STATE of North Carolina
v.
Bobbie Lee BRADLEY.
No. 886SC168.
Court of Appeals of North Carolina.
October 18, 1988.*131 Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Linda Anne Morris, Raleigh, for State.
Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Staples Hughes, Raleigh, for defendant-appellant.
ARNOLD, Judge.
Defendant first contends that the evidence at trial was insufficient as a matter of law to support a conviction of any of the offenses submitted to the jury. Those offenses were: second degree murder, involuntary manslaughter, felony death by vehicle and misdemeanor death by vehicle.
Murder in the second degree is the lawful killing of a human being with malice but without premeditation and deliberation. State v. Robbins, 309 N.C. 771, 775, 309 S.E.2d 188, 190 (1983). While an intent to kill is not a necessary element of murder in the second degree, that crime does not exist in the absence of some intentional act sufficient to show malice and which proximately causes death. State v. Lang, 309 N.C. 512, 525, 308 S.E.2d 317, 323 (1983); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978).
The Supreme Court has stated that there are three kinds of malice in the North Carolina law of homicide:
One connotes a positive concept of express hatred, ill-will or spite, sometimes called actual, express, or particular malice
... Another kind of malice arises when an act which is inherently dangerous to human life is done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief
... Both these kinds of malice would support a conviction of murder in the second degree. There is, however, a third kind of malice which is defined as nothing more than "that condition of mind which prompts a person to take the *132 life of another intentionally without just cause, excuse, or justification.
State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982) (citations omitted). It is the second kind of malice that was evidenced by defendant in the case at bar and also comports with the definition given in State v. Wilkerson, which is,
any act evidencing "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief, though there may be no intention to injure a particular person" is sufficient to supply the malice necessary for second degree murder. Such an act will always be accompanied by a general intent to do the act itself but it need not be accompanied by a specific intent to accomplish any particular purpose or do any particular thing.
Wilkerson, 295 N.C. 559, 581, 247 S.E.2d 905, 917 (1978).
The actions by the defendant were similar to the actions of defendant in State v. Snyder, 311 N.C. 391, 317 S.E.2d 394, disc. rev. denied, 312 N.C. 89, 321 S.E.2d 906 (1984). There, the defendant, already intoxicated, drove to a local tavern where the owner of the bar refused to serve him more alcohol. After getting into an affray with the owner, defendant drove away at a high rate of speed, passing one motorist in a "no-passing" zone, hitting a motorcycle from behind and forcing it off the road, and finally running through a stop light and into an automobile killing all three passengers. Id. at 392-393, 317 S.E.2d at 394-395. The Supreme Court upheld the defendant's conviction of second degree murder. Id.
The evidence in the case at bar is sufficient to support a conviction of second degree murder. We find no error in the judgment of the trial court and need not discuss the other three issues presented to the jury.
The defendant's second contention is that the trial court committed error in admitting evidence of his prior convictions as aggravating factors at the sentencing hearing. He argues that the district attorney merely stated defendant's record without giving proof.
At the sentencing hearing, the district attorney recited a litany of past offenses by the defendant although he did not use original court records or certified copies as required by N.C.G.S. § 15A-1340.4(e). The Supreme Court in State v. Swim stated that "[U]nder the Fair Sentencing Act, a trial court may not find an aggravating factor where the only evidence to support it is the prosecutor's mere assertion that the factor exists." Swim, 316 N.C. 24, 32, 340 S.E.2d 65, 70-71 (1986). This same sentiment was expressed by a panel of this Court in State v. Mack where it said that a prosecutor's unsupported remarks, standing alone, were insufficient to prove a defendant's prior convictions by a preponderance of the evidence. Mack, 87 N.C.App. 24, 34-35, 359 S.E.2d 485, 492 (1987), disc. rev. denied, 321 N.C. 477, 364 S.E.2d 663 (1988).
Defendant did not object to the statements made by the district attorney. Neither he nor his attorney challenged their accuracy. Generally, the failure to object to the method of admission of a defendant's record operates as a waiver of a defendant's right to assert the method of proof of a record as a basis for appeal. State v. Massey, 59 N.C.App. 704, 298 S.E.2d 63 (1982). In Mack, however, the Court sought to distinguish Massey by finding that N.C.G.S. § 15A-1446(d) waives the requirement for an objection. The statute provides that:
Errors based upon the following grounds... may be subject to appellate review even though no objection ... has been made in the trial division.
* * * * * *
(5) The evidence was insufficient as a matter of law.
This reasoning may be doubtful because N.C.G.S. § 15A-1446(d)(5) was not intended to be used in a sentencing context, but rather was designed to allow a defendant to question the sufficiency of the evidence to support a verdict against him without objecting or excepting at trial to *133 the trial court's denial of his motion to dismiss. There is no authority to support the Court's extension of the statute to the sentencing context. We do note, however, that our Supreme Court has found that when N.C.G.S. § 15A-1446(d)(5) attempts to allow for the appeal on the sufficiency of the evidence, absent a motion or objection at trial, it is inconsistent with the provisions of Appellate Rule 10(b)(3), and as such that provision must fail. See State v. Stocks, 319 N.C. 437, 355 S.E.2d 492 (1987). There is no authority to revive the statute for sentencing purposes.
Nevertheless, assuming arguendo that N.C.G.S. § 15A-1446(d)(5) is applicable to sentencing issues, defendant has failed to properly preserve his exceptions for review. Pursuant to Appellate Rule 10(b)(2) in order to preserve a right to appeal a party must object to the jury charge, or any omission therefrom, before the jury retires. The rule also explicitly requires a party to object to the failure of the trial court to make necessary findings and conclusions in order to advance these issues on appeal.
The purpose of this rule appears to be to provide the trial court an opportunity to correct any obvious defects and thereby eliminate the need for an appeal and a new proceeding. Implicit in this rule is also an obligation on a party to object to erroneous findings made by the trial court. This requirement is consistent with the spirit of the rule which can be ascertained from the requirements for objection with regard to errors in the jury charge. Therefore, insofar as the provisions of N.C.G.S. § 15A-1446(d)(5) allow a party to raise arguments regarding the sufficiency of the evidence to support a finding of fact at sentencing, it is inconsistent with the spirit and purpose of Rule 10(b)(2). Statutes which are in conflict with the Rules of Appellate Procedure are ineffective. See State v. Elam, 302 N.C. 157, 273 S.E.2d 661 (1981). Therefore, N.C.G.S. § 15A-1446(d)(5) is ineffective to override the purpose of Rule 10(b)(2) and the case law set forth in Massey. Thus, defendant waived his right to appeal any possible error regarding the district attorney's statements at sentencing by failing to object to them.
No error.
HEDRICK, C.J., and WELLS, J., concur.