STATE OF NORTH CAROLINA
v. Gaston County
No. 99 CRS 5480
WILLIAM JASPER GOODMAN, JR.
Attorney General Roy Cooper, by Special Counsel Isaac T.
Avery, III, for the State.
Don Willey for defendant-appellant.
MARTIN, Chief Judge.
In March of 2000, a jury found defendant guilty of second
degree murder. On appeal, a divided panel of this Court voted to
affirm defendant's conviction but to award him a new sentencing
hearing. State v. Goodman, 149 N.C. App. 57, 72, 560 S.E.2d 196,
205-06 (2002), (Greene, J., dissenting), rev'd per curiam for
reasons stated in the dissent, 357 N.C. 43, 577 S.E.2d 619 (2003)
(hereafter “Goodman I”). In his dissenting opinion, Judge Greene
argued that the admission into evidence of defendant's entire
driving record “dating back to 1962[,]” including multiple offenses
committed more than sixteen years before 11 February 2000,
constituted plain error under N.C.R. Evid. 404(b), entitlingdefendant to a new trial. Id. at 73, 560 S.E.2d at 206 (Greene,
J., dissenting). While acknowledging that he was “bound by this
Court's holding in State v. Miller, 142 N.C. App. 435, 440, 543
S.E.2d 201, 205 (2001), that driving convictions dating back
sixteen years are admissible to prove malice,” Judge Greene
concluded that “any conviction dating beyond sixteen years, however
slight, runs afoul of the temporal proximity requirement of Rule
404(b).” Id. at 73 n.1, 560 S.E.2d at 206 n.1 (Greene, J.,
dissenting). The North Carolina Supreme Court reversed this
Court's Goodman I decision “[f]or the reasons stated in [Judge
[Greene's] dissenting opinion,” and remanded the cause for a new
trial. Goodman, 357 N.C. at 43, 577 S.E.2d at 619 (2003)
On remand, a jury again found defendant guilty of second
degree murder after a four-day trial concluding on 14 May 2004.
The trial court sentenced him to a presumptive prison term of 251
to 311 months. Defendant gave notice of appeal in open court.
Consistent with our summary of evidence in Goodman I, the
State's evidence on retrial tended to show the following:
[O]n 11 February 1999 at approximately 11:30
a.m., seventy-three year-old Lewis Watford was
driving a Mercury Grand Marquis on U.S. 321 in
Gastonia. Watford's vehicle was stopped at a
red light in the left northbound lane of U.S.
321 at the intersection of Hudson Boulevard.
When the light turned green, Watford proceeded
into the intersection to make a left turn when
his vehicle was struck on the passenger side
by defendant's truck. Defendant had run a
light as he proceeded west on Hudson
Boulevard. Witness Tracy Moose testified she
saw defendant's head and arm hanging out the
driver's side window of his truck as he ran
the red light. Defendant was traveling at
approximately forty to forty-five miles perhour when he struck Watford's passenger-side
door. A blood test performed on defendant at
the hospital revealed his blood alcohol
content was .138. Watford died four days later
as a result of injuries sustained in the
accident.
Goodman, 149 N.C. App. at 59-60, 560 S.E.2d at 198. Police found
an unopened mini-bottle of vodka and a marijuana cigarette in
defendant's vehicle at the accident scene. On 28 March 2000,
defendant pled guilty to charges of driving while impaired and
possession of marijuana arising from this incident.
In light of the Supreme Court's holding in Goodman I, the
prosecution confined its proffer of defendant's driving record
under Rule 404(b) to those violations committed within sixteen
years of the instant offense. The State adduced evidence of
defendant's convictions for failing to yield the right of way in
January of 1997, illegal passing in October of 1995, speeding in
September of 1988, and driving while impaired in April of 1990.
The trial court overruled defendant's objection to this evidence,
citing Judge Greene's explicit statement “that driving convictions
dating back sixteen years are admissible to prove malice” under
Miller. Goodman, 149 N.C. App. at 73 n.1, 560 S.E.2d at 206 n.1
(2002). On voir dire, the court found that “evidence of the
defendant's driving history is relevant and is probative” and “that
the probative value of the defendant's driving record within the
last [sixteen] years substantially outweighs any danger of unfair
prejudice” under N.C.R. Evid. 403. The court gave a limiting
instruction both before and after the introduction of this
evidence, advising the jury that it could be considered only “asproof of malice” and could not be considered as evidence “of the
character of the defendant or that he acted in conformity with
that.”
On appeal, defendant first argues that the trial court erred
in admitting evidence of his prior traffic convictions and
attendant loss of driving privileges under N.C.R. Evid. 404(b),
absent any showing that the circumstances underlying the prior
convictions were substantially similar to those of 11 February
1999. Citing Judge Wynn's dissenting opinion in State v.
Wilkerson, 148 N.C. App. 310, 319, 559 S.E.2d 5, 11, (Wynn, J.,
dissenting), rev'd per curiam for reasons stated in dissenting
opinion, 356 N.C. 418, 571 S.E.2d 583 (2002), he avers that “the
bare fact of a prior conviction” was inadmissible under Rule
404(b), which requires a showing of a substantial similarity
between the prior act and the matter at bar. Absent the requisite
similarity, the evidence tended to show only “defendant's
predisposition to commit driving offenses” and was unfairly
prejudicial under Rule 403. Because he had a valid driver's
license on 11 February 1999, defendant argues that his prior
license suspensions were irrelevant.
In his opinion in Goodman I, Judge Greene considered the
admissibility of defendant's driving record and concluded that he
was “bound by this Court's holding in [Miller, 142 N.C. App. at
440, 543 S.E.2d at 205], that driving convictions dating back
sixteen years are admissible to prove malice.” Goodman, 149 N.C.
App. 73 n.1, 560 S.E.2d 206 n.1 (2002). Having been expresslyadopted by our Supreme Court, we believe that this ruling
constitutes the law of the case. “Under the law of the case
doctrine, an appellate court ruling on a question governs the
resolution of that question both in subsequent proceedings in the
trial court and on a subsequent appeal, provided the same facts and
the same questions, which were determined in the previous appeal,
are involved in the second appeal.” Creech v. Melnik, 147 N.C.
App. 471, 473-74, 556 S.E.2d 587, 589 (2001), disc. review denied,
355 N.C. 490, 561 S.E.2d 498 (2002).
Assuming, arguendo, that defendant's assignment of error is
not barred by the doctrine of law of the case, it is without merit.
It is well-established that a defendant's prior driving convictions
are admissible under Rule 404(b) to prove that he acted with malice
in killing a person while driving under the influence of an
impairing substance. See, e.g., State v. Rich, 351 N.C. 386, 400,
527 S.E.2d 299, 307 (2000); Miller, 142 N.C. App. at 439-40, 543
S.E.2d at 304. Moreover, this Court recently considered the impact
of Judge Wynn's dissent in Wilkerson, and concluded that it did not
affect the admissibility of prior driving convictions to show
malice under Rule 404(b):
[T]his Court, and our Supreme Court in Goodman
[I], have consistently treated driving
convictions offered to prove the requisite
state of mind for a second degree murder
conviction separately when interpreting Rule
404(b). Wilkerson did not alter this Court's
precedent involving traffic convictions in
second degree murder cases. See Wilkerson, 148
N.C. App. at 327-28, 559 S.E.2d at 16 (Wynn,
J., dissenting).
State v. Edwards, ___ N.C. App. ___, ___, 612 S.E.2d 394, ___(2005) (internal citations omitted). In light of our holding in
Edwards, we find no error or abuse of discretion in the admission
of defendant's driving record under Rule 404(b) and Rule 403,
without inquiry into the similarity of his prior violations to his
conduct on 11 February 1999.
Defendant next claims error in the admission of his statement
to a lab technician, Pam Neely, at Gaston Memorial Hospital
following the accident on 11 February 1999. Neely testified that,
as she was drawing blood from defendant, “[h]e was talking about
that he had money and that he would get a lawyer and he would get
out of it, of what had happened.” The trial court gave a limiting
instruction, advising the jury that Neely's testimony was “received
for the limited purpose of proving malice, if you find it does so,
in fact, prove malice, and it is not to be considered by you for
any other purpose or proof that a crime has been committed in this
case.” Defendant argues that his statement to Neely was “[was] not
relevant to establishing a pattern of recklessness or a disregard
for social duty[,]” as required to show malice, but instead tended
“to portray him as cold and heartless--to attack his character and
to inflame the jury and prejudice him in its eyes.”
A defendant's statements before and after a killing are
admissible to establish the elements of murder, including malice,
premeditation and deliberation. See State v. Alford, 329 N.C. 755,
761, 407 S.E.2d 519, 523 (1991) (finding “the conduct and
statements of the defendant after the killing” relevant to
establish elements of murder); State v. Peoples, 141 N.C. App. 115,118, 539 S.E.2d 25, 28 (2000) (“[A]n intent to kill and the
existence of malice, premeditation and deliberation may be inferred
from the conduct and statements of the defendant before and after
the incident” and other circumstantial evidence); State v.
Hamilton, 77 N.C. App. 506, 512-13, 335 S.E.2d 506, 510 (1985)
(finding some “evidence of malice in defendant's voluntary
statement following arrest”), disc. review denied, 315 N.C. 593,
341 S.E.2d 33 (1986). In proceeding against defendant on the
charge of second degree murder under the theory of “depraved heart”
malice, the State was obliged to prove that he committed an
inherently dangerous act “in such a reckless and wanton manner as
to 'manifest a mind utterly without regard for human life and
social duty and deliberately bent on mischief.'” State v. Fuller,
138 N.C. App. 481, 484, 531 S.E.2d 861, 864 (quoting State v.
Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982)), disc.
review denied, 353 N.C. 271, 546 S.E.2d 120 (2000); see generally
State v. Wilkerson, 295 N.C. 559, 578, 247 S.E.2d 905, 916 (1978).
We find defendant's statement to Neely relevant and probative
on the element of malice, reflecting both his awareness of his
responsibility for what was unquestionably a serious motor vehicle
collision and his indifference to any consequences thereof beyond
his own ability to “get out of it.” Moreover, inasmuch as
defendant's statement concerned the very incident at issue, rather
than some prior or subsequent act as contemplated under Rule
404(b), it was reflective not simply of his general character or
predisposition but of his attitude toward the accident withWatford. We agree that evidence of defendant's utter “lack of
regard for human life and social duty” might have prejudiced him in
the eyes of the jury. However, any such prejudice stemmed from the
evidence's tendency to prove an essential element of the charged
offense. See Hamilton, 77 N.C. App. at 511, 335 S.E.2d at 510.
Accordingly, “[t]he court did not abuse its discretion in refusing
to exclude the statement[]” under Rule 403. Id.
The record on appeal includes additional assignments of error
not addressed by defendant in his brief to this Court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned.
No error.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
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