State v. Speight

• Decision Date: 07 September 2004
• Docket Number: No. COA03-776.,COA03-776.
• Citation: 602 S.E.2d 4,166 NC App. 106
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Timmy Wayne SPEIGHT.

602 S.E.2d 4

166 NC App. 106

STATE of North Carolina v. Timmy Wayne SPEIGHT.

No. COA03-776.

Court of Appeals of North Carolina.

September 7, 2004.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Isaac T. Avery, III and Assistant Attorney General Patricia A. Duffy, for the State.

Margaret Creasy Ciardella, Hampstead, for defendant-appellant.

HUNTER, Judge.

Timmy Wayne Speight ("defendant") appeals from three separate judgments dated 30 August 2002 entered consistent with a jury verdict finding him guilty of two counts of involuntary manslaughter and one count of driving while impaired ("DWI"). As a result of his convictions, defendant was given an active sentence of two consecutive prison terms, with minimum terms of twenty months and corresponding maximum terms of twenty-four months on the involuntary manslaughter convictions and an additional consecutive sentence of twelve months for the DWI conviction. For the reasons stated herein, we conclude there was no prejudicial error at trial, however, we remand for resentencing.

The State's evidence tends to show that defendant was driving a Camaro northbound on Highway 11 in Pitt County, North Carolina. Several witnesses testified that defendant was cutting in and out of heavy rush hour traffic and driving at speeds estimated between sixty and eighty miles per hour. As traffic passed through a stoplight, defendant's car cut in front of another vehicle. Defendant lost control of his vehicle, skidded across the median, hit a pole, and collided head on into a white Buick traveling in the opposite direction with such force that the Buick was flipped upside down. The collision killed both the driver of the Buick, Lynwood Thomas, and his son, Donald Thomas, a passenger in the car.

One of the responding EMS technicians testified that as he was attending to defendant in his car at the scene, the EMS technician detected the odor of alcohol. While defendant was being extracted from his vehicle, Officer M.L. Montayne ("Officer Montayne") of the Greenville Police Department, also detected a slight odor of alcohol inside the Camaro. Officer Montayne also received accounts from four or five witnesses who observed defendant's driving and the resulting collision.

Defendant was transported to a hospital via ambulance, and Officer Montayne followed. At the hospital, Officer Montayne talked with defendant and noted a moderate odor of alcohol on defendant's breath. Based upon the severity of the collision, the witnesses' observations, and the odor of alcohol in the car and on defendant's breath, Officer Montayne reached the opinion that defendant had consumed sufficient alcohol to appreciably impair his mental and physical faculties and charged defendant with DWI.

After Officer Montayne read defendant his chemical testing rights, defendant signed a form acknowledging he understood those rights and signed a separate form consenting to giving blood samples. Defendant also subsequently signed a form consenting to the release of all of his medical records to the district attorney's office. Blood samples were taken and given to the State Bureau of Investigation ("SBI") for analysis. The SBI analysis revealed defendant had a blood alcohol level of .10 and further analysis showed the presence of THC, a chemical found in marijuana, in defendant's blood. There was also evidence that analysis of defendant's hospital records showed defendant with a blood alcohol level of .11 based on the hospital's testing. At trial, an SBI analyst gave expert testimony that he performed retroactive analysis of both the SBI blood testing and the hospital's blood testing, which would extrapolate defendant's blood alcohol level back to the time of the accident. The results of both extrapolations showed that at the time of the collision, defendant had a .13 blood alcohol level.

Defendant was indicted on two counts of second degree murder and one count of DWI. Prior to trial, defendant moved as an indigent defendant for funds to hire a medical expert and an accident reconstruction expert. The trial court denied both motions. On 21 August 2002, the State filed a motion to allow the State to use defendant's medical records, including "toxicology blood screens and other lab tests." The same day, defendant filed a motion to suppress any evidence of defendant's medical records. The following day, defendant amended his motion to suppress to expressly include a request to suppress "[a]ny and all medical records, including but not limited to any and all blood or breath alcohol level tests." At trial, which began on 26 August 2002, when the State sought to introduce evidence of the SBI blood test analysis, defendant objected, noting his prior motion to suppress medical records. The trial court denied the motion on the grounds that the SBI blood test was not a medical record and that the motion to suppress was not timely filed. The jury acquitted defendant of both counts of second degree murder, but found him guilty of two counts of involuntary manslaughter and one count of DWI.

The issues presented are whether (I) the trial court erred in denying defendant funds to hire experts; (II) Officer Montayne's testimony that in his opinion defendant was impaired was an improper opinion by a lay witness; (III) the trial court committed prejudicial error in denying the motion to suppress as untimely; and (IV) the trial court properly allowed the State to present expert testimony in the fields of accident reconstruction and blood testing.

I.

Defendant first argues that the trial court erred in denying him funds to hire an accident reconstruction expert and a medical expert. We disagree.

"An indigent defendant's right to the assistance of an expert at state expense `is rooted in the Fourteenth Amendment's guarantee of fundamental fairness and the principle that an indigent defendant must be given a fair opportunity to present his defense.'" State v. Parks, 331 N.C. 649, 655, 417 S.E.2d 467, 471 (1992) (quoting State v. Tucker, 329 N.C. 709, 718, 407 S.E.2d 805, 811 (1991)). In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court "held that when a defendant makes a preliminary showing that his sanity will likely be a `significant factor at trial,' the defendant is entitled, under the Constitution, to the assistance of a psychiatrist in preparation of his defense." State v. Moore, 321 N.C. 327, 335, 364 S.E.2d 648, 652 (1988) (quoting Ake, 470 U.S. at 74, 105 S.Ct. at 1091-92, 84 L.Ed.2d at 60). North Carolina courts have subsequently expanded the holding in Ake to instances where an indigent defendant has sought the state funded assistance of experts in areas other than psychiatry, but requiring "that such experts need not be provided unless the defendant `makes a threshold showing of specific necessity for the assistance of the expert' requested." Id. (quoting State v. Penley, 318 N.C. 30, 51, 347 S.E.2d 783, 795 (1986)).

In Moore, the North Carolina Supreme Court further held that:

In order to make a threshold showing of specific need for the expert sought, the defendant must demonstrate that: (1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that it will materially assist him in the preparation of his case.

Id. "In determining whether the defendant has made the requisite showing of his particularized need for the requested expert, the court `should consider all the facts and circumstances known to it at the time the motion for ... assistance is made.'" Id. at 336, 364 S.E.2d at 652 (quoting State v. Gambrell, 318 N.C. 249, 256, 347 S.E.2d 390, 394 (1986)). "The determination of whether a defendant has made an adequate showing of particularized need lies largely within the discretion of the trial court." State v. Brown, 357 N.C. 382, 387, 584 S.E.2d 278, 281 (2003). "While particularized need is a fluid concept determined on a case-by-case basis, `"[m]ere hope or suspicion that favorable evidence is available is not enough."'" Id. (quoting State v. Page, 346 N.C. 689, 696-97, 488 S.E.2d 225, 230 (1997)). "Furthermore, `the State is not required by law to finance a fishing expedition for the defendant in the vain hope that "something" will turn up.'" State v. McNeill, 349 N.C. 634, 650, 509 S.E.2d 415, 424 (1998) (quoting State v. Alford, 298 N.C. 465, 469, 259 S.E.2d 242, 245 (1979)).

Defendant in the case sub judice relies on both Moore and Parks, arguing that they are analogous to the present case. Both of those cases are, however, distinguishable. In Moore, the defendant moved to be provided funds from which to hire a psychiatrist in order to determine whether he was competent to waive his Miranda rights. Moore, 321 N.C. at 334-35, 364 S.E.2d at 651-52. The Supreme Court noted that at the motion hearing defendant made a particularized showing that:

"(1) Defendant has an IQ of 51;

(2) Defendant's "mental age" is equivalent to that of an eight or nine year old (3) Defendant's vocabulary is equivalent to that of a fourth or fifth grade elementary student;

(4) According to expert testimony, defendant cannot understand complicated instructions;

(5) According to family members, defendant could not understand the rights read by Detective Crawford without further explanation;

(6) According to the expert testimony, defendant is easily led and intimidated by others;

(7) According to a friend of defendant, defendant can be "run over" by "anybody";

(8) Defendant's low intelligence level may have rendered him unable to understand the nature of any statement he may have made;

(9) Defendant's mental retardation may have rendered him unable to knowingly waive his rights;

(10) The state's case against defendant was predicated in significant measure on defendant's confession because G.G. could not identify her assailant."

Id. at 336-37, 364 S.E.2d at 652-53. The Supreme Court concluded that...