In a previous post I wrote about State v. McNeil, a case that resolved the question of how to count prior convictions for possession of drug paraphernalia, in light of that crime’s 2014 division into Class 1 (non-marijuana) and Class 3 (marijuana) offenses. Today’s post is about prior convictions for second-degree murder—split into Class B1 and Class B2 varieties in 2012—in light of State v. Arrington, a case recently decided by the supreme court. Continue reading
Tag Archives: second degree murder
Murder Charges and the Opioid Epidemic
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.
Unlawful Racing of Motor Vehicles
When I think of unlawful racing, scenes from old movies come to mind. I see guys (more specifically, James Dean and John Travolta) in white t-shirts and leather jackets behind the wheels of vintage Fords and Mercurys. Unfortunately, however, unlawful racing has not been relegated to the past. There were nearly 500 charges for unlawful speed competition in North Carolina last year, a misdemeanor offense that can result in the revocation of a person’s driver’s license as well as the seizure of the motor vehicle driven—not to mention serious injury or death.
Continue reading →
What’s the Proper Charge When the Violation of a Traffic Law Causes Someone’s Death?
In 2014, 1,284 people were killed in traffic accidents in North Carolina. Most of those people were occupants in a passenger car, though motor vehicle crashes also claimed the lives of 172 pedestrians, 190 motorcyclists and 19 bicyclists. Seventy percent of the fatalities resulted from crashes that did not involve an alcohol-impaired driver. While it is fairly easy to determine the appropriate criminal charge when a person drives while impaired and proximately causes the death of another, it is less obvious what the appropriate charge is when a driver’s violation of another type of traffic statute proximately causes someone else’s death.
Is Involuntary Manslaughter a Lesser of Second-Degree Murder by Drug Overdose?
I’ll save you the suspense: Yes. Read on for an explanation.
Sentencing the Worst Kind of DWI
Most impaired drivers arrive at their destinations without harming themselves or anyone else. And few such drivers are actually stopped by police. That may explain why eight percent of people nationwide who were over 16 years old reported riding in a vehicle with a driver they thought may have consumed too much alcohol to drive safely. Young adult males were even more likely to engage in this behavior, with 24 percent of men aged 21 to 24 reporting having done so in the past year.
Though most impaired drivers don’t crash, newspapers are replete with tales of those who do, often with tragic consequences. Four hundred and two people died in alcohol-impaired driving fatalities in North Carolina in 2012. Nationwide that year, more than 10,000 people were killed in crashes involving an impaired driver—31 percent of the total traffic fatalities for the year. Impaired drivers themselves are killed most often in such crashes, comprising 65 percent of the deaths in 2012, with passengers in their vehicles a distant second, making up 16 percent of the deaths. Occupants of other vehicles accounted for 11 percent of fatalities.
When a person drives while impaired in North Carolina and proximately causes the death of another, the person may be charged with one or more felony offenses, including second-degree murder, aggravated felony death by vehicle, felony death by vehicle, and involuntary manslaughter as well as misdemeanor impaired driving. In 2013, 23 charges of aggravated felony death by vehicle and 130 charges of felony death by vehicle were filed in North Carolina.
Questions often arise at sentencing regarding whether a person may be separately punished for multiple felony convictions when each is based upon the defendant’s driving while impaired and causing the death of a single other person, as well as the underlying crime of misdemeanor DWI.
Below are the rules governing sentencing for such convictions.
Second degree murder. When a person is convicted of second degree murder based upon driving while impaired, the court must arrest judgment for a conviction of involuntary manslaughter, aggravated felony death by vehicle or felony death by vehicle based on the same incident and the same death. The person may not be sentenced for involuntary manslaughter because the offense is a lesser-included offense of second degree murder, and the legislature has not sanctioned cumulative punishment for such offenses. The person may not be sentenced for aggravated felony death by vehicle or felony death by vehicle, both Class D felonies, because the governing statute, G.S. 20-141.4(b), authorizes punishment under that statute “unless the conduct is covered under some other provision of law providing greater punishment.” State v. Davis, 364 N.C. 297, 304 (2010). Thus, punishment may be imposed for the greater offense of second-degree murder, a Class B2 felony in this circumstance, but not the lesser offenses of aggravated felony death by vehicle or felony death by vehicle. In addition to imposing a sentence for second-degree murder in such cases, the court may sentence the defendant for the underlying misdemeanor DWI, which is an offense with elements distinct from those required to support a conviction for second-degree murder.
Felony death by vehicle. If a person is convicted of aggravated felony death by vehicle or felony death by vehicle (both Class D felonies, though the former conviction must be punished in the aggravated range) and involuntary manslaughter based upon a single incident of driving while impaired that results in the death of another, the court must sentence the defendant pursuant to G.S. 20-141.4 and may not impose a sentence for involuntary manslaughter based on the same death. Instead, the court must arrest judgment for the conviction for involuntary manslaughter, a Class F felony, which merges into the conviction of felony death by vehicle. State v. Lopez, 363 N.C. 535, 536, 681 S.E.2d 271, 272 (2009).
The court may not impose a sentence for a conviction of misdemeanor impaired driving based on the same incident either, since it is a lesser included offense of both aggravated felony death by vehicle and felony death by vehicle, and is not an offense for which the legislature has not authorized cumulative punishment.
Similar sentencing questions arise in less serious cases when person is convicted of several misdemeanor offenses arising from a single incident of impaired driving, such as impaired driving under G.S. 20-138.1, impaired driving in a commercial motor vehicle under G.S. 20-138.2, or driving after consuming by a person under 21 under G.S. 20-138.3.
Impaired driving in a commercial motor vehicle. When a person is convicted of misdemeanor impaired driving and impaired driving in a commercial motor vehicle based on a single incident of driving, the person must be sentenced for both offenses but the aggregate punishment imposed by the court may not exceed the maximum punishment applicable to the offense involving impaired driving under G.S 20-138.1.
Driving after consuming. Driving by a person under 21 years old after consuming alcohol in violation of G.S. 20-138.3 is not a lesser included offense of impaired driving under G.S. 20-138.1. Thus, a person convicted of G.S. 20-138.3 (a Class 2 misdemeanor) and an offense involving impaired driving based on a single incident of driving may be sentenced for both offenses. The aggregate punishment imposed by the court, however, may not exceed the maximum applicable to the offense involving impaired driving.
General Deterrence. Those are the rules for dealing with compounded punishment for a compounded crime. It is difficult to know their general deterrent effect. And general—rather than specific—deterrence seems the appropriate focus as most drivers involved in fatal impaired driving crashes do not have a previous DWI conviction—at least not in the recent past as measured by the federal government. The National Highway Traffic Safety Administration reported in December 2013 that 93 percent of the drivers involved in fatal crashes had no previous DWI convictions, based on Fatality Analysis Reporting System data that reports DWI convictions occurring up to three years before the date of the crash.
Change in Punishment for Second-Degree Murder
Senate Bill 105, which passed both chambers of the General Assembly overwhelmingly and appears certain to become law (either with the Governor’s signature or because of the passage of time without her veto), increases the penalty for most second-degree murders. Second-degree murder is currently a B2 felony, but for offenses committed on or after December 1, 2012, it’s going to be a B1 felony – unless malice is established based on recklessness or the murder results from drug distribution, in which case, second-degree murder will remain a B2 offense.
What follows are a couple of quick thoughts about the change, including, at the end, a couple of comments about interesting implementation issues presented by the bill.
- Historical context. The punishment for second-degree murder has varied quite a bit over the years. Under the Fair Sentencing Act, second-degree murder was a Class C felony. It carried a possible prison term of 0 to 50 years, with a presumptive term of 15 years. Prior to Fair Sentencing, second-degree murder was an unclassified felony, punishable by two years to life in prison.
- Longer sentences. According to Sentencing Commission data, the average sentence length for a conviction of a B2 felony in FY 2010/11 was 170 months minimum. By contrast, the average sentence length for a conviction of a B1 felony was 230 months minimum. Looking at it another way, for a defendant in prior record level III, the top of the presumptive range is 207 months minimum for a B2, but 317 months minimum for a B1. So there will be something like a 50% increase in sentence length for most second-degree murders.
- Plea bargains? Part of the impetus behind the bill was the idea that the state would be more likely to offer plea bargains in first-degree murder cases if second-degree convictions carried longer sentences. Whether that’s true remains to be seen, but the possibility makes the ultimate effect of the bill on the prison population – and the budget – somewhat uncertain: second-degree murderers will serve longer sentences, but there may be fewer first-degree murderers serving life without parole. Some of these issues are discussed in the fiscal note on the bill.
- Will the B2 row on the grid fade into insignificance? Second-degree murder was, for a long time, the only B2 felony, and it still accounts for the vast majority of B2 felony convictions. According to the Sentencing Commission’s list of felony offenses by class, there are now three B2 felonies: second-degree murder, second-degree fetal homicide (since 2011), and repeat felony death by vehicle (since 2006). The latter two together are dwarfed in terms of the number of cases by the first. But the B2 row on the grid won’t fall entirely into desuetude: as noted above, some second-degree murders will remain B2 felonies, and an attempt or conspiracy to commit a Class A or Class B1 offense also results in Class B2 punishment. G.S. 14-2.4 (conspiracy); G.S. 14-2.5 (attempt).
- B1 isn’t just for sex crimes anymore. In general, B1 felonies are serious sex crimes, like first-degree rape, first-degree sexual offense, and aggravated incest. The only non-sex crimes that are B1 felonies are certain offenses related to chemical, biological, and nuclear weapons of mass destruction – offenses that are virtually never charged. Adding second-degree murder to the list of B1 felonies will change the composition of that offense class significantly.
- Implementation. Because the type of malice involved will determine the offense class, it appears that the jury returning a verdict of second-degree murder will need to make findings regarding the theory or theories of malice at issue. This will require changes both to the jury instructions and to the verdict sheet in such cases. I don’t think that there will need to be any changes at the charging stage, though I haven’t thought very carefully about it.
- Prior record level. Under G.S. 15A-1340.14(c), prior convictions are given points based on the current classification of the offense of conviction. Does this mean that after December 1, any defendant with a prior second-degree murder conviction who commits a new crime will have 9 prior record points for the murder (for a prior B1) rather than 6 (for a prior B2)? I doubt it. Remember that not all second-degree murders will be B1 felonies. Furthermore, it may be difficult to determine whether a defendant’s prior second-degree murder conviction involved malice based on recklessness or resulted from drug distribution. Thus, many or maybe even all defendants with prior second-degree murder convictions will be able to argue that their records are ambiguous and that any ambiguity should be resolved in their favor, i.e., that they should still receive only 6 prior record points.
If readers have thought of other possible implications of this bill, please chime in.
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.
Murder by Drugs
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.
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?