State v. Blackwell , 142 N.C. App. 388 ( 2001 )

542 S.E.2d 675 (2001)

STATE of North Carolina
v.
Timothy Earl BLACKWELL.

No. COA98-1284-2.

Court of Appeals of North Carolina.

March 6, 2001.

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

Public Defender Robert Brown, Jr. and Assistant Public Defender Shannon A. Tucker, Durham, for defendant-appellant.

GREENE, Judge.

In the previously filed opinion of this Court on 7 December 1999, we held Defendant was entitled to a new trial on his first-degree murder conviction because "the violated plea agreement" in the felonious impaired driving charge was "introduced as substantive evidence" at Defendant's murder trial and this evidence "became the backbone of the State's theory of prosecution." State v. Blackwell, 135 N.C.App. 729, 733, 522 S.E.2d 313, 316 (1999). State v. Jones, 353 N.C. 159, 538 S.E.2d 917 (2000), now provides an additional reason to vacate Defendant's murder conviction. A defendant "may not be subject to a potential death sentence absent a showing of actual intent to commit one or more of the underlying felonies delineated or described in our state's murder statute." Jones, 353 N.C. at ___, 538 S.E.2d at 922. Neither assault with a deadly weapon inflicting serious injury (AWDWISI) nor felonious impaired driving are felonies delineated or described in the murder statute and, thus, these crimes cannot support a first-degree murder conviction. See id. at ___, 538 S.E.2d at 924-25. In this case, the State relied on four different charges of AWDWISI and felonious impaired driving to support its felony murder charge and for this additional reason that conviction must be vacated.

On remand, Defendant cannot be retried for first-degree murder; however, because the record contains ample evidence to support a charge of the lesser-included offense of second-degree murder, Defendant may be tried on remand for second-degree murder. See N.C.G.S. § 15A-1447(c) (1999). Additionally, if the trial court orders specific performance of the plea arrangement on the felonious impaired driving, Defendant may be tried on the AWDWISI charges. If the trial court rescinds the plea arrangement, the Defendant may be tried on the felonious impaired driving and AWDWISI charges. Whether the trial court orders specific performance or rescinds the plea arrangement, evidence of felonious impaired driving could be used to demonstrate Defendant had the requisite state of malice (under Rule 404(b) of the North Carolina Rules of Evidence) as required for second-degree murder. Id. at ___, 538 S.E.2d at 928.

Vacated and remanded.

WALKER and HUNTER, JJ., concur.