in the Court of Appeals 5 March 2019.
by defendant from judgment entered 26 March 2018 by Judge
Julia Lynn Gullett in Henderson County Superior Court. No. 17
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Neil Dalton, for the State.
R. Parish for defendant.
Matthew Joseph Schmieder appeals his conviction for second
degree murder following a fatal motor vehicle accident.
Schmieder argues that the trial court erroneously admitted
evidence of his past driving offenses and that, without that
evidence, the trial court should have granted his motion to
dismiss. He also argues that the trial court erred by
entering judgment on the Class B2 second degree murder
offense because the indictment only was sufficient to charge
the Class B1 version of that offense.
explained below, the trial court did not abuse its discretion
in admitting Schmieder's driving record because the court
properly found sufficient similarity and temporal proximity
between the charged offense and a lengthy pattern of past
driving offenses. As a result, the trial court also did not
err in denying Schmieder's motions to dismiss because the
driving record provided substantial evidence from which the
jury could infer the element of malice. Finally, the
indictment in this case was sufficient to charge second
degree murder under all theories permitted by law and
Schmieder was not misled by the indictment. We therefore find
no error in the trial court's judgment.
and Procedural History
December 2016 around 7:30 p.m., Evelyn Argueta was driving
along Kanuga Road in Henderson County. It was dark and the
road was two lanes with a double yellow line down the middle
and narrow shoulders. The road has turns and inclines and a
posted speed limit of 40 mph. Argueta noticed a white BMW
behind her and became "a little scared" when the
BMW passed her across the double yellow line without using
turn signals. Argueta estimated that the BMW was travelling
at 45 to 50 mph.
passing Argueta, the BMW increased its speed and caught up to
a Silverado pickup truck. The BMW started to pass the
Silverado without using any turn signals, and Argueta thought
that the BMW was following too close behind the Silverado to
see around it. When the BMW entered the left lane to pass, it
became apparent that there was an oncoming red pickup truck
in that lane. The BMW hit the brakes and attempted to get
back into the right lane, but it was too late. The BMW
collided head-on with the oncoming red truck and then hit the
Silverado. Argueta estimated that the BMW was going 55 to 60
mph at the time of the attempted pass.
responders arrived on the scene in response to a 911 call.
They observed that there had been a head-on collision with a
heavy impact, a distance of about 100 feet between the
vehicles, and substantial debris in the roadway and on the
side of the road. They heard a voice calling for help from
the white BMW. The red pickup truck had to be opened with
hydraulic spreaders. The driver of the red pickup truck,
17-year-old Derek Miller, had no pulse and was crushed
between the steering wheel and the backseat of his vehicle. A
paramedic was able to crawl into the vehicle and determined
that Miller had injuries "inconsistent with life"
and was deceased.
determining that Miller was deceased, paramedics began work
on the white BMW. Defendant Matthew Schmieder, the driver of
the BMW, was pinned inside. First responders extracted him
from the vehicle and transported him to the hospital.
Schmieder told paramedics, "I know I caused this,"
and asked about the other driver's injuries. Paramedics
smelled an odor of alcohol coming from Schmieder and asked
him how much he had to drink. Schmieder responded that he did
May 2017, the State indicted Schmieder for second degree
murder. The body of the indictment alleged that Schmieder
"unlawfully, willfully and feloniously and of malice
aforethought did kill and murder Derek Lane Miller." In
the murder indictment's header, which included form
boxes, the State checked the box labeled "Second
Degree," but did not check either of the two additional
boxes beneath that one, which were labeled "Inherently
Dangerous Without Regard to Human Life" and
"Unlawful Distribution of Substance."
trial, Schmieder moved to exclude his record of prior driving
convictions. The trial court later denied Schmieder's
motion to exclude his driving record, finding that
Schmieder's prior driving convictions "are
similar" and "that there is not much of a gap in
time between convictions over the years." The court
allowed Schmieder's motion to exclude evidence of four
prior accidents that did not result in charges as well as
Schmieder's motion to exclude some of the letters he had
received from the DMV regarding the status of his