State v. Rich

• Decision Date: 07 April 2000
• Docket Number: No. 161PA99.,161PA99.
• Citation: 351 N.C. 386,527 S.E.2d 299
• Parties: STATE of North Carolina v. Matthew Thomas RICH.
• Court: North Carolina Supreme Court

527 S.E.2d 299

351 N.C. 386

STATE of North Carolina v. Matthew Thomas RICH.

No. 161PA99.

Supreme Court of North Carolina.

April 7, 2000.

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

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

LAKE, Justice.

Defendant was indicted on 6 January 1997 for two counts of second-degree murder. He was tried at the 15 September 1997 Criminal Session of Superior Court, Guilford County. The jury found defendant guilty of both charges. On 25 September 1997, the trial court sentenced defendant to two consecutive terms of 132 to 168 months' imprisonment. Defendant gave notice of appeal to the North Carolina Court of Appeals on 29 September 1997.

On appeal, the Court of Appeals found no error. State v. Rich, 132 N.C.App. 440, 512 S.E.2d 441 (1999). For the reasons discussed herein, we conclude that the Court of Appeals correctly determined that defendant received a fair trial, free from prejudicial error. Accordingly, we affirm the decision of the Court of Appeals.

The State's evidence tended to show that on 29 November 1996, at approximately 10:15 p.m., while traveling on Horse Pen Creek Road in Greensboro, North Carolina, defendant's vehicle collided head-on with another vehicle. The passengers in the other vehicle were Todd Allan Bush and James Brady Littrell. The accident occurred at a sharp curve in the road where the posted speed limit was thirty-five miles per hour (mph). The road consisted of two lanes and was marked as a no-passing zone. The stretch of road leading up to the curve had a forty mph speed limit. Just prior to entering the curve in the road, defendant had passed another motorist in a no-passing zone. Defendant was driving at a speed in excess of seventy mph when he entered the curve, crossed into the left lane, and collided with Bush and Littrell. Both Bush and Littrell died as a result.

At approximately 10:30 p.m., Officer L.E. Farrington of the Greensboro Police Department arrived at the scene of the collision. While investigating the accident, Officer Farrington noticed a strong odor of alcohol on defendant. A member of the Emergency Medical Services (EMS) team who responded to the accident, Karrina Crews, testified that she also detected a strong odor of alcohol on defendant as she helped remove defendant from his vehicle. Other members of the EMS team testified that defendant was verbally abusive and combative toward assisting paramedics. Thereafter, EMS transported defendant to Moses Cone Hospital, where Dr. Kai-Uwe Mazur treated defendant. While treating defendant, Dr. Mazur asked him a series of questions, one of which was whether he drank alcohol. Defendant responded that he frequently consumed alcohol, and on the night of the accident, he drank "several beers and several shots." Dr. Mazur recorded this statement in defendant's medical record.

Officer Gerald Austin of the Greensboro Police Department, who had also investigated the scene of the collision, interviewed defendant at the hospital at approximately 11:35 p.m. that night. During this interview, Officer Austin detected a strong odor of alcohol on defendant. Officer Austin also noted that defendant's eyes were bloodshot and watery, and that defendant had difficulty focusing on him during the interview. Officer Austin concluded that defendant was impaired at the time of the collision. However, there is nothing in the record which indicates that a blood alcohol test was ever administered to defendant.

The State also introduced evidence that defendant had a history of convictions for traffic violations: driving seventy mph in a thirty-five mph zone on 11 August 1995, driving seventy mph in a fifty-five mph zone on 11 May 1994, reckless driving and fleeing to elude arrest on 3 October 1991, driving seventy-six mph in a forty-five mph zone on 6 September 1990, and driving seventy-five mph in a forty-five mph zone on 3 October 1988.

In his first assignment of error, defendant contends that the Court of Appeals erred in approving the trial court's instruction that the jury needed to find only one of the attitudinal components of malice to support a second-degree murder conviction. Defendant argues that the Court of Appeals' affirmance of the trial court's definition of malice conflicts with this Court's decision in State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978). We disagree.

The trial court instructed the jury as to malice as follows:

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.

....

Now, I further charge you, members of the jury, with respect to the second kind of malice that I have defined to you, that is, malice which 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, I say I charge you 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 beginning its deliberations, the jury requested additional instructions from the trial court regarding "the nature of malice of the second kind." The trial court responded to the jury's question as follows:

[Y]ou 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 argues that the Court of Appeals erred in affirming the trial court's instruction to the jury that malice may be present if only one of the six attitudinal circumstances constituting malice is found to exist. Defendant contends that the Court of Appeals erred because the trial court's definition of malice conflicts with the language adopted by this Court in Wilkerson. The definition of malice set out in Wilkerson originated from a dissent to State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971). Wilkerson, 295 N.C. at 578, 247 S.E.2d at 916. In her dissenting opinion to Wrenn, Justice (later Chief Justice) Sharp 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." 21 A. & E. 133 (2nd Edition 1902).

... "[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." State v. Trott, 190 N.C. 674, 679, 130 S.E. 627, 629 [(1925) ].... 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." 1 Wharton, Criminal Law and Procedure § 245 (Anderson, 1957).

Wrenn, 279 N.C. at 686-87, 185 S.E.2d at 135 (Sharp, J., dissenting). This Court later approved that definition of malice in Wilkerson, 295 N.C. at 578, 247 S.E.2d at 916.

Defendant asserts that the trial court's formulation of malice conflicts with this Court's definition set forth in Wilkerson because the trial court did not require the jury to find all six attitudinal circumstances of malice to exist in order to find that defendant acted with malice. Rather, the trial court instructed the jury that only one of these circumstances may be sufficient for malice to exist. Defendant contends that because the trial court erroneously instructed the jury on malice, the trial court relieved the State of its burden to prove all the essential elements of second-degree murder. This argument is without merit.

In State v. Leach, 340 N.C. 236, 456 S.E.2d 785 (1995), this Court held that the elements listed by the trial court in a jury instruction on premeditation and deliberation were examples of circumstances that the jury could use to infer premeditation and deliberation, and that the law did not require that each circumstance be proven. The trial court in Leach instructed the jury on premeditation and deliberation for first-degree murder as follows:

[Premeditation and deliberation] may be proved by proof of a circumstance from which they may be inferred such as a lack of provocation by the [v]ictim; conduct of the [d]efendant before, during and after the killing; threats and declarations of the defendant; use of grossly excessive force or vicious circumstances of the killing or the manner or means by which the killing was done.

Id. at 241, 456 S.E.2d at 788. In examining that jury instruction, this Court explained:

The instruction in question informs a jury that the circumstances given are only illustrative; the

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