STATE of North Carolina
v.
John Richard MITCHELL.
No. 8221SC965.
Court of Appeals of North Carolina.
May 3, 1983.*268 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. David E. Broome, Raleigh, for the State.
Harper, Wood & Brown by Gordon H. Brown, Winston-Salem, for defendant-appellant.
ARNOLD, Judge.
Defendant presents 18 questions for review, which can be classified into four categories: causation, trial procedure, sentencing and evidentiary matters.
CAUSATION
Defendant first contends that there was insufficient evidence to support the submission of the case to the jury and to support the jury's verdict. Specifically, he argues that the overwhelming and uncontradicted evidence shows that Dr. Fireman's alleged negligence was the sole cause of Kimberly's death and that the State failed to prove that defendant's actions were a proximate cause of the girl's death. We disagree.
To warrant a conviction in this case, the State must establish that the act of defendant was a proximate cause of the girl's death.
`[T]he act of the accused need not be the immediate cause of death. He is legally accountable if the direct cause is the natural result of the criminal act. [Citations omitted.] There may be more than one proximate cause and criminal responsibility arises when the act complained of caused or directly contributed to the death. [Citations omitted.]
State v. Cummings, 301 N.C. 374, 377, 271 S.E.2d 277, 279 (1980). (Cummings also involved a charge of involuntary manslaughter.) Negligent treatment by a physician will not excuse a wrongdoer unless the treatment is the sole cause of death. State v. Jones, 290 N.C. 292, 225 S.E.2d 549 (1976). When an injury inflicted by an accused is a contributing cause of death, the defendant is criminally responsible therefor. Id.
The State did present sufficient evidence to show that defendant's actions were a proximate cause of the girl's death. Both Dr. Lou Stringer and Dr. de la Torre testified that the head injury Kimberly sustained in the accident contributed to and led to her death. The evidence, when compared with Dr. Vogel's testimony, was therefore contradictory as to the cause of death. The contradictions in the evidence were to be weighed by the jury, and the jury decided in favor of the State.
Defendant argues that the sole cause of death rule applies only to intentional homicides and is inapplicable to a charge of involuntary manslaughter involving culpable negligence. For this reason, the law of negligence should be consulted and the trial court erred in refusing to instruct the jury that if they found that the intervening negligence of Dr. Fireman was a proximate cause of the girl's death (rather than the sole cause), then defendant was to be found not guilty.
We disagree and hold that the sole cause of death rule applies also in involuntary manslaughter cases involving culpable negligence. See, State v. Cummings, 301 *269 N.C. 374, 271 S.E.2d 277 (1980). One who drives a car while intoxicated endangers the lives of everyone who has the misfortune of being in his path. A car in the hands of an intoxicated driver becomes a deadly weapon. The situation is similar to a drunken man who unintentionally wounds someone while firing random shots from a gun. Negligent medical treatment (or some other intervening cause) should not excuse one accused of culpable negligence for a homicide when the injuries inflicted result in death unless it can be shown that the intervening event was the sole cause of the victim's death.
TRIAL PROCEDURE
Defendant next contends that the court erred in denying his motion for a continuance due to the publication of two lengthy newspaper articles dealing with traffic deaths related to alcohol use in the major Sunday newspaper of Forsyth County the day before the trial began.
We reject this contention. As defendant concedes, a ruling on a motion for a continuance is ordinarily within the sound discretion of the trial court and will not be reviewed absent an abuse of discretion. State v. Weimer, 300 N.C. 642, 268 S.E.2d 216 (1980). The articles did not mention defendant or the facts of this case but dealt with the general problem of drunken drivers. We therefore hold that there has been no showing of an abuse of discretion.
Defendant next contends that the court erred in allowing the State to re-examine and challenge a juror after the juror had been accepted by the State.
We also reject this contention. G.S. 15A-1214(g) provides that the trial court may allow counsel to re-open consideration of a juror, even though counsel has once passed on the juror if "the juror has made an incorrect statement ... or some other good reason exists ...." The trial court, in its discretion, may allow re-examination of a juror and excuse a juror upon challenge, either peremptory or for cause. State v. Kirkman, 293 N.C. 447, 238 S.E.2d 456 (1977).
During the examination of a prospective juror by the defendant, the juror indicated that she could hold for the defendant, but that based on her experiences with police officers, she thought that they would lie. On re-examination, the juror admitted stating that she probably could not hold for the State in this case. The court therefore had good reason for exercising its discretion in reopening the examination.
Defendant next contends that the court erred in allowing a State's witness, Dr. B.J. Fulton, to testify whose name had not been disclosed as a prospective witness prior to jury voir dire.
We cannot tell from the record whether a list of prospective State witnesses was furnished to defendant. Nonetheless, the State is not required to furnish such a list. State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977). If such a list is furnished, however, the court must look to see whether the district attorney acted in bad faith or whether the defendant will be prejudiced by allowing a witness to testify whose name did not appear on the list. Id. In State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980), involving a situation similar to the present case, the Supreme Court held that the trial court did not err in permitting two witnesses whose names had not been mentioned during jury voir dire to testify when the voir dire examination conducted by the court to determine bad faith showed that the jurors did not know either of the witnesses the State had failed to name, that the prosecutor did not act in bad faith and that defendant was not prejudiced thereby.
In the present case, the court questioned the jurors as to whether they knew the prospective witness. Upon receiving negative responses, the trial court, in its discretion, allowed the witness to testify. The court's discretion is not reviewable absent a showing of an abuse of discretion. State v. Britt, 291 N.C. 528, 231 S.E.2d 644 (1977). Defendant made no allegation of surprise at trial. Moreover, the witness *270 was the first physician to examine Kimberly at the scene of the accident. We conclude that there has been an insufficient showing of bad faith or prejudice.
Defendant next contends that the court erred in allowing the State to reopen examination of James Cason, Jr., the girl's father. We reject this contention because it is within the trial court's discretion to allow a witness to be recalled and to offer additional testimony. Hunter v. Sherron, 176 N.C. 226, 97 S.E. 5 (1918); State v. Adams, 46 N.C.App. 57, 264 S.E.2d 126, disc. rev. denied, 300 N.C. 559, 270 S.E.2d 111 (1980). There has been no showing of an abuse of discretion.
SENTENCING
At the outset we note the trial court erroneously consolidated for judgment the offenses of involuntary manslaughter and driving under the influence, second offense. As our Supreme Court recently held, "[I]n every case in which the sentencing judge is required to make findings in aggravation and mitigation to support a sentence which varies from the presumptive term, each offense, whether consolidated for hearing or not, must be treated separately, and separately supported by findings tailored to the individual offense." State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).
As statutory aggravating factors, the court found:
10. The victim was very young, or very old, or mentally or physically infirm.
15. The defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days confinement.
As additional aggravating factors, the court found:
16(a) The defendant has a long history of habitual and persistent disregard of the motor vehicle laws and rules of the road resulting in at least ten previous license suspensions or revocations.
16(b) A lesser sentence than that pronounced by the court will unduly depreciate the seriousness of the defendant's offense.
16(c) The sentence pronounced by the court is necessary to deter others from committing the same offense.
16(d) An additional charge for which separate punishment could have been imposed has been consolidated for judgment.
As mitigating factors, the court found that defendant has a good character and that defendant has a good employment record.
First, defendant urges that aggravating factor No. 10 should not have been used to increase the sentence imposed since he did not intend to harm the girl. She happened to be in his path and happened to be three years old. He argues that the underlying policy of the statutory aggravating factor is to discourage wrongdoers from taking advantage of a victim because of the victim's young or old age or infirmity. We agree that this was the policy of the statutory aggravating factor.
As this Court said in State v. Gaynor, 61 N.C.App. 128, ___, 300 S.E.2d 260, 262 (1983): "Every aggravating factor, however, must be `reasonably related to the purposes of sentencing' .... Under some circumstances the extreme old age or extreme youthfulness of the victim may increase the offender's culpability." For example, the age of a rape, kidnap, or mugging victim may increase the offender's culpability. In the present case, involving culpable negligence, defendant did not take advantage of the victim's tender age and it should not have been used as an aggravating factor to increase defendant's sentence.
Second, defendant contends that aggravating factors Nos. 15 and 16(a) were improperly considered because the same evidence was used to prove more than one factor in aggravation in violation of G.S. 15A-1340.4(a)(1). He also argues that evidence necessary to prove an element of the offense was used to prove an aggravating *271 factor in violation of G.S. 15A-1340.4(a)(1) since he was charged with driving under the influence of intoxicating liquor, second offense and driving while license revoked, third offense. We disagree.
Aggravating factors Nos. 15 and 16(a) did not relate to the same evidence: Factor No. 15 related to prior convictions; Factor No. 16(a) related to administrative revocations and suspensions. Although defendant's prior conviction for driving under the influence could not have been considered since it was an element of the second offense charge, it was properly considered as an aggravating factor in sentencing defendant for involuntary manslaughter.
Third, defendant contends that the court erred in considering factors Nos. 16(b) and (c). We agree. In State v. Chatman, 308 N.C. 169, 301 S.E.2d 71 (1983), the Supreme Court held that factors identical to these were erroneously considered as aggravating factors. As the court stated in Chatman: "These two factors fall within the exclusive realm of the legislature and were presumably considered in determining the presumptive sentence for this offense. While both factors serve as legitimate purposes for imposing an active sentence, neither may form the basis for increasing or decreasing a presumptive ...." State v. Chatman, supra, at 308 N.C. ___, 301 S.E.2d 71.
Finally, defendant contends that it was error for the trial court to consider Factor No. 16(d) and to use the additional charge, which carried a maximum term of six months, to increase the sentence imposed for involuntary manslaughter from the presumptive term of three years to seven years. Because the offenses should not have been consolidated for judgment, this factor was erroneously considered. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983).
Since Ahearn compels us to find error in the trial court's findings in aggravation, the case must be remanded for a new sentencing hearing.
EVIDENTIARY MATTERS
We have examined all ten of defendant's exceptions to the court's evidentiary rulings and find no prejudicial error.
For the foregoing reasons, we find no error in defendant's trial; however, the case must be remanded for resentencing in accordance with this opinion.
Remanded for resentencing.
HILL and BECTON, JJ., concur.