An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA04-1411


Filed: 2 August 2005


         v.                        Gaston County
                                No. 99 CRS 5480

    Appeal by defendant from judgment entered 14 May 2004 by Judge Timothy L. Patti in Gaston County Superior Court. Heard in the Court of Appeals 18 July 2005.

    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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