State v. Blackwell

• Decision Date: 15 December 2006
• Docket Number: No. 490PA04-2.,490PA04-2.
• Citation: State v. Blackwell, 638 S.E.2d 452, 361 N.C. 41 (N.C. 2006)
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Timothy Earl BLACKWELL.

Page 452

638 S.E.2d 452

STATE of North Carolina v.Timothy Earl BLACKWELL.

No. 490PA04-2.

Supreme Court of North Carolina.

December 15, 2006.

Upon consideration of the order of the United States Supreme Court entered 30 June 2006 vacating the judgment of this Court in North Carolina v. Speight,548 U.S. ___, 126 S.Ct. 2977, 165 L.Ed.2d 983(2006) and remanding that case to this Court for further consideration in light of Washington v. Recuenco,548 U.S. ___, 126 S.Ct. 2546, 165 L.Ed.2d 466(2006).To the extent opinion at 359 N.C. 814, 618 S.E.2d 213, ordered remand for resentencing, it is vacated.Heard on reconsideration in the Supreme Court 17 October 2006.

Roy Cooper, Attorney General, by Amy C. Kunstling, Assistant Attorney General, and Robert C. Montgomery, Special Deputy Attorney General, for the state-appellant.

Staples S. Hughes, Appellate Defender, by Benjamin Dowling-Sendor, Assistant Appellate Defender, for defendant-appellee.

MARTIN, Justice.

In Washington v. Recuenco,548 U.S. ___, 126 S.Ct. 2546, 165 L.Ed.2d 466(2006), the United States Supreme Court concluded that error under Blakely v. Washington,542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403(2004), was subject to federal harmless error analysis.We therefore review the Blakely violation which occurred at defendant's second trial for harmlessness.We also address defendant's argument that federal Blakely error violates the Constitution of North Carolina(the State Constitution).We conclude that the trial court's finding of an aggravating factor at defendant's second trial was harmless beyond a reasonable doubt, and did not violate Article I, Section 24 of the State Constitution.

The facts giving rise to the instant criminal prosecution arose over nine years ago.On 27 February 1997, Sherry and Greg Dail made plans to run errands together in Durham with their three young children: Megan, age four; Austin, age two; and Joshua, age one.Because Sherry had to drive to work later that afternoon, they drove separate vehicles but followed one another traveling south on Guess Road.Defendant, Timothy Earl Blackwell, was traveling in his truck in the opposite direction.Defendant had used cocaine and heroin the night before and was intoxicated from drinking beer that morning.Defendant's blood alcohol content was 0.13 grams of alcohol per one hundred milliliters of whole blood, and his blood tested positive for cocaine metabolites and opiates.Police officers later found hypodermic needles and beer cans in defendant's truck.

Several witnesses observed defendant's erratic and dangerous driving, which included driving at speeds estimated to be as high as seventy-five miles per hour.After running a red light and swerving back and forth across the road, defendant's truck jumped a curb, knocked over several trash cans and a mailbox, then crossed several lanes and headed directly into oncoming traffic.After managing to get back into the northbound lane, defendant repeatedly crossed the center line again, forcing several cars off the road.Shortly thereafter, defendant hit the Dails head-on as they approached the intersection of Guess Road and Rose of Sharon Road.Defendant crossed the center line, sideswiped Sherry's car, and collided with Greg's van.As a result of the crash, Sherry, Greg, Austin, and Joshua all suffered severe injuries.Megan was killed.

Based on these events, defendant was indicted for the felonies of murder and habitual impaired driving, as well as four counts of felonious assault with a deadly weapon inflicting serious injury.He was also indicted for the following misdemeanors: driving while license revoked, driving left of center, possession of drug paraphernalia, and possession of an open container.Pursuant to a plea agreement, defendant pled guilty to all charges except the murder charge and the four assault charges.At trial, the jury convicted defendant of first-degree murder and all four felony assault charges.Defendant appealed, and the Court of Appeals ordered a new trial.State v. Blackwell,135 N.C.App. 729, 522 S.E.2d 313(1999).The state appealed to this Court, and we remanded to the Court of Appeals for reconsideration in light of our decision in State v. Jones,353 N.C. 159, 538 S.E.2d 917(2000), which held that culpable negligence could not be used to satisfy the intent requirements for first-degree murder.State v. Blackwell,353 N.C. 259, 538 S.E.2d 929(2000)(per curiam)(Blackwell I).The Court of Appeals further remanded the case for a new trial.State v. Blackwell,142 N.C.App. 388, 542 S.E.2d 675(2001).

During his second trial, the jury convicted defendant of one count of second-degree murder, one count of felonious habitual impaired driving, one count of felonious assault with a deadly weapon inflicting serious injury, three counts of misdemeanor assault with a deadly weapon, and assorted other misdemeanors not pertinent to this appeal.The trial court found as an aggravating factor that defendant committed each felony while he was on pretrial release for another charge.The trial court also found the following factors in mitigation with respect to the felonies: (1)defendant participated in a drug or alcohol treatment program; (2)he supported his family; (3)he had a support system in the community; (4)he was a model prisoner while in custody; (5)he completed his GED while in custody; and (6)he was remorseful.After finding that the aggravating factor outweighed the mitigating factors, the trial court sentenced defendant on 13 November 2002 to consecutive sentences in the aggravated range as follows: for second-degree murder, 353 to 461 months; for felony assault, 66 to 89 months; and for habitual impaired driving, 26 to 32 months.Defendant also received sentences for various misdemeanor convictions.

Defendant again appealed to the Court of Appeals, and his case was heard on 30 March 2004, seven days after the United States Supreme Court heard oral arguments in Blakely v. Washington,542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403(2004).The Supreme Court issued its decision in Blakely on 24 June 2004, while the Court of Appeals was still considering defendant's case.Blakely held that a trial judge's sentencing of a defendant beyond the statutory maximum, based on the trial judge's finding that defendant had acted with deliberate cruelty, violated the defendant's right to trial by jury under the Sixth Amendment to the United States Constitution.In response to Blakely,defendant filed a motion for appropriate relief(MAR) in the Court of Appeals.In September 2004, the Court of Appeals granted defendant's MAR and held that defendant had otherwise received a trial free of prejudicial error.The Court of Appeals remanded defendant's case to the trial court for resentencing under Blakely.SeeState v. Blackwell,166 N.C.App. 280, 603 S.E.2d 168(2004)(unpublished).

In December 2004, this Court allowed the state's petition for discretionary review.While Blackwell was pending in this Court, we decided the case of State v. Allen,359 N.C. 425, 615 S.E.2d 256(2005), withdrawn,360 N.C. 569, 635 S.E.2d 899(2006).Allen held that Blakely error was structural error under the United States Constitution.Id. at 444, 615 S.E.2d at 269.In August 2005, this Court modified and affirmed the Court of Appeals decision in Blackwell, based on the Allen decision.359 N.C. 814, 618 S.E.2d 213(2005)(Blackwell II).In Blackwell II,we ordered remand of defendant's case for resentencing.

In September 2005, this Court allowed the state's motion to stay the issuance of our mandate in Blackwell II,359 N.C. at 823, 620 S.E.2d 528(2005), based on the state's petition for writ of certiorari to the United States Supreme Court in State v. Speight,359 N.C. 602, 614 S.E.2d 262(2005), vacated and remanded,548 U.S. ___, 126 S.Ct. 2977, 165 L.Ed.2d 983(2006).Both Blackwell II and Speight raised the common legal issue of whether Blakely error was subject to federal harmless error review.In Washington v. Recuenco,548 U.S. ___, 126 S.Ct. 2546, 165 L.Ed.2d 466, the United States Supreme Court answered this question in the affirmative.Four days after issuing its decision in Recuenco, the United States Supreme Court vacated this Court's decision in Speight and remanded the case to this Court for further consideration in light of Recuenco.Speight,548 U.S. ___, 126 S.Ct. 2977, 165 L.Ed.2d 983.

After the United States Supreme Court issued Recuenco and Speight, this Court ordered supplemental briefing from the parties"limited to the questions of whether there was error in this case pursuant to Washington v. Recuenco and, if so, whether any error can be found to be harmless beyond a reasonable doubt."360 N.C. 570, 570, 635 S.E.2d 900, 901(2006).

Before considering the merits, we pause to consider recent jurisprudential and legislative developments affecting this state's sentencing procedures.In Apprendi v. New Jersey, the United States Supreme Court held that a twelve-year sentence based on a judicial finding that the defendant committed a hate crime was unconstitutional when the statutory range for the offense was five to ten years.530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435(2000).The Court explained 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."Id. at 490, 120 S.Ct. 2348.In 2004, Blakely clarified this rule by holding that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."542 U.S. at 303, 124 S.Ct. 2531(emphasis omitted).Thus, after Blakely, trial judges may not enhance criminal sentences beyond the statutory maximum absent a jury finding of the alleged aggravating factors beyond a reasonable doubt.

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