Aggravating Factors in Felony Speeding to Elude Statute Are Elements for Purposes of Double Jeopardy

The North Carolina Court of Appeals in State v. Mulder, 233 N.C. App. 82 (2014), held that punishing a defendant for felony speeding to elude based upon the aggravating factors of speeding and reckless driving while also punishing him separately for those same misdemeanor traffic offenses violated double jeopardy.

Facts. The facts in Mulder are disturbing. The defendant’s former girlfriend, Brenda Swann, obtained a domestic violence protective order against him when their relationship ended.  While the order was in effect, the defendant went to Swann’s home and began to strike her car with a hammer. Swann’s son confronted the defendant, who then attempted to force his way into the house.  Swann called the police, and the defendant left the premises. A law enforcement officer located the defendant driving in his car shortly afterwards and attempted to pull the defendant over. The defendant did not stop, and the officer continued to pursue him.  The officer testified that while fleeing, the defendant was swerving “as if he was trying to hit . . . . innocent people on the highway.” Several other officers joined the chase, and the vehicles involved reached speeds of 100 miles per hour. The defendant swerved toward one officer’s car and eventually rammed into another officer’s vehicle.  An officer then intentionally rammed the defendant’s driver’s side door to force him to stop. The officer approached the defendant’s car with his gun pointed at the defendant.  He told the defendant to get out of the car.  The defendant reached out of the window, slapped the gun, and said “shoot me, mother[]f*****.” Rather than complying with the defendant’s request, the officer tried to pull the defendant out of the car. While he was doing so, the defendant shifted the car into reverse and accelerated. The officer with the gun was hanging in the driver’s side window, and another officer was hanging in the passenger side window. The second officer reached into the car, put it into park and shut off the engine.  The defendant continued to struggle and curse as he was pulled from the car and arrested.

Procedural History. The defendant was indicted for, among other crimes, speeding, reckless driving to endanger, and speeding to elude arrest.  He was convicted of those and other crimes.  He was sentenced to 6 to 8 months imprisonment for the consolidated offenses of speeding, reckless driving, speeding to elude arrest, failure to heed light or siren, failure to maintain lane control, and littering. (He received longer sentences for his five convictions of assault with a deadly weapon on a government officer.)

The defendant appealed, arguing that the trial court erred in failing to arrest judgment on the speeding and reckless driving convictions because each of those offenses is a lesser-included offense of felony speeding to elude, an offense that was raised from a misdemeanor to a felony on the basis that the defendant was speeding and driving recklessly.  Imposing punishment for all three offenses, the defendant contended, violated principles of double jeopardy.

Court of Appeals’ Analysis. The appellate court applied the Blockburger test, which inquires whether each offense requires proof of a fact that the other does not, to determine whether speeding and reckless driving were the “same offense” as felony speeding to elude for purposes of double jeopardy.

The elements of misdemeanor speeding to elude arrest under G.S. 20-141.5(a) are: (1) operating a motor vehicle (2) on a street, highway, or public vehicular area (3) while fleeing or attempting to elude a law enforcement officer (4) who is in the lawful performance of his duties.  G.S. 20-141.5(a). If the State proves two of eight aggravating factors set forth in G.S. 20-141.5(b), the offense is elevated to a felony. The two factors found by the jury in Mulder were (1) speeding more than 15 miles per hour over the legal speed limit and (2) reckless driving as proscribed by G.S. 20-140.

The defendant also was convicted of speeding under G.S. 20-141(j1), which prohibits (1) driving (2) a vehicle (3) on a highway (4) more than 15 miles per hour over the speed limit or over 80 miles per hour and reckless driving in violation of G.S. 20-140(b), which prohibits (1) driving (2) a vehicle (3) on a highway or public vehicular area (4) without due caution and circumspection and (5) at a speed or in a manner so as to endanger or be likely to endanger any person or property.

The court reasoned that the factors used to elevate speeding to elude to a felony contained the same elements as the lesser traffic offenses of which the defendant also was convicted. It then considered whether these factors were properly considered elements of felony speeding to elude.

The State characterized the factors as sentencing enhancements rather than elements. The court of appeals rejected that distinction, noting that since the factors increased the maximum punishment a defendant faced, they were elements for purposes of the Sixth Amendment right to a jury trial. The court of appeals cited the U.S. Supreme Court’s plurality opinion in Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003), for the proposition that that there was no principled reason to distinguish between an offense for purposes of the Sixth Amendment’s jury-trial guarantee and an offense for purposes of the Fifth Amendment’s double jeopardy clause.  The Mulder court concluded, based on this authority, that the lesser included offenses were the “same offense” under Blockburger as felony speeding to elude.

Legislative Intent. The court then proceeded to the next step of the double jeopardy analysis—determining the legislature’s intent.  When a defendant is punished twice in the same trial for a single offense, relief under double jeopardy principles is only available if the legislature did not intend for multiple punishments to be imposed. In ascertaining the legislature’s intent, the court considered its purpose in criminalizing speeding under G.S. 20-141 and reckless driving under G.S. 20-140. Both statutes were enacted to protect against harm to persons and property and in the interest of public safety.  The same concerns apparently motivated the legislature to include these factors among those elevating speeding to elude to felony status. The court considered the codification of each offense in related sections of Chapter 20 to further evidence the General Assembly’s intent to permit alternative, but not cumulative, punishments for lesser traffic offenses used to establish felony speeding to elude.

Thus, the court held that the defendant was unconstitutionally subjected to double jeopardy when he was convicted of speeding and reckless driving in addition to felony speeding to elude based on speeding and reckless driving. The court arrested judgment on the speeding and reckless driving convictions. The court also remanded for resentencing, even though the speeding and reckless driving convictions were consolidated with the felony speeding to elude conviction and the defendant was sentenced to a presumptive range sentence. The court said that it could not assume that the trial court’s consideration of the speeding and reckless driving convictions had no effect on the sentence imposed.

Broader Significance.  Mulder almost certainly means that lesser criminal offenses, such as driving while license revoked, that aggravate a sentence for impaired driving under G.S. 20-179 are the same offense for double jeopardy purposes. What is less certain is whether the legislature intended to authorize cumulative punishment in the impaired driving context. I reasoned here that it likely did, but the factors considered in Mulder, namely the purpose of the statutes and place of codification, points to a different conclusion.

Mulder may also revive the Hurt Blocker, a phrase Jamie coined in discussing the court of appeals’ conclusion in State v. Hurt, 208 N.C. App. 1, 702 S.E.2d 82 (2010), rev’d on other grounds, ___ N. C. ___, 743 S.E.2d 173 (2013) (per curiam), that the Confrontation Clause of the Sixth Amendment to the U.S. Constitution applied to the proof at sentencing of sentencing factors that increase the defendant’s sentence beyond the statutory maximum. Hurt was reversed by the supreme court on the grounds that the defendant’s confrontation rights were not violated by the testifying experts’ reliance on reports prepared by experts who did not testify at trial. ___ N.C. at ___; 743 S.E.2d at 173 (per curiam).

If you foresee other developments (or fall out, depending upon your perspective) following Mulder, please share your thoughts.

Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.