State v. Blackwell9/7/2004
under Rule 404(b) to show the malice necessary to support a second-degree murderconviction." Rich, 132 N.C. App. at 450, 512 S.E.2d at 448; see also State v. Goodman, 357 N.C. 43, 577 S.E.2d 619 (2003) (per curiam) (adopting dissent of Greene, J., 149 N.C. App. 57, 72, 560 S.E.2d 196, 206 (2002); Wilkerson, 356 N.C. 418, 571 S.E.2d 583; State v. Miller, 142 N.C. App. 435, 439-40, 543 S.E.2d 201, 204-05 (2001) ("evidence of prior traffic convictions was offered for the permissible purpose of establishing the defendant's 'totally depraved mind' and 'recklessness of the consequences. . . .'" (emphasis supplied)); State v. Fuller, 138 N.C. App. 481, 485-86, 531 S.E.2d 861, 865, disc. rev. denied, 353 N.C. 271, 546 S.E.2d 120 (2000) ("evidence of prior convictions is admissible under Rule 404(b) to establish the malice necessary to support a second-degree murder conviction" (emphasis supplied)); State v. McAllister, 138 N.C. App. 252, 257-59, 530 S.E.2d 859, 863-64, appeal dismissed, 352 N.C. 681, 545 S.E.2d 724 (2000) ("prior convictions for driving while impaired which were over ten years old have been held admissible to show malice" (emphasis supplied)); State v. Gray, 137 N.C. App. 345, 349, 528 S.E.2d 46, 49 (2000) ("North Carolina courts consistently have held that evidence of prior acts and convictions are admissible under Rule 404(b) as evidence of malice to support a second-degree murder charge" (emphasis supplied)); State v. Grice, 131 N.C. App. 48, 53, 505 S.E.2d 166, 169-70 (1998), disc. rev. denied, 350 N.C. 102, 533 S.E.2d 473 (1999) ("prior conduct such as prior convictions and prior bad acts will be admissible under Rule 404(b) of the North Carolina Rules of Evidence as evidence of malice to support a second-degree murdercharge" (emphasis supplied)); State v. McBride, 109 N.C. App. 64, 69, 425 S.E.2d 731, 734 (1993) ("prior conduct such as prior convictions and prior bad acts will be admissible under Rule 404(b) of the North Carolina Rules of Evidence as evidence of malice to support a second-degree murder charge" (emphasis supplied)).
In Rich, our Supreme Court affirmed this Court's holding that the trial court did not err in admitting the defendant's prior traffic convictions, which included driving 75 miles per hour in a 45 miles per hour zone, 76 miles per hour in a 45 miles per hour zone, 70 miles per hour in a 35 miles per hour zone, and 70 miles per hour in a 55 miles per hour zone to show malice. 351 N.C. at 400, 527 S.E.2d at 306-07. The Court held:
The State was not seeking to prove that defendant was speeding at the time of the collision. Rather, by introducing defendant's prior speeding convictions, the State offered additional evidence which tended to show defendant's "totally depraved mind" and "recklessness of the consequences." Because the State offered the evidence to show that defendant knew and acted with a total disregard of the consequences, which is relevant to show malice, the provisions of Rule 404(b) were not violated.
Id. at 400, 527 S.E.2d at 307 (emphasis supplied).
Further, the Supreme Court's per curiam opinion in Wilkerson expressly states, "the fact of a defendant's prior conviction, except in cases where our courts have recognized a categorical exception to the general rule (e.g. admitting prior sexual offenses in select sexual offense cases, and admitting prior traffic-related convictions to prove malice in second-degree murder cases), violates rule 404(b) . . . ." Wilkerson, 356 N.C. 418, 571 S.E.2d 583 (emphasis supplied). This language clearly shows that a defendant's prior convictions are part of the facts and underlying evidence of the convictions and are properly admitted under Rule 404(b) to show the malice necessary to support seco
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