State v. Williamson ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-265
No. COA16-631
Filed 19 April 2022
Robeson County, No. 12CRS2856, 57284, 708246
STATE OF NORTH CAROLINA
v.
ROCKY KURT WILLIAMSON, Defendant.
Appeal by Defendant from judgment entered 8 October 2015 by Judge Tanya
T. Wallace and order entered 14 May 2020 by Judge Robert F. Floyd, Jr., in Robeson
County Superior Court. Heard in the Court of Appeals 15 December 2021.
Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E.
Hathcock, for the State.
Glover & Petersen, P.A., by James R. Glover, for Defendant-Appellant.
INMAN, Judge.
¶1 Defendant Rocky Kurt Williamson (“Defendant”) appeals from a judgment
following a jury verdict finding him guilty of second-degree murder and aggravated
felony death by vehicle. On appeal, Defendant contends that the evidence presented
was insufficient to permit a reasonable juror to find beyond a reasonable doubt that
Defendant engaged in the reckless conduct required to establish malice for a
conviction of second-degree murder. By petition for writ of certiorari, which this
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Court granted, Defendant also argues the trial court erred in denying his motion for
appropriate relief by striking a witness’s testimony in full without first issuing a
material witness order compelling the witness to appear for further questioning and
without informing the witness that he had waived his testimonial privilege against
self-incrimination and was required to answer further questions on the subject of his
direct testimony under penalty of contempt. After careful review, we hold
Defendant’s trial was free from error and affirm the trial court’s order denying
Defendant’s motion for appropriate relief.
I. FACTUAL & PROCEDURAL HISTORY
¶2 Evidence presented at trial tends to show the following:
¶3 On 4 July 2012, Defendant, Fred Jacobs (“Mr. Jacobs”), and Dakota
Hammonds (“Mr. Hammonds”), Mr. Jacobs’ fifteen-year-old relative, were out driving
late at night. Defendant and Mr. Jacobs were in the front seat and Mr. Hammonds
was in the back seat. Both Defendant and Mr. Jacobs had been drinking throughout
the night, at Fourth of July celebrations earlier in the evening and from a twelve-
pack of beer they purchased while they drove. Around 3:30 a.m. the group visited
Charles Anthony Carr (“Mr. Carr”) at his house. Defendant got out of the car and
spoke with Mr. Carr for a few minutes before the group left and began driving again.
At about 4:00 a.m., the car veered off the road and crashed. Mr. Jacobs was the only
one wearing a seatbelt; Defendant and Mr. Hammonds were flung from the car in the
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crash and seriously injured. Mr. Hammonds was airlifted to the hospital, where he
was declared dead later that morning.
¶4 Defendant was indicted for six offenses on 5 July 2012: (1) second-degree
murder; (2) aggravated felony death by vehicle; (3) felony death by vehicle; (4)
reckless driving; (5) driving while impaired (“DWI”); and (6) operating a motor vehicle
while not having a driver’s license. The case came on for trial 21 September 2015.
¶5 The central issue at trial was the identity of the driver of the vehicle at the
time of the fatal wreck. Mr. Jacobs testified Defendant was driving. Defendant
testified that Mr. Jacobs was driving and that he did not remember the crash. Mr.
Carr served as the only other witness and testified that he saw Mr. Jacobs in the
passenger seat and Mr. Hammonds in the backseat when Defendant came to speak
with him in front of his house that night.
¶6 On 8 October 2015, the jury found Defendant guilty of second-degree murder,
aggravated felony death by vehicle, DWI, reckless driving, and operating a motor
vehicle without a valid operator’s license. The trial court consolidated Defendant’s
second-degree murder and aggravated felony death by vehicle convictions into one
judgment and sentenced Defendant to 180 to 228 months in prison. The trial court
arrested judgment on Defendant’s other charges. Defendant filed written notice of
appeal.
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¶7 With his appeal, Defendant also filed a motion for appropriate relief alleging
that Mr. Carr had recanted his trial testimony as false. We granted Defendant’s
motion, vacated his convictions based on the motion, and ordered a new trial. As a
result, we did not resolve Defendant’s original appeal.
¶8 Our Supreme Court then reviewed and vacated the order of this Court,
concluding the matter should be remanded to the trial court for an evidentiary
hearing. We then remanded the motion to the trial court for that purpose.
¶9 The trial court conducted an evidentiary hearing on Defendant’s motion for
appropriate relief in three sessions over more than a year’s time, on 7 June 2018, 7
February 2019, and 29 October 2019.
¶ 10 On 7 June 2018, Mr. Carr appeared and voluntarily testified that at
Defendant’s trial, he had falsely testified that: (1) he saw Mr. Jacobs and Mr.
Hammonds on 5 July 2012; (2) he saw Mr. Jacobs sitting in the passenger side of the
vehicle; and (3) he saw Mr. Hammonds sitting in the back seat on the driver’s side.
The trial court then advised Mr. Carr he was potentially facing criminal and contempt
charges for perjury. After it became clear that Mr. Carr had not consulted with an
attorney, the trial judge adjourned the hearing to allow Mr. Carr to obtain
representation.
¶ 11 On 7 February 2019, Mr. Carr again appeared but invoked the Fifth
Amendment to refuse to testify in response to virtually all of the trial prosecutor’s
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questions on cross-examination. The prosecutor objected to Mr. Carr asserting his
privilege against self-incrimination after he testified on direct examination, so the
trial court again adjourned the hearing to determine whether Mr. Carr had waived
his right to assert his privilege.
¶ 12 On 29 October 2019, Mr. Carr did not appear. The trial court held that he had
waived his privilege against self-incrimination by testifying on direct examination at
the first hearing and struck his testimony in full because he had not appeared in court
to answer questions on cross-examination.
¶ 13 On 14 May 2020, the trial court entered an order denying Defendant’s motion
for appropriate relief. Defendant filed a petition for writ of certiorari requesting our
review of the order denying the motion for appropriate relief along with a motion to
reinstate his original appeal. This Court ordered Defendant’s appeal reinstated and
granted his petition.
II. ANALYSIS
A. Merits of Defendant’s Original Appeal
¶ 14 Defendant asserts the trial court erred by failing to dismiss the charge of
second-degree murder when Defendant moved to dismiss all charges at the close of
all evidence at trial. Specifically, Defendant contends that the evidence, considered
in the light most favorable to the State, was only sufficient to establish culpable
negligence for a conviction of involuntary manslaughter and was insufficient to
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establish malice, which is an essential element of second-degree murder. We
disagree.
¶ 15 Our standard of review on appeal is well-established:
Upon the defendant’s motion to dismiss, the question for
the court is whether substantial evidence was introduced
of each element of the offense charged and that the
defendant was the perpetrator. Substantial evidence is
such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion . . . . The court is to
consider the evidence in the light most favorable to the
State in ruling on a motion to dismiss. The State is entitled
to every reasonable intendment and inference to be drawn
from the evidence; contradictions and discrepancies do not
warrant dismissal—they are for the jury to resolve.
State v. Alston, 310 N.C. 399, 404, 312 S.E.2d 470, 473 (1984) (quotation marks and
citation omitted).
¶ 16 Involuntary manslaughter is the “unlawful and unintentional killing of
another human being, without malice, which proximately results from . . . an act or
omission constituting culpable negligence.” State v. Wallace, 309 N.C. 141, 145, 305
S.E.2d 548, 551 (1983) (emphasis added). Second-degree murder, on the other hand,
is “(1) the unlawful killing, (2) of another human being, (3) with malice, but (4)
without premeditation and deliberation.” State v. Banks, 191 N.C. App. 743, 751, 664
S.E.2d 355, 361 (2008) (emphasis added). To prove malice for second-degree murder,
by reckless driving, in particular, the State does not need to demonstrate Defendant
had a specific intent to kill, but it must show “that [the] defendant had the intent to
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perform the act of driving in such a reckless manner as reflects knowledge that injury
or death would likely result, thus evidencing depravity of mind.” State v. Miller, 142
N.C. App. 435, 441, 543 S.E.2d 201, 205 (2001) (citation omitted).
¶ 17 This Court has recognized that evidence of knowingly driving while impaired,
whether by alcohol or an illegal substance––particularly when combined with
evidence of reckless driving or behavior––may constitute sufficient evidence to prove
malice for a second-degree murder charge. See, e.g., State v. Grooms, 230 N.C. App.
56, 67-68, 748 S.E.2d 162, 169-70 (2013) (holding substantial evidence of malice when
the defendant knowingly consumed multiple impairing substances, swerved off the
road prior to the collision, failed to brake, failed to call 911, did not aid the two victims
he struck, and registered a 0.16 BAC at the time of the accident); State v. Davis, 197
N.C. App. 738, 743, 678 S.E.2d 385, 389 (2009), aff’d in part, rev’d in part, 364 N.C.
297, 698 S.E.2d 65 (2010) (holding sufficient evidence of malice where the defendant
consumed nine to twelve beers in a two-hour period, ran over a road sign, weaved side
to side until he ran off the road, crashed into the victim’s truck without attempting
to brake, and registered a 0.13 BAC).
¶ 18 Evidence introduced at trial, especially testimony by Mr. Jones, established
that Defendant drove after consuming alcohol and while he consumed alcohol over
the course of several hours and that he was impaired. At one point while driving,
Defendant engaged the emergency break, locking the back tires and causing the car
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to swerve. Defendant was driving at the time the vehicle veered off the road and
crashed. Before the crash, Defendant fell asleep at the wheel as the car approached
a bend in the road, drifted off the curve, suddenly woke, overcorrected, and crashed
the vehicle.
¶ 19 Defendant’s blood-alcohol level was 0.16 when police tested him after the
crash, and an expert witness testified that based on the time lapse before testing, it
could have been as high as 0.20 at the time of the crash. Similar to the defendants
in State v. Grooms, 230 N.C. App. 56, 748 S.E.2d 162 (2013), and State v. Davis, 197
N.C. App. 738, 678 S.E.2d 385 (2009), Defendant knowingly consumed alcohol before
and while driving beyond the point of impairment, drove recklessly, and had
knowledge of the potentially fatal consequences of his driving, particularly in light of
his history of impaired driving convictions.
¶ 20 Viewing the evidence in the light most favorable to the State, we hold the State
presented substantial evidence of Defendant’s malice, his “intent to perform the act
of driving in such a reckless manner as reflect[ed] knowledge that injury or death
would likely result,” Miller, 142 N.C. App. at 441, 543 S.E.2d at 205, and the charge
of second-degree murder was appropriately submitted to the jury for its
consideration. We hold the trial court did not err in denying Defendant’s motion to
dismiss this charge.
B. Order Denying Defendant’s Motion for Appropriate Relief
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¶ 21 Defendant claims that the trial court erred in denying Defendant’s motion for
appropriate relief because it struck a witness’s testimony in whole without first
issuing a material witness order compelling the witness to appear. This argument is
without merit.
¶ 22 Defendant contends that this appeal is subject to de novo review, while the
State argues abuse of discretion is the proper standard. The State is correct that, as
a general matter, a denial of a motion for appropriate relief is subject to review for
abuse of discretion. State v. Watson, 258 N.C. App. 347, 353-54, 812 S.E.2d 392, 397
(2018) (citing State v. Elliot, 360 N.C. 400, 419, 628 S.E.2d 735, 748 (2006)). However,
we review the trial court’s conclusions of law in an order denying a motion for
appropriate relief de novo. Id. (citing State v. Martin, 244 N.C. App. 727, 734, 781
S.E.2d 339, 344 (2016)). If the issue raised by a defendant’s challenge to the trial
court’s decision to deny his post-conviction motion is primarily legal rather than
factual in nature, this Court uses a de novo standard of review in evaluating a
defendant’s challenge to the trial court’s order. Id.¶ 23 At an evidentiary hearing, the defendant “bears the burden of proving by a
preponderance of the evidence every fact essential to support the motion.” State v.
Garner, 136 N.C. App. 1, 13, 523 S.E.2d 689, 698 (1990). The trial court may grant a
defendant a new trial on the basis of recanted testimony if: “(1) the trial court is
reasonably well satisfied that the testimony given by a material witness is false, and
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(2) there is a reasonable possibility that, had the false testimony not been admitted,
a different result would have been reached at the trial.” State v. Britt, 320 N.C. 705,
715, 360 S.E.2d 660, 665 (1987), superseded by statute on other grounds as stated in
State v. Defoe, 364 N.C. 29, 33, 691 S.E.2d 1, 4 (2010).
¶ 24 The Fifth Amendment of the United States Constitution and Article I, Section
23 of the North Carolina Constitution provide that a witness cannot be compelled to
give self-incriminating evidence. U.S. Const. amend. V; N.C. Const., art. I, § 23. The
Sixth Amendment of the United States Constitution and Article I, Section 23 of the
North Carolina Constitution provide that a criminal defendant has the right to
confront witnesses against him, which includes the right to test the truth of those
witnesses’ testimony by cross-examination. U.S. Const. amend. VI; N.C. Const., art.
I, § 23; see also State v. Ray, 336 N.C. 463, 468, 444 S.E.2d 918, 922 (1994). When
these rights conflict, “[t]he issue thus becomes whether [the] defendant’s right to
confront witnesses through cross-examination was unreasonably limited by [the
witness’s] assertion of the testimonial privilege.” Ray, 336 N.C. at 469, 444 S.E.2d at
922.
¶ 25 In State v. Ray, 336 N.C. 463, 444 S.E.2d 918 (1994), our Supreme Court
distinguished between cases where the “assertion of the privilege merely precludes
inquiry into collateral matters which bear only on the credibility of the witness and
those cases in which the assertion of the privilege prevents inquiry into matters about
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which the witness testified on direct examination.” Id. at 470, 444 S.E.2d at 923(quoting United States v. Cardillo, 316 F.2d 606, 611 (2d Cir. 1963)). If the witness
invokes the privilege in response to questions regarding collateral matters, there is
little danger of prejudice to a defendant, but if the questions pertain to details of the
direct examination, there may be a substantial danger of prejudice when a defendant
is unable to confront the witness. Id. In the latter instance, “the witness’s testimony
should be stricken in whole or in part.” Id. In other words, the essential question is
“whether [the] defendant’s inability to make the inquiry created a substantial danger
of prejudice by depriving him of the ability to test the truth of the witness’ direct
testimony.” Id. at 471, 444 S.E.2d at 924.
¶ 26 When the assertion of the privilege prevents inquiry into matters about which
the witness testified on direct examination, to alleviate the substantial danger of
prejudice, the trial court must either require the witness to answer the questions, or
strike all or part of the witness’s direct testimony after allowing the assertion of the
testimonial privilege. Id. at 472, 444 S.E.2d at 924.
¶ 27 Defendant argues the trial court was not authorized to either compel the
witness to answer questions or to strike the testimony after allowing the assertion of
the privilege. Instead, Defendant contends, the trial court was required to first
compel the witness to testify on cross-examination and only then, if the witness
continued to refuse to answer questions, could the trial court strike the prior
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testimony. The trial court did not compel Mr. Carr to testify, and Mr. Carr never
returned to hearings to learn he had waived his privilege.
¶ 28 The trial court determined that Mr. Carr was a material witness at
Defendant’s trial. Mr. Carr voluntarily testified that his trial testimony was false
without asserting his Fifth Amendment privilege. After it became clear Mr. Carr had
not consulted with an attorney regarding this testimony, the trial court set a second
hearing date to allow Mr. Carr to seek counsel. At the second hearing, Mr. Carr
asserted his Fifth Amendment privilege on cross-examination. Mr. Carr failed to
return to testify for the third hearing date. The trial court then found that Mr. Carr
had waived his privilege by testifying during the first hearing and that his failure to
reappear and undergo cross-examination substantially prejudiced the State’s ability
to present evidence and testimony in support of its position against Defendant’s
motion. The trial court struck Mr. Carr’s testimony that his trial testimony was false
in its entirety.
¶ 29 We are bound by our Supreme Court’s decision in Ray, which held that the
trial court should either require the witness to answer the questions, or strike all or
part of the witness’s direct testimony after allowing the assertion of the testimonial
privilege. Ray, 336 N.C. at 472, 444 S.E.2d at 924.
¶ 30 “[W]hether all or a part of the testimony should be stricken, must depend upon
the discretion of the trial judge exercised in the light of the particular circumstances.”
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Cardillo, 316 F.2d at 613. Defendant has not suggested the trial court should have
only partially stricken Mr. Carr’s testimony or challenged the trial court’s exercise of
its discretion in this regard, so he has abandoned that argument. See N.C. R. App.
P. 28(a) (2022) (“The scope of review on appeal is limited to issues so presented in the
several briefs. Issues not presented and discussed in a party’s brief are deemed
abandoned.”).
¶ 31 Other than Mr. Carr’s testimony, Defendant presented no evidence to support
his motion for appropriate relief. Because Defendant failed to meet his burden of
proof, Garner, 136 N.C. App. at 13, 523 S.E.2d at 698, we hold the trial court properly
denied his motion for appropriate relief and affirm the trial court’s order.
III. CONCLUSION
¶ 32 For the reasons set forth above, we hold Defendant’s trial was free from error,
and we affirm the trial court’s denial of Defendant’s motion for appropriate relief.
NO ERROR; AFFIRMED.
Judges ARROWOOD and HAMPSON concur.