Appeal by defendant from judgment entered 17 March 2003 by
Judge Douglas Albright in Ashe County Superior Court. Heard in the
Court of Appeals 23 August 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant-appellant.
TIMMONS-GOODSON, Judge.
Defendant appeals his convictions for second-degree murder and
driving while impaired. For the reasons stated herein, we hold
that defendant received a trial free of prejudicial error, but we
remand the case for resentencing.
The State's evidence presented at trial tended to show the
following: On 11 June 2002, a vehicle operated by defendant
collided with a pickup truck waiting to make a left turn at the
intersection of U.S. 221, N.C. 88, and N.C. 16 in East Jefferson.
Defendant's vehicle spun around and collided broadside with another
vehicle located behind the pickup truck. The impact threw
defendant partially out of the back window of his vehicle.
Defendant's passenger, Martha Kalen (“Kalen”), sustained fatalinjuries during the accident, including transection of the aorta.
Kalen was pronounced dead upon arrival at the hospital. Subsequent
blood tests of defendant revealed that defendant had a blood
alcohol concentration of .16 at the time of the accident.
Prior to trial, the State filed a motion in limine to exclude
evidence of Kalen's blood alcohol content or alcohol consumption.
In its motion, the State argued that no evidence could be produced
which tended to show that Kalen's alcohol consumption was a
contributing factor to her death. In response, defendant argued
that Kalen's blood alcohol concentration was relevant and
admissible because acute alcohol intoxication was listed on the
final autopsy diagnosis; that acute and chronic alcoholism was
listed on the death certificate as a significant contributing
factor to Kalen's death; and that defendant intended to offer
evidence that Kalen, as a result of acute alcohol intoxication, was
suffering a seizure immediately prior to her death and was
thrashing about in the vehicle due to the seizure.
The trial court declined to rule upon the motion in limine
until after it had heard testimony from witnesses. The trial court
subsequently heard trial and voir dire testimony from Dr. Richard
Calhoun (“Dr. Calhoun”), the emergency room physician who prepared
the death certificate, Dr. Patrick E. Lantz (“Dr. Lantz”), the
forensic pathologist who prepared the autopsy report, and Dr. Ruth
Ellen Winaker (“Dr. Winaker”), the toxicologist who prepared the
toxicology report. Following this testimony, the trial court ruled
in the State's favor, concluding that the evidence was not relevantand that any probative value of the evidence was outweighed by the
danger of misleading the jury or confusing the issues.
At trial, witnesses testified that defendant's vehicle had
been traveling at an estimated speed of sixty-five to eighty miles
per hour as it approached the intersection. Defendant testified
that at the time the accident occurred, he was transporting Kalen
home. However, after Kalen became unable to speak, defendant
accelerated his vehicle in an attempt to rush Kalen to the
hospital. Defendant further testified that as the vehicle
approached the intersection, Kalen grabbed the steering wheel and
thus caused the accident.
The jury found defendant guilty of both second-degree murder
and driving while impaired. At the sentencing stage, the trial
court found as an aggravating factor to the second-degree murder
offense that defendant knowingly created a great risk of death to
more than one person by means of a weapon or device which would
normally be hazardous to the lives of more than one person. As
mitigating factors, the trial court found that defendant has a
community support system and that defendant expressed remorse. The
trial court subsequently sentenced defendant to 264 months to 326
months incarceration for the second-degree murder offense, a term
of imprisonment within the aggravated range of N.C. Gen. Stat. §
15A-1340.17. The trial court also sentenced defendant to eighteen
to twenty-four months incarceration for the driving while impaired
offense, to run concurrent with defendant's sentence for second-
degree murder. Defendant appeals.
The issues on appeal are whether the trial court erred by:
(I) refusing to instruct the jury on the elements of involuntary
manslaughter following the jury's request for reinstruction on
second-degree murder; (II) excluding evidence of Kalen's blood
alcohol concentration; and (III) sentencing defendant in the
aggravated range for second-degree murder.
Defendant first argues that the trial court abused its
discretion by not instructing the jury on the elements of
involuntary manslaughter following the jury's request for
reinstruction on second-degree murder. We disagree.
After the jury has retired for deliberations, the trial court
may give additional instructions in response to an inquiry by the
jury. N.C. Gen. Stat. § 15A-1234(a)(1) (2003). When the trial
court gives additional instructions, it “may also give or repeat
other instructions to avoid giving undue prominence to the
additional instructions.” N.C. Gen. Stat. § 15A-1234(b). In
State
v. Prevette, 317 N.C. 148, 345 S.E.2d 159 (1986), the jury
requested clarification as to the elements of first-degree murder.
In addressing the defendant's contention that the trial court erred
by denying the defendant's request for an additional instruction on
the elements of second-degree murder, the Court stated:
We believe it important to note that the trial
court is in the best position to determine
whether further additional instruction will
aid or confuse the jury in its deliberations,
or if further instruction will prevent or
cause in itself an undue emphasis being placed
on a particular portion of the court's
instructions.
Id. at 164, 345 S.E.2d at 169. Thus, given that the jury requested
clarification of only one offense, the Court held
that the trial
court did not abuse its discretion by denying the defendant's
request.
Id. Similarly, in the instant case, the jury only
requested further instruction regarding the elements of second-
degree murder. Thus, we conclude that the trial court did not
abuse its discretion in refusing to instruct the jury on the
elements of involuntary manslaughter. Therefore, defendant's first
argument is overruled.
Defendant next argues that the trial court erred by excluding
evidence of Kalen's blood alcohol concentration. We disagree.
According to a toxicology report, Kalen's blood alcohol
concentration at the time of her death was .39. Defendant asserts
that the exclusion of this evidence restricted his ability to
present his defense. In support of this assertion, defendant
contends that the evidence was relevant and admissible to negate
the element of malice because it demonstrates that, due to acute
alcohol intoxication, Kalen was suffering a seizure and thrashing
her arms consistent with defendant's testimony.
Evidence is relevant if it 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 than it would be
without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2003).
“Although 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 byconsiderations of undue delay, waste of time, or needless
presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule
403 (2003). “[U]nder Rule 403, the determination of whether
relevant evidence should be excluded is a matter left to the sound
discretion of the trial court, and the trial court can be reversed
only upon a showing of abuse of discretion.”
State v. Wallace, 351
N.C. 481, 523, 528 S.E.2d 326, 352-53,
cert. denied, 531 U.S. 1018,
148 L. Ed. 2d 498 (2000). A ruling under Rule 403 “may be reversed
for abuse of discretion only upon a showing that the ruling was so
arbitrary that it could not have been the result of a reasoned
decision.”
State v. Collins, 345 N.C. 170, 174, 478 S.E.2d 191,
194 (1996).
In the instant case, the trial court's decision to hold a
voir
dire hearing and receive testimony from medical professionals
regarding Kalen's blood alcohol concentration before issuing its
ruling demonstrates that the trial court carefully weighed the
probative value of the evidence against the dangers of unfair
prejudice, confusion of the issues, and misleading the jury.
See
State v. Pierce, 346 N.C. 471, 491, 488 S.E.2d 576, 587 (1997).
Furthermore, Dr. Lantz testified that Kalen was alive immediately
before the infliction of her injuries and that the severity of
Kalen's injuries caused her death regardless of whether she had
been consuming alcohol. Although Dr. Winaker could not render an
opinion as to whether Kalen was experiencing a seizure immediately
prior to her death, Dr. Winaker testified that seizures are usually
not a result of alcohol poisoning but are due to alcoholism and thewithdrawal of alcohol from the alcoholic person. Thus, in light of
the testimony received by the trial court and its decision to delay
its determination, we conclude that the trial court did not abuse
its discretion by excluding evidence of Kalen's blood alcohol
concentration. Therefore, defendant's second argument is
overruled.
Defendant next argues that the trial court improperly
considered factors outside the record while imposing defendant's
sentence. During the sentencing hearing, the trial court made
comments regarding religion, drug and alcohol abuse, and drug
smuggling, while engaging in colloquies with the prosecutor,
defendant's attorney, and defendant. Specifically, the trial court
queried whether Kalen had time for a “last prayer” before her
death, expressed amazement at how persons consume illegal drugs
while refusing to take an aspirin if the seal is broken, and
commented about a television program concerning a drug smuggling
cartel. While the better practice would have been for the trial
court to not have made these statements, nothing in the record
suggests that the trial court considered these matters in imposing
defendant's sentence. Therefore, defendant's third argument is
overruled.
In a motion for appropriate relief filed with his appeal,
defendant argues that the trial court erred by sentencing him in
the aggravated range for second-degree murder.
(See footnote 1)
Defendant assertsthat the trial court was prohibited from sentencing him in the
aggravated range because the aggravating factor was not submitted
to the jury. We agree.
In
State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), our
Supreme Court recently examined the constitutionality of North
Carolina's structured sentencing scheme in light of the United
States Supreme Court's decisions in
Apprendi v. New Jersey, 530
U.S. 466, 147 L. Ed. 2d 435 (2000) and
Blakely v. Washington, 542
U.S. 296, 159 L. Ed. 2d 403 (2004). In
Allen, the Court concluded
that, when “[a]pplied to North Carolina's structured sentencing
scheme, the rule of
Apprendi and
Blakely is: Other than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed presumptive range must be submitted to
a jury and proved beyond a reasonable doubt.” 359 N.C. at 437, 615
S.E.2d at 264-65 (citing
Blakely, 542 U.S. at ___, 159 L. Ed. 2d at
413-14;
Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455; N.C. Gen.
Stat. §§ 15A-1340.13, 15A-1340.14, 15A-1340.16, 15A-1340.17).
In the instant case, following defendant's conviction for
second-degree murder, the trial court enhanced defendant's sentence
after unilaterally finding that defendant knowingly created a great
risk of death to more than one person by means of a weapon or
device which would normally be hazardous to the lives of more than
one person. The trial court did not submit the issue to the jury
for proof beyond a reasonable doubt. In light of the Supreme
Court's decision in
Allen, we conclude that the trial court erred.
The State contends that this error was harmless because,according to the State, had the issue been submitted to the jury,
the jury would have found that defendant's conduct fell within the
aggravating factor utilized by the trial court. However, we note
that in
Allen, our Supreme Court rejected application of the
harmless error doctrine to such sentencing errors, noting that
“[b]ecause 'speculat[ion] on what juries would have done if they
had been asked to find different facts' is impermissible, the
Washington Supreme Court concluded, as do we, that '[h]armless
error analysis cannot be conducted on
Blakely Sixth Amendment
violations.'” 359 N.C. at 448, 615 S.E.2d at 271-72 (quoting
State
v. Hughes, 154 Wash. 2d 118, 148, 110 P.3d 192, 208 (2005)). Thus,
in light of the foregoing
, we conclude that the trial court
committed reversible error by sentencing defendant in the
aggravated range for second-degree murder, and therefore, we remand
the case for resentencing.
(See footnote 2)
No error at trial; remanded for resentencing.
Judges CALABRIA and LEVINSON concur.
Report per Rule 30(e).
Footnote: 1