{
  "id": 8523664,
  "name": "STATE OF NORTH CAROLINA v. KEITH RAY ATKINS",
  "name_abbreviation": "State v. Atkins",
  "decision_date": "1982-07-06",
  "docket_number": "No. 8121SC1322",
  "first_page": "146",
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  "last_updated": "2023-07-14T18:20:52.636886+00:00",
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  "casebody": {
    "judges": [
      "Judges WEBB and WHICHARD concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. KEITH RAY ATKINS"
    ],
    "opinions": [
      {
        "text": "CLARK, Judge.\nInvoluntary manslaughter is defined as the unintentional killing of another person without malice by some unlawful act not amounting to a felony or naturally dangerous to human life or by an act or omission constituting culpable negligence. State v. Wilkerson, 295 N.C. 559, 247 S.E. 2d 905 (1978). Culpable negligence may arise from the \u201cintentional, wilful or wanton violation of a statute or ordinance, designed for the protection of human life or limb, which proximately results in . . . death . . . .\u201d State v. Cope, 204 N.C. 28, 31, 167 S.E. 456, 458 (1933). The trial court instructed the jury in the case before us that it should consider whether defendant violated any one of the following statutes: proceeding on the highway in the wrong direction in violation of G.S. 20-165.1; driving under the influence of alcohol in violation of G.S. 20-138; or driving under the influence of drugs in violation of G.S. 20-139. A wilful violation of any one of these statutes would constitute culpable negligence if that violation was the proximate cause of Ms. Warden\u2019s death.\nThe judge charged the jury on the three possible statutory violations. There was ample evidence presented on the driving in the wrong direction and the driving under the influence of alcohol violations. Defendant argues, however, that there was insufficient evidence concerning the driving under the influence of drugs violation and that it was error for the judge to charge the jury on this issue. The evidence concerning the drug use consisted of the bag of marijuana found on defendant and the opinion testimony of Kinzer, the eyewitness to the accident. Kinzer testified:\n\u201cIn my opinion he [the defendant] was under the influence of either pills or alcohol. I\u2019ve had some experience in determining whether someone is under the influence of pills because in my job every weekend, pumping gas, I see kids come up and down Stratford Road popping pills and drinking beer one after each other. In response to your question as to whether I observed anybody popping pills this particular evening on US-52, it wasn\u2019t that. After you see enough of it, you can recognize it. It\u2019s like a drink, if you take one, you got to have another.\u201d\nOur courts have held that a lay witness who has personally observed the individual is competent to testify whether or not in his opinion that person was under the influence of drugs. State v. Lindley, 286 N.C. 255, 210 S.E. 2d 207 (1974); State v. Cook, 273 N.C. 377, 160 S.E. 2d 49 (1968). However, the cases which have allowed opinion testimony regarding drugs have done so on the basis of much stronger indications of drug use. For example, in State v. Lindley, supra, the officer observed defendant\u2019s erratic driving, his personal demeanor, a white substance on his lips, his pinpoint pupils, the absence of alcohol on his breath, his lack of muscular coordination, his mental stupor, and the way he walked, acted and talked. He also interrogated defendant to ascertain whether there might have been other causes of defendant\u2019s condition. In the case before us we do not believe the evidence would have supported an independent finding of driving under the influence of drugs. There was no evidence of any physical manifestations of drug intoxication or of any odor of marijuana smoke in the car.\nThe trial court erred in submitting to the jury the violation of G.S. 20-139, driving under the influence of drugs. The question is whether the error is prejudicial or harmful so as to result in the granting of a new trial. The error was harmless if it could not have affected the result. State v. Milby and State v. Boyd, 302 N.C. 137, 273 S.E. 2d 716 (1981); State v. Stanfield, 292 N.C. 357, 233 S.E. 2d 574 (1977); State v. Cottingham, 30 N.C. App. 67, 226 S.E. 2d 387 (1976); G.S. 15A-1443(a). The test of harmless error must be applied on a case-by-case basis.\nApplying the test to the case sub judice, we find the evidence of defendant\u2019s guilt on the involuntary, manslaughter charge was overwhelming: he drove on the wrong side of a divided four-lane highway, traveling at 55-60 m.p.h., and hit Mrs. Warden\u2019s car head on, killing her; after the accident defendant was \u201cloud and boisterous\u201d at the scene and at the hospital but seemed to be in no pain; he smelled of alcohol, his eyes were red, and there were beer cans in and around the car; defendant admitted drinking two or three beers that evening; when told he had killed someone, defendant did not seem to care. We conclude that there was no reasonable possibility that error in submitting the G.S. 20-139 violation to the jury might have contributed to the defendant\u2019s conviction. We again note that the error in the instructions is not trivial or technical or merely academic but is nonprejudicial because the evidence of defendant\u2019s intentional, wilful or wanton violation of the law is so strong that it would be a vain act to reverse and remand for a new trial. We have carefully considered defendant\u2019s other assignments of error, and we find no prejudicial error.\nNo error.\nJudges WEBB and WHICHARD concur.",
        "type": "majority",
        "author": "CLARK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten by Assistant Attorney General Thomas H. Davis, Jr., for the State.",
      "Pfefferkorn & Cooley by Jim D. Cooley for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. KEITH RAY ATKINS\nNo. 8121SC1322\n(Filed 6 July 1982)\nAutomobiles and Other Vehicles \u00a7 112; Homicide \u00a7 27; Narcotics \u00a7 3.3\u2014 involuntary manslaughter \u2014 error to instruct concerning driving under influence of drugs \u2014 opinion testimony constituting insufficient evidence\nIn a prosecution for involuntary manslaughter, the trial court erred in instructing that the jury should consider whether defendant violated G.S. 20-139 by driving under the influence of drugs since the only evidence concerning the drug use consisted of a bag of marijuana found on defendant and opinion testimony of an eyewitness to the accident who felt that in his job, \u201cpumping gas,\u201d he had some experience in determining whether someone was under the influence of pills, and that in his opinion the defendant \u201cwas under the influence of either pills or alcohol.\u201d Although the court erred in submitting to the jury the violation of driving under the influence of drugs, the error was not prejudicial since the evidence was overwhelming of defendant\u2019s violation of the following statutes: (1) proceeding on the highway in the wrong direction in violation of G.S. 20-165.1, and (2) driving under the influence of alcohol in violation of G.S. 20-138.\nAPPEAL by defendant from Walker (Hal HJ, Judge. Judgment entered 27 July 1981 in Superior Court, FORSYTH County. Heard in the Court of Appeals 26 May 1982.\nDefendant was convicted as charged of involuntary manslaughter. He pled guilty to charges of simple possession of marijuana and no operator\u2019s license. He appeals from the judgment imposing a sentence of a maximum and minimum of three years in prison. The parties stipulated to the following: Elizabeth Montgomery Warden died on 6 December 1980 as a result of a collision of her car with the defendant\u2019s automobile in which she received head and chest injuries which were a direct cause of death; approximately 18 grams of marijuana were found on defendant on 6 December 1980; and a blood test taken of defendant\u2019s blood showed .01 percent of alcohol by weight in defendant\u2019s bloodstream on 6 December 1980 at approximately 3:00-3:30 a.m.\nState\u2019s Evidence\nAt trial the State presented the testimony of Richard Kinzer who was an eyewitness to the accident occurring at 2:45 a.m. on 6 December 1980. Kinzer was turning onto an exit ramp from Highway 52, a four-lane road. The deceased, Elizabeth Warden, passed Kinzer\u2019s exiting car and was hit head-on by defendant\u2019s car, traveling on the wrong side of the road. After the collision, Kinzer determined that Ms. Warden was dead and went to defendant\u2019s car. He smelled alcohol on defendant\u2019s breath, and it was his opinion that defendant was under the influence of alcohol or drugs. Defendant was struggling to release his foot from the wreckage and appeared unconcerned when Kinzer informed him that defendant had killed Ms. Warden.\nState Trooper Robert Compton investigated the accident. He found 10-12 beer cans around defendant\u2019s car and a bag of marijuana in defendant\u2019s pocket. He stated that it was his opinion that defendant was under the influence of alcohol or drugs at the time of the collision. A blood alcohol test performed at 4:40 a.m., about two hours after the accident, showed .01 percent alcohol. Compton testified that he saw defendant again in the Clerk\u2019s office on 7 March 1980, but defendant was not under arrest at that time. Defendant told Compton then that he had consumed four or five beers on the night of the accident.\nDEFENDANT\u2019S EVIDENCE\nDefendant presented the testimony of Roger Ayers with whom defendant worked on a construction site. Ayers, his brother and defendant rode together to and from work and the Ayers brothers had left beer cars in defendant\u2019s car on the day before the collision. Defendant testified that on the evening in question, he drank two beers with Sue O\u2019Neal, a friend of his, and then went to the hospital to see his girl friend, Sandy Ayers. Ms. Ayers testified that she did not smell alcohol on defendant\u2019s breath. After leaving the hospital, defendant was unable to remember what happened in regard to the collision. He stated that he had not smoked any marijuana that evening. As a result of the accident, defendant had a broken bone in his leg, a crushed ankle, severe damage to his kneecap and stitches in his chin.\nAttorney General Edmisten by Assistant Attorney General Thomas H. Davis, Jr., for the State.\nPfefferkorn & Cooley by Jim D. Cooley for defendant appellant."
  },
  "file_name": "0146-01",
  "first_page_order": 178,
  "last_page_order": 182
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