STATE OF NORTH CAROLINA v. TIMMY WAYNE SPEIGHT
Upon remand from the Supreme Court of North Carolina, appeal
by defendant from judgments entered 30 August 2002 by Judge W.
Russell Duke, Jr., in Pitt County Superior Court. Originally heard
in the Court of Appeals 30 March 2004.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Robert C. Montgomery, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant-appellant.
This case comes before us on remand from the Supreme Court of
North Carolina in order that we may reexamine the issue of
sentencing in light of its recent decision in State v. Blackwell,361 N.C. 41, 638 S.E.2d 452 (2006), cert. denied, ___ U.S. ___, 167
L. Ed. 2d 1114 (2007). Upon remand from the United States Supreme
Court, our Supreme Court in Blackwell held that according to
Washington v. Recuenco, 548 U.S. ___, 165 L. Ed. 2d 466 (2006), the
failure to submit a sentencing factor to the jury is subject to
harmless error review. Blackwell, 361 N.C. at 44, 638 S.E.2d at
455. As this case is now before us, we review the issue of whether
the error in Timmy Wayne Speight's (defendant) sentencing on two
involuntary manslaughter convictions and a driving while
intoxicated (DWI) charge was harmless or whether defendant is
entitled to a new sentencing hearing. After careful consideration,
we find the error to be harmless.
The State's evidence tended to show that James and Leona
Newsome were traveling north on Highway 11 during rush hour
traffic. Mrs. Newsome warned her husband that defendant's car was
approaching from behind at a high rate of speed. Mr. Newsome then
saw defendant pass their vehicle in the right-hand lane, pick up
speed, and cut in and out of traffic.
Carl Ebron was also traveling northbound on Highway 11. As
Mr. Ebron proceeded through a stoplight, he heard tires squealing
and saw defendant's red car cut in front of him, go out of control,
start skidding, and hit a median. Defendant's vehicle then crossed
the median, hit a pole, and crashed head-on into a white Buickheading southbound on Highway 11. The Buick was occupied by fifty-
year-old Lynwood Thomas and his twenty-year-old son Donald Thomas
(victims), both of whom died as a result of the collision.
Michelle Spade was standing in her front lawn at the time of
the incident and so witnessed it. She testified that defendant's
vehicle was going every bit of 70/80 [miles per hour.] The speed
limit on the road was fifty-five (55) miles per hour. Ms. Spade
You can pretty much look down and see what's
going on. I saw him. Mainly I just saw the
car still going in and out, in and out. And
it had been raining for a couple of days prior
to this going on. So what he was doing was
driving and he was trying actually [to] avoid
hitting the other cars. So he went to the
side then that is when he slid over.
Ms. Spade stated that after defendant's car went onto the median,
it spun, then collided with the victims' vehicle, causing the Buick
to fly into the air, flip over, and land on its roof. At this
point, Ms. Spade called 911.
An EMS unit arrived at the scene after the 911 call. Donald
Gerkin, a paramedic, testified that his three-person crew split up
to assess the persons in both vehicles and that he went to assess
the occupants of the Buick. Mr. Gerkin determined that neither
victim was breathing or had a pulse. Jeffrey Maye, another first responder, testified that as he
was attempting to open defendant's car doors, he noticed the odor
of alcohol in defendant's vehicle. Defendant was eventually
removed and taken to the hospital.
Officer M.L. Montanye of the Greenville Police Department was
also at the scene. While EMTs were working to remove defendant
from his vehicle, Officer Montanye put his head in one of the
windows broken out by the crash and smelled a slight odor of
alcohol. Officer Montanye followed the ambulance to the hospital
in order to obtain a chemical test.
At the hospital, Officer Montanye spoke with defendant and
later testified that he noticed a moderate odor of alcohol coming
from his breath. Based upon that, the severity of the collision,
and the statements of the four witnesses with whom he spoke,
Officer Montanye was of the opinion that defendant had consumed a
sufficient amount of alcohol to appreciably impair his mental and
physical faculties and therefore charged defendant with DWI.
Officer Montanye read defendant his chemical testing rights, and
defendant signed a form acknowledging that he understood his
rights. Defendant also signed a consent granting permission for
blood samples to be taken. Later, defendant signed a consent form
releasing all of his medical records from Pitt Memorial Hospital to
the district attorney's office. The blood sample was turned over to the State Bureau of
Investigation (SBI) for analysis. At trial, Special Agent Aaron
Jonich testified that after performing his analysis, he determined
that defendant's alcohol concentration was 0.10 at the time of the
test. Agent Jonich also stated that the drug analysis he performed
revealed the presence of morphine and tetrahydrocannabinol (THC).
THC is a chemical found in marijuana.
Paul Glover of the Forensic Tests for Alcohol Branch testified
that he performed a retrograde extrapolation on both the SBI blood
test results and the hospital blood results. The results of both
tests indicate that, at the time of the collision, defendant's
blood alcohol concentration was 0.13.
Defendant was found guilty of two counts of involuntary
manslaughter and one count of DWI. The trial court found two
aggravating factors as to each involuntary manslaughter: (1)
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; and (2) in the
course of conduct, the defendant killed another[.] The trial
court found that the aggravating factors outweighed the mitigating
factors and sentenced defendant to two consecutive prison terms of
twenty to twenty-four months. As to the DWI conviction, the trial court found two
aggravating factors: (1) defendant caused, by the defendant's
impaired driving at the time of the current offense, serious injury
to another person; and (2) defendant used a motor vehicle in the
commission of a felony that led to the death of two people. The
trial court sentenced defendant to twelve months imprisonment to
run consecutively with the sentence imposed in the second of the
two manslaughter convictions.
The trial court erred by not submitting the aggravating
factors to the jury under Blakely v. Washington, 542 U.S. 296, 301,
159 L. Ed. 2d 403, 412 (2004). Our Supreme Court, however, has
recently determined that Blakely errors are subject to harmless
error review. Blackwell, 361 N.C. at 44, 638 S.E.2d at 455. Thus,
the issue before this Court is whether the Blakely errors committed
by the trial court by finding aggravating factors were harmless
beyond a reasonable doubt.
 As stated, the trial court, by finding the aggravating
factors in this case rather than submitting them to a jury for
determination, committed a Sixth Amendment error pursuant to
. See Blakely
, 542 U.S. at 301, 159 L. Ed. 2d at 412
('[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutorymaximum must be submitted to a jury, and proved beyond a reasonable
doubt'). In Washington v. Recuenco
, 548 U.S. at ___, 165 L. Ed.
2d at 476, the United States Supreme Court held that Blakely
are subject to harmless error review.
Pursuant to Recuenco
, our Supreme Court has held that the
Sixth Amendment error committed in North Carolina when a judge,
rather than a jury, finds an aggravating factor is subject to
harmless error review. Blackwell
, 361 N.C. at 44, 638 S.E.2d at
455. The Court set out the following test to determine whether an
error is harmless:
In conducting harmless error review, we must
determine from the record whether the evidence
against the defendant was so overwhelming
and uncontroverted that any rational
fact-finder would have found the disputed
aggravating factor beyond a reasonable doubt.
The defendant may not avoid a conclusion that
evidence of an aggravating factor is
uncontroverted by merely raising an
objection at trial. Instead, the defendant
must bring forth facts contesting the omitted
element, and must have raised evidence
sufficient to support a contrary finding.
. at 49-50, 638 S.E.2d at 458 (internal citations omitted); see
also State v. Heard and Jones
, 285 N.C. 167, 172, 203 S.E.2d 826,
829 (1974) (before a court can find a Constitutional error to be
harmless it must be able to declare a belief that such error was
harmless beyond a reasonable doubt).
The trial court imposed higher sentences for each of the two
(See footnote 1)
convictions based on its finding of two
aggravating factors: (1) 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[,] N.C. Gen. Stat. § 15A-1340.16(d)(8) (2005); and (2) in
the course of his conduct, defendant killed another. We now must
address whether the State proved these aggravating factors beyond
a reasonable doubt, rendering the trial court's Blakely
Defendant argues that the finding of the first factor was not
established beyond a reasonable doubt. We disagree.
To prove the first aggravating factor found by the trial
court, the State must show: (1) the weapon [or device] in its
normal use is hazardous to the lives of more than one person; and
(2) . . . a great risk of death was knowingly created. State v.
, 327 N.C. 599, 605, 398 S.E.2d 314, 317 (1990).
As to whether a vehicle is hazardous to the lives of more than
one person [i]t is well settled in North Carolina that anautomobile can be a deadly weapon if it is driven in a reckless or
dangerous manner. State v. Jones
, 353 N.C. 159, 164, 538 S.E.2d
917, 922 (2000). There being overwhelming and uncontradicted
evidence that defendant was operating his vehicle in a reckless
manner by driving at a high rate of speed, by driving while
intoxicated and with THC and morphine present in his blood, and by
weaving in and out of traffic, we find that the first element of
proof was conclusively established at the trial court. In other
words, defendant's vehicle qualifies as a weapon or device [that
in its normal use is] hazardous to the lives of more than one
person. N.C. Gen. Stat. § 15A-1340.16(d)(8).
As to whether a great risk of death to more than one person
was knowingly created, it is sufficient to show that a reasonable
person would have known his conduct created such risk. See State
, 319 N.C. 665, 667, 356 S.E.2d 349, 351 (1987) (holding
that any reasonable person should know firing a rifle several times
into a crowd of people creates a great risk of death). This Court
has held that any reasonable person should know that an automobile
operated by a legally intoxicated driver is reasonably likely to
cause death to any and all persons who may find themselves in the
automobile's path. State v. McBridge
, 118 N.C. App. 316, 319-20,
454 S.E.2d 840, 842 (1995); see also State v. Fuller
, 138 N.C. App.
481, 488, 531 S.E.2d 861, 866-67 (holding evidence of theaggravating factor was sufficient where motor vehicle collision was
caused by the impaired defendant), disc. review denied
, 353 N.C.
271, 546 S.E.2d 120 (2000). Here, we find that the State put on
evidence before the jury that established beyond a reasonable doubt
that a reasonable person would have known that a great risk of
death had been created.
As to the second element of the first aggravating factor, that
a great risk of death was knowingly created, the following
uncontroverted evidence was presented: Defendant's blood alcohol
concentration was 0.10 two hours after the collision; defendant's
blood alcohol concentration would have been 0.13 at the time of the
accident; defendant had morphine and THC in his system; defendant
was speeding, lost control of his vehicle, skidded across a median
where he hit a pole, and then crashed head-on into the victims'
vehicle; and, per the testimony of three witnesses, defendant was
driving at a high rate of speed in heavy traffic. The fact that
defendant might have stopped for traffic signals or that other
vehicles were going at a similar speed does nothing to contradict
the evidence that at the time of the crash, defendant was traveling
at a high rate of speed, after drinking, and through heavy traffic.
Accordingly, because the evidence supporting the aggravating factor
was overwhelming and uncontroverted, there can be no question that
a rational jury would have found that defendant knowingly createda great risk of death to more than one person by means of a weapon
or device that would normally be hazardous to more than one person.
As to the second aggravating factor, that defendant killed
another, defendant acknowledges that the jury's guilty verdicts as
to two involuntary manslaughter charges necessarily shows it found
beyond a reasonable doubt that in the course of conduct as to each
offense defendant killed another. The general rule is that
[e]vidence necessary to prove an element of the offense shall not
be used to prove any factor in aggravation[.] N.C. Gen. Stat. §
15A-1340.16(d). Here, however, there were two involuntary
manslaughter convictions. Accordingly, the trial court did not err
because [e]vidence used to prove an element of one offense may
also be used to support an aggravating factor of a separate joined
offense. State v. Crockett
, 138 N.C. App. 109, 119, 530 S.E.2d
359, 365 (2000) (citing State v. Farlow
, 336 N.C. 534, 444 S.E.2d
913 (1994)). Thus, we find the errors committed by the trial court
in not submitting the aggravating factors to the jury for
determination to be harmless.
 Finally, defendant raises an issue in addition to the one
this Court has directed the parties to address: That the two
aggravating factors are duplicative. While this is not what the
parties were asked to address in their briefs, the issue goes towhether the error committed by the trial court was harmless.
Accordingly, we address this issue.
Evidence supporting two aggravating factors may partially
overlap, as long as there is some distinction in the evidence
supporting each aggravating factor. State v. Beck
, 359 N.C. 611,
616, 614 S.E.2d 274, 278 (2005). The evidence supporting the
aggravating factors in the instant case has some distinction.
The first aggravating factor requires evidence that defendant was
impaired, while the second does not. Furthermore, the second
aggravating factor requires evidence that defendant committed a
felony, while the first does not. We thus hold that the
aggravating factors in this case are not duplicative.
The trial court found two aggravating factors as to
defendant's conviction for driving while impaired: (1) that
defendant caused, by [his] impaired driving at the time of the
current offense, serious injury to another person; and (2) that
defendant used a motor vehicle in the commission of a felony that
led to the death of two people.
For the reasons stated in subsection A above, we also conclude
that the evidence supporting the aggravating factors found as to
the DWI is overwhelming and uncontroverted. Accordingly, the error
committed by the trial court was harmless.
In summation, we hold that the Blakely
errors committed by the
trial court were harmless and that the aggravating factors were not
duplicative. Defendant's arguments to the contrary are rejected.
Judges WYNN and TYSON concur.