{ "id": 11917139, "name": "STATE OF NORTH CAROLINA v. ANTONIO BERNARD LOVETT", "name_abbreviation": "State v. Lovett", "decision_date": "1995-08-01", "docket_number": "No. COA96-255", "first_page": "689", "last_page": "695", "citations": [ { "type": "official", "cite": "119 N.C. App. 689" } ], "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": "N.C. Gen. Stat. \u00a7 14-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "opinion_index": -1 }, { "cite": "333 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686499 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0319-01" ] }, { "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" ] }, { "cite": "413 S.E.2d 586", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "105 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523321 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/105/0377-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-16.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1993, "opinion_index": 0 } ], "analysis": { "cardinality": 657, "char_count": 12868, "ocr_confidence": 0.739, "pagerank": { "raw": 5.2139779400493464e-08, "percentile": 0.32934236706464354 }, "sha256": "133046a4d18d04b94f97a9977247934e0848d78cbb8c82706b2d537273027d27", "simhash": "1:af2a72012f6b1068", "word_count": 2178 }, "last_updated": "2023-07-14T17:09:59.579385+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and GREENE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANTONIO BERNARD LOVETT" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nDefendant first argues that the trial court erred by denying his motion to suppress the blood test results. Specifically, defendant contends the chemical analyst did not give him a notice in writing of his rights in violation of N.C. Gen. Stat. \u00a7 20-16.2 (1993). We disagree.\nN.C. Gen. Stat. \u00a7 20-16.2 (1993) provides in pertinent part as follows:\n[B]efore any type of chemical analysis is administered the person charged must be taken before a chemical analyst authorized to administer a test of a person\u2019s breath, who must inform the person orally and also give the person a notice in writing that:\n(1) He has a right to refuse to be tested.\n(2) Refusal to take any required test or tests will result in an immediate revocation of his driving privilege for at least 10 days and an additional 12-month revocation by the Division of Motor Vehicles.\n(3) The test results, or the fact of his refusal, will be admissible in evidence at trial on the offense charged.\n(4) His driving privilege will be revoked immediately for at least 10 days if:\na. The test reveals an alcohol concentration of 0.08 or more; or\nb. He was driving a commercial motor vehicle and the test reveals an alcohol concentration of 0.04 or more.\n(5) He may have a qualified person of his own choosing administer a chemical test or tests in addition to any test administered at the direction of the charging officer.\n(6) He has the right to call an attorney and select a witness to view for him the testing procedures, but the testing may not be delayed for these purposes longer than 30 minutes from the time he is notified of his rights.\nDefendant does not contend that he was not informed orally of his rights or that he did not waive them. Instead, he contends the chemical analyst failed to \u201cgive\u201d him notice in writing.\nEvidence presented at the suppression hearing shows that the chemical analyst, Deputy Ploger, placed the written rights form with defendant\u2019s emergency room chart. Defendant was not capable of signing the form since his hands were strapped down and IVs were in both arms. Deputy Ploger testified that he would normally have placed the written rights form in defendant\u2019s \u201cE.R. bag,\u201d but that defendant did not have one.\nDeputy Ploger\u2019s placement of the written rights form with defendant\u2019s emergency room chart was tantamount to \u201cgiving\u201d defendant notice in writing. In light of the treatment defendant was receiving for his injuries, there was effectively no other means by which the notice could have been given to him. Clearly, defendant was informed of his rights and he waived them. The trial court did not err by denying defendant\u2019s motion to suppress.\nDefendant next argues that the trial court committed \u201cplain error\u201d by failing to instruct the jury on felony death by vehicle because it is a lesser included offense of involuntary manslaughter and by erroneously instructing the jury regarding misdemeanor death by vehicle. We disagree.\nDefendant did not object to the trial court\u2019s omission of an instruction on felony death by vehicle. Nor did he assign error to the trial court\u2019s instructions on this basis. He contends this Court should nonetheless address his argument pursuant to a \u201cplain error\u201d analysis.\nThe \u201cplain error\u201d rule, adopted by our Supreme Court in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983), allows for review of alleged errors although no objection was made to them at trial. The rule mitigates the potential harshness of Rules 10(b)(1) and 10(b)(2) of the North Carolina Rules of Appellate Procedure. However, the rule does not waive N.C.R. App. P. 10(a) which limits the scope of appellate review to the assignments of error set out in the record on appeal. Therefore, a \u201cplain error\u201d analysis is not available to defendant in this case since he failed to make the trial court\u2019s omission of the instruction in question, the subject of an assignment of error.\nEven if the question were properly before this Court, it is merit-less. It is well-settled that felony death by vehicle is not a lesser included offense of involuntary manslaughter. State v. Byers, 105 N.C. App. 377, 413 S.E.2d 586 (1992); 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).\nDefendant contends the trial court erred by instructing the jury that speeding was the underlying offense as to misdemeanor death by vehicle. While there was ample evidence to instruct that running the red light was the underlying offense, there was also sufficient evidence to show that speeding was the underlying offense. Defendant, having been found guilty of second degree murder, has failed to show that he was prejudiced in any way by the trial court\u2019s instruction as to misdemeanor death by vehicle. His argument is meritless.\nFinally, defendant argues that the trial court erred by failing to find as a nonstatutory mitigating factor that he \u201cshowed remorse, was sorry, and accepted full responsibility.\u201d We disagree.\nFailure to find a nonstatutory mitigating factor, even if it is supported by uncontradicted, substantial, and manifestly credible evidence, will not be disturbed absent an abuse of discretion. State v. Spears, 314 N.C. 319, 333 S.E.2d 242 (1985). In this case, the evidence showed that defendant told his cousin that he was sorry and took full responsibility, but he also said to his cousin: \u201c[H]ey, I can\u2019t bring back anybody and the car is gone; so, you know, you got to keep on moving on.\u201d During sentencing, defendant asked the victim\u2019s family to forgive him for his negligence or irresponsibility. While this evidence may show that defendant had some regrets concerning his actions, particularly following his conviction for second degree murder, it does not mandate a finding of a nonstatutory mitigating factor. The trial court did not abuse its discretion by failing to find the factor.\nWe hold defendant had a fair trial, free from prejudicial error.\nNo error.\nJudges COZORT and GREENE concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Linda M. Fox, for the State.", "Paul J. Williams for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANTONIO BERNARD LOVETT\nNo. COA96-255\n(Filed 1 August 1995)\n1. Evidence and Witnesses \u00a7 1832 (NCI4th)\u2014 chemical analysis of blood \u2014 written notice of rights given\nThere was no merit to defendant\u2019s contention that the trial court erred by denying his motion to suppress blood test results because the chemical analyst did not give him notice in writing of his rights, since the chemical analyst placed the written rights form with defendant\u2019s emergency room chart; defendant was not capable of signing the form because his hands were strapped down and IVs were in both arms; there was effectively no other means by which the notice could have been given to him; and defendant was clearly informed of his rights and waived them. N.C.G.S. \u00a7 20-16.2.\nAm Jur 2d, Evidence \u00a7\u00a7 1021, 1022.\n2. Automobiles and Other Vehicles \u00a7 789 (NCI4th)\u2014 felony death by vehicle \u2014 no lesser included offense of involuntary manslaughter\nThe trial court did not err in failing to instruct the jury on felony death by vehicle, since that is not a lesser included offense of involuntary manslaughter.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 328 et seq.\n3. Criminal Law \u00a7 1214 (NCI4th)\u2014 defendant\u2019s remorse \u2014 failure to find mitigating factor \u2014 no error\nThe trial court did not err in failing to find as a nonstatutory mitigating factor for second-degree murder that defendant showed remorse, was sorry, and accepted full responsibility.\nAm Jur 2d, Homicide \u00a7\u00a7 549-555.\nAppeal by defendant from judgment entered 1 September 1994 by Judge J. Marlene Hyatt in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 July 1995.\nDefendant was charged with the murder of Billy Mayhew in violation of N.C. Gen. Stat. \u00a7 14-17 (1993). Evidence was presented by the State at trial as follows:\nRobert Woods testified that on 18 December 1993 he and defendant, who is his cousin, were shooting some pool and drinking beer with friends at the Blue Star Lounge in Charlotte. Sometime around 11:00 p.m., Woods decided he wanted to leave. After he and the others got out the door, Woods thought he had left his car keys inside and he went back inside. When he walked back outside, defendant was driving his car up the street. Woods and the others were shocked by defendant\u2019s actions. After waiting for defendant to return, Woods left the scene in a taxi. He eventually reported what had happened to the police.\nWoods further testified that he later saw defendant at the hospital. Defendant told him he did not know what happened. He also told Woods: \u201c[H]ey, I can\u2019t bring back anybody and the car is gone; so, you know, you got to keep on moving on.\u201d\nMike Stevens testified that between 10:30 and 11:00 p.m. on 18 December 1993, he and his wife were travelling down The Plaza in Charlotte in their van when a car without its headlights on ran a stop sign and struck the van. The van was knocked into a nearby parking lot. Stevens got out of the van expecting to find someone hurt in the small car. Instead, he saw the car proceeding down The Plaza dragging metal.\nOfficer Robert Gilbert of the Charlotte-Mecklenburg Police Department testified that on 18 December 1993 he was responding to a call when he saw several people in two different stopped cars attempting to flag him down. The people seemed excited and irate. After speaking with the people, Officer Gilbert turned his car around and headed toward The Plaza. He saw another two stopped vehicles. A woman in one of them was pointing down the road. As Officer Gilbert drove in the direction the woman had pointed, another officer riding with him heard a loud noise. Officer Gilbert drove in the direction of the noise and found a \u201creal bad traffic accident.\u201d A small vehicle and a Lincoln Continental had collided. Officer Gilbert approached the small vehicle. In the driver\u2019s seat of the car was defendant who seemed to be pinned. A \u201cvery, very strong odor of alcohol\u201d was coming from the car. Defendant kept saying that he was thrown into the vehicle.\nLafayette Butler, a railroad police officer, testified that on 18 December 1993 he and another officer were patrolling railroad property when they approached an intersection. A station wagon was stopped at the light. When the light turned green, the station wagon entered the intersection and a small car without its headlights on ran the red light, forcing the station wagon off the street. Butler and the other officer followed the car which continued at a high rate of speed without its headlights on. At the next intersection, the car ran a red light without its brake lights coming on.\nTommy Hanks, a railroad police officer, testified that he was with Officer Butler on 18 December 1993. He and Butler were about fifty yards behind defendant\u2019s car when it collided with a bigger car in an intersection. The traffic light was red when defendant\u2019s car entered the intersection.\nJune Clark, Jr., testified that he was a captain with the Charlotte Fire Department. On 18 December 1993 Clark rode with two paramedics to the scene of the accident. He approached defendant\u2019s car and asked him some questions to assess his injuries. Defendant said that he had been drinking and that he did not care what the police did with him or his car.\nDenna Gaston, a paramedic, testified that she attended to defendant after the accident on 18 December 1993. Defendant smelled of alcohol and told Gaston that he had been drinking.\nCharles Adkins, a Charlotte police officer, testified that he asked defendant to submit to a breathalyzer test at the hospital. Another officer read defendant his rights to refuse chemical analysis. When given the option of submitting to a breathalyzer or having blood taken, defendant asked which test would result in the most pay for the officers. One of the officers said that it did not matter either way, and defendant said: \u201cWell, I don\u2019t give a shit; do whatever you want to, then.\u201d Blood was then drawn from defendant.\nJames Ploger, a sergeant with the Mecklenburg County Sheriff\u2019s Department, testified that he was called to the Carolinas Medical Center in the early morning hours of 19 December 1993 to inform defendant of his rights and witness the taking of a blood sample. After Ploger read defendant his rights, defendant said that he did not want an attorney. Defendant could not sign the rights form because he was strapped down and had IVs in his arms.\nTony Aldridge testified that he was a criminalist for the Charlotte-Mecklenburg Police Department. He analyzed the blood taken from defendant and found the blood alcohol concentration to be .143.\nThe jury found defendant guilty of second degree murder. From a judgment imposing a prison sentence of forty-five years, defendant appeals.\nAttorney General Michael F. Easley, by Assistant Attorney General Linda M. Fox, for the State.\nPaul J. Williams for defendant appellant." }, "file_name": "0689-01", "first_page_order": 723, "last_page_order": 729 }