State v. Rich

• Decision Date: 02 March 1999
• Docket Number: No. COA98-500.,COA98-500.
• Citation: 132 NC App. 440,512 S.E.2d 441
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Matthew Thomas RICH.

512 S.E.2d 441

132 NC App. 440

STATE of North Carolina v. Matthew Thomas RICH.

No. COA98-500.

Court of Appeals of North Carolina.

March 2, 1999.

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

J. Donald Cowan and Shannon R. Joseph, Greensboro, for defendant-appellant.

TIMMONS-GOODSON, Judge.

Matthew Thomas Rich ("defendant") was convicted of two counts of second-degree murder and was sentenced to two consecutive prison terms of 132-168 months. For the reasons stated herein, we uphold the convictions rendered and the sentences imposed.

The State's evidence at trial tended to show the following facts: At approximately 10:15 p.m. on 29 November 1996, Todd Allan Bush and James Brady Litrell were traveling on Horse Pen Creek in Greensboro, North Carolina, when their vehicle was struck head-on by defendant's car. The collision occurred at a sharp curve in the road where the speed limit was 35 miles per hour ("mph"). The two-lane stretch of road leading up to the curve was a no-passing zone with a speed limit of 40 mph. Nonetheless, seconds before colliding with Bush and Litrell, defendant passed the vehicle traveling ahead of him and entered the curve at a speed in excess of 70 mph. Bush and Litrell died as a result of the collision.

Officer L.E. Farrington of the Greensboro Police Department arrived at the scene shortly after the collision occurred and noted a strong odor of alcohol on defendant's breath. Karrina Crews, a member of the EMS team that responded to the accident, testified that she also detected a strong odor of alcohol on defendant as she and the other paramedics removed him from his vehicle. Crews further testified that defendant was verbally abusive and combative with the paramedics while they attended to his medical needs. The EMS team transported defendant to Moses Cone Hospital for treatment of his injuries. The treating physician, Dr. Kai-Uwe Mazur, asked defendant a series of questions to determine his general physical condition. When Dr. Mazur asked defendant whether he drank alcohol, defendant admitted that he frequently drank alcohol and that on the night of the accident, he drank "several beers and several shots." Dr. Mazur noted this statement in defendant's medical records.

Officer Gerald Austin interviewed defendant at the hospital at 11:35 p.m. Officer Austin reported a moderate to strong odor of alcohol on defendant's person. The officer further noted that defendant's eyes were bloodshot and watery and that defendant had trouble focusing on him during the interview. Based on these observations, Officer Austin formulated the opinion that defendant was appreciably impaired and "unfit to operate machinery or equipment of any type." Nothing in the record, however, indicates that a blood alcohol test was administered to defendant on the night of the accident.

The State also presented evidence of defendant's prior driving record. This evidence disclosed that defendant was convicted of the following traffic violations: driving 75 mph in a 45 mph zone on 3 October 1988; driving 76 mph in a 45 mph zone on 6 September 1990; reckless driving and fleeing to elude arrest on 3 October 1991; driving 70 mph in a 35 mph zone on 11 August 1995; and driving 70 mph in a 55 mph zone on 11 May 1994.

At the conclusion of the State's evidence, defendant moved to dismiss the second-degree murder charges, and the trial judge denied the motion. Thereafter, the court charged the jury on second-degree murder and involuntary manslaughter, emphasizing that the element of malice distinguished the two offenses. The court gave the following instruction regarding malice:

Now, members of the jury, our courts have defined malice, and our courts have declared that there are three kinds of malice in our law of homicide. One kind of malice connotes a possible concept of express hatred, ill will, or spite. This is sometimes called actual, express, or particular malice. Another kind of malice arises when an act which is inherently dangerous to human life is done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief. And there is, in addition, a third kind of malice which is defined as nothing more than that condition of mind which prompts a person to take the life of another intentionally, without just cause, excuse, or justification.

With regard to the second kind of malice, the court further instructed that "any act evidencing wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief, though there may be no intention to injure a particular person, is sufficient to supply the malice necessary for second degree murder."

After less than an hour of deliberation, the jury returned to the courtroom and requested that the court review the definitions of malice. The court complied, and the jury resumed its deliberation. Several hours later, however, the jury again returned to the courtroom and asked the court to address specific questions regarding the concept of "deliberately bent on mischief." The court gave the jury further guidance as to the meaning of the phrase, and after additional deliberation, the jury returned verdicts finding defendant guilty of both counts of second-degree murder. The court sentenced defendant to two consecutive prison terms, totaling approximately 22-28 years. Defendant appeals.

Defendant brings forward several assignments of error challenging the trial court's instructions to the jury, its evidentiary rulings, its failure to dismiss the charges of second-degree murder, and its sentencing decision. Having reviewed defendant's arguments, we conclude that the proceedings before the trial court were without legal error.

At the outset, defendant argues that the trial court erred in instructing the jury on the element of malice essential to support a conviction of second-degree murder. Upon review of a trial court's charge to the jury, we must determine whether, considering the instruction in its entirety, "it clearly appears that the law was presented in such a manner that there is no reasonable cause to believe that the jury was misled or misinformed." Rice v. Wood, 82 N.C.App. 318, 329, 346 S.E.2d 205, 212 (1986). The appealing party must demonstrate not only that the court erred in its instructions, but "that if the error had not occurred there is a reasonable probability that the result of the trial would have been favorable to him." Id.

Second-degree murder is defined under section 14-17 of the North Carolina General Statutes as the "`unlawful killing of a human being with malice, but without premeditation or deliberation.'" State v. Mapp, 45 N.C.App. 574, 579, 264 S.E.2d 348, 353 (1980)(quoting State v. Duboise, 279 N.C. 73, 81, 181 S.E.2d 393, 398 (1971)). "What constitutes proof of malice will vary depending on the factual circumstances in each case." State v. McBride, 109 N.C.App. 64, 67, 425 S.E.2d 731, 733 (1993). It is defendant's contention, however, that the trial court improperly charged the jury concerning malice, as the term was defined by our Supreme Court in State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978). As the Court stated,

"[Malice] comprehends not only particular animosity `but also wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief, though there may be no intention to injure a particular person.'" ... "`[It] does not necessarily mean an actual intent to take human life; it may be inferential or implied, instead of positive, as when an act which imports danger to another is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life.'" "In such a situation `the law regards the circumstances of the act as so harmful that the law punishes the act as though malice did in fact exist.'"

Id. at 578-579, 247 S.E.2d at 916 (quoting State v. Wrenn, 279 N.C. 676, 686-87, 185 S.E.2d 129, 135 (1971) (citations omitted)).

In the present case, the trial court instructed the jury as follows regarding the kind of "depraved-heart" malice described in Wilkerson:

You have asked me with regard to wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, a mind regardless of social duty and deliberately bent on mischief, as to whether all of these must be present. My answer to that is no. One of these, some of these, or all of these may be proved and may be sufficient to supply the malice necessary for second degree murder. That is a factual determination that you, the jury, must make[.]

Defendant takes issue with this instruction and argues that "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief" constitute elements of "depraved-heart" malice. Defendant contends that as such, all must exist before a jury can find that he acted maliciously. At oral arguments, however, defendant conceded that less than all—two or more—would be sufficient to show malice. We, therefore, reject defendant's contention and adopt, instead, the State's position that "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief" are examples, any one of which may provide the malice necessary to convict a defendant of second-degree murder.

In support of this conclusion, we look to our rulings in McBride, 109 N.C.App. 64, 425 S.E.2d 731, and State v. Hemphill, 104 N.C.App. 431, 409 S.E.2d 744 (1991). In McBride, this Court upheld the defendant's conviction of second-degree murder, concluding that malice was sufficiently established where the evidence showed that defendant acted with (1) "a mind without...