An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.
STATE OF NORTH CAROLINA
v
.
Durham County
Nos. 97 CRS 6421, 97 CRS 6390,
97 CRS 6391
TIMOTHY EARL BLACKWELL,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, for the State.
Marilyn G. Ozer for the defendant-appellant.
WYNN, Judge.
Following multiple convictions stemming from driving while
impaired and causing a tragic accident, Defendant Timothy Earl
Blackwell appeals contending he is entitled to a new trial because
the trial court (I) allowed the jury to consider inadmissible
404(b) evidence; (II) directed the jury to find malice and (III)
provided the jury with an erroneous written jury instruction.
Defendant also contends (IV) the trial judge should have recused
himself; (V) the driving while license revoked charge was not
supported by sufficient evidence; (VI) the trial court failed to
correct the prosecutor's grossly improper questions, comments and
arguments and (VII) a new trial is warranted because a juror wasimproperly excused for cause. We uphold Defendant's conviction and
sentence; however, we grant defendant's motion for appropriate
relief and remand for resentencing in accordance with this opinion.
The incident giving rise to Defendant's convictions arose on
27 February 1997 while he drove a red pickup truck on Guess Road in
Durham, North Carolina. Two people observed Defendant “jump a
curb,” knock over several trash cans and “cut back” across Guess
Road into the far left lane of oncoming traffic at approximately
seventy to seventy-five miles per hour. Thereafter, witnesses
observed him running a red light, swerving across several lanes,
crossing left of center, forcing several cars off of the road, and
striking a mailbox. Thereafter, Defendant's vehicle rolled into a
ditch, backed up into the road, and crossed left of center.
Defendant then accelerated, crossed left of center again, and side-
swiped Sherry Dail's vehicle and collided with her husband's (Greg
Dail) minivan. Sherry and Greg Dail's children were in the
minivan, including their 4-1/2 year old daughter, Megan, who
suffered severe injuries and died as a result of the collision.
The accident occurred at approximately 11:15 a.m. Defendant
admitted that he had been drinking beer from approximately 9:00
a.m. until 10:30 a.m. and had consumed cocaine and heroin at 6:00
p.m. on the previous day. Several hypodermic needles were found in
Defendant's truck after the accident. An analysis of Defendant's
blood indicated an alcohol concentration of 0.13 grams of alcohol
per one hundred milliliters of whole blood and his blood tested
positive for cocaine metabolites and opiates. Defendant was indicted for first degree murder, four counts of
assault with a deadly weapon inflicting serious injury, habitual
impaired driving, driving while license revoked, driving left of
center, possession of drug paraphernalia, and possession of an open
container. Pursuant to a plea agreement, Defendant pled guilty to
all charges with the exception of murder and the assaults. He was
subsequently convicted of the remaining charges. On appeal, our
Supreme Court held that Defendant could not be tried for first-
degree murder and remanded his case for further proceedings. State
v. Blackwell, 353 N.C. 259, 538 S.E.2d 929 (2000). On 28 October
2001, Defendant was retried and convicted of second-degree murder.
For the traffic violations and misdemeanor convictions, Defendant
received several consecutive sentences amounting to 710 days
incarceration. For the felony convictions, the trial court
sentenced Defendant to a minimum of 26 months and maximum of 32
months on felonious impaired driving; a minimum of 66 months and
maximum of 89 months for assault with a deadly weapon; and a
minimum of 353 months and a maximum of 461 months for second-degree
murder. The trial court ordered that all sentences run
consecutively.
_______________________________________________________
On appeal, Defendant first challenges the admissibility of his
prior convictions for various driving offenses pursuant to N.C.
Gen. Stat. § 8C-1, Rule 404(b). Specifically, he contends the
following evidence was erroneously admitted:
(1) Testimony from a Durham County court clerk
that Defendant had prior convictions fordriving while license revoked, driving without
insurance, expired registration, and having an
unregistered vehicle;
(2) Testimony from a Granville County court
clerk regarding an entry in a judgment book
and court minutes indicating Defendant pled
guilty to driving while under the influence of
intoxicants and received a suspended sentence
of six months to three years;
(3) Testimony from a Person County court clerk
that Defendant was arrested in 1984 for
'driving to an impaired substance' and
received 30 days in jail.
We need not indulge in a protracted discussion of whether this
testimony was inadmissible under State v. Wilkerson, 356 N.C. 418,
571 S.E.2d 583 (2002), because even if it was error to allow it,
Defendant was not prejudiced since the State presented sufficient
admissible other evidence from which the jury could infer malice.
Specifically, the State presented the testimony of six law
enforcement officers who testified regarding Defendant's DWI
incidents between 1989 and 1997. The officers described
Defendant's erratic driving, his intoxicated demeanor, blood-
alcohol concentration and other physical evidence leading up to his
convictions. This additional evidence of the circumstances
surrounding other prior convictions elicited from the officers
rendered any error harmless.
Defendant also contends the 1984 Person County DWI and the
1979 Granville County DWI convictions should have been deemed
inadmissible under Rule 404(b) because temporal proximity was
lacking.
“The admissibility of any evidence under Rule 404(b) is guidedby two constraints--similarity and temporal proximity.” State v.
Goodman, 357 N.C. 43, 577 S.E.2d 619 (2003), adopting the dissent
of 149 N.C. App. 57, 72, 560 S.E.2d 196, 206 (2002).
Rule 404(b) evidence is limited by a temporal
proximity requirement because 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. Moreover, after the passage of
time, the admission of other crimes . . .
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. As stated in Goodman, “driving convictions dating back sixteen
years are admissible to prove malice, any conviction beyond sixteen
years, however slight, runs afoul of the temporal proximity
requirement of Rule 404(b).” Id. (indicating this Court is bound
by the holding in State v. Miller, 142 N.C. App. 435, 440, 543
S.E.2d 201, 205 (2001)). As the 1984 Person County conviction
occurred only 13 years before the crime at issue in this case, the
trial court did not erroneously admit said conviction.
Defendant also challenges the admission of his 1979 Granville
County DWI conviction because temporal proximity was lacking. Even
assuming the admission of the 1979 conviction was error, such error
would be harmless given the lengthy testimony from several law
enforcement officers describing six driving while impaired episodes
involving Defendant between 1989 and 1997. These prior convictions
provided a sufficient basis upon which the jury could concludeDefendant acted with malice during the present offense. Thus, any
error in admitting the alleged stale prior conviction was harmless.
Defendant next challenges the trial court's jury instruction
regarding malice. Pursuant to the State's request, the trial court
inserted a list of Defendant's prior crimes as evidence tending to
show Defendant acted with malice. As the list of Defendant's prior
crimes encompassed two and a half pages of transcript, Defendant
contends the instruction was grossly prejudicial because it in
effect directed the jury's verdict on malice in violation of N.C.
Gen. Stat. § 15A-1232.
N.C. Gen. Stat. § 15A-1232 states that “in instructing the
jury, the judge shall not express an opinion as to whether or not
a fact has been proved and shall not be required to state,
summarize or recapitulate the evidence, or to explain the
application of the law to the evidence.”
The trial court instructed as follows:
I charge that for you to find the defendant
guilty of second degree murder, the State must
prove six things beyond a reasonable doubt.
. . .
Fifth, that the defendant acted unlawfully and
with malice. “Malice” is a necessary element
which distinguishes second degree murder from
manslaughter. Malice arises when an act which
is inherently dangerous to human life is
intentionally done so recklessly and wantonly
as to manifest a mind utterly without regard
for human life and social duty and
deliberately bent on mischief.
Members of the Jury, evidence has been
received tending to show that the defendant
had knowledge of the impairing effects of
drugs and alcohol on his driving abilitiesprior to February 27, 1997, and that his
opportunity and intent to operate a motor
vehicle while impaired on one or more
impairing substances, and that the defendant
acted with malice arising from the following
. . .
Thereafter, the trial court listed eight prior driving while
impaired offenses by giving the date of the prior offense, the date
of conviction, the case number, the county in which it occurred,
and in some instances, a brief description of the circumstances
surrounding Defendant's arrest. Immediately after listing the
prior offenses, the trial court instructed:
Members of the Jury, this evidence was
received solely for the following purpose,
that is, to show that the defendant acted with
malice in the offenses for which he is charged
with in these offenses. If you believe this
evidence, then you may consider it, but only
for the limited purpose for which it was
received.
In State v. McKoy, 331 N.C. 731, 733, 417 S.E.2d 244, 246 (1992),
our Supreme Court indicated “a trial court's use of the words
'tends to show' in reviewing the evidence does not constitute an
expression of opinion on the evidence.” Moreover, the trial court
further limited the instruction in this case by informing the jury
it could consider the evidence of prior crimes only if it believed
such evidence. Thus, the trial court neither impermissibly stated
an opinion as to whether a fact had been proved nor directed the
jury to find Defendant acted with malice. Accordingly, we conclude
the trial court complied with the applicable statutory and case
law.
Defendant also argues the trial court erroneously gave thejury written instructions containing the impermissible list of
prior crimes. As we have concluded the trial court did not err in
orally listing the prior crimes tending to show Defendant's malice,
we also conclude the trial court did not err in giving written
instructions containing the same list.
Defendant next argues the trial judge should have recused
himself from this matter because of comments he gave to a newspaper
reporter in 1997 prior to Defendant's first trial arising from the
subject incident. Defendant moved for the trial judge's
disqualification pursuant to N.C. Gen. Stat. § 15A-1223(b), which
states:
A judge, on motion of the State or the
defendant, must disqualify himself from
presiding over a criminal trial or other
criminal proceeding if he is:
(1) Prejudiced against the moving party or in
favor of the adverse party; or
(2) Repealed;
(3) Closely related to the defendant by blood
or marriage; or
(4) For any other reason unable to perform the
duties required of him in an impartial manner.
“The burden is on the party moving for recusal to demonstrate
objectively that grounds for disqualification actually exist. The
moving party may carry this burden with a showing of substantial
evidence that there exists such a personal bias, prejudice or
interest on the part of the judge that he would be unable to rule
impartially or a showing that the circumstances are such that a
reasonable person would question whether the judge could ruleimpartially.” State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d
449, 451 (1993).
In this case, Defendant contends the following newspaper
excerpt constituted grounds for disqualification:
Blackwell pleaded guilty in September last
year of habitual drunken driving and
possession of heroin. According to court
documents, he could have been sentenced to as
much as 59 months on the two felonies. He was
given two months.
The 60 days in jail were part of a “split
sentence” that included three years on
probation.
Superior Court Judge Orlando Hudson, who
approved the plea bargain and who, according
to court documents, set the sentence, said
Friday he didn't recall the case. Under the
state's Structured Sentencing Act, Hudson
wasn't required to impose any imprisonment.
“Some people you cannot stop, because
people don't respect the criminal justice
system or any kind of law,” Hudson said.
“Short of putting people in jail for a period
of time, there's nothing the court system and
the police can do.”
Hudson has on other occasions sent
habitual DWI defendants to prison for long
sentences, he noted, such as the 35-year
sentence he imposed in Greensboro once. And
with the proverbial acuity of hindsight, many
court decisions could be second-guessed, he
said. Added to that is the public's
ambivalence between wanting to keep inmates in
prison longer and its reluctance to pay for
prisons to hold them.
“I think it's everybody's fault,” he
said.
Troopers said the Blackwell's batch of
February 1996 charges resolved in the
September plea did not involve a traffic
accident, and they weren't aware of any other
wrecks Blackwell had caused.
Paul Bonner, Driver charged with murder, The Herald-Sun, March 1,
1997, at A1. The trial judge's comments in this newspaper article
neither evidenced any bias, prejudice or interest or created an
appearance of a preconception involving the charges. Moreover, a
reasonable person would not suspect the judge's impartiality was
tainted. Accordingly, we conclude the trial judge did not
erroneously refuse to recuse himself.
Next, Defendant challenges his driving while license revoked
conviction arguing the State did not sufficiently prove he had
knowledge that his license had been revoked. He also contends the
trial court erroneously instructed the jury on this charge.
In reviewing the sufficiency of the evidence, we must
determine “whether there is substantial evidence of each essential
element of the offense charged and of the defendant being the
perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73,
472 S.E.2d 920, 925 (1996). “Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to support
a conclusion.” State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655,
663 (1995). The trial court's review of a motion to dismiss should
only be concerned with the legal sufficiency of the evidence to
support a verdict, not its weight, which is a matter for the jury.
State v. Sokolowski, 351 N.C. 137, 143, 522 S.E.2d 65, 69 (1999).
The evidence must be considered in the light most favorable to the
State and the State must be given the benefit of every reasonable
inference from that evidence. State v. Lucas, 353 N.C. 568, 581,
548 S.E.2d 712, 721 (2001). “If there is substantial evidence--whether direct, circumstantial, or both--to support a finding that
the offense charged has been committed and that the defendant
committed it, the case is for the jury and the motion to dismiss
should be denied.” State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d
377, 383 (1988).
To convict a defendant under N.C. Gen. Stat. § 20-28(a) of
driving while license revoked, the State has to prove (1) the
defendant operated a motor vehicle (2) on a public highway (3)
while his operator's license was suspended or revoked, and (4) that
he had actual or constructive knowledge of the suspension or
revocation. State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543,
545 (1976). A rebuttable presumption that a defendant had
knowledge that his license was revoked at the time charged arises
"when, nothing else appearing [the State] has offered evidence of
compliance with the notice requirements of G.S. 20-48 . . . ."
State v. Chester, 30 N.C. App. 224, 227, 226 S.E.2d 524, 526
(1976); see also Atwood, 290 N.C. at 271, 225 S.E.2d at 545. As
stated in Chester,
in a prosecution for violation of G.S.
20-28(a) and the evidence for the State
discloses that the Department complied with
the notice requirements of G.S. 20-48: (1)
where there is no evidence that defendant did
not receive the notice mailed by the
Department, it is not necessary for the trial
court to charge on guilty knowledge; (2) where
there is some evidence of failure of defendant
to receive the notice or some other evidence
sufficient to raise the issue, then the trial
court must, in order to comply with G.S. 1-180
and apply the law to the evidence, instruct
the jury that guilty knowledge by the
defendant is necessary to convict; and (3)
where all the evidence indicates thatdefendant had no knowledge of the suspension
or revocation of license, a nonsuit should be
granted.
Chester, 30 N.C. App. at 227-28, 226 S.E.2d at 526-27 (emphasis
supplied).
In this case, the State argues Defendant was on notice that
his license was revoked by three prior convictions which resulted
in the permanent revocation of his license. The latest conviction
occurred on 12 August 1996, approximately six months before the
offense in this case. Three prior convictions, resulting from
Defendant's guilty pleas, were presented to the jury--(1) a 12
August 1996 consolidated judgment involving ten driving while
license revoked charges; (2) a 6 February 1995 judgment for driving
while license permanently revoked; and (3) a 22 February 1993
judgment for driving while license revoked.
Under N.C. Gen. Stat. 20-28(c),
a person whose license has been revoked under
this section for one years may apply for a
license after 90 days. A person whose license
has been revoked under this section for two
years may apply for a license after 12 months.
A person whose license has been revoked
permanently may apply for a license after
three years.
Thus, the evidence shows that at the time of the present incident,
Defendant was on notice that his license had been revoked. Indeed,
Defendant pled guilty to and was convicted of driving while license
permanently revoked on 6 February 1995 which precluded Defendant
from applying for a license until 6 February 1998, three years
later. Although the preferred method for proving a defendant'sknowledge of license suspension or revocation is by showing the
required notice under N.C. Gen. Stat. § 20-48 was given, under the
unique facts of this case, we conclude Defendant's guilty plea to
driving while license permanently revoked in 1996 evidences
Defendant's knowledge that his license was revoked at the time of
the present offense. Accordingly, we conclude sufficient evidence
supports the driving while license revoked charge. It is therefore
unnecessary to address Defendant's arguments related to the jury
instruction related to this charge as he only challenges the
inclusion of the prior driving while license revoked convictions in
the instruction.
Defendant next contends the trial court erroneously allowed
the prosecutor to make grossly improper statements during closing
argument in violation of his state and federal constitutional
rights. He also contends the State asked a witness a grossly
improper and groundless question. As Defendant did not object to
these alleged errors, he asserts the prosecutor's conduct
constituted plain error warranting a new trial. However, “our
Supreme Court has specified that plain error review is limited only
to jury instructions and evidentiary rulings.” State v. Cummings,
346 N.C. 291, 313-14, 488 S.E.2d 550, 563 (1997), cert. denied, 522
U.S. 1092, 139 L. Ed. 2d 873, 118 S. Ct. 886 (1998). Thus, we will
review the witness questioning only for plain error.
Defendant challenges the following testimony:
Q: At this point, did you know whether she
even had a head?
A: No, I did not although I was not told thatthis was a decapitated patient so I presumed
that she did.
Q: But based on this film you're not able to
say that?
A: No, we would not be able to say that.
That's correct.
“In our review of the record for plain error, a defendant is
entitled to a new trial only if the error was so fundamental that,
absent the error, the jury probably would have reached a different
result.” State v. Walters, 357 N.C. 68, 85, 588 S.E.2d 344, 354
(2003).
Even assuming the prosecutor's questions constituted plain
error, the error was not so fundamental that absent the error the
jury probably would have reached a different result. Indeed, the
record reveals other evidence establishing Megan Dail's death and
Defendant's reckless driving, blood-alcohol concentration, and
prior DWI convictions. From this evidence, the jury could conclude
that Defendant committed second-degree murder beyond a reasonable
doubt.
Defendant next contends a juror was improperly excused for
cause, and therefore, a new trial is warranted. Under N.C. Gen.
Stat. § 15A-1212, “a challenge for cause to an individual juror
may be made by any party on the ground that the juror . . . is
incapable by reason or mental or physical infirmity of rendering
jury service.” “Challenges for cause in jury selection are matters
in the discretion of the court and are not reviewable on appeal
except for abuse of discretion.” State v. Kennedy, 320 N.C. 20,
28, 357 S.E.2d 359, 364 (1987). In this case, the juror described herself as “slow.” She
explained that “Well, you can explain something to me. And if you
don't go into lengthy detail, I'm slow to catch up with what you're
speaking about.” She indicated that if someone gives her detailed
instructions, she might have a problem. However, if the person
explained words, terms and concepts she did not understand, she
felt she would not have a problem serving as a juror. She also
testified that she took time off from high school in 1967 after
having her first son. She later continued her education and
graduated in 1989. Based upon the potential juror's voir dire
responses, we conclude the trial court did not abuse its discretion
in excusing her for cause.
Finally, Defendant has filed a motion for appropriate relief
contending the trial court's imposition of a sentence in the
aggravated range was done in violation of the Sixth Amendment to
the United States Constitution as interpreted by Blakely v.
Washington, ____ U.S. _____, 159 L.Ed.2d 403 (2004).
In Blakely, the U.S. Supreme Court held that a
trial court alone may not impose a sentence in
excess of the “statutory maximum,” unless
either a jury's verdict finds that additional
facts, or aggravating circumstances, warrant
an increased sentence, or the defendant has
waived his Sixth Amendment right to trial by
jury. . . . The “statutory maximum” for an
offense is the maximum sentence a judge may
impose solely on the basis of the facts
reflected in the jury verdict or admitted by
the defendant.” The relevant statutory
maximum is not the maximum sentence a judge
may impose after finding additional facts, but
the maximum he may impose without any
additional findings.
State v. Allen, ____ N.C. App. _____, _____ S.E.2d ____(2004)(COA03-1369).
The trial court determined one aggravating factor was
applicable in this case--“the defendant committed the offense while
on pretrial release on another charge.” After determining the
aggravating factor outweighed any mitigating factors, Defendant
received consecutive aggravated sentences of a minimum of 353 and
a maximum of 461 months for second degree murder, 26 to 32 months
for habitual impaired driving and 66 to 89 months for assault with
a deadly weapon inflicting serious injury.
(See footnote 1)
As the jury did not
decide the aggravating factor considered by the trial court,
Defendant's Sixth Amendment right to a trial by jury was violated.
See Blakely, ___ U.S. at ___, 159 L. Ed. 2d at 412.
Nonetheless, the State argues that under a harmless error or
plain error analysis, Defendant's sentences should be upheld.
However, as explained in State v. Allen, “our Supreme Court has
definitively stated that when the trial judge has erred in a
finding or findings in aggravation and imposed a sentence beyond
the presumptive term, the case must be remanded for a new
sentencing hearing.” Allen, ____ N.C. App. at ____, ___ S.E.2d at
____. Accordingly, we grant Defendant's motion for appropriate
relief and remand this case to the trial court for resentencing
consistent with the holding in Blakely.
In sum, the admission of Defendant's 1979 driving while
impaired conviction constituted non-prejudicial error. Furthermore, under the facts of this case, we conclude sufficient
evidence supported the driving while license revoked charge. We
also conclude Defendant's remaining arguments regarding the trial
of this matter are without merit. However, we conclude Defendant's
sentences violate the Sixth Amendment to the United States
Constitution as interpreted by Blakely v. Washington.
No prejudicial error in trial; remanded for resentencing.
Judge HUNTER concurs.
Judge TYSON concurs in the result in separate opinion.
Report per Rule 30(e).
STATE OF NORTH CAROLINA
v
.
Durham County
Nos. 97 CRS 6390
TIMOTHY EARL BLACKWELL 97 CRS 6391
97 CRS 6421
TYSON, Judge concurring in the result only.
The majority's opinion does not address whether the admission
of defendant's prior DWI convictions into evidence was error. The
majority's opinion assumes for the sake of argument the trial court
erred by admitting this evidence, but holds the error to be
harmless or non-prejudicial because “additional evidence of the
circumstances surrounding other prior convictions elicited from the
officer rendered any error harmless.” Proceeding to a prejudicial
error analysis assumes error occurred. No error occurred in
defendant's trial or sentence. I vote to sustain defendant's
conviction.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). “[T]his 'list of permissible purposes for admission of “other crimes” is notexclusive, and such evidence is admissible as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime.'” State v. Rich, 351 N.C. 386, 399-400, 527 S.E.2d 299, 306, aff'd, 351 N.C. 386, 527 S.E.2d 299 (2000) (emphasis supplied) (citing State v. Hipps, 348 N.C. 377, 404, 501 S.E.2d 625, 641 (1998), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 114 (1999)) (quoting State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852-53, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436 (1995)). Rule 404(b) is “a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant . . . .” State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
The Supreme Court's per curiam opinion in State v. Wilkerson did not adopt a per se or categorical rule that a defendant's plea of guilty to or conviction of “other crimes, wrongs, or acts” can not be admitted. 356 N.C. 418, 571 S.E.2d 583 (per curiam) (adopting dissent of Wynn, J., 148 N.C. App. 310, 318, 559 S.E.2d 5, 10 (2002)). Defendant's admission, guilty plea, or conviction is no longer a “bare fact” but, as here, corroborates other underlying evidence of “other crimes, wrongs, or acts” allowed byRule 404(b).
Underlying evidence includes not only the testimony of other witnesses to defendant's crimes or bad acts, but also whether defendant admitted, pleaded guilty to, or was convicted of “other crimes, wrongs, or acts.” This evidence is relevant and admissible under Rule 404(b) if not unduly prejudicial or subject to other exclusion under Rule 403. N.C. Gen. Stat. § 8C-1, Rule 404(b); N.C. Gen. Stat. § 8C-1, Rule 403 (2003).
The State's tender of Rule 404(b) evidence remains subject to the balancing test required by Rule 403. The trial court must apply the balancing test if the underlying evidence of prior crimes is tendered by the State to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” N.C. Gen. Stat. § 8C-1, Rule 404(b); see also N.C. Gen. Stat. § 8C-1, Rule 403. The evidence must be excluded if solely admitted to “prove the character of a person in order to show that he acted in conformity therewith,” is unduly prejudicial, or if temporal proximity is lacking. N.C. Gen. Stat. § 8C-1, Rule 404(b); N.C. Gen. Stat. § 8C-1, Rule 403. The trial court must instruct the jury that this evidence is admitted only for the purposes allowed under Rule 404(b) and cannot be considered to prove the defendant committed the crimes at issue. N.C.P.I.-- Crim. 104-15 (2003).
Our Supreme Court and this Court have long and repeatedly held that “evidence of prior convictions is admissible under Rule 404(b) to show the malice necessary to support a second-degree murderconviction.” Rich, 132 N.C. App. at 450, 512 S.E.2d at 448; see also State v. Goodman, 357 N.C. 43, 577 S.E.2d 619 (2003) (per curiam) (adopting dissent of Greene, J., 149 N.C. App. 57, 72, 560 S.E.2d 196, 206 (2002); Wilkerson, 356 N.C. 418, 571 S.E.2d 583; State v. Miller, 142 N.C. App. 435, 439-40, 543 S.E.2d 201, 204-05 (2001) (“evidence of prior traffic convictions was offered for the permissible purpose of establishing the defendant's 'totally depraved mind' and 'recklessness of the consequences. . . .'” (emphasis supplied)); State v. Fuller, 138 N.C. App. 481, 485-86, 531 S.E.2d 861, 865, disc. rev. denied, 353 N.C. 271, 546 S.E.2d 120 (2000) (“evidence of prior convictions is admissible under Rule 404(b) to establish the malice necessary to support a second-degree murder conviction” (emphasis supplied)); State v. McAllister, 138 N.C. App. 252, 257-59, 530 S.E.2d 859, 863-64, appeal dismissed, 352 N.C. 681, 545 S.E.2d 724 (2000) (“prior convictions for driving while impaired which were over ten years old have been held admissible to show malice” (emphasis supplied)); State v. Gray, 137 N.C. App. 345, 349, 528 S.E.2d 46, 49 (2000) (“North Carolina courts consistently have held that evidence of prior acts and convictions are admissible under Rule 404(b) as evidence of malice to support a second-degree murder charge” (emphasis supplied)); State v. Grice, 131 N.C. App. 48, 53, 505 S.E.2d 166, 169-70 (1998), disc. rev. denied, 350 N.C. 102, 533 S.E.2d 473 (1999) (“prior conduct such as prior convictions and prior bad acts will be admissible under Rule 404(b) of the North Carolina Rules of Evidence as evidence of malice to support a second-degree murdercharge” (emphasis supplied)); State v. McBride, 109 N.C. App. 64, 69, 425 S.E.2d 731, 734 (1993) (“prior conduct such as prior convictions and prior bad acts will be admissible under Rule 404(b) of the North Carolina Rules of Evidence as evidence of malice to support a second-degree murder charge” (emphasis supplied)).
In Rich, our Supreme Court affirmed this Court's holding that the trial court did not err in admitting the defendant's prior traffic convictions, which included driving 75 miles per hour in a 45 miles per hour zone, 76 miles per hour in a 45 miles per hour zone, 70 miles per hour in a 35 miles per hour zone, and 70 miles per hour in a 55 miles per hour zone to show malice. 351 N.C. at 400, 527 S.E.2d at 306-07. The Court held:
The State was not seeking to prove that defendant was speeding at the time of the collision. Rather, by introducing defendant's prior speeding convictions, the State offered additional evidence which tended to show defendant's “totally depraved mind” and “recklessness of the consequences.” Because the State offered the evidence to show that defendant knew and acted with a total disregard of the consequences, which is relevant to show malice, the provisions of Rule 404(b) were not violated.
Id. at 400, 527 S.E.2d at 307 (emphasis supplied).
Further, the Supreme Court's per curiam opinion in Wilkerson expressly states, “the fact of a defendant's prior conviction, except in cases where our courts have recognized a categorical exception to the general rule (e.g. admitting prior sexual offenses in select sexual offense cases, and admitting prior traffic-related convictions to prove malice in second-degree murder cases), violates rule 404(b) . . . .” Wilkerson, 356 N.C. 418, 571 S.E.2d 583 (emphasis supplied). This language clearly shows that a defendant's prior convictions are part of the facts and underlying evidence of the convictions and are properly admitted under Rule 404(b) to show the malice necessary to support second-degree murder subject to the balancing test of Rule 403. Here, defendant's prior convictions were admitted as 404(b) evidence solely to show malice to support defendant's conviction for second-degree murder. The facts at bar fit squarely within the “categorical exception to the general rule” as stated by Wilkerson and followed by the numerous cases cited above. No error, harmless or otherwise, occurred.
The State introduced other underlying evidence through the testimony of six law enforcement officers of defendant's numerous DWI convictions between 1989 and 1997, in addition to defendant's driving record of prior convictions. The majority's opinion correctly states these officers described defendant's “erratic driving, his intoxicated demeanor, blood-alcohol concentration and other physical evidence leading up to his convictions.” The State presented far more evidence than the judgment or “bare fact” of defendant's prior convictions for DWI. This evidence clearly clothes the “bare fact” of the record of defendant's previous convictions. The State properly presented detailed evidence of defendant's multiple prior convictions to support the element of malice for the charge of second-degree murder and the trial court properly instructed the jury not to consider this evidence to show defendant's propensity to commit the crimes at bar or that defendant was intoxicated at the time of the acts at issue. The majority's opinion does not discuss or reconcile its presumption of error with Wilkerson, Rich, or the numerous precedents cited above that allow prior conviction evidence to be admitted under Rule 404(b). Wilkerson expressly recognizes admission of prior convictions to show malice under Rule 404(b). Wilkerson reinforces the trial court's decision to properly admit defendant's prior convictions under Rule 404(b).
Further, North Carolina's Rule 404(b) precedents are not anomalies in allowing prior convictions into evidence to prove one or more of the purposes set out in Rule 404(b), such as malice, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident. See Jeffries v. State, 90 P.3d 185, 187 (2004) (allowing into evidence defendant's prior DWI convictions to prove “extreme indifference to the value of human life” to support the second-degree murder charge); Pickens v. State, 69 S.W.3d 10, 13 (Ark., 2002) (allowing defendant's prior conviction into evidence to show motive under Rule 404(b)); United States v. Tan, 254 F.3d 1204, 1210-11 (10th Cir. 2001) (concluding “that prior drunk driving convictions offered to prove the malice component of a second-degree murder charge resulting from an alcohol related vehicular homicide are offered for a proper purpose under Rule 404(b)”); People v. Crawford, 582 N.W.2d. 785, 790 (Mich., 1998) (holding that a defendant's prior convictions are allowed under Rule 404(b) for purposes other than showing propensity); State v. Lillard, 1997 Tenn. Crim. App. LEXIS 123, 8-9 (Tenn. Crim. App. 1997) (allowingdefendant's prior conviction into evidence to show intent under Rule 404(b)); Snowden v. State, 677 A.2d 33, 39-40 (Del., 1996) (holding that “the admission of the prior conviction was relevant to show the absence of accident” under Rule 404(b)); United States v. Francisco, 35 F.3d 116, 118-19 (4th Cir. 1994), cert. denied, 513 U.S. 1133, 130 L. Ed. 2d 893 (1995) (holding “that the evidence of [defendant's] prior conviction was properly admitted” under Rule 404(b)); State v. Grant, 620 N.E.2d 50, 60-61 (Ohio, 1993), cert. denied, 513 U.S. 836, 130 L. Ed. 2d 62 (1994) (allowing defendant's prior convictions into evidence to show a common plan or scheme under Rule 404(b)); State v. O'Neil, 848 P.2d 694, 700-01 (Utah App., 1993), cert. denied, 859 P.2d 585 (1993) (holding “the defendant's prior convictions and their surrounding circumstances are probative of the knowledge, intent, plan and scheme” under Rule 404(b)); State v. Suttle, 812 P.2d 119, 123 (Wash. App., 1991) (holding that defendant's prior convictions were “relevant to show motive and identity”); State v. Kinney, 750 P.2d 436, 438-39 (Mont., 1988) (allowing defendant's prior DWI convictions to show knowledge under Rule 404(b)); United States v. Smith Grading and Paving, Inc., 760 F.2d 527, 531 (4th Cir. 1985), cert. denied, 474 U.S. 1005, 88 L. Ed. 2d 457 (1985) (allowing evidence of defendant's prior bid rigging convictions into evidence to show knowledge under Rule 404(b)); State v. Whitney, 484 A.2d 1158, 1160 (N.H., 1984) (allowing defendant's prior convictions into evidence to show motive); United States v. Naylor, 705 F.2d 110, 111-12 (4th Cir. 1983) (allowing defendant's prior convictions to showknowledge under Rule 404(b)).
Interpreting Wilkerson to show error in the admission of defendant's prior convictions, and to prohibit this evidence of “other crimes, wrongs, or acts” from being introduced under Rule 404(b) would drastically change the settled law of this State. Goodman, 149 N.C. App. at 69-70, 560 S.E.2d at 204-05; Wilkerson, 356 N.C. 418, 517 S.E.2d 583, (per curiam) (adopting dissent of Wynn, J., 148 N.C. App. 310, 327-28, 559 S.E.2d 5, 16 (2002)); Fuller, 138 N.C. App. at 485-86, 531 S.E.2d at 865; Miller, 142 N.C. App. at 439-40, 543 S.E.2d at 204-05; McAllister, 138 N.C. App. at 257-59, 530 S.E.2d at 863-64; Gray, 137 N.C. App. at 349, 528 S.E.2d at 49; Rich, 132 N.C. App. at 450, 512 S.E.2d at 448; Grice, 131 N.C. App. at 53, 505 S.E.2d at 169-70; McBride, 109 N.C. App. at 69, 425 S.E.2d at 734; see also N.C. Gen. Stat. § 8C-1, Rule 404(b).
Evidence of defendant's prior “crimes, wrongs, or acts” far exceeded the “bare fact” of the judgment of his convictions and supports the element of malice for second-degree murder.
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