State v. Jones

• Citation: 133 NC App. 448,516 S.E.2d 405
• Decision Date: 15 June 1999
• Docket Number: No. COA98-429.,COA98-429.
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina, Plaintiff-Appellee, v. Thomas Richard JONES, Defendant-Appellant.

516 S.E.2d 405

133 NC App. 448

STATE of North Carolina, Plaintiff-Appellee, v. Thomas Richard JONES, Defendant-Appellant.

No. COA98-429.

Court of Appeals of North Carolina.

June 15, 1999.

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

White and Crumpler, by David B. Freedman, Dudley A. Witt, and Laurie A. Schlossberg; and Teeter Law Firm by Carroll L. Teeter, Winston-Salem, for defendant-appellant.

HORTON, Judge.

In 1893 our General Assembly codified the common law offense of murder and divided it into first and second degrees. State v. Davis, 305 N.C. 400, 422, 290 S.E.2d 574, 588 (1982). The killings considered to be the most heinous were classified as first-degree murder and then subdivided into three classes: "(1) murders perpetrated by means of poison, lying in wait, imprisonment, starving, or torture, (2) premeditated murder, and (3) killings occurring in the commission of" any arson, rape, robbery, burglary, or other felony. Id. at 423, 290 S.E.2d at 588. This third class of first-degree murder is commonly referred to as felony murder.

In 1977, the General Assembly amended the definition of felony murder to its present form. It is now defined as a 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. Gen. Stat. § 14-17 (Cum.Supp.1998). Therefore, for a defendant to be found guilty of felony murder, the State must prove that another person was killed while defendant was committing or attempting to commit any felony in which a deadly weapon was involved. State v. Gibbs, 335 N.C. 1, 51, 436 S.E.2d 321, 350 (1993), cert. denied, 512 U.S. 1246, 114 S.Ct. 2767, 129 L.Ed.2d 881 (1994). In the instant case, the defendant was charged with the underlying felony of assault with a deadly weapon inflicting serious injury, which is comprised of the following elements: (1) an assault; (2) with a deadly weapon; (3) inflicting serious injury; and (4) not resulting in death. N.C. Gen.Stat. § 14-32(b) (1993).

An assault is defined as an overt act or attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to another person. State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967). This show of force or violence must be sufficient to place a person of reasonable firmness in fear of immediate bodily harm. Id. A deadly weapon has been defined by our Supreme Court as any "`article, instrument or substance which is likely to produce death or great bodily harm.'" State v. Torain, 316 N.C. 111, 120, 340 S.E.2d 465, 470 (quoting State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981)), cert. denied, 479 U.S. 836, 107 S.Ct. 133, 93 L.Ed.2d 77 (1986). An automobile which is driven in a dangerous manner can be a deadly weapon. See State v. Sudderth, 184 N.C. 753, 755, 114 S.E. 828, 829-30 (1922); State v. Eason, 242 N.C. 59, 65, 86 S.E.2d 774, 778 (1955); State v. McBride, 118 N.C.App. 316, 318-19, 454 S.E.2d 840, 841-42 (1995).

A driver who operates an automobile in such a manner that it is a deadly weapon can be convicted of the felony of assault with a deadly weapon inflicting serious injury if the driver has either "(1) an actual intent to inflict injury, or (2) [commits a] culpabl[y] or criminal[ly] negligen[t] [act] from which such intent may be implied." Eason, 242 N.C. at 65,86 S.E.2d at 778. Culpable or criminal negligence, in turn, 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. Cope, 204 N.C. 28, 30, 167 S.E. 456, 458 (1933). In State v. Hancock, 248 N.C. 432, 435, 103 S.E.2d 491, 494 (1958), our Supreme Court stated that "[t]he violation of a safety statute which results in injury or death will constitute culpable negligence if the violation is wilful, wanton, or intentional." If, however, the statute is unintentionally or inadvertently violated, culpable negligence exists if the violation is "accompanied by recklessness of probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of consequences or of a heedless indifference to the safety of others." Id.

In this case, all the elements to sustain a conviction of first-degree murder by application of the felony murder rule are present. Two people were killed while defendant was perpetrating the felony of assault with a deadly weapon inflicting serious injury. Defendant committed the assault with his automobile by driving it in a reckless manner, oblivious to the safety of others. Although the evidence supports defendant's conviction for felony murder because the elements of the underlying felony were met, defendant nonetheless contends that his conviction should be overturned because: (I) the felony murder statute is unconstitutionally vague in that it does not define "deadly weapon"; (II) application of the felony murder rule against defendant is an ex post facto violation; and (III) defendant's conviction is a violation of the Equal Protection Clause. We disagree with defendant on all of these contentions and with (IV) the dissent's opinion that it was not the legislature's intent for the felony murder rule to apply to the facts of this case.

Defendant also presents the following evidentiary and instructional error arguments: (V) that the trial court erred in allowing the State to introduce evidence of a pending DWI charge, a 1992 conviction for DWI, and evidence of defendant's driving prior to the offense in question; (VI) that the trial court (A) erred in failing to instruct the jury about proximate cause and insulating acts of negligence, and (B) should not have instructed the jury that driving left of the center line and exceeding the speed limit were culpable negligence; (VII) the trial court erred in denying defendant's motion to dismiss at the close of all the evidence; (VIII) the district courts were without jurisdiction to enter orders to allow the State access to defendant's medical orders and these orders allowed the State improper ex parte contact with defendant's physicians; (IX) the trial court erred in allowing testimony by Dr. Mason in giving his opinion about defendant's level of impairment and by Dr. Stuart about the effects of barbiturates on the human body; and (X) the trial court erred in submitting the felony murder charges because the underlying felonies of assault with a deadly weapon inflicting serious injury merged with the offense of felony murder.

I

Defendant first contends that the failure of North Carolina's General Assembly to define the term "deadly weapon" in N.C. Gen.Stat. § 14-17 necessarily results in the statute being unconstitutionally vague as applied to this defendant. We disagree.

It is well settled in North Carolina that a statute may be void for vagueness and uncertainty. "`A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'" State v. Green, 348 N.C. 588, 597, 502 S.E.2d 819, 824 (1998) (citations omitted), cert. denied, ___ U.S. ____, 119 S.Ct. 883, 142 L.Ed.2d 783 (1999). A deadly weapon, however, has been defined by our case law to include a variety of different instruments, including automobiles. As we stated earlier, a "deadly weapon is any article, instrument, or substance that is likely to produce great bodily harm or death." State v. Hales, 344 N.C. 419, 426, 474 S.E.2d 328, 332 (1996) (emphasis added).

A variety of items have been held to be deadly weapons. See State v. Lang, 309 N.C. 512, 527, 308 S.E.2d 317, 325 (1983)

(hands, fists or feet can be deadly weapons); State v. Joyner, 295 N.C. 55, 64-65, 243 S.E.2d 367, 373-74 (1978) (Pepsi-Cola bottle could be deadly weapon); State v. Strickland, 290 N.C. 169, 178, 225 S.E.2d 531, 538 (1976) (plastic bag can be a deadly weapon). The determinative inquiry is "the destructive capabilities of the weapon or device." State v. Moose, 310 N.C. 482, 497, 313 S.E.2d 507, 517 (1984). Indeed, this Court has specifically held that an automobile can be a deadly weapon within the meaning of the felony of assault with a deadly weapon. Eason, 242 N.C. at 65,

86 S.E.2d at 778. Because North Carolina cases provide adequate notice of what constitutes a deadly weapon, defendant has not been deprived of due process. His argument, therefore, that the lack of a specific definition of "deadly weapon" necessarily makes the felony murder statute unconstitutional in this case, is unpersuasive.

II

Defendant next contends that the application of the felony murder rule in this case would violate the prohibition against ex post facto laws. We disagree.

Both the North Carolina and United States Constitutions forbid the enactment of ex post facto laws. U.S. Const. art. I, § 10; N.C. Const. art. I, § 16. From the beginning of American jurisprudence, the United States Supreme Court has defined an ex post facto law to be a law that "(1) makes an action criminal which was done before the passing of the law and which was innocent when done, (2) aggravates a crime or makes it greater than when it was committed, (3) allows imposition of a different or greater punishment than was permitted when the crime was committed, or (4) alters the legal rules of evidence to permit different or less testimony to convict the offender than was required at the time the offense was committed." State v. Vance, 328 N.C. 613, 620, 403 S.E.2d 495, 500 (1991). See also Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648, 650 (1798...