State v. Bauberger

626 S.E.2d 700, 176 N.C. App. 465, 2006 N.C. App. LEXIS 523

• Court: Court of Appeals of North Carolina
• Decided: March 7, 2006
• Docket: COA04-1368
• Status: Published

Opinions

ELMORE, Judge.

William Bauberger (defendant) was indicted for second-degree murder and assault with a deadly weapon inflicting serious injury. At trial, the State’s evidence 'tended to show that on 3 February 2002 a vehicle operated by defendant collided with a vehicle operated by William Foy. At approximately 8:15 p.m. on 3 February Mr. Foy was driving a Geo Metro on Highway 421 near the Lewisville/Clemmons exit with his wife, Carol Foy, in the passenger seat. Defendant was driving a Cadillac with a Flow Chevrolet dealer’s tag. Defendant had attended a Super Bowl party where he consumed in excess of ten beers. While driving, defendant called Andrea True, a friend from work, and told her that he was coming over to her house. Defend-. ant began driving down the Lewisville/Clemmons exit ramp in the wrong direction. There were signs indicating “Do Not Enter” and “Wrong Way.”

Audrey Borger testified that she was driving up the Lewisville/Clemmons exit from Highway 421 and saw a car coming straight at her. She blew her horn and then swerved over to avoid a collision. Melissa Borger, Audrey Borger’s daughter, testified that she was riding as a passenger in her mother’s car when she saw a vehicle coming at them at a speed of over 45 miles per hour and that the driver was accelerating. Jeffrey Hinshaw testified that he was driving on Highway 421 and saw a vehicle’s headlights coming down the exit ramp at him. Mr. Hinshaw stated that the vehicle appeared to be weaving and was traveling at over 55 miles per hour. Mr. Hinshaw testified that he slowed down and pulled his car into the breakdown lane and then heard a crash shortly thereafter.

Mr. Foy testified that he observed a vehicle coming the wrong way down the exit ramp and that he tried to brake and swerve onto the shoulder of the road. After the cars collided, Mr. Foy checked on his wife but could not find a pulse. Mr. Foy got out of the car after several attempts but was unable to walk because of a broken leg. Mr. Hinshaw, the chief physician’s assistant in the emergency department at Baptist Hospital, testified that he heard the crash and went over to help. Mr. Hinshaw reached Mr. Foy first, who asked Mr. Hinshaw to check on his wife. Mr. Hinshaw found Mrs. Foy unresponsive and with no pulse. When he arrived at the second car, Mr. Hinshaw observed that defendant was slumped back in his seat and appeared sleepy. Defendant responded to Mr. Hinshaw’s sternal rub confirming defendant was not unconscious. Mr. Hinshaw detected an odor of alcohol. Stanley Lee testified that he lives near the scene of the crash and that he arrived after hearing the crash. Mr. Lee noticed that defendant had a strong odor of alcohol. State Trooper Daniel Harmon testified that he spoke to defendant in the back of the ambulance and that defendant slurred his last name. Trooper Harmon stated that defendant’s eyes were red and glassy and that defendant appeared to be impaired.

Mrs. Foy suffered traumatic injuries to her head, chest, internal organs, and arms and legs. She died within minutes of the crash. Mr. Foy was transported to Baptist Hospital, where he was treated for a broken left hand, and a tibia fracture and bone fragments in his right leg that required reconstructive surgery and seven screws. Defendant was also treated at Baptist Hospital. While there, defendant told the mother of his child, “I really f-up, they’re going to give me the needle, I killed someone tonight, I’m going away forever, I want to see my child[.]” Defendant called his co-worker Andrea True and told her that he had killed someone and that he wished it had been him.

Defendant testified at trial. He stated that he had consumed more than ten beers over the course of five or five and one-half hours on the day of the collision. Defendant admitted that he had been ordered by a court to surrender his license a few months prior to the crash. Defendant testified that he knew that he was impaired when he drove but did not remember going the wrong way on the exit ramp. Prior to trial, defendant had stipulated to the fact that his driver’s license was revoked at the time of the crash for a driving while impaired conviction in Guilford County. Defendant had also stipulated that his blood/alcohol concentration was .20 grams per 100 milliliters of whole blood.

The jury returned verdicts of guilty on the charges of second-degree murder and assault with a deadly weapon inflicting serious injury. The trial court sentenced defendant on 15 August 2003. Later that day, the State informed the trial court that one of the jurors may have consulted a dictionary about the meaning of the word “malice.” On 18 August 2003 defendant filed a Motion for Appropriate Relief seeking a new trial. In its response to defendant’s motion, the State attached affidavits of ten jurors. Juror Collins stated that he looked up the word “malice” at home prior to the final jury charge and that he could not remember during the deliberations what the definition said and did not share it with anyone on the jury. The jury foreman stated that he checked out a copy of Webster’s New Collegiate Dictionary during lunch break of the deliberations, brought it back to the jury room, and shared with the jury the definitions of “recklessly,” “wantonly,” “manifest,” “utterly,” and “regard.” Following a hearing, the trial court denied defendant’s motion. Defendant appeals his conviction and sentence for second-degree murder and also the denial of his Motion for Appropriate Relief.

I.

First, defendant contends that he is entitled to a new trial because jurors improperly considered dictionary definitions during deliberations. In the Motion for Appropriate Relief to the trial court, defendant raised the constitutional argument that the jury’s conduct violated his Sixth Amendment rights to an impartial jury and to confront the witnesses against him. We review the trial court’s order denying a motion for appropriate relief to determine whether the findings of fact are supported by the evidence, the findings support the conclusions of law, and the conclusions support the trial court’s order. State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982). “The determination of the existence and effect of jury misconduct is primarily for the trial court whose decision will be given great weight on appeal.” State v. Bonney, 329 N.C. 61, 83, 405 S.E.2d 145, 158 (1991) (quoting State v. Gilbert, 47 N.C. App. 316, 319, 267 S.E.2d 378, 379 (1980)).

The trial court reviewed the affidavits submitted by the ten jurors and entered findings based upon this evidence. In pertinent part, the trial court found that the jury foreman went to the Forsyth County Public Library during lunch break of the jury deliberations and checked out Webster’s New Collegiate Dictionary (1953 edition). The foreman, Mr. Kuley, brought the dictionary to the jury room and read the following definitions of words contained within the trial court’s definition of “malice”:¹

“recklessly” “lack of due caution”

“wantonly” “arrogant recklessness of justice or the feelings of others”

“manifest” “show”

“utterly” “fully, totally”

“regard” “respect or consideration for”

In addition, the trial court found that Juror Collins looked up the word “malice” in a pocket dictionary at.home prior to deliberations but did not bring a copy of the definition to the jury room. The trial court entered an order determining, inter alia, that although the jury’s conduct was improper, the jury’s use of the dictionary did not prejudice defendant and there is no reasonable possibility that the verdict would have been different absent the jury consulting the dictionary.

In general, a trial court may not receive juror testimony to impeach a verdict already rendered. See State v. Costner, 80 N.C. App. 666, 669, 343 S.E.2d 241, 243, disc. review denied, 317 N.C. 709, 347 S.E.2d 444 (1986). However, exceptions to this rule are found in N.C. Gen. Stat. § 15A-1240 and N.C. Gen. Stat. § 8C-1, Rule 606(b). Section 15A-1240 states that the testimony of a juror may be received to impeach the verdict when it concerns “[m]atters not in evidence which came to the attention of one or more jurors under circumstances which would violate the defendant’s constitutional right to confront the witnesses against him[.]” N.C. Gen. Stat. § 15A-1240 (2003). Section 15A-1240 is applicable to criminal cases only. See Smith v. Price, 315 N.C. 523, 534, 340 S.E.2d 408, 415 (1986). Rule 606(b) of the North Carolina Rules of Evidence provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

N.C. Gen. Stat. § 8C-1, Rule 606(b) (2003) (emphasis added). Our Supreme Court has interpreted extraneous information under Rule 606(b) as “information dealing with the defendant or the case which is being tried, which information reaches a juror without being introduced in evidence.” State v. Rosier, 322 N.C. 826, 832, 370 S.E.2d 359, 363 (1988).

Defendant contends that the dictionary definitions read to the jury by the foreman were extraneous information within the meaning of Rule 606(b) because the definitions were directed toward the governing law of the case. Defendant cites to State v. Barnes, 345 N.C. 184, 481 S.E.2d 44 (1997), cert. denied, 523 U.S. 1024, 140 L. Ed. 2d 473 (1998). In Barnes, our Supreme Court held that the trial court did not abuse its discretion in not inquiring into prejudice to the defendant where a juror read aloud from the Bible in the jury room prior to the trial court’s instructions to the jury. Id. at 228, 481 S.E.2d at 68. The Court explained that the information from the Bible was not an extraneous influence upon the jiiry because there was no evidence that the reading was directed to “the facts or governing law at issue in the case[.]” Id.

In arguing that the dictionary definitions were not extraneous information and thus the affidavits of the jurors were not admissible to impeach the verdict, the State relies upon the reasoning of the dissenting opinion in Lindsey v. Boddie-Noell Enters., Inc., 147 N.C. App. 166, 555 S.E.2d 369 (2001), reversed per curiam for the reasons stated in the dissenting opinion, 355 N.C. 487, 562 S.E.2d 420 (2002). In Lindsey, a juror consulted a dictionary for the definitions of “willful” and “wanton” during deliberations in a case where the jury was deciding whether to award punitive damages against the defendant based upon willful and wanton conduct. Lindsey, 147 N.C. App. at 169, 555 S.E.2d at 372. The jury did not award punitive damages to the plaintiff, and the plaintiff made a motion for a new trial. Id. This Court held that the trial court erred in failing to grant a new trial because the plaintiff was prejudiced by the jury misconduct. Id. at 174, 555 S.E.2d at 375. In a dissenting opinion, Judge Tyson concluded that the contents of the juror affidavits submitted to the trial court were not extraneous information under Rule 606(b).

The majority opinion states that it is “apparent” that the definitions of “willful” and “wanton” in a case involving a claim for punitive damages constitutes “extraneous information” because they pertain to the case being tried and the governing law at issue. I find the reading of the dictionary definitions by Juror Couch is analogous to a situation where one of the jurors informs the jury what “willful” and “wanton” mean, according to his knowledge of the English language. The definition of words in our standard dictionaries has been considered a matter of common knowledge which the jury is supposed to possess.

Id. at 179, 555 S.E.2d at 378.

The dissenting opinion in Lindsey, as adopted by our Supreme Court, cites to State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), and Berrier v. Thrift, 107 N.C. App. 356, 420 S.E.2d 206 (1992), in concluding that definitions in standard dictionaries are not within our Supreme Court’s contemplation of extraneous information. Both Robinson and Berrier addressed the distinction between internal and external influences on the jury. In Robinson, one or more jurors stated in affidavits that they considered the possibility of parole in determining whether the defendant should receive a life sentence. Robinson, 336 N.C. at 124, 443 S.E.2d at 329. The trial court concluded, and our Supreme Court agreed, that discussions of parole eligibility are internal influences upon the jury coming from the jurors themselves. Id. at 124-25, 443 S.E.2d at 329-30. Accordingly, the Court held that the trial court correctly denied the defendant’s motion for appropriate relief where the affidavits could not be used to impeach the verdict under Rule 606(b). Id. at 124-25, 443 S.E.2d at 329. In Berrier, juror affidavits revealed that the jury foreman incorrectly stated during deliberations that a punitive damages award is an award of symbolic value rather than a collectible money judgment. Berrier, 107 N.C. App. at 362, 420 S.E.2d at 210. This Court held that the trial court properly excluded the affidavits under Rule 606(b) because the information allegedly received by the jury was from an internal source, the jury foreman’s impression of the effect of a punitive damages award. Id. at 365-66, 420 S.E.2d at 210-12.

In both Robinson and Berrier, the affidavits were inadmissible under Rule 606(b) where the jurors drew upon their own beliefs or ideas, not an outside source of information. See also State v. Quesinberry, 325 N.C. 125, 135-36, 381 S.E.2d 681, 688 (1989) (no allegation that jurors received information about parole from outside source; affidavits stating that jurors believed the defendant would be released in ten years not admissible under Rule 606(b)). Here, the information was from an outside source and not merely a belief or impression of the jury foreman. The information concerned the definitions of words within the court’s instruction on malice, an element of the second-degree murder offense being tried. The information in the affidavits, therefore, appears to be within the exception for extraneous information stated in Rule 606(b). See Rosier, 322 N.C. at 832, 370 S.E.2d at 363 (extraneous information includes information about the case being tried). However, we are bound by the reasoning of Lindsey. As the affidavits attest to the reading of standard dictionary definitions, the matters in the affidavits are not extraneous information under Rule 606(b). See Lindsey, 355 N.C. at 487, 562 S.E.2d at 420 (adopting the dissent in Lindsey, 147 N.C. App. 179, 555 S.E.2d 378).

Defendant next contends that the jury’s consultation of dictionary definitions violated his Sixth Amendment right to confront witnesses against him and that the affidavits may be used to impeach the verdict pursuant to N.C. Gen. Stat. § 15A-1240. We agree with defendant that Lindsey, a civil case, is not controlling on this point because it does not discuss N.C. Gen. Stat. § 15A-1240, a provision of the Criminal Procedure Act.. Indeed, in State v. Rosier, a criminal case where the defendant submitted juror affidavits in support of his motion for appropriate relief, our Supreme Court independently analyzed whether the juror affidavits should have been considered pursuant to Section 15A-1240 and pursuant to Rule 606(b). See Rosier, 322 N.C. at 832, 370 S.E.2d at 362-63. Nonetheless, we do not agree with defendant that the reading of the dictionary definitions in the case sub judice violated his right to confrontation.

“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” State v. Nobles, 357 N.C. 433, 435, 584 S.E.2d 765, 768 (2003) (internal quotations omitted). Thus, the Sixth Amendment provides the criminal defendant the right to confront witnesses and evidence against him. See, e.g., State v. Lyles, 94 N.C. App. 240, 247, 380 S.E.2d 390, 394-95 (1989). In Lyles, the jury improperly peeled back paper that was covering a notation on a photographic exhibit, revealing that the defendant had been present at the police station on a date when his alibi witnesses testified that the defendant lived in another state. Id. at 243, 380 S.E.2d at 392. This Court considered the circumstances under which the jury received this information and concluded that the defendant’s right to confrontation was violated.

In this case, it is undisputed that information about the defendant, which had not been admitted into evidence, came to the attention of the jury and that this evidence directly contradicted defendant’s alibi witnesses. Because this exposure occurred during the jury’s deliberations, defendant had no opportunity to challenge the evidence by cross-examination or to minimize its impact in his closing argument or through a curative instruction by the trial judge. Moreover, the evidence implied that defendant had prior criminal involvement, and the jury was allowed to draw this inference notwithstanding that this is a subject intricately regulated by the rules of evidence.

Id. at 247, 380 S.E.2d at 395. Here, the information considered by the jury did not discredit defendant’s testimony or witnesses; it concerned legal terminology, not evidence developed at trial. Under these circumstances, the juror misconduct did not violate defendant’s right to confrontation. Cf. State v. Hines, 131 N.C. App. 457, 508 S.E.2d 310 (1998) (defendant’s right to confrontation violated where prosecutor’s notes and typewritten list of statements defendant made, including hearsay statements, were mistakenly published to the jury without being admitted into evidence). We hold that the trial court did not err in concluding that the affidavits did not contain extraneous information and that defendant’s right to confrontation was not violated by the juror misconduct.

II.

Defendant also assigns error to the trial court’s use of prior driving while impaired convictions in determining his prior record level and sentencing him as a Level II offender. Defendant concedes that he failed to object to the determination of prior record level at trial, but he correctly notes that the issue of the validity of his sentence is deemed preserved under N.C. Gen. Stat. § 15A-1446(d)(18) (2003). See, e.g., State v. Robertson, 161 N.C. App. 288, 292, 587 S.E.2d 902, 905 (2003).

Defendant argues that his sentence as a Level II offender violates the prohibition against double jeopardy but cites no supporting case authority. We, therefore, do not address this argument. See N.C.R. App. P. 28(b)(6) (“The body of the argument shall contain citations of the authorities upon which the appellant relies.”). Defendant also argues that his sentence as a Level II offender violates N.C. Gen. Stat. § 15A-1340.16, which provides as follows:

Evidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation, and the same item of evidence shall not be used to prove more than one factor in aggravation.

N.C. Gen. Stat. § 15A-1340.16(d) (2003). Interpreting this section of the Structured Sentencing Act, this Court has held that proof of an element of an offense may not be used to also prove an aggravating factor. See State v. Corbett, 154 N.C. App. 713, 717-18, 573 S.E.2d 210, 214 (2002). Here, defendant’s prior convictions were not aggravating factors. Rather, the trial court added points to defendant’s prior record level pursuant to N.C. Gen. Stat. § 15A-1340.14.

The parties do not cite any provision of the Structured Sentencing Act, nor do we find any, that prohibits a trial court from using the same prior convictions introduced by the State as evidence of malice during trial to increase the defendant’s prior record level at sentencing. In contrast, the General Assembly has specifically prohibited a trial court from using prior convictions to increase a defendant’s prior record level where those prior convictions are also used to establish the offense of being an habitual felon. See N.C. Gen. Stat. § 14-7.6 (2003) (“In determining the prior record level, convictions used to establish a person’s status as an habitual felon shall not be used.”); State v. Truesdale, 123 N.C. App. 639, 642, 473 S.E.2d 670, 672 (1996) (plain language of N.C. Gen. Stat. § 14-7.6 prohibits use of same conviction to establish both habitual felon status and prior record level). The trial court’s determination of prior record level in the instant case did not violate the plain language of N.C. Gen. Stat. § 15A-1340, and any further argument by defendant should be addressed to the General Assembly.

No Error.

Judge CALABRIA concurs. Judge GEER dissents by separate opinion.

1 . The trial court instructed the jury that “[m]alice arises when an act which is inherently dangerous to human life is intentionally done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliber-atly bent on mischief.”