{
  "id": 9441437,
  "name": "STATE OF NORTH CAROLINA v. TIMOTHY EARL BLACKWELL",
  "name_abbreviation": "State v. Blackwell",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges WALKER and HUNTER concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. TIMOTHY EARL BLACKWELL"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nIn the previously filed opinion of this Court on 7 December 1999, we held Defendant was entitled to a new trial on his first-degree murder conviction because \u201cthe violated plea agreement\u201d in the felonious impaired driving charge was \u201cintroduced as substantive evidence\u201d at Defendant\u2019s murder trial and this evidence \u201cbecame the backbone of the State\u2019s theory of prosecution.\u201d State v. Blackwell, 135 N.C. App. 729, 733, 522 S.E.2d 313, 316 (1999). State v. Jones, 353 N.C. 159, 538 S.E.2d 917 (2000), now provides an additional reason to vacate Defendant\u2019s murder conviction. A defendant \u201cmay not be subject to a potential death sentence absent a showing of actual intent to commit one or more of the underlying felonies delineated or described in our state\u2019s murder statute.\u201d Jones, 353 N.C. at 163, 538 S.E.2d at 922. Neither assault with a deadly weapon inflicting serious injury (AWDWISI) nor felonious impaired driving are felonies delineated or described in the murder statute and, thus, these crimes cannot support a first-degree murder conviction. See id. at 167-68, 538 S.E.2d at 924-25. In this case, the State relied on four different charges of AWDWISI and felonious impaired driving to support its felony murder charge and for this additional reason that conviction must be vacated.\nOn remand, Defendant cannot be retried for first-degree murder; however, because the record contains ample evidence to support a charge of the lesser-included offense of second-degree murder, Defendant may be tried on remand for second-degree murder. See N.C.G.S. \u00a7 15A-1447(c) (1999). Additionally, if the trial court orders specific performance of the plea arrangement on the felonious impaired driving, Defendant may be tried on the AWDWISI charges. If the trial court rescinds the plea arrangement, the Defendant may be tried on the felonious impaired driving and AWDWISI charges. Whether the trial court orders specific performance or rescinds the plea arrangement, evidence of felonious impaired driving could be used to demonstrate Defendant had the requisite state of malice (under Rule 404(b) of the North Carolina Rules of Evidence) as required for second-degree murder. Id. at 173, 538 S.E.2d at 928.\nVacated and remanded.\nJudges WALKER and HUNTER concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Jonathan P. Babb, for the State.",
      "Public Defender Robert Brown, Jr. and Assistant Public Defender Shannon A. Tucker, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. TIMOTHY EARL BLACKWELL\nNo. COA98-1284-2\n(Filed 6 March 2001)\nHomicide\u2014 felony murder \u2014 assault with a deadly weapon inflicting serious injury \u2014 felonious impaired driving\nA defendant\u2019s conviction for first-degree murder must be vacated based on the State\u2019s reliance on four different charges of assault with a deadly weapon inflicting serious injury and felonious impaired driving to support its felony murder charge because such crimes are not felonies delineated or described in the murder statute, and thus they cannot support a conviction of first-degree murder under the felony murder rule. However, the record contains ample evidence to support a charge of the lesser-included offense of second-degree murder under N.C.G.S. \u00a7 15A-1447(c), and defendant may be tried on remand for second-degree murder.\nOn remand from the Supreme Court of North Carolina in accordance with their opinion 353 N.C. 259, 538 S.E.2d 929 (2000). Previously heard by this Court on 25 August 1999, 135 N.C. App. 729, 522 S.E.2d 313 (1999), on appeal by defendant from judgment entered 17 April 1998 by Judge Orlando F. Hudson in Durham County Superior Court. The issues on remand are those as directed by our Supreme Court in its opinion filed 21 December 2000, 353 N.C. 259, 538 S.E.2d 929 (2000), to amend our previously filed opinion in light of State v. Jones, 353 N.C. 159, 538 S.E.2d 917 (2000).\nAttorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Jonathan P. Babb, for the State.\nPublic Defender Robert Brown, Jr. and Assistant Public Defender Shannon A. Tucker, for defendant-appellant."
  },
  "file_name": "0388-01",
  "first_page_order": 418,
  "last_page_order": 419
}