State v. Fuller

• Decision Date: 20 June 2000
• Docket Number: No. COA99-400.,COA99-400.
• Citation: 531 S.E.2d 861,138 NC App. 481
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Brian Keith FULLER.

531 S.E.2d 861

138 NC App. 481

STATE of North Carolina v. Brian Keith FULLER.

No. COA99-400.

Court of Appeals of North Carolina.

June 20, 2000.

Attorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III, for the State.

Danielle M. Carman, Durham, for the defendant-appellant.

LEWIS, Judge.

On 15 May 1997 defendant was involved in a motor vehicle collision. State Trooper Robert Gibson of the North Carolina State Highway Patrol clocked defendant traveling 77 m.p.h. in a 55 m.p.h. zone. Trooper Gibson activated his siren and blue lights and attempted to pull defendant over. Defendant accelerated, and a 16.7-mile chase ensued whereby Trooper Gibson clocked defendant traveling at speeds of 90-95 m.p.h. After running a stop sign and a red stop light in order to pass stopped traffic, defendant approached the last intersection, traveling between 80 and 85 m.p.h., when he struck a truck containing two passengers. The truck was forced into oncoming traffic and was struck by a third automobile. Both passengers in the truck died as a result of the collision.

A blood test revealed defendant had an alcohol concentration of .15 grams of alcohol per 100 milliliters of blood. The evidence indicated that at the time of the collision defendant's license had been revoked due to his status as an habitual offender by the Virginia Department of Motor Vehicles. Defendant's prior driving record included numerous convictions occurring within the previous eight years.

Defendant was indicted for two counts of first-degree murder. On 8 October 1998, the jury convicted defendant on two counts of second-degree murder. Defendant was sentenced to consecutive sentences, each imposing a minimum prison term of 237 months. Defendant appeals from both convictions, making five arguments.

Defendant first argues the trial court erred in denying his motion to dismiss the charges of second-degree murder. To withstand defendant's motion to dismiss, the State had to show substantial evidence as to each essential element of the crime. State v. Workman, 309 N.C. 594, 598, 308 S.E.2d 264, 267 (1983). The trial court must consider all the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor. State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981).

Murder in the second degree is the "unlawful killing of a human being with malice but without premeditation and deliberation." State v. Norris, 303 N.C. 526, 529, 279 S.E.2d 570, 572 (1981). Although an intent to kill is not a necessary element of murder in the second degree, the crime does not exist in the absence of some intentional act sufficient to show malice. State v. Snyder, 311 N.C. 391, 393, 317 S.E.2d 394, 395 (1984). Defendant argues the State's evidence was insufficient to establish malice.

The element of malice may be established by at least three different types of proof: (1) "express hatred, ill-will or spite"; (2) commission of inherently dangerous acts in such a reckless and wanton manner as to "manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief"; or (3) a "condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification." State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982). The second type of malice, commonly referred to as "depraved-heart" malice, see, e.g., State v. Rich, 351 N.C. 386, 527 S.E.2d 299 (2000), is applicable to this case.

Defendant argues several facts surrounding the collision indicate a lack of substantial evidence on the issue of malice. Defendant points to Trooper Gibson's continued pursuit during a dangerous, high-speed chase for a prolonged period of time, defendant's consent to the blood alcohol test, defendant's testimony that he consumed only several ounces of alcohol despite his blood alcohol content of .15, and the deceased driver's blood alcohol content of .17. In light of the other evidence in this case, however, we do not agree. While some of these facts may suggest defendant did not possess the type of malice requiring express hatred or ill-will, there was substantial evidence at trial to prove the type of malice manifesting a mind utterly without regard for human life and social duty.

Defendant here operated his automobile with a high degree of alcohol in his blood and after numerous prior driving convictions, including reckless driving, speeding and driving while his license was revoked due to his habitual offender status. During the 16.7-mile chase, defendant ran both a stop sign and a red stop light, passing stopped traffic at speeds of 90-95 m.p.h. Both passengers in the truck defendant struck died as a result of the collision. We conclude this conduct manifests a mind utterly without regard for human life and social duty, supporting a finding of malice sufficient for a conviction of second-degree murder. See also State v. Snyder, 311 N.C. 391, 317 S.E.2d 394 (1984); State v. Grice, 131 N.C.App. 48, 505 S.E.2d 166 (1998); State v. McBride, 109 N.C.App. 64, 425 S.E.2d 731 (1993). The charge of second-degree murder was properly submitted to the jury.

Defendant next argues the trial court erroneously excluded evidence of marijuana found in a purse at the scene of the collision. The court excluded the evidence before trial, finding it in no way probative of any material issue in the action. Defendant contends this evidence was relevant since it raised an inference that one of the other drivers may have been impaired, which could have been the proximate cause of the victims' deaths, possibly eradicating defendant's culpability. We disagree.

Evidence offered to show the guilt of someone other than the defendant, to be relevant, must do more than create an inference; it must point directly to the guilt of the other party. State v. Potts, 334 N.C. 575, 585, 433 S.E.2d 736, 741 (1993). Facts and circumstances which raise only a conjecture or suspicion should be rejected as distracting or confusing to the jury. Corum v. Comer, 256 N.C. 252, 254, 123 S.E.2d 473, 475 (1962). Here, the bare fact that there was a purse containing marijuana at the scene of the collision indicates neither that one of the parties to the collision was under the influence of marijuana nor that defendant did not proximately cause the accident. Admission of the purse, whose owner was not established, would have at most created a speculative inference that some other victim of the collision was carrying a purse containing marijuana, not necessarily one of the other drivers. Accordingly, this evidence, raising a mere conjecture, was properly excluded.

In his next assignment of error, defendant contends the trial court erred in admitting his prior traffic convictions because they occurred as much as eight years before the date of the collision and lacked similarity to the offenses charged. Defendant admits, however, the evidence complained of was not objected to at trial. Because the question of admissibility of this evidence was not preserved for appeal, we may review it only for plain error. To constitute plain error, an instructional error must have "had a probable impact on the jury's finding that the defendant was guilty." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Defendant, therefore, "must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

N.C.R. Evid. 404(b). This list of permissible purposes in Rule 404(b) for admission of "other crimes" evidence is not exclusive; rather, such evidence is "admissible as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime." State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852-53, cert. denied, 516 U.S. 994, 116 S.Ct. 530, 133 L.Ed.2d 436 (1995). This Court has repeatedly held that evidence of prior convictions is admissible under Rule 404(b) to establish the malice necessary to support a second-degree murder conviction. Rich, 351 N.C. 386, 527 S.E.2d 299 (2000); State v. Grice, 131 N.C.App. 48, 505 S.E.2d 166 (1998). When the State offers such evidence, not to show defendant's propensity to commit the crime, but to show the required mental state for a conviction of second-degree murder, admission of such evidence is not error. State v. Byers, 105 N.C.App. 377, 382, 413 S.E.2d 586, 589 (1992).

Defendant's driving record in this case revealed traffic convictions from the previous eight years, including reckless driving in 1989, operating an uninsured motor vehicle in 1992, speeding 10-19 miles above the speed limit in 1993, failure to carry a license and registration in 1993, operating a vehicle with signs or decals on the windshield in 1994, safety belt violation in 1994, driving while license was suspended or revoked twice in 1994 and once in 1995, and passing on the...