1. Homicide_second-degree murder_officer's death during high speed chase_malice
The trial court correctly denied defendant's motion to dismiss a second-degree murder
charge for insufficient evidence of malice in the death of an officer in an automobile accident
while he was chasing defendant at high speed. While prior second degree murders from
automobile accidents have involved impaired driving, defendant's conduct here was equally
reckless and wanton.
2. Homicide_second-degree murder_officer's death in high speed chase_proximate
cause
There was sufficient evidence of proximate cause in a second-degree murder case arising
from the death of an officer in an automobile accident while he was chasing defendant at high
speed. A reasonable mind might conclude that defendant's reckless flight and wanton violation
of the traffic laws caused or directly contributed to the victim's death.
3. Homicide-second-degree murder_death of officer in car chase--requested
instructions_insulating negligence
The court gave in substance all but one of the instructions on proximate cause requested
by a second-degree murder defendant prosecuted for the death of an officer who was chasing
defendant at high speed. There was no error in not giving an instruction on insulating negligence
because contributory negligence has no place in criminal law and no reasonable person could
conclude that the officers' actions intervened to be the cause of death.
4. Evidence_emergency room photographs of deceased_illustrative of testimony_not
excessive or repetitive
The trial court did not err in a second-degree murder prosecution by admitting emergency
room photographs of the deceased, a law enforcement officer who died while chasing defendant
at high-speed. The photographs were admitted to illustrate another officer's testimony and they
were not used excessively or repetitiously to arouse the passions of the jury.
5. Witnesses_redirect examination_scope of cross-examination not exceeded
A redirect examination about recorded law enforcement radio transmissions in a second-
degree murder prosecution did not exceed the scope of the cross-examination where defendant
had used the transcript in extensively cross-examining an officer.
CALABRIA, Judge.
Gerrick Lamont Bethea (“defendant”) appeals from a conviction
of second-degree murder for the death of a law enforcement officer
during a high speed pursuit of defendant. We find no error.
At approximately one o'clock a.m. on 26 September 2001,
Officer William Howell (“Officer Howell”) of the Elizabethtown
Police Department was on patrol and observed a man he suspected was
defendant getting into a vehicle and driving out of a convenience
store parking lot. Officer Howell knew defendant's license had
been revoked. He followed defendant, and after confirming the
vehicle's registration had expired, activated his patrol car's blue
light to stop defendant. Defendant responded by driving through a
red light and increasing his speed to seventy-five miles per hour
in a thirty-five mile per hour zone. Officer Howell pursued
defendant out of the Elizabethtown city limits into the surrounding
rural area.
Approximately two minutes after initiating pursuit, Officer
Howell made radio contact with Clarkton Police Chief Joey Blackburn
(“Chief Blackburn”) and Bladen County Deputy Sheriff Jamie Collins
(“Deputy Collins” or the “victim”) (collectively the “two
officers”), who were patrolling Clarkton in Chief Blackburn's
patrol car. Upon learning the pursuit was heading toward Clarkton,
the two officers joined the pursuit. Chief Blackburn passedOfficer Howell to lead the pursuit, pulled alongside defendant's
vehicle, and positively identified him.
After defendant braked heavily and turned sharply onto a road
with which Chief Blackburn was unfamiliar, the two officers
discussed the possibility that defendant would stop his car and try
to run. Chief Blackburn handed Deputy Collins a flashlight and
noticed the deputy moving his hand toward his seatbelt latch in
preparation to exit the patrol car. Chief Blackburn closed to
within a car length of defendant in preparation for defendant
abandoning his car. As the two officers and defendant approached
a curve, of which Chief Blackburn was not aware, defendant slowed
very quickly. In response, Chief Blackburn braked heavily, but the
brakes had heated during the pursuit and were not working
effectively. Chief Blackburn's driver-side bumper struck the
defendant's passenger-side bumper. Chief Blackburn reacted by
quickly steering right in an attempt to avoid further colliding
with defendant. While defendant missed the curve and went straight
into a ditch, Chief Blackburn's car slid sideways and impacted a
concrete marker and a tree. On impact, Deputy Collins was thrown
from the car and subsequently died of his injuries in the emergency
room. An accident reconstruction report stated that the speeds of
defendant's car and Chief Blackburn's car were too great to
navigate the curve and that Deputy Collins did not have his
seatbelt fastened at the moment of impact.
Officer Howell arrested defendant at the scene. During the
pursuit, defendant reached speeds of approximately one hundred
miles per hour, sped through a traffic light and several stop signswithout slowing, crossed into the oncoming traffic lane several
times, and turned his car lights off several times while traveling
at speeds between ninety and ninety-five miles per hour, making his
car difficult to see. Defendant pled guilty to felony speeding to
elude arrest, speeding, driving left of center, driving with an
expired registration, driving while license revoked, reckless
driving to endanger persons or property, and violation of a traffic
control device.
I. Motion to Dismiss
[1] Defendant asserts the trial court erred by denying his
motion to dismiss the charge of second-degree murder because the
State failed to produce sufficient evidence of malice and of
proximate cause. We disagree.
The issue in a defendant's motion to dismiss for insufficiency
of the evidence is whether, taking the evidence in the light most
favorable to the State, “there is substantial evidence of each
essential element of the offense charged and of the defendant being
the perpetrator of the offense. . . . Substantial evidence is
relevant evidence that a reasonable mind might accept as adequate
to support a conclusion.” State v. Crawford, 344 N.C. 65, 73, 472
S.E.2d 920, 925 (1996) (citation omitted). “Second-degree murder
is an unlawful killing with malice, but without premeditation and
deliberation.” State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380,
385 (1991). The elements of second-degree murder are: “1.
defendant killed the victim; 2. defendant acted intentionally and
with malice; and 3. defendant's act was a proximate cause of thevictim's death.” State v. Bostic, 121 N.C. App. 90, 98, 465 S.E.2d
20, 24 (1995).
Defendant argues that, because he was not driving under the
influence, he could not have exhibited the requisite malice for a
conviction of second-degree murder. Essentially, defendant argues
evidence that a defendant was driving under the influence is the
only evidence sufficient to prove malice in a second-degree murder
case involving an automobile accident. However, our jurisdiction
has long held that malice may be inferred “'when an act which is
inherently dangerous to human life is done so recklessly and
wantonly as to manifest a mind utterly without regard for human
life and social duty and deliberately bent on mischief.'” State v.
McBride, 109 N.C. App. 64, 67-68, 425 S.E.2d 731, 733 (1993)
(quoting State v. Reynolds, 307 N.C. 184, 297 S.E.2d 532 (1982)).
Accord State v. Snyder, 311 N.C. 391, 394, 317 S.E.2d 394, 396
(1984). Moreover, to prove malice in second-degree murder
prosecutions involving automobile accidents, “it [is] necessary for
the State to prove only that defendant had the 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.” State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 304
(2000). Further, “[w]hat constitutes proof of malice will vary
depending on the factual circumstances in each case.” McBride, 109
N.C. App. at 67, 425 S.E.2d at 733.
Defendant correctly points out that every North Carolina
appellate decision involving an automobile accident, where the
court found sufficient evidence to prove malice for a second-degreemurder conviction, involved a defendant driving under the influence
of alcohol or some other impairing substance at the time of the
accident. While driving under the influence is certainly evidence
sufficient to prove malice, defendant's actions in the instant
case, motivated by an attempt to elude law enforcement by driving
in an extremely dangerous manner, is an equally reckless and wanton
act, which evidences “'a mind utterly without regard for human life
and social duty and deliberately bent on mischief.'” Id. at 67-68,
425 S.E.2d at 733 (citation omitted). Moreover, our courts have
not found driving under the influence to be the only evidence
capable of proving malice. See, e.g., Rich, 351 N.C. 386, 527
S.E.2d 299; State v. Byers, 105 N.C. App. 377, 413 S.E.2d 586
(1992). In Byers, this Court analyzed the relevance and
admissibility of certain evidence and found that
the evidence presented at trial tending to
show defendant knew his license was revoked
and proceeded to drive regardless of this
knowledge indicates defendant acted with “a
mind regardless of social duty” and with
“recklessness of consequences.” We further
find the evidence tending to show defendant
took the car without permission and displayed
fictitious tags in order to drive indicates a
mind “bent on mischief.”
Byers, 105 N.C. App. at 382, 413 S.E.2d at 589.
In the instant case, the evidence, taken in the light most
favorable to the State, shows that defendant was driving with a
revoked license, fled to elude law enforcement officers, sped
through a red light and several stop signs, drove at speeds up to
one hundred miles per hour, crossed into the oncoming traffic lane
several times, and turned his car lights off on dark rural roads,
decreasing his own visibility and making his car extremelydifficult to see, while traveling at speeds between ninety and
ninety-five miles per hour. Defendant's clear mind unclouded by
intoxicating substances that might have hindered his ability to
appreciate the danger of his actions, does not negate the presence
of malice, but rather, tends to more clearly show 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.” Rich, 351 N.C. at 395, 527 S.E.2d at 304.
Accordingly, we hold the evidence here was sufficient to allow a
reasonable jury to infer malice from defendant's reckless and
wanton attempt to elude law enforcement. Cf. State v. Wade, 161
N.C. App. 686, 690, 589 S.E.2d 379, 383 (2003), disc. rev. denied,
358 N.C. 241, 594 S.E.2d 33 (2004) (holding even “in the absence of
impairment by alcohol” the “operation of a vehicle could rise to
the level of culpable negligence” for the purposes of convictions
of involuntary manslaughter and assault with a deadly weapon
inflicting serious injury); State v. Nugent, 66 N.C. App. 310, 311-
13, 311 S.E.2d 376, 377-78 (1984) (upholding an involuntary
manslaughter conviction where no evidence of impaired driving was
present).
[2] Defendant further argues there was insufficient evidence
of proximate cause because he did not actually collide with the
other vehicle and kill the victim with his impact. Proximate cause
is defined
as a cause: (1) which, 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 reasonablyforeseen that such a result, or some similar
injurious result, was probable under the facts
as they existed.
State v. Hall, 60 N.C. App. 450, 454-55, 299 S.E.2d 680, 683
(1983). Accordingly, “[a] defendant will be held criminally
responsible for second-degree murder if his act caused or directly
contributed to the victim's death.” State v. Welch, 135 N.C. App.
499, 502-03, 521 S.E.2d 266, 268 (1999). The evidence taken in the
light most favorable to the State shows that the victim died after
Chief Blackburn's patrol car collided with the rear of defendant's
car due to defendant's sudden slowing and the patrol car careened
out of control striking a concrete barrier then a tree at the end
of a high-speed pursuit, which would not have occurred had
defendant stopped when Officer Howell activated his blue light. A
reasonable mind might conclude that defendant's reckless flight and
wanton violation of the State's traffic laws “caused or directly
contributed to” the collision between defendant's car and the
patrol car, which resulted in the victim's death. Id.
Accordingly, we hold the trial court did not err in denying
defendant's motion to dismiss.
Based on his above arguments, defendant also asserts the trial
court erred in denying his motion to set aside the jury's verdict.
“The decision whether to grant or deny a motion to set aside the
verdict is vested in the sound discretion of the trial court . . .
.” State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985).
“When the evidence at trial is sufficient to support the jury's
verdict, there is no abuse of discretion in the trial court's
denial of defendant's motion to set aside the verdict.” State v.Serzan, 119 N.C. App. 557, 562, 459 S.E.2d 297, 301 (1995). As we
have already held the evidence at trial was sufficient to support
the jury's verdict, we hold the trial court did not abuse its
discretion in denying defendant's motion to set aside the verdict.
II. Jury Instruction
[3] Defendant asserts the trial court erred by refusing to
give four requested instructions on proximate cause: N.C.P.I.--Civ.
102.19 (gen. civ. vol. 2004) (multiple causes); N.C.P.I.--Civ.
102.27 (gen. civ. vol. 2004) (concurring acts of negligence);
N.C.P.I.--Civ. 102.60 (gen. civ. vol. 2004) (concurring
negligence); and N.C.P.I.--Civ. 102.28 (gen. civ. vol. 2004)
(insulating acts of negligence). We disagree.
“It is well established that when a defendant requests a
special instruction which is correct in law and supported by the
evidence, the trial court must give the requested instruction, at
least in substance.” State v. Tidwell, 112 N.C. App. 770, 773, 436
S.E.2d 922, 924 (1993). “If a requested instruction is refused,
defendant on appeal must show the proposed instruction was 'not
given in substance, and that substantial evidence supported the
omitted instruction.'” State v. Thompson, 118 N.C. App. 33, 36,
454 S.E.2d 271, 273 (1995) (quoting State v. White, 77 N.C. App.
45, 52, 334 S.E.2d 786, 792 (1985)).
Under the proximate cause element, the trial court instructed
the jury that:
A proximate cause is a real cause, without
which the victim's death would not have
occurred. The defendant's acts need not have
been the last or nearest cause. It is
sufficient if they concurred with some other
cause, acting at the same time, which incombination with it proximately caused the
victim's death.
The trial court's instruction gave in substance N.C.P.I.--Civ.
102.19 (multiple causes); N.C.P.I.--Civ. 102.27 (concurring acts of
negligence); and N.C.P.I.--Civ. 102.60 (concurring negligence),
which each instruct that a jury may consider a defendant's actions
to be a proximate cause even though there may have been other
proximate causes. The trial court did not, however, give in
substance N.C.P.I.--Civ. 102.28 (insulating acts of negligence).
We must therefore review the record to determine whether
substantial evidence supported an instruction under N.C.P.I.--Civ.
102.28. Thompson, 118 N.C. App. at 36, 454 S.E.2d at 273.
Defendant argues certain actions by the officers constituted
one or more intervening or superseding causes that broke the causal
chain of defendant's negligent actions. “To escape responsibility
based on an intervening [or superseding] cause, the defendant must
show that the intervening [or superseding] act was 'the sole cause
of death.'” Welch, 135 N.C. App. at 503, 521 S.E.2d at 268
(quoting State v. Holsclaw, 42 N.C. App. 696, 699, 257 S.E.2d 650,
652 (1979)). An intervening or superseding cause is a cause that
“'so entirely [intervenes in or] supersedes the operation of the
defendant's negligence that it alone, without his negligence
contributing thereto in the slightest degree, produces the
injury.'” Cox v. Gallamore, 267 N.C. 537, 544, 148 S.E.2d 616, 621
(1966) (quoting Henderson v. Powell, 221 N.C. 239, 19 S.E.2d 876
(1942)).
Defendant contends several actions and decisions by the
officers were intervening or superseding causes. First, OfficerHowell and the two officers pursued him outside their respective
jurisdictions and despite the safer option of arresting him the
next day at his residence. Second, they pursued him at unsafe
speeds on unfamiliar roads even after the brakes of Chief
Blackburn's patrol car showed signs of wear due to the pursuit.
Third, Chief Blackburn steered right in an attempt to avoid further
colliding with defendant. Fourth, evidence at trial tended to show
that the victim was not wearing his seat belt at the time of the
accident.
Our Supreme Court has long held that “[c]ontributory
negligence as such has no place in the law of crimes.” State v.
Foust, 258 N.C. 453, 459, 128 S.E.2d 889, 894 (1963). Therefore,
the probability that a reasonable person might conclude that the
two officers' decisions and actions contributed to the victim's
death is of no moment. Moreover, no reasonable person could
conclude that the two officers' decisions and actions, viewed
separately or together, so entirely intervened in or superseded the
operation of defendant's reckless flight and wanton traffic
violations as to constitute the sole cause of the victim's death.
Accordingly, the evidence was not sufficient to support an
instruction on insulating acts of negligence, and the trial court
did not err by declining to give the instruction.
III. Introduction of Photographs to the Jury
[4] Defendant asserts the trial court erred by allowing the
introduction of two color photographs from different angles of the
deceased victim in the emergency room. Specifically, defendant
argues that, because the defendant did not dispute that the victimdied as a result of the car accident, the pictures were not
probative of any issue in dispute. He also argues the pictures
were gruesome and were introduced solely to arouse the juror's
passions. We disagree.
Our Supreme Court has long “held that a stipulation as to the
cause of death does not preclude the State from proving all
essential elements of its case.” State v. Elkerson, 304 N.C. 658,
665, 285 S.E.2d 784, 789 (1982). Under N.C. Gen. Stat. § 8C-1,
Rule 401 and Rule 402, “evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable” is admissible.
“'Photographs are usually competent to be used by a witness to
explain or illustrate anything that it is competent for him to
describe in words.'” State v. Watson, 310 N.C. 384, 397, 312
S.E.2d 448, 457 (1984) (quoting State v. Cutshall, 278 N.C. 334,
347, 180 S.E.2d 745, 753 (1971)). Moreover, “[p]hotographs of a
homicide victim may be introduced even if they are gory, gruesome,
horrible or revolting, so long as they are used for illustrative
purposes and so long as their excessive or repetitious use is not
aimed solely at arousing the passions of the jury.” State v.
Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988).
The two photographs were introduced during Chief Blackburn's
testimony to provide a chain of causation between the accident and
the victim's death and to illustrate Blackburn's observations of
the state of the victim's body. Thus, the two photographs,
although somewhat graphic, were not introduced in an excessive or
repetitious manner in order to arouse the passions of the jury but,rather, were introduced to allow the State to prove chain of
causation, an essential element of its case, and to illustrate
Blackburn's testimony. Accordingly, the trial court did not err in
admitting the two photographs.
Defendant also asserts that any probative value of the two
photographs was substantially outweighed by their prejudicial
effect. “[E]vidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. . . .”
N.C. Gen. Stat. § 8C-1, Rule 403. Whether to exclude relevant
evidence under Rule 403 is a determination left to “'the sound
discretion of the trial court, and the trial court's ruling should
not be overturned on appeal unless the ruling was 'manifestly
unsupported by reason or [was] so arbitrary that it could not have
been the result of a reasoned decision.'” State v. Hyde, 352 N.C.
37, 55, 530 S.E.2d 281, 293 (2000) (quoting State v. Hennis, 323
N.C. 279, 285, 372 S.E.2d 523, 527 (1988)). Having determined
above that the two photographs were probative, admissible, and not
used excessively or repetitiously to arouse the passions of the
jury, we conclude the trial court did not abuse its discretion in
finding that the two photographs' probative value outweighed the
danger of unfair prejudice.
IV. Redirect Examination
[5] Defendant asserts the trial court abused its discretion by
allowing the State on redirect examination to question a witness
concerning matters not covered in cross-examination. “The purpose
of redirect examination is to clarify any questions raised on
cross-examination concerning the subject matter of directexamination and to confront any new matters which arose during
cross-examination.” State v. Baymon, 336 N.C. 748, 754, 446 S.E.2d
1, 4 (1994). Defendant directs our attention to the redirect
examination concerning portions of the recorded law enforcement
radio transmissions occurring while Chief Blackburn and the victim
were driving to join the pursuit and argues this line of
questioning was outside the scope of the cross-examination.
However, defense counsel cross-examined Blackburn extensively on
this period of time using a transcript of the radio transmissions,
which “opened the door” to a redirect on these matters.
Accordingly, the redirect examination was not outside the scope of
the cross-examination, and the defendant's assertion is without
merit.
Defendant also asserts the trial court erred in denying his
motion for appropriate relief after the trial. Having determined
defendant received a fair trial free from error, we find this
assertion to be without merit. Finally, defendant asserts that the
trial court abused its discretion under N.C. Gen. Stat. § 8C-1,
Rule 403, by admitting certain statements into evidence. Defendant
however sets forth no argument in support of this assertion.
Therefore, pursuant to N.C. R. App. P. 28(b)(6), we decline to
address it.
No error.
Judges WYNN and LEVINSON concur.
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