State v. Davis and Double Jeopardy v. Statutory Construction

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[Update: the state supreme court reviewed this case, reversing in part, as described here.]

The court of appeals published its opinion in State v. Davis this week, a case in which it affirmed the defendant’s convictions for felony serious injury by vehicle, assault with a deadly weapon inflicting serious injury, two counts of felony death by vehicle, and two counts of second degree murder arising from a traffic accident in which two people were killed and another was seriously injured after the defendant, who was driving while impaired, crashed into their vehicle. Davis’ cumulative sentence exceeds 35 years. Most of the opinion was dedicated to the court’s analysis in support of its determination that the state presented sufficient evidence of malice to support the conviction for second degree murder and sufficient evidence of intent to support the conviction for assault with a deadly weapon inflicting serious injury. The court dismissed the defendant’s argument that the trial court violated double jeopardy principles and the “clear meaning from the statute” (Appellant’s Brief at 24) by failing to arrest judgment for his convictions of felony death by vehicle and felony serious injury by vehicle when he was also sentenced for second degree murder and assault with a deadly weapon inflicting serious injury based on the same conduct. The defendant didn’t object to the “purported double jeopardy violation” at trial; thus, the court said he failed to preserve the issue for appellate review.

And while it’s my view that the defendant could not lawfully be punished for felony death by vehicle and felony serious injury by vehicle based upon the same conduct underlying the more serious convictions for second degree murder and assault with a deadly weapon inflicting serious injury, it is clear that there was no double jeopardy violation.  Jeff Welty blogged here about the improper characterization of statutory interpretation as double jeopardy analysis, noting that there is no “general double jeopardy prohibition against convicting a defendant of both a more serious offense and a ‘lesser related’ offense, that shares some elements with the more serious offense but also has some distinct elements so that it is not a lesser-included offense.” Felony death by vehicle is not a lesser included offense of second degree murder as each offense requires proof of an element that the other does not — impaired driving for the former, and malice for the latter. The same is true for felony serious injury by vehicle and assault with a deadly weapon inflicting serious injury. The former requires impaired driving, while the latter requires assault, which can be based on conduct other than impaired driving. The seminal case conflating double jeopardy analysis with statutory construction is State v. Ezell, 159 N.C. App. 103 (2003), in which the court held that the defendant could not be convicted of and punished for assault inflicting serious bodily injury under GS 14-32.4 when, based on the same conduct, he was convicted of the more serious offense of assault with a deadly weapon with intent to kill under GS 14-32. The Ezell court based its conclusion on the language in GS 14-32.4 providing for its application “[u]nless the conduct is covered under some other provision of law providing greater punishment.” That same language appears in GS 20-141.4(b) — the punishment provisions for both felony death by vehicle and felony serious injury by vehicle. Thus, it appears that when the conduct is covered by a law providing for greater punishment, the conduct is not punishable under GS 20-141.4.

Had the issue in Davis been more clearly framed as an objection to an improper reading of the statute that led to an unlawful sentence, the court might have considered it a sentencing error subject to appellate review regardless of the defendant’s failure to object at trial. Cf. State v. Matthews, 175 N.C. App. 550 (2006) (reviewing as “sentencing error” defendant’s argument that the trial court erred in entering judgment and sentencing him for felonious larceny when the jury did not find either that the defendant was guilty of felonious breaking and entering or that the value of the goods taken was more than $1,000).

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