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State v. Blackwell12/7/1999
Filed: 7 December 1999
Appeal by defendant from judgment entered 17 April 1998 by Judge Orlando F. Hudson in Durham County Superior Court. Heard in the Court of Appeals 25 August 1999.
This case stems from a drunk driving accident that occurred on 27 February 1997, in which a four-year-old girl was killed. Defendant was indicted on 3 March 1997 for murder, four counts of assault with a deadly weapon inflicting serious injury, felonious impaired driving, driving with his license revoked, driving left of center, possession of drug paraphernalia, and possession of an open container. As part of a plea bargain, defendant subsequently pled guilty to all charges except murder and the assaults. The trial court accepted his plea and entered prayer for judgment continued until the remaining charges were adjudicated. The defendant was then tried at the 16 March 1998 Session of the Durham County Superior Court for the murder and assaults. On 16 April 1998, the jury returned a verdict finding defendant guilty of three counts of assault with a deadly weapon, one count of assault with a deadly weapon inflicting serious injury, and first degree murder under the felony murder rule. Defendant now appeals.
Defendant first contends that the State violated its plea agreement with him. To fully understand defendant's argument, we must briefly summarize how the State proceeded against defendant for felony murder. Defendant was charged with five felonies that could have formed the underlying felony for first degree murder: four counts of assault with a deadly weapon inflicting serious injury and one count of felonious impaired driving. Defendant entered into a plea agreement purporting to limit the underlying felonies the State could use at trial. Specifically, in return for defendant's guilty pleas to felonious impaired driving and the misdemeanors, the State bargained not to "use the charge of felonious impaired driving as a theory of first degree murder under the felony murder rule." (1 Tr. at 12).
The State then proceeded at trial using the four assaults as the underlying felonies for first degree murder. For the driver of an automobile to be convicted of assault with a deadly weapon, the State must show either (1) his specific intent to inflict injury or (2) his culpable negligence. State v. Eason, 242 N.C. 59, 65, 86 S.E.2d 774, 778 (1955); see also State v. Curie, 19 N.C. App. 17, 20, 198 S.E.2d 28, 30 (1973) (stating that specific intent is not a required element for assault under section 14-32(b)). The State attempted to show culpable negligence. But to do so, it introduced into evidence defendant's guilty plea as to the felonious impaired driving and then argued to the jury that felonious impaired driving is culpable negligence as a matter of law. See State v. McGill, 314 N.C. 633, 637, 336 S.E.2d 90, 92 (1985) (holding that driving while impaired is culpable negligence as a matter of law). In sum then, the State did not use the felonious impaired driving directly as the underlying felony, but did use it derivatively to prove the assaults, which were then used as the underlying felonies themselves. Defendant contends this derivative use violated his plea agreement. We agree.
Even though a plea agreement arises in the context of a criminal proceeding, it remains in essence a contract. State v. Rodriguez, 111 N.C. App. 141, 144, 431 S.E.2d 788, 790 (1993). However, it is markedly different from an ordinary commercial contract. By pleading guilty, a defendant waives many constitutional rights, not the least of which is his right to a jury trial. State v. Pait, 81 N.C. App. 286, 289, 343 S.E.2d 573, 576 (1986). "No other right of the individual has been so zealously guar
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