Opinion
No. COA10-776
Filed 15 February 2011 This case not for publication
Appeal by defendant from judgment entered 21 May 2009 by Judge Thomas H. Lock in Johnston County Superior Court. Heard in the Court of Appeals 26 January 2011.
Attorney General Roy Cooper, by Assistant Attorney General William P. Hart, Jr., for the State. Glover Petersen, P.A., by Ann B. Petersen, for defendant-appellant.
Johnston County No. 08 CRS 53123.
Hipolito Zamora Hernandez ("Hernandez") appeals from a judgment entered upon a jury verdict finding him guilty of second degree murder. We find no error.
I. Background
At approximately 6:00 p.m. on 13 April 2008, seven-year-old "Matthew" was walking to a friend's house with his cousin. As Matthew walked along the grass near the road, a silver Camaro approached at a high rate of speed. The Camaro swerved off the road, corrected itself, and then swerved off the road a second time, striking Matthew. Matthew was thrown into the air by the impact. Matthew suffered numerous injuries as a result of being struck, including a brain injury which resulted in his death.
A pseudonym.
After the Camaro struck Matthew, it continued down the road until it swerved into a ditch. At that point, the driver, who was later identified as defendant, exited the vehicle and fled the scene on foot. Law enforcement officials were able to apprehend defendant about one hour later.
Defendant was then taken to the Johnston County Jail by Trooper David Finch ("Trooper Finch"). At the jail, defendant gave his name as "Pollo Hernandez Rodriguez," and laughed when Trooper Finch asked him about the name. Trooper Dwight Green ("Trooper Green") then administered an intoxilyzer test. The test indicated that defendant had a blood alcohol content of 0.21 at 8:50 p.m., almost three hours after he had struck Matthew. Defendant was laughing and singing during the intoxilyzer test and while Trooper Green read defendant his Miranda rights.
Defendant was subsequently indicted for second degree murder, driving while impaired ("DWI"), and reckless driving to endanger. Beginning 11 May 2009, defendant was tried by a jury in Johnston County Superior Court. During the trial, the State presented evidence that defendant had been arrested on suspicion of DWI on five occasions prior to 13 April 2008. However, the State had voluntarily dismissed two of these cases when the officer did not appear in court. In the third case, the State dismissed the DWI charge and defendant pled guilty to reckless driving. In the fourth case, defendant provided law enforcement with a false name, and the actual person with that name, rather than defendant, was charged with the DWI. That charge was dismissed and then re-filed after defendant was arrested in the instant case. The re-filed charge and a fifth DWI charge were still pending at the time of defendant's trial.
After all the evidence was presented, the parties made their respective closing arguments. During the State's closing argument, it referred to defendant as "the poster child for malice," citing a series of appellate cases which related to the second degree murder element of malice based on a defendant's prior driving record. Defendant objected to the State's argument, but this objection was overruled by the trial court.
On 21 May 2009, the jury returned verdicts finding defendant guilty of second degree murder and DWI. The jury also returned a verdict of not guilty to the reckless driving charge. For the second degree murder conviction, the trial court sentenced defendant to a minimum of 196 months to a maximum of 245 months in the North Carolina Department of Correction. The trial court also arrested judgment on the DWI conviction. Defendant appeals.
II. Defendant's Prior Arrests
Defendant argues that the trial court erred by allowing the State to offer evidence of (1) two DWI charges which were dismissed and (2) a DWI charge which was not pending at the time of defendant's arrest. Defendant contends that evidence of these arrests were irrelevant to defendant's state of mind at the time he struck Matthew. We disagree.
"All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of North Carolina, by Act of Congress, by Act of the General Assembly or by these rules. Evidence which is not relevant is not admissible." N.C. Gen. Stat. § 8C-1, Rule 402 (2009). Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2009).
Evidence 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) (2009).
Our courts have repeatedly held that evidence of prior driving records is relevant to show that "defendant was aware that his conduct leading up to the collision at issue here was reckless and inherently dangerous to human life." State v. Jones, 353 N.C. 159, 173, 538 S.E.2d 917, 928 (2000). See, e.g., State v. Rich, 351 N.C. 386, 527 S.E.2d 299 (2000); State v. Miller, 142 N.C. App. 435, 543 S.E.2d 201 (2001); State v. McAllister, 138 N.C. App. 252, 530 S.E.2d 859 (2000); State v. Grice, 131 N.C. App. 48, 505 S.E.2d 166 (1998).
Initially, we note that while the State presented evidence that defendant was arrested for DWI on five prior occasions, defendant challenges the admission of only three of the arrests. First, defendant challenges evidence of his arrests on 8 August 2004 and 6 February 2005. Both of those arrests led to defendant being charged with DWI. However, these charges were dismissed when the charging officer failed to appear on the court date. Defendant contends that these dismissals made evidence of his arrests irrelevant.
Our Supreme Court has held that, as a matter of law, the State may not present evidence of a prior charge against a defendant which led to an acquittal, because "the probative value of [such] evidence is substantially outweighed by the danger of unfair prejudice." State v. Scott, 331 N.C. 39, 42, 413 S.E.2d 787, 788-89 (1992). However, in State v. Lynch, the Court distinguished Scott and held that where charges are dismissed but the defendant has not been acquitted, the State may present evidence of the charges pursuant to Rule 404(b). 337 N.C. 415, 419, 445 S.E.2d 581, 582 (1994); see also State v. Campbell, 142 N.C. App. 145, 149, 541 S.E.2d 803, 805 (2001) (allowing 404(b) evidence of a prior bad act where the charges against the defendant had been voluntarily dismissed). Thus, the fact that the State voluntarily dismissed the charges against defendant for these two arrests makes the evidence neither irrelevant nor prejudicial, and the trial court did not err by admitting this evidence.
Finally, defendant challenges evidence of his DWI arrest on 25 August 2007. Defendant fully admits in his brief that he gave law enforcement a false name during this arrest and this deceit led to the State charging the wrong individual with DWI. Although that charge was dismissed, it was re-filed after the arresting officer recognized defendant when he was arrested in the instant case. In State v. Byers, this Court held that "the evidence of defendant's pending driving while impaired charge is evidence of malice to support a second degree murder charge[,]" and "[t]he trial court properly admitted such evidence. . . ." 105 N.C. App. 377, 383, 413 S.E.2d 586, 589 (1992). It is true, as defendant states in his brief, that unlike the instant case, the charge in Byers was pending at the time of the accident in that case. However, in the instant case, the only reason that defendant did not have a pending DWI charge as a result of his 25 August 2007 arrest when he killed Matthew on 13 April 2008 was that he lied to the arresting officer about his identity. The fact that defendant was able to deceive law enforcement long enough to delay charges being filed against him until after he hit Matthew does not entitle him to relief. Defendant was arrested prior to when he hit Matthew, and that fact is relevant to establish his state of mind on 13 April 2008, as it demonstrated that defendant was aware that his conduct leading up to the collision was reckless and inherently dangerous to human life. This assignment of error is overruled.
III. Closing Arguments
Defendant argues that the trial court erred by allowing the State, over objection, to argue what defendant contends are misstatements of the law regarding malice. We disagree.
The standard of review for improper closing arguments that provoke timely objection from opposing counsel is whether the trial court abused its discretion by failing to sustain the objection. In order to assess whether a trial court has abused its discretion when deciding a particular matter, this Court must determine if the ruling could not have been the result of a reasoned decision.
State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002) (internal quotations and citations omitted). "[C]ounsel are given wide latitude in arguments to the jury and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence." Id. at 128-29, 558 S.E.2d at 105. "N.C.G.S. § 7A-97 (formerly N.C.G.S. § 84-14) grants counsel the right to argue the law to the jury, which includes the authority to read and comment on reported cases and statutes that are relevant and refer to authoritative rules of law." State v. Bishop, 343 N.C. 518, 555, 472 S.E.2d 842, 862 (1996). It is "permissible for counsel in argument to state his view of the law applicable to the case on trial, to read published decisions of this Court in support thereof, and to recount some of the facts on which those other decisions were based." State v. Laws, 325 N.C. 81, 115-16, 381 S.E.2d 609, 630 (1989) (citing Wilcox v. Motors Co., 269 N.C. 473, 479, 153 S.E.2d 76, 81 (1967)), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990).
In the instant case, the State made the following closing argument relating to the element of malice:
MR. JACKSON: Now we get to malice. So have we proven that he was driving? Yes. Have we proven that he was driving while impaired? Yes. We've even gone beyond that. It's not just driving while impaired. It's driving knee-walking drunk and that leads us to the last little piece of the puzzling [sic], ladies and gentlemen. What makes this murder? What makes this murder? It's malice. And His Honor is going to instruct you on malice. And that is why you heard the evidence of the defendant's prior acts of driving while impaired because it all relates to this. Case law after case law after case law, that's what malice is. If you keep — prior incidences where they have driven while impaired, State v. Godwin, State v. Gray, State v. Grice —
MR. PLEASANT: Objection.
THE COURT: Overruled.
MR. JACKSON: Thomas, Lee, Miller. That's what it is. He's the poster child for malice.
Defendant contends that the statement "that's what malice is" misstated the law by insinuating that prior instances of driving while impaired constituted malice as a matter of law. However, "[o]n appeal, particular prosecutorial arguments are not viewed in an isolated vacuum." State v. Moseley, 338 N.C. 1, 50, 449 S.E.2d 412, 442 (1994). "Fair consideration must be given to the context in which the remarks were made and to the overall factual circumstances to which they referred." Id. (internal quotations and citation omitted). After defendant's objection was overruled, the State's argument continued as followed:
Time and time and time and time again he made a conscience [sic] and deliberate decision to engage in an inherently dangerous activity over and over and over again. He did it intentionally, recklessly so as to manifest a mind without regard for human life and social duty, that's what I talked to you about in my opening, and deliberately bent on mischief. That every time he gets in — because remember every time he's stopped, he's all over the road. It's a wonder that somebody wasn't killed before. It really is.
Malice arises when an act which is inherently dangerous to human life is intentionally done so recklessly and wantonly as to as to [sic] manifest a mind utterly without regard to human life and social duty and deliberately bent on mischief. When [Matthew] was lying there broken and bleeding and dying, he was laughing and singing. It was funny. He doesn't care about the law. He has — he's showed [sic] a total and complete disregard for human life. Not just by driving the vehicle time and time and time again drunk, he's laughing and singing and giving a false name saying he's chicken. While this family is still grieving and will be probably forever. It's funny to him.
Ladies and gentlemen, this defendant over and over and over again made conscious and deliberate decisions to engage in an inherently dangerous activity, drunk driving. Made a conscious and deliberate decision to ignore any responsibility he may have felt or any social duty to those who might be on the road with him; ignored any responsibility that he may have had for the sanctity of human life. Every time he drove drunk — 22, 22, 21,24. On good days, 17 and 12. Please.
Ladies and gentlemen, this defendant is the poster child for malice. This defendant — the State has proven over and over and over again, we have gone beyond our duty, beyond our responsibility and have proven every element, every element in this case, and soon the responsibility is going to shift.
Our courts have recognized three types of malice; the type most applicable to the instant case is "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. . . ." State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982) (citations omitted). As previously noted, our courts have held repeatedly that evidence of a prior driving record is relevant to show that "defendant was aware that his conduct leading up to the collision at issue here was reckless and inherently dangerous to human life." Jones, 353 N.C. at 173, 538 S.E.2d at 928. The cases cited by the State in their closing argument each adopted this proposition and permitted a defendant's prior driving record to be used as evidence of malice.
Viewing the portion of the State's closing argument on malice in its entirety, the brief isolated statement "that's what malice is" was not improper, but rather an argument that a reasonable inference of defendant's malice could be drawn from the evidence. The State clearly cited multiple different factors that it argued showed malice, including defendant's demeanor after his arrest and his failure to provide law enforcement with his name. The State did not limit its discussion of malice to defendant's prior driving record, which indicates that the State was not attempting to argue that a prior driving record could, on its own, prove malice as a matter of law. Instead, the State was emphasizing that defendant had been previously arrested on numerous occasions because it provided particularly strong evidence of defendant's mental state at the time he struck Matthew. In addition, the State, a few sentences further into its argument, correctly defined malice for the jury. Thus, the trial court did not abuse its discretion when it overruled defendant's objection.
Moreover, even assuming, arguendo, that the State's closing argument was improper, defendant cannot show that he would have been prejudiced by the argument. "In order to be entitled to reversal based upon closing remarks, the defendant must establish both that the closing arguments were improper and that they prejudiced him before the jury." State v. Peterson, 179 N.C. App. 437, 466, 634 S.E.2d 594, 615 (2006). In the instant case, the trial court instructed the jury on the appropriate consideration of defendant's prior arrests and convictions, as follows:
Evidence has been received intending to show that the defendant has previously committed offenses of driving while subject to an impairing substance and of driving with a revoked driver's license, and that he has previously been convicted of a charge of reckless driving. This evidence was received solely for the purposes of showing the identity of the person who committed the crimes charged in this case, if they were committed, and that there existed in the mind of the defendant at the time he allegedly committed the crimes charged in this case a particular mental state, specifically that of malice as I will later define that term for you. If you believe this evidence you may consider it, but only for the limited purposes for which it was received.
Later, the trial court properly instructed the jury on the definition of malice.
"This Court presumes that the jury follows the trial court's instructions." State v. Hoffman, 349 N.C. 167, 185, 505 S.E.2d 80, 91 (1998). Since the trial court correctly instructed the jury that defendant's previous arrests could be considered as evidence of his state of mind, defendant cannot show that he was prejudiced by the State's closing argument. This assignment of error is overruled.
IV. Conclusion
The record on appeal includes additional assignments of error not addressed by defendant in his brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6) (2008), we deem these assignments of error abandoned and need not address them. The trial court correctly allowed evidence of defendant's previous DWI arrests, as this evidence was relevant to establish defendant's state of mind at the time he struck and killed Matthew. In addition, the trial court did not abuse its discretion by overruling defendant's objection to the State's closing argument. Defendant received a fair trial, free from error.
No error.
Judges STROUD and HUNTER, Jr., Robert N. concur.
Report per Rule 30(e).