Opinion
No. COA11–1327.
2012-05-1
STATE of North Carolina v. Lucas Martin RASH.
Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant appellant.
Appeal by defendant from judgments entered 5 July 2011 by Judge Richard D. Boner in Cleveland County Superior Court. Heard in the Court of Appeals 20 March 2012. Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for defendant appellant.
McCULLOUGH, Judge.
On 5 July 2011, Lucas Martin Rash (“defendant”) was convicted of one count of felony hit-and-run with serious bodily injury or death, two counts of felony death by vehicle, two counts of second-degree murder, and one count of assault with a deadly weapon inflicting serious injury. On appeal, defendant argues he is entitled to a new trial on the two second-degree murder charges because the trial court erred in (1) permitting unnecessarily cumulative and nonresponsive testimony that was unfairly prejudicial and (2) permitting the State to introduce documentary evidence without requiring the State to supplement such documentary evidence pursuant to Rule 106 of the Rules of Evidence. We find no error.
I. Factual Background
On the evening of 25 March 2008, Curtis Jordan (“Jordan”); his girlfriend, Beverly Jackson (“Jackson”); Jackson's mother, Anita Powell (“Powell”); and Jackson's nine-year-old son, Joshua Jackson (“Joshua”), were crossing Broad Street in Shelby, North Carolina, when a car came “from out of nowhere” and struck Jordan, Jackson, and Joshua. Multiple residents of the neighborhood described hearing a car “zoom” along Broad Street “at a high rate of speed” and then hearing a loud crash that “sounded like an explosion.” The car did not stop, but continued “on up the street .” Jeffery Grant (“Grant”) was driving on Broad Street at the time and encountered a dark green Chrysler vehicle with a busted windshield and broken front light being driven by a white male in his twenties. Grant did not see anyone else in the Chrysler vehicle.
Residents who heard the collision called emergency services. At the scene, Jackson was placed in a full spinal body shell by rescue personnel and suffered a punctured lung, a broken arm, and several abrasions down the left side of her body. Both Jordan and Joshua died due to blunt force trauma as a result of the collision and were declared dead on arrival upon reaching the hospital.
Earlier that afternoon, defendant and his girlfriend, Ashley Blanton (“Blanton”), travelled to Blanton's mother's house in defendant's vehicle, a green Chrysler. Blanton's sister, Tina Sparks (“Sparks”), lived across the street and observed the two pull up to the house. At that time, Sparks observed no damage to defendant's vehicle. Sparks observed that shortly after entering Blanton's mother's home, defendant walked outside the house, retrieved something from his trunk, entered his vehicle, and drove away. After seeing defendant drive off the road multiple times, Sparks called defendant's probation officer and “left a message on the answering machine telling him that [defendant] was intoxicated.”
Sometime later, defendant and Blanton travelled to Blanton's cousin's house, where they consumed “a pretty good many” liquor drinks and ingested several Xanax pills. Blanton noted that the combination of the liquor and Xanax made her feel “weird” and “in a different world” and that she did not feel like the same person. She also noted defendant “wasn't in his right state of mind” and “wasn't the same person.” Blanton noted defendant “really didn't know exactly where he was at the time,” “couldn't talk straight,” and “couldn't barely walk right.” Later that evening, after it became dark outside, defendant left the party by himself in his green Chrysler vehicle. At that time, the only damage to defendant's vehicle was a dent on the right rear side of the vehicle.
Lisa Johnson (“Johnson”) was working at Gasland, a nearby gas station, on the evening of 25 March 2008. Johnson recalled seeing defendant two separate times that evening. On the first occasion, defendant entered the store, approached the counter, and asked Johnson for a “glass rose.” Johnson observed defendant's eyes were “slightly dilated” and that his speech was slurred. Johnson informed defendant that the store did not sell the item, upon which defendant “got agitated,” went to his vehicle, and drove off. Johnson did not observe any damage to defendant's vehicle at that time.
Shortly after leaving the gas station, defendant encountered a friend, Richardo Thurman (“Thurman”), walking along the street. Thurman attempted to ask defendant a question, and defendant told Thurman to get into the vehicle. Thurman noticed defendant's windshield “was messed up” and asked defendant what had happened. Thurman had seen defendant driving the vehicle earlier that evening and had noticed no damage to defendant's vehicle. Defendant responded that a “truck backed into his car.” Thurman noticed that defendant's eyes were “wider than normal,” that his movements were “[a] little jittery,” that his driving was “shaky,” that “he swerved a little bit over the middle lane,” and that he “ran a stop sign.”
Defendant, with Thurman in the front passenger seat, then returned to Gasland. Johnson again observed defendant's vehicle and noticed this time that defendant's windshield was busted. Defendant entered the store to use the ATM machine then left the store and returned to his vehicle.
As defendant attempted to drive out of Gasland's parking lot, Officer Joseph Patrick (“Officer Patrick”) of the Shelby Police Department pulled into the parking lot and “boxed [defendant] in at the gas pump.” Officer Patrick had been canvassing the vicinity of the accident looking for a “dark in color four-door Chrysler vehicle.” Officer Patrick approached defendant's vehicle, which matched the description reported over the police dispatch, and observed the vehicle “was heavily damaged in the front,” including a busted windshield, damage to the front right quarter panel, damage to a headlight, a missing side-view mirror, and damage to the hood. Officer Patrick asked defendant for his driver's license and to step out of the vehicle.
While speaking with defendant, Officer Patrick noted defendant's speech “was slowed and slurred” and that defendant “seemed to be impaired.” Defendant submitted to an “alcosensor” test, and the results showed a breath alcohol concentration of 0.06. Officer Josh Hendrick (“Officer Hendrick”) also arrived at Gasland and spoke with defendant. He noted defendant's speech was “very slow” and “broken up” and that defendant's eyes were red and glassy. After smelling a mild odor of alcohol about defendant, Officer Hendrick formed the opinion that defendant was impaired.
Defendant asked Officer Hendrick what was going on, and Officer Hendrick responded that defendant was suspected of a hit-and-run on Broad Street in which two people were killed and one person was seriously injured. Defendant denied being on Broad Street and denied running anyone over. Officer Hendrick then stated to defendant that the damage to his vehicle was not consistent with a collision with an animal, to which defendant responded that if he had hit someone, the person was wearing black and he had not seen the person.
Officer Patrick placed defendant in his police vehicle and transported him to Cleveland Regional Hospital, where defendant consented to having his blood drawn. When analysts at the State Bureau of Investigation later tested defendant's blood sample, he was determined to have a blood alcohol concentration of 0.06. Defendant's blood sample also tested positive for the presence of Xanax, hydrocodone, marijuana, and benzoylecgonine, a metabolite of cocaine. At trial, Paul Glover (“Glover”), an expert in the field of detection of alcohol and drugs in the human body and the effects of alcohol and drugs on the human body, testified that a retrograde extrapolation of defendant's blood sample yielded a blood alcohol concentration of 0.08 at the time of the accident. Glover further testified that the combination of the particular drugs and alcohol found in defendant's blood sample “would severely impact” an individual's “ability to safely operate a motor vehicle.”
After the blood draw at the hospital, Officer Patrick transported defendant to the Shelby Police Department, where Sergeant Scott Champion (“Sergeant Champion”) interviewed defendant. Sergeant Champion first asked defendant how he was doing, and defendant responded that he “was doing okay until three kids jumped out in front of [his] car.” Defendant then made the following voluntary admission:
I would just like to say that I was driving down the road, and all of a sudden three—I'm pretty sure they were black kids dressed in all black—come running across the road, and I didn't even—I mean I know this because the cops told me. I didn't even see them. I was going about 35, and they were running right across the road, and I mean but that—I will tell you that much. Had I known that I'd hit anybody, I would have turned around and picked them up and took them to the hospital.
Officer Patrick then took defendant to the Cleveland County Law Enforcement Center to process him for driving while impaired and to have defendant perform field sobriety tests. Defendant performed poorly on those tests.
While defendant was being fingerprinted, Officer Brandon Carpenter (“Officer Carpenter”) served warrants on defendant for two counts of second-degree murder and one count of assault with a deadly weapon inflicting serious injury. Defendant responded to Officer Carpenter that “he didn't understand why the charge was being bumped up to second degree murder.” Defendant stated to Officer Carpenter that he had been driving on a street with no streetlights, that he felt like he had hit something, that he stopped and looked in his rearview mirror, and that only after not seeing anything did he drive away. Defendant stated “he thought he could have hit a squirrel or a mailbox or something.” Forensic analysis of debris from the accident scene, clothing from Jordan and Joshua, and paint chips and broken pieces from defendant's vehicle established that the vehicle was involved in the accident and had struck Jordan and Joshua.
Later, defendant met with Kimberly Gettys (“Gettys”), a Cleveland County probation officer. Gettys discussed with defendant the conditions of his probation as well as his past drug use. After Gettys verified defendant's current address and conducted a criminal record check, defendant told Gettys “about the night of the incident” on 25 March 2008 and stated “he could not remember what had happened because he was under the influence of alcohol and pills at the time.” Defendant had previously been arrested in 2006 for driving after consuming alcohol under the age of 21 and was convicted for provisional DWI at that time.
On 9 May 2011, defendant was indicted for one count of felony hit-and-run, two counts of felony death by vehicle, two counts of second-degree murder, and one count of assault with a deadly weapon inflicting serious bodily injury. Defendant was tried by jury on all counts beginning 27 June 2011.
On 5 July 2011, a jury found defendant guilty of all charges. The trial court arrested judgment on the two counts of felony death by vehicle and sentenced defendant as a prior record level IV offender to consecutive sentences of 251 to 311 months' imprisonment for each of the two second-degree murder convictions followed by a consolidated sentence of 37 to 54 months' imprisonment for the assault with a deadly weapon inflicting serious injury and felony hit-and-run convictions. Defendant gave oral notice of appeal in open court at the conclusion of the proceedings.
II. Admission of Testimony
Defendant first contends the trial court erred in overruling his objection to Gettys' testimony under Rule 403 of the Rules of Evidence. Defendant further contends the trial court committed plain error in not striking irrelevant, nonresponsive, and cumulative portions of Gettys' testimony. Specifically, defendant challenges the following eight sentences of Gettys' testimony:
I met with [defendant] when he was first placed on probation when he was in my office for his first office appointment. And at that time we discussed his conditions of his probation, drug use that he had had that he admitted to. We did a criminal record check. I verified his address and if he was going to school and things like that.
And he told me at that time we talked about the night of the incident. He was on probation at that time. I was not his probation officer. And he told me that he could not remember what had happened because he was under the influence of alcohol and pills at the time.
Defendant argues this evidence was prejudicial because it presented an undue reflection on defendant's criminal record, tending to show defendant was a recidivist and a substance abuser, and unfairly weighted the scales in favor of the jury's finding defendant's malice for the two second-degree murder charges.
Pursuant to Rule 403 of our Rules of Evidence, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice....” N.C. Gen.Stat. § 8C–1, Rule 403 (2011). “The term ‘unfair prejudice’ means ‘an undue tendency to suggest decision on an improper basis [.]’ “ State v. Summers, 177 N.C.App. 691, 697, 629 S.E.2d 902, 907 (2006) (alteration in original) (quoting State v. DeLeonardo, 315 N.C. 762, 772, 340 S.E.2d 350, 357 (1986)).
Whether to exclude relevant evidence under Rule 403 is a determination left to “the sound discretion of the trial court, and the trial court's ruling should not be overturned on appeal unless the ruling was ‘manifestly unsupported by reason or [was] so arbitrary that it could not have been the result of a reasoned decision.’ “
State v. Bethea, 167 N.C.App. 215, 224, 605 S.E.2d 173, 180 (2004) (alteration in original) (quoting State v. Hyde, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988))).
To the extent defendant did not timely object to specific evidence introduced at trial, this Court may review the admission of the evidence for plain error.
In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C.R.App. P. 10(a)(4) (2012). 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) (internal quotation marks and citations 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).
When the State called Gettys to testify in the present case, defense counsel objected to her testifying about the statement defendant had made to her regarding the events of 25 March 2008. Defense counsel was concerned that Gettys' testimony would elicit information “about the probation that the defendant may have been on at some time during the course of his life.” Defense counsel argued to the trial court that such “undue reflection on the record of the defendant outweigh [ed] any beneficial evidence that might come from [Gettys'] testimony.” The trial court overruled defendant's objection, noting Gettys could properly testify as to her relationship with defendant and the conversation they had regarding the events of 25 March 2008, but Gettys could not testify as to any of the circumstances regarding defendant's prior probation. Thus, the trial court allowed the State to offer Gettys' testimony for the limited purpose of showing defendant's mental state at the time of the incident for which he was on trial. By prohibiting any testimony concerning the details of defendant's prior probation, the trial court eliminated the concern that the testimony would have an undue tendency to suggest a jury decision on an improper basis, namely the prior record of defendant. Therefore, the trial court did not abuse its discretion in allowing Gettys' testimony over defendant's Rule 403 objection.
As to the eight sentences of Gettys' actual testimony, defendant first challenges sentences one, six, and seven, which note that Gettys had occasion to meet with defendant because he was on probation. Defendant argues this testimony unduly highlights for the jury that he had committed a prior offense for which he was on probation, thereby indicating he was a recidivist. Defendant argues these three sentences, coupled with sentence three reflecting the fact that Gettys conducted a criminal record check on defendant, unfairly invited the jury to conclude that defendant was a bad person and therefore had the requisite malice for a second-degree murder conviction.
However, Gettys' testimony in no way reflects the nature of the offense for which defendant was on probation nor highlights the fact that defendant had committed a prior criminal offense. Gettys simply stated defendant was on probation at the time she met with him, explaining to the jury the reason why Gettys had occasion to meet with defendant. As the trial court pointed out in ruling on defendant's objection to Gettys' testimony, Sparks had testified earlier, prior to Gettys' testimony, that she had contacted defendant's probation officer when she observed defendant driving in a reckless manner on the afternoon of the incident. Sparks testified that she had contacted defendant's probation officer “because [defendant] was on his probation [.]” Defendant did not object to Sparks' testimony. Thus, the fact that defendant had been on probation was already before the jury prior to Gettys' testimony. In addition, although Gettys stated she conducted a criminal record check, she made no mention of the results of that check. The mere fact that a probation officer conducted a criminal record check on defendant in no way indicates to the jury that defendant was a “bad person.”
Furthermore, defendant challenges sentence two, in which Gettys stated defendant had admitted to prior drug use. Defendant argues this testimony indicated to the jury that he was a substance abuser. Again, however, Gettys did not testify that defendant repeatedly used drugs, that he used drugs on multiple occasions, or that he had “abused” drugs. Gettys simply stated defendant had admitted to “drug use” without providing any details. We fail to see how such testimony painted defendant as a substance abuser to the jury. Moreover, such testimony does not invite the jury to “reason impermissibly that ... if [defendant] had previously abused substances, he was probably abusing substances on 25 March 2008,” given that multiple other witnesses, especially Blanton, testified that defendant was, in fact, using alcohol and drugs on the night in question.
Defendant also challenges sentence eight of Gettys' testimony, that “[defendant] told [her] that he could not remember what had happened because he was under the influence of alcohol and pills at the time.” Defendant argues that, although the testimony was relevant to establishing malice, the testimony was cumulative of other testimony given by other witnesses.
Cumulative evidence is additional evidence of the same kind bearing on the same point. Thus when testimony has been given by one or more witnesses ... and other witnesses are produced who testify to the same set of facts and to no new fact, the evidence given by such witnesses is merely cumulative.
Maloney v. Hospital Systems, 45 N.C.App. 172, 180, 262 S.E.2d 680, 685 (1980) (omission in original) (internal quotation marks and citation omitted). Here, although testimony by other witnesses indicated their perception of defendant's level of intoxication on the date of the accident, Gettys' testimony presented defendant's own statement that he was under the influence of alcohol and drugs at the time of the accident on 25 March 2008. Thus, we cannot say the introduction of Gettys' testimony constituted the “needless presentation of cumulative evidence.” N.C. Gen.Stat. § 8C–1, Rule 403 (2011).
In sum, the eight sentences of Gettys' testimony now challenged by defendant on appeal were properly limited to the meeting she had with defendant and the statement he had made to her concerning the events of 25 March 2008. Gettys' testimony was properly admissible for the purpose of proving defendant's mental state and was not unfairly prejudicial to defendant or needlessly cumulative under Rule 403 of the Rules of Evidence. Thus, the trial court committed no error, much less plain error, in allowing Gettys' testimony into evidence in the present case.
Moreover, had the trial court excluded the challenged portions of Gettys' testimony, defendant has failed to show how the outcome of the trial would have been different. Defendant contends only that Gettys' testimony unfairly weighted the scales in favor of the jury's finding the requisite malice for the two second-degree murder convictions. “[T]o prove malice in second-degree murder prosecutions involving automobile accidents, ‘it [is] necessary for the State to prove only that defendant had the intent to 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.’ “ Bethea, 167 N.C.App. at 218–19, 605 S.E.2d at 177 (second alteration in original) (quoting State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 304 (2000)). “ ‘[W]hat constitutes proof of malice will vary depending on the factual circumstances in each case.’ “ Id. at 219,605 S.E.2d at 177 (quoting State v. McBride, 109 N.C.App. 64, 67, 425 S.E.2d 731, 733 (1993)). Nonetheless, “driving under the influence is certainly evidence sufficient to prove malice.” Id.
Here, aside from Gettys' testimony, the State presented substantial witness testimony as to defendant's level of intoxication at the time of the accident and the reckless manner in which he was driving. The State also presented the blood draw report showing the combination of alcohol and drugs present in defendant's blood at the time of the accident and defendant's varying statements to police officers regarding the damage to his car. Thus, the State presented overwhelming evidence of defendant's malice. Defendant's arguments on this issue are therefore without merit.
III. Introduction of Documentary Evidence
Defendant next contends the trial court erred in allowing the State to introduce documentary evidence of defendant's prior conviction for provisional DWI without requiring the State, pursuant to Rule 106 of the Rules of Evidence, to supplement its documentary evidence to show an additional charge for driving while impaired had been dismissed.
Under Rule 106 of our Rules of Evidence, known as the rule of completeness, “[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” N.C. Gen.Stat. § 8C–1, Rule 106 (2011). “Under Rule 106, a defendant bears the burden of contemporaneously seeking to introduce the excluded parts of the statement and demonstrating that the excluded parts are either explanatory or relevant.” State v. Hall, 194 N.C.App. 42, 50, 669 S.E.2d 30, 36 (2008). “A trial court's decision in determining whether an excluded portion ought to be admitted under Rule 106 will not be reversed on appeal in the absence of a showing of an abuse of discretion.” Id.
In the present case, the State presented the testimony of Officer Zaludek for the limited purpose of showing malice on the part of defendant at the time of the accident on 25 March 2008. On direct examination, Officer Zaludek testified that he had previously stopped defendant for speeding on 25 April 2006. Officer Zaludek testified that upon stopping defendant, he noticed defendant had a strong odor of alcohol on his breath and person, red glassy eyes, and an open container of alcohol in his vehicle. Officer Zaludek testified that after having defendant perform field sobriety tests, he placed defendant under arrest for “provisional DWI,” which is “what somebody is charged with if they are less than 21 years of age and they've been drinking.” The State did not seek to elicit any other charges that Officer Zaludek may have brought against defendant. Thereafter, on cross-examination, defense counsel proceeded to ask Officer Zaludek to distinguish between provisional DWI and driving while impaired. The following exchange occurred during cross-examination:
Q. Provisional DWI is not driving while impaired, is it?
A. It is driving after consuming any type of alcohol.
Q. Any alcohol whatsoever?
A. Yes, sir.
Q. It is not driving while impaired?
A. No, sir. It is operating a vehicle after the defendant had remaining in his system any alcohol whatsoever and the person being less than 21 years of age.
Q. And he was not charged with driving while impaired?
A. He was also charged with impaired driving, yes, sir.
Q. Who arrested him on that?
A. I did. I swore out the warrants for driving while impaired, provisional licensee, and reckless driving.
Q. And this was in 2006?
A. Yes, sir. It was April 25, 2006.
(Emphasis added.)
Following Officer Zaludek's testimony, the State offered into evidence certified copies of the judgment showing defendant's conviction for the provisional DWI charge and the accompanying Intoxilyzer report showing defendant's blood alcohol concentration to have been 0.07. Defense counsel objected to the admission of the Intoxilyzer report and requested the trial court to also allow the admission of the citation of the driving while impaired charge showing that the charge had been dismissed. Defense counsel argued to the trial court that, because the evidence showed defendant had been charged with driving while impaired, the jury should be informed that the charge had been dismissed. The trial court acknowledged that the testimony regarding defendant's charge for driving while impaired came out “unexpectedly,” but noted that it did not believe the jury was misled by Officer Zaludek's testimony into thinking defendant was convicted of that charge or that the State's documents would mislead the jury into thinking that driving while impaired was the charge for which defendant was convicted. Accordingly, the trial court allowed the State to proceed with introducing the two certified documents without requiring the State to also introduce the disposition of the driving while impaired charge.
We fail to see how the trial court's reasoning here constitutes an abuse of discretion. The State sought to introduce documentary evidence of the fact that defendant had a prior conviction for provisional DWI for purposes of proving defendant's malice. North Carolina's Rule 106 is identical to Rule 106 of the Federal Rules of Evidence, seeN.C. Gen.Stat. § 8C–1, Rule 106 (Comment), the purpose of which “is to permit the contemporaneous introduction of recorded statements that place in context other writings admitted into evidence which, viewed alone, may be misleading.” United States v. Jamar, 561 F.2d 1103, 1108 (4th Cir.1977) (emphasis added). Here, the documents introduced by the State in no way misled the jury into believing defendant was convicted of driving while impaired, as the trial court properly reasoned.
The only evidence regarding a second charge for driving while impaired was elicited by defendant on cross-examination. “Statements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law.” State v. Gobal, 186 N.C.App. 308, 319, 651 S.E.2d 279, 287 (2007), aff'd, 362 N.C. 342, 661 S.E.2d 732 (2008). Notably, after eliciting such information, defendant was in the best position to question Officer Zaludek at that time regarding the disposition of the driving while impaired charge. Rule 106 “does not in any way circumscribe the right of the adversary to develop the matter on cross-examination or as part of his own case.” N.C. Gen.Stat. § 8C1, Rule 106 (Comment).
We further note that had the trial court either required the State to introduce the dismissal of defendant's 2006 driving while impaired charge or excluded the State's certified documents, as defendant requested, we fail to see how the outcome of defendant's trial would have been different in light of the overwhelming evidence of defendant's malice presented by the State in this case at trial, as denoted supra. Thus, even if the trial court committed error, the error was harmless, and defendant's arguments on this issue are without merit.
IV. Conclusion
We hold the trial court properly admitted Gettys' testimony and the certified copies of defendant's prior conviction for provisional DWI and the accompanying Intoxilyzer report. Defendant received a fair trial free from error.
No error. Judges McGEE and GEER concur.
Report per Rule 30(e).