{
  "id": 8523137,
  "name": "STATE OF NORTH CAROLINA v. WILLIAM EARL GREEN",
  "name_abbreviation": "State v. Green",
  "decision_date": "1985-10-15",
  "docket_number": "No. 8514SC34",
  "first_page": "429",
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  "last_updated": "2023-07-14T21:22:01.691260+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Eagles and Parker concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIAM EARL GREEN"
    ],
    "opinions": [
      {
        "text": "JOHNSON, Judge.\nDefendant assigns as error the trial court\u2019s allowance of the opinion testimony by Mr. Shaun Bannon with respect to the speed the vehicle was traveling at the time of the accident. The basis for defendant\u2019s assignment of error is that the witness had no basis on which to form a legally competent opinion as to the speed of defendant\u2019s car. We disagree.\nOn 4 February 1984, the deceased, Karen Elizabeth Dudley, left a party to retrieve some cassette tapes from an automobile parked some distance from the party. Shaun Bannon accompanied Ms. Dudley, walking with her single file in a southerly direction in the northbound lane of travel facing traffic. Shaun Bannon testified that a car traveling approximately forty (40) to forty-five (45) miles per hour erratically swerved toward them. Shaun Ban-non further testified that he had noticed the car twenty (20) to thirty (30) feet away, and that it was over towards the middle of the road. The vehicle swerved and struck Ms. Dudley. Mr. Bannon was able to step out of the way of the oncoming vehicle. Ms. Dudley suffered compound fractures and severe brain trauma with death resulting from the injuries. The information provided by Mr. Bannon and the green paint stains on the clothing of Ms. Dudley led to the arrest of defendant.\nExpert testimony linked defendant\u2019s car with the accident which killed Ms. Dudley. Defendant denied involvement with the hit and run accident. Testimony of various witnesses established that defendant had consumed vodka at the residence of Mr. Willie Vine on 4 February 1984 and that he appeared high, drunk, tired or sleepy.\nThe conflict between the State\u2019s witnesses and defendant\u2019s witnesses revolves around the time defendant left the residence of Mr. Willie Vine. Defendant and other witnesses contend that he left around 11:00 p.m. and arrived home around 11:20 p.m. that evening. The State\u2019s witnesses said defendant left Mr. Vine\u2019s home at approximately 10:00 p.m. and arrived home around 11:00 p.m.\nIt is well settled that a lay witness may testify as to his opinion about the speed of a moving vehicle. Lookabill v. Regan, 247 N.C. 199, 100 S.E. 2d 521 (1957). The prerequisite to such testimony is that there was an opportunity to see the event being testified about. Id.\nDefendant contends that the witness was unable to observe the speed of the oncoming vehicle that was twenty (20) to thirty (30) feet away. The witness in Regan was in a moving vehicle, yet was held competent to testify about an oncoming vehicle\u2019s rate of speed. Id. at 201, 100 S.E. 2d at 522. The witness in the case sub judice testified that his attention was focused on the vehicle as a response to the vehicle\u2019s swerve toward him. The ability of the witness to accurately determine the speed is a question of credibility rather than a question of admissibility. Smith v. Stocks, 54 N.C. App. 393, 283 S.E. 2d 819 (1981).\nAs long as the time and distance of the observation enable the witness to do more than hazard a guess, the testimony is admissible. Id. Defendant also contends that the darkness of the night prevented an opportunity for observation. This contention goes to the weight of the evidence and does not make it inadmissible. We, therefore, conclude the opinion testimony with respect to the speed of the vehicle was properly admitted.\nDefendant\u2019s second assignment of error is that the court erred by not granting his motion for nonsuit. His argument is premised on the inadmissibility of the opinion testimony with respect to the speed of defendant\u2019s vehicle. The State relied on the opinion testimony to buttress its case on involuntary manslaughter. Without such testimony, defendant contends that his motion for nonsuit should have been granted. Consistent with our discussion above we find defendant\u2019s assignment of error without merit.\nFinally, defendant contends the trial court erred in refusing to have portions of the evidence read to the jury. During the jury\u2019s deliberation the foreman requested a transcript of the trial. The response given by the trial judge indicated that a transcript was not yet available. Moreover, the judge explained that the jury was to base its decision on the recollection of those twelve (12) jurors as to what the facts were. A review of the evidence and testimony by the jury is in the discretion of the trial court. G.S. 15A-1233. The wrongful denial of a jury request for a review of the evidence should be corrected by an appellate court when there is an abuse of discretion resulting in prejudicial error. State v. Taylor, 56 N.C. App. 113, 287 S.E. 2d 129 (1982).\nDefendant argues that the judge refused to exercise his discretion. We disagree. Defendant failed to object at the time, nonetheless, we review the merits of his argument. Rule 10(b)(2), N.C. Rules App. P. The judge explained at length his reasoning for not providing a transcript to the jury. Defendant assigns as error the following statement: \u201cThis is the best I can do for you.\u201d The trial judge was expressing his belief that the explanation provided was the best possible. Defendant would assert that this statement is a refusal to exercise discretion. See State v. Lang, 301 N.C. 508, 272 S.E. 2d 123 (1980). The refusal in Lang was premised on the trial judge\u2019s erroneous belief that the judge did not have the authority to provide a transcript to the jury. Id. In the case sub judice the trial judge recognized that he did have the authority to provide a transcript, but in his discretion the jury\u2019s request was denied and the jury was instructed to rely upon its own recollection of the evidence. Moreover, we conclude there was no prejudice such that a different result would have been reached.\nNo error.\nJudges Eagles and Parker concur.",
        "type": "majority",
        "author": "JOHNSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General James Wallace, Jr., for the State.",
      "Romallus 0. Murphy, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM EARL GREEN\nNo. 8514SC34\n(Filed 15 October 1985)\n1. Automobiles and Other Vehicles \u00a7 112.2\u2014 speed of automobile \u2014 opportunity for observation\nA witness in a manslaughter prosecution had a sufficient opportunity to observe defendant\u2019s automobile to permit him to testify that it was traveling forty to forty-five miles per hour when it swerved toward the witness and deceased and struck deceased where the witness testified that he had noticed the car when it was twenty to thirty feet away. Defendant\u2019s contention that the darkness of night prevented an opportunity for observation goes to the weight rather than to the admissibility of such testimony.\n2. Criminal Law \u00a7 101.4\u2014 refusal to furnish transcript to jury \u2014no abuse of discretion\nThe trial court did not abuse its discretion in refusing the jury\u2019s request to have a transcript of the trial where the court indicated that a transcript was not yet available and explained that the jury was to base its decision on its recollection of the evidence. The trial court\u2019s statement, \u201cThis is the best I can do for you,\u201d did not constitute a refusal to exercise its discretion as to whether a transcript should be provided.\nAppeal by defendant from Brannon, Judge. Judgment entered 14 June 1984 in Superior Court, Durham County. Heard in the Court of Appeals 18 September 1985.\nDefendant was convicted of involuntary manslaughter and hit and run causing death. G.S. 14-18; G.S. 20-166(a). Defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General James Wallace, Jr., for the State.\nRomallus 0. Murphy, for defendant appellant."
  },
  "file_name": "0429-01",
  "first_page_order": 461,
  "last_page_order": 464
}