Darian Mosley’s sentence for second degree murder was vacated last week because the jury did not specify whether he acted with (1) hatred, ill-will or spite, (2) intentionally and without justification, or (3) a depraved heart when he shot and killed his girlfriend, Amy Parker, in April 2013. The court of appeals held in State v. Mosley that, without knowing the theory of malice that supported the verdict, the trial judge erred in sentencing Mosley as a Class B1 felon. The appellate court remanded the case to the trial court with instructions to sentence Mosley for a Class B2 felony. It also recommended actions for trial courts instructing juries in future murder cases.
Tag Archives: malice
Jeff wrote on Monday about efforts by North Carolina government officials to combat the opioid epidemic.The initiatives he highlighted, such as addiction treatment and needle exchange programs, primarily attack the problem from a public health perspective. Jeff noted the contrast between this approach and the criminal-drug-law enforcement response to the spread of crack cocaine in the 1990s.
That’s not to say, however, that the criminal justice system isn’t responding to the current crisis. In counties across the State, including New Hanover, Onslow, Pender, Pitt, Union, and Wake, prosecutors are pursuing second-degree murder charges against defendants who are alleged to have provided the opioids leading to victims’ deaths.
This post explores the basis for murder charges based on the unlawful distribution of drugs and what the State must prove at trial to establish a defendant’s guilt.
Category: Crimes and Elements | Tags: Ludwig, malice, opioid, opioid epidemic, second degree murder, state v. parlee, state v. pritchard
In State v. Schalow (Dec. 20, 2016), the trial court’s error in declaring a mistrial led to a successful claim of double jeopardy by the defendant and allowed him to avoid further prosecution for attempted murder. Schalow sheds light on the relatively obscure (at least to me) law of mistrials and double jeopardy. Continue reading →
Category: Crimes and Elements, Procedure | Tags: double jeopardy, malice, manifest necessity, mistrial
The court of appeals’ recent decision in State v. Pierce, __ N.C. App. __ (October 18, 2011), analyzed whether a defendant could properly be convicted of second degree murder for the death of a law enforcement officer who was speeding to assist another officer who in turn was chasing the defendant as he fled in his vehicle. The court’s analysis of malice, the foreseeability of such injury and the relevance of the victim’s contributory negligence struck me as worthy of highlighting in a post.
Here’s what happened: Wilmington Police Corporal Richards attempted to stop defendant’s sports utility vehicle on suspicion that its occupants recently had engaged in a drug transaction. The defendant initially pulled to the side of the road, but drove away before Corporal Richards could get out of his patrol car.
Corporal Richards pursued the defendant, while informing the dispatcher and nearby officers of the chase and its location. During Corporal Richards’ pursuit, the defendant drove at 65 mph in a residential area with a speed limit of 25 mph and bags of marijuana were thrown from the car. Wilmington Police Officer Matthews, who was a few miles away, responded to Corporal Richards’ radioed report by driving toward the area of the chase at “high speeds.” Along the way, Officer Matthews swerved to avoid debris in the road, lost control of his vehicle, and died after his vehicle ran off the road and hit a stand of trees.
Among the arguments the defendant raised on appeal was that the trial court erred by denying his motion to dismiss the second degree murder charge as there was insufficient evidence of malice and insufficient evidence that his flight from Corporal Richards caused Officer Matthews’ death. The court of appeals disagreed.
The court rejected the defendant’s contention that the evidence of malice was insufficient, citing as support its statement in State v. Lloyd, 187 N.C. App. 174 (2007), that “‘the very act of fleeing from the police certainly constitutes malice.’” Slip op. at 6 (quoting Lloyd , 187 N.C. App. at 180). The court compared the defendant’s conduct in the instant case with the conduct found sufficient to establish malice in State v. Bethea, 167 N.C. App. 215, 218 (2004), a case in which the defendant drove with a revoked license, fled law enforcement officers, sped through a stop light and stop signs, drove up to 100 mph, crossed into the oncoming traffic lane, and turned his car lights off on dark rural roads while traveling 90 to 95 miles per hour. The Bethea court concluded that the defendant’s actions, along with a “mind unclouded by intoxicating substances that might have hindered his ability to appreciate the dangers of his actions,” showed an “‘intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result, thus evidencing depravity of mind.’” Id. at 219-20. The Pierce court likewise concluded that the defendant’s intentional flight from Corporal Richards in the instant case reflected knowledge that injury or death would likely result and manifested depravity of mind and disregard of human life. Thus, the court found the evidence sufficient to allow the jury to infer malice.
The defendant argued that the State could not rely upon his conduct during the police chase to establish malice for purposes of a second degree murder prosecution arising from the death of Officer Matthews, since Officer Matthews was not chasing the defendant when he crashed his car and died. While recognizing that malice requires conscious indifference to consequences when the probability of harm to another within the circumference of such conduct is reasonably apparent, the court held that it could not conclude that the harm that befell Officer Matthews “was so far beyond the circumference of Pierce’s reckless actions as to absolve Pierce of liability for Officer Matthews’ death.” Slip op. at 8. The court deemed foreseeable other officers’ participation in the pursuit of the defendant and held that “Pierce’s reckless flight, Officer Matthews’ proximity to the chase, and the danger inherent in a motor vehicle pursuit” were sufficient evidence of “Pierce’s conscious indifference to the reasonably apparent probability of harm to an officer such as Officer Matthews.” Slip. op. at 9.
The defendant further contended that there was insufficient evidence that his flight from Corporal Richards was the proximate cause of Officer Matthews’ death. Noting that proximate cause is a cause (1) that “in a natural and continuous sequence and unbroken by any new and independent cause, produces an injury; (2) without which the injury would not have occurred; and (3) from which a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result, was probable,” the court determined that the evidence was sufficient to establish proximate cause.
The court reasoned: Defendant fled from Corporal Richards’ lawful attempt to stop him, creating a police exigency. Officer Matthews, a nearby officer, was informed of the exigency and sped to provide assistance and apprehend the defendant. On his way, Officer Matthews swerved to avoid an object in the road, and, because of the speed at which he was traveling to join the pursuit of the defendant, he ran off the road into the trees, and was killed. The court viewed this evidence as sufficient to establish that (1) Officer Matthews’ death would not have occurred if the defendant had remained stopped when Corporal Richards pulled him over; and (2) an injurious result such as Officer Matthews’ death was reasonably foreseeable under the circumstances. Slip op. at 10. Thus, court rejected the defendant’s argument that the court erred in denying his motion to dismiss the second degree murder charge on the grounds that there was insufficient evidence to show that his flight proximately caused Officer Matthews’ death.
Defendant also argued that his conviction for second-degree murder should be overturned because the trial court “unconstitutionally barred him from presenting a full defense by excluding evidence tending to show that Officer Matthews was negligent in speeding to the pursuit and, therefore, was the cause of his own death.” Noting that “‘contributory negligence [] has no place in the law of crimes,’” the court explained that Officer Matthews’ alleged negligent conduct could absolve the defendant of criminal liability only if Officer Matthews’ conduct so entirely intervened or superseded the defendant’s negligence that it alone produced the injury. The court determined even if Officer Matthews was negligent, no reasonable person could conclude that his conduct, undertaken in response to an exigency created by the defendant, was the sole cause of his death. The court of appeals therefore concluded that the trial court’s decision to exclude evidence of Officer Matthews’ alleged negligence did not violate the defendant’s “’right to a full and fair defense.’” Id. at 12.
The analysis in Pierce accords with that of other state courts confronting similar arguments. See, e.g., State v. Anderson, 12 P.3d 883 (Kan. 2000) (concluding that reckless speeding by motorcyclist while being pursued by police created situation that resulted in the death of a person whose car was struck by a patrol car that ran stop sign during the chase and that defendant reasonably could have foreseen such harm); State v. Lovelace, 738 N.E.2d 418 (Ohio App. 1999) (affirming defendant’s conviction for involuntary manslaughter based on the death of a person who was killed when a police officer who was seeking to join in the chase of the defendant ran a stop sign and collided with the person’s vehicle); see also People v. Schmies, 51 Cal Rptr.2d 185 (Cal. App. 3 Dist. 1996) (rejecting defendant’s claim that in vehicular manslaughter trial the trial court improperly excluded evidence relating to the reasonableness of the police officers’ conduct while chasing the defendant on his motorcycle; during the pursuit a police officer failed to stop at intersection and crashed into another car, killing its driver).
Category: Crimes and Elements, Motor Vehicles, Uncategorized | Tags: flight, malice, murder, pierce, proximate cause
Jeff wrote here about a recent high-profile case in which a defendant, Raymond Cook, was charged with multiple felony offenses after he drove while impaired and crashed into a young woman’s car in North Raleigh, killing her. In Cook’s case, the jury found the defendant guilty of impaired driving, involuntary manslaughter and felony death by vehicle, but acquitted him of second-degree murder.
Driving while impaired and proximately causing the death of another constitute both involuntary manslaughter and felony death by vehicle. A person convicted of both offenses arising from the same incident may, however, be sentenced only for felony death by vehicle, the more serious offense. See State v. Lopez, 363 N.C. 535, 536 (2009).
Because the act of driving while impaired violates a safety statute designed for the protection of human life and limb, it amounts to culpable negligence as a matter of law, see State v. Davis, 198 N.C. App. 443, 447 (2009). Thus, driving while impaired and proximately (but unintentionally) causing the death of another is involuntary manslaughter, a Class F felony. However, the act of impaired driving and thereby causing the death of another does not, without more, constitute second-degree murder. That is because second-degree murder requires malice, a state of mind that can be proved in vehicular homicide cases by showing that the defendant intended to drive in a reckless manner reflecting knowledge that injury or death would likely result. See State v. McAllister, 138 N.C. App. 252 (2000).
The United States Court of Appeals for the Fourth Circuit in United States v. Fleming, 739 F.2d 945 (4th Cir. 1984), distinguished impaired driving and death cases involving malice (and thereby supporting murder charges) from those involving culpable negligence (supporting a conviction for manslaughter, but not murder) this way:
In the vast majority of vehicular homicides, the accused has not exhibited such wanton and reckless disregard for human life as to indicate the presence of malice on his part. In the present case, however, the facts show a deviation from established standards of regard for life and the safety of others that is markedly different in degree from that found in most vehicular homicides. In the average drunk driving homicide, there is no proof that the driver has acted while intoxicated with the purpose of wantonly and intentionally putting the lives of others in danger. Rather, his driving abilities were so impaired that he recklessly put others in danger simply by being on the road and attempting to do the things that any driver would do. In the present case, however, danger did not arise only by defendant’s determining to drive while drunk. Rather, in addition to being intoxicated while driving, defendant drove in a manner that could be taken to indicate depraved disregard of human life, particularly in light of the fact that because he was drunk his reckless behavior was all the more dangerous.
Id. at 948.
Following are examples of evidence deemed sufficient by North Carolina’s appellate courts to establish malice in impaired driving cases resulting in the death of someone other than the driver:
- Driving by the defendant with a revoked license and having previously been convicted of impaired driving, see State v. Armstrong, 691 S.E.2d 433, 438 (N.C. App. 2010); State v. McAllister, 138 N.C. App. 252 (2000)
- Driving with a blood alcohol concentration measuring 0.113 three hours after the accident and driving into the victim’s lane of travel after having previously been convicted of driving after consuming by a person under 21, and, while facing pending charges of driving while impaired and driving while license revoked, see State v. Gray, 137 N.C. App. 345 (2000)
- Driving while substantially impaired after prior convictions for driving while impaired, driving with a revoked license and using false license tags along with an inspection sticker obtained by lying to inspection personnel, see State v. McBride, 109 N.C. App. 64, 68 (1993)
- After fighting with bar proprietor, driving away and passing a car in a no passing zone, striking a motorcycle, and driving through a red light into an intersection at 60 miles per hour, crashing into a car and killing all three of its occupants, see State v. Snyder, 311 N.C. 391, 392-394 (1984)
In Cook’s case, the State introduced evidence that the defendant drove 30 mph over the speed limit on a North Raleigh Street, with an alcohol concentration two or three times over the legal limit. Such evidence appears legally sufficient to establish malice, but, of course, even evidence legally sufficient to establish guilt may be insufficient to convince the jury.
Category: Crimes and Elements, Motor Vehicles, Uncategorized | Tags: DWI, impaired driving, malice, second degree murder
I wrote here about the court of appeals’ recent ruling in State v. Davis that expert testimony calculating the defendant’s alcohol concentration based on odor alone was improperly admitted at defendant’s trial on second-degree murder, impaired driving, and other charges arising from a fatal hit-and-run accident. This post addresses the court’s ruling in Davis as to the admissibility of defendant’s prior impaired driving convictions, which were introduced to prove malice—that is, that the defendant drove in a manner that reflected knowledge that injury or death would result, thus evidencing depravity of mind.
Though the Davis court granted the defendant a new trial on the second-degree murder charges based upon prejudice resulting from the improper expert testimony, it nevertheless proceeded to address the defendant’s argument that evidence of her prior convictions was improperly admitted, noting that this issue was “likely to arise in her new trial.” (Slip op. at 23).
The State introduced evidence at trial that the Davis defendant had been convicted four times of impaired driving, most recently in 2006, and three times earlier, in 1989 and 1990. North Carolina Rule of Evidence 404(b), discussed in several other blog posts here, here and here permits the introduction of relevant evidence of other crimes so long as the evidence is offered for a purpose other than showing that because the defendant previously committed a crime, he likewise committed the instant offense.
The defendant in Davis objected to evidence of the three convictions that occurred more than seventeen years before the accident giving rise to the current charges, arguing that they were too temporally remote to be admissible as evidence of malice. The court of appeals agreed.
The court noted that under Rule 404(b), prior convictions introduced to show malice must be similar to the instant offense and temporally proximate. As to temporal proximity, it explained that while there is no bright-line rule beyond which a conviction is too remote in time to be relevant, the relevancy of temporally remote convictions depends on intervening circumstances.
Davis reviewed—and contrasted—the state supreme court’s holdings in State v. Goodman, 149 N.C. App. 57 (2002), rev’d, 357 N.C. 43 (2003) (per curiam), and State v. Maready, 362 N.C. 614 (2008). In Goodman, the supreme court reversed the court of appeals for the reasons stated in the dissenting opinion below, thereby holding that admission of the defendant’s six prior impaired driving convictions pursuant to Rule 404(b) as evidence of malice was plain error when only one of the convictions occurred in the sixteen years before the crime at issue and none occurred within the eight years before the current offense. Goodman explained that “even though offenses may be similar, if they are distanced by significant stretches of time, commonalities become less striking, and the probative value of the analogy attaches less to the acts than to the character of the actor, a purpose for which 404(b) evidence is excluded.” Goodman, 149 N.C. App. at 73 (Greene, J., dissenting) (internal quotations omitted). The passage of time plays an integral part in the balancing process required under Rule 403 to determine the admissibility of Rule 404(b) evidence because as past convictions become more remote, their admission “allows the jury to convict [a] defendant because of the kind of person he is, rather than because the evidence discloses, beyond a reasonable doubt, that he committed the offense charged.” Id. (Greene, J., dissenting) (internal quotations omitted).
In Maready, 362 N.C. 614 (2008), however, the court found no plain error in the admission of the defendant’s driving record, which contained convictions that occurred more than sixteen years before the driving giving rise to the second-degree murder charges for which the defendant was on trial. The court considered the Maready defendant’s record a “stark contrast” to the record in Goodman, noting that the defendant in Maready was convicted of impaired driving four times in the sixteen years preceding the latest offense, with the last conviction occurring less than six months before the current incident. Id. at 623. The court considered this pattern more consistent, and therefore more probative, than the record in Goodman. Given that the jury was aware of defendant’s four convictions for impaired driving in the sixteen years before the offense at issue, the court disagreed with the defendant’s argument that evidence of defendant’s eleven older convictions for traffic-related offenses (including two for impaired driving) influenced the jury’s verdict, finding no plain error in their admission.
Significantly, Maready held that there was no fixed point in time after which a conviction was too remote to be probative, rejecting the notion that Goodman established a bright-line rule barring the admission of any conviction that occurred more than sixteen years before the current offense. Maready further characterized Goodman as an exception to the general rule that remoteness in time affects the weight rather than the admissibility of 404(b) evidence, particularly when the prior conduct is offered to prove a defendant’s state of mind rather than that the earlier actions are part of a common scheme or plan.
Maready explained that the Goodman exception arose from the combination of temporal remoteness and the defendant’s clean driving record in the years leading up to the crime for which he was on trial. In contrast, the older convictions in Maready were part of a clear and consistent pattern of criminality that in light of the defendant’s four convictions for impaired driving within sixteen years of the offense were highly probative of the defendant’s mental state.
In Davis, the court found the defendant’s record “strikingly similar to that of Goodman,” noting that there was a gap of sixteen years between her most recent prior conviction for impaired driving, which occurred in 2006, and the next most recent conviction, which occurred in 1990. (Slip op. at 27). The court concluded that the eighteen- and nineteen-year-old convictions, combined with the 2006 conviction, did not demonstrate a “clear and consistent pattern of criminality,” and, thus, were not highly probative of her mental state at the time of the current offense. (Slip op. at 27-28 (internal quotations omitted).) Admission of the three oldest convictions, though not the 2006 conviction, was held to be prejudicial error.
Davis expands the Goodman exception. In Goodman, there was a significant gap in time between the offense for which the defendant was charged and each of the prior convictions, with the most recent conviction occurring eight years before the current offense. Thus, the temporal remoteness of the prior convictions combined with the recent clean driving record to render all but the most recent of these prior convictions inadmissible. In Davis, in contrast, the defendant had been convicted of impaired driving within two years of the current offense. Indeed, the defendant’s license was revoked at the time of the accident, apparently as result of the 2006 impaired driving conviction. Thus, unlike the defendant in Goodman, the Davis defendant had no recent clean driving record to combine with the temporal remoteness of the stale convictions.
I find it hard to distinguish Davis from State v. Miller, 142 N.C. App. 435 (2001), on any basis other than the passage of sixteen years (rather than thirteen) between the defendant’s most recent prior conviction and the one preceding it. In Miller, the defendant was charged with second-degree murder based on a 1998 accident in which the State alleged that the defendant caused a fatal collision while driving while impaired. Evidence of the defendant’s prior convictions for careless and reckless driving in 1982, driving under the influence in 1983, and driving while impaired and careless and reckless in 1985 were introduced at trial to prove malice. The court rejected the defendant’s argument that these convictions, occurring sixteen, fifteen, and thirteen years before the current offense were too remote to be relevant.
So, despite the court’s protestations to the contrary, perhaps it is the case that some prior driving convictions are just too old to be admissible to show malice, though the relevant time period is not the number of years before the instant offense, but instead the number of years between prior convictions. If so, Miller establishes that a thirteen-year gap is permissible, while Davis establishes that sixteen years is too long.
Category: Evidence, Motor Vehicles, Uncategorized | Tags: 404(b), DWI, Evidence, impaired driving, malice, murder, prior bad acts, relevancy
Our murder statute, G.S. 14-17, defines first-degree murder, then proceeds as follows: “All other kinds of murder, including that which shall be proximately caused by the unlawful distribution of opium . . . cocaine . . . or methamphetamine, when the ingestion of such substance causes the death of the user, shall be deemed murder in the second degree.” I was asked recently if the state must show malice in order to prove second-degree murder by drugs.
The person who asked me thought that the answer was no, because the statute doesn’t say anything about malice. He thinks that any time A sells or gives drugs to B, and B dies as a result of using the drugs, A is guilty of second-degree murder. On the other hand, the pattern jury instruction for second-degree murder by drugs, N.C.P.I. — Crim. 206.31B, does require a finding of malice before the jury may return a verdict of guilty.
The pattern instruction is correct. In State v. Davis, 305 N.C. 400 (1982), the North Carolina Supreme Court held that the murder by drugs provision was added to G.S. 14-17 only to make clear that murder by drugs was not felony murder:
[T]he . . . amendment . . . relative to murders proximately caused by the unlawful distribution of controlled substances was intended to do no more [than clarify that such murders are not felony murders]. More specifically, we do not think the legislature intended to create a crime of murder in the second degree arising solely from the fact that a death results from the unlawful distribution of controlled substances without a showing of intent and malice aforethought.
The fact that G.S. 14-17 doesn’t mention malice in connection with murder by drugs isn’t significant, because the statute doesn’t mention malice in connection with any kind of murder. Malice is part of the common law definition of “murder” that underlays our statute.
The point was further reinforced by the court of appeals in State v. Liner, 98 N.C. App. 600 (1990). The defendant in that case stole some controlled substances from a pharmacist and gave them to two friends for recreational use. Both friends became very ill, yet several days later, the defendant allowed a third friend to consume the same drugs. The third friend died as a result, and the defendant was charged with, and convicted of, second degree murder. The court of appeals affirmed the defendant’s conviction, finding, inter alia, sufficient evidence of malice in the fact that the defendant distributed the drugs to the third friend “with the knowledge that the drugs were inherently dangerous due to the fact that [the first two friends] had both become violently ill after using the drugs in defendant’s presence.” Of course, if malice were not a required element of second-degree murder by drugs, the court would not have needed to resolve this issue at all.
As a final note, it bears mentioning that in some circumstances, murder by drugs may be first-degree murder. For example, a person who deliberately kills another person by administering an overdose of a controlled substance is guilty of first-degree murder, both on the premeditation and deliberation theory and on the murder by poison theory.
Category: Crimes and Elements, Uncategorized | Tags: malice, murder, murder by drugs, second degree murder
Among the most recent batch of opinions issued by the Court of Appeals was State v. Tellez, in which the court upheld the defendant’s conviction of two counts of second-degree murder and one count of felonious hit and run arising from a fatal car crash. Here are the facts: Defendant went to a party in Coats, NC around 1 p.m. on March 4, 2007, where he drank three beers. Three hours later, defendant and his friends, Castro and Childers, left the party in Castro’s car. Defendant drove and, while he was driving, began to drink a fourth beer. As defendant approached an intersection with a state highway, he slowed, but did not stop. Indeed, defendant drove around a car that had stopped at the intersection and drove straight into the path of a truck driven by Dwayne Braswell and in which Braswell’s nine-year-old son, Jerry, was a passenger. After the collision, the truck rolled several times and caught on fire. Paramedics were unable to help Mr. Braswell or his son because of the fire. Their bodies burned beyond recognition. Defendant ran from the scene. Childers told the trooper who arrived on the scene that the defendant “was drunk and ran, got scared.” But Childers testified at trial that she did not know whether Tellez “was intoxicated” and “didn’t think he was.”
Tellez argued on appeal that the trial court erred in denying his motion to dismiss the second-degree murder charge because there was no evidence that he was driving while impaired. The court rejected this contention. Noting that second-degree murder is an unlawful killing with malice but without premeditation and deliberation, the court explained that there must be an intentional act sufficient to show malice. To prove malice in operating a motor vehicle, the State must prove that the defendant intended to drive in a reckless manner that reflected knowledge that injury or death would likely result, thus evidencing depravity of mind. Conduct other than impaired driving can arise to this level of recklessness.
The Tellez court concluded that the evidence of defendant’s (1) reckless driving, (2) consumption of alcohol before and during driving, (3) prior convictions for impaired driving and driving while license revoked, and (4) flight and elusive behavior after the collision constituted substantial evidence of malice based upon depravity of mind.
That the defendant’s reckless driving and his consumption of alcohol would be considered evidence of driving in such a way that reflects knowledge that injury or death would likely result-in other words, malice-seems rather obvious. This post is focused on the latter two categories of evidence, the defendant’s prior convictions and his post-crash conduct.
North Carolina’s appellate courts have consistently held that a defendant’s prior driving convictions are admissible to pursuant to Rule 404(b) to show malice in a second-degree murder prosecution based on the defendant’s driving. See, e.g., State v. Maready, 362 N.C. 614 (2008); State v. Goodman, 147 N.C. App. 57 (2002) (Greene, J., dissenting), rev’d, 357 N.C. 43 (2003) (per curium, adopting dissenting opinion); State v. Rich, 351 N.C. 386 (2000).
As most readers know, Rule 404(b) of the NC Rules of Evidence provides that evidence of other crimes, wrongs and acts by a defendant may not be admitted to prove that the defendant acted in conformity with that bad character in committing the instant offense. In other words, a prior impaired driving conviction may not be considered by the jury as evidence that, since the defendant previously drove while impaired, he did so on this occasion as well. Despite its provisions excluding the introduction of relevant evidence of other crimes, wrongs or acts by a defendant, Rule 404(b) otherwise is a rule of inclusion. Evidence of other bad acts and crimes, if relevant, may be introduced for other purposes, including establishing the defendant’s state of mind.
While 404(b) evidence must bear similarity and temporal proximity to the instant offense, courts generally have viewed a defendant’s entire record of traffic convictions to be relevant to whether the defendant exhibited malice by driving a manner that caused a fatal accident. In Tellez, the trial court admitted evidence that defendant had previously been convicted of driving while license revoked and impaired driving.
It is not entirely clear whether North Carolina’s appellate courts would sanction the admission of evidence of a prior impaired driving conviction as evidence of malice if the conduct giving rise to the murder charge did not involve driving after consuming alcohol or some other impairing substance. In State v. Lloyd, 187 N.C. App. 174 (2007), the defendant was charged with second-degree murder after he stole a van, fled from police, drove recklessly, and crashed into another car, killing both of its occupants. Lloyd was sober, but his driver’s license was revoked. The State introduced evidence of Lloyd’s prior refusal to submit to a breath test and his accompanying arrest and conviction of impaired driving. The trial court instructed the jury that this evidence “was received solely for the purpose of showing that the defendant had the knowledge that his license was suspended” on the date of the offense and, further, that driving with a suspended license suspension was evidence of malice. The court of appeals characterized the evidence that defendant drove knowing his license revoked as “fundamental” to proving malice and held that the danger of unfair prejudice was mitigated by the trial court’s limiting instruction. The appellate court failed to explain how driving with a revoked license evidences reckless-rather than simply unlawful-behavior.
Evidence of Tellez’s behavior after the collision likewise is admissible under Rule 404(b) as probative of his depravity of mind since post-offense conduct, like prior bad acts, can be relevant to establishing the defendant’s state of mind at the time of the offense. Cf. State v. Grice, 131 N.C. App. 48 (1998) (characterizing comments by trial court at sentencing that defendant’s “total lack of remorse” as evidenced by his failure to ask whether someone was hurt in the car he crashed into “implies . . . a lack of consciousness [and] total disregard for the laws of this State” as drawing a parallel between defendant’s lack of remorse and the malice necessary to support a second-degree murder conviction).
Tellez doesn’t change the landscape of the law applicable to murder prosecutions arising from vehicle crashes, though it does provide one more set of tragic facts held to establish malice. The last portion of the opinion explains that Childers’ statements to the trooper at the scene of the crash that Tellez “was drunk” were properly admitted into evidence, notwithstanding Childers’ testimony at trial that she did not think Tellez was intoxicated. I’ve waxed on too long already, so I won’t attempt to explain how the court concluded that these statements amounted to corroboration rather than inadmissible hearsay. (Plus, I can’t figure out what these statements corroborated.) Can any of our loyal readers explain this reasoning? Anyone? Anyone? Bueller?
Category: Crimes and Elements, Evidence, Uncategorized | Tags: driving, DWI, malice, second degree murder, Tellez
