{ "id": 11795359, "name": "STATE OF NORTH CAROLINA v. JERRY WAYNE BALLARD", "name_abbreviation": "State v. Ballard", "decision_date": "1997-09-02", "docket_number": "No. COA96-1153", "first_page": "316", "last_page": "327", "citations": [ { "type": "official", "cite": "127 N.C. App. 316" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "312 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2398466, 2402344, 2398281, 2399754, 2397293 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0479-02", "/nc/310/0479-01", "/nc/310/0479-03", "/nc/310/0479-04", "/nc/310/0479-05" ] }, { "cite": "308 S.E.2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "516", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 31", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521749 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/65/0031-01" ] }, { "cite": "354 S.E.2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "218" } ], "opinion_index": 0 }, { "cite": "319 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4743588 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0308-01" ] }, { "cite": "365 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566239 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0689-01" ] }, { "cite": "444 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "918", "parenthetical": "\"The existence of this aggravating factor is premised on a relationship of trust between defendant and the victim which causes the victim to rely upon defendant.\"" } ], "opinion_index": 0 }, { "cite": "336 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2534012 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0534-01" ] }, { "cite": "306 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "454 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "118 N.C. App. 316", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918006 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/118/0316-01" ] }, { "cite": "430 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "110 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525545 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/110/0319-01" ] }, { "cite": "676 F. 2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1982, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "347 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "789" } ], "opinion_index": 0 }, { "cite": "318 N.C. 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738200 ], "year": 1986, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0030-01" ] }, { "cite": "412 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "37" }, { "parenthetical": "quoting N.C.R. Evid. 611" }, { "page": "38" } ], "opinion_index": 0 }, { "cite": "330 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511838 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "456" }, { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0446-01" ] }, { "cite": "433 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 1 }, { "cite": "111 N.C. App. 916", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524806 ], "year": 1993, "opinion_index": 1, "case_paths": [ "/nc-app/111/0916-01" ] }, { "cite": "400 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "328 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542427 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc/328/0175-01" ] } ], "analysis": { "cardinality": 920, "char_count": 25763, "ocr_confidence": 0.741, "pagerank": { "raw": 3.933081182011267e-07, "percentile": 0.9031111466344177 }, "sha256": "54e439ffd5a188fec868c6d1b320da9a4dc0ed06d7e0607b263cab521c280ced", "simhash": "1:af670e0a564e11b3", "word_count": 4260 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge LEWIS concurs.", "Judge MARTIN, John C., concurs in part, and dissents in part." ], "parties": [ "STATE OF NORTH CAROLINA v. JERRY WAYNE BALLARD" ], "opinions": [ { "text": "WYNN, Judge.\nA grand jury indicted defendant Jerry Wayne Ballard for, and he subsequently pled guilty to, felony driving while impaired, reckless driving to endanger, driving while license revoked, unsafe tires, fictitious registration card/tag, and operating a vehicle with no insurance. A grand jury also indicted defendant for second degree murder and he was tried by a jury in Buncombe County.\nAt that trial, the State\u2019s evidence tended to show the following: On 15 May 1995, defendant was seen with eleven year old Billy Joe Moore (\u201cB.J.\u201d) at a convenience store in Weaverville, N.C. Deborah Moore, B.J.\u2019s mother and defendant\u2019s ex-girlfriend, had planned for B.J. to stay with his grandmother that day. However, during the course of the day, B.J. called his mother from the convenience store to say he was not with his grandmother. Defendant came on the line and argued with and threatened Ms. Moore. Ms. Moore, aware that defendant was a heavy drinker and knowing from his slurred speech on the telephone that defendant was under the influence, repeatedly asked defendant to bring B.J. home. Following this telephone conversation, Ms. Moore called the police and reported that B.J. had been abducted and informed them of his location.\nDefendant left the store with B.J. in his car at approximately 7:00 p.m. Shortly thereafter, Buncombe County Sheriff Deputy Jerry Owenby, Jr. spotted defendant\u2019s car and turned around to follow him in his patrol car. Defendant accelerated, passing a car on a double solid line into oncoming traffic, and sped off down the road. Defendant, with Deputy Sheriff Owenby in pursuit, ran a stop sign and collided with a utility pole about one mile from where the initial pursuit began. B.J. suffered severe head trauma and an amputated leg and died on the scene. Defendant told the investigating officer that he was driving the car but that he hadn\u2019t meant to wreck it. He asked about B.J. and said that he had not wanted to hurt B.J. but just wanted to scare B.J.\u2019s mother. Police found numerous empty beer cans and two bottles of Wild Irish Rose wine in defendant\u2019s car. Defendant was admitted to the hospital where he refused a request for a blood sample and breathalyzer test. However, defendant stipulated that his blood alcohol level at a relevant time after the accident was .18.\nDefendant presented the testimony of John Clement, an expert in psychology, who stated that defendant suffered from chronic alcoholism and poly-substance abuse and was suffering from drug and alcohol addiction and intoxication at the time of the accident. He further stated that defendant\u2019s state of mind immediately preceding the accident was frightened and panicked.\nAt the conclusion of the trial, the jury found defendant guilty of second degree murder. The trial court then determined that defendant had a prior record level of II and made findings of aggravating and mitigating factors. It found as factors in aggravation that \u201cdefendant 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,\u201d and \u201cdefendant took advantage of a position of trust or confidence to commit the offense,\u201d and found as a factor in mitigation that \u201cdefendant has a support system in the community.\u201d After concluding that the aggravating factors outweighed the mitigating factors, the court imposed an aggravated sentence of 163 to 205 months. Defendant appeals from the judgment and sentence imposed.\nThe defendant raises several issues on appeal: (I) Whether the trial court erred by refusing to allow the expert psychologist to tesr tify as to what defendant told him regarding his state of mind at the time of the offense; (II) Whether the trial court committed plain error by instructing the jury that it could consider the defendant\u2019s guilty pleas to driving while license revoked, no insurance, fictitious tag and unsafe tires as evidence of malice; (III) Whether the trial court erred in finding the two aggravating factors and by failing to find two additional mitigating factors. We conclude that the defendant received a fair trial free from prejudicial error.\nI.\nDefendant first assigns as error the trial court\u2019s refusal to allow his expert psychologist to testify as to what the defendant told him regarding his state of mind at the time of the offense. He argues that defendant\u2019s statements to the psychologist formed part of the basis for his expert opinion and as such, should have been allowed into evidence. We disagree.\nUnder N.C.R. of Evid. 705, an expert may testify regarding his opinion and the reasons therefor. However, this \u201cdoes not. . . make the bases for an expert\u2019s opinion automatically admissible.\u201d State v. Baldwin, 330 N.C. 446, 456, 412 S.E.2d 31, 37 (1992). The trial court has the authority to \u201c \u2018exercise reasonable control over the mode and order\u2019 of interrogation and presentation of the evidence,\u201d and has the discretion to exclude relevant but prejudicial evidence. Id. (quoting N.C.R. Evid. 611). Such an exercise of discretion will be reversed \u201conly upon a showing that [the trial court\u2019s] ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision.\u201d Id. (quoting State v. Penley, 318 N.C. 30, 41, 347 S.E.2d 783, 789 (1986)).\nIn the instant case, the trial court allowed the expert to testify as to his opinion regarding defendant\u2019s state of mind at the time of the accident, but excluded the expert\u2019s hearsay testimony as to defendant\u2019s statements to him explaining his version of the events. The trial court reasoned:\n[T]he defendant\u2019s exculpatory testimony or statements as to this particular event are prejudicial to the State, and the prejudicial effect at most would be only relevant as a basis for this witness\u2019s conclusions. And to the extent it might be helpful to the jury in so doing, it\u2019s outweighed by the prejudice to the State in being unable to cross-examine the defendant on those statements.\nAfter examining the record, we find that the trial court did not abuse its discretion by excluding defendant\u2019s statements to the psychologist. See Baldwin, 330 N.C. at 457, 412 S.E.2d at 38.\nII.\nDefendant next assigns as error a portion of the trial court\u2019s jury instructions. He contends that the trial court committed plain error by instructing the jury that it could consider the defendant\u2019s guilty pleas to driving while license revoked, no insurance, fictitious tag and unsafe tires as evidence of malice. We disagree.\nDefendant stipulated that he pled guilty on 3 June 1996 to felony driving while impaired, driving while license revoked, reckless driving and endangerment to property and persons, operating a motor vehicle with unsafe tires, creating a needless hazard, having a fictitious registration plate, knowing the same to be stolen, and operating a motor vehicle without having financial responsibility or insurance. He further stipulated that his guilty pleas were to crimes which arose out of the death of B.J. Moore on 19 May 1995. Defendant did not limit the use of the stipulated evidence in any way. At the close of all the evidence, the trial court\u2019s instructions to the jury included the following:\nNow, evidence has been received in this case which tends to show that the defendant, Mr. Ballard, was convicted of three separate counts of driving while impaired prior to May 19th of 1995, and that he plead \u201cguilty\u201d to driving while license revoked, no insurance, fictitious tag, and pled \u201cresponsible\u201d to unsafe tires on June 3rd \u2014 on or about June 3rd of this year. Now, this evidence was received solely for the purpose of showing that the defendant, Mr. Ballard, at the time of the subject accident on or about May 19, 1995, had the malice which is a necessary element of second-degree murder which is charged in this case. If you believe this evidence, you may consider it, but only for the limited purpose for which it was received. It is for you, the jury to determine whether this evidence, in fact, shows malice, whether or not it, in fact, shows malice.\nDefendant made no objection to this instruction at the time it was given and at the close of all the instructions responded to the judge\u2019s inquiry of whether there were any objections saying \u201cNo objections to any of the instructions.\u201d Having examined the record and the instructions in their entirety, we cannot say that any alleged defect in the instructions was \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.\u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 378, 378 (quoting United States v. McCaskill, 676 F. 2d 995, 1002 (4th Cir. 1982). Therefore, we hold that the instructions at issue did not constitute plain error.\nIII.\nFinally, defendant assigns as error the trial court\u2019s finding of two aggravating factors, its failure to find two additional mitigating factors, and the sentence imposed based on these factors.\nDefendant first contends that the trial court erred by finding as an aggravating factor that defendant knowingly created a great risk of death to more than one person by means of a device which would normally be hazardous to the lives of more than one person. We disagree.\nIn State v. Garcia-Lorenzo, 110 N.C. App. 319, 430 S.E.2d 290 (1993), we held that, where defendant was legally intoxicated and driving recklessly, the automobile constituted a device knowingly used by defendant which created a great risk of death to more than one person. Moreover, in State v. McBride, 118 N.C. App. 316, 454 S.E.2d 840 (1995), we upheld the aggravating factor that defendant knowingly created a great risk of death to more than one person by means of a device which would normally be hazardous to the lives of more than one person when defendant was sentenced for involuntary manslaughter in connection with an automobile accident.\nNonetheless, defendant argues that his reckless use of a motor vehicle provided the necessary inference of malice, an essential element of the offense of second degree murder, and therefore, cannot be used as a factor in aggravation. In support of his position, defendant cites State v. Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983) in which our Supreme Court stated:\nWhen the facts justify the giving of the instruction of the inference of malice arising as a matter of law from the use of a deadly weapon and it is in fact given, or when it could have been given had defendant not entered a plea of guilty, evidence of the use of a deadly weapon is deemed necessary to prove the element of malice for purposes of precluding its use as an aggravating factor at sentencing.\nId. at 417, 306 S.E.3d at 788. However, we find the instant case distinguishable from Blackwelder.\nIn the case sub judice, no deadly weapon was employed and no inference of malice arises as a matter of law. Instead, the trial court instructed the jury with regard to the element of malice: \u201cMalice is a necessary element which distinguishes second-degree murder from manslaughter. Malice arises when an act which is done so recklessly and wantonly as to manifest a mind utterly without regard to human life and social duty, and deliberately bent upon mischief.\u201d Thus, it is the reckless and wanton nature of the act committed which leads to the inference of malice. On the other hand, it is the use of a device, normally hazardous to the lives of more than one person, to create a risk of death to more than one person which supports the aggravating factor at issue. Therefore, we hold that the defendant\u2019s operation of the motor vehicle did not constitute one of the elements of second degree murder. Accordingly, we affirm the trial court\u2019s finding as an aggravating factor that defendant knowingly created a great risk of death to more than one person by means of a device which would normally be hazardous to the lives of more than one person.\nDefendant next contends that the trial court erred in finding as an aggravating factor that the defendant took advantage of a position of trust or confidence to commit the offense. We disagree.\nThe trial court stated:\nI find that the defendant took advantage of a position of trust or confidence to commit the offense. That is, it would plainly appear that but for the position of trust and confidence that he held with the mother and family of this young boy, he would not have had the opportunity to gain custody of the child, so I find that as an aggravating factor.\nDefendant first argues that the trial court\u2019s finding of fact that he had a relationship of trust and confidence with the victim\u2019s mother and family is irrelevant. Defendant cites State v. Farlow, 336 N.C. 534, 444 S.E.2d 913 (1994), in support of his contention that the issue should have been whether he had such a relationship with the victim. Id. at 542, 444 S.E.2d at 918 (\u201cThe existence of this aggravating factor is premised on a relationship of trust between defendant and the victim which causes the victim to rely upon defendant.\u201d).\nAssuming for the sake of argument that defendant\u2019s contention is correct, we would nonetheless find that a relationship of trust did exist between defendant and the victim. The record shows that defendant had a live-in relationship with Ms. Moore and her family, including her son B.J., for approximately a year, and that defendant developed a close relationship with the child. Ms. Moore testified that defendant still had contact with her son after their breakup, and defendant\u2019s own mother testified that defendant and B.J. were often together, playing, wrestling and talking.\nDefendant also contends that even if a relationship of trust did exist between he and B.J., any trust or confidence the child placed in him did not facilitate the offense in any way. We disagree.\nThe law is well-settled that this aggravating factor may be grounded in the child\u2019s dependence on the defendant. See State v. Holden, 321 N.C. 689, 365 S.E.2d 626 (1988); State v. Daniel, 319 N.C. 308, 354 S.E.2d 216 (1987). In Daniel, the Supreme Court upheld a finding that the defendant took advantage of a position of trust or confidence with her newborn child when she murdered the child. The Court held that this aggravating factor does not require evidence of a conscious mental process on the part of the infant victim:\nSuch a finding depends instead upon the existence of a relationship between the defendant and victim generally conducive to reliance of one upon the other. A relationship of trust or confidence existed because defendant was the child\u2019s mother and because she was singularly responsible for its welfare. The abuse of her parental role relates to defendant\u2019s character and conduct and was reasonably related to the purposes of sentencing.\n319 N.C. at 311, 354 S.E.2d at 218.\nThe defendant in this case contends that the crime would have been committed in the same way even if the child had been a total stranger. We disagree. The fact that the child was in the car with defendant from the outset was predicated on his close relationship with defendant. Defendant knew that the boy looked up to him as a father-figure, a protector; yet he still chose to get in the car with the child even though he was very drunk and then he drove the car in such a reckless manner that it crashed, killing the child. In the commission of this crime, the defendant\u2019s total disregard for the welfare of this child (who he was responsible for) relates, as in Daniel, \u201cto defendant\u2019s character and conduct and was reasonably related to the purposes of sentencing.\u201d Accordingly, we find the evidence sufficient to support this finding in aggravation.\nDefendant next contends that the trial court erred in failing to find as a statutory mitigating factor that the defendant voluntarily acknowledged wrongdoing in connection with the offense. Again, we disagree.\nOur examination of the record reveals that at the accident scene defendant was agitated and uncooperative with medical personnel. He repeatedly yelled that he wanted to get out of the car and Deputy Sheriff Jerry Dean Owenby, Jr., the first officer at the accident scene, testified that he felt like the defendant was going to run from him. Trooper Neil Denman with the North Carolina Highway Patrol spoke with defendant in the hospital as part of his investigation of the accident. Trooper Denman testified that defendant gave him the necessary information to complete the accident report, i.e., name, address, date of birth, etc., and told him that he didn\u2019t mean to wreck the car and harm the child and that he just wanted to take the child to scare the mother. Defendant refused to give a blood sample for chemical testing to determine his blood alcohol concentration. We hold that, under these circumstances, the trial court did not err in failing to find as a mitigating factor that defendant voluntarily acknowledged wrongdoing in connection with the offense.\nFinally, the defendant contends that the trial court erred in failing to find as a statutory mitigating factor that the defendant was suffering from a mental or physical condition that was insufficient to constitute a defense, but significantly reduced his culpability for the offense. We disagree.\nIn State v. Salters, 65 N.C. App. 31, 308 S.E.2d 512 (1983), disc. review denied, 310 N.C. 479, 312 S.E.2d 889 (1984), we said:\nWhile a mental or physical condition, such as alcoholism, may be capable of reducing a defendant\u2019s culpability for an offense, evidence that the condition exists, without more, does not mandate consideration as a mitigating factor. Defendant has the burden of proof with respect to any alleged mitigating factors.\nId. at 36, 308 S.E.2d at 516 (citations omitted). After examining the record, we hold that the trial court did not abus\u00e9 its discretion in failing to find this mitigating factor under the circumstances of the instant case.\nFor the foregoing reasons, we hold that the defendant received a fair trial, free from prejudicial error.\nNo prejudicial error.\nJudge LEWIS concurs.\nJudge MARTIN, John C., concurs in part, and dissents in part.", "type": "majority", "author": "WYNN, Judge." }, { "text": "Judge John C. Martin\nconcurring in part and dissenting in part.\nI concur fully with the majority in finding no prejudicial error in defendant\u2019s trial. I also concur in those portions of the majority opinion which affirm the trial court\u2019s finding, in aggravation of punishment, of the aggravating factor contained in G.S. \u00a7 15A-1340.16(d)(8), and the trial court\u2019s refusal to find, in mitigation, the mitigating factors contained in G.S. \u00a7 15A-1340.16(e)(3) and G.S. \u00a7 15A-1340.16(e)(15). However, I must respectfully dissent from that portion of the majority opinion which affirms the trial court\u2019s finding of the aggravating factor contained in G.S. \u00a7 15A-1340.16(d)(15) that \u201cdefendant took advantage of a position of trust or confidence to commit the offense.\u201d\nThe State has the burden to prove by a preponderance of the evidence the existence of factors in aggravation of punishment. N.C. Gen. Stat. \u00a7 15A-1340.16(a); State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991). Here, the trial court found:\nI find that the defendant took advantage of a position of trust or confidence to commit the offense. That is, it would plainly appear that but for the position of trust and confidence that he held with the mother and family of this young boy, he would not have had the opportunity to gain custody of the child, so I find that as an aggravating factor.\nHowever, the record contains no evidence as to how the child came to be in the company of defendant on the date of the offense, and therefore, does not support the trial court\u2019s finding that defendant gained custody of the victim by reason of a relationship between himself and the child\u2019s mother and family. Moreover, the majority\u2019s reasoning that \u201c[t]he fact that the child was in the car with defendant from the outset was predicated on his close relationship with defendant\u201d is purely speculative; there was no evidence to show whether the child\u2019s presence in defendant\u2019s car was voluntary or involuntary.\nWhere a trial court finds an improper aggravating factor, it cannot properly balance the aggravating and mitigating factors; in such instances the case must be remanded for resentencing. State v. Whitley, 111 N.C. App. 916, 433 S.E.2d 826 (1993). Therefore, I vote to find no prejudicial error in defendant\u2019s trial, but to remand the case to the Superior Court of Buncombe County for a new sentencing hearing.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Judge John C. Martin" } ], "attorneys": [ "Michael F. Easley, Attorney General, by Reuben F. Young, Associate Attorney General, for the State.", "Belser & Parke, P.A., by David, G. Belser, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JERRY WAYNE BALLARD\nNo. COA96-1153\n(Filed 2 September 1997)\n1. Evidence and Witnesses \u00a7 90 (NCI4th)\u2014 second-degree murder \u2014 intoxicated operation of motor vehicle \u2014 statements to psychologists \u2014 not admissible\nIn a second-degree murder prosecution which resulted from defendant\u2019s operation of a motor vehicle while he was intoxicated, the trial court did not abuse its discretion by excluding defendant\u2019s statements to a psychologist where the court allowed the psychologist to give his opinion of defendant\u2019s state of mind at the time of the accident, but reasoned that the helpfulness of the hearsay testimony was outweighed by the prejudice to the State in not being able to cross-examine defendant.\n2. Homicide \u00a7 523 (NCI4th)\u2014 second-degree murder\u2014 instruction on malice \u2014 guilty pleas to other offenses \u2014 considered on malice\nThere was no plain error where the court instructed the jury in a second-degree murder trial arising from a car accident that it could consider defendant\u2019s guilty pleas to driving with a revoked license, no insurance, a fictitious tag and unsafe tires arising from the same accident as evidence of malice where defendant did not limit the use of the stipulated evidence and did not object to the instructions at trial.\n3. Criminal Law \u00a7 1095 (NCI4th)\u2014 automobile accident\u2014 intoxication \u2014 second-degree murder \u2014 aggravating factor\u2014 risk of death by device hazardous to more than one person\nThe trial court did not err in a second-degree murder prosecution arising from an automobile accident by finding as an aggravating factor that defendant knowingly created a great risk of death to more than one person by means of a device which would normally be hazardous to the lives of more than one person. Although defendant contended that his use of a motor vehicle could not be used in aggravation because that use provided the inference of malice necessary for second-degree murder, it is the reckless and wanton nature of the act committed which leads to the inference of malice while the aggravating factor is supported by the use of a device normally hazardous to the lives of more than one person to create a risk of death to more than one person.\n4. Criminal Law \u00a7 1095 (NCI4th Rev.)\u2014 second-degree murder \u2014 automobile accident \u2014 aggravating factor \u2014 position of trust and confidence\nThere was sufficient evidence of the aggravating factor that defendant took advantage of a position of trust or confidence to commit the offense in a second-degree murder prosecution arising from the death of a twelve-year-old in a car accident while defendant was intoxicated. Even assuming that defendant\u2019s contention that the court\u2019s finding of a relationship of trust and confidence with the victim\u2019s mother and family is irrelevant and that the existence of the aggravating factor must be premised on a relationship of trust between defendant and the victim, that relationship existed here. Defendant also argued that any trust or confidence the child placed in him did not facilitate the offense in any way, but the fact that the child was in the car with defendant from the outset was predicated on his close relationship with defendant. Defendant\u2019s total disregard for the welfare of the child relates to his character and conduct and was reasonably related to the purposes of sentencing.\n5. Criminal Law \u00a7 1097 (NCI4th Rev.)\u2014 second-degree murder \u2014 mitigating factors \u2014 acknowledgment of wrongdoing\nThe trial court did not err in a second-degree murder prosecution arising from an automobile accident by failing to find as a statutory mitigating factor that defendant voluntarily acknowledged wrongdoing where defendant was agitated and uncooperative with medical personnel at the accident scene; defendant repeatedly yelled that he wanted to get out of the police car at the accident scene; the first officer at the accident scene testified that he felt that defendant was going to run from him; defendant provided the necessary information to complete an accident report and indicated that he had not meant to harm the child but only wanted to scare the child\u2019s mother; and defendant failed to submit to a test to determine his blood alcohol concentration.\n6. Criminal Law \u00a7 1097 (NCI4th Rev.)\u2014 second-degree murder \u2014 mitigating factors \u2014 mental or physical condition\u2014 alcoholism alone insufficient\nThe trial court did not abuse its discretion in a prosecution for second-degree murder resulting from defendant\u2019s operation of his vehicle while he was intoxicated by failing to find as a statutory mitigating factor that defendant suffered from a mental or physical condition that was insufficient to constitute a defense but significantly reduced his culpability for the offense. The existence of a condition such as alcoholism, without more, does not mandate consideration of this mitigating factor.\nJudge Martin (John C) concurring in part and dissenting in part.\nAppeal by defendant from judgment entered 5 June 1996 by Judge Marcus Johnson in Buncombe County Superior Court. Heard in the Court of Appeals 15 May 1997.\nMichael F. Easley, Attorney General, by Reuben F. Young, Associate Attorney General, for the State.\nBelser & Parke, P.A., by David, G. Belser, for defendant-appellant." }, "file_name": "0316-01", "first_page_order": 352, "last_page_order": 363 }