohol to [the victim], and defendant knew the [victim] was under the age of 21. The State presented substantial evidence that defendant’s actions of allowing [the victim] to consume, and providing [the victim] with, alcohol were part of a plan, scheme, system, or design that created an environment in which [the victim] could possess and consume alcohol and that her actions were to consume, and providing [the victim] with, alcohol were part of a plan, scheme, system, or design that created an environment in which [the victim] could possess and consume alcohol and that her actions were done knowingly and were not a result of mistake or accident. Viewed in the light most favorable to the State, we conclude the evidence was sufficient to allow a reasonable juror to conclude that defendant assisted and encouraged [the victim] to possess and consume the alcohol that caused his death.

G.S. 20-141.4(c) does not bar simultaneous prosecutions for involuntary manslaughter and death by vehicle; it only bars punishment for both offenses when they arise out of the same death.

The State presented sufficient evidence of involuntary manslaughter. The State proved that an unlawful killing occurred with evidence that the defendant committed the misdemeanor of improper storage of a firearm. Additionally, the State presented sufficient evidence that the improper storage was the proximate cause of the child’s death.

The defendant was convicted in a bench trial of first-degree murder and negligent child abuse inflicting serious injury for starving and failing to provide medical treatment to his four-year-old disabled stepson, Malachi. The defendant appealed, and the Court of Appeals affirmed. The Supreme Court granted discretionary review.  The defendant argued on appeal that: (1) the trial court erred by failing to dismiss the first-degree murder charge because the record failed to contain sufficient evidence to support a finding that Malachi’s death was proximately caused by starvation; (2) the State was required to make a separate showing of malice in order to prove defendant’s guilt of murder on the basis of starvation; (3) if malice is implied, then starving must be defined as the complete deprivation of food and water; and (4) his conviction for negligent child abuse inflicting serious bodily injury rested upon findings that Malachi suffered from bedsores, ulcers, and diaper rash, which differed from the indictment’s allegations that he failed to provide the child with medical treatment and proper nutrition. The Supreme Court rejected each of the defendant’s arguments and affirmed his convictions.

(1) The Supreme Court determined that the trial court had ample justification for concluding that Malachi died as a proximate result of starvation, despite findings in an amended autopsy report attributing Malachi’s death to asphyxia caused by strangulation. Witnesses who were responsible for providing treatment to Malachi and his sibling during the last two years of his life testified that Malachi was not fed even though he was ravenously hungry and looked considerably thinner in the months leading up to his death. Emergency medical technicians who responded to the 911 call for Malachi’s death noticed the malnourished state of Malachi’s body, which some of them initially mistook for a doll. The physical evidence in the autopsy report demonstrated that Malachi was severely malnourished and dehydrated. A pediatric neurologist who had treated Malachi testified that the only thing that “‘would cause Malachi or any child to look like’” the child described by the emergency medical technicians and depicted in the autopsy report and related photographs was “‘starvation.’” Slip op. at ¶ 44. Although the autopsy was amended to attribute Malachi’s death to asphyxia secondary to strangulation, the record demonstrates that the forensic pathologist made those amendments based on the defendant’s statements to a detective that he had strangled Malachi, statements that the trial court found not credible.

(2) The Supreme Court concluded that the trial court did not commit plain error or err by failing to (a) instruct itself concerning the issue of malice or (b) make a separate finding that defendant acted with malice in connection with killing Malachi. The Court reasoned that the intentional withholding of the nourishment and hydration needed for survival resulting in death when the victim is unable to provide these things for himself or herself shows a reckless disregard for human life and a heart devoid of social duty. Thus, the malice necessary for guilt of murder is inherent in the intentional withholding of hydration or nutrition sufficient to cause death. As a result, the Court held that the act of starving another person to death for purposes of G.S. 14-17(a), without more, suffices to show malice, so that the trial court did not commit plain error by failing to instruct itself to make a separate finding of malice or err by failing to make a separate determination that defendant acted maliciously in its findings of fact and conclusions of law.

The Court further held that the record and the trial court’s findings demonstrated that the defendant proximately caused Malachi’s death by intentionally depriving him of needed hydration and nutrition, a showing that supported the conviction of murder by starvation. Witnesses testified that there was food in the house and that Malachi’s siblings received sufficient nutrition and hydration to survive. The evidence depicted Malachi as hungry and dehydrated during the months leading to his death; yet the defendant, who was Malachi’s primary caregiver, did not seek medical attention for Malachi and fed Malachi, at the most, no more than once each day.

(3) The Supreme Court rejected the defendant’s argument that starvation for purposes of G.S. 14-17(a) required proof that the defendant subjected the victim to a complete deprivation of food and hydration. The Court explained that the discussion in State v. Evangelista, 319 N.C. 152 (1987) did not suggest otherwise; instead, Evangelista simply indicated that murder by starvation occurs in the event that the defendant completely deprives the victim of food and drink. The Court reasoned that the adoption of the defendant’s definition of starvation for purposes of G.S. 14-17(a) would produce the absurd result that a person who kills another by withholding virtually all, but not all, food and drink would not be guilty of murder by starvation.

(4) The Supreme Court held there was no fatal discrepancy between the allegations of the indictment charging defendant with negligent child abuse inflicting serious injury and the trial court’s factual justification for convicting defendant of that offense. The indictment charged the defendant with negligent child abuse inflicting serious injury for failing to provide Malachi “‘with medical treatment’” for over one year, “‘despite the child having a disability,’” and with failing to “‘provid[e] the child with proper nutrition and medicine, resulting in weight loss and failure to thrive.’” Slip op. at ¶ 50. The Court deemed the trial court’s determinations that defendant “‘allow[ed] the child to remain in soiled diapers until acute diaper rash formed on the [child’s] groin and bottom,’” resulting in “‘open sores and ulcers,’” and that defendant kept “‘the child in a playpen for so long a period of time that bed sores formed on [his] legs and knees’” to be  fully consistent with the allegations in the indictment. Slip op. at ¶ 50.

On remand from the North Carolina Supreme Court’s decision (summary here) that there was no prejudicial error in the prosecutor’s closing argument with respect to race in this murder trial, the Court of Appeals considered the defendant’s remaining arguments regarding jury argument and jury instructions.  Largely based on its view that the prosecutor’s jury argument was made in the context of self-defense rather than, as the defendant maintained, the habitation defense, the court disagreed with the defendant’s argument that the trial court erred by failing to intervene to correct an alleged incorrect statement of law regarding the aggressor doctrine in the prosecutor’s closing argument to which the defendant did not object.  The court went on to decline to reach the defendant’s argument that the trial court plainly erred with respect to jury instructions on the aggressor doctrine in the context of the defense of habitation, finding the argument waived by the defendant’s active participation in the formulation of the jury instructions during the charge conference and failure to object at trial.  Finally, the court held that the trial court did not err by instructing the jury on murder by lying in wait because the instruction was supported by sufficient evidence even if it was assumed that the defendant offered evidence of a conflicting theory of defense of habitation.  The court noted with respect to lying in wait that the State’s evidence showed that the defendant concealed himself in his darkened garage with a suppressed shotgun and fired through a garage window, bewildering unwarned bystanders.

Judge Tyson dissented, expressing the view that the trial court erred with respect to instructing the jury on murder by lying in wait given that the defendant was wholly inside his home with his family as an armed intruder approached the home and given shortcomings in the trial court’s instructions regarding the State’s burden of disproving the defendant’s assertion of self-defense and the jury’s responsibility to evaluate evidence and inferences on that issue in the light most favorable to the defendant.

The trial court did not err by denying the defendant’s motion to dismiss a first-degree murder charge based on the theory of lying in wait. The defendant asserted that no ambush occurred because the defendant announced his presence. The evidence showed that the victim was in his residence with friends when the defendant arrived after dark. The victim went outside to speak with the defendant. There was no evidence that the defendant threatened or directed harm at the victim. The victim returned to his trailer, unharmed, after speaking with the defendant. The defendant waited for the victim to go back inside and then fired his weapon into the trailer, killing the victim. The victim had no warning that the defendant intended any harm. When the defendant spoke with the victim, the defendant told the victim to send another person outside, indicating that he only had an issue with the other person. Therefore, the court concluded, the victim was taken by complete surprise and had no opportunity to defend himself.

In this first-degree murder case, the trial court did not err by instructing the jury on a theory of lying in wait. The court rejected the defendant’s argument that this theory required the State to prove a “deadly purpose” to kill, noting that the state Supreme Court has held that "lying in wait is a physical act and does not require a finding of any specific intent." (quotation omitted). The court continued:

As the Supreme Court has previously held, [h]omicide by lying in wait is committed when: the defendant lies in wait for the victim, that is, waits and watches for the victim in ambush for a private attack on him, intentionally assaults the victim, proximately causing the victim's death. In other words, a defendant need not intend, have a purpose, or even expect that the victim would die. The only requirement is that the assault committed through lying in wait be a proximate cause of the victim's death.

(quotation and citation omitted). The court went on to find that the evidence was sufficient to support a lying in wait instruction where the defendant waited underneath a darkened staircase for the opportunity to rob the victim.

The evidence supported a jury instruction for first-degree murder by lying in wait. The evidence showed that the defendant parked outside the victim’s house and waited for her. All of the following events occurred 15-20 minutes after the victim exited her home: the defendant confronted the victim and an argument ensued; the defendant shot the victim; a neighbor arrived and saw the victim on the ground; the defendant shot the victim again while she was lying on the ground; the neighbor drove away and called 911; and an officer arrived on the scene. This evidence suggests that the shooting immediately followed the defendant’s ambush of the victim outside the house.

In this murder case where the trial court submitted jury instructions on both second-degree murder and voluntary manslaughter, the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the second-degree murder charge. The defendant argued that there was insufficient evidence that he acted with malice and not in self-defense. The court noted that any discrepancy between the State’s evidence and the defendant’s testimony was for the jury to resolve.

The trial court erred by denying the defendant’s motion to dismiss a second-degree murder charge where there was insufficient evidence of malice and the evidence showed that the death resulted from a mishap with a gun. The court remanded for entry of judgment for involuntary manslaughter.

In a second-degree murder case arising after the defendant drove impaired and hit and killed two bicyclists, there was sufficient evidence of malice. The defendant’s former girlfriend previously warned him of the dangers of drinking and driving; the defendant’s prior incident of drinking and driving on the same road led the girlfriend to panic and fear for her life; the defendant's blood alcohol level was .16; the defendant consumed an illegal controlled substance that he knew was impairing; the defendant swerved off the road three times prior to the collision, giving him defendant notice that he was driving dangerously; despite this, the defendant failed to watch the road and made a phone call immediately before the collision; the defendant failed to apply his brakes before or after the collision; and the defendant failed to call 911 or provide aid to the victims.

In a second-degree murder case stemming from a vehicle accident, there was sufficient evidence of malice. The defendant knowingly drove without a license, having been cited twice for that offense in the three weeks prior to the accident. When the original driver wanted to pull over for the police, the defendant took control of the vehicle by climbing over the back seat and without stopping the vehicle. He was attempting to evade the police because of a large volume of shoplifted items in his vehicle and while traveling well in excess of the speed limit. He crossed a yellow line to pass vehicles, twice passed vehicles using a turn lane, drove through a mowed corn field and a ditch, and again crossed the center line to collide with another vehicle while traveling 66 mph and without having applied his brakes. To avoid arrest, the defendant repeatedly struck an injured passenger as he tried to get out of the vehicle and escape.

In a case in which a second officer got into a vehicular accident and died while responding to a first officer’s communication about the defendant’s flight from a lawful stop, the evidence was sufficient to establish malice for purposes of second-degree murder. The defendant’s intentional flight from the first officer–including driving 65 mph in a residential area with a speed limit of 25 mph and throwing bags of marijuana out of the vehicle–reflected knowledge that injury or death would likely result and manifested depravity of mind and disregard of human life.

There was sufficient evidence of malice to support a second-degree murder conviction. Based on expert testimony the jury could reasonably conclude that the child victim did not die from preexisting medical conditions or from a fall. The jury could find that while the victim was in the defendant’s sole custody, he suffered non-accidental injuries to the head with acute brain injury due to blunt force trauma of the head. The evidence would permit a finding that the victim suffered a minimum of four impacts to the head, most likely due to his head being slammed into some type of soft object. Combined with evidence that the defendant bit the victim, was upset about the victim’s mother’s relationship with the victim’s father, and that the defendant resented the victim, the jury could find that the defendant intentionally attacked the month-old child, resulting in his death.

There was sufficient evidence of malice to sustain a second-degree murder conviction. Because there was evidence that the defendant killed the victim with a deadly weapon, the jury could infer that the killing was done with malice. The court rejected the defendant’s argument that his statements that he and the victim “had words or something” provided evidence of provocation sufficient to negate the malice presumed from the use of a deadly weapon or require a voluntary manslaughter instruction.

There was sufficient evidence of malice in a case arising from a vehicle accident involving impairment. The defendant admitted that he drank 4 beers prior to driving. The State’s expert calculated his blood alcohol level to be 0.08 at the time of the collision and other witnesses testified that the defendant was impaired. Evidence showed that he ingested cocaine and that the effects of cocaine are correlated with high-risk driving. The defendant admitted that he was speeding, and experts calculated his speed to be approximately 15 mph over the posted speed limit. The State also introduced evidence that the defendant had 4 prior driving while impaired convictions.

The trial court did not err by denying the defendant’s motion to dismiss a charge of second-degree murder. The defendant, after being kicked in the face in a fight inside a nightclub, became angry about his injury, retrieved a 9mm semi-automatic pistol and loaded magazine from his car, and loaded the gun, exclaiming "Fuck it. Who wants some?" He then began firing toward the crowd, killing an officer. Evidence of the intentional use of a deadly weapon — here, a semi-automatic handgun — that proximately causes death triggers a presumption that the killing was done with malice. This presumption is sufficient to withstand a motion to dismiss a second-degree murder charge. The issue of whether the evidence is sufficient to rebut the presumption of malice in a homicide with a deadly weapon is then a jury question.

The trial court did not err by denying the defendant’s motion to dismiss charges of second-degree murder, felony serious injury by vehicle, and impaired driving. The evidence showed that the defendant was under the influence of an impairing substance at the time of the accident. A chemical analysis of blood taken from the defendant after the accident showed a BAC of 0.14 and the State’s expert estimated that his BAC was 0.19 at the time of the accident. The defendant admitted having consumed 5 or 6 beers that day. Four witnesses testified that they detected a strong odor of alcohol emanating from the defendant immediately after the accident. The defendant had bloodshot eyes and was combative with emergency personnel immediately after the accident. Finally, the defendant’s speed exceeded 100 miles per hour and he failed to use his brakes or make any attempt to avoid the collision.

There was sufficient evidence to survive a motion to dismiss in a case in which the defendant was charged with second-degree murder under G.S. 14-17 for having a proximately caused a murder by the unlawful distribution and ingestion of Oxymorphone. There was sufficient evidence of malice where the victim and a friend approached the defendant to purchase prescription medication, the defendant sold them an Oxymorphone pill for $20.00, telling them that it was “pretty strong pain medication[,]” and not to take a whole pill or “do anything destructive with it.” The defendant also told a friend that he liked Oxymorphone because it “messe[d]” him up. The jury could have reasonably inferred that the defendant knew Oxymorphone was an inherently dangerous drug and that he acted with malice when he supplied the pill.

There was sufficient evidence of malice in a first-degree murder case. The intentional use of a deadly weapon which proximately results in death gives rise to the presumption of malice. Here, the victim was stabbed in the torso with a golf club shaft, which entered the body from the back near the base of her neck downward and forward toward the center of her chest to a depth of eight inches, where it perforated her aorta just above her heart; she was stabbed with a knife to a depth of three inches; her face sustained blunt force trauma consistent with being struck with a clothes iron; and there was evidence she was strangled. The perforation by the golf club shaft was fatal.

State v. Mack, 206 N.C. App. 512 (Aug. 17, 2010)

There was sufficient evidence of malice in a second-degree murder case involving a vehicle accident. The defendant, whose license was revoked, drove extremely dangerously in order to evade arrest for breaking and entering and larceny. When an officer attempted to stop the defendant, he fled, driving more than 90 miles per hour, running a red light, and traveling the wrong way on a highway — all with the vehicle's trunk open and with a passenger pinned by a large television and unable to exit the vehicle.

There was sufficient evidence of malice to support a second-degree murder conviction in a case where the defendant ran over a four-year-old child. When she hit the victim, the defendant was angry and not exhibiting self-control; the defendant’s vehicle created “acceleration marks” and was operating properly; the defendant had an “evil look”; and the yard was dark, several small children were present, and the defendant did not know where the children were when she started her car.

There was sufficient evidence of malice to sustain a second-degree murder conviction where the defendant drove recklessly, drank alcohol before and while operating a motor vehicle, had prior convictions for impaired driving and driving while license revoked, and fled and engaged in elusive behavior after the accident.

The trial court erred by failing to arrest judgment on one of the underlying felonies supporting the defendant’s felony-murder convictions. The court rejected the defendant’s argument that judgment must be arrested on all of the felony convictions. The defendant asserted that because the trial court’s instructions were disjunctive and permitted the jury to find her guilty of felony-murder if it found that she committed “the felony of robbery with a firearm, burglary, and/or kidnapping,” the trial court should have arrested judgment on all of the felony convictions on the theory that they all could have served as the basis for the felony murder convictions. Citing prior case law the court rejected this argument, stating that “[i]n cases where the jury does not specifically determine which conviction serves as the underlying felony, we have held that the trial court may, in its discretion, select the felony judgment to arrest.”

No double jeopardy violation occurred when the defendant was convicted of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious bodily injury based on the same events. Each offense includes an element not included in the other.

Citing State v. Washington, 141 N.C. App. 354 (2000), the court held that the defendant was properly charged and convicted of attempted murder and assault as to each victim, even though the offenses arose out of a single course of conduct involving multiple shots from a gun.

For purposes of double jeopardy, a second-degree murder conviction based on unlawful distribution of and ingestion of a controlled substance was not the same offense as sale or delivery of a controlled substance to a juvenile or possession with intent to sell or deliver a controlled substance.

A defendant may not be sentenced for both involuntary manslaughter and felony death by vehicle arising out of the same death. A defendant may not be sentenced for both felony death by vehicle and impaired driving arising out of the same incident. However, a defendant may be sentenced for both involuntary manslaughter and impaired driving.

A defendant may not be sentenced for both involuntary manslaughter and felony death by vehicle arising out of the same death. A defendant may not be sentenced for both felony death by vehicle and impaired driving arising out of the same incident. However, a defendant may be sentenced for both involuntary manslaughter and impaired driving.

State v. Childress, 367 N.C. 693 (Dec. 19, 2014)

The defendant’s actions provided sufficient evidence of premeditation and deliberation to survive a motion to dismiss an attempted murder charge. From the safety of a car, the defendant drove by the victim’s home, shouted a phrase used by gang members, and then returned to shoot at her and repeatedly fire bullets into her home when she retreated from his attack. The court noted that the victim did not provoke the defendant in any way and was unarmed; the defendant drove by the victim’s home before returning and shooting at her; during this initial drive-by, the defendant or a companion in his car yelled out “[W]hat’s popping,” a phrase associated with gang activity that a jury may interpret as a threat; the defendant had a firearm with him; and the defendant fired multiple shots toward the victim and her home. This evidence supported an inference that the defendant deliberately and with premeditation set out to kill the victim.

The defendant was convicted after a jury trial of first-degree murder, attempted first-degree murder, and other serious felony charges after he shot and killed his former girlfriend and then pistol-whipped and fired a gun at another woman, a registered nurse. In light of the facts of the case, the Court of Appeals rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the attempted first-degree murder charge for insufficiency of the evidence that he acted with premeditation and deliberation. The State proved, among other things, that the defendant said he would kill her and that he shot the door near the doorknob four to six times before kicking the door and yelling, which the court deemed sufficient evidence for the jury to reasonably conclude that the defendant attempted to kill the victim with premeditation and deliberation.

The appellate court also concluded that the defendant could not demonstrate prejudicial error resulting from the trial court’s deadly weapon malice instruction. The defendant argued that the instruction could have been misleading to the extent that it allowed an inference of malice on the attempted murder charge for shooting at the victim based on the injury resulting from a different crime, the pistol-whipping. Based on the defendant’s use of a weapon and the related circumstances, the court was unpersuaded that the jury would have reached a different result without the instruction.

In this murder case, there was sufficient evidence of premeditation and deliberation. The evidence showed that the victim suffered from a heart condition and other ailments. In the months before his death, the defendant and the victim--who were married--were arguing about financial issues. The defendant began a romantic relationship with her therapist and planned to ask the victim for divorce. A search of the home computer discovered Internet searches including “upon death of the veteran,” “can tasers kill people,” “can tasers kill people with a heart condition,” “what is the best handgun for under $200,” “death in absentia USA,” and “declare someone dead if missing 3 years.” On the date of death, the defendant visited her nephew, expressed concern about her safety due to break-ins in her neighborhood, and received from her nephew a gun and a knife. Shortly after that, she returned home and asked the victim to go on a drive with her. The defendant took the gun and knife in the car and used the weapons to kill the victim, shooting him and stabbing him approximately 12 times. Later in the day, the defendant messaged her therapist “it’s almost done” and “it got ugly.” After the incident, the defendant got rid of her bloodstained clothing, threw away the victim’s medications and identification, and said that he had either gone to Florida or was at a rehabilitation center.

In this first-degree murder case, the evidence was sufficient to go to the jury on the theory of premeditation and deliberation. Among other things, there was no provocation by the victim, who was unarmed; the defendant shot the victim at least four times; and after the shooting the defendant immediately left the scene without aiding the victim.

In this first-degree murder case there was sufficient evidence of premeditation and deliberation. Among other things, the evidence showed a lack of provocation by the victim, that just prior to the shooting the defendant told others that he was going to shoot a man over a trivial matter, that the defendant shot the victim 3 times and that the victim may have been turning away from or trying to escape at the time.

In a first-degree murder case, there was sufficient evidence of premeditation and deliberation. The court noted that the victim did not provoke the defendant and that the evidence was inconsistent with the defendant’s claim of self-defense.

In this first-degree murder case, the evidence was sufficient to show premeditation and deliberation. After some words in a night club parking lot the defendant shot the victim, who was unarmed, had not reached for a weapon, had not engaged the defendant in a fight, and did nothing to provoke the defendant’s violent response. After the victim fell from the defendant’s first shot, the defendant shot the victim 6 more times. Instead of then trying to help the victim, the defendant left the scene and attempted to hide evidence.

In a first-degree murder case there was sufficient evidence of premeditation and deliberation. There was evidence that the victim begged for his life, that the victim’s body had eight gunshot wounds, primarily in the head and chest, and there was a lack of provocation.

The State presented sufficient evidence that the defendant acted with premeditation and deliberation where, among other things, the defendant did not want a second child and asked his wife to get an abortion, he was involved in a long-term extramarital affair with a another woman who testified that the defendant was counting down the seconds until his first child would go to college so that he could leave his wife, the defendant had made plans to move out of his martial home but reacted angrily when his wife suggested that if the couple divorced she might move out of the state and take the children with her, and shortly before he shot his wife, he placed her cell phone out of her reach.

In a first-degree murder case, there was sufficient evidence of premeditation, deliberation, and intent to kill. After the defendant and an accomplice beat and kicked the victim, they hog-tied him so severely that his spine was fractured, and put tissue in his mouth. Due to the severe arching of his back, the victim suffered a fracture in his thoracic spine and died from a combination of suffocation and strangulation.

(1) The defendant’s statement that he formed the intent to kill the victim and contemplated whether he would be caught before he began the attack was sufficient evidence that he formed the intent to kill in a cool state of blood for purposes of a first-degree murder charge. (2) The court rejected the defendant’s argument that his evidence of alcohol and crack cocaine induced intoxication negated the possibility of premeditation and deliberation as a matter of law.

The defendant’s shooting of the victim’s mother (the defendant’s wife) while the victim was in utero was a proximate cause of the victim’s death after being born alive. The gunshot wound necessitated the child’s early delivery, the early delivery was a cause of a complicating condition, and that complicating condition resulted in her death.

In a case in which a second officer got into a vehicular accident and died while responding to a first officer’s communication about the defendant’s flight from a lawful stop, the defendant’s flight from the first officer was the proximate cause of the second officer’s death. The evidence was sufficient to allow a reasonable jury to conclude that the second officer’s death would not have occurred had the defendant not fled and that the second officer’s death was reasonably foreseeable. The court rejected the defendant’s argument that the second officer’s contributory negligence broke the causal chain.

There was sufficient evidence that the defendant’s actions were the proximate cause of death. The defendant argued that two unforeseeable events proximately caused the victims’ deaths: a third-party’s turn onto the road and the victims’ failure to yield the right-of-way. The court found that the first event foreseeable. As to the second, it noted that the defendant's speeding and driving while impaired were concurrent proximate causes.

There was sufficient evidence to survive a motion to dismiss in a case in which the defendant was charged with second-degree murder under G.S. 14-17 for having a proximately caused a murder by the unlawful distribution and ingestion of Oxymorphone. There was sufficient evidence that the defendant’s sale of the pill was a proximate cause of death where the defendant unlawfully sold the pill to the two friends, who later split it in half and consumed it; the victim was pronounced dead the next morning, and cause of death was acute Oxymorphone overdose.

In this case arising from a fatal automobile collision involving convictions for second-degree murder, DWI, felony death by motor vehicle, and failure to maintain lane control, the trial court erred by denying the defendant’s motion to dismiss the DWI and felony death by motor vehicle charges due to insufficient evidence of impairment.  There was, however, substantial evidence of malice with respect to second-degree murder and the trial court did not err in submitting that charge to the jury, nor did it err in submitting to the jury the failure to maintain lane control charge. 

Likening the case to its previous decision in State v. Eldred, 259 N.C. App. 345 (2018), the court found that there was insufficient evidence the defendant was impaired at the time of the collision where the officer who formed the opinion on impairment, an opinion based on observations occurring five hours after the collision, did so “entirely through passive observation” of the defendant, without requesting him to perform any field tests.  Moreover, the court noted, the officer did not ask the defendant if or when he and ingested any impairing substances.  The trial court erred by denying the defendant’s motion to dismiss the DWI charge, and, because DWI was a necessary element of the felony death by motor vehicle charge, also erred in denying the defendant’s motion to dismiss that charge.

Substantial evidence supported the failure to maintain lane control charge under G.S. 20-146(d)(1), a statute providing the disjunctive mandates that a motorist must (1) drive his or her vehicle “as nearly as  practicable entirely within a single lane” and (2) refrain from changing lanes unless he or she “has first ascertained that such movement can be made with safety.”  The defendant had argued that the fact that a tow truck partially obstructed his lane of travel meant that it was not “practicable” for him to drive entirely within that lane.  The court rejected that argument, finding that a reasonable juror could infer that the defendant could have avoided departing from his lane had he been traveling at a reasonable speed for conditions.  The court also explained that there was substantial evidence that the defendant failed to ascertain that his lane change movement could be made with safety as the tow truck also obstructed the defendant’s view of the perils which lay in his chosen lane change path.

The jury was instructed that the defendant would need to be found guilty of either DWI or failure to maintain lane control to be guilty of second degree murder, and having upheld his conviction on the lane control offense the court’s only remaining task was to determine whether there was substantial evidence that the defendant acted with malice.  Recounting the evidence in the light most favorable to the state, the court noted that the defendant was driving while knowing that his license was revoked for DWI and non-DWI offenses, was driving at an irresponsible speed for the icy conditions, made an unconventional maneuver to attempt to pass the tow truck partially obstructing his lane, became involved in a severe collision, left the scene without ascertaining whether anyone was harmed, and washed his car in an apparent attempt to destroy evidence and avoid apprehension.  The court also noted that the defendant’s extensive record of motor vehicle offenses and car accidents was published to the jury, allowing the jury to infer that he was aware of the risk to human life caused by his behavior on the road but nevertheless once again engaged in dangerous driving with indifference to its consequences.  This substantial evidence supported the element of malice by reckless disregard for human life.

Finally, the court determined that any error related to the admission of certain evidence was harmless because that evidence was relevant only to the issue of impairment, and further determined that the trial court’s denial of the defendant’s request for a jury instruction on the defense of accident, assuming the denial was error, was harmless because the jury’s verdicts suggested that it had rejected the notion that the defendant’s fatal unconventional traffic maneuver was unintentional.

In this case involving a conviction for second-degree murder following a fatal motor vehicle accident, the evidence was sufficient to establish malice. Evidence of the defendant’s prior traffic-related convictions are admissible to prove malice in a second-degree murder prosecution based on a vehicular homicide. Here, there was evidence that the defendant knew his license was revoked at the time of the accident and that he had a nearly two-decade-long history of prior driving convictions including multiple speeding charges, reckless driving, illegal passing, and failure to reduce speed. Additionally, two witnesses testified that the defendant was driving above the speed limit, following too close to see around the cars in front of him, and passing across a double yellow line without using turn signals. This was sufficient to establish malice.

In a case involving a conviction for second-degree murder following a fatal motor vehicle accident, the trial court did not abuse its discretion by admitting evidence of the defendant’s past driving offenses. The State’s evidence showed that on 23 November 2016, the defendant was stopped for an expired plate and was issued a citation for driving with a suspended license. At the time of the incident in question, the defendant’s license had been suspended since 22 May 2014 for failure to appear for a 2013 infraction of failure to reduce speed. Since the defendant’s driver’s license was originally issued in September 1997, he had multiple driving convictions including: failure to stop for siren or red light, illegal passing, speeding 80 in a 50, and reckless driving in March 1998; speeding 64 in a 55 in September 2000; speeding 64 in a 55 in October 2000; speeding 70 in a 50 in August 2003; driving while license revoked and speeding 54 in a 45 in January 2005; speeding 54 in a 45 in December 2006; failure to reduce speed resulting in accident and injury in February 2007; a South Carolina conviction for speeding 34 in a 25 in March 2011; speeding 44 in a 35 in January 2012; speeding 84 in a 65 in May 2013; and failure to reduce speed in February 2017 (the conviction corresponding to the 2013 charge on which the defendant failed to appear). Six of these prior convictions resulted in suspension of the defendant’s license. On appeal the defendant argued that the trial court erred by admitting his prior driving record without sufficient evidence establishing temporal proximity and factual similarity. The court disagreed. It found that there was no question that his prior driving record was admissible to show malice. It further held that the trial court’s finding of similarity was supported by the fact that the vast majority of prior charges involve the same types of conduct that the defendant was alleged to have committed in the present case—namely speeding, illegal passing, and driving while license revoked. Although the State did not present evidence of the specific circumstances surrounding the prior convictions, the similarity was evident from the nature of the charges.

            The trial court’s finding of temporal proximity was supported by the spread of convictions over the entirety of the defendant’s record, from the year his license was issued up until the year of the accident in question, showing a consistent pattern of conduct including speeding, illegal passing, and driving with a revoked license. The gaps in time between charges, never greater than three or four years, were not significant. Moreover, many of the gaps between charges occurred when the defendant’s license was suspended and he could not legally drive. The trial court properly determined that the time gaps in this pattern of conduct were less significant in light of the likely causes for the gaps, the defendant’s inability to legally drive. Additionally, the trial court properly gave a limiting instruction

            The court further rejected the defendant’s argument that the evidence should have been excluded because of the 10 year time limit under evidence Rule 609. That rule however only applies to evidence used to impeach a witness’s credibility, which is not at issue here.

The trial court did not err by denying the defendant’s motion to dismiss a charge of first-degree murder. On appeal the defendant argued that the State failed to introduce sufficient evidence with respect to an unlawful killing and the defendant’s identity as the perpetrator.

            The defendant argued that the State failed to show that the victim died by virtue of a criminal act. The court disagreed. The victim was found dead in a bathtub, with a hairdryer. Although the forensic pathologist who performed the autopsy was unable to determine a cause of death, he testified that he found red dots similar to bruising inside of the victim’s eyelids, causing him to believe that there was some type of pressure around her upper chest or neck and head area. He also found a large bruise on her right side that was less than 18 hours old, and an abrasion on her right thigh. A witness testified that the victim had no bruises the night before her death. Additionally, the pathologist found a hemorrhage on the inside of the victim’s scalp. The pathologist testified that her toxicology report was negative for alcohol and drugs and he ruled out drowning as a cause of death. He also found no evidence to support a finding that the victim died of electrocution. Taken in the light most favorable to the State, the evidence was sufficient to establish that the cause of death was a criminal act.

            The evidence was also sufficient to establish that the defendant was the perpetrator. The State presented substantial evidence of a tumultuous relationship between the defendant and the victim, colored by the defendant’s financial troubles, and that animosity existed between the two. The victim explicitly told a friend that she did not want to marry the defendant because of financial issues. The day before her death, the victim sent the defendant a text message, stating “You have until Tuesday at 8:00 as I’m leaving to go out of town Wednesday or Thursday. And my locks will be changed. So do my [sic] act stupid. Thanks.” She then sent an additional text stating, “I will also be [sic] send a request not to stop child support FYI.” The defendant’s financial difficulties, coupled with his tempestuous relationship with the victim and her threat to end the relationship and remove the defendant from her home are sufficient for a reasonable juror to conclude that the defendant had a motive to kill the victim. Additionally, the State presented evidence of opportunity. Specifically, evidence that the defendant was in the home between when the victim returned the night before and when her body was found the next day. Additionally, the evidence supported a conclusion that the victim was suffocated, and evidence connected the defendant to the method of killing. A white feather pillow was found behind a mattress in the room where the defendant stayed. Also in that room was an unopened pack of white socks. White feathers were found on the floor in the bedroom, in a trash bin outside the home, and in the bathroom where the victim’s body was found. A pair of wet white socks was found in the trashcan in the kitchen, with a feather on them. This evidence would allow a reasonable juror to conclude that the defendant had the means of suffocating the victim with the feather pillow found in his room and that he was connected to the means of the killing.

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