Criminal Practice – DWI & Second-Degree Murder – Proximate Cause – Prior Convictions – Malice – Other Bad Acts

State v. Marslender (Lawyers Weekly No. 12-16-0844, 15 pp.) (Linda McGee, J.) Appealed from Onslow County Superior Court. (Phyllis M. Gorham, J.) N.C. App. Unpub.

Holding: An eyewitness testified that defendant’s truck passed her just as she was beginning to slow down because of heavy rain. She saw the truck go out of control due to, she thought, overcompensating. In addition to defendant’s 0.12 blood alcohol content, this was sufficient evidence that defendant’s impaired driving was the proximate cause of the accident that killed his passenger.

We find no prejudicial error in defendant’s convictions of driving while impaired and second-degree murder.

When the state presented evidence of defendant’s two prior DWI convictions, the evidence clearly related to the issue of malice. The state did not impeach defendant with evidence of his prior convictions.

Defendant argues that it was plain error for the trial court to allow the state to question him about a 2008 incident in which he drove drunk with minors in his vehicle. However, defendant’s argument is that the alleged error involved in the questioning concerning the 2008 incident amounted to plain error because it was compounded by the alleged error arising from the inquiry about his criminal record. As we have concluded there was no error in the state’s questioning concerning defendant’s prior criminal record, defendant’s plain error argument is without merit.