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holding that evidence of the defendant's pending driving while impaired charge was admissible in order to show malice in a first degree murder trial
Summary of this case from State v. McAllisterOpinion
No. COA98-429.
June 15, 1999.
1. Homicide — felony murder — deadly weapon — not unconstitutionally vague
The lack of a specific definition of "deadly weapon" in the felony murder statute, N.C.G.S. § 14-17, did not make the statute unconstitutional in a case involving the deaths of two college students following a collision with an automobile driven by an impaired driver. The determinative inquiry is "the destructive capabilities of the weapon or device" and a deadly weapon has been defined by case law to include a variety of instruments, including automobiles.
2. Constitutional Law, Federal; Constitutional Law, State — ex post facto laws — application of felony murder to impaired driving
The application of the felony murder rule to a case involving the deaths of two college students following a collision with an automobile driven by an impaired driver did not violate the prohibition against ex post facto laws. The felony murder rule has existed in its present form since 1977 and automobiles have been recognized as deadly weapons in North Carolina since 1922. Although a felony perpetrated with an automobile has apparently not been used to support a felony murder conviction in the past, there is nothing to preclude its use for that purpose, nor does it expand the statute in any manner. Defendant can hardly complain that he was not on notice that he was taking serious risks and facing serious consequences when he continued to operate his automobile under the influence of drugs and alcohol.
3. Constitutional Law, Federal; Constitutional Law, State — equal protection — application of felony murder to impaired driving
The application of the felony murder rule to a case involving the deaths of two college students following a collision with an automobile driven by an impaired driver did not violate equal protection. Defendant did not state the suspect class to which he belongs that has been discriminated against and did not show which fundamental right will be affected. Stating that the felony murder rule would not be applied if there had not been multiple injuries does not make out a prima facie case for violation of the Equal Protection Clause; it is not a violation of equal protection to punish a defendant more severely because more victims have been harmed.
4. Homicide — felony murder — legislative intent
Application of the felony murder rule to a prosecution which arose from the deaths of two college students after a collision with an automobile driven by an intoxicated driver did not violate legislative intent. The General Assembly modified the felony murder rule in 1977 and made it more specific, but did not exclude automobiles from the definition of "deadly weapons" even though automobiles had often been treated as "deadly weapons" prior to the amendment. Although the more specific statutes of felony and misdemeanor death by vehicle exist, they have not preempted all other statutes when a death occurs when a defendant has been driving while impaired. However, it was noted that this decision was grounded on the facts of this case.
5. Evidence — prior crime or act — capital first-degree murder — impaired driving — other charges — conduct just before offense
In a capital first-degree murder prosecution arising from the death of two college students in a collision with an automobile driven by defendant while he was impaired with alcohol and drugs, the trial court did not err by allowing evidence about a pending DWI charge, defendant's 1992 conviction for DWI, and evidence of defendant's conduct just before the offense, all of which were used to show malice.
6. Homicide — felony murder — instructions — proximate cause of death
The trial court did not err in a first-degree murder prosecution arising from an impaired driving collision by not giving defendant's requested instruction on felony murder that the State must prove that there was no other proximate cause of the death of the victim. It is sufficient if a defendant's culpable negligence is a proximate cause of the death.
7. Homicide — culpable negligence — instructions — insulating negligence
The trial court did not err in a first-degree murder prosecution arising from an impaired driving collision by not giving defendant's requested instruction on insulating negligence. Defendant was in the victim's lane of travel and she was forced to swerve into the left lane in an effort to avoid a collision; the argument that she should have swerved to the right and hit a telephone pole and mailbox is completely unpersuasive.
8. Homicide — culpable negligence — instructions — driving on left half of roadway — exceeding posted speed
The trial court did not err in a first-degree murder prosecution arising from an impaired driving collision in its instruction on culpable negligence. Our cases have held that an individual may be culpably or criminally negligent when traveling at excessive rates of speed or when driving on the wrong side of the road.
9. Homicide — first-degree murder — sufficiency of evidence — impaired driving
The trial court correctly denied a motion to dismiss a charge of first-degree murder arising from an impaired driving automobile collision.
10. Criminal Law — jurisdiction of district court before indictments — production of medical records
The district court had jurisdiction to enter orders for the production of defendant's medical records in a capital first-degree murder prosecution arising from an impaired driving collision where the order was entered before the indictments were returned. Jurisdiction is in the district court before a case is bound over to superior court or indictments returned. N.C.G.S. § 7A-272(b).
11. Evidence — expert testimony — impaired driving — blood alcohol and drugs
The trial court did not err in a first-degree murder prosecution arising from an impaired driving collision by allowing testimony from a doctor that defendant was appreciably impaired when his blood alcohol level reached .046 because the doctor was qualified as an expert in forensic toxicology and had examined a sample of defendant's blood, or testimony from another doctor about the effects of combining alcohol and Xanax. Any problems in the testimony go to its weight, not its admissibility.
12. Homicide — felony murder — no merger of underlying felony
The trial court did not err in a first-degree murder prosecution arising from an impaired driving collision by submitting felony murder where defendant argued that the underlying felony of assault with a deadly weapon inflicting serious injury merged with the homicide.
Judge WYNN concurring in part and dissenting in part.
Appeal by defendant from judgments entered 6 May 1997 by Judge William H. Freeman in Forsyth County Superior Court. Heard in the Court of Appeals 7 January 1999.
The facts in this tragic case are largely undisputed. On 4 September 1996 at approximately 10:30 p.m., Thomas Richard Jones (defendant) crashed his automobile into an automobile driven by Margaret Penney (Margaret), a nineteen-year-old college student, killing two people and seriously injuring three others. Defendant was driving west on Polo Road, a two-lane thoroughfare in Winston-Salem, North Carolina, while Margaret was traveling east. As Margaret drove around a curve which preceded the "T" intersection of Polo Road and Brookwood Road, she saw two headlights approaching her in her lane of travel. Aline Iodice (Aline) also saw the two headlights and later testified that the headlights "were moving so quickly and [she] realized they were in [their] lane from the very first time [she] saw them until" the car collided with them.
Margaret lifted her foot from the accelerator pedal but could not pull the automobile off the road to the right because of the presence of a telephone pole and mailbox. Margaret tried to avoid a head-on collision with defendant by swerving into the left lane and turning onto Brookwood Road. Defendant, however, also swerved into his proper lane of travel and crashed into Margaret's automobile.
The collision killed Maia Witzl and Julie Marie Hansen, both nineteen-year-old college students who were passengers in Margaret's automobile, and injured Margaret. Melinda Warren, Aline, and Lea Billmeyer were also passengers in Margaret's automobile and were seriously injured. Defendant, however, suffered only minor injuries and was released from the hospital in less than twenty-four hours.
The crash investigation showed that defendant had been drinking alcohol and had a blood-alcohol content of .046. He had also taken the narcotic drugs Butalbital, Alprazolam (Xanax), and Oxycodone. Defendant was taking the prescription narcotics under the supervision of his doctor to alleviate pain from the medical conditions from which he was suffering. At trial, an expert stated that this combination of narcotic painkillers impairs one's ability to drive an automobile as they can cause dizziness, confusion, and disorientation. The drugs may also decrease motor control, impair concentration and judgment, and diminish reaction time and perception.
Evidence in the record also shows that just a few minutes before the accident, defendant was involved in another automobile incident and engaged in reckless conduct. A mother and child were stopped at a red light at the intersection of University Parkway and North Point Boulevard. Defendant drove up behind their automobile and twice bumped into it, indicating that they should move out of the way even though the light was red. A witness testified that defendant yelled, "Get the f__k out of the way." When the light changed to green, defendant sped around the automobile in front of him and drove away at an excessive rate of speed.
The driver of the automobile which defendant had bumped followed him to obtain his license plate number and report him to the police. The driver saw that defendant continued to drive recklessly, including driving up onto the curb of the road. The driver eventually got the license plate number, called the police, and told them that defendant was "driving real crazy" and that "if somebody doesn't get him he's going to kill somebody." There was also evidence that defendant had been convicted of driving while impaired (DWI) in 1992 and was awaiting trial on another pending DWI charge.
In April of 1997, defendant was tried capitally before a jury. The jury returned the following verdicts: (1) guilty of assault with a deadly weapon inflicting serious injury on Aline; (2) guilty of assault with a deadly weapon inflicting serious injury on Melinda Warren; (3) guilty of assault with a deadly weapon on Margaret; (4) guilty of assault with a deadly weapon inflicting serious injury on Lea Billmeyer; (5) guilty of driving while impaired; (6) guilty of first-degree murder of Maia Witzl under the felony murder rule; and (7) guilty of first-degree murder of Julie Hansen under the felony murder rule.
The jury recommended that defendant be sentenced to life without parole for the deaths of Maia Witzl and Julie Hansen. The trial court sentenced defendant to life without parole and arrested judgment on the three convictions for assault with a deadly weapon inflicting serious injury. The trial court also sentenced defendant to 120 days' imprisonment for assault with a deadly weapon on Margaret and to 90 days' imprisonment for driving while impaired. Defendant appealed.
Attorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Jonathan P. Babb, for the State.
White and Crumpler, by David B. Freedman, Dudley A. Witt, and Laurie A. Schlossberg; and Teeter Law Firm by Carroll L. Teeter, for defendant appellant.
In 1893 our General Assembly codified the common law offense of murder and divided it into first and second degrees. State v. Davis, 305 N.C. 400, 422, 290 S.E.2d 574, 588 (1982). The killings considered to be the most heinous were classified as first-degree murder and then subdivided into three classes: "(1) murders perpetrated by means of poison, lying in wait, imprisonment, starving, or torture, (2) premeditated murder, and (3) killings occurring in the commission of" any arson, rape, robbery, burglary, or other felony. Id. at 423, 290 S.E.2d at 588. This third class of first-degree murder is commonly referred to as felony murder.
In 1977, the General Assembly amended the definition of felony murder to its present form. It is now defined as a killing "committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon. . . ." N.C. Gen. Stat. § 14-17 (Cum. Supp. 1998). Therefore, for a defendant to be found guilty of felony murder, the State must prove that another person was killed while defendant was committing or attempting to commit any felony in which a deadly weapon was involved. State v. Gibbs, 335 N.C. 1, 51, 436 S.E.2d 321, 350 (1993), cert. denied, 512 U.S. 1246, 129 L.Ed.2d 881 (1994). In the instant case, the defendant was charged with the underlying felony of assault with a deadly weapon inflicting serious injury, which is comprised of the following elements: (1) an assault; (2) with a deadly weapon; (3) inflicting serious injury; and (4) not resulting in death. N.C. Gen. Stat. § 14-32(b) (1993).
An assault is defined as an overt act or attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to another person. State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967). This show of force or violence must be sufficient to place a person of reasonable firmness in fear of immediate bodily harm. Id. A deadly weapon has been defined by our Supreme Court as any "'article, instrument or substance which is likely to produce death or great bodily harm.'" State v. Torain, 316 N.C. 111, 120, 340 S.E.2d 465, 470 (quoting State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981)), cert. denied, 479 U.S. 836, 93 L.Ed.2d 77 (1986). An automobile which is driven in a dangerous manner can be a deadly weapon. See State v. Sudderth, 184 N.C. 753, 755, 114 S.E. 828, 829-30 (1922); State v. Eason, 242 N.C. 59, 65, 86 S.E.2d 774, 778 (1955); State v. McBride, 118 N.C. App. 316, 318-19, 454 S.E.2d 840, 841-42 (1995).
A driver who operates an automobile in such a manner that it is a deadly weapon can be convicted of the felony of assault with a deadly weapon inflicting serious injury if the driver has either "(1) an actual intent to inflict injury, or (2) [commits a] culpabl[y] or criminal[ly] negligen[t] [act] from which such intent may be implied." Eason, 242 N.C. at 65, 86 S.E.2d at 778. Culpable or criminal negligence, in turn, has been defined as "such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others." State v. Cope, 204 N.C. 28, 30, 167 S.E. 456, 458 (1933). In State v. Hancock, 248 N.C. 432, 435, 103 S.E.2d 491, 494 (1958), our Supreme Court stated that "[t]he violation of a safety statute which results in injury or death will constitute culpable negligence if the violation is wilful, wanton, or intentional." If, however, the statute is unintentionally or inadvertently violated, culpable negligence exists if the violation is "accompanied by recklessness of probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of consequences or of a heedless indifference to the safety of others." Id.
In this case, all the elements to sustain a conviction of first-degree murder by application of the felony murder rule are present. Two people were killed while defendant was perpetrating the felony of assault with a deadly weapon inflicting serious injury. Defendant committed the assault with his automobile by driving it in a reckless manner, oblivious to the safety of others. Although the evidence supports defendant's conviction for felony murder because the elements of the underlying felony were met, defendant nonetheless contends that his conviction should be overturned because: (I) the felony murder statute is unconstitutionally vague in that it does not define "deadly weapon"; (II) application of the felony murder rule against defendant is an ex post facto violation; and (III) defendant's conviction is a violation of the Equal Protection Clause. We disagree with defendant on all of these contentions and with (IV) the dissent's opinion that it was not the legislature's intent for the felony murder rule to apply to the facts of this case.
Defendant also presents the following evidentiary and instructional error arguments: (V) that the trial court erred in allowing the State to introduce evidence of a pending DWI charge, a 1992 conviction for DWI, and evidence of defendant's driving prior to the offense in question; (VI) that the trial court (A) erred in failing to instruct the jury about proximate cause and insulating acts of negligence, and (B) should not have instructed the jury that driving left of the center line and exceeding the speed limit were culpable negligence; (VII) the trial court erred in denying defendant's motion to dismiss at the close of all the evidence; (VIII) the district courts were without jurisdiction to enter orders to allow the State access to defendant's medical orders and these orders allowed the State improper ex parte contact with defendant's physicians; (IX) the trial court erred in allowing testimony by Dr. Mason in giving his opinion about defendant's level of impairment and by Dr. Stuart about the effects of barbiturates on the human body; and (X) the trial court erred in submitting the felony murder charges because the underlying felonies of assault with a deadly weapon inflicting serious injury merged with the offense of felony murder.
I
Defendant first contends that the failure of North Carolina's General Assembly to define the term "deadly weapon" in N.C. Gen. Stat. § 14-17 necessarily results in the statute being unconstitutionally vague as applied to this defendant. We disagree.
It is well settled in North Carolina that a statute may be void for vagueness and uncertainty. "'A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'" State v. Green, 348 N.C. 588, 597, 502 S.E.2d 819, 824 (1998) (citations omitted), cert. denied, ___ U.S. ___, 119 S.Ct. 883, 142 L.Ed.2d 783 (1999). A deadly weapon, however, has been defined by our case law to include a variety of different instruments, including automobiles. As we stated earlier, a "deadly weapon is any article, instrument, or substance that is likely to produce great bodily harm or death." State v. Hales, 344 N.C. 419, 426, 474 S.E.2d 328, 332 (1996) (emphasis added).
A variety of items have been held to be deadly weapons. See State v. Lang, 309 N.C. 512, 527, 308 S.E.2d 317, 325 (1983) (hands, fists or feet can be deadly weapons); State v. Joyner, 295 N.C. 55, 64-65, 243 S.E.2d 367, 373-74 (1978) (Pepsi-Cola bottle could be deadly weapon); State v. Strickland, 290 N.C. 169, 178, 225 S.E.2d 531, 538 (1976) (plastic bag can be a deadly weapon). The determinative inquiry is "the destructive capabilities of the weapon or device." State v. Moose, 310 N.C. 482, 497, 313 S.E.2d 507, 517 (1984). Indeed, this Court has specifically held that an automobile can be a deadly weapon within the meaning of the felony of assault with a deadly weapon. Eason, 242 N.C. at 65, 86 S.E.2d at 778. Because North Carolina cases provide adequate notice of what constitutes a deadly weapon, defendant has not been deprived of due process. His argument, therefore, that the lack of a specific definition of "deadly weapon" necessarily makes the felony murder statute unconstitutional in this case, is unpersuasive.
II
Defendant next contends that the application of the felony murder rule in this case would violate the prohibition against ex post facto laws. We disagree.
Both the North Carolina and United States Constitutions forbid the enactment of ex post facto laws. U.S. Const. art. I, § 10; N.C. Const. art. I, § 16. From the beginning of American jurisprudence, the United States Supreme Court has defined an ex post facto law to be a law that "(1) makes an action criminal which was done before the passing of the law and which was innocent when done, (2) aggravates a crime or makes it greater than when it was committed, (3) allows imposition of a different or greater punishment than was permitted when the crime was committed, or (4) alters the legal rules of evidence to permit different or less testimony to convict the offender than was required at the time the offense was committed." State v. Vance, 328 N.C. 613, 620, 403 S.E.2d 495, 500 (1991). See also Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648, 650 (1798). In other words, in order for a criminal law to be an ex post facto violation, it must be both retrospective by applying to events which occurred "'before its enactment, and it must disadvantage the offender affected by it.'" Id. (quoting Weaver v. Graham, 450 U.S. 24, 29, 67 L.Ed.2d 17, 23 (1981)).
Although ex post facto laws have traditionally been directed specifically at legislative actions, the United States Supreme Court has held that the Fifth and Fourteenth Amendments to the U.S. Constitution "forbid retroactive application of an unforeseeable judicial modification of criminal law, to the disadvantage of the defendant." Id. In this case, however, there is no judicial modification of any criminal law. The felony murder rule has existed in its present form since 1977 and automobiles were treated as deadly weapons well before the date of the offense in this case. Although a felony perpetrated by an automobile has apparently not been used to support a felony murder conviction in the past, there is nothing to preclude its use for that purpose, nor does it expand the statute in any manner. Indeed, our Supreme Court has allowed human hands to be considered as deadly weapons to sustain an underlying felony in order to convict a defendant of felony murder. See State v. Pierce, 346 N.C. 471, 493, 488 S.E.2d 576, 589 (1997). We therefore hold this argument to be unpersuasive.
Defendant argues that he was not fairly placed on notice that his conduct might result in a capital prosecution under the felony murder rule. Prior to this tragic incident, defendant had been convicted of driving while impaired on an earlier occasion. Further, about a month before this incident, defendant, while under the influence of drugs and alcohol, drove his automobile into the opposite lane, and ran another motorist off the road. Defendant was awaiting trial for that second incident at the time of the collision in this case.
An automobile has been recognized as a deadly weapon in North Carolina since 1922. See Sudderth, 184 N.C. 753, 114 S.E. 828. At least since 1925 motorists have been prosecuted for murder arising out of automobile accidents caused by their operation of their vehicles while under the influence. See State v. Trott, 190 N.C. 674, 130 S.E. 627 (1925), in which both the owner and the operator of an automobile were jointly indicted for first-degree murder and convicted of second-degree murder arising out of the tragic death of a fifteen-year-old girl in a traffic accident. Both defendants were under the influence of alcohol at the time of the accident. The driver did not appeal the conviction; the owner's conviction was affirmed by our Supreme Court. Id. In recent years, defendants have been frequently prosecuted and convicted of second-degree murder arising out of automobile accidents. See, e.g., State v. Snyder, 311 N.C. 391, 317 S.E.2d 394 (1984); State v. Byers, 105 N.C. App. 377, 413 S.E.2d 586 (1992); State v. McBride, 109 N.C. App. 64, 425 S.E.2d 731 (1993). Defendant in the case before us can hardly complain that he was not on notice that he was taking serious risks — and facing serious consequences — when he continued to operate his automobile under the influence of drugs and alcohol. This assignment of error is overruled.
III
Defendant next contends that the application of the felony murder rule to him violates his right to equal protection under the law. We again disagree.
The Equal Protection Clause of both the U.S. and North Carolina Constitutions requires that all persons similarly situated be treated in the same manner. Richardson v. N.C. Dept. of Correction, 345 N.C. 128, 134, 478 S.E.2d 501, 505 (1996). "If the statute does not impact upon a suspect class or a fundamental right, it is necessary to show only that the classification created by the statute bears a rational relationship to some legitimate state interest." Id.
In this case, defendant does not state the suspect class to which he belongs that has been discriminated against, nor does he show us which fundamental right will be affected. He merely contends that, if a similar accident had occurred and there were not multiple injuries, the felony murder rule could not be applied. This argument is unpersuasive in that it does not make out a prima facie case for a violation of the Equal Protection Clause, see Green, 348 N.C. at 602, 502 S.E.2d at 827, and because it is not a violation of the Equal Protection Clause to punish a defendant more severely because more victims have been harmed. See N.C. Gen. Stat. §§ 15A-1340.16(d)(8) and 15A-2000(e)(11) (1997). This assignment of error is accordingly overruled.
IV
We next address an issue not specifically discussed by defendant in his brief, but clearly presented by the dissent. The dissent states that our legislature did not intend for the felony murder rule to be used in situations such as the present one. Specifically, the dissent opines that when the General Assembly modified the felony murder rule in 1977 and defined it as a killing "committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon[,]" N.C. Gen. Stat. § 14-17, it limited the coverage of the rule by limiting the felonies which would sustain a felony murder charge.
Although we agree that the General Assembly did make the rule more specific as to the type of underlying felony necessary to sustain a felony murder conviction, it specifically denoted felonies perpetrated with the use of a "deadly weapon." As discussed above, a variety of items have been held to be deadly weapons within the meaning of the statute. See, e.g., Pierce, 346 N.C. at 493, 488 S.E.2d at 589. Indeed, the General Assembly did not exclude automobiles from the definition of "deadly weapons" in this statute, although automobiles had often been treated as "deadly weapons" prior to the 1977 amendment.
The dissent further supports its conclusion by stating that when a specific statute addresses an issue, that specific statute prevails over a more general statute, "'unless it clearly appears that the General Assembly intended to make the general act controlling in regard thereto. . . .'" Utilities Comm. v. Electric Membership Corp., 3 N.C. App. 309, 314, 164 S.E.2d 889, 892 (1968) (citation omitted). Indeed, in State v. Beale, 324 N.C. 87, 376 S.E.2d 1 (1989), our Supreme Court did apply a more specific statute dealing with abortion and similar offenses rather than the felony murder rule.
This idea that the felony murder rule cannot be used in this context because the General Assembly has enacted the more specific statutes of felony death by vehicle and misdemeanor death by vehicle (N.C. Gen. Stat §§ 20-141.4(a1) and 20-141.4(a2) (1993)), however, is not well grounded. Although these statutes do exist, they have not preempted all other statutes when a death occurs when a defendant has been driving while impaired. Indeed, there is abundant case law to support convictions for second-degree murder and involuntary manslaughter in DWI cases, even after the enactment of the felony and misdemeanor death by vehicle statutes. See, e.g., State v. Grice, 131 N.C. App. 48, 505 S.E.2d 166 (1998), disc. review denied, 350 N.C. 102, ___ S.E.2d ___ (1999); McBride, 109 N.C. App. 64, 425 S.E.2d 731; Byers, 105 N.C. App. 377, 413 S.E.2d 586. Logically, therefore, there is no reason why the felony murder statute cannot be used in this context if an underlying felony was also committed.
Despite our conclusion, we are mindful of the core concern expressed in the dissent. We perceive that our duty as an intermediate appellate court is to apply existing law to the facts of the case before us, and that duty inevitably compels the result we reach here. Novel or imaginative uses of existing statutes and case law are the stock in trade of capable attorneys, and a prosecutor may properly weigh the harm resulting from a defendant's actions in determining the charges he will pursue against a defendant. Such an evaluation undoubtedly took place here. Few traffic fatalities involve actions as flagrant as those before us. We expect district attorneys to continue to be mindful of the gravity of first-degree murder prosecutions in such cases. Both the verdict and sentence imposed are appropriate under the facts of this case, and our decision is grounded on those facts. This assignment of error is overruled.
V
We now turn to defendant's assignments of error concerning instructional and evidentiary errors. Defendant contends that the trial court should not have allowed evidence about a pending DWI charge, defendant's 1992 conviction for DWI, and evidence of defendant's conduct just before the offense in question. We disagree with defendant on all of these arguments.
Rule 404(b) of the North Carolina Rules of Evidence allows evidence of other crimes, wrongs, or acts by a defendant if it is used to show a mental state such as malice. Byers, 105 N.C. App. at 383, 413 S.E.2d at 589. Evidence of other crimes, wrongs, or bad acts cannot, however, be used to prove a defendant's propensity to commit a crime. Id.
In this case, evidence of defendant's pending DWI charge and his 1992 conviction for DWI was used to show that defendant had the requisite mental state of malice, one of the elements of the charge of second-degree murder which was submitted to the jury. The trial court did not abuse its discretion in that the danger of undue prejudice did not outweigh any probative value of the evidence. Furthermore, evidence of defendant's conduct immediately prior to the offense in question was also properly admitted. Defendant bumped another automobile stopped at a traffic light, yelled obscenities and then sped off without acknowledging any damage which occurred. This evidence tended to show malice on the part of defendant and was proper under Rule 404(b).
VI
Defendant next contends that the trial court (A) erred in failing to instruct the jury about proximate cause and insulating acts of negligence and (B) should not have instructed the jury that driving left of the center line and exceeding the speed limit were culpable negligence. We disagree with these arguments.
A
Defendant argues that the trial court should have instructed the jury that in order to find him guilty of first-degree felony murder, the jury must find that "the defendant's actions were the sole and only proximate cause of the death of the victim. The State must prove that there was no other proximate cause of the death of the victim." Although the trial court must give an instruction to the jury if the requested instruction is correct in itself and is supported by evidence, see State v. Harvell, 334 N.C. 356, 364, 432 S.E.2d 125, 129 (1993), the requested instruction in this case was not correct. If a defendant's culpable negligence is " a" proximate cause of the death, that is sufficient to find him criminally liable. State v. Hollingsworth, 77 N.C. App. 36, 39, 334 S.E.2d 463, 465 (1985). Indeed, there may be more than one proximate cause, but criminal responsibility arises when the offense committed is one of the proximate causes. Id. As a result, defendant's requested instruction was a misstatement of the law and did not have to be given to the jury.
As to the instruction for insulating acts of negligence, the trial court was correct in not submitting the charge. "In order for [the] negligence of another to insulate defendant from criminal liability, that negligence must be such as to break the causal chain of defendant's negligence; otherwise, defendant's culpable negligence remains a proximate cause, sufficient to find him criminally liable." Id. In this case, there was no evidence of any negligence on the part of Margaret while driving her automobile. Defendant was in her lane of travel and she was forced to swerve into the left lane in an effort to avoid a collision. Defendant's argument that Margaret should have swerved to the right and hit a telephone pole and mailbox is completely unpersuasive and is, accordingly, overruled.
B
The trial court gave the jury the following instruction on culpable negligence.
Under the law of this state, culpable negligence is such recklessness or carelessness proximately resulting in injury or death as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others. An intentional, willful or wanton violation of the statute designed for the protection of human life or limb which proximately results in injury or death such as driving on the left half of the roadway or exceeding the posted speed limit is culpable negligence.
Where there is an unintentional or inadvertent violation of the law, such violation standing alone does not constitute culpable negligence. To constitute culpable negligence, the inadvertent or unintentional violation of the law must be accompanied by recklessness of probable consequences of a dangerous nature when tested by the rule of reasonable foresight amounting all together to a thoughtless disregard of consequences or heedless indifference to the safety of others.
This language of the instruction tracks the language set forth by the Supreme Court in State v. Sealy, 253 N.C. 802, 804, 117 S.E.2d 793, 795 (1961) and was correct. Defendant complains that the trial court mischaracterized the law when it stated that "driving on the left half of the roadway or exceeding the posted speed limit is culpable negligence." This argument, however, is without merit. Our cases have held that an individual may be culpably or criminally negligent when traveling at excessive rates of speed. See, e.g., State v. Wilson, 218 N.C. 769, 12 S.E.2d 654 (1941); State v. Steelman, 228 N.C. 634, 46 S.E.2d 845 (1948); State v. Floyd, 15 N.C. App. 438, 190 S.E.2d 353, cert. denied, 281 N.C. 760, 191 S.E.2d 363 (1972); State v. Grissom, 17 N.C. App. 374, 194 S.E.2d 227, cert. denied, 283 N.C. 258, 195 S.E.2d 691 (1973). Our cases have also held that driving on the wrong side of the road can be culpable negligence. See State v. Hefler, 60 N.C. App. 466, 299 S.E.2d 456 (1983), aff'd, 310 N.C. 135, 310 S.E.2d 310 (1984); State v. Atkins, 58 N.C. App. 146, 292 S.E.2d 744, appeal dismissed and disc. review denied, 306 N.C. 744, 295 S.E.2d 480 (1982).
VII
A trial court correctly denies a motion to dismiss at the close of all the evidence if there is substantial evidence to support each essential element of the offense charged and that defendant committed the offense. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Morgan, 111 N.C. App. 662, 664-65, 432 S.E.2d 877, 879 (1993). The trial court must examine the evidence in the light most favorable to the State and the State is entitled to every reasonable inference which can be drawn from the evidence. Id. In this case, there was substantial evidence to warrant submission of the charges to the jury and the trial court did not err in denying the motion to dismiss.
VIII
Defendant's next argument concerns orders entered by the district court for the production of his medical records for the State. Although the case law prohibits ex parte communications with a party's health care provider in civil cases absent the party-patient's express consent, see Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990), defendant has cited no authority to extend this rule to criminal defendants. Furthermore, there is no indication in the record that defendant objected to the orders at trial or moved to suppress the information. As a result, any error which occurred has been waived by defendant. N.C.R. App. P. 10(b)(1).
Defendant's contention that the district court judges who signed two of the orders lacked jurisdiction because the case was to be tried in superior court is likewise without merit. N.C. Gen. Stat. § 7A-272(b) (Cum. Supp. 1997) states that a "district court has jurisdiction to conduct preliminary examinations and to bind the accused over for trial upon waiver of preliminary examination or upon a finding of probable cause. . . ." Until a case is "bound over" to the superior court, or indictments are returned by the Grand Jury, jurisdiction is in the district court. In this case, the two orders signed by the district court were entered on 6 September 1996 and 20 September 1996, while the first indictments against defendant were not returned until 21 October 1996. Since the indictments had not been returned, nor the cases bound over to the superior court when the orders in question were signed, the district court retained jurisdiction of these preliminary matters.
IX
Defendant next argues that the trial court erred in admitting testimony of two of the State's expert witnesses. Again, we disagree with defendant's contentions and hold that the trial court was correct in allowing the testimony.
Rule 702 of the Rules of Evidence will allow an expert witness to testify to a scientific opinion if it will "assist the trier of fact to understand the evidence or to determine a fact in issue. . . ." N.C. Gen. Stat. § 8C-1, Rule 702 (Cum. Supp. 1997). In this case, defendant objects to testimony by Dr. Mason that, in his opinion, defendant was appreciably impaired when his blood alcohol level reached .046. This testimony, however, was appropriately admitted because Dr. Mason was qualified as an expert in the field of forensic toxicology and had examined a sample of defendant's blood and therefore could give his opinion as to the effects of the various impairing substances in defendant's body.
This same rationale applies to the testimony of Dr. Stuart. Dr. Stuart was accepted by the trial court as a expert in trauma surgery and medicine. Defendant contends that Dr. Stuart should not have been allowed to testify about the effects of combining alcohol and Xanax because it was outside of his field of knowledge. We reject this argument, however, because in North Carolina, "the opinion testimony of an expert witness is competent if there is evidence to show that, through study or experience, or both, the witness has acquired such skill that he is better qualified than the jury to form an opinion on the particular subject of his testimony." Maloney v. Hospital Systems, 45 N.C. App. 172, 177, 262 S.E.2d 680, 683, disc. review denied, 300 N.C. 375, 267 S.E.2d 676 (1980). In this case, Dr. Stuart was an expert in the field of medicine and was better qualified than the jury to offer an opinion about the effects of combining alcohol and Xanax. Any problems in the testimony go to the weight it is given by the jury, not to its admissibility.
X
In his final argument, defendant contends that the trial court erred in submitting the felony murder charge because the underlying felony of assault with a deadly weapon inflicting serious injury merged with the homicide. Specifically, defendant is asking this Court to reexamine our Supreme Court's holding in State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994), and hold that the offenses must be merged if the victims are different persons. This Court is bound by the decisions of our Supreme Court, and therefore we are unable to accept defendant's argument. See State v. Coria, 131 N.C. App. 449, 508 S.E.2d 1 (1998).
In conclusion, we hold that no prejudicial error was committed at defendant's trial. We are aware that the felony murder rule has been criticized in some jurisdictions, and we understand the dissent's concern that harsh results could result from the application of the felony murder rule to other fatal automobile accidents regardless of the circumstances surrounding them. We are bound, however, by the plain language of the statute and earlier appellate decisions, and do not find on the facts of this case that application of the felony murder rule resulted in a fundamentally unfair result. Any modifications of N.C. Gen. Stat. § 14-17 to yield a different result in situations similar to the hypothetical case set out in the dissent must be left to our General Assembly.
No error.
Judge EDMUNDS concurs.
Judge WYNN concurs in part and dissents in part with separate opinion.