Appeal by defendant from judgment entered 25 March 2002 by
Judge James F. Ammons, Jr., in Harnett County Superior Court.
Heard in the Court of Appeals 5 February 2004.
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III, for the State.
Nora Henry Hargrove for defendant-appellant.
TIMMONS-GOODSON, Judge.
Chester Wilson Jones, Jr. (“
defendant
”)
appeals his
convictions of driving while impaired and second-degree murder.
For the reasons stated herein, we hold that defendant received a
trial free of prejudicial error.
The State's evidence presented at trial tended to show the
following: On 26 January 2001, defendant was involved in an
automobile crash in which William Holt Harrington (“Harrington”)
was killed. Defendant was traveling south on N.C. Highway 217 when
he approached Harrington, who was traveling north. As the two
vehicles reached the middle of a curve, defendant's vehicle crossed
the center line and struck Harrington's vehicle in the side. As aresult of the collision, defendant suffered a broken bone and
lacerations. Harrington was pronounced dead on the scene.
Defendant was transported to Good Hope Hospital. Upon
arriving at the hospital, defendant was examined by Dr. Neil Page
(“Dr. Page”). Dr. Page noted defendant was “alert times four,” or
alert and oriented to person, place, time and event. Blood and
urine samples were taken from defendant. While defendant's blood
test results showed only a trace amount of alcohol in defendant's
blood, defendant's urine sample tested positive for
benzodiazepines, cannabinoids, cocaine, opiates, and PCP. While at
the hospital, Trooper R.A. Jones (“Trooper Jones”) interviewed
defendant and learned defendant's license was in a state of
revocation.
On 12 February 2001, defendant was indicted for driving while
license revoked, driving while impaired, and second-degree murder.
During trial, the State provided expert testimony regarding
defendant's urine screening and produced a drug chart detailing the
impairing effects of the drugs found in defendant's urine. On 25
March 2002, the jury rendered a guilty verdict on all counts.
Defendant appeals.
As an initial matter, we note that
defendant's brief contains
arguments supporting only ten of his original forty-eight
assignments of error. Pursuant to North Carolina Rule of Appellate
Procedure 28(b)(6) (2004), the thirty-eight omitted assignments of
error are deemed abandoned. Therefore, we limit our present reviewto those assignments of error properly preserved by defendant for
appeal.
The issues presented on appeal are whether the trial court
erred by (I) denying defendant's motion to dismiss the charge of
second-degree murder; (II) admitting evidence regarding
defendant's urine screening; (III) overruling defendant's objection
to jury instructions; and (IV) denying defendant's motion to
proceed
pro se.
Defendant first argues the trial court erred in denying his
motion to dismiss the charge of second-degree murder. Defendant
contends the State presented insufficient evidence to prove the
impairment necessary to satisfy the malice requirement of second-
degree murder. We disagree.
“In ruling on a motion to dismiss, a trial court must
determine whether there is substantial evidence of each essential
element of the offense.”
State v. Roddey, 110 N.C. App. 810, 812,
431 S.E.2d 245, 247 (1993). “Substantial evidence” has been
defined as “the amount of relevant evidence a reasonable mind might
accept as adequate to support a conclusion.”
State v. Cox, 303
N.C. 75, 87, 277 S.E.2d 376, 384 (1981). The trial court must view
all of the evidence, whether competent or incompetent, in the light
most favorable to the State, giving it the benefit of every
reasonable inference drawn from the evidence.
State v. Dick, 126
N.C. App. 312, 317, 485 S.E.2d 88, 91,
disc. review denied, 346
N.C. 551, 488 S.E.2d 813 (1997). “Any contradictions or
discrepancies in the evidence are for the jury to resolve, andthese inconsistencies, by themselves, do not serve as grounds for
dismissal.”
State v. Hamlet, 312 N.C. 162, 169, 321 S.E.2d 837,
842 (1984).
In the case
sub judice, defendant was charged with second-
degree murder in violation of N.C. Gen. Stat. § 14-17 (2003).
Second-degree murder has been defined as the unlawful killing of a
human being with malice but without premeditation and deliberation.
State v. Grice, 131 N.C. App. 48, 53, 505 S.E.2d 166, 169 (1998),
disc. review denied, 350 N.C. 102, 533 S.E.2d 473 (1999)
. North
Carolina appellate courts recognize three kinds of malice:
One connotes a positive concept of express
hatred, ill-will or spite, sometimes called
actual, express, or particular malice. Another
kind of malice arises 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.
Both [of] these kinds of malice would support
a conviction of murder in the second degree.
There is, however, a third kind of malice
which is defined as nothing more than “that
condition of mind which prompts a person to
take the life of another intentionally without
just cause, excuse, or justification.”
State v. Gray, 137 N.C. App. 345, 348, 528 S.E.2d 46, 48-49 (2000)
(citation omitted). Where the charge of second-degree murder is
based upon impaired driving, we focus on the second form of malice.
Grice, 131 N.C. App. at 53, 505 S.E.2d at 169. In
State v.
Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982), our
Supreme Court held that “a mind utterly without regard for human
life and social duty” can be established through defendant's
impairment. “[E]vidence of consumption of an impairing substance,'when considered in connection with faulty driving . . . or other
conduct indicating an impairment of physical or mental faculties,
is sufficient
prima facie to [establish impairment.]'”
State v.
Rich, 351 N.C. 386, 398, 527 S.E.2d 299, 306 (2000)(quoting
Atkins
v. Moye, 277 N.C. 179, 185, 176 S.E.2d 789, 794 (1970)).
In the case
sub judice, the urine screening reveals that
defendant had consumed impairing substances.
Dr. Page testified at
trial that defendant's urine screening tested positive for several
drugs. The State introduced a drug chart at trial showing the
impairing effects of those drugs found in the urine screening.
While the State was unable to quantify the amount of impairing
substances in defendant's body, viewed in the light most favorable
to the State, the evidence tends to show that defendant had
consumed impairing substances, operated the vehicle while his
license was in a state of revocation, and was involved in faulty
driving. Defendant collided with an on-coming vehicle and caused
the death of another person. Thus, sufficient evidence was
presented to show that defendant, in operating the vehicle,
knowingly engaged in reckless activity that was inherently
dangerous to human life. We hold that this evidence was sufficient
to go to the jury on the issue of whether defendant was impaired,
and the trial court did not err in denying defendant's motion to
dismiss the second-degree murder charge.
Defendant next argues that the trial court erred in admitting
the urine screening results, drug chart, and expert testimony into
evidence.
Generally, “all relevant evidence is admissible, except as
otherwise provided by the Constitution of the United States, by the
Constitution of North Carolina, by Act of Congress, by Act of the
General Assembly, or by [the Rules of Evidence].” N.C.R. Evid. 402
(2003). The Rules of Evidence define “relevant evidence” as that
evidence which has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable that it would be without the evidence.”
N.C.R. Evid. 401 (2003). “[A]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by consideration of undue delay, waste of time, or
needless presentation of cumulative evidence.” N.C.R. Evid. 403
(2003). “In general, the exclusion of evidence under the balancing
test of Rule 403 of the North Carolina Rules of Evidence is within
the trial court's sound discretion.”
Gray, 137 N.C. App. at 350,
528 S.E.2d at 50. We conclude no abuse of discretion occurred in
the case
sub judice.
Defendant contends the urine screening results and drug chart
were unreliable and speculative and thus should have been excluded
from evidence. We disagree. Results from the urine screening
would tend to make defendant's impairment more or less probable,
while the drug chart tends to show whether the substances found in
the urine are impairing. The probative value of the urine
screening and the drug chart outweighs any possible unfair
prejudice to defendant. Whether the evidence was reliable to provethe factual issue of impairment was a question for the jury.
State
v. Miller, 80 N.C. App. 425, 427, 342 S.E.2d 553, 555,
appeal
dismissed and disc. review denied, 317 N.C. 711, 347 S.E.2d 448
(1986).
Defendant maintains that the expert's testimony about the
urine screening and drug chart did not aid the jury. Defendant
contends the testimony and chart were confusing and left the jury
unable to ascertain the important distinction between the blood
tests and the urine test.
Expert testimony is admissible if the expert's specialized
knowledge will assist the jury in understanding the evidence or
determining a fact at issue in the case. N.C.R. Evid. 702 (2003).
Expert testimony is admissible so long as it is relevant and its
probative value is not substantially outweighed by the danger of
unfair prejudice. N.C.R. Evid. 402, 403 (2003). In the case
sub
judice, defendant has failed to raise an issue as to the
admissibility of the testimony, choosing rather to challenge the
credibility of the expert witness's testimony. When a defendant's
contentions go to the credibility and weight of the evidence and
not to its admissibility, our courts refuse to review the issue.
State v. Mitchell, 342 N.C. 797, 808, 467 S.E.2d 416, 422 (1996).
Likewise, in the case
sub judice, because defendant's contentions
go to the credibility and weight of the expert's testimony and not
to its admissibility, we conclude that the trial court did not err
in determining that the testimony was admissible. Defendant also argues that the trial court erred by overruling
defendant's objection to the inclusion of alcohol as an impairing
substance in the jury instructions. Defendant argues that the
trial court's instructions were not supported by sufficient
evidence. We disagree.
Upon review of a trial court's charge to the jury, we must
determine whether, considering the instruction in its entirety, “it
presents the law of the case in such a manner as to leave no
reasonable cause to believe the jury was misled or misinformed[.]”
State v. Brim, 25 N.C. App. 709, 713, 214 S.E.2d 622, 624 (1975).
A trial court may not instruct a jury on evidence unless the record
supports a finding of that evidence.
State v. Levan, 326 N.C. 155,
164-65, 388 S.E.2d 429, 433-34 (1990).
In the case
sub judice, the trial court instructed the jury in
pertinent part as follows:
Defendant has been charged with impaired
driving. For you to find defendant guilty of
this offense the state must prove three things
beyond a reasonable doubt. . . . And, third,
that at the time defendant was driving th[e]
vehicle he was under the influence of an
impairing substance or substances.
Benzodiazepine, cannabinoids, cocaine,
methadone, opiates, propoxyphene, PCP, Xanax,
Soma, Darvocet, Prozac, Demerol, and alcohol.
All of these substances could be impairing
substances.
Defendant contends that the State provided only “scant
evidence” of alcohol present in his body the night of the accident.
Dr. Page testified at trial that the blood test results returned
1.0 milligrams per deciliter, or .001 grams of alcohol in
defendant's blood. Although minute, the small amount establishesthat defendant had alcohol in his body on the night of the
accident. As discussed above, it is well established that the
weight and credibility given to evidence provided at trial is a
decision for the jury.
Mitchell, 342 N.C. at 808, 467 S.E.2d at
422.
The jury instructions in the case
sub judice were based upon
evidence produced at trial. Therefore, we hold the trial court did
not err in its jury instructions.
In his final argument, defendant asserts the trial court erred
by not allowing him to proceed
pro se. We disagree.
“Before allowing a defendant to waive in-court representation
by counsel, . . . the trial court must insure that constitutional
and statutory standards are satisfied.”
State v. Thomas, 331 N.C.
671, 673, 417 S.E.2d 473, 475 (1992). N.C. Gen. Stat. § 15A-1242
affords a defendant the right to elect to represent himself at
trial.
A defendant may be permitted at his election
to proceed in the trial of his case without
the assistance of counsel only after the trial
judge makes thorough inquiry and is satisfied
that defendant: (1) Has been clearly advised
of his right to the assistance of counsel,
including his right to the assistance of
counsel when he is so entitled; (2)
Understands and appreciates the consequences
of his decision; and (3) Comprehends the
nature of the charges and proceedings and the
range of permissible punishments.
N.C. Gen. Stat. § 15A-1242 (2003).
If defendant clearly indicates a desire to
have counsel removed and proceed
pro se, then
the trial judge should make further inquiry;
he should advise defendant of his right to
represent himself, and determine whether
defendant understands the consequences of hisdecision and voluntarily and intelligently
wishes to waive his rights.
State v. Gerald, 304 N.C. 511, 519, 284 S.E.2d 312, 317 (1981).
In the case
sub judice, the record reveals the following
pertinent exchange:
&nb
sp; THE COURT: Now, first bridge we got to get
&nb
sp; across is whether or not you
want to represent yourself, and
if you do, that's fine. I
advise you not to, but if you
do, I'll be more than happy to
let you do so.
DEFENDANT: Yes, sir. With that in mind,
how can I represent myself
when I'm in jail and he has all
my evidence?
THE COURT: Well, that's going to be ver
y
difficult. It's going to be
very difficult for someone who
doesn't have any legal
background, I assume you don't?
DEFENDANT: No, sir.
. . . .
THE COURT: Okay. So I would encourage
you
not to do that. But if that's
what you want to do, then we'll
give it a shot. Otherwise, if
you don't want to represent
yourself, then you need to sit
down and get about these
motions that you've filed that
your attorney has looked at and
has said that he does not wish
to proceed on.
DEFENDANT: I have to represent myself.
. . . .
THE COURT: Okay. But I've read these.
All right. Your request to
represent yourself is denied.
These motions are denied inthat they are not relevant.
Your attorney has declined to
proceed on them.
I believe that these motions,
along with your wanting to
dismiss your attorney at this
point, are simply designed to
delay the trial of your matter.
Obvious to me from looking at
the file and talking to you,
that you are not -- I don't
mean any disrespect -- that
you're not legally capable of
presenting an effective defense
for yourself. I am familiar
with Mr. Jones and I know that
he is more than competent to
handle these matters. I've
known him for several years and
seen him try cases and I'm
going to leave him as your
attorney.
I would suggest that if you're
angry about that, that you not
take that out on Mr. Jones and
that you not let that
deteriorate your relationship
with Mr. Jones, that you
continue to have a free and
open relationship and assist
him in representing you because
that's what he's trying to do.
He's trying to do what's in
your best interest whether you
understand that or believe that
or not. Okay.
DEFENDANT: I just wanted to see the video,
sir.
THE COURT: Well, if there's going to be a
video shown to the jury,
believe me, you will see it
beforehand.
A defendant must make an “unequivocal” assertion that he
wishes to represent himself.
Id. In the case
sub judice,defendant never unequivocally asserted his intent to represent
himself. Defendant's statements were not affirmative responses to
the trial court's inquiry. The trial court advised defendant of
his options and defendant failed to unequivocally request to
represent himself. Therefore, defendant's final argument is
overruled.
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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