State v. Lewis ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-905
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA
v. Rowan County
Nos. 10 CRS 58246, 11 CRS 3083
KENNETH MYLES LEWIS, JR.
Appeal by defendant from judgment entered 14 February 2013
by Judge W. Erwin Spainhour in Rowan County Superior Court.
Heard in the Court of Appeals 6 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Kathryne E. Hathcock, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr.,
for defendant-appellant.
CALABRIA, Judge.
Kenneth Myles Lewis, Jr. (“defendant”) appeals from a
judgment entered upon jury verdicts finding him guilty of second
degree murder and expired registration. We find no error.
I. Background
On 6 December 2010, defendant and four of his employees
were engaged in tree removal work in a residential area.
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Defendant left the work site at one point for a few hours. When
defendant returned, employee Douglas Sander (“Sander”) noticed
some pills packaged in plastic on the dashboard of defendant’s
Chevrolet Silverado pick-up truck (“the truck”). When the work
was completed, defendant attempted to drive his employees to
another work site. However, defendant “kept going off the
road,” and almost hit several mailboxes before leaving the
subdivision. Defendant’s employees convinced defendant to allow
Sander to drive the truck to the next work site.
After completing work and leaving the second work site,
defendant and Sander argued, and defendant ultimately punched
Sander in the head. Sander stopped driving, exited the truck,
and walked to a nearby gas station. Defendant moved to the
driver’s seat and dropped off the remaining employees before
proceeding west on Highway 150.
Several minutes later, defendant crossed into the lane of
oncoming traffic and collided head-on with Carolyn Wilson’s
(“Mrs. Wilson”) Toyota Prius (“the Prius”). After Emergency
Medical Services personnel arrived, they removed Mrs. Wilson
from the severely damaged Prius. Mrs. Wilson was subsequently
transported by AirCare helicopter to Carolinas Medical Center,
where she later died as a result of the injuries she sustained
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in the collision.
Paramedics found defendant standing in a field beside the
truck several feet from the roadway. Paramedic Katie Smith
(“Smith”) detected an odor of alcohol from defendant, who was
unsteady on his feet, talking loudly, and cursing. When Smith
informed defendant that the other individual involved in the
collision had been seriously injured, defendant stated that he
did not care. Defendant admitted to having three drinks and
requested cigarettes and food while he was transported to the
hospital. During Smith’s attempts to treat defendant, he was
belligerent and shouted and cursed at her.
Trooper Malcolm Eason (“Trooper Eason”) of the North
Carolina State Highway Patrol (“NCSHP”) responded to the
collision. While he spoke to defendant in the back of the
ambulance, Trooper Eason detected an odor of alcohol, and
noticed that defendant appeared disoriented. Trooper Eason
stated that defendant’s speech was “very gargled [sic], very
slurred,” and that he formed the opinion that defendant’s mental
and physical faculties were appreciably impaired. NCSHP Trooper
David Deal (“Trooper Deal”), spoke with defendant in the
hospital. Defendant told Trooper Deal that “he was going down
the road and someone ran him into a ditch.” Trooper Deal also
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detected a “moderate to strong” odor of alcohol on defendant’s
breath, and formed the opinion that defendant’s mental and
physical faculties were impaired. Subsequently, a chemical
analysis of defendant’s blood by the North Carolina State Bureau
of Investigation (“the SBI”) revealed the presence of Xanax and
a reported alcohol concentration of .02. The SBI calculated
defendant’s blood alcohol concentration using the retrograde
extrapolation method and determined that defendant’s blood
alcohol concentration at the time of the collision was either
.07 or .08.
Defendant was arrested and charged with felony death by
vehicle, driving while impaired, expired registration, expired
inspection, driving left of center, and second degree murder.
The State later voluntarily dismissed the charge of felony death
by vehicle.
On 14 February 2013 the jury returned verdicts finding
defendant guilty of second degree murder, driving while
impaired, and expired registration. The trial court arrested
judgment on the driving while impaired offense, and sentenced
defendant to a minimum of 238 months and a maximum of 295 months
in the custody of the North Carolina Division of Adult
Correction. Defendant appeals.
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II. Driving Record
Defendant argues that the trial court erred in admitting
evidence of his certified driving history in violation of Rule
404(b). We disagree.
“We review de novo the legal conclusion that the evidence
is, or is not, within the coverage of Rule 404(b). We then
review the trial court’s Rule 403 determination for abuse of
discretion.” State v. Beckelheimer, 366 N.C. 127, 130, 726
S.E.2d 156, 159 (2012). An abuse of discretion occurs only
“where the court’s ruling is manifestly unsupported by reason or
is so arbitrary that it could not have been the result of a
reasoned decision.” State v. Campbell, 359 N.C. 644, 673, 617
S.E.2d 1, 19 (2005) (citation omitted).
Rule 404(b) of the North Carolina Rules of Evidence
provides that
[e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of
a person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2013). Rule 403 states
that relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.
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N.C. Gen. Stat. § 8C-1, Rule 403 (2013). Our Courts have held
that “prior driving convictions of a defendant are admissible to
show malice, and the showing of malice in a second-degree murder
case is a proper purpose within the meaning of Rule 404(b).”
State v. Westbrook, 175 N.C. App. 128, 132, 623 S.E.2d 73, 76
(2005) (quotations and citations omitted); see State v. Rich,
351 N.C. 386, 400, 527 S.E.2d 299, 307 (2000) (prior speeding
convictions admissible to show “defendant knew and acted with a
total disregard of the consequences, which is relevant to show
malice”).
In the instant case, although the State specifically
offered defendant’s driving history for the purpose of showing
malice, the trial court conducted a review of defendant’s
driving history and allowed the parties to redact entries that
were entered in duplicate or otherwise potentially prejudicial
or confusing.
Defendant’s driving history included several traffic
violations, including charges for speeding, reckless driving,
and hit and run offenses in the months prior to the fatal
December 2010 collision. Even with the redacted driving record
that the trial court ultimately admitted, defendant’s knowledge
that he “acted with a total disregard of the consequences” was
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evidence of a high degree of recklessness. Rich, 351 N.C. at
400, 527 S.E.2d at 307. Therefore, the trial court admitted
defendant’s driving history for the proper purpose of showing
malice pursuant to Rule 404(b). In addition, because the trial
court allowed the redactions and considered defendant’s
violations in the months prior to the December 2010 collision,
the trial court’s decision to admit the evidence based upon the
probative value of the redacted driving record outweighing any
prejudicial effect was not “manifestly unsupported by reason” or
“so arbitrary that it could not have been the result of a
reasoned decision.” Campbell, 359 N.C. at 673, 617 S.E.2d at
19.
Assuming, arguendo, that the admission of defendant’s
driving record constituted error, any error was harmless. The
State presented evidence from several witnesses indicating that
although defendant had notice from his employees that he was too
impaired to drive, he nevertheless proceeded to drive despite
being under the influence of both Xanax and alcohol, and he was
appreciably impaired at the time of the collision. When
paramedics told defendant that the other driver in the collision
was severely injured, his response was that he did not care.
Since the State presented substantial evidence of malice besides
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defendant’s driving record, defendant has failed to show that
the admission of his driving record prejudiced his defense.
III. Jury Instruction
Defendant’s next argument is that the trial court committed
plain error by instructing the jury on second degree murder and
involuntary manslaughter without sufficiently defining culpable
negligence. Specifically, defendant argues that the trial court
failed to define the phrase “culpable negligence” by drawing a
sufficient distinction between the degrees of recklessness
required for each charge. We disagree.
As an initial matter, since defendant did not object or
request additional jury instructions on the definitions of
recklessness or culpable negligence, our review is limited to
determining whether there was plain error. Plain error arises
when the error is “‘so basic, so prejudicial, so lacking in its
elements that justice cannot have been done[.]’” State v. Odom,
307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation
omitted). “Under the plain error rule, defendant must convince
this Court not only that there was error, but that absent the
error, the jury probably would have reached a different result.”
State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
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In State v. Rich, the defendant also drove impaired and was
on trial for second degree murder. The trial court explained to
the jury that if the defendant’s actions were so “inherently
dangerous to human life [and were] done so recklessly and
wantonly as to manifest a mind utterly without regard for human
life and social duty and deliberately bent on mischief,” then
the defendant acted with malice. 351 N.C. at 396, 527 S.E.2d at
304. The defendant appealed the second degree murder judgment.
On appeal, the defendant argued, inter alia, 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. Id. at 386-392, 527
S.E.2d at 299-303. This Court affirmed the trial court, and on
discretionary review the Supreme Court affirmed the holding of
this Court. Id. at 389, 527 S.E.2d at 300. The Supreme Court
ultimately held that the jury instructions correctly conveyed
the level of recklessness sufficient for the jury to find
defendant guilty of second degree murder. In addition, the
Supreme Court held that “[b]ecause the trial court’s
instructions, in their entirety, conveyed the level of
recklessness required for second-degree murder, [the Court]
cannot conclude that the jury could have confused such a high
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degree of recklessness with mere culpable negligence.” Id. at
394, 527 S.E.2d at 303-04.
In the instant case, the trial court instructed the jury,
in pertinent part:
The defendant has been accused of second-
degree murder. Under the law and the
evidence in this case, it is your duty to
return one of the following verdicts:
guilty of second-degree murder or guilty of
involuntary manslaughter or not guilty.
Second-degree murder is the unlawful killing
of a human being by an act done in a
culpably negligent way.
Now, for you to find the defendant guilty of
second-degree murder . . . the [S]tate must
prove seven things beyond a reasonable
doubt.
. . .
Sixth, that the defendant acted unlawfully
and with malice. Malice is a necessary
element which distinguishes second-degree
murder from manslaughter. Malice arises
when an act, which is inherently dangerous
to human life, is intentionally done so
recklessly and wantonly as to manifest a
mind utterly without regard for human life
and social duty and deliberately bent on
mischief.
. . .
If you do not find the defendant guilty of
second-degree murder, you must consider
whether the defendant is guilty of
involuntary manslaughter. Involuntary
manslaughter is the unlawful, unintentional
killing of a human being by an act done in a
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culpably negligent way. For you to find the
defendant guilty of involuntary
manslaughter, the [S]tate must prove two
things beyond a reasonable doubt.
First, that in operating a motor vehicle,
the defendant drove while impaired, as I
previously instructed you.
And second, that the defendant’s culpable
negligence proximately caused the victim’s
death.
If you find from the evidence beyond a
reasonable doubt that on or about the
alleged date the defendant drove a vehicle
on a highway, and that when the defendant
did so, the defendant was under the
influence of an impairing substance or
substances, and that the defendant acted
intentionally and so recklessly and wantonly
as to manifest a mind utterly without regard
for human life and social duty and
deliberately bent on mischief and that this
conduct constituted malice, and that such
conduct proximately caused the death of the
victim, it would be your duty to return a
verdict of guilty of second-degree murder.
If you do not so find, or have a reasonable
doubt as to one or more of these things, you
will not return a verdict of guilty of
second-degree murder, you must then
determine whether the defendant is guilty of
involuntary manslaughter.
And so, if you find from the evidence beyond
a reasonable doubt that on or about the
alleged date, the defendant drove a motor
vehicle on a highway while impaired and
without malice, but in a culpably negligent
manner, violated the laws of this state
governing the operation of motor vehicles,
and that this impaired driving and culpably
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negligent conduct proximately caused the
death of the victim, it would be your duty
to return a verdict of guilty of involuntary
manslaughter.
If you do not so find or have a reasonable
doubt as to one or more of these things, you
will return a verdict of not guilty.
The trial court’s instructions were taken directly from the
North Carolina Pattern Jury Instructions, and the definition of
malice mirrors, in part, the language of the jury instructions
in Rich. N.C.P.I. Crim. 206.32; Rich, 351 N.C. at 391, 527
S.E.2d at 301. A finding of malice was explicitly limited to
the second degree murder instruction, while the element of
culpable negligence was limited to the voluntary manslaughter
instruction. The trial court specifically instructed the jury
regarding involuntary manslaughter that it should return a
guilty verdict if it found that defendant drove a motor vehicle
on a highway while impaired in a culpably negligent way and
without malice. Furthermore, the jury did not request a
definition of culpable negligence during deliberations. Since
the trial court’s instructions to the jury explained the type of
conduct to find defendant guilty of either second degree murder
or involuntary manslaughter were clear and correct, the jury
could not have confused such a high degree of recklessness or
malice with mere culpable negligence. Rich, 351 N.C. at 394,
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527 S.E.2d at 304. The jury ultimately returned verdicts
finding defendant guilty of second degree murder, indicating
that the jurors found defendant’s conduct displayed evidence of
malice beyond a reasonable doubt.
Assuming, arguendo, that the trial court’s failure to
specifically define culpable negligence did constitute error,
any error was harmless because the State presented sufficient
evidence to show malice. The State presented evidence that
after defendant ingested Xanax and drank alcohol, he attempted
to drive his employees home from a job site. The employees were
so concerned about defendant’s condition that they convinced
defendant to allow Sander to drive instead. Despite notice from
his employees that he was too impaired to drive, defendant left
the gas station and proceeded west down Highway 150, where he
crossed into the eastbound lane and collided with Mrs. Wilson’s
Prius. When paramedics told defendant he had killed or severely
injured Mrs. Wilson, he stated that he did not care. Therefore,
the State presented sufficient evidence that defendant chose to
drive while impaired, regardless of the consequences. The trial
court’s instructions to the jury on the difference between
involuntary manslaughter and second degree murder, without the
jury asking for any clarification regarding the instruction,
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shows that defendant fails to demonstrate that the jury would
have returned a different verdict even with a definition of
culpable negligence.
IV. Ineffective Assistance of Counsel
Defendant finally argues that his trial counsel’s failure
to request a limiting instruction concerning defendant’s driving
history constituted ineffective assistance of counsel. To
prevail on a claim of ineffective assistance of counsel, defendant
must demonstrate that his trial counsel’s performance was
“deficient,” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687, 80 L.
Ed. 2d 674, 693 (1984).
In the instant case, defendant’s trial counsel objected to
the admission of defendant’s driving history, but did not
request a limiting instruction regarding its admission. Because
the driving history was admissible, defendant cannot show
prejudice from its admission. In addition, the State presented
sufficient evidence to support the jury’s finding of malice. It
is unlikely that any error in failing to request a limiting
instruction regarding defendant’s driving record would have led
the jury to return a different verdict.
V. Conclusion
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The State offered defendant’s driving record specifically
for the purpose of showing malice, which is a permissible
purpose pursuant to North Carolina case law. In addition, the
State presented evidence that defendant was under the impairing
influence of both Xanax and alcohol when he collided with Mrs.
Wilson’s Prius, that he was belligerent with emergency services
and hospital personnel, and that he was not concerned about the
other driver’s welfare. Where the verdict indicates that the
jury found evidence of malice beyond a reasonable doubt,
defendant fails to show that the jury would have returned a
different verdict even with the definition of culpable
negligence. Finally, trial counsel’s failure to request a
limiting instruction did not prejudice defendant, therefore his
ineffective assistance of counsel claim is without merit. We
hold that there was no error in defendant’s trial.
No error.
Judges STROUD and DAVIS concur.
Report per Rule 30(e).