State v. Jones

• Decision Date: 21 December 2000
• Docket Number: No. 347A99.,347A99.
• Citation: 538 S.E.2d 917
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Thomas Richard JONES.

538 S.E.2d 917

STATE of North Carolina v. Thomas Richard JONES.

No. 347A99.

Supreme Court of North Carolina.

December 21, 2000.

Michael F. Easley, Attorney General, by Isaac T. Avery, III, Special Deputy Attorney General, and Jonathan P. Babb, Assistant Attorney General, for the State.

David B. Freedman, Dudley A. Witt, and Carol L. Teeter, Winston-Salem, for defendant-appellant.

ORR, Justice.

Defendant was indicted on 21 October 1996 for the first-degree murders of Julie Marie Hansen and Maia C. Witzl. Defendant was simultaneously indicted for assault with a deadly weapon inflicting serious injury (AWDWISI) on Aline J. Iodice, Melinda P. Warren, and Margaret F. Penney. The State later reduced the charge related to Penney to assault with a deadly weapon (AWDW). On 10 February 1997, an additional indictment charged defendant with AWDWISI on Lea Temple Billmeyer and driving while impaired (DWI).

Defendant was tried capitally at the 21 April 1997 Criminal Session of Superior Court, Forsyth County. The State's evidence at trial tended to show that at approximately 10:30 p.m. on 4 September 1996, defendant crashed his vehicle into another vehicle occupied by six Wake Forest University students. Two of the students were killed in the collision, while three others were seriously injured.

Shortly before the crash, defendant was involved in an altercation while stopped at a red light at an intersection in Winston-Salem, North Carolina. Defendant repeatedly bumped another vehicle from behind with his own vehicle. A witness to the incident heard the defendant use profanity and tell the other driver to get out of the way. According to the witness, when the light changed defendant "zoomed" around the car and "shot on off," moving at an excessive rate of speed. The driver defendant bumped from behind followed defendant to obtain his vehicle tag number and observed defendant's car run up on a curb, causing a hub cap to fall off. After obtaining defendant's plate number, the driver and his passenger stopped and called 911. The passenger told a police officer that defendant was "driving real crazy" and that "if somebody doesn't get him, he's going to kill somebody."

Prior to the collision at issue in this case, the six students from Wake Forest University were traveling eastbound on Polo Road, while defendant was traveling westbound on the same road at an excessive rate of speed. As the students rounded a curve, they observed two headlights moving quickly toward them in their lane of travel. Iodice, a passenger in the front seat of the vehicle driven by Penney, testified that the headlights "were moving so quickly and I realized they were in our lane from the very first time I saw them until" the collision occurred. Penney raised her foot off the accelerator pedal but could not pull her car to the right because of a telephone pole and mailboxes lining the side of Polo Road. Penney attempted to turn left onto Brookwood Drive to avoid colliding with defendant's vehicle, but defendant moved his vehicle back into his proper lane and crashed into the side of Penney's vehicle.

Hansen and Witzl, each nineteen-year-old passengers in Penney's vehicle, were killed. Billmeyer sustained serious injuries, including a contusion of her kidney, a concussion, and a fractured pelvis. Iodice was diagnosed with a ruptured bladder, internal bleeding, a fractured hip and pelvic bone, and a concussion. Warren's injuries included fractures to her ankle, femur, and pelvis, as well as internal bleeding. Penney received minor injuries, including abrasions and bruises.

The crash investigation revealed that defendant had been drinking alcohol and had a blood-alcohol content level of .046, well below the legal limit of .08. However, the presence of the drugs Butalbital, Alprazlam, and Oxycodone was also found. Although these controlled substances were prescribed by a physician, defendant's doctor and a registered nurse had previously instructed him not to drink or drive while taking the medications. The State's expert at trial testified that the combination of controlled substances and alcohol caused defendant to be appreciably impaired and unfit to operate a motor vehicle safely. Furthermore, the State introduced a record of defendant's 1992 conviction for DWI, as well as testimony concerning a pending DWI charge.

At the conclusion of the evidence, the jury found defendant guilty of the first-degree murders of Hansen and Witzl under the felony murder rule. The jury also found defendant guilty of AWDWISI on Billmeyer, Iodice, and Warren; AWDW on Penney; and DWI. After a capital sentencing proceeding, the jury recommended a sentence of life imprisonment without parole for the murders of Hansen and Witzl, and the trial court entered judgments in accord with that recommendation. The trial court arrested judgment on the three convictions for AWDWISI and sentenced defendant to an active term of 120 days for the AWDW on Penney and 90 days for the DWI. Defendant appealed to the Court of Appeals.

The Court of Appeals, in a divided opinion, found no error. State v. Jones, 133 N.C.App. 448, 516 S.E.2d 405 (1999). Defendant appealed to this Court as a matter of right based on a constitutional question and on the dissent below. On 2 December 1999, we allowed defendant's petition for discretionary review of additional issues.

The paramount issue in the case, as raised by the dissent and, in the alternative, defendant's Petition for Discretionary Review, is whether the defendant was properly convicted of first-degree murder under the felony murder rule. The Court of Appeals affirmed the decision of the trial court to allow defendant to be tried capitally for first-degree murder. For reasons outlined and discussed below, we hold the Court of Appeals erred in that for purposes of felony murder: (1) culpable negligence may not be used to satisfy the intent requirements for a first-degree murder charge; and, (2) a defendant may not be subject to a potential death sentence absent a showing of actual intent to commit one or more of the underlying felonies delineated or described in our state's murder statute, N.C.G.S. § 14-17. As a consequence of so holding, we find it unnecessary to address defendant's alternative arguments concerning alleged constitutional violations, see State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968), cert. denied, 393 U.S. 1087, 89 S.Ct. 876, 21 L.Ed.2d 780 (1969), and the so-called "merger doctrine." As for defendant's conviction for AWDW, he offers no arguments for appeal. It, therefore, stands affirmed. In addition, we affirm the Court of Appeals holding that the trial court committed no error by admitting evidence of defendant's prior acts or by omitting defendant's proposed jury instruction. Thus, defendant's convictions for DWI and AWDWISI are affirmed.

I

In 1893 the General Assembly codified the common law offense of murder and subdivided first-degree murder into three categories, one of which was "killings occurring in the commission of certain specified felonies `or other felony.'" State v. Davis, 305 N.C. 400, 423, 290 S.E.2d 574, 588 (1982). In 1977, the General Assembly amended this third category of first-degree murder, commonly known as felony murder, so that it applies to any killing "committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon." N.C.G.S. § 14-17; for a discussion on the history of section 14-17, see Davis, 305 N.C. at 422-23, 290 S.E.2d at 588. When a killing is committed in the perpetration of an enumerated felony (arson, rape, etc.) or other felony committed with the use of a deadly weapon, murder in the first degree is established "`irrespective of premeditation or deliberation or malice aforethought.'" State v. Wilson, 313 N.C. 516, 537, 330 S.E.2d 450, 465 (1985) (quoting State v. Maynard, 247 N.C. 462, 469, 101 S.E.2d 340, 345 (1958)). Moreover, intent to kill is not an element of felony murder. See State v. York, 347 N.C. 79, 97, 489 S.E.2d 380, 390 (1997).

In the instant case, defendant was charged with first-degree murder under the felony murder rule based on the underlying felony of AWDWISI. The elements of AWDWISI are: (1) an assault, (2) with a deadly weapon, (3) inflicting serious injury, (4) not resulting in death. See N.C.G.S. § 14-32(b) (1999). We have defined assault as "an overt act or attempt, with force or violence, to do some immediate physical injury to the person of another, which is sufficient to put a person of reasonable firmness in fear of immediate physical injury." State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995). A deadly weapon is "`any article, instrument or substance which is likely to produce death or great bodily harm.'" State v. Bagley, 321 N.C. 201, 212, 362 S.E.2d 244, 251 (1987) (quoting State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981)) (alteration in original), cert. denied, 485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 912 (1988).

It is well settled in North Carolina that an automobile can be a deadly weapon if it is driven in a reckless or dangerous manner. State v. Eason, 242 N.C. 59, 65, 86 S.E.2d 774, 779 (1955). Thus, a driver who operates a motor vehicle in a manner such that it constitutes a deadly weapon, thereby proximately causing serious injury to another, may be convicted of AWDWISI provided there is either an actual intent to inflict injury or culpable or criminal negligence from which such intent may be implied. Id. at 65, 86 S.E.2d at 778. Culpable or criminal negligence has been defined as "`such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others.'" State v. Weston, 273 N.C. 275, 280, 159 S.E.2d 883, 886 (1968) (quoting State v. Cope, 204 N.C....