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State v. Blackwell9/7/2004
Following multiple convictions stemming from driving while impaired and causing a tragic accident, Defendant Timothy Earl Blackwell appeals contending he is entitled to a new trial because the trial court (I) allowed the jury to consider inadmissible 404(b) evidence; (II) directed the jury to find malice and (III) provided the jury with an erroneous written jury instruction. Defendant also contends (IV) the trial judge should have recused himself; (V) the driving while license revoked charge was not supported by sufficient evidence; (VI) the trial court failed to correct the prosecutor's grossly improper questions, comments and arguments and (VII) a new trial is warranted because a juror wasimproperly excused for cause. We uphold Defendant's conviction and sentence; however, we grant defendant's motion for appropriate relief and remand for resentencing in accordance with this opinion.
The incident giving rise to Defendant's convictions arose on 27 February 1997 while he drove a red pickup truck on Guess Road in Durham, North Carolina. Two people observed Defendant "jump a curb," knock over several trash cans and "cut back" across Guess Road into the far left lane of oncoming traffic at approximately seventy to seventy-five miles per hour. Thereafter, witnesses observed him running a red light, swerving across several lanes, crossing left of center, forcing several cars off of the road, and striking a mailbox. Thereafter, Defendant's vehicle rolled into a ditch, backed up into the road, and crossed left of center. Defendant then accelerated, crossed left of center again, and side- swiped Sherry Dail's vehicle and collided with her husband's (Greg Dail) minivan. Sherry and Greg Dail's children were in the minivan, including their 4-1/2 year old daughter, Megan, who suffered severe injuries and died as a result of the collision.
The accident occurred at approximately 11:15 a.m. Defendant admitted that he had been drinking beer from approximately 9:00 a.m. until 10:30 a.m. and had consumed cocaine and heroin at 6:00 p.m. on the previous day. Several hypodermic needles were found in Defendant's truck after the accident. An analysis of Defendant's blood indicated an alcohol concentration of 0.13 grams of alcohol per one hundred milliliters of whole blood and his blood tested positive for cocaine metabolites and opiates. Defendant was indicted for first degree murder, four counts of assault with a deadly weapon inflicting serious injury, habitual impaired driving, driving while license revoked, driving left of center, possession of drug paraphernalia, and possession of an open container. Pursuant to a plea agreement, Defendant pled guilty to all charges with the exception of murder and the assaults. He was subsequently convicted of the remaining charges. On appeal, our Supreme Court held that Defendant could not be tried for first- degree murder and remanded his case for further proceedings. State v. Blackwell, 353 N.C. 259, 538 S.E.2d 929 (2000). On 28 October 2001, Defendant was retried and convicted of second-degree murder. For the traffic violations and misdemeanor convictions, Defendant received several consecutive sentences amounting to 710 days incarceration. For the felony convictions, the trial court sentenced Defendant to a minimum of 26 months and maximum of 32 months on felonious impaired driving; a minimum of 66 months and maximum of 89 months for assault with a deadly weapon; and a minimum of 353 months and a maximum of 461 months for second-degree murder. The trial court ordered that all sentences run consecutively.
On appeal, Defendant first challenges the admissibility of his prior convictions for various driving offenses pursuant to N.C. Gen. Stat. § 8C-1, Rule 404(b). Specifically, h
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