State v. Hudson

• Decision Date: 11 April 1997
• Docket Number: No. 356PA96,356PA96
• Citation: 483 S.E.2d 436,345 N.C. 729
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Keith Eric HUDSON.

Page 436

483 S.E.2d 436

345 N.C. 729

STATE of North Carolina v. Keith Eric HUDSON.

No. 356PA96.

Supreme Court of North Carolina.

April 11, 1997.

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

Theo X. Nixon, Charlotte, for defendant-appellee.

WHICHARD, Justice.

On 18 October 1993, defendant was indicted for three counts of involuntary manslaughter arising out of a collision between two boats, one of which was operated by defendant. A jury found him guilty of all three charges, specifically finding in each case that defendant was "[o]perating his motorboat while under the influence of an impairing substance" and "[o]perating his motorboat after having consumed sufficient alcohol that he ha[d], at any relevant time after the boating, an alcohol concentration of .10 or more." Defendant was sentenced to consecutive terms of three years' imprisonment for each offense. On appeal, the Court of Appeals held that "[d]ue process ... required the trial court to instruct on the lesser included offense of DWI boating as an alternative to the choices of either guilty or not guilty of involuntary manslaughter" and ordered a new trial. State v. Hudson, 123 N.C.App. 336, 343-44, 473 S.E.2d 415, 420 (1996). We reverse and remand to the Court of Appeals for consideration of additional issues raised by defendant and not passed upon in the original appeal.

The State's evidence tended to show that on 6 June 1993, defendant, Amy Stevens, and Jason Charlton traveled from defendant's home on Lake Wylie to the Bourbon Street Yacht Club in defendant's nineteen-foot bass boat. They arrived at the club at approximately 9:00 p.m. During the course of the evening, defendant was observed consuming alcoholic beverages. At approximately midnight, defendant, Stevens, Charlton, and Tracey Hamilton left the club in defendant's boat and headed south on the lake. Defendant was operating the boat.

That same evening, Blake "Rusty" Hill was traveling on Lake Wylie in his twenty-six-foot cabin cruiser. Hill was proceeding north at a speed of approximately eighteen to twenty-two miles per hour when he glanced toward the shore to look at a miniature lighthouse. As Hill directed his attention back to the water in front of him, his cabin cruiser collided with defendant's boat. The collision instantly killed Stevens, Charlton, and Hamilton.

Defendant testified that immediately before the accident he had engaged the boat's idle device, which allowed the boat to proceed at approximately one to two miles per hour. While the boat was idling, defendant retrieved a flotation device for Hamilton to sit on from a storage compartment near the front of the boat, then bent down under the console to reach for a shirt. He remembered nothing else except regaining consciousness in the hospital about one week later.

Sharon Pierce Porterfield, associate director of medical records at Carolinas Medical Center, testified that a blood-alcohol test conducted at the hospital approximately an hour and a half after the collision revealed defendant's blood-alcohol concentration to be 0.239.

Two accident-reconstruction experts testified on defendant's behalf. Each stated that, at the moment of impact, Hill's larger boat was traveling at approximately twenty miles per hour while defendant's boat was either idling in the water or moving at a speed of less than two miles per hour. Both experts also testified that the larger boat over-ran the smaller.

The Court of Appeals set aside defendant's three involuntary manslaughter convictions and ordered a new trial, holding that the separate charge of operating a motor boat while impaired (DWI boating), see N.C.G.S. § 75A-10 (1994), should have been submitted to the jury as a lesser-included offense.

Involuntary manslaughter is " 'the unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission.' " State v. McGill, 314 N.C. 633, 637, 336 S.E.2d 90, 92 (1985) (quoting State v. Redfern, 291 N.C. 319, 321, 230 S.E.2d 152, 153 (1976), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993)). The Court of Appeals recognized the "long-standing rule in this jurisdiction that a lesser included offense is one in which the greater offense contains all of the essential elements of the lesser offense," State v. Weaver, 306 N.C. 629, 637, 295 S.E.2d 375, 379 (1982), overruled in part on other grounds by Collins, 334 N.C. at 61, 431 S.E.2d at 193, and reasoned that DWI boating constitutes culpable negligence as a matter of law. It then held that because the elements of DWI boating must be proved to establish the element of culpable negligence, application of the Weaver definitional test results in the conclusion that "DWI boating is a lesser included offense of involuntary manslaughter predicated upon that crime." Hudson, 123 N.C.App. at 341, 473 S.E.2d at 419. The Court of Appeals concluded that the trial court therefore erred by failing to charge the jury separately on the offense of DWI boating. We granted the State's petition for discretionary review, and we now reverse.

The State argues first that defendant waived his right to raise this issue before the Court of Appeals because he failed to ask the trial court to instruct the jury on DWI boating as a lesser-included offense of involuntary manslaughter and further failed to assign the issue as error on appeal. This argument has merit. In Collins, we held that earlier cases "imply[ing] that a defendant is entitled to assign error to the trial court's failure to...