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State v. Rich3/2/1999
Appeal by defendant from judgments entered 25 September 1997 by Judge W. Douglas Albright in Guilford County Superior Court. Heard in the Court of Appeals 13 January 1999.
Matthew Thomas Rich ("defendant") was convicted of two counts of second-degree murder and was sentenced to two consecutive prison terms of 132-168 months. For the reasons stated herein, we uphold the convictions rendered and the sentences imposed.
The State's evidence at trial tended to show the following facts: At approximately 10:15 p.m. on 29 November 1996, Todd Allan Bush and James Brady Litrell were traveling on Horse Pen Creek in Greensboro, North Carolina, when their vehicle was struck head-on by defendant's car. The collision occurred at a sharp curve in the road where the speed limit was 35 miles per hour ("mph"). The two-lane stretch of road leading up to the curve was a no-passing zone with a speed limit of 40 mph. Nonetheless, seconds before colliding with Bush and Litrell, defendant passed the vehicle traveling ahead of him and entered the curve at a speed in excess of 70 mph. Bush and Litrell died as a result of the collision.
Officer L. E. Farrington of the Greensboro Police Department arrived at the scene shortly after the collision occurred and noted a strong odor of alcohol on defendant's breath. Karrina Crews, a member of the EMS team that responded to the accident, testified that she also detected a strong odor of alcohol on defendant as she and the other paramedics removed him from his vehicle. Crews further testified that defendant was verbally abusive and combative with the paramedics while they attended to his medical needs. The EMS team transported defendant to Moses Cone Hospital for treatment of his injuries. The treating physician, Dr. Kai-Uwe Mazur, asked defendant a series of questions to determine his general physical condition. When Dr. Mazur asked defendant whether he drank alcohol, defendant admitted that he frequently drank alcohol and that on the night of the accident, he drank "several beers and several shots." Dr. Mazur noted this statement in defendant's medical records.
Officer Gerald Austin interviewed defendant at the hospital at 11:35 p.m. Officer Austin reported a moderate to strong odor of alcohol on defendant's person. The officer further noted that defendant's eyes were bloodshot and watery and that defendant had trouble focusing on him during the interview. Based on these observations, Officer Austin formulated the opinion that defendant was appreciably impaired and "unfit to operate machinery or equipment of any type." Nothing in the record, however, indicates that a blood alcohol test was administered to defendant on the night of the accident.
The State also presented evidence of defendant's prior driving record. This evidence disclosed that defendant was convicted of the following traffic violations: driving 75 mph in a 45 mph zone on 3 October 1988; driving 76 mph in a 45 mph zone on 6 September 1990; reckless driving and fleeing to elude arrest on 3 October 1991; driving 70 mph in a 35 mph zone on 11 August 1995; and driving 70 mph in a 55 mph zone on 11 May 1994.
At the Conclusion of the State's evidence, defendant moved to dismiss the second-degree murder charges, and the trial Judge denied the motion. Thereafter, the court charged the jury on second-degree murder and involuntary manslaughter, emphasizing that the element of malice distinguished the two offenses. The court gave the following instruction regarding malice:
"Now, members of the jury, our courts have defined malice, and our courts have declared that there are three kinds of malice in our law of homicide. One kind of malice connotes a poss
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