{ "id": 8528005, "name": "STATE OF NORTH CAROLINA v. JAMES DAVID PURDIE", "name_abbreviation": "State v. Purdie", "decision_date": "1989-04-04", "docket_number": "No. 8813SC483", "first_page": "269", "last_page": "281", "citations": [ { "type": "official", "cite": "93 N.C. App. 269" } ], "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": "373 S.E. 2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "offense of felony death by vehicle requires same elements as involuntary manslaughter" } ], "opinion_index": 0 }, { "cite": "323 N.C. 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562049, 2561890, 2565383, 2565833, 2566424 ], "year": 1988, "pin_cites": [ { "parenthetical": "offense of felony death by vehicle requires same elements as involuntary manslaughter" } ], "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, "pin_cites": [ { "page": "837" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 614", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525697 ], "year": 1988, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0614-01" ] }, { "cite": "336 S.E. 2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "92" } ], "opinion_index": 0 }, { "cite": "314 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686938 ], "year": 1985, "pin_cites": [ { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0633-01" ] }, { "cite": "367 S.E. 2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "346" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522721 ], "year": 1988, "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0120-01" ] }, { "cite": "337 S.E. 2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "515" } ], "opinion_index": 0 }, { "cite": "315 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714446 ], "year": 1985, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0273-01" ] }, { "cite": "153 S.E. 2d 70", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564324 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0483-01" ] }, { "cite": "34 L.Ed. 2d 259", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "pin_cites": [ { "parenthetical": "quoting Harris, 301 U.S. at 226, 28 L.Ed. 2d at 5" } ], "opinion_index": 0 }, { "cite": "409 U.S. 995", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6433152, 6433005 ], "year": 1972, "pin_cites": [ { "parenthetical": "quoting Harris, 301 U.S. at 226, 28 L.Ed. 2d at 5" } ], "opinion_index": 0, "case_paths": [ "/us/409/0995-02", "/us/409/0995-01" ] }, { "cite": "187 S.E. 2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "114" } ], "opinion_index": 0 }, { "cite": "280 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572889 ], "year": 1972, "pin_cites": [ { "page": "555-56" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0551-01" ] }, { "cite": "401 U.S. 222", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11712077 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "224" }, { "page": "4" }, { "page": "5" } ], "opinion_index": 0, "case_paths": [ "/us/401/0222-01" ] }, { "cite": "330 S.E. 2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "626" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524846 ], "year": 1985, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0057-01" ] }, { "cite": "340 S.E. 2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "59" } ], "opinion_index": 0 }, { "cite": "315 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718276 ], "year": 1986, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0749-01" ] }, { "cite": "85 L.Ed. 2d 169", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "471 U.S. 1009", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6232119 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/1009-01" ] }, { "cite": "322 S.E. 2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "120" } ], "opinion_index": 0 }, { "cite": "312 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759870 ], "year": 1984, "pin_cites": [ { "page": "106-07" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0092-01" ] }, { "cite": "367 S.E. 2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "630", "parenthetical": "applying R. Evid. 703" } ], "opinion_index": 0 }, { "cite": "322 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514549 ], "year": 1988, "pin_cites": [ { "page": "184", "parenthetical": "applying R. Evid. 703" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0176-01" ] }, { "cite": "304 S.E. 2d 784", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "787", "parenthetical": "accident reconstruction expert permitted to answer hypothetical questions regarding post-collision movement of cars; testimony based upon application of laws of physics to physical evidence at scene" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525087 ], "year": 1983, "pin_cites": [ { "page": "353", "parenthetical": "accident reconstruction expert permitted to answer hypothetical questions regarding post-collision movement of cars; testimony based upon application of laws of physics to physical evidence at scene" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0349-01" ] }, { "cite": "49 A.L.R. Fed. 363", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "year": 1980, "pin_cites": [ { "parenthetical": "Supp. 1988" } ], "opinion_index": 0 }, { "cite": "38 A.L.R. 2d 13", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1977, "pin_cites": [ { "parenthetical": "Supp. 1988" } ], "opinion_index": 0 }, { "cite": "66 A.L.R. 2d 1048", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1959, "pin_cites": [ { "parenthetical": "Later Case Serv. 1984" } ], "opinion_index": 0 }, { "cite": "324 S.E. 2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "72 N.C. App. 348", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526730 ], "year": 1985, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0348-01" ] }, { "cite": "337 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "849" } ], "opinion_index": 0 }, { "cite": "315 N.C. 76", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715827 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "101" }, { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0076-01" ] }, { "cite": "93 A.L.R. 2d 287", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1964, "pin_cites": [ { "parenthetical": "Later Case Serv. 1983" } ], "opinion_index": 0 }, { "cite": "29 A.L.R. 3d 248", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1970, "pin_cites": [ { "parenthetical": "Supp. 1988" } ], "opinion_index": 0 }, { "cite": "344 S.E. 2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4697218, 4701773, 4696977, 4696466, 4705013 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0553-04", "/nc/316/0553-03", "/nc/316/0553-05", "/nc/316/0553-01", "/nc/316/0553-02" ] }, { "cite": "337 S.E. 2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "78 N.C. App. 315", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521016 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/78/0315-01" ] }, { "cite": "116 S.E. 2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1960, "pin_cites": [ { "page": "355", "parenthetical": "physical evidence at scene made it impossible for any non-observer to determine who had been driving car; expert opinion properly excluded" } ], "opinion_index": 0 }, { "cite": "253 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623166 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "180", "parenthetical": "physical evidence at scene made it impossible for any non-observer to determine who had been driving car; expert opinion properly excluded" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0176-01" ] }, { "cite": "358 S.E. 2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "683", "parenthetical": "jury in as good a position as expert to determine whether defendant was \"probably\" father of rape victim's baby" } ], "opinion_index": 0 }, { "cite": "320 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729285 ], "year": 1987, "pin_cites": [ { "page": "460", "parenthetical": "jury in as good a position as expert to determine whether defendant was \"probably\" father of rape victim's baby" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0452-01" ] }, { "cite": "337 S.E. 2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "156" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522281 ], "year": 1985, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0493-01" ] }, { "cite": "322 S.E. 2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "376" } ], "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] } ], "analysis": { "cardinality": 1000, "char_count": 26178, "ocr_confidence": 0.766, "pagerank": { "raw": 4.44766459250691e-07, "percentile": 0.9213419392404731 }, "sha256": "1316140e5049adec97622c535866158cf76aa5b0c133e91275015a47f4dfe1e1", "simhash": "1:267c6537306f995b", "word_count": 4293 }, "last_updated": "2023-07-14T17:06:43.799233+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. JAMES DAVID PURDIE" ], "opinions": [ { "text": "BECTON, Judge.\nDefendant James David Purdie was convicted of involuntary manslaughter and sentenced to ten years imprisonment for his role in a head-on collision in which the driver of the other car was killed. Purdie appeals, contending that the trial judge erred by: 1) allowing an accident reconstruction expert to testify; 2) permitting the prosecutor to ask a witness a leading question on direct examination; 3) refusing to allow Purdie\u2019s former attorney to testify regarding a statement made to him by an unavailable witness; 4) allowing Purdie to be cross-examined about a statement made to a police officer one month after the collision; and 5) denying Purdie\u2019s motions to dismiss. We hold that Purdie\u2019s trial was without error.\nI\nThe pertinent facts are as follows:\nAt 6:00 p.m. on 19 May 1986, Purdie was driving north on U.S. 701 near Elizabethtown when his Chevrolet pickup truck collided with a southbound Ford Fiesta. The accident occurred a short distance after the northbound traffic merged and detoured to the left due to highway construction. Upon impact, both vehicles spun and came to rest in the Fiesta\u2019s lane. Most of the debris from the collision was in the Fiesta\u2019s lane, and gouge marks caused by metal striking the road dented the pavement in that lane. The driver of the Fiesta died at the scene, and his passenger was seriously injured. Purdie also suffered injuries.\nPurdie had been drinking. The police officer on the scene, Officer Paschal, smelled alcohol on Purdie\u2019s breath and found a can of beer in the pickup truck. Two hours after the accident, Purdie\u2019s blood alcohol concentration measured .181.\nAt Purdie\u2019s trial on charges of felony death by vehicle and involuntary manslaughter, three eyewitnesses testified for the State. Two of the witnesses had been travelling in a crew cab behind the Fiesta. Both testified that Purdie was travelling four to five feet over the center line, in the Fiesta\u2019s lane, when the vehicles collided. They also testified that the Fiesta remained in its proper lane until the collision. The third witness had been driving in front of Purdie\u2019s pickup. He testified that he noticed nothing unusual about the Fiesta as he passed it, and that he looked in his rearview mirror when he heard the crash and saw the pickup in the Fiesta\u2019s lane. Each of these witnesses denied seeing a blue car; Purdie and another defense witness would later testify that the Fiesta passed a blue car just before the collision.\nOver objection, an accident reconstruction expert also testified for the State. The expert was a civil engineer who had extensive experience in accident reconstruction, having investigated approximately 1,000 automobile accidents since 1969. The expert based his testimony on information he gleaned from the police accident report, an interview with the investigating officer, photographs of the accident scene, an aerial photograph of the area, review of a transcript of a State witness\u2019s testimony, and listening to the witnesses at trial. He stated:\n[I]n my opinion it would be totally inconsistent with the laws of physics for this wreck to happen in the right-hand or northbound lane, with the contact areas that were made between the two vehicles, for them just to slide sideways and come to rest over in the southbound lane. Conversely, all the evidence, the debris, the final positions and rotation of the vehicles, is consistent with what I heard the witnesses testify to as the direction of travel and what occurred.\nThe expert gave his opinion \u2014 based, he said, on the rotation and final resting position of the cars, the location of the debris, the gouge marks in the pavement, and the contact between the cars \u2014 that the accident occurred in the Fiesta\u2019s lane.\nDefense witnesses gave a different account of the accident. An eyewitness for the defense testified that as he travelled south, the Fiesta passed his car and slid into Purdie\u2019s lane. (On cross-examination, this witness admitted a prior conviction for giving false information to a police officer.) Purdie took the stand and testified that the Fiesta passed a blue car and then slid into the northbound lane. Purdie also tried, without success, to have his former attorney recount an unavailable eyewitness\u2019s statement that the Fiesta \u201cmay have crossed\u201d the center line.\nPurdie did not deny that he had been drinking, although he did deny that the can of beer found in his truck was open and still cold, as Officer Paschal had testified. Purdie testified that he drank four beers between 7:30 a.m. and 2:30 p.m. the day of the accident. Over objection, the State was permitted to cross-examine Purdie about his statement to Officer Paschal, made one month after the accident, that he had consumed a six-pack of beer that day. Purdie first admitted making the statement, but later qualified that answer. Purdie also admitted a prior conviction for reckless driving after drinking, and admitted that he had been charged and convicted for another DWI incident while the present case was pending.\nPurdie was found guilty of involuntary manslaughter and was sentenced to ten years imprisonment. He appeals, raising seventeen assignments of error.\nII\nEleven of Purdie\u2019s assignments of error concern the testimony of the accident reconstruction expert. Specifically, Purdie contends that it was error to permit the expert to testify as to how the accident occurred and what the investigating officer told him about the accident scene. He further contends that it was error to allow the expert to give an opinion as to: the vehicles\u2019 original lanes of travel; the vehicles\u2019 speeds; the vehicles\u2019 direction of travel; the rotation of the vehicles; the position of the vehicles after the accident; the gouge marks on the road; the cause of the gouge marks; the consistency of the photographs with the State\u2019s witnesses\u2019 testimony; and the lane in which the accident occurred. Essentially, Purdie argues that the expert\u2019s testimony and opinions were inadmissible. Purdie does not challenge the witness\u2019s qualifications as an expert in accident reconstruction.\nA. Expert Testimony and Opinions Must Be Helpful to Trier of Fact\nExpert testimony is admissible when it \u201ccan assist the jury to draw certain inferences from facts because the expert is better qualified\u201d than the jury to interpret the information presented. State v. Bullard, 312 N.C. 129, 139, 322 S.E. 2d 370, 376 (1984). The test for admissibility of expert testimony is simply \u201cwhether the jury can receive \u2018appreciable help\u2019 from the expert witness.\u201d State v. Knox, 78 N.C. App. 493, 495, 337 S.E. 2d 154, 156 (1985). A trial judge has \u201cwide latitude of discretion\u201d when determining the admissibility of expert testimony. Id.\nAn expert may give an opinion \u201c[i]f the [expert\u2019s] scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. . . .\u201d N.C. Gen. Stat. Sec. 8C-1, R. Evid. 702 (1988). Opinion testimony is no longer inadmissible simply because it embraces an ultimate issue to be decided by the jury. N.C. Gen. Stat. Sec. 8C-1, R. Evid. 704 (1988). However, expert opinion is not helpful \u2014 and therefore is not admissible \u2014 if it is impossible for anyone, expert or nonexpert, to draw a particular inference from the evidence. See, e.g., State v. Jackson, 320 N.C. 452, 460, 358 S.E. 2d 679, 683 (1987) (jury in as good a position as expert to determine whether defendant was \u201cprobably\u201d father of rape victim\u2019s baby); Shaw v. Sylvester, 253 N.C. 176, 180, 116 S.E. 2d 351, 355 (1960) (physical evidence at scene made it impossible for any non-observer to determine who had been driving car; expert opinion properly excluded).\nHere, three witnesses testified that Purdie crossed the center line and struck the Fiesta in the southbound lane, while Purdie and another witness testified that the accident occurred when the Fiesta slid into the northbound lane. Physical evidence was presented regarding damage to the vehicles, rotation and resting places of the vehicles, gouge marks in the pavement, and distribution of debris. We hold that the expert was in a better position than the jury to interpret this evidence and to draw conclusions from it based upon scientific principles. Because the expert\u2019s testimony and opinions could be of appreciable help to the jury, the trial judge did not abuse his discretion in admitting that testimony.\nB. Basis of Expert Opinion: Information Reasonably Relied Upon by Experts in Field\nPurdie\u2019s central challenge to the expert\u2019s opinion testimony is that the expert had an insufficient basis for his opinions because he did not physically examine the scene or personally interview witnesses.\nPurdie relies upon Hicks v. Reavis, 78 N.C. App. 315, 337 S.E. 2d 121 (1985), cert. denied, 316 N.C. 553, 344 S.E. 2d 7 (1986), to contend that the physical evidence made known to the expert provided an insufficient basis upon which to form an opinion. In Hicks, this court held that neither an expert nor a non-expert may give an opinion as to the speed of a vehicle if that opinion is based upon physical evidence obtained at the scene rather than personal observation. Id. at 323, 337 S.E. 2d at 126.\nPurdie\u2019s reliance on Hicks is misplaced. Hicks itself was based upon Shaw v. Sylvester, 253 N.C. 176, 116 S.E. 2d 351 (1960), a case decided 24 years before the new rules of evidence were adopted. The view that experts may not rely upon skid marks, vehicle damage, rotation and resting positions of vehicles, and other physical evidence to give an opinion as to speed has been rejected by the majority of jurisdictions deciding this question, see, e.g., 29 A.L.R. 3d 248 (1970) (Supp. 1988); 93 A.L.R. 2d 287 (1964) (Later Case Serv. 1983) (Supp. 1988), and has been challenged by Professor Brandis. See Brandis, 1 Brandis on North Carolina Evidence, Sec. 131, n.69 (3d ed. 1988) (\u201cthis writer has always believed that qualified expert opinion about such matters, based upon observation of physical facts, should be admitted\u201d). More importantly, the holding in Hicks is limited to opinions regarding speed-, it does not apply to opinions concerning other elements of an accident. Despite Purdie\u2019s assertions to the contrary, the expert in the case before us gave no opinion as to the speed of either vehicle.\nIt is well settled that an expert witness need not testify from firsthand personal knowledge, so long as the basis for the expert\u2019s opinion is available in the record or on demand. See, e.g., State v. Smith, 315 N.C. 76, 101, 337 S.E. 2d 833, 849 (1985); Thompson v. Lenoir Transf. Co., 72 N.C. App. 348, 350, 324 S.E. 2d 619 (1985). Rule 703 provides that\nThe facts or data . . . upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.\nN.C. Gen. Stat. Sec. 8C-1, R. Evid. 703 (1988) (emphasis added).\nWe hold that the expert\u2019s opinion was based on information reasonably relied upon by experts in the field of accident reconstruction. See, e.g., cases cited in 66 A.L.R. 2d 1048 (1959) (Later Case Serv. 1984) (Supp. 1988); 38 A.L.R. 2d 13 (Later Case Serv. 1977) (Supp. 1988); 49 A.L.R. Fed. 363 (1980) (Supp. 1988) (trend in law, particularly among jurisdictions that have adopted federal rules of evidence, is to permit qualified accident reconstruction expert to base opinions about matters surrounding an accident upon physical evidence). Cf. McKay v. Parham, 63 N.C. App. 349, 353, 304 S.E. 2d 784, 787 (1983) (accident reconstruction expert permitted to answer hypothetical questions regarding post-collision movement of cars; testimony based upon application of laws of physics to physical evidence at scene). The fact that an expert\u2019s opinion is not based on personal observation of the accident scene affects the weight to be accorded the testimony, not its admissibility.\nC. Inadmissible Evidence May Form Basis of Opinion\nWe reject Purdie\u2019s contention that it was error to permit the expert witness to testify about what Officer Paschal told him about the accident scene and the photographs on the ground that the officer\u2019s statements were inadmissible hearsay. If an expert\u2019s opinion is admissible, the expert may testify to the information he relied on in forming it for the purpose of showing the basis of his opinion, even when that information would otherwise be inadmissible, so long as the information is of a type reasonably relied upon by experts in his field. See, e.g., State v. Allen, 322 N.C. 176, 184, 367 S.E. 2d 626, 630 (1988) (applying R. Evid. 703). Moreover, out-of-court statements offered to show the basis for the expert\u2019s opinion are not hearsay. State v. Huffstetler, 312 N.C. 92, 106-07, 322 S.E. 2d 110, 120 (1984), cert. denied, 471 U.S. 1009, 85 L.Ed. 2d 169 (1985).\nIn light of the foregoing, we overrule each of Purdie\u2019s assignments of error relating to the expert\u2019s testimony.\nIll\nWe next consider Purdie\u2019s contention that the trial judge erred by overruling his objection to the following question asked by the State on direct examination: \u201cAll right. He had to veer to the left \u2014The question, cut off by Purdie\u2019s objection, was neither completed nor answered. Purdie argues that this was a leading question that impermissibly suggested to the jury that the pickup truck veered into the Fiesta\u2019s lane. We overrule this assignment of error for two reasons.\nFirst, although Purdie correctly asserts that the challenged question was leading, he fails to show prejudice. The witness had already testified that Purdie\u2019s truck crossed over the center line and struck the Fiesta. Moreover, the context of preceding and subsequent questions shows that the prosecutor was merely trying to ask the witness whether northbound drivers on U.S. 701 had to move to the left at the detour. Defense counsel used the same language when cross-examining two State witnesses about the path of northbound travel. No abuse of discretion occurred here. See State v. Riddick, 315 N.C. 749, 756, 340 S.E. 2d 55, 59 (1986).\nSecond, Purdie\u2019s objection and assignment of error were directed to the witness\u2019s purported \u201cunresponsive answer\u201d; however, the accompanying argument in the brief concerns the leading nature of the question by the prosecutor. When, as here, the argument in the brief does not correspond to the assignment of error, that assignment should be deemed abandoned under Rule 28 of the Rules of Appellate Procedure. Accord Raleigh-Durham Airport Authority v. King, 75 N.C. App. 57, 63, 330 S.E. 2d 622, 626 (1985).\nIV\nPurdie next contends that the trial judge erred in excluding the hearsay statement of an eyewitness who was unavailable for trial. We disagree.\nPurdie sought to introduce his former attorney\u2019s summary of an interview with an eyewitness who had been driving behind Purdie at the time of the accident. The witness told Purdie\u2019s former attorney that the Fiesta \u201cappeared to hit a wet spot\u201d and \u201cmay have crossed over\u201d the center line. Attempts to locate the witness before trial were unsuccessful.\nAfter voir dire examination of the former attorney, the trial judge ruled that this hearsay evidence was inadmissible under the residual exceptions to the hearsay rule found in N.C. Gen. Stat. Sec. 8C-1, R. Evid. 803(24) and R. Evid. 804(b)(5). Applying the six-prong test set out in Smith, the judge found that the statement failed the test\u2019s fifth prong because the statement was not more probative on the point for which it was offered than any other evidence Purdie could procure through reasonable efforts. See Smith, 315 N.C. at 96, 337 S.E. 2d at 846. The judge reasoned, first, that the eyewitness\u2019s statement would have been inadmissible even had he appeared at trial because the statement was speculative, and second, that several other eyewitnesses were available to testify about the path of the vehicles.\nWe agree that the statement that the Fiesta appeared to hit a wet spot and may have crossed over the center line was (1) inadmissible, see N.C. Gen. Stat. Sec. 8C-1, R. Evid. 401 (1988), and (2) no more probative of the issue than the testimony of the other defense witnesses. Accordingly, this assignment of error is overruled.\nV\nPurdie contends that it was error to allow the State to cross-examine him about a statement he made to Officer Paschal one month after the collision because, he argues, the statement was taken in violation of his Miranda rights.\nA voir dire examination of Officer Paschal was conducted to determine the admissibility of the statement. Paschal testified that he happened to be at the Magistrate\u2019s office on 13 June 1986 when Purdie was brought before the Magistrate on a warrant for felony death by vehicle. He testified that he asked Purdie \u201cHow are you doing?\u201d Purdie answered \u201c[a]ll right\u201d and then summoned Paschal over to him. Paschal testified that Purdie said \u201cI\u2019m going to tell you the truth. I had been drinking that day. I drank about a six-pack on the way.... I hadn\u2019t drunk anything since that day. I\u2019ve learned my lesson. And I\u2019m sorry for what happened to those people.\u201d The trial judge excluded this evidence, finding that the State failed to show that Purdie had first been given a Miranda warning or that he fully understood his rights.\nThe State later attempted to use the statement to impeach Purdie regarding his testimony that he had only four beers the day of the accident. After a voir dire examination, the judge ruled that Purdie had not been interrogated and that he made the statement freely and voluntarily. The judge allowed the State to question Purdie about the statement.\nPurdie argues on appeal that the statement could not come out on cross-examination since it had already been suppressed on direct examination of Paschal. We disagree. A statement taken in violation of a defendant\u2019s Miranda rights may nonetheless be used to impeach the defendant\u2019s credibility if (1) the statement was not involuntary, and (2) the defendant testified at trial. Harris v. New York, 401 U.S. 222, 224, 28 L.Ed. 2d 1, 4 (1971). \u201c \u2018The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.\u2019 \u201d State v. Bryant, 280 N.C. 551, 555-56, 187 S.E. 2d 111, 114 (1972), cert. denied, 409 U.S. 995, 34 L.Ed. 2d 259 (1972) (quoting Harris, 301 U.S. at 226, 28 L.Ed. 2d at 5). Purdie\u2019s reliance on State v. Butler, 269 N.C. 483, 153 S.E. 2d 70 (1967), decided before both Harris and Bryant, is misplaced.\nVI\nWe do not reach Purdie\u2019s contention that the trial judge erred in denying his motion to dismiss at the close of the State\u2019s evidence. Purdie is foreclosed from appealing denial of that motion since he subsequently introduced his own evidence. See N.C. Gen. Stat. Sec. 15-173 (1983). Accord State v. Bruce, 315 N.C. 273, 280, 337 S.E. 2d 510, 515 (1985). However, we do consider Purdie\u2019s next contention that the judge erred in denying his motion to dismiss made at the close of all the evidence.\nOn appeal from denial of a motion to dismiss, the State is entitled to every reasonable inference that can be drawn from its evidence. State v. Williams, 90 N.C. App. 120, 122, 367 S.E. 2d 345, 346 (1988). We conclude that the State presented substantial evidence of each of the elements of the crimes charged, namely (1) willful violation of N.C. Gen. Stat. Sec. 20-138.1, and (2) a causal link between that violation and the death of the other driver. State v. McGill, 314 N.C. 633, 637, 336 S.E. 2d 90, 92 (1985). See also State v. Williams, 90 N.C. App. 614, 621, 369 S.E. 2d 832, 837 (1988), disc. rev. denied, 323 N.C. 369, 373 S.E. 2d 555 (1988) (offense of felony death by vehicle requires same elements as involuntary manslaughter). First, Purdie\u2019s .181 blood alcohol concentration unquestionably demonstrated a willful violation of Section 20-138.1. Second, it is common knowledge that intoxication impairs the ability to drive. Three eyewitnesses testified that the collision occurred in the Fiesta\u2019s lane, and the opinion of the accident reconstruction expert was that the physical evidence supported their testimony. The reasonable inference to be drawn from the State\u2019s evidence was that Purdie\u2019s drinking bore a causal relation to the collision, and, therefore, to the other driver\u2019s death. The case was properly taken to the jury.\nVII\nWe hold that the trial of defendant James David Purdie was without prejudicial error.\nNo error.\nJudges Wells and Johnson concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Attorney General Lacy Thornburg, by Assistant Attorney General Linda Anne Morris, for the State.", "James R. Melvin for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES DAVID PURDIE\nNo. 8813SC483\n(Filed 4 April 1989)\n1. Automobiles \u00a7 112; Criminal Law \u00a7 50\u2014 automobile accident \u2014 homicide prosecution \u2014accident reconstruction expert \u2014 admissibility of opinion testimony\nIn a prosecution for manslaughter arising from an automobile accident, the trial court did not err in allowing an expert in accident reconstruction to testify and give his opinions where three witnesses testified that defendant crossed the center line and struck an oncoming vehicle in its lane of travel; defendant and another witness testified that the accident occurred when the oncoming car slid into defendant\u2019s lane; physical evidence was presented regarding damages to the vehicles, rotation and resting places of the vehicles, gouge marks in the pavement, and distribution of debris; and the expert was in a better position than the jury to interpret this evidence and to draw conclusions from it based on scientific principles. N.C.G.S. \u00a7 8C-1, Rules 702 and 704.\n2. Automobiles \u00a7 112; Criminal Law \u00a7 50.2\u2014 testimony of accident reconstruction expert \u2014 basis for opinions sufficient\nIn a prosecution for manslaughter arising from an automobile accident, there was no merit to defendant\u2019s contention that an accident reconstruction expert had an insufficient basis for his opinions because he did not physically examine the scene or personally interview witnesses, since an expert witness need not testify from first-hand personal knowledge, so long as the basis for the expert\u2019s opinion is available in the record or on demand, and if, as in this case, the facts or data are of a type reasonably relied on by experts in the particular field in forming opinions or inferences upon the subject, then the facts or data need not be admissible in evidence. N.C.G.S. \u00a7 8C-1, Rule 703.\n3. Criminal Law \u00a7 50.2\u2014 accident reconstruction expert \u2014 information on which opinion based \u2014admissibility of testimony\nAn accident reconstruction expert could properly testify to the information he relied on in forming his opinion, even though that information was otherwise inadmissible, since it was of a type reasonably relied upon by experts in his field.\n4. Criminal Law \u00a7 87.2\u2014 leading question \u2014no prejudice\nIn a prosecution for manslaughter arising from an automobile accident, defendant was not prejudiced by a leading question which may have suggested to the jury that defendant\u2019s truck veered into the lane of oncoming traffic, since the witness had already testified that defendant\u2019s truck crossed over the center line and struck an oncoming vehicle; the context showed that the prosecutor was merely trying to ask the witness a permissible question with regard to a detour at the scene of accident; defense counsel used the same language when cross-examining two State\u2019s witnesses about the path of travel; and defendant was therefore not prejudiced by the leading question. Furthermore, defendant\u2019s argument in his brief did not correspond with Ms assignment of error, and his assignment should therefore be deemed abandoned. Appellate Rule 28.\n5. Criminal Law \u00a7 73\u2014 hearsay statement of unavailable witness excluded \u2014no error\nIn a prosecution for homicide arising from an automobile accident, the trial judge did not err in excluding a hearsay statement of an eyewitness who was unavailable for trial, since the statement that the victim\u2019s car appeared to hit a wet spot and may have crossed over the center line was speculative, no more probative on the point for which it was offered than any other evidence defendant could procure through reasonable efforts, and therefore inadmissible. N.C.G.S. \u00a7 8C-1, Rules 803(24) and 804(b)(5).\n6. Criminal Law \u00a7 86.6\u2014 defendant\u2019s statement made without benefit of Miranda warnings \u2014statement suppressed \u2014 cross-examination about statement for impeachment purposes proper\nIn a prosecution for manslaughter arising from an automobile accident, the trial court did not err in allowing the State to cross-examine defendant about a statement he made to an officer one month after the collision, even though the statement had been suppressed on direct examination because the State failed to show that defendant had first been given a Miranda warning or that he fully understood his rights, since a statement taken in violation of a defendant\u2019s Miranda rights may nonetheless be used to impeach defendant\u2019s credibility if the statement was not involuntary and defendant testified at trial.\n7. Automobiles \u00a7 113.1\u2014 automobile accident \u2014 involuntary manslaughter \u2014 sufficiency of evidence\nEvidence in an involuntary manslaughter case was sufficient to be submitted to the jury where it tended to show that defendant\u2019s blood alcohol concentration measured .181 two hours after the accident, thus demonstrating a willful violation of N.C.G.S. \u00a7 20-138.1; three eyewitnesses testified that the collision occurred in the victim\u2019s lane of travel; the opinion of an accident reconstruction expert was that the physical evidence supported their testimony; and the reasonable inference to be drawn from the State\u2019s evidence was that defendant\u2019s drinking bore a causal relation to the collision and therefore to the other driver\u2019s death.\nAPPEAL by defendant from Henry W. Hight, Jr., Judge. Judgment entered 11 November 1987 in Superior Court, BLADEN County. Heard in the Court of Appeals 9 January 1989.\nAttorney General Lacy Thornburg, by Assistant Attorney General Linda Anne Morris, for the State.\nJames R. Melvin for the defendant." }, "file_name": "0269-01", "first_page_order": 299, "last_page_order": 311 }