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State v. Long10/18/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Defendant appeals his convictions for second-degree murder and driving while impaired. For the reasons stated herein, we hold that defendant received a trial free of prejudicial error, but we remand the case for resentencing.
The State's evidence presented at trial tended to show the following: On 11 June 2002, a vehicle operated by defendant collided with a pickup truck waiting to make a left turn at the intersection of U.S. 221, N.C. 88, and N.C. 16 in East Jefferson. Defendant's vehicle spun around and collided broadside with another vehicle located behind the pickup truck. The impact threw defendant partially out of the back window of his vehicle. Defendant's passenger, Martha Kalen ("Kalen"), sustained fatalinjuries during the accident, including transection of the aorta. Kalen was pronounced dead upon arrival at the hospital. Subsequent blood tests of defendant revealed that defendant had a blood alcohol concentration of .16 at the time of the accident.
Prior to trial, the State filed a motion in limine to exclude evidence of Kalen's blood alcohol content or alcohol consumption. In its motion, the State argued that no evidence could be produced which tended to show that Kalen's alcohol consumption was a contributing factor to her death. In response, defendant argued that Kalen's blood alcohol concentration was relevant and admissible because acute alcohol intoxication was listed on the final autopsy diagnosis; that acute and chronic alcoholism was listed on the death certificate as a significant contributing factor to Kalen's death; and that defendant intended to offer evidence that Kalen, as a result of acute alcohol intoxication, was suffering a seizure immediately prior to her death and was thrashing about in the vehicle due to the seizure.
The trial court declined to rule upon the motion in limine until after it had heard testimony from witnesses. The trial court subsequently heard trial and voir dire testimony from Dr. Richard Calhoun ("Dr. Calhoun"), the emergency room physician who prepared the death certificate, Dr. Patrick E. Lantz ("Dr. Lantz"), the forensic pathologist who prepared the autopsy report, and Dr. Ruth Ellen Winaker ("Dr. Winaker"), the toxicologist who prepared the toxicology report. Following this testimony, the trial court ruled in the State's favor, concluding that the evidence was not relevantand that any probative value of the evidence was outweighed by the danger of misleading the jury or confusing the issues.
At trial, witnesses testified that defendant's vehicle had been traveling at an estimated speed of sixty-five to eighty miles per hour as it approached the intersection. Defendant testified that at the time the accident occurred, he was transporting Kalen home. However, after Kalen became unable to speak, defendant accelerated his vehicle in an attempt to rush Kalen to the hospital. Defendant further testified that as the vehicle approached the intersection, Kalen grabbed the steering wheel and thus caused the accident.
The jury found defendant guilty of both second-degree murder and driving while impaired. At the sentencing stage, the trial court found as an aggravating factor to the second-degree murder offense that defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person. As mitigating factors, the trial court found that de
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