An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-336 NORTH CAROLINA COURT OF APPEALS Filed: 21 January 2014 STATE OF NORTH CAROLINA
Carteret County v. No. 11 CRS 51395
AARON WESLEY McGARVA
Appeal by defendant from judgment entered 26 April 2012 by
Judge Kenneth F. Crow in Carteret County Superior Court. Heard
in the Court of Appeals 12 September 2013.
Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for Defendant.
ERVIN, Judge.
Defendant Aaron Wesley McGarva appeals from a judgment
sentencing him to a term of 132 to 168 months imprisonment based
upon his consolidated convictions for second degree murder and
felonious hit and run driving involving serious injury or death.
On appeal, Defendant argues that the trial court erred by
denying his motion to dismiss the second degree murder charge on
the grounds that the record did not contain sufficient evidence -2- to support a finding that he acted with malice and by improperly
instructing the jury concerning the extent, if any, to which
voluntary intoxication sufficed to preclude a finding of malice.
After careful consideration of Defendant’s challenges to the
trial court’s judgment in light of the record and the applicable
law, we conclude that the trial court’s judgment should remain
undisturbed.
I. Factual Background
A. Substantive Facts
At approximately 9:00 p.m. on 2 April 2011, Defendant Aaron
McGarva went to the apartment of his friend, Chris Taylor, in
downtown Morehead City so that the two of them could play their
guitars. After Defendant’s arrival, the two men began playing
their guitars, drinking beer, and smoking some marijuana that
Defendant had brought with him. In addition, Defendant offered
LSD to Mr. Taylor, who consumed some of the LSD although he had
never ingested that substance before. Mr. Taylor did not
remember seeing Defendant consume any LSD.
A while later, Mr. Taylor and Defendant walked to a
downtown bar, where they encountered their friend, Christopher
Baggett, and his girlfriend, Morgan Smith, both of whom were
invited to come back to Mr. Taylor’s apartment to play music.
Mr. Baggett and Ms. Smith arrived at Mr. Taylor’s apartment at -3- around 10:00 or 11:00 p.m. Although Defendant offered some LSD
to Mr. Baggett, he declined that offer. After remaining at Mr.
Taylor’s apartment for a couple of hours, Mr. Baggett and Ms.
Smith left because, as Mr. Baggett noted, “[y]ou could tell that
they were starting to feel the effects of the acid” and because,
“if you’re not in the same mindset as them, it kind of makes you
feel awkward.”
Although Defendant was “really chill” and “just kind of
relaxed” for most of the night, Mr. Taylor noticed a change in
Defendant’s behavior at around 5:00 a.m. on 3 April 2011. At
that point, Defendant went from being “chill” to “pretty-much
ready to go” and wanted to load up all of the guitar-related
equipment in his car so that Mr. Taylor could come play guitars
at Defendant’s house. After Mr. Taylor told Defendant that he
was not going to comply with Defendant’s wishes, Defendant
grabbed Mr. Taylor’s amplifier, unplugged it, and put it in his
car.
As Mr. Taylor attempted to retrieve his amplifier from
Defendant’s car, the two men exchanged words in the parking lot.
Mr. Taylor had never seen Defendant, who was “agitated” and
“belligerent,” act in this manner before. Upon regaining
possession of his amplifier, Mr. Taylor returned to his
apartment and locked the door in an effort to avoid a fight. -4- After beating on the door of Mr. Taylor’s apartment for a few
minutes, Defendant got into his car, revved the engine a couple
of times, and drove off.
The intersection of 4th Street and Arendell Street, at
which Mr. Taylor’s apartment was located, was depicted on a
video camera operated by the State Ports Authority on the early
morning of 3 April 2011. According to the images captured by
this video camera, three vehicles were traveling eastbound
toward the high rise bridge that connected Morehead City and
Beaufort at 5:32 a.m. on 3 April 2011. The first of these
vehicles was a Beaufort city police car, which was followed
about eight seconds later by a Toyota Tacoma pickup truck driven
by William Henry Knott, Jr., and about thirteen to fifteen
seconds later by Defendant’s Mitsubishi sports car. According
to the images captured by the video camera, Defendant’s
Mitsubishi made a proper stop at a stop sign and turned right
before proceeding toward the bridge.
A different video camera, which was also operated by the
State Ports Authority, faced the high rise bridge and depicted
Mr. Knott’s pickup truck as it traveled east across the bridge.
Defendant’s vehicle, which appeared as a “little white dot,”
could be seen on images captured by this second camera as it
headed towards Mr. Knott’s truck. According to the images -5- captured on the second video camera, an explosion occurred as
Defendant’s vehicle crashed into the back of Mr. Knott’s truck.
According to Lieutenant James Gaskill of the Morehead City
Police Department, who testified as an expert in accident
reconstruction, Defendant’s vehicle drove up underneath Mr.
Knott’s pickup truck at the moment of impact and pushed his
truck toward the right to a point adjacent to the bridge’s
guardrail. At that point, Mr. Knott’s truck flipped over, slid
down the guardrail, and fell from the bridge. Lieutenant
Gaskill estimated that, at the time of the collision, Mr.
Knott’s pickup truck was traveling at a minimum speed of 54
miles per hour, that Defendant’s Mitsubishi was traveling at a
minimum speed of 102 miles per hour, and that Defendant made no
attempt to stop, slow, or otherwise avoid the crash. Mr. Knott
died as a result of a broken neck sustained in the collision.
Nivard Malcolm lived near the foot of the high rise bridge.
About 5:30 a.m. on 3 April 2011, Mr. Malcolm heard a loud
rumbling noise that lasted for about ten to fifteen seconds and
sounded like a cinematic depiction of a train crash. After he
went outside, Mr. Malcolm saw a smoking car that had sustained
damage to its front end. Although the vehicle was unoccupied,
Mr. Malcolm saw someone lying on his back in the vicinity of the
car. When Mr. Malcolm approached the person in question and -6- inquired about his condition, the person repeatedly said, “I’m
dead,” then got up; swore at Mr. Malcolm; said, “I’m going
home”; and walked away in the direction of Beaufort. Although
the person whom he observed was agitated, Mr. Malcolm thought
that he was walking with an unremarkable gait at the time of his
departure.
Deputies James McClenny and Michael Mull of the Carteret
County Sheriff’s Department were among the first persons to
arrive at the scene of the collision on the high rise bridge.
Both deputies observed a large amount of debris on the bridge at
the time of their arrival. More specifically, Deputy McClenny
found what appeared to be the rear glass portion of a pickup
truck that displayed a complete VIN number that was assigned to
a pickup truck registered to Mr. Knott. After realizing that a
large section of the bridge’s guardrail was missing and looking
over the side of the bridge without seeing a car in the water,
Deputy Mull walked down the bridge and saw a burgundy
convertible in the bushes off the eastbound side of the road.
Although Deputy Mull did not see the driver of the convertible,
he did observe a bag of marijuana and a marijuana grinder on the
ground adjacent to the driver’s seat.
After being dispatched to the high rise bridge in the
aftermath of the collision, Officer Chris Morey of the Beaufort -7- Police Department was told to be on the lookout for a pedestrian
heading in the direction of Beaufort. Subsequently, Officer
Morey observed a white male, who was later identified as
Defendant, walking in the middle of the road towards Beaufort.
After Officer Morey approached Defendant and attempted to speak
to him, Defendant said something about “a guitar and Jesus” and
admitted that he had been driving the wrecked vehicle that had
been found near the railroad tracks at the foot of the high rise
bridge. However, when Officer Morey attempted to get Defendant
to come to his patrol vehicle for further questioning, Defendant
“flipped out” and started cursing, swinging his arms, and trying
to shove Officer Morey.
As a result of his inability to detain Defendant on his
own, Officer Morey radioed Officer Tim Tucker of the Beaufort
Police Department with a request for assistance. At the time
that Officer Tucker arrived, Defendant was on the ground with
Officer Morey, who was attempting to position Defendant’s hands
behind his back for the purpose of placing Defendant in
handcuffs. Acting jointly, Officers Tucker and Morey were able
to handcuff Defendant.
After Defendant had been detained, Officers Tucker and
Morey noticed that Defendant had a small fresh bump, or “goose
egg,” on his forehead; that his pupils were very large and -8- dilated; and that Defendant was behaving in an erratic manner.
More specifically, Defendant was agitated, angry, unable to sit
still, and randomly broke down in tears. According to Officer
Tucker, Defendant was “talking out of his head,” repeating
random and apparently irrelevant statements such as “Jesus
Christ” and “I want a guitar.” Defendant did admit to having
smoked marijuana earlier. Based upon the observations that he
made of Defendant’s condition, appearance, and conduct, Officer
Tucker concluded that Defendant was under the influence of some
impairing substance.
Emergency medical personnel were dispatched to the scene as
well. Dione Willis, a paramedic with Beaufort Emergency Medical
Services, observed that Defendant was acting in a hostile and
belligerent manner and that he was waving his arms around to
such an extent that the officers were having a difficult time
settling him down. Defendant treated the emergency medical
service personnel in a hostile manner, screaming over and over,
“Jesus Christ. Jesus Christ. I want a Ferrari. Where’s my
guitar? I’m going to slap you--with expletives--if I don’t get
it.” After placing Defendant on a heart monitor, the emergency
medical service personnel noticed that Defendant’s heart was
beating very rapidly and that he “didn’t act like he was in his
right mind.” Although Defendant had a “little bit of a goose -9- egg” on his mid-forehead area, the emergency medical personnel
saw no evidence that Defendant had sustained any major injury.
The law enforcement officers and emergency medical service
personnel who were present at the scene needed between eight and
ten minutes to get Defendant under control and into the
ambulance because he was fighting and screaming and cursing. On
her medical report prepared for the hospital, Ms. Willis wrote
that Defendant “was higher than a kite.”
After his arrival at Carteret General Hospital, the
attending medical personnel noted that Defendant’s pupils were
dilated and that he had a contusion on his forehead. Defendant
continued to act in an erratic manner after reaching the
hospital. For example, Defendant was extremely agitated and
made bizarre statements like “Jesus Christ. Jesus Christ. I
want my guitar. I want a fast car.” As a result of his
behavior, Defendant had to be restrained. Although Defendant
admitted having smoked marijuana, he denied that he had consumed
any “spice or bath salts.” In light of Defendant’s behavior,
Emergency Room Technician David Garner reached the conclusion
that Defendant was under the influence of some substance other
than marijuana and that Defendant was “really really impaired.”
At the hospital, the attending medical personnel gave
Defendant two doses of the sedative Ativan in order to calm him -10- down sufficiently so that a CT scan could be performed. Since
the Ativan did not sufficiently sedate Defendant, he was given
Haldol, an anti-psychotic drug, which did operate in such a
manner that the CT scan could be performed. A sample of
Defendant’s urine was taken for later chemical analysis.
Defendant’s blood was not, however, tested for the presence of
LSD.
Dr. John Robert Duda, the physician who was primarily
responsible for treating Defendant at Carteret Medical Center,
explained that unusual behavior is sometimes observed following
a brain injury. After examining the results of Defendant’s CT
scan, Dr. Duda saw no signs that Defendant had sustained any
brain injury.1 Although testing performed upon a urine sample
taken from Defendant revealed the presence of a metabolite of
marijuana and benzodiazepine, a component of valium and other
Ativan-like drugs, Dr. Duda expressed the opinion that the
benzodiazepine metabolite that was reflected in the drug screen
probably did not stem from the Ativan administrated to Defendant
at Carteret General and could have resulted from consumption
that occurred at any time from thirty minutes to two days before
the urine sample in question was taken. As a result of the fact
1 However, Defendant’s Glasgow coma scale results indicated that he had sustained a brain injury that registered in the low end of the moderate injury portion of the scale. -11- that the screening performed upon the urine sample taken from
Defendant did not disclose the concentration of the marijuana
found in Defendant’s system, Dr. Duda was unable to determine
the effect that the marijuana had on Defendant’s faculties.
In light of Defendant’s agitated behavior and the size of
his pupils, Dr. Duda had concerns that Defendant might have
consumed “sympathomimetics,” which are drugs, such as cocaine,
ecstasy and amphetamines, that stimulate an individual’s nervous
system. However, the drug screen revealed that none of these
drugs were present in Defendant’s system. Although LSD would
generally be classified as an hallucinogen, the consumption of
LSD can cause dilated pupils. According to Dr. Duda, some LSD
users have a very calm experience after consuming LSD, while
others become agitated and have a “bad trip.” Although dilated
pupils can result from a concussion or from a frightening
experience and although symptoms such as confusion, lack of
focus, incoherent speech, hostility, and short-term memory loss
can result from a brain injury, Defendant’s good pupil response
and large dilation led Dr. Duda to believe that “there was
something else in addition to the head injury that was producing
[Defendant’s dilated pupils].” Ultimately, Dr. Duda concluded
that Defendant suffered an acute blunt head injury and multiple -12- trauma due to a motor vehicle collision, and had altered mental
status and a concussion.
Lieutenant Tim Tomczak of the Raleigh Police Department, an
expert in recognizing the drugs consumed by other individuals
based on the symptoms exhibited by such persons, reviewed
Defendant’s case file, which included various medical reports
and statements taken from the law enforcement and medical
personnel who had observed Defendant, and testified that,
“overwhelmingly, what was given to me was very consistent with
LSD impairment.” According to Lieutenant Tomczak, LSD, like
cocaine and amphetamines, is classified as a sympathomimetic
agent. Lieutenant Tomczak, like Dr. Duda, believed that
Defendant’s elevated pulse, elevated blood pressure, and dilated
pupils indicated that Defendant was under the influence of a
sympathomimetic drug. In addition, Lieutenant Tomczak opined
that Defendant’s bizarre behavior and the strange statements
that he had made indicated that Defendant was under the
influence of an hallucinogenic drug. In Lieutenant Tomczak’s
opinion, the statements that Defendant made about “guitars,”
“Ferraris,” and “Jesus Christ” were more consistent with the
consumption of an hallucinogenic agent like LSD than they were
with the consumption of drugs like cocaine or amphetamines. Dr.
Duda’s testimony that a concussion can result in dilated pupils, -13- slurred speech, memory loss, agitation, and bizarre statements
did not surprise Lieutenant Tomczak, given that these symptoms
are consistent with LSD consumption as well. According to
Lieutenant Tomczak, everything in the medical records was
consistent with LSD use, with the exception of Defendant’s
uncontrollable nystagmus of the eyes, a symptom that was
inconsistent with LSD use alone and that could be consistent
with the incurrence of a brain injury.
After being discharged from the hospital and released into
police custody at around 1:00 p.m. on 3 April 2011, Defendant
was interviewed by Agent David Chunn of the North Carolina
Alcohol Law Enforcement Division who was, at that time, an
officer with the Morehead City Police Department. Once he had
waived his Miranda rights, Defendant told Agent Chunn that he
had gone to a friend’s house to upgrade a guitar, that he had
been there for a few hours, and that he had left his friend’s
apartment at approximately 5:30 a.m. As he drove home over the
high rise bridge, Defendant noticed at the last second that
there was a vehicle in front of him. However, it was too late
to avoid a collision by the time that he noticed the other
vehicle. Defendant estimated that he was traveling about 50 or
55 miles per hour at the time that he collided with the other
vehicle. -14- B. Procedural History
On 3 April 2011, magistrate’s orders charging Defendant
with felonious hit and run driving involving serious injury or
death and felony death by vehicle were issued. On 2 May 2011,
the Carteret County grand jury returned bills of indictment
charging Defendant with hit and run driving involving serious
injury or death and second degree murder. The charges against
Defendant came on for trial before the trial court and a jury at
the 16 April 2012 criminal session of Carteret County Superior
Court. On 26 April 2012, the jury returned a verdict convicting
Defendant as charged. At the conclusion of the ensuing
sentencing hearing, the trial court consolidated Defendant’s
convictions for judgment and entered a judgment sentencing
Defendant to a term of 132 to 168 months imprisonment.
Defendant noted an appeal to this Court from the trial court’s
judgment.
II. Substantive Legal Analysis
A. Motion to Dismiss
In his initial challenge to the trial court’s judgment,
Defendant argues that the trial court erred by denying his
motion to dismiss the second degree murder charge. More
specifically, Defendant argues that the trial court should have
dismissed the second degree murder charge on the grounds that -15- the record did not contain sufficient evidence to establish that
he acted with malice. Defendant’s argument lacks merit.
1. Standard of Review
A motion to dismiss for insufficiency of the evidence
requires the court to determine whether the record contains
substantial evidence supporting each element of the offense
charged and identifying the defendant as the perpetrator. State
v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651–52 (1982)
(citing State v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294
(1971)). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d
164, 169 (1980) (citations omitted). In deciding a motion to
dismiss, the court is to consider the record in the light most
favorable to the State, giving the State the benefit of every
reasonable inference that can be drawn from the evidence. State
v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). The
fact that the record reveals the presence of contradictions and
discrepancies in the evidence does not warrant dismissal of the
case, since such contradictions or discrepancies simply signal
the existence of issues for the jury’s consideration. State v.
Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
2. Sufficiency of the Evidence of Malice -16- Second degree murder is “the unlawful killing of a human
being with malice but without premeditation and deliberation.”
State v. Snyder, 311 N.C. 391, 393, 317 S.E.2d 394, 395 (1984).
“While an intent to kill is not a necessary element of second
degree murder, the crime does not exist in the absence of some
intentional act sufficient to show malice and which proximately
causes death.” State v. Wilkerson, 295 N.C. 559, 580, 247
S.E.2d 905, 917 (1978). The malice necessary for guilt of
second degree murder exists “when an act which is inherently
dangerous to human life is done so recklessly and wantonly as to
manifest a mind utterly without regard for human life and social
duty and deliberately bent on mischief.” State v. Reynolds, 307
N.C. 184, 191, 297 S.E.2d 532, 536 (1982). In order to prove
the existence of malice in a case arising from the operation of
a motor vehicle, “[t]he State need only show ‘that defendant had
the intent to perform the act of driving in such a reckless
manner as reflects knowledge that injury or death would likely
result, thus evidencing depravity of mind,’” State v. Miller,
142 N.C. App. 435, 441, 543 S.E.2d 201, 205 (2001) (quoting
State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 304 (2000)),
with sufficiently reckless conduct occurring while the defendant
drives in an impaired state being sufficient to support a second
degree murder conviction. State v. Patterson, 209 N.C. App. -17- 708, 715, 708 S.E.2d 133, 137-38, disc. review denied, 365 N.C.
203, 709 S.E.2d 920 (2011). The extent to which the State has
adduced sufficient evidence to establish the existence of malice
depends, in the final analysis, on the facts and circumstances
present in each case. State v. McBride, 109 N.C. App. 64, 67,
425 S.E.2d 731, 733 (1993).
A careful review of the record developed before the trial
court, when taken in the light most favorable to the State,
indicates the existence of ample evidence tending to show that
Defendant acted with the malice necessary to support a second
degree murder conviction. As the record reflects, Defendant,
after staying up virtually all night, drove over the high rise
bridge at a speed in excess of 100 miles per hour and slammed
into the rear of Mr. Knott’s truck without having made any
effort to slow down or to take any sort of evasive action in an
attempt to avoid the collision. In addition, the existence of
evidence to the effect that Defendant had been in possession of
LSD within hours prior to the collision; that Defendant’s
behavior suddenly became “agitated” and “belligerent”; that
Defendant had dilated pupils, behaved erratically, and made
bizarre statements after the collision; that law enforcement and
medical personnel believed that Defendant was “higher than a
kite” and “really really impaired”; and that an expert witness -18- had concluded that Defendant’s behavior was consistent with that
which would be expected following the consumption of LSD
provides ample justification for a conclusion that Defendant was
substantially impaired by the effects of LSD at the time that he
collided with Mr. Knott’s truck. Thus, the record contains
ample evidence tending to show that Defendant engaged in
exceedingly reckless conduct while driving in an impaired
condition. As a result, when considered in the light most
favorable to the State, we believe that the record contains more
than sufficient evidence to establish “‘that defendant had the
intent to perform the act of driving in such a reckless manner
as reflects knowledge that injury or death would likely result,
thus evidencing depravity of mind,’” Miller, 142 N.C. App. at
441, 543 S.E.2d at 205 (quoting Rich, 351 N.C. at 395, 527
S.E.2d at 403), a determination that supports the trial court’s
decision to deny Defendant’s dismissal motion.
In seeking to persuade us to reach a different result,
Defendant argues that, while his conduct was clearly reckless,
the recklessness that he exhibited at the time of the collision
did not rise to the level necessary to support a second degree
murder conviction. As support for his position, Defendant
argues that the record reveals nothing more than “such
recklessness or carelessness . . . as imports a thoughtless -19- disregard of consequences or a heedless indifference to the
safety and rights of others,” State v. Mack, 206 N.C. App. 512,
517, 697 S.E.2d 490, 494 (citing State v. Wade, 161 N.C. App.
686, 589 S.E.2d 379, 382 (2003)), disc. review denied, 364 N.C.
608, 704 S.E.2d 276 (2010), of the type necessary to support an
involuntary manslaughter conviction; cites several cases
concluding that the record contained sufficient evidence to
establish the existence of malice; and argues that those
decisions establish that a second degree murder conviction, as
compared to an involuntary manslaughter conviction, would not be
appropriate in the absence of unequivocal evidence of impairment
or driving after the defendant’s license had been revoked,
multi-faceted bad driving, and one or more prior convictions for
impaired driving or driving while license revoked. As a result
of the fact that he had a clean driving record, that the testing
performed at the hospital did not reveal the presence of
alcohol, that there were alternative explanations for his
physical condition and the behaviors that he exhibited after the
collision, and that he did not run a stop sign, swerve or drive
on the wrong side of the road, Defendant asserts that the record
did not demonstrate the existence of the malice needed to
support a second degree murder conviction. -20- The fact that Defendant’s driving may not have been as
deficient as others deemed to have acted with malice does not,
contrary to Defendant’s argument, establish that the record was
insufficient to support his conviction for second degree murder.
As this Court has previously stated, “we need not engage in fine
tuning exactly how fast a defendant must be driving, or how many
stop signs or red lights he must run to provide sufficient
evidence of malice.” State v. Lloyd, 187 N.C. App. 174, 179,
652 S.E.2d 299, 302 (2007), cert. denied, 363 N.C. 586, 683
S.E.2d 214 (2009). Although the fact pattern present in this
case is, not surprisingly, somewhat different than that present
in other cases that have been decided in this jurisdiction in
the past, we have no hesitation in concluding that driving at a
high rate of speed on a high rise bridge while in an impaired
condition and colliding with another vehicle from the rear
without any effort having been made to avoid the collision is
more than sufficient to establish the existence of the malice
necessary for a second degree murder conviction. As a result,
the trial court did not err in denying Defendant’s dismissal
motion.
B. Jury Instructions
In his second challenge to the trial court’s judgment,
Defendant argues that the trial court erred by instructing the -21- jury that voluntary intoxication did not suffice to negate the
existence of the malice necessary for guilt of second degree
murder. More specifically, Defendant contends that a voluntary
intoxication instruction should not have been delivered given
that Defendant had been charged with second, rather than first,
degree murder and given that the challenged instruction
undermined Defendant’s contention that he was not impaired at
the time of the collision. We do not find Defendant’s argument
persuasive.
“[Arguments] challenging the trial court’s decisions
regarding jury instructions are reviewed de novo by this Court.”
State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149
(2009). “However, an error in jury instructions is prejudicial
and requires a new trial only if ‘there is a reasonable
possibility that, had the error in question not been committed,
a different result would have been reached at the trial out of
which the appeal arises.’” State v. Castaneda, 196 N.C. App.
109, 116, 674 S.E.2d 707, 712 (2009) (quoting N.C. Gen. Stat. §
15A-1443(a) (2007)).
2. Voluntary Intoxication Instruction
At the conclusion of Defendant’s trial, the trial court
instructed the jury with respect to the issue of Defendant’s -22- guilt of second degree murder and included in its instructions
concerning the issue of Defendant’s guilt of that offense a
statement contained in a footnote to N.C.P.J.I. 206.32A to the
effect that, “[i]n a prosecution for second-degree murder, one’s
voluntary intoxication from drugs does not negate the element of
malice.”2 According to Defendant, a voluntary intoxication
instruction such as that at issue here should only be given in
cases involving specific intent crimes such as first degree
murder, where “a potential defense to negate specific intent to
kill arises on evidence of intoxication.” Although we agree
with Defendant’s contention that voluntary intoxication is only
a defense to specific intent crimes, we are unable to concur in
his assertion that the trial court erred by delivering the
challenged instruction in this case.
2 As Defendant notes, the footnote from which the language utilized by the trial court was derived contains a citation to the decision in State v. Snyder, 311 N.C. 391, 393-94, 317 S.E.2d 394, 395-96 (1984). Although Defendant argues at some length that nothing in Snyder supports the use of the language contained in the trial court’s instruction in a second degree murder case arising from the operation of a motor vehicle, we note that the citation to Snyder in the footnote in question supports the definition of malice utilized in the relevant pattern instruction and has nothing to do with the language relating to the impact of a defendant’s voluntary intoxication upon the existence or non-existence of the malice needed to support a second degree murder conviction. As a result, we need not address Defendant’s challenge to the citation to Snyder contained in N.C.P.J.I. 206.32A in this opinion. -23- As Defendant notes, “[v]oluntary intoxication is a defense
only to those crimes which require a showing of a specific
intent.” State v. White, 291 N.C. 118, 126, 229 S.E.2d 152, 157
(1976). For that reason, voluntary intoxication is not a
defense to general intent crimes such as second degree murder.
See State v. Harvell, 334 N.C. 356, 368, 432 S.E.2d 125, 131
(1993) (stating that “the law does not require any ‘specific
intent’ for a defendant to be guilty of second-degree murder,
and a defendant’s voluntary intoxication does not negate that
crime”); State v. Harris, 171 N.C. App. 127, 131, 613 S.E.2d
701, 704 (2005) (stating that “voluntary intoxication is no
defense to a general intent crime or a strict liability
offense.”) In the face of a contention similar to that advanced
in this case in an appeal arising from the defendant’s
conviction for failing to register as a sex offender, this Court
held that, since the defendant had not been charged with
committing a specific intent crime, the defendant was not
entitled to rely on a voluntary intoxication defense and that
“the trial court did not err by instructing the jury
accordingly.” Harris, 171 N.C. App. at 132, 613 S.E.2d at 704.
Similarly, since Defendant was not charged with committing a
specific intent crime in this case, he was not entitled to rely
on a voluntary intoxication defense and the trial court did not -24- err by communicating that information to the jury in its
instructions.3
Even if the trial court did, in fact, err by instructing
the jury that voluntary intoxication did not suffice to negate
the existence of malice in this case, we are unable to see how
the delivery of that instruction prejudiced Defendant. In
attempting to persuade us that the necessary prejudice exists,
Defendant argues that the challenged instruction effectively
pre-judged the factual question of whether Defendant was, in
fact, intoxicated and that acceptance of his contention that he
was not impaired was critical to his attempt to avoid a second
degree murder conviction. We believe, however, that Defendant’s
3 In his brief, Defendant asserts that a decision that the trial court did not err by including the challenged instruction concerning the impact of involuntary intoxication on the existence or non-existence of the malice needed to support a finding that Defendant was guilty of second degree murder would be tantamount to a determination that the challenged instruction should be given in every case in which the defendant was accused of second degree murder on the basis of an unintentional killing. We are unable to agree with this assertion given that such an instruction is not essential to an adequate discussion of the substantive issues that a jury is called upon to resolve in a second degree murder case arising from the operation of a motor vehicle. As a result, even though it might not be an error of law to deliver an instruction like the one at issue here in a second degree murder case arising from the operation of a motor vehicle, we see no reason for the delivery of such an instruction in such cases on a routine basis and suggest that the trial bench would be well-advised to refrain from delivering such an instruction in second degree murder cases arising from the operation of a motor vehicle in the absence of some specific reason for delivering such an instruction. -25- argument reads too much into the challenged instruction, which
merely stated that “voluntary intoxication does not negate the
element of malice” and never suggested that Defendant was, in
fact, intoxicated. For that reason, we conclude that, even if
the trial court erred by instructing the jury that voluntary
intoxication did not negate the existence of malice, we do not
believe that “there is a reasonable possibility that, had the
error in question not been committed, a different result would
have been reached.” Castaneda, 196 N.C. App. at 116, 674 S.E.2d
at 712. As a result, Defendant is not entitled to relief on
appeal based on the delivery of the challenged instruction.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
none of Defendant’s challenges to the trial court’s judgment
have merit. As a result, the trial court’s judgment should, and
hereby does, remain undisturbed.
NO ERROR.
Judges ROBERT N. HUNTER, JR. and DAVIS concur.
Report per Rule 30(e).