North Carolina Lawyers Weekly
State v. Pierce (Lawyers Weekly No. 11-07-1060, 19 pp.) (Linda Stephens, J.) Appealed from New Hanover County Superior Court. (Phyllis M. Gorham, J.) N.C. App. Click here for the full-text opinion.
Holding: An officer was on his way to join a high speed chase of defendant when he swerved to avoid debris in the road, lost control of his vehicle, and died after his vehicle went over the median and hit trees. Defendant’s flight from police showed malice, and the death of a police officer driving to join the pursuit was foreseeable.
We find no prejudicial error in defendant’s convictions of second-degree murder, felonious fleeing to elude arrest with a motor vehicle, possession of marijuana with intent to distribute, and one count of possession of a firearm by a felon. We vacate defendant’s second conviction of possession of a firearm by a felon.
Defendant’s intentional flight from police Corporal Richards – which included driving 65 mph in a residential area with a speed limit of 25 mph and throwing bags of marijuana out the window of the vehicle – reflected knowledge that injury or death would likely result and manifested depravity of mind and disregard of human life. Accordingly, we conclude that the evidence, viewed in the light most favorable to the state, was sufficient to allow the jury to infer malice from defendant’s intentional flight from Cpl. Richards.
While we acknowledge there is some case law to suggest that proximity is a factor in determining malice, we cannot conclude in this case that Officer Matthews – or, more specifically, the harm that befell him – was so far beyond the circumference of defendant’s reckless actions as to absolve defendant of liability for Officer Matthews’ death.
Common experience easily permits the inference that defendant foresaw as a consequence of his flight that nearby officers other than Cpl. Richards would attempt to apprehend defendant during his flight. Clearly, then, the circumstances of this case – specifically defendant’s reckless flight, Officer Matthews’ proximity to the chase, and the danger inherent in a motor vehicle pursuit – were sufficient to permit a reasonable jury to infer defendant’s conscious indifference to the reasonably apparent probability of harm to an officer such as Officer Matthews.
The trial court’s denial of defendant’s motion to dismiss was not erroneous based on an alleged absence of malice.
Defendant also raises the issue of proximate cause. The evidence, viewed in the light most favorable to the state, shows that defendant fled from Cpl. Richards’ attempted lawful stop and, in doing so, created a police exigency; that Officer Matthews, a nearby officer, was informed of the exigency and sped to provide assistance and apprehend defendant; that on his way, Officer Matthews encountered an obstruction in the road, was unable to safely avoid the obstruction due to his speed, and perished after unsuccessfully attempting to avoid the obstruction. This evidence was sufficient to allow a reasonable jury to conclude (1) that Officer Matthews’ death would not have occurred had defendant remained stopped after Cpl. Richards pulled him over, and (2) that an injurious result such as Officer Matthews’ death was reasonably foreseeable under the circumstances.
Contributory negligence has no place in the law of crimes. Therefore, any negligent conduct by Officer Matthews could only absolve defendant of criminal liability if Officer Matthews met his death wholly as a result of his own conduct.
Accordingly, evidence of Officer Matthews’ alleged negligence was only relevant insofar as his conduct could have constituted an intervening or superseding cause that so entirely intervened in or superseded the operation of defendant’s negligence that it alone, without defendant’s negligence contributing thereto in the slightest degree, produced the injury. Clearly that was not the case here.
Assuming Officer Matthews’ conduct was in some way negligent, no reasonable person could conclude that Officer Matthews’ conduct – which was undertaken in response to the exigency created by defendant – so entirely intervened in or superseded the operation of defendant’s reckless flight as to constitute the sole cause of Officer Matthews’ death. Accordingly, the trial court’s decision to exclude some evidence of Officer Matthews’ alleged negligence did not violate defendant’s right to a full and fair defense.
As to defendant’s possession of a shotgun, the evidence tended to show the following: the shotgun was found in defendant’s closet in his residence; also in the closet was a lockbox containing ammunition that could be used in the shotgun, paychecks with defendant’s name on them, and defendant’s parole papers; and defendant’s wife said that defendant was holding the shotgun for his brother. This evidence, taken in the light most favorable to the state, was sufficient to show that defendant possessed the shotgun.
However, another firearm was found by a pedestrian along the chase route several hours after the chase. It was traced to a dealer in Winston-Salem, where the other two occupants of defendant’s SUV lived; and “through the course of [the police] investigation,” police Detective Mayo came to believe that one of the other occupants of the SUV was the actual owner. This evidence, taken in the light most favorable to the state, is insufficient to support the conclusion that defendant possessed the second firearm.
There is no evidence showing actual possession by defendant, nor is there any evidence of defendant’s control of the firearm sufficient to show constructive possession. Accordingly, the trial court erred by denying defendant’s motion to dismiss the charge of possession of the firearm found along the SUV’s route.
Even though N.C. R. Evid. 404(b) does not list “motive” as a reason to admit evidence of prior bad acts, Rule 404(b) is a general rule of inclusion, which provides that while “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,” such evidence is admissible for other purposes such as proof of knowledge. Because Rule 404(b) specifically allows evidence of prior acts to show knowledge, and because evidence of defendant’s flight after a 1994 robbery tends to show defendant’s knowledge of the dangers of flight from police, we conclude that the trial court did not err in admitting the evidence of defendant’s prior flight from police.
No error in part, no prejudicial error in part, and vacated in part.
