State v. Schmieder, ___ N.C. App. ___, 827 S.E. 2d 322 (Apr. 16, 2019)

In a case involving a conviction for second-degree murder following a fatal motor vehicle accident, the indictment was sufficient. On appeal the defendant argued that the indictment only charged him with Class B1 second-degree murder, a charge for which he was acquitted, and not the Class B2 version of second-degree murder for which he was convicted. The court disagreed. Under G.S. 15-144, “it is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed).” Here, the indictment alleged that the defendant “unlawfully, willfully, and feloniously and of malice aforethought did kill and murder Derek Lane Miller.” This is sufficient to charge the defendant with second-degree murder as a B2 felony. The defendant however argued that the indictment was insufficient because, by only checking the box labeled “Second Degree” and not checking the box beneath it labeled “Inherently Dangerous Without Regard to Human Life,” the defendant was misled into believing he was not being charged with that form of second degree murder. The court disagreed, stating: “by checking the box indicating that the State was charging ‘Second Degree’ murder, and including in the body of the indictment the necessary elements of second degree murder, the State did everything necessary to inform [the defendant] that the State will seek to prove second degree murder through any of the legal theories the law allows.” Moreover, it noted, the defendant did not show that he was actually misled, and the record indicates that he understood that the State would seek to introduce his prior driving record and argue that his pattern of driving demonstrated that he engaged in an act that is inherently dangerous to human life done recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.