State v. Gray

528 S.E.2d 46

137 NC App. 345

STATE of North Carolina v. William David GRAY, Defendant.

No. COA99-201.

Court of Appeals of North Carolina.

April 4, 2000.

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

Johnson & Parsons, P.A., by W. Douglas Parsons and David H. Hobson, Clinton, for defendant-appellant. EDMUNDS, Judge.

Defendant appeals his conviction of second-degree murder. We find no error.

On 11 November 1997, at approximately 8:00 p.m., defendant William David Gray was driving a Ford Mustang northbound on a highway near Roseboro, North Carolina. His girlfriend, Donna Johnson, was in the front passenger seat. Defendant crossed the center line and struck head on a Dodge Duster driven by Ricky Lee Ray, Jr. Ray's sister, sixteen year-old Karen Lynn Ray, was in the front passenger seat. Rescue personnel arrived at the scene shortly after the accident to find Ricky and Karen Ray pinned inside their vehicle. All four of those involved in the accident were transported to the hospital. Karen Ray died at approximately 8:40 p.m. due to closed head trauma with multiple fractures of the skull.

Defendant was interviewed at the hospital by a North Carolina Highway Patrol trooper. Defendant admitted driving the vehicle and having consumed beer before driving. The trooper "noticed a strong odor of alcoholic beverage about his person." Defendant was then charged with driving while impaired. After being read his rights, defendant consented to a blood test. The test, taken at 11:22 p.m., showed defendant's blood alcohol level to be 0.113. Thereafter, defendant was indicted and convicted of driving while impaired and second-degree murder. The trial court arrested judgment on the driving while impaired conviction and imposed a mitigated sentence of 94 to 122 months. Defendant appeals.

I.

Defendant first challenges the trial court's admission into evidence a prior conviction of N.C. Gen.Stat. § 20-138.3 (1999), which makes it unlawful "for a person less than 21 years old to drive a motor vehicle on a highway or public vehicular area while consuming alcohol or at any time while he has remaining in his body any alcohol or controlled substance previously consumed...." The State filed a motion in limine seeking a pretrial ruling on admissibility of evidence of this prior conviction, contending that the conviction was evidence of malice. Defendant responded with a motion in limine seeking a pretrial ruling to exclude the evidence. The trial court entered an order finding that malice was an essential element of second-degree murder. After concluding that the probative value of the evidence exceeded its prejudicial effect pursuant to N.C. Gen.Stat. § 8C-1, Rule 403 (1999), the court held that evidence of the prior conviction was admissible.

We note at the outset that, after the trial court ruled on the motions in limine, defendant sought a standing objection to the evidence pursuant to State v. Hayes, 130 N.C.App. 154, 502 S.E.2d 853 (1998). The court granted defendant's motion, and, as a result, no contemporaneous objection was made when the evidence was tendered. The four-part test enumerated in Hayes has since been disavowed by our Supreme Court. See State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (restating the long-standing rule that "[r]ulings on motions in limine are preliminary in nature and subject to change at trial, ... and `thus an objection to an order granting or denying the motion "is insufficient to preserve for appeal the question of the admissibility of the evidence"'"). Based on the established law of this State, because defendant failed to object to the admission of the evidence at the time it was offered, he has failed to preserve this issue for our review. See Nunnery v. Baucom, 135 N.C.App. 556, 521 S.E.2d 479 (1999). Nevertheless, we elect to employ our discretionary powers under N.C. R.App. P. 2 and address this issue.

"Second-degree murder is the unlawful killing of a human being with malice but without premeditation and deliberation." State v. McBride, 109 N.C.App. 64, 67, 425 S.E.2d 731, 733 (1993). North Carolina appellate courts recognize three kinds of malice:

One connotes a positive concept of express hatred, ill-will or spite, 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. Both [of] these kinds of malice would support a conviction of murder in the second degree. There is, however, 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."

State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982) (internal citations omitted). In the case at bar, where the charge of second-degree murder is based upon impaired driving, we focus on the second form of malice. See State v. Grice, 131 N.C.App. 48, 505 S.E.2d 166 (1998), disc. review denied, 350 N.C. 102, ___ S.E.2d ____ (1999).

Rule 404(b) of the North Carolina Rules of Evidence permits the State to introduce evidence of other crimes, wrongs, or acts by a defendant to establish malice. N.C. Gen.Stat. § 8C-1, Rule 404(b) (1999); see State v. Byers, 105 N.C.App. 377, 413 S.E.2d 586 (1992). Our Supreme Court has held 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,..." is sufficient to supply the malice necessary for second degree murder.'" State v. Snyder, 311 N.C. 391, 394, 317 S.E.2d 394, 396 (1984) (quoting State v. Wilkerson, 295 N.C. 559, 581, 247 S.E.2d 905, 917 (1978)).

More specifically, North Carolina courts consistently have held that evidence of prior acts and convictions are admissible under Rule 404(b) as evidence of malice to support a second-degree murder charge. See, e.g., State v. Rich, 132 N.C.App. 440, 512 S.E.2d 441 (prior speeding offenses admissible to prove malice where impaired defendant charged with second-degree murder as a result of fatal automobile accident), disc. review allowed, 350 N.C. 847, ___ S.E.2d ____ (1999); Grice, 131 N.C.App. 48, 505 S.E.2d 166 (prior convictions of driving while impaired admissible in second-degree murder case where traffic accident caused by impaired defendant); McBride, 109 N.C.App. 64, 425 S.E.2d 731 (evidence of defendant driver's prior driving convictions and earlier false statement to vehicle inspector as to ownership of car admissible to show malice where impaired defendant charged with second-degree murder); Byers, 105 N.C.App. 377, 413 S.E.2d 586 (evidence that defendant's license was revoked relevant to show malice). As our Supreme Court has held:

Rule 404(b) state[s] a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.

State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).

These cases establish that a wide range of prior convictions have been held admissible to establish malice in cases where an impaired driver causes a death and is charged with second-degree murder. Although defendant contends that evidence of the offense was inadmissible because the offense imposes strict liability based upon defendant's age without regard to the quantity consumed, we hold that defendant's prior alcohol-related conviction was relevant in this case involving impaired driving to establish "a mind utterly without regard for human life and social duty." Reynolds, 307 N.C. at 191, 297 S.E.2d at 536. Therefore, defendant's conviction of an alcohol-related driving offense pursuant to N.C. Gen.Stat. § 20-138.3 was admissible for the purpose of establishing malice. This assignment of error is overruled.

II.

Defendant next contends the trial court erred in admitting into evidence photographs depicting the victims' vehicle. Defendant argues the impact of these photographs, which show blood in the interior of the vehicle, was improperly prejudicial.

The issue of the admissibility of photographic evidence has been long established in North Carolina. In State v. Hennis, our Supreme Court stated Photographs are usually competent to explain or illustrate anything that is competent for a...