State v. Brown

• Decision Date: 01 September 1987
• Docket Number: No. 864SC929,864SC929
• Citation: 87 N.C.App. 13,359 S.E.2d 265
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Gerald Wayne BROWN.

Page 265

359 S.E.2d 265

87 N.C.App. 13

STATE of North Carolina v. Gerald Wayne BROWN.

No. 864SC929.

Court of Appeals of North Carolina.

Sept. 1, 1987.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Linda Anne Morris, Raleigh, for the State.

Merritt & Stroud by Timothy E. Merritt, Jacksonville, for defendant-appellant.

COZORT, Judge.

The defendant was charged in indictments proper in form with manslaughter (N.C.G.S. § 14-18) and hit and run resulting in personal injury or death (N.C.G.S. § 20-166(a)). He was convicted of involuntary manslaughter and hit and run with personal injury or death not apparent to the defendant. The State's case on involuntary manslaughter was based on its contention that a pedestrian was killed when struck by defendant's van which was being operated by the defendant while the defendant was impaired by alcohol. The only evidence of defendant's impairment or intoxication was his admission that he was "intoxicated" and "had consumed too much beer" about one to three hours after the pedestrian was killed. The defendant denied being intoxicated when the incident occurred and denied seeing or striking the pedestrian. We hold that the defendant's admission was sufficient to supply the necessary evidence of impairment, and we find no error in the conviction. The facts follow.

The State's evidence tended to show that in the early morning hours of Sunday, 20 October 1985, Larry Keith Drum, a Sergeant in the United States Marine Corps, and Ron Kistner discovered a person lying in the road at the intersection of Lake Street and Barbara Avenue in Jacksonville. They saw that the man was bleeding and having difficulty breathing. The Highway Patrol and an ambulance were called and the rescue squad came and took the person away.

Trooper Richard Allen Hood of the North Carolina Highway Patrol was dispatched to the scene, arriving at 1:52 a.m. The injured person had been taken away by the rescue squad prior to his arrival. Sergeant Drum and Kistner told him where the person had been discovered in the road. Trooper Hood found several pieces of what appeared to be amber turn light lens. Trooper Hood put the amber lens pieces in a bag. One piece of the lens had a Chrysler insignia on it. Trooper Hood went to a Chrysler dealership nearby and began comparing the lens piece with the Chrysler insignia on it to the lenses on vehicles at the dealership. He determined that the piece discovered in the road compared to that of a Dodge van at the dealership. Trooper Hood drove back to the scene of the accident, arriving at about 3:00 a.m. He then started driving up and down nearby streets, looking for a Dodge van.

At about 3:30 a.m. Trooper Hood found a Dodge van parked on the side of the road. The right turn signal lens had been broken. The pieces he had retrieved from the scene of the accident matched the van he found. Trooper Hood later learned that the house in front of which the van was parked was the residence of Robin Nuss. Trooper Hood called a wrecker and had the vehicle impounded. He learned that the van was registered to Gerald Wayne Brown, the defendant. He went to the address listed for the defendant, woke up the occupants there, and learned that Brown no longer lived there.

At 4:00 a.m., Trooper Hood went off duty and went home. Later that day he looked up Gerald Wayne Brown in the telephone directory and called the number listed for him. A male answered the phone and identified himself as Gerald Wayne Brown. Brown said he owned a 1979 black and red van which he had left at the house of a friend, Robin Nuss. Trooper Hood told Brown he was investigating an accident. Upon a request by Trooper Hood, Brown stated that he and his wife would meet Trooper Hood at the Highway Patrol Station at 4:00 p.m. When he arrived at the station, the defendant Brown was advised of his rights and made this statement, in writing:

Drove back from Cherry Point tournament arriving at about 8:30 P.M. Went home and then went to Alibi Bar from 9:30 to 11:30, consuming about eight cans of beer. Left and went to Shogun on Highway 24, left went to Jiffy-Mart, arriving 1:00 P.M. Went to Robin Nuss's house after picking up eggs and bacon at Jiffy Mart, arriving at Robin's house at approximately 1:30 P.M. Left Robin's house around 3:00 P.M. Wife drove home. Left van parked at Robin's house. Got a call about 1:30 P.M. 20 October, stating van was involved in accident. Came to ... Highway Patrol Office to see Officer Hood 4:00 P.M. 20 October.

In response to questions by Trooper Hood, defendant Brown stated that he drove from the Jiffy Mart to Nuss's house between 2:30 a.m. and 3:00 a.m., leaving his van there and riding home with his wife because he "didn't want to drive because intoxicated [sic ]." Defendant Brown admitted driving through the intersection where the victim was found; however, he denied striking anyone. He told Trooper Hood there was no damage to his van. Later that day, Trooper Hood examined the defendant's van again. The right side mirror was pulled back from the body of the van, and there was a small dent in the body under the right side of the windshield. Trooper Hood removed the grill from the front of the van and fit the pieces of turn light lens in the grill.

The person found lying in the street was later identified as Leslie Frank McPherson. McPherson died at 2:25 p.m. on Monday, 21 October 1985. An autopsy was performed by Dr. Charles L. Garrett, who found McPherson had received a severe injury to his head resulting in a fracture of his skull and bruising and tearing of his brain. The cause of death was the head injury. The injuries received by McPherson were consistent with his having been struck by a motor vehicle.

Patricia Gibbs, a friend of McPherson's, testified that he called her from a pay phone at the Jiffy Mart on Barbara Avenue at about 11:45 p.m. on the evening of 19 October 1985. They talked until about 1:05 a.m., 20 October 1985, when McPherson told her he was going to walk home and hung up the phone.

The defendant testified in his own behalf and presented other witnesses. The defendant is a Gunnery Sergeant in the United States Marine Corps, having enlisted in 1968. On Saturday, 19 October 1985, he went to a softball tournament at Cherry Point. He ate three hot dogs there at noon and returned to Jacksonville when the tournament was over, arriving in Jacksonville around 8:00 p.m. to 8:30 p.m. His wife was not ready to go out with him at the time. He left alone; she agreed to meet him later at the Alibi Bar, a local establishment. The defendant left his home between 8:30 p.m. and 9:00 p.m., driving his 1979 Dodge van. The defendant stayed at the Alibi until about 11:30 p.m. During that time, he drank approximately eight (8) 12-ounce cans of beer. He ate nothing at the Alibi, and in fact the record shows that he had nothing to eat after he returned to Jacksonville until he went to the Nuss home for breakfast. He left the Alibi at about 11:30 p.m. to go to the Shogun, a local restaurant. His wife, who had joined him at the Alibi, also went to the Shogun, following defendant in her car. The defendant testified he was not intoxicated when he left the Alibi. The defendant was at the Shogun for about an hour. He had nothing to eat or drink at the Shogun.

Around 12:30 a.m., defendant and his wife left the Shogun with plans to go to the house of friends, Robin and Carol Nuss, for breakfast. Defendant and his wife went next door to the Jiffy Mart and bought bacon, eggs, and a 12-pack of beer. The defendant drove to Nuss's house, which was a short distance away. The drive took about five (5) minutes. The defendant drove through the intersection of Lake Street and Barbara Avenue. The defendant testified that during this drive, nothing unusual happened and that he saw no one walking or lying in the street. He testified that he did not strike anyone in the intersection. The defendant also testified that his ability to operate a motor vehicle was not impaired by his consumption of alcoholic beverages. While at the Nuss home, the defendant ate breakfast and drank "probably four" 12-ounce cans of beer. He and his wife left to go home about 2:30 a.m. to 3:00 a.m. The defendant left his van at the Nuss's to ride home with his wife. He testified he let his wife drive home because "at the time I thought I had consumed too much beer and I was very tired."

The defendant's wife, Carolyn Sue Brown, testified that she drank two beers while they were at the Alibi and two more at the Shogun. When they were leaving the Shogun, she was of the opinion that her husband walked and spoke normally and that he was not impaired by alcohol. She followed him from the Shogun to the Nuss's house, and nothing out of the ordinary happened.

John Lane Garcia, the husband of the owner of the Alibi, saw the defendant at the Alibi and at the Nuss's house. In his opinion the defendant was not impaired by alcoholic beverages; to the contrary, he "was in good shape." Also, the defendant acted normal when he got to the Nuss's; he did not appear to be upset.

Harry Garfield Reckline, a retired United States Marine Corps Sergeant, saw defendant at the Shogun at about 11:30 p.m.-12:00 midnight. Reckline, who had drunk about six (6) beers during the course of the evening, stated that, in his opinion, the defendant did not appear to be impaired.

The defendant also offered witnesses who attested to his good character.

The jury found the defendant guilty of involuntary manslaughter and guilty of hit-and-run with personal injury or death not apparent to the defendant. The offenses were consolidated for judgment, and the trial court imposed an active sentence of 3 years, the presumptive term for involuntary manslaughter. The defendant appeals.

The primary issue to be decided on appeal is whether the trial court erred in denying the defendant's motion for dismissal at the close of the State's evidence and the motion for...