State Carolina v. Norman

• Decision Date: 05 July 2011
• Docket Number: No. COA10–1108.,COA10–1108.
• Citation: 711 S.E.2d 849
• Parties: STATE of North Carolinav.Ricky Dean NORMAN.
• Court: North Carolina Court of Appeals

711 S.E.2d 849

STATE of North Carolina

v.Ricky Dean NORMAN.

No. COA10–1108.

Court of Appeals of North Carolina.

July 5, 2011.

OPINION TEXT STARTS HERE

Appeal by Defendant from judgment entered 4 August 2009 by Judge Carl R. Fox in Superior Court, Wilkes County. Heard in the Court of Appeals 21 February 2011.

Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State.

William D. Auman, Asheville, for Defendant.

McGEE, Judge.

Ricky Dean Norman (Defendant) was convicted on 4 August 2009 of two counts of second-degree murder, driving while impaired, failure to reduce speed to avoid an accident, and exceeding the posted speed. The trial court determined Defendant's prior conviction level to be III, and sentenced Defendant to two consecutive prison sentences of 200 months to 249 months, and a concurrent sentence of 12 months. Defendant appeals.

Factual Background

The evidence at trial tended to show the following. Shortly after 5:30 p.m. on 26 March 2007, Defendant was driving south on Old U.S. Highway 21 (Highway 21) in Elkin. Victims Harley and Helen Carter (the Carters) were driving east on Pleasant Ridge Road. Harley Carter attempted a left-hand turn onto Highway 21 from Pleasant Ridge Road. The front of Defendant's truck collided with the driver's side of the Carters' sedan. The Carters died at the crash site. Defendant was exceeding the posted speed limit of forty-five miles per hour, and the Carters failed to yield the right-of-way to Defendant.

David McCandless (Mr. McCandless), the State's accident reconstruction expert, testified that, at a distance of seventeen feet before impact, he calculated Defendant's speed to be approximately seventy-five miles per hour, and at the time of impact, to be approximately sixty miles per hour. Trooper Charles Olive (Trooper Olive) of the North Carolina Highway Patrol, an accident reconstruction expert, provided similar testimony regarding Defendant's speed at the time of impact. Trooper Olive testified that, in his opinion, based on the average person's perception-reaction time, had Defendant been traveling the posted speed limit, Defendant could have avoided the collision by veering to the right or by braking.

Toby Groce (Mr. Groce) testified that he was driving north on Highway 21 and turned left onto Pleasant Ridge Road less than two seconds before the collision. Mr. Groce observed Defendant's vehicle and saw that it was “definitely speeding,” traveling about “fifty-two, fifty-five and above [.]” Mr. Groce estimated that, at the time Harley Carter began his left-hand turn onto Highway 21, Defendant was about 250 to 300 feet away from the intersection of Highway 21 and Pleasant Ridge Road. After hearing a collision, Mr. Groce stopped his vehicle and ran towards the accident. Mr. Groce detected a strong odor of alcohol emanating from Defendant at “a little over [an] arm's [length] distance” from Defendant. Based on the odor of alcohol and Defendant's behavior, Mr. Groce formed the opinion that Defendant was impaired.

Andrew Webb (Mr. Webb), Defendant's accident reconstruction expert, testified that he calculated Defendant's speed at the time Defendant braked in an attempt to avoid the collision, to be approximately sixty to sixty-five miles per hour prior. Mr. Webb determined that Defendant's speed, “just before impact[,]” was approximately fifty-nine miles per hour. Mr. Webb also determined that Defendant would have had between one-half and one and one-half seconds to react to the Carters' failure to yield the right-of-way.

Trooper Chris Anderson (Trooper Anderson), of the North Carolina Highway Patrol, testified that he responded to the call regarding the accident. Trooper Anderson reached the collision scene at 6:28 p.m. and was told by fire department responders that the Carters were deceased and that Defendant had been taken to Hugh Chatham Memorial Hospital (Chatham Memorial). Trooper Anderson smelled a strong odor of alcohol coming from Defendant's truck and he observed several open, empty beer cans inside Defendant's truck.

Trooper Anderson interviewed Defendant at Chatham Memorial at approximately 7:30 p.m. Based on the strong odor of alcohol on Defendant's breath, along with Defendant's appearance and behavior, Trooper Anderson formed the opinion that Defendant was “very noticeabl[y]” impaired. Defendant told Trooper Anderson that he had consumed four beers between 1:30 p.m. and 3:00 p.m. that day, and that he had been traveling at “fifty to fifty-three miles per hour” on Highway 21. Defendant denied taking any prescription, or illegal, drugs that day.

Trooper Anderson charged Defendant with driving while impaired and asked that Defendant submit to a blood test, and Defendant consented. The blood test was administered at Chatham Memorial at 8:06 p.m. that evening and was later submitted to the State Bureau of Investigation (SBI) for analysis. The SBI's analysis of Defendant's blood sample revealed a blood alcohol level of 0.03. The SBI's analysis also revealed cocaine and cocaine metabolites in Defendant's blood sample. Trooper Anderson filled out an accident report which noted that the causes of the collision were Defendant's speeding, Defendant's impairment, and the Carters' failure to yield the right-of-way from a stop sign onto a roadway.

After treatment at Chatham Memorial, Defendant was transferred later that evening to Wake Forest University Baptist Medical Center (Baptist Hospital). A blood serum sample was taken from Defendant at Baptist Hospital at 8:49 p.m. that same evening.

Paul Glover (Mr. Glover) testified for the State “as an expert in the field[s] of forensic blood alcohol physiology and pharmacology, breath and blood alcohol testing[,] and the effects of drugs on human performance and behavior.” Mr. Glover testified that, based on the sample of Defendant's blood taken at Baptist Hospital, he determined Defendant's blood alcohol level to be 0.01. Dr. Andrew Mason (Dr. Mason) testified for Defendant as an expert in forensic toxicology. Dr. Mason testified that he used Defendant's same 8:49 p.m. blood sample and determined Defendant's blood alcohol level to be anywhere between 0.009 to 0.014. A urine sample taken from Defendant at Baptist Hospital that same evening tested positive for cocaine and cocaine metabolites.

Mr. Glover also testified that, based on the alcohol content of the two blood samples taken from Defendant shortly after the crash, he determined Defendant's blood alcohol level at the time of the collision to be 0.08. Mr. Glover also testified that the “half-life of cocaine is in the range of forty-five minutes to maybe an hour and a half.” Based on the short half-life of cocaine and Baptist Hospital's report showing un-metabolized cocaine was present in Defendant's system, Mr. Glover determined that Defendant had recently used cocaine and that the concentration of cocaine in Defendant's system “would have been higher at the time of the crash.” Mr. Glover further testified to the correlation between the effects of cocaine and “high-risk driving[.]”

Dr. Mason disagreed with the reliability and accuracy of Mr. Glover's methods in determining Defendant's blood alcohol level at the time of the collision. Dr. Mason agreed with Mr. Glover as to the average half-life of cocaine. Dr. Mason was of the opinion that Defendant had been exposed to cocaine within nine hours prior to the time Defendant's blood samples were taken. However, because a person can test positive for cocaine after the effects of the cocaine have worn off and because there was no quantitative measure of the amount of cocaine in Defendant's system, Dr. Mason testified there was no reliable method to determine whether Defendant was impaired by cocaine at the time of the collision.

Pam Stafford of the Wilkes County District Attorney's office testified that Defendant had been convicted of driving while impaired on four previous occasions. Trooper Robin Chandler (Trooper Chandler), a retired North Carolina Highway Patrol trooper; Trooper Steve Grizzell (Trooper Grizzell) of the North Carolina Highway Patrol; and Officer Ryan Preslar (Officer Preslar) of the Elkin Police Department, each testified regarding the circumstances of three of Defendant's prior driving while impaired arrests.

At the close of all the evidence, Defendant moved to dismiss. The trial court denied Defendant's motion. The jury convicted Defendant of all charges. Further facts will be introduced as required in the opinion.

I. Lay Opinion Testimony

Defendant first argues that the trial court abused its discretion by allowing Mr. Groce, a lay witness, to testify that Defendant was impaired. We disagree.

“[W]hether a lay witness may testify as to an opinion is reviewed for abuse of discretion.” State v. Washington, 141 N.C.App. 354, 362, 540 S.E.2d 388, 395 (2000) (citation omitted). “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.” N.C. Gen.Stat. § 8C–1, Rule 602 (2009). Lay witness “testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” N.C. Gen.Stat. § 8C–1, Rule 701 (2009).

“ ‘A lay witness is competent to testify whether or not in his opinion a person was drunk or sober on a given occasion on which he observed him.’ ” State v. Strickland, 321 N.C. 31, 37, 361 S.E.2d 882, 885 (1987) (citation omitted). “ ‘The conditions under which the witness observed the person, and the opportunity to observe him, go to the weight, not the admissibility, of the testimony.’ ” Id. (citation omitted). In Strickland, “[a witness] testified that he was with [the] defendant at [a] bootlegger's...