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State v. Doyle11/18/2003
e pursuing officers approached Exit 24, stop sticks were placed on the Interstate to end the chase. Defendant swerved right to avoid hitting the stop sticks and collided into a Saturn vehicle that had also swerved right to avoid the stop sticks. The passenger in the Saturn vehicle was killed instantly. After the accident, defendant exited the Ford Expedition, jumped the guardrail and ran, but was captured by police officers. Officer Hawkins testified that the time lapse between the robbery of Cocke's vehicle and the fatal collision was approximately thirty minutes.
II. Issues
The issues in this case are whether the trial court erred: (1) in denying defendant's motion to dismiss the charge of first-degree felony murder; (2) in refusing to instruct the jury on the defendant's requested special jury instruction on insulating acts of negligence; (3) by trying defendant and entering judgment for first-degree murder by use of the "short-form" indictment; and (4) whether defendant's counsel provided ineffective assistance of counsel. All remaining assignments of error not argued are waived. N.C.R. App. P. 28(b)(6) (2002).
III. Motion to Dismiss
Defendant assigns as error the denial of his motion to dismiss the charge of first-degree felony murder. Defendant argues that his conviction must be vacated because a break in time, place, and causal relationship occurred between the victim's death and the alleged underlying felony of robbery with a dangerous weapon. We disagree.
"In ruling on a motion to dismiss, the trial court need determine only whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator." State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998). Substantial evidence is that amount of relevant evidence necessary to persuade a rational mind to accept a conclusion. State v. Frogge, 351 N.C. 576, 584, 528 S.E.2d 893, 899, cert. denied, 531 U.S. 994, 148 L.Ed. 2d 459 (2000). Whether substantial evidence exists is not a question of weight, but is a test of the sufficiency of the evidence. State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001). The evidence is viewed in the light most advantageous to the State, after drawing all reasonable inferences. Id. "Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence." State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988).
A murder is a felony murder when it is "committed in the perpetration or attempted perpetration of any . . . robbery . . . committed or attempted with the use of a deadly weapon . . . ." N.C. Gen. Stat. § 14-17 (2001). " killing is committed in the perpetration of armed robbery when there is no break in the chain of events between the taking of the victim's property and the force causing the victim's death, so that the taking and the homicide are part of the same series of events, forming one continuous transaction." State v. Braxton, 344 N.C. 702, 713, 477 S.E.2d 172, 178 (1996) (quoting State v. Handy, 331 N.C. 515, 529, 419 S.E.2d 545, 552 (1990)). Our courts have held that "escape is ordinarily within the res gestae of the felony and that a killing committed during escape or flight is ordinarily within the felony-murder rule." State v. Squire, 292 N.C. 494, 512, 234 S.E.2d 563, 573 (1977).
Defendant argues the killing did not occur during escape or flight from the armed robbery and asserts that he had reached a place of safety by driving on the Interstate at the posted speed limit and before the high-speed chase ended in the death of the victim.
The evidence showed that at
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