State v. Foote

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-334 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 STATE OF NORTH CAROLINA v. Rockingham County No. 11 CRS 125-6 DOMINIC EUGENE FOOTE Appeal by defendant from judgments entered 26 September 2012 by Judge Richard W. Stone in Rockingham County Superior Court. Heard in the Court of Appeals 11 September 2013. Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. James N. Freeman, Jr. for defendant. ELMORE, Judge. On 19 September 2012, Dominic Eugene Foote (defendant) was convicted of second degree murder and felony death by vehicle. He was sentenced to a concurrent term of 200 to 249 months imprisonment for the second degree murder conviction and 35 to 51 months for the felony death by vehicle conviction. now appeals. After careful consideration, we Defendant find no trial -2error. However, we remand for resentencing consistent with this opinion. I. Background The State s evidence tended to show that about midnight on 24 October 2010, defendant picked up Douglas Rontay Clark (the victim), Jamal (Dalton) in a Stewart Dodge (Stewart), Durango. already in the vehicle. and Three Timothy female Lee Dalton passengers were Stewart testified that defendant was driving crazy, and everybody in the car was like, slow down, and [defendant] was like, all right, I got this. speeding. and a So he kept At one point there was an 18-wheeler on the right 18-wheeler speeding[.] on the left, and he went through them Dalton also testified that defendant was driving fast and un-regular, even playing chicken with a tractor trailer. Dalton said, I m a grown man, and I said stop. Additionally, Deana Meeks, the front-seat passenger, testified that defendant was speeding. Ultimately, defendant lost control of the vehicle, flipped it, and crashed on the side of the road. Defendant and the victim were thrown from the vehicle, and the victim died as a result of complications from blunt force trauma to the head and chest. -3Following the collision, defendant was transported to Morehead Memorial Hospital, where he was treated by emergency room physician Dr. Paul McGuire. tendered as an expert in At trial, Dr. McGuire was emergency medicine. Dr. McGuire testified that he ordered a blood panel and a urinalysis to aid in his treatment defendant had deciliter and cannabinoids. a of defendant. blood he Dr. alcohol tested McGuire The level positive results indicated that of milligrams per benzodiazepines and for concluded 175 that the presence of alcohol, benzodiazepines, and cannabinoids would likely impair a person. The State tendered Paul Glover, research scientist for the Department of Health and Human Services, as an expert witness in the fields of blood alcohol testing, blood alcohol physiology, pharmacology and the effects of drugs on humans. Mr. Glover testified that defendant s blood alcohol level was .14 grams per 100 milliliters, the measure required by North Carolina Statute. Additionally, he also concluded that the combination of alcohol, cannabinoids, and benzodiazepines would likely impair a person. Trooper Darren Yoder of the North Carolina Highway Patrol was tendered as an expert witness in the field of automobile crash collision reconstruction. Trooper Yoder responded to the -4collision at approximately 2:53 AM. Trooper Yoder did not perform an accident reconstruction but did complete an accident investigation report. He estimated that the vehicle was traveling at approximately 80 m.p.h. immediately preceding the collision. Trooper The State also called Officer Elizabeth Tilley and Mark defendant s Rakestraw prior to arrests testify for to driving the circumstances while impaired, of which resulted in two separate convictions. II. Analysis A. Testimonial Evidence Defendant argues that the trial court erred in allowing testimony based the Confrontation upon hospital Clause of the records United in States violation of Constitution because those who had performed the tests were not available for cross-examination. We disagree. Defendant did not object to the testimony of Dr. McGuire or Mr. Glover at trial and has therefore waived his right to argue this issue on appeal. However, the North Carolina Supreme Court has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge s instructions to the jury, or (2) rulings on the admissibility of evidence. State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). -5Plain error arises when the error is so basic, so prejudicial, so lacking done[.] in its elements that justice cannot have been State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)). Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result. State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). Accordingly, we will review this issue for plain error. Under Crawford v. Washington, our Supreme Court held that [w]here testimonial evidence is at issue, [] the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. 68, 158 L. Ed. 2d 177, 203 (2004). 541 U.S. 36, Conversely, [w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay law . . . as would an approach that exempted such altogether. statements from Confrontation Clause scrutiny Id. In Crawford, the Supreme Court specifically found that most of the hearsay exceptions cover statements that are not -6testimonial and Clause problem. records are exception. therefore do not present a Confrontation Id. at 56, 158 L. Ed. 2d at 196. specifically Id. listed as an example Business of such an Business records are defined to include the records of hospitals. State v. Miller, 80 N.C. App. 425, 428, 342 S.E.2d 553, 555 (1986). In Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 35, 125 S.E.2d 326, 328-29 (1962), our Supreme Court specifically applied the business records exception to hospital records. Here, defendant challenges the expert testimony pertaining to the results of his blood test and urinalysis. However, defendant s test results, although hearsay, are admissible under the business records exception to authentication by the proponent. the hearsay rule upon Miller, 80 N.C. App. at 428, 342 S.E.2d at 555. Authentication may occur by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances indicate lack of trustworthiness. of preparation Id. at 429, 342 S.E.2d at 556 (citation omitted) (alteration in original). The record reflects that Dr. McGuire ordered the tests to help him assess defendant s condition, recorded in defendant s hospital records. and the results were As such, we hold that -7defendant s hospital records constitute a record made in the usual course of business and are therefore exempted from the rule against identified hearsay. and Moreover, authenticated by the records were Dr. properly McGuire, a qualified witness, who testified that he ordered the tests pursuant to standard hospital procedure. Although the hospital records were used in defendant s criminal prosecution, they were not prepared for that purpose. Instead, they were prepared for purposes of treating the patient, not for evidentiary purposes in preparation for trial. While the experts may have referenced the test results in their testimony, such testimony poses no per se Confrontation Clause problem. Crawford distinctly recognizes that business records are not testimonial. Crawford, 541 U.S. at 56, 158 L. Ed. 2d at 196. Additionally, because the test results were an inherently reliable source of information and because defendant had the opportunity to cross-examine the experts at trial, the trial court did not err in admitting the testimony of either expert. See State v. Huffstetler, 312 N.C. 92, 107-09, 322 S.E.2d 110, 120-21 (1984) (holding that the defendant was not deprived of his Sixth Amendment right to confront his accusers when the -8trial court allowed an expert witness to testify to the results of blood tests that he did not perform because (1) the test results were inherently reliable, and (2) the defendant had the opportunity to cross-examine the witness). Accordingly, we hold that defendant s right to confront his accuser guaranteed by the Sixth Amendment was not denied. B. Speed of Vehicle Defendant next avers that the trial court erred in allowing Trooper Yoder to testify to the purported speed of defendant s vehicle. We disagree. Again, we will review this issue for plain error. For offenses committed on or after 1 December 2006, Rule 702 provides: A witness qualified as an expert in accident reconstruction who has performed a reconstruction of a crash, or has reviewed the report of investigation, with proper foundation may give an opinion as to the speed of a vehicle even if the witness did not observe the vehicle moving. N.C. Gen. Stat. § 8C-1, Rule 702(i) (2011). At trial, Trooper Yoder was tendered, without objection, as an expert witness reconstruction. The in the record field of indicates automobile that he collision successfully completed a collision reconstruction course and was certified in -9advanced traffic crash investigation. more than review testifying, defendant the because has accident he failed in to fact Here, Trooper Yoder did investigation wrote convince the us report report. that prior As Trooper to such, Yoder s testimony as to the speed of the vehicle failed to surpass the threshold of admissibility under N.C. Gen. Stat. § 8C-1, Rule 702(i). We conclude that the trial court did not err. C. Testimony Of Prior Arrests Defendant argues that the trial court erred in allowing testimony regarding the facts and circumstances surrounding his prior arrests and convictions for driving while impaired. Defendant specifically avers that the circumstances of his prior arrests were not probative as to the issue of malice and thus should have been excluded. We disagree. To prove malice, the State must show that defendant had the intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result[.] 304 (2000). convictions State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, To do so, the State may enter evidence of prior provided they have probative value, meaning the incidents are relevant to any fact or issue other than to show character of the accused. State v. Locklear, 159 N.C. App. -10588, 595, 583 S.E.2d 726, 731 (2003) aff'd, 359 N.C. 63, 602 S.E.2d 359 (2004). Rule 404(b) of the North Carolina Rules of Evidence does not require that these prior incidents be exactly the same in order to have probative value. Further, the similarities between the circumstances need not rise to the level of the unique and bizarre but simply must tend to support a reasonable inference that the same person committed both the earlier and later acts. Id. (quotations and citations omitted). Defendant concedes that evidence of a prior conviction for driving while impaired is admissible for the purpose of showing malice. arrest He also acknowledges that the circumstances of a prior may also be admitted if the circumstances sufficiently similar to the circumstances at issue. are See id. However, he argues that the circumstances of his prior driving while impaired arrests simply were not similar in any way to the present case. We are not persuaded. On 6 September 2008, Trooper Rakestraw found defendant passed out in the driver s seat of his vehicle nearby yard. at approximately Trooper 4:00 Rakestraw AM after testified crashing that into a defendant appeared appreciably impaired; he detected the odor of alcohol, had glassy eyes, slurred speech, and was unsteady on his feet. -11Officer Tilley testified that she stopped defendant on 11 October 2008, after observing his vehicle swerve into her lane of travel before running a red light. Upon stopping defendant, she detected the odor of alcohol on his breath. She also noted his red, glassy eyes, nervous demeanor, and saw that he was unsteady on his feet. She also concluded that defendant was appreciably impaired. As discussed above, the circumstances of a prior arrest and the current offense need only support a reasonable inference that the same person committed the offenses. inference is plausible. Here, passengers See Id. Such testified that defendant was speeding, played chicken with an eighteen-wheeler, and drove recklessly. At the hospital, Dr. McGuire detected the odor of alcohol on defendant. Thus, the circumstances of each arrest show that defendant 1) failed to maintain control of his vehicle, 2) drove recklessly, 3) smelled of alcohol, endangered those traveling on our roadways. and 4) We conclude that the trial court did not err; the circumstances of defendant s prior arrests are sufficiently similar to the instant case so as to have probative value. D. Sentencing -12Lastly, defendant argues, and the State concedes, that the trial court acted contrary to N.C. Gen. Stat. § 20-141.4 (2011) in sentencing defendant on second degree murder and felony death by vehicle. We agree. Although defendant did not object at trial, he waived his right to appeal this issue. acts contrary to a statutory has not [W]hen a trial court mandate and a defendant is prejudiced thereby, the right to appeal the court s action is preserved, trial. notwithstanding defendant s failure to object at State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985). Our Supreme Court has previously held that under the plain language of N.C. Gen. Stat. § 20-141.4(b), the classifications and corresponding ranges of punishment authorized in subsection (b) apply only when the conduct is not punished by a higher class offense. for a greater In turn, when a trial court imposes punishment offense covering the same conduct, it is not authorized to impose punishment for the offenses enumerated in subsection (b). State v. Davis, 364 N.C. 297, 303, 698 S.E.2d 65, 68 (2010). Here, degree the murder trial and court felony entered death by judgments vehicle on and both second imposed two -13sentences to run concurrently. However, per N.C. Gen. Stat. § 20-141.4(b), a defendant may not be punished for both second degree murder, a Class B2 felony, and felony death by vehicle, a Class E felony, based on the same conduct. Punishment must either [be] imposed for the more heavily punishable offense or for the section 20 141.4 offense, but not both. 698 S.E.2d at 69 vacate felony the (alteration in original). death by vehicle judgment resentencing consistent with this opinion. No error; remanded for resentencing. Judges CALABRIA and STEPHENS concur. Report per Rule 30(e). Id. at 304, Accordingly, and remand we for

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