State v. Ballard

• Decision Date: 02 September 1997
• Docket Number: No. COA96-1153,COA96-1153
• Citation: 127 N.C.App. 316,489 S.E.2d 454
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Jerry Wayne BALLARD.

Page 454

489 S.E.2d 454

127 N.C.App. 316

STATE of North Carolina v. Jerry Wayne BALLARD.

No. COA96-1153.

Court of Appeals of North Carolina.

Sept. 2, 1997.

Michael F. Easley, Attorney General by Reuben F. Young, Associate Attorney General, for the State.

Belser & Parke, P.A. by David G. Belser, Asheville, for defendant-appellant.

WYNN, Judge.

A grand jury indicted defendant Jerry Wayne Ballard for, and he subsequently pled guilty to, felony driving while impaired, reckless driving to endanger, driving while license revoked, unsafe tires, fictitious registration card/tag, and operating a vehicle with no insurance. A grand jury also indicted defendant for second degree murder and he was tried by a jury in Buncombe County.

At that trial, the State's evidence tended to show the following: On 15 May 1995, defendant was seen with eleven year old Billy Joe Moore ("B.J.") at a convenience store in Weaverville, N.C. Deborah Moore, B.J.'s mother and defendant's ex-girlfriend, had planned for B.J. to stay with his grandmother that day. However, during the course of the day, B.J. called his mother from the convenience store to say he was not with his grandmother. Defendant came on the line and argued with and threatened Ms. Moore. Ms. Moore, aware that defendant was a heavy drinker and knowing from his slurred speech on the telephone that defendant was under the influence, repeatedly asked defendant to bring B.J. home. Following this telephone conversation, Ms. Moore called the police and reported that B.J. had been abducted and informed them of his location.

Defendant left the store with B.J. in his car at approximately 7:00 p.m. Shortly thereafter, Buncombe County Sheriff Deputy Jerry Owenby, Jr. spotted defendant's car and turned around to follow him in his patrol car. Defendant accelerated, passing a car on a double solid line into oncoming traffic, and sped off down the road. Defendant, with Deputy Sheriff Owenby in pursuit, ran a stop sign and collided with a utility pole about one mile from where the initial pursuit began. B.J. suffered severe head trauma and an amputated leg and died on the scene. Defendant told the investigating officer that he was driving the car but that he hadn't meant to wreck it. He asked about B.J. and said that he had not wanted to hurt B.J. but just wanted to scare B.J.'s mother. Police found numerous empty beer cans and two bottles of Wild Irish Rose wine in defendant's car. Defendant was admitted to the hospital where he refused a request for a blood sample and breathalyzer test. However, defendant stipulated that his blood alcohol level at a relevant time after the accident was .18.

Defendant presented the testimony of John Clement, an expert in psychology, who stated that defendant suffered from chronic alcoholism and poly-substance abuse and was suffering from drug and alcohol addiction and intoxication at the time of the accident. He further stated that defendant's state of mind immediately preceding the accident was frightened and panicked.

At the conclusion of the trial, the jury found defendant guilty of second degree murder. The trial court then determined that defendant had a prior record level of II and made findings of aggravating and mitigating factors. It found as factors in aggravation 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," and "defendant took advantage of a position of trust or confidence to commit the offense," and found as a factor in mitigation that "defendant has a support system in the community." After concluding that the aggravating factors outweighed the mitigating factors, the court imposed an aggravated sentence of 163 to 205 months. Defendant appeals from the judgment and sentence imposed.

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The defendant raises several issues on appeal: (I) Whether the trial court erred by refusing to allow the expert psychologist to testify as to what defendant told him regarding his state of mind at the time of the offense; (II) Whether the trial court committed plain error by instructing the jury that it could consider the defendant's guilty pleas to driving while license revoked, no insurance, fictitious tag and unsafe tires as evidence of malice; (III) Whether the trial court erred in finding the two aggravating factors and by failing to find two additional mitigating factors. We conclude that the defendant received a fair trial free from prejudicial error.

I.

Defendant first assigns as error the trial court's refusal to allow his expert psychologist to testify as to what the defendant told him regarding his state of mind at the time of the offense. He argues that defendant's statements to the psychologist formed part of the basis for his expert opinion and as such, should have been allowed into evidence. We disagree.

Under N.C.R. of Evid. 705, an expert may testify regarding his opinion and the reasons therefor. However, this "does not ... make the bases for an expert's opinion automatically admissible." State v. Baldwin, 330 N.C. 446, 456, 412 S.E.2d 31, 37 (1992). The trial court has the authority to " 'exercise reasonable control over the mode and order' of interrogation and presentation of the evidence," and has the discretion to exclude relevant but prejudicial evidence. Id. (quoting N.C.R. Evid. 611). Such an exercise of discretion will be reversed "only upon a showing that [the trial court's] ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision." Id. (quoting State v. Penley, 318 N.C. 30, 41, 347 S.E.2d 783, 789 (1986)).

In the instant case, the trial court allowed the expert to testify as to his opinion regarding defendant's state of mind at the time of the accident, but excluded the expert's hearsay testimony as to defendant's statements to him explaining his version of the events. The trial court reasoned:

[T]he defendant's exculpatory testimony or statements as to this particular event are prejudicial to the State, and the prejudicial effect at most would be only relevant as a basis for this witness's conclusions. And to the extent it might be helpful to the jury in so doing, it's outweighed by the prejudice to the State in being unable to cross-examine the defendant on those statements.

After examining the record, we find that the trial court did not abuse its discretion by excluding defendant's statements to the psychologist. See Baldwin, 330 N.C. at 457, 412 S.E.2d at 38.

II.

Defendant next assigns as error a portion of the trial court's jury instructions. He contends that the trial court committed plain error by instructing the jury that it could consider the defendant's guilty pleas to driving while license revoked, no insurance, fictitious tag and unsafe tires as evidence of malice. We disagree.

Defendant stipulated that he pled guilty on 3 June 1996 to felony driving while impaired, driving while license revoked, reckless driving and endangerment to property and persons, operating a motor vehicle with unsafe tires, creating a needless hazard, having a fictitious registration plate, knowing the same to be stolen, and operating a motor vehicle without having financial responsibility or insurance. He further stipulated that his guilty pleas were to crimes which arose out of the death of B.J. Moore on 19 May 1995. Defendant did not limit the use of the stipulated evidence in any way. At the close of all the evidence, the trial court's instructions to the jury included the following:

Now, evidence has been received in this case which tends to show that the defendant, Mr. Ballard, was convicted of three separate counts of driving while impaired prior to May 19th of 1995, and that he plead "guilty" to driving while license revoked, no insurance, fictitious tag, and pled "responsible" to unsafe tires on June 3rd--on or about June 3rd of this year. Now, this evidence was received solely for the purpose of showing that the defendant, Mr. Ballard, at the time of the subject accident on or about May 19, 1995, had the malice which is a necessary element of second-degree murder which is charged in this case. If you believe this evidence, you may consider it, but only for the limited purpose for which it was received. It is for you, the jury to determine whether this evidence, in fact, shows malice, whether or not it, in fact, shows malice.

Defendant made no objection to this instruction at the time it was given and at the close of all the instructions responded to the judge's inquiry of whether there were any objections saying "No objections to any of the instructions." Having examined the record and the instructions in their entirety, we cannot say that any alleged defect in the instructions was "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982)). Therefore, we hold that the instructions at issue did not constitute plain error.

III.

Finally, defendant assigns as error the trial court's finding of two aggravating factors, its failure to find two additional mitigating factors, and the sentence imposed based on these factors.

Defendant first contends that the trial court erred by finding as an aggravating factor that defendant knowingly created a great risk of death to more than one person by means of a device which would normally be hazardous to the lives of more than one person. We disagree.

In State v. Garcia-Lorenzo, 110 N.C.App. 319, 430 S.E.2d 290 (1993), we held that, where defendant was legally intoxicated and driving recklessly, the automobile constituted a device knowingly used by defendant which created a great risk of death to more than one person. Moreover, in State v. McBride, 118 N.C.App. 316, 454 S.E.2d 840 (1995), we upheld the...