State v. Bauberger

• Decision Date: 07 March 2006
• Docket Number: No. COA04-1368.,COA04-1368.
• Citation: 626 S.E.2d 700
• Parties: STATE of North Carolina v. William Thomas BAUBERGER.
• Court: North Carolina Court of Appeals

626 S.E.2d 700

STATE of North Carolina v. William Thomas BAUBERGER.

No. COA04-1368.

Court of Appeals of North Carolina.

March 7, 2006.

Appeal by defendant from judgment entered 15 August 2003 by Judge John O. Craig, III in Forsyth County Superior Court. Heard in the Court of Appeals 17 August 2005.

Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy and Special Counsel Isaac T. Avery, III, for the State.

Kathryn L. VandenBerg, Hillsborough, for defendant-appellant.

ELMORE, Judge.

William Bauberger (defendant) was indicted for second-degree murder and assault with a deadly weapon inflicting serious injury. At trial, the State's evidence tended to show that on 3 February 2002 a vehicle operated by defendant collided with a vehicle operated by William Foy. At approximately 8:15 p.m. on 3 February Mr. Foy was driving a Geo Metro on Highway 421 near the Lewisville/Clemmons exit with his wife, Carol Foy, in the passenger seat. Defendant was driving a Cadillac with a Flow Chevrolet dealer's tag. Defendant had attended a Super Bowl party where he consumed in excess of ten beers. While driving, defendant called Andrea True, a friend from work, and told her that he was coming over to her house. Defendant began driving down the Lewisville/Clemmons exit ramp in the wrong direction. There were signs indicating "Do Not Enter" and "Wrong Way."

Audrey Borger testified that she was driving up the Lewisville/Clemmons exit from Highway 421 and saw a car coming straight at her. She blew her horn and then swerved over to avoid a collision. Melissa Borger, Audrey Borger's daughter, testified that she was riding as a passenger in her mother's car when she saw a vehicle coming at them at a speed of over 45 miles per hour and that the driver was accelerating. Jeffrey Hinshaw testified that he was driving on Highway 421 and saw a vehicle's headlights coming down the exit ramp at him. Mr. Hinshaw stated that the vehicle appeared to be weaving and was traveling at over 55 miles per hour. Mr. Hinshaw testified that he slowed down and pulled his car into the breakdown lane and then heard a crash shortly thereafter.

Mr. Foy testified that he observed a vehicle coming the wrong way down the exit ramp and that he tried to brake and swerve onto the shoulder of the road. After the cars collided, Mr. Foy checked on his wife but could not find a pulse. Mr. Foy got out of the car after several attempts but was unable to walk because of a broken leg. Mr. Hinshaw, the chief physician's assistant in the emergency department at Baptist Hospital, testified that he heard the crash and went over to help. Mr. Hinshaw reached Mr. Foy first, who asked Mr. Hinshaw to check on his wife. Mr. Hinshaw found Mrs. Foy unresponsive and with no pulse. When he arrived at the second car, Mr. Hinshaw observed that defendant was slumped back in his seat and appeared sleepy. Defendant responded to Mr. Hinshaw's sternal rub confirming defendant was not unconscious. Mr. Hinshaw detected an odor of alcohol. Stanley Lee testified that he lives near the scene of the crash and that he arrived after hearing the crash. Mr. Lee noticed that defendant had a strong odor of alcohol. State Trooper Daniel Harmon testified that he spoke to defendant in the back of the ambulance and that defendant slurred his last name. Trooper Harmon stated that defendant's eyes were red and glassy and that defendant appeared to be impaired.

Mrs. Foy suffered traumatic injuries to her head, chest, internal organs, and arms and legs. She died within minutes of the crash. Mr. Foy was transported to Baptist Hospital, where he was treated for a broken left hand, and a tibia fracture and bone fragments in his right leg that required reconstructive surgery and seven screws. Defendant was also treated at Baptist Hospital. While there, defendant told the mother of his child, "I really f____ up, they're going to give me the needle, I killed someone tonight, I'm going away forever, I want to see my child[.]" Defendant called his co-worker Andrea True and told her that he had killed someone and that he wished it had been him.

Defendant testified at trial. He stated that he had consumed more than ten beers over the course of five or five and one-half hours on the day of the collision. Defendant admitted that he had been ordered by a court to surrender his license a few months prior to the crash. Defendant testified that he knew that he was impaired when he drove but did not remember going the wrong way on the exit ramp. Prior to trial, defendant had stipulated to the fact that his driver's license was revoked at the time of the crash for a driving while impaired conviction in Guilford County. Defendant had also stipulated that his blood/alcohol concentration was.20 grams per 100 milliliters of whole blood.

The jury returned verdicts of guilty on the charges of second-degree murder and assault with a deadly weapon inflicting serious injury. The trial court sentenced defendant on 15 August 2003. Later that day, the State informed the trial court that one of the jurors may have consulted a dictionary about the meaning of the word "malice." On 18 August 2003 defendant filed a Motion for Appropriate Relief seeking a new trial. In its response to defendant's motion, the State attached affidavits of ten jurors. Juror Collins stated that he looked up the word "malice" at home prior to the final jury charge and that he could not remember during the deliberations what the definition said and did not share it with anyone on the jury. The jury foreman stated that he checked out a copy of Webster's New Collegiate Dictionary during lunch break of the deliberations, brought it back to the jury room, and shared with the jury the definitions of "recklessly," "wantonly," "manifest," "utterly," and "regard." Following a hearing, the trial court denied defendant's motion. Defendant appeals his conviction and sentence for second-degree murder and also the denial of his Motion for Appropriate Relief.

I.

First, defendant contends that he is entitled to a new trial because jurors improperly considered dictionary definitions during deliberations. In the Motion for Appropriate Relief to the trial court, defendant raised the constitutional argument that the jury's conduct violated his Sixth Amendment rights to an impartial jury and to confront the witnesses against him. We review the trial court's order denying a motion for appropriate relief to determine whether the findings of fact are supported by the evidence, the findings support the conclusions of law, and the conclusions support the trial court's order. State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982). "The determination of the existence and effect of jury misconduct is primarily for the trial court whose decision will be given great weight on appeal." State v. Bonney, 329 N.C. 61, 83, 405 S.E.2d 145, 158 (1991) (quoting State v. Gilbert, 47 N.C.App. 316, 319, 267 S.E.2d 378, 379 (1980)).

The trial court reviewed the affidavits submitted by the ten jurors and entered findings based upon this evidence. In pertinent part, the trial court found that the jury foreman went to the Forsyth County Public Library during lunch break of the jury deliberations and checked out Webster's New Collegiate Dictionary (1953 edition). The foreman, Mr. Kuley, brought the dictionary to the jury room and read the following definitions of words contained within the trial court's definition of "malice¹":

                   "recklessly"   "lack of due caution"
                   "wantonly"     "arrogant recklessness of justice
                                  or the feelings of others"
                   "manifest"     "show"
                   "utterly"      "fully, totally"
                   "regard"       "respect or consideration for"
                

In addition, the trial court found that Juror Collins looked up the word "malice" in a pocket dictionary at home prior to deliberations but did not bring a copy of the definition to the jury room. The trial court entered an order determining, inter alia, that although the jury's conduct was improper, the jury's use of the dictionary did not prejudice defendant and there is no reasonable possibility that the verdict would have been different absent the jury consulting the dictionary.

In general, a trial court may not receive juror testimony to impeach a verdict already rendered. See State v. Costner, 80 N.C.App. 666, 669, 343 S.E.2d 241, 243, disc. review denied, 317 N.C. 709, 347 S.E.2d 444 (1986). However, exceptions to this rule are found in N.C. Gen.Stat. § 15A-1240 and N.C. Gen.Stat. § 8C-1, Rule 606(b). Section 15A-1240 states that the testimony of a juror may be received to impeach the verdict when it concerns "[m]atters not in evidence which came to the attention of one or more jurors under circumstances which would violate the defendant's constitutional right to confront the witnesses against him[.]" N.C. Gen.Stat. § 15A-1240 (2003). Section 15A-1240 is applicable to criminal cases only. See Smith v. Price, 315 N.C. 523, 534, 340 S.E.2d 408, 415 (1986). Rule 606(b) of the North Carolina Rules of Evidence provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

N.C. Gen.Stat. § 8C-1, Rule 606(b) (2003) (emphasis added). Our Supreme Court has interpreted extraneous information under Rule 606(b) as ...