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Tag Archives: Malice

Constitutional – Free Speech – Attorneys – DA – Removal from Office – Civil Practice (access required)

In re Cline The respondent-district attorney publicly accused a judge of “moral turpitude, dishonesty and corruption”; “kidnapping the rights of victims and their families”; “intentional malicious conduct”; and “violation of the North Carolina Code of Judicial Conduct”; and she urged the judge to “acknowledge that your hands are covered with the blood of justice, and be ashamed.”

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Tort/Negligence – Wrongful Death – Police Shooting – No Malice – Municipal – Respondeat Superior – Waiver of Sovereign Immunity (access required)

Lowder v. Payne Even though plaintiff’s decedent was doing his job performing cell tower maintenance in the middle of the night when a citizen reported a suspicious vehicle at the cell tower in an area where armed robberies and other thefts had been reported, the defendant-police officer did not act with malice when he shot the decedent.

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

State v. Marslender 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.

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Tort/Negligence – Police Shooting Victim – Car Chase – Passenger – Public Official Immunity – Malice – Constructive Intent — Constitutional (access required)

Wilcox v. City of Asheville Since neither the public nor the three defendant-police officers were in danger from the slow-moving vehicle when the officers fired upon it, shooting and injuring the plaintiff-passenger, there is a genuine issue as to whether the officers acted with malice under the constructive intent doctrine.

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Tort/Negligence – Police Shooting Victim – Car Chase – Passenger – Public Official Immunity – Malice – Constructive Intent — Constitutional (access required)

Wilcox v. City of Asheville Since neither the public nor the three defendant-police officers were in danger from the slow-moving vehicle when the officers fired upon it, shooting and injuring the plaintiff-passenger, there is a genuine issue as to whether the officers acted with malice under the constructive intent doctrine.

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Criminal Practice – Second-Degree Murder – High-Speed Chase – Evidence – Shoplifting Spree – Malice — Driving Without a License – Post-Accident Conduct – Jury Instructions (access required)

State v. Rollins Defendant had been shoplifting before the high-speed chase that ended in a fatal crash. Evidence of the shoplifting spree was admissible to explain why defendant was trying so aggressively to evade the officers chasing him. The voluminous and organized nature of the shoplifting expedition explained why defendant was driving in the manner that he was for purposes of the malice element of second-degree murder.

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Tort/Negligence – Defamation — Libel Per Se – Judicial Code of Conduct – Campaigning for Other Candidates – Malice (access required)

Lewis v. Rapp A blog entry accusing a sitting judge of violating the Judicial Code of Conduct by openly supporting a state Senate candidate is not libel when the blogger does not know that the judge is running for reelection. However, when that blogger is alerted to the judge’s campaign, indicates he has read the entire code – including the section on judicial candidates’ freedom to support other candidates --and yet reasserts the accusation, libel has occurred.

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Criminal Practice – Murder & Armed Robbery – Theft of Gun – Malice – Constitutional – Confrontation Clause – Search & Seizure – Consent (access required)

State v. McMillan Since defendant’s theft and use of the victim’s gun occurred in a continuous transaction, defendant could be convicted of armed robbery based on his use of the gun he stole. We find no error in defendant’s convictions of one count each of felony murder, second-degree murder, and robbery with a dangerous weapon.

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Criminal Practice – Second-Degree Murder — DWI & Speeding – Malice – Evidence – Lay Witness — Expert Witness — Neuropharmacology (access required)

State v. Norman A driver turned off the highway just before he heard defendant’s truck collide with the victims’ car. When the driver ran to the crash site, he noticed a strong smell of alcohol on defendant from “a little over [an] arm’s [length] distance,” and he noticed that defendant was unable to maintain balance, was incoherent, was acting in an inebriated fashion, and was disoriented. The driver’s opinion was based on personal observation of defendant immediately after the collision. The fact that the driver was unaware of the exact nature of defendant’s injuries goes to the weight, not the admissibility, of his testimony.

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