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State v. Blackwell9/7/2004
ding malice. Pursuant to the State's request, the trial court inserted a list of Defendant's prior crimes as evidence tending to show Defendant acted with malice. As the list of Defendant's prior crimes encompassed two and a half pages of transcript, Defendant contends the instruction was grossly prejudicial because it in effect directed the jury's verdict on malice in violation of N.C. Gen. Stat. § 15A-1232.
N.C. Gen. Stat. § 15A-1232 states that "in instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence."
The trial court instructed as follows:
I charge that for you to find the defendant guilty of second degree murder, the State must prove six things beyond a reasonable doubt.
Fifth, that the defendant acted unlawfully and with malice. "Malice" is a necessary element which distinguishes second degree murder from manslaughter. Malice arises when an act which is inherently dangerous to human life is intentionally done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.
Members of the Jury, evidence has been received tending to show that the defendant had knowledge of the impairing effects of drugs and alcohol on his driving abilitiesprior to February 27, 1997, and that his opportunity and intent to operate a motor vehicle while impaired on one or more impairing substances, and that the defendant acted with malice arising from the following . . .
Thereafter, the trial court listed eight prior driving while impaired offenses by giving the date of the prior offense, the date of conviction, the case number, the county in which it occurred, and in some instances, a brief description of the circumstances surrounding Defendant's arrest. Immediately after listing the prior offenses, the trial court instructed:
Members of the Jury, this evidence was received solely for the following purpose, that is, to show that the defendant acted with malice in the offenses for which he is charged with in these offenses. If you believe this evidence, then you may consider it, but only for the limited purpose for which it was received.
In State v. McKoy, 331 N.C. 731, 733, 417 S.E.2d 244, 246 (1992), our Supreme Court indicated "a trial court's use of the words 'tends to show' in reviewing the evidence does not constitute an expression of opinion on the evidence." Moreover, the trial court further limited the instruction in this case by informing the jury it could consider the evidence of prior crimes only if it believed such evidence. Thus, the trial court neither impermissibly stated an opinion as to whether a fact had been proved nor directed the jury to find Defendant acted with malice. Accordingly, we conclude the trial court complied with the applicable statutory and case law.
Defendant also argues the trial court erroneously gave thejury written instructions containing the impermissible list of prior crimes. As we have concluded the trial court did not err in orally listing the prior crimes tending to show Defendant's malice, we also conclude the trial court did not err in giving written instructions containing the same list.
Defendant next argues the trial judge should have recused himself from this matter because of comments he gave to a newspaper reporter in 1997 prior to Defendant's first trial arising from the subject incident. Defendant moved for the trial judge's disqualification pursuant to N.C. Gen. Stat. § 15A-1223(b), which states:
A judge, on
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