STATE OF NORTH CAROLINA
Ashe County
v
.
No. 02 CRS 50661
ROBERT CHRISTOPHER LONG
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.
CALABRIA, Judge.
This case comes before us on remand from the North Carolina
Supreme Court. We hold that the trial court's error was harmless
beyond a reasonable doubt and preserve defendant's sentence as
determined by the trial court.
On 19 March 2003, defendant was found guilty by a jury of
second-degree murder and driving while impaired. Defendant wassentenced in the aggravated range to a term of imprisonment with
the North Carolina Department of Correction. Defendant appealed
the judgment. This Court initially upheld defendant's conviction
but remanded to the trial court for resentencing. See State v.
Long, No. COA03-1712, 173 N.C. App. 758, 620 S.E.2d 320 (filed Oct.
18, 2005).
In an order filed 21 December 2006, our Supreme Court upheld
this Court's opinion with the exception of the portion remanding
for resentencing. State v. Long, 361 N.C. 175, 641 S.E.2d 309
(2006). The Supreme Court vacated that portion of our opinion and
remanded the case to this Court for reexamination in light of its
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).
The pertinent facts are as follows: On 11 June 2002,
defendant's vehicle collided with a stopped pickup truck at an
intersection in East Jefferson, North Carolina. The passenger in
defendant's vehicle sustained fatal injuries in the accident, and
subsequent blood tests revealed defendant was intoxicated.
Following defendant's conviction, the trial judge found as an
aggravating factor that defendant had 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. Based on this finding, defendant was sentenced within
the aggravated range of N.C. Gen. Stat. § 15A-1340.17 to a minimum
term of 264 months and a maximum term of 326 months in the North
Carolina Department of Correction. In a motion for appropriate relief filed on 25 June 2004,
defendant argued that the trial court erred by sentencing him in
the aggravated range for second-degree murder. Defendant asserted
that the trial court was prohibited from sentencing him in the
aggravated range because the aggravating factor was not submitted
to the jury in violation of the Sixth Amendment and the United
States Supreme Court's holding in Blakely v. Washington, 542 U.S.
296, 159 L. Ed. 2d 403, reh'g denied, 542 U.S. 961, 159 L. Ed. 2d
851 (2004). Upon reconsideration, we disagree.
In Blakely v. Washington, the United States Supreme Court held
that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 542 U.S. at 301, 159 L. Ed. 2d at 412 (quoting Apprendi v.
New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000)).
Following the Blakely decision, there was some confusion as to
whether a violation of the Blakely rule was subject to harmless
error review or constituted so called “structural error” resulting
in automatic reversals of cases. See State v. Allen, 359 N.C. 425,
615 S.E.2d 256 (2005), withdrawn by, 360 N.C. 569, 635 S.E.2d 899
(2006). Then, in Washington v. Recuenco, 548 U.S. __, __, 165 L.
Ed. 2d 466, 477 (2006), the Supreme Court provided clarification.
In reviewing a conceded Blakely violation, the Supreme Court held
that the “[f]ailure to submit a sentencing factor to the jury, like
failure to submit an element to the jury, is not structural error.”
Washington, 548 U.S. at __, 165 L.Ed.2d at 477. In accord withRecuenco, the North Carolina Supreme Court recently held that error
under Blakely is subject to federal harmless error analysis.
Blackwell, 361 N.C. at 44-45, 638 S.E.2d at 455-56.
In the case sub judice, defendant was found guilty by a jury
of second-degree murder. Thereafter, the trial judge found as an
aggravating factor pursuant to N.C. Gen. Stat. § 15A-1340.16 (2005)
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. Based upon this
finding, the trial judge sentenced defendant to a term of
imprisonment within the aggravated range of N.C. Gen. Stat. §
15A-1340.17 (2005). The issue was not submitted to the jury for
proof beyond a reasonable doubt. We, therefore, conclude that the
trial court erred in violation of the rule set forth in Blakely.
Pursuant to Blackwell, we conduct harmless error analysis to
determine whether the trial court's violation constitutes
reversible error. “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.” Blackwell, 361 N.C. at 49, 638
S.E.2d at 458 (citing Neder v. United States, 527 U.S. 1, 9, 144 L.
Ed. 2d 35, 47 (1999)). “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.'” Id.,
361 N.C. at 50, 638 S.E.2d at 458 (quoting Neder, 527 U.S. at 19,
144 L. Ed. 2d at 53) (internal citations omitted).
In the instant case, the aggravating factor at issue is
codified at N.C. Gen. Stat. § 15A-1340.16(d)(8) (2005). The North
Carolina Supreme Court has indicated that the trial court must
focus on two considerations when deciding to impose this
aggravating factor: “(1) whether the weapon [or device] in its
normal use is hazardous to the lives of more than one person; and
(2) whether a great risk of death was knowingly created.” State v.
Rose, 327 N.C. 599, 605, 398 S.E.2d 314, 317 (1990).
With respect to the first consideration, “[i]t is well settled
in North Carolina that an automobile 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) (citation omitted).
Further, “[i]t is well-settled that the use of the challenged
aggravating factor within the context of motor vehicle collisions
caused by legally intoxicated drivers is proper.” State v. Fuller,
138 N.C. App. 481, 488, 531 S.E.2d 861, 866-67, disc. review
denied, 353 N.C. 271, 546 S.E.2d 120 (2000) (citations omitted).
In State v. McBride, 118 N.C. App. 316, 318, 454 S.E.2d 840,
841 (1995), this Court addressed the application of N.C. Gen. Stat.
§ 15A-1340.16(d)(8) within the context of the operation of an
automobile by an intoxicated driver. Similar to the instant case,
a passenger was killed when the vehicle operated by the defendant
was involved in a collision. Id., 118 N.C. App. at 317, 454 S.E.2dat 841. The evidence in McBride showed that the defendant was
intoxicated and operated his vehicle in a reckless manner at the
time of the accident. Id. Under these circumstances, the Court
concluded that the trial court did not err in finding that the
defendant's automobile “constituted a device which in its normal
use is hazardous to the lives of more than one person.” Id., 118
N.C. App. at 319, 454 S.E.2d at 842.
Here, as in McBride, the evidence at trial indicates that
defendant was intoxicated and operated his vehicle in a reckless
manner by driving at an excessive speed. As such, we conclude that
the first consideration was satisfactorily established.
The remaining question is whether defendant knowingly created
a great risk of death. Id., 118 N.C. App. at 319, 454 S.E.2d at
842. “[A]ny 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.” McBride, 118 N.C. App. at 319-20, 454 S.E.2d
at 842.
The evidence presented at defendant's trial supports a finding
that defendant knowingly created a great risk of death. Following
the accident, blood tests revealed that defendant had a blood
alcohol concentration of .16, and witnesses testified that
defendant was traveling at an excessive rate of speed. Further,
defendant was driving despite the fact that his license was
suspended as a consequence of a prior conviction for driving while
impaired. Because of the magnitude of this evidence, we concludethat a rational jury would have found that defendant knowingly
created a 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.
For the foregoing reasons, we hold that the trial court's
error in sentencing was harmless beyond a reasonable doubt.
Accordingly, the sentence imposed by the trial court should remain
undisturbed.
No error.
Judges STEPHENS and ARROWOOD concur.
Report per Rule 30(e).
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