{ "id": 8523321, "name": "STATE OF NORTH CAROLINA v. DAVID LEE BYERS", "name_abbreviation": "State v. Byers", "decision_date": "1992-02-18", "docket_number": "No. 9116SC424", "first_page": "377", "last_page": "384", "citations": [ { "type": "official", "cite": "105 N.C. App. 377" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "327 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564050 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0328-01" ] }, { "cite": "152 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "138" } ], "opinion_index": 0 }, { "cite": "269 N.C. 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562097 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0135-01" ] }, { "cite": "128 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "258 N.C. 453", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561130 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/258/0453-01" ] }, { "cite": "247 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "917" } ], "opinion_index": 0 }, { "cite": "295 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566309 ], "year": 1978, "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0559-01" ] }, { "cite": "317 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "396" } ], "opinion_index": 0 }, { "cite": "311 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4684892 ], "year": 1984, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0391-01" ] }, { "cite": "389 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "55" }, { "page": "54" } ], "opinion_index": 0 }, { "cite": "326 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306215 ], "year": 1990, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0268-01" ] }, { "cite": "351 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "318 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4733270 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/318/0663-01" ] }, { "cite": "411 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509096 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0587-01" ] }, { "cite": "319 S.E.2d 261", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686860 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0573-01" ] }, { "cite": "373 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562049, 2561890, 2565383, 2565833, 2566424 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0369-05", "/nc/323/0369-02", "/nc/323/0369-01", "/nc/323/0369-04", "/nc/323/0369-03" ] }, { "cite": "369 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "90 N.C. App. 614", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525697 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/90/0614-01" ] } ], "analysis": { "cardinality": 731, "char_count": 16166, "ocr_confidence": 0.745, "pagerank": { "raw": 2.7189040186731585e-07, "percentile": 0.8300202058112268 }, "sha256": "f360f1b9db2b279634d6f26eb8d3ee1824080f44355be36b6d627811f679398c", "simhash": "1:b129056a622aa9d3", "word_count": 2616 }, "last_updated": "2023-07-14T19:24:40.355340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and Johnson concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID LEE BYERS" ], "opinions": [ { "text": "HEDRICK, Chief Judge.\nDefendant first contends \u201c[t]he trial court erred in refusing to charge the jury on felony death by vehicle.\u201d Our decision is controlled by State v. Williams, 90 N.C. App. 614, 369 S.E.2d 832, disc. review denied, 323 N.C. 369, 373 S.E.2d 555 (1988), where we held that felony death by vehicle, G.S. 20-141.4(al), was not a lesser included offense of involuntary manslaughter.\nIn the present case, the trial court submitted three possible verdicts to the jury \u2014second degree murder, involuntary manslaughter and misdemeanor death-by vehicle. Since felony death by motor vehicle is not a lesser included offense of involuntary manslaughter, and since the trial court did submit involuntary manslaughter, the court did not err in not submitting felony death by motor vehicle as a possible verdict. This assignment of error is meritless.\nDefendant next assigns error to the trial court\u2019s admission of testimony concerning the results of the blood test. Defendant argues the results of the test were not admissible because the test was not performed in accordance with G.S. 20-16.2 and G.S. 20-139.1. The record, however, indicates defendant failed to challenge the admissibility of the results of the blood test by a proper motion to suppress pursuant to G.S. 15A-974 and 15A-975.\nG.S. 15A-974 provides that \u201c[u]pon timely motion,\u201d the trial court must suppress evidence if \u201c[i]t is obtained as a result of a substantial violation\u201d of the Criminal Procedure Act. G.S. 15A-975 sets forth the procedural requirements for making a motion to suppress evidence pursuant to G.S. 15A-974:\n(a) In superior court, the defendant may move to suppress evidence only prior to trial unless the defendant did not have reasonable opportunity to make the motion before trial or unless a motion to suppress is allowed during trial under subsection (b)or (c).\n(b) A motion to suppress may be made for the first time during trial when the State has failed to notify the defendant\u2019s counsel or ... defendant... of its intention to use the evidence\n(c)If, after a pretrial determination and denial of the motion, the judge is satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion, he may permit the defendant to renew the motion before trial ....\nA defendant\u2019s failure to comply with the requirements of the statute acts as a waiver of his right to suppress evidence in violation of statutory or constitutional law. State v. Holloway, 311 N.C. 573, 319 S.E.2d 261 (1984).\nIn the present case, defendant failed to make a motion to suppress the results of the blood test prior to trial, and there is nothing in the record to indicate the existence of other circumstances which would allow defendant to make the motion during trial. Thus, defendant\u2019s failure to move to suppress the results of the blood test prior to trial acts as a waiver of his right to suppress such evidence. Furthermore, the Supreme Court, in State v. Drdak, 330 N.C. 587, 411 S.E.2d 604 (1992), held that testimony concerning the results of blood tests may be admitted into evidence even though the tests were not performed in accordance with G.S. 20-16.2 and G.S. 20-139.1 under the \u201cother competent evidence\u201d exception contained in G.S. 20-139.1. Defendant\u2019s assignment of error is meritless.\nBy Assignments of Error Numbers 3, 4, and 5 argued on appeal, defendant challenges the trial court\u2019s rulings as to the admissibility of certain evidence tending to show: (1) defendant did not have permission to use the car he was driving at the time of the collision, (2) defendant\u2019s drivers\u2019 license was revoked when the accident occurred and (3) defendant had been charged with driving while impaired in November, 1989, which charge was pending at the time of the accident on March 11, 1990. Defendant claims this evidence was \u201ccompletely irrelevant, prejudicial and inadmissible.\u201d We disagree.\n\u201cRelevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.R. Evid. 401. Rule 403 of the North Carolina Rules of Evidence provides in pertinent part: \u201cAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .\u201d Whether to exclude evidence under Rule 403 is a matter left tor the sound discretion of the trial court. State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987).\n\u201cOrdinarily, evidence tending to support the theory of the case being tried is admissible.\u201d State v. Coffey, 326 N.C. 268, 280, 389 S.E.2d 48, 55 (1990). In the present case, defendant was charged with second degree murder. The Supreme Court has held that \u201cany act evidencing \u2018wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty and deliberately bent on mischief ... is sufficient to supply the malice necessary for second degree murder.\u201d State v. Snyder, 311 N.C. 391, 394, 317 S.E.2d 394, 396 (1984), quoting State v. Wilkerson, 295 N.C. 559, 581, 247 S.E.2d 905, 917 (1978).\nWe find the evidence presented at trial tending to show defendant knew his license was revoked and proceeded to drive regardless of this knowledge indicates defendant acted with \u201ca mind regardless of social duty\u201d and with \u201crecklessness of consequences.\u201d We further find the evidence tending to show defendant took the car without permission and displayed fictitious tags in order to drive indicates a mind \u201cbent on mischief.\u201d Therefore, we hold the trial court did not abuse its discretion in admitting this evidence for the purpose of showing malice.\nFurthermore, we hold the trial court did not err in admitting evidence that defendant had a pending charge for driving while impaired at the time of the accident in order to show malice. Defendant contends this evidence was more prejudicial than probative and was violative of Rules 403 and 404(b) of the North Carolina Rules of Evidence. He argues this evidence was offered only to show defendant\u2019s propensity to drive impaired and cautionary instructions to the jury did not cure the prejudicial effect. We cannot agree.\nRule 404(b) provides:\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nThis rule clearly suggests that \u201cevidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused.\u201d Coffey at 278, 389 S.E.2d at 54. In order for the State to prove malice, it may present evidence of the defendant\u2019s acts which indicate criminal intent and other evidence which shows the defendant\u2019s mental state. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963).\nIn the present case, the evidence of defendant\u2019s pending driving while impaired charge is evidence of malice to support a second degree murder charge. The trial court properly admitted such evidence pursuant to Rule 404(b) since the evidence was not submitted to show defendant\u2019s propensity to commit the crime, but to show the requisite mental state for a conviction of second degree murder. Defendant\u2019s Assignments of Error Numbers 3, 4 and 5 are overruled.\nIn his final assignment of error argued on appeal, defendant contends \u201c[t]he trial court erred in admitting State\u2019s Exhibit Number [12] into evidence concerning statements made by defendant when the statements were not signed or acknowledged by defendant.\u201d\nThe record indicates defendant was approached by Trooper Hinnant as he was checking out of the hospital. After reading him the Miranda warnings, Trooper Hinnant asked defendant if he would answer some questions about the accident. At that time, defendant signed a waiver of rights form and agreed to answer Trooper Hinnant\u2019s questions. At trial, the State introduced Trooper Hinnant\u2019s notes recording the questions he had asked defendant and his answers to those questions as State\u2019s Exhibit 12. Trooper Hinnant testified that the exhibit was a verbatim record of the questions he posed to defendant and the answers he had given, and the trial judge allowed Trooper Hinnant to read his notes to the jury.\nIn his brief, defendant argues these notes should not have been admitted into evidence because they \u201cwere not signed or otherwise admitted by defendant to be correct.\u201d Defendant relies on State v. Walker, 269 N.C. 135, 152 S.E.2d 133 (1967), for the proposition that the notes could not be admitted unless defendant signed them to acknowledge their accuracy. In Walker, the Supreme Court held that a written statement which was an interpretive narration of defendant\u2019s confession and was signed by defendant before being read to him was inadmissible. Walker, supra. The Court stated, however,\nThere is a sharp difference between reading from a transcript which, according to sworn testimony, records the exact words used by an accused, and reading a memorandum that purports to be an interpretive narration of what the officer understood to be the purport of statements made by the accused.\nId. at 141, 152 S.E.2d at 138.\nIn the present case, Trooper Hinnant testified that his notes were a verbatim record of the questions and answers between he and defendant. We liken the present case to the facts in State v. Cole, 293 N.C. 328, 327 S.E.2d 814 (1977), in which the Supreme Court upheld the admissibility of defendant\u2019s unsigned written statement. As in Cole, the statement in question was taken down in longhand in defendant\u2019s own words by an officer and was not merely the officer\u2019s impression of the import of defendant\u2019s statements. Under these circumstances, we hold the trial court did not err in allowing Trooper Hinnant to read his notes to the jury. Defendant\u2019s assignment of error is without merit.\nDefendant had a fair trial free from prejudicial error.\nNo error.\nJudges Wells and Johnson concur.", "type": "majority", "author": "HEDRICK, Chief Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Linda Anne Morris, for the State.", "Public Defender Angus B. Thompson, II, by Assistant Public Defender Omar Saleem, for defendant, appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID LEE BYERS\nNo. 9116SC424\n(Filed 18 February 1992)\n1. Automobiles and Other Vehicles \u00a7 789 (NCI4th|\u2014 felony death by vehicle \u2014 not lesser offense of involuntary manslaughter\nFelony death by vehicle is not a lesser included offense of involuntary manslaughter, and the trial court did not err in failing to charge the jury on felony death by vehicle in a prosecution in which the trial court submitted second degree murder and involuntary manslaughter as possible verdicts.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 324, 328-330, 338, 339.\n2. Evidence and Witnesses \u00a7 621 (NCI4th); Automobiles and Other Vehicles \u00a7 813 (NCI4th)\u2014 hospital blood test \u2014 waiver of right to challenge \u2014 admissibility under \u201cother competent evidence\u201d exception\nDefendant waived his right to challenge the admissibility of blood tests performed at a hospital by failing to make a motion to suppress the blood test results prior to trial. N.C.G.S. \u00a7 15A-975. Furthermore, testimony concerning the results of blood tests may be admitted into evidence under the \u201cother competent evidence\u201d exception in N.C.G.S. \u00a7 20-139.1 even though the tests were not performed in accordance with N.C.G.S. \u00a7\u00a7 20-16.2 and 20-139.1.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 377.\n3. Evidence and Witnesses \u00a7 174 (NCI4th); Homicide \u00a7 15.2 (NCI3d)\u2014 second degree murder \u2014 automobile collision \u2014 license revoked \u2014driving without permission \u2014evidence of malice\nIn a prosecution for second degree murder arising from a collision while defendant was driving under the influence of alcohol, evidence that defendant knew his license was revoked when the accident occurred indicated that defendant acted with \u201ca mind regardless .of social duty\u201d and with \u201crecklessness of consequences\u201d and was thus admissible to show malice. Evidence that defendant did not have permission to use the car he was driving and displayed fictitious tags on the car indicated a mind \u201cbent on mischief\u201d and was also admissible to show malice.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 383.\n4. Evidence and Witnesses \u00a7 339 (NCI4th) \u2014 second degree murder \u2014 automobile collision while impaired \u2014 pending driving while impaired charge \u2014 admissibility to show malice\nIn a prosecution for second degree murder arising out of an automobile collision while defendant was driving under the influence of alcohol, evidence that a charge of driving while impaired was pending against defendant at the time of the collision was not offered to show defendant\u2019s propensity to drive while impaired but was properly admitted under Rule of Evidence 404(b) to show malice.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 383, 384; Evidence \u00a7 331; Homicide \u00a7 438.\n5. Evidence and Witnesses \u00a7 1354 (NCI4th|\u2014 officer\u2019s notes of questions and answers \u2014admissibility\u2014defendant\u2019s signature not required\nThe trial court did not err in admitting an officer\u2019s notes recording verbatim the questions he had asked defendant and defendant\u2019s answers to those questions and in permitting the officer to read his notes to the jury even though the notes were not signed by defendant or otherwise admitted by defendant to be correct.\nAm Jur 2d, Evidence \u00a7 533.\nAPPEAL by defendant from Britt (Joe Freeman), Judge. Judgment entered 17 October 1990 in Superior Court, ROBESON County. Heard in the Court of Appeals 10 February 1992.\nDefendant was charged in proper bills of indictment with murder in violation of G.S. 14-17. The jury found defendant guilty of two counts of involuntary manslaughter.\nThe evidence presented at trial tends to show the following: On 11 March 1990, Mary Davis and Rosalind Batchelor were traveling east on Rural Paved Road 1318 in Red Springs, North Carolina. Defendant was traveling west on Road 1318, when he collided head on with the automobile driven by Mrs. Davis.\nAndrew Jacobs came upon the accident. He first went to the car driven by Mrs. Davis and found she was unconscious and had no pulse. He checked Mrs. Batchelor and found her seriously injured and unable to speak. He then went to defendant\u2019s car and found him pinned in the driver\u2019s seat. Jacobs smelled alcohol in defendant\u2019s car. Jacobs went from car to car assisting the victims until help arrived. Trooper Keith Hinnant arrived at the scene along with emergency crews. He found both women motionless and smelled a strong odor of alcohol coming from defendant\u2019s car. After determining that both Mrs. Davis and Mrs. Batchelor were dead, emergency technicians attended to defendant. Defendant suffered-facial cuts and bruises and had a noticeable odor of alcohol on his breath.\nDefendant was taken for treatment to Southeastern General Hospital. Approximately two hours after the accident, pursuant to a physician\u2019s order, a phlebotomy specialist at Southeastern General withdrew blood from defendant. This blood was later analyzed by a medical technologist and revealed .239 grams of alcohol per 100 milliliters of blood.\nAfter conducting an investigation at the scene, Trooper Hinnant proceeded to the emergency room where he saw defendant. Defendant told him Mrs. Davis had crossed over into his lane and hit him head on. On 15 March 1990, as defendant was being released from the hospital, Trooper Hinnant approached him again. After first being advised of his Miranda rights, defendant agreed to answer Trooper Hinnant\u2019s questions about the accident. Defendant said he had been drinking the afternoon and evening before the collision, that he had slept three or four hours, and when he awoke on the morning of the collision he had one more beer and started driving.\nFrom judgments imposing two consecutive sentences of ten years in prison, defendant appealed.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Linda Anne Morris, for the State.\nPublic Defender Angus B. Thompson, II, by Assistant Public Defender Omar Saleem, for defendant, appellant." }, "file_name": "0377-01", "first_page_order": 405, "last_page_order": 412 }