State v. Hudson

• Decision Date: 06 August 1996
• Docket Number: No. COA95-271,COA95-271
• Citation: 473 S.E.2d 415,123 N.C.App. 336
• Parties: STATE of North Carolina, v. Keith Eric HUDSON, Defendant.
• Court: North Carolina Court of Appeals

Page 415

473 S.E.2d 415

123 N.C.App. 336

STATE of North Carolina, v. Keith Eric HUDSON, Defendant.

No. COA95-271.

Court of Appeals of North Carolina.

Aug. 6, 1996.

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

JOHN, Judge.

Defendant appeals convictions of three counts of involuntary manslaughter based upon violation of N.C. Gen.Stat. § 75A-10, "Operating boat ... while intoxicated...." (DWI boating). He contends the trial court erred in numerous respects, including its failure to submit DWI boating to the jury as a lesser included offense. We find this argument persuasive and award defendant a new trial.

The State's evidence at trial tended to show that on 6 June 1993, defendant, Amy Stevens (Stevens) and Jason Charlton (Charlton) traveled from defendant's home on Lake Wylie to the lakefront Bourbon Street Yacht Club (the club) in defendant's 19 foot Javelin bass boat. They arrived at approximately 9:00 p.m. During the course of the evening, defendant was observed consuming alcoholic beverages and socializing with friends, including Tracey Hamilton (Hamilton). Hamilton requested a ride in defendant's boat, and defendant consented because he had agreed to take Charlton and Stevens back across the lake that night. The four left the club at approximately midnight and headed south on the lake with defendant operating the boat.

That same evening, Rusty Hill (Hill) was traveling in a northerly direction on Lake Wylie in his 26-foot Chris-Craft cabin cruiser. Hill was proceeding at a cruising speed of approximately 18-22 miles per hour when he glanced towards the shore to look at a miniature lighthouse on property belonging to Ken Wilson (Wilson). As Hill directed his attention back to the water in front of him, his cabin cruiser collided with defendant's boat, sending the cruiser airborne. Hamilton, Stevens and Charlton were killed instantly as a result of the collision.

Defendant's uncontradicted testimony was that immediately before the accident, he had engaged the boat's idle device, or "hot foot," and allowed it to proceed at approximately 1-2 m.p.h. as he approached Wilson's lighthouse. He then retrieved a floatation device for Hamilton to sit on from a storage compartment near the front of the boat, and next bent down under the console to reach a shirt. He remembered nothing else except regaining consciousness in the hospital about one week later.

Although there was no actual witness to the collision, the defense presented unrefuted testimony from two accident reconstruction experts. Each stated that at the moment of impact, Hill's larger boat was traveling at approximately 20 m.p.h. while defendant's boat was either merely idling in the water or moving at a speed of less than 2 m.p.h., and that the larger boat overran the smaller. A test performed by hospital staff indicated defendant was intoxicated, while no alcohol was detected in Hill's blood.

On 21 September 1993, defendant was charged with three counts of involuntary manslaughter in the deaths of Stevens, Charlton, and Hamilton. Guilty verdicts were returned in each case 29 July 1994. Upon judgment entered upon these verdicts and imposition of a sentence totaling nine years, defendant appeals.

______

Prior to addressing the merits of defendant's appeal, we observe his appellate brief is 42 pages in length, thereby exceeding the 35 page limit prescribed by N.C.R.App. P. 28(j). At oral argument, defendant's counsel proffered minimal justification for this rule violation. Consequently, pursuant to our authority under N.C.R.App. P. 25(b), we impose upon counsel a fine and reimbursement of copying expenses in a total amount of $500.00, to be paid by counsel personally.

Turning to defendant's appeal, and notwithstanding objection by the State, we exercise our discretion, see N.C.R.App. P. 2, to consider defendant's argument that the trial court erred by failing to submit to the jury the lesser included offense of DWI boating.

Resolution of defendant's argument requires a two-part analysis: (1) whether DWI boating is indeed a lesser included offense of involuntary manslaughter; and (2) if so, whether as a matter of law defendant was entitled to an instruction on the lesser offense. See State v. Owen, 111 N.C.App. 300, 308, 432 S.E.2d 378, 384 (1993). Although the parties in their respective briefs appear to assume an affirmative response to the first question, our research reveals no case law resolving this specific issue. See State v. Lackey, 71 N.C.App. 581, 584-85, 323 S.E.2d 32, 35 (1984), concurring opinion of Becton, J. ("Defendant could have been convicted of both [involuntary manslaughter and DWI] at a joint trial. Whether judgment would have had to have been arrested on one of the convictions is a question we need not decide.").

We commence our examination of the first inquiry by noting the "long-standing rule in this jurisdiction," State v. Weaver, 306 N.C. 629, 637, 295 S.E.2d 375, 379 (1982), overruled in part on other grounds, State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 192-93 (1993), "that a lesser included offense is one in which the greater offense contains all of the essential elements of the lesser offense." Id. Such determination is made "on a definitional, not a factual basis." Id. at 635, 295 S.E.2d at 379 (emphasis in original).

However, this definitional standard was arguably relaxed somewhat in State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988), wherein the Court held larceny to be a lesser included offense of armed robbery, notwithstanding the absence of complete overlap in elements. Id. at 518, 369 S.E.2d at 819. The Court based its decision in part on the "natural," id. at 514, 369 S.E.2d at 817, or "special relationship," between the two offenses. Id. at 516, 369 S.E.2d at 818. Also deemed persuasive were

[t]he worthy goals of economy, efficiency, accuracy and fairness in judicial proceedings ... by placing all options raised by ... the evidence before the same jury in a single trial.

Id. at 518, 369 S.E.2d at 819. Nonetheless, absent a specific decision to the contrary, we conclude that the stricter "definitional" approach of Weaver remains applicable, see State v. Herring, 322 N.C. 733, 742, 370 S.E.2d 363, 369 (1988)(citing Weaver, "[i]n determining whether one offense is a lesser included offense of another, we apply a definitional as opposed to a transactional test"), and proceed to an examination of the respective definitions of DWI boating and involuntary manslaughter.

The offense of DWI boating, codified in G.S. § 75A-10, provided in pertinent part at the time of the collision sub judice that:

(b1) No person shall operate any motorboat or motor vessel while underway on the waters of this State:

(1) While under the influence of an impairing substance,

or

(2) After having consumed sufficient alcohol that he has, at any relevant time after the boating, an alcohol concentration of 0.10 or more.

....

The relevant definitions contained in G.S. 20-4.01 shall apply to this subsection....

G.S. § 75A-10 (1989)(emphasis added.)

N.C. Gen.Stat. § 20-4.01(24a) (1991) defines "Offense Involving Impaired Driving" as, inter alia, any of the following offenses:

a. Impaired driving under G.S. 20-138.1.

b. Death by vehicle under G.S. 20-141.4 when conviction is based upon impaired driving or a substantially equivalent offense under previous law.

c. Second degree murder under G.S. 14-17 or involuntary manslaughter under G.S. 14-18 when conviction is based upon impaired driving or a substantially equivalent offense under previous law.

N.C.G.S. § 14-18 classifies involuntary manslaughter as a Class H felony, and the offense is defined as

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).

Both driving while impaired (DWI) in violation of G.S. § 20-138.1 and DWI boating under G.S. § 75A-10, the latter by virtue of essentially identical elements and of incorporation through statutory reference, see G.S. § 75A-10(b1) and G.S. § 20-4.01(24a), constitute as "a matter of law ... culpable negligence." McGill, 314 N.C. at 637, 336 S.E.2d at 93. As such, each offense satisfies the "second alternative" to involuntary manslaughter. Id. at 637, 336 S.E.2d at 92. Moreover, when, as alleged in the instant case, "death is caused by one who was driving under the influence of alcohol," our Supreme Court has required the existence of "two elements ... for the successful prosecution of [involuntary] manslaughter: a willful violation of N.C.G.S. 20-138 and the causal link between that violation and the death." Id. at 637, 336 S.E.2d at 93. See also State v. Moore, 107 N.C.App. 388, 397, 420 S.E.2d 691, 697, disc. review denied, 332 N.C. 670, 424 S.E.2d 414 (1992)("[t]he charge of involuntary manslaughter required the State to prove (1) defendant was driving a motor vehicle, (2) on a highway, (3) under the influence of an impairing substance causing appreciable impairment of his normal mental and bodily functions [the elements of driving under the influence pursuant to G.S. § 20-138.1 (1989)], and (4) [defendant's] impaired driving proximately but unintentionally caused the death of [the victim.]").

Measurement of the foregoing principles according to the test of Weaver, i.e., whether the greater offense contains all of the essential elements of the lesser offense, Weaver, 306 N.C. at 635, 295 S.E.2d at 379, mandates the conclusion that DWI boating is a lesser included offense of involuntary manslaughter predicated upon that crime. As noted above, DWI and DWI boating satisfy the "second alternative" or "culpable negligence" within the definition of "involuntary manslaughter." See McGill, 314 N.C. at 637, 336 S.E.2d at 92-93. Moreover, in order to sustain a conviction for involuntary manslaughter...