An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e .
NO. COA13-935 NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA Onslow County v. Nos. 12 CRS 50104 12 CRS 50106 CHRISTOPHER CASH, 12 CRS 50120-22 Defendant. 12 CRS 50124
Appeal by defendant from judgments entered 25 February 2013
by Judge W. Allen Cobb, Jr., in Onslow County Superior Court.
Heard in the Court of Appeals 5 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.
GEER, Judge.
Defendant Christopher Cash appeals from his conviction of a
number of charges arising out of a one-car accident, including
driving while license revoked, reckless driving to endanger, two
counts of felony death by vehicle, two counts of felony hit and
run causing serious injury or death, and felony serious injury
by vehicle. Defendant primarily contends on appeal that the -2- trial court erred in allowing a highway patrol trooper to
testify regarding how the accident occurred when the trooper did
not witness the accident occur and was not qualified as an
expert in accident reconstruction. Based on our review of the
trooper's testimony, we hold that he did not express any
opinions that amounted to expert testimony. His testimony
either qualified as proper lay opinion testimony or amounted to
admissible shorthand statements of facts. Nonetheless, we agree
with defendant that the trial court committed error by
sentencing him based on a Class F hit and run felony when the
most serious hit and run offense of which he was convicted was a
Class H felony. We, therefore, remand for a new sentencing
hearing.
Facts
The State's evidence tended to show the following facts.
On the evening of 5 January 2012, defendant and his now-wife
Chauntelle Wann made plans to go to Anytime Billiards with
defendant's brother, Jeffrey Cash, and two of the Cash brothers'
coworkers, Jerry Jackson and Kevin Embler. Anytime Billiards
was located just a few miles from where defendant lived on Pony
Farm Road, in Jacksonville, North Carolina.
Before going to Anytime Billiards, defendant had already
begun to drink "heavily" with Mr. Embler that afternoon at -3- Tobie's Gentleman's Club. At approximately 7:30 p.m. on 5
January 2012, defendant drove Ms. Wann, Mr. Cash, Mr. Jackson,
and Mr. Embler to Anytime Billiards in his Volkswagen Jetta.
While at Anytime Billiards, the group consumed pitchers of beer
over the course of several hours. While defendant, Mr. Cash,
Mr. Jackson, and Mr. Embler were drinking "heavily" at Anytime,
Ms. Wann was not.
Around 12:00 a.m. on 6 January 2012, defendant drove the
group in the Jetta from Anytime Billiards to a Trade Wilco Hess
where, at approximately 12:15 a.m., defendant purchased a case
of beer, put the beer in the Jetta, and continued driving on
Highway 53. Defendant then turned right onto Pony Farm Road.
Mr. Cash was sitting in the backseat with Mr. Embler and Mr.
Jackson. He "could feel" that defendant was driving "fast" and
told defendant to "slow down." Seconds later, at approximately
12:20 a.m., the Jetta wrecked in a ditch along Pony Farm Road.
Then, sometime between 12:20 a.m. and 12:40 a.m. local
resident Brian O'Hara and emergency first responders found
defendant's green Volkswagen Jetta overturned in a westbound
ditch on Pony Farm Road. First responders then discovered two
deceased men lying at different distances from the Jetta and
identified them as Mr. Embler and Mr. Jackson. Mr. O'Hara
rescued defendant and Ms. Wann from the overturned Jetta. Mr. -4- Cash was lying on the ground outside of the overturned Jetta
unconscious, but he regained consciousness and rested with Ms.
Wann in Mr. O'Hara's truck bed.
Defendant moved about "look[ing] like he was in a daze and
like he was in a loss," cursing. When deputies from the Onslow
County Sheriff's Office arrived between 12:30 a.m. and 12:40
a.m., defendant had left the accident scene in a taxicab.
State Highway Patrol Trooper Timothy Silance arrived at the
accident scene at 12:44 a.m. Trooper Silance surveyed the scene
and learned from Ms. Wann that defendant had been driving.1 Mr.
Cash and Ms. Wann were then transported to the hospital. After
learning from Mr. O'Hara that defendant had left in a taxicab
having a particular description, Trooper Silance pursued
defendant's cab in his patrol car. Trooper Silance located and
pulled over defendant's cab between 3:00 a.m. and 3:30 a.m. He
ordered defendant out of the cab and noticed defendant had fresh
facial lacerations, shoulder and chest injuries that appeared to
have been made by a seatbelt, red glassy eyes, a strong odor of
alcohol, slurred speech, and a stumbling gait.
When asked where he was going, defendant told Trooper
Silance that he was on his way to the Onslow Memorial Hospital
1 The defense objected to this testimony from Trooper Silance, but this objection was overruled, and defendant does not challenge that ruling on appeal. -5- to see Ms. Wann because she had been involved in a car wreck.
Trooper Silance then took defendant into custody and to the
hospital where a nurse drew defendant's blood. A chemical
analysis of defendant's blood revealed a blood alcohol
concentration of 0.10 grams per 100 milliliters of blood. At
around 6:30 a.m. Trooper Silance took defendant to jail.
At the close of the State's evidence, defendant made a
motion to dismiss all charges. The trial court denied the
motion generally but granted it with respect to one charge of
felony serious injury by motor vehicle with Ms. Wann being the
victim. Defendant then introduced several exhibits but
presented no witnesses. At the close of all the evidence,
defendant renewed his motion to dismiss, which the court granted
with respect to the charges of misdemeanor hit and run failing
to notify authorities and failing to report an accident.
The jury convicted defendant of one count of driving while
impaired, two counts of involuntary manslaughter, one count of
misdemeanor reckless driving to endanger, one count of
misdemeanor driving while license revoked, two counts of felony
death by motor vehicle, two counts of felony hit and run causing
injury, and one count of felony serious injury by motor vehicle.
The trial court arrested judgment on the driving while impaired
and involuntary manslaughter convictions and sentenced defendant -6- in the following manner: two consecutive terms of 38 to 58
months for two counts of felony death by vehicle; three
consecutive terms of 25 to 39 months for one count of felony
serious injury by vehicle and two counts of felony hit and run
causing serious injury or death; and one concurrent term of 120
days for driving while license revoked and reckless driving to
endanger. Defendant timely appealed to this Court.
I
Defendant first contends that the trial court erred in
permitting Trooper Silance to testify that defendant refused to
make any post-arrest, post-Miranda statement to law enforcement.
He argues that evidence of defendant's post-arrest, post-Miranda
silence was inadmissible for any purpose. Because defendant did
not object to the testimony at trial, he asks that we review the
issue for plain error.
As our Supreme Court has observed:
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice -- that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.] -7-
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(internal citations and quotation marks omitted).
"'A criminal defendant's right to remain silent is
guaranteed under the Fifth Amendment to the United States
Constitution and is made applicable to the states by the
Fourteenth Amendment.'" State v. Richardson, ___ N.C. App. ___,
___, 741 S.E.2d 434, 440 (2013) (quoting State v. Moore, 366
N.C. 100, 104, 726 S.E.2d 168, 172 (2012)). "A defendant's
post-arrest, post-Miranda . . . silence . . . may not be used
for any purpose." State v. Mendoza, 206 N.C. App. 391, 395, 698
S.E.2d 170, 174 (2010).
When asked initially whether and when he had "a
conversation with Chris Cash what about [sic] he had been doing
the evening [of the wreck] or where he'd been," Trooper Silance
gave the following testimony:
A [My questioning defendant about the accident] -- that did not occur until at the jail, after I had advised him, at 6:34 a.m.
Q So you advised him of his Miranda rights?
A Yes, which is when I intended to question him formally on the events.
Q After you advised him of his rights, did he make some statement about his activities that evening? -8- A He refused any comment at all about the event.
Here, the admission of Trooper Silance's testimony about
defendant's post-arrest and post-Miranda refusal to speak was
error. See Moore, 366 N.C. at 105, 726 S.E.2d at 172 (holding
trial court committed error when it admitted officer's testimony
defendant "'refused to talk about the case at that time'" after
he had been arrested and read his Miranda rights). The State
also appears to concede as much.
The question remains whether the error had a probable
impact on the jury's verdicts. Defendant argues that, in the
absence of Trooper Silance's testimony, the jury would have
probably reached a different result because, according to
defendant, the evidence he was driving the Jetta when the
accident occurred was "hardly overwhelming." Defendant points
to the fact that there was no witness who testified to seeing
the accident occur, Mr. Cash did not provide a description of
how the accident occurred, and a swab of the cabin of the
wrecked Jetta did not reveal any evidence of defendant's DNA.
In summarizing the analysis our Supreme Court relied upon
in Moore to determine whether evidence of a defendant's post-
arrest, post-Miranda silence amounted to plain error, this Court
recently explained: -9- [O]ur review of Moore suggests that the following factors, none of which should be deemed determinative, must be considered in ascertaining whether a prosecutorial comment concerning a defendant's post-arrest silence constitutes plain error: (1) whether the prosecutor directly elicited the improper testimony or explicitly made an improper comment; (2) whether the record contained substantial evidence of the defendant's guilt; (3) whether the defendant's credibility was successfully attacked in other ways in addition to the impermissible comment upon his or her decision to exercise his or her constitutional right to remain silent; and (4) the extent to which the prosecutor emphasized or capitalized on the improper testimony by, for example, engaging in extensive cross-examination concerning the defendant's post-arrest silence or attacking the defendant's credibility in closing argument based on his decision to refrain from making a statement to investigating officers.
Richardson, ___ N.C. App. at ___, 741 S.E.2d at 441-42.
Here, the evidence is overwhelming that defendant was
driving the Jetta and caused the wreck that resulted in the
deaths of Mr. Embler and Mr. Jackson. Conditions on the night
of the accident were dry and clear. Mr. Cash testified that
defendant was in the driver's seat when they left the Wilco Hess
and recalls telling defendant to "slow down" as defendant drove
down Pony Farm Road. Mr. Cash also testified that defendant
typically did not let anyone else drive the Jetta because
"[i]t's his vehicle and he drives his own vehicles[,] [and that
is] how it's always been." -10- Ms. Wann told both first responder Randi Barwick and
Trooper Silance that defendant was driving.2 In addition, Mr.
O'Hara testified that after he pulled Ms. Wann from the front
passenger side window of the Jetta, he also pulled defendant
through the same window, although defendant had been further
away from Mr. O'Hara than Ms. Wann.
Further, when the police arrived at the accident scene,
defendant abandoned his friends, who were either injured or
killed by the wreck, by riding off in a taxicab. Trooper
Silance testified that when he stopped defendant's taxicab
defendant appeared as if he had been in a car wreck and was
appreciably intoxicated, almost three hours after the wreck had
occurred. When defendant had his blood drawn at the hospital,
sometime after he was placed under arrest, his blood alcohol
level was 0.10.
In addition to the overwhelming evidence of defendant's
guilt, we also note that while the prosecutor directly elicited
Trooper Silance's testimony about defendant's post-arrest, post-
Miranda silence, there is no indication that the prosecutor made
an effort to emphasize or capitalize on that testimony.
2 The defense objected to this testimony from Ms. Barwick, but the objection was overruled, and defendant does not challenge that ruling on appeal. -11- Additionally, defendant did not testify, so his credibility was
not at issue.
Under Moore, given the overwhelming evidence of defendant's
guilt, the lack of any emphasis by the State on the
impermissible testimony, and the fact that defendant did not
testify, we cannot conclude that the brief, passing mention of
defendant's post-arrest, post-Miranda refusal to comment about
the accident had a probable impact on the jury's verdicts. See
State v. Alexander, 337 N.C. 182, 196, 446 S.E.2d 83, 91 (1994)
(holding no plain error when evidence of defendant's guilt was
substantial, defendant "did not object to the line of
questioning at issue, the comments [on defendant's silence] were
relatively benign, and a review of the record indicates that the
prosecutor made no attempt to emphasize the fact that defendants
did not speak with them after having been arrested"). We,
therefore, hold that the trial court did not commit plain error
when it admitted the evidence of defendant's post-arrest, post-
Miranda silence.
II
Defendant next argues that the trial court erred in
admitting Trooper Silance's testimony regarding how the accident
occurred when Trooper Silance did not witness the accident occur
and was not qualified as an expert in accident reconstruction. -12- In particular, defendant complains of Trooper Silance's
testimony that the Jetta flipped multiple times before resting,
that there were multiple points of impact in the ditch, and that
occupants of the car were ejected. Defendant contends that the
testimony amounted to Trooper Silance's improperly providing an
expert opinion in accident reconstruction. Because defendant
did not object to this testimony at trial, we review for plain
error.
Defendant cites State v. Maready, 205 N.C. App. 1, 695
S.E.2d 771 (2010), and State v. Wells, 52 N.C. App. 311, 278
S.E.2d 527 (1981), for the proposition that a trial court
commits error when it admits accident reconstruction testimony
of a witness who did not observe the accident occur and is not
qualified as an expert in accident reconstruction.
In Maready, the State presented testimony from officers who
"did not witness the accident, but gave their opinions
indicating Defendant was at fault based upon their examination
of the scene of the accident. The officers were not proffered
as experts in accident reconstruction." 205 N.C. App. at 17,
695 S.E.2d at 782. In holding that the testimony was
inadmissible, this Court explained that "[a]ccident
reconstruction opinion testimony may only be admitted by
experts, who have proven to the trial court's satisfaction that -13- they have a superior ability to form conclusions based upon the
evidence gathered from the scene of the accident than does the
jury." Id.
In Wells, a highway patrol trooper, who apparently was not
an expert in accident reconstruction, testified at trial about
what he observed at the scene of a wreck after the wreck had
already happened. This Court explained: "Because of the
location of the gouge marks and the debris, [the trooper]
concluded that the impact had occurred in the center of the
eastbound lane" and gave testimony at trial to that effect. 52
N.C. App. at 312, 278 S.E.2d at 528. In concluding that
admission of this testimony was error, this Court explained: "By
testifying that his investigation revealed the point of impact
between the two cars to be in decedent's lane of travel, [the
trooper] stated an opinion or conclusion which invaded the
province of the jury." Id. at 314, 278 S.E.2d at 529. The
trial court, therefore, committed reversible error by admitting
the testimony. Id. at 316, 278 S.E.2d at 530.
At trial, Trooper Silance had the following exchange with
the prosecutor on direct examination:
Q How about the two deceased persons, were their bodies still there at the scene when you were doing the investigation?
A Yes. Any time there's a vehicle accident and someone is killed instantly, at -14- the time of the collision, . . . bodies remain where they are for two purposes: photos and measurements. I mean, you can get more precise measurements when the bodies are in the same exact place as they are at the time of the collision.
Q So what investigative action did you take, with regard to the bodies there at the scene?
A They're important primarily because, when someone is ejected, . . . it helps you determine speed, because if someone is ejected . . . a great distance from the vehicle, it's easier to . . . form and estimate a speed of that vehicle.
. . . .
Q You said the vehicle was upside down.
A Correct.
Q Did it have damage to the roof or to the sides of the vehicle?
A Every part of the vehicle was damaged.
Q Based on your training and experience and the observations you made at the scene, did you form an opinion as to whether or not the vehicle had rolled during the collision?
A I was positive it had.
Q Why do you say that?
A The vehicle was overturned on final rest, and using that and the impact with the ditch the manner that the ditch was disturbed, it was obvious that the vehicle got flipped over at least once. -15- Q Did it appear as if the vehicle had overturned or flipped or spun more than once?
A Yes.
A . . . there was multiple impacts on the ditch. It wasn't just one spot where the ditch or the shoulder was disturbed, there was multiple spots.
Trooper Silance also testified that car parts were lying on the
shoulder primarily but were also in the road, and there was
shattered glass around the Jetta.
Here, it is undisputed that Trooper Silance did not
personally witness the accident occur and was not an expert in
accident reconstruction even though he "had some training in
investigating collisions and looking for skid and yaw marks."3
Trooper Silance observed the damaged Jetta and its surroundings
and testified that he was "positive" the vehicle had flipped and
it was "obvious" that the vehicle "did . . . appear" to have
rolled "at least once" during the collision.
In the challenged portion of his testimony, Trooper Silance
was not acting as an accident reconstruction expert, testifying 3 A "yaw" mark is a pattern of skid mark made by a car that indicates the car was traveling at a high speed and is caused by the momentum of the car moving from side to side. Defendant does not challenge this portion of Trooper Silance's testimony, and nothing in the record reveals that Trooper Silance relied on his training with skid and yaw marks in giving the challenged testimony. -16- as to who or what was the cause of the accident as the witness
testified in Maready, or deciphering from evidence at the scene
at what point on a road two vehicles had collided, as the
witness testified in Wells. Trooper Silance's observations and
testimony did not involve any specialized or technical
knowledge, that would fall within the province of Rule 702 of
the Rules of Evidence.
Instead, Trooper Silance's testimony fell within the scope
of Rule 701 of the Rules of Evidence:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
Trooper Silance testified to multiple observations with detailed
descriptions and that testimony reflected his lay conclusions
upon seeing a heavily damaged overturned car in proximity to two
dead bodies lying on the ground outside the car, shattered
glass, car parts, and significant disturbances in a roadside
ditch. By hearing the inferences Trooper Silance drew from his
observations of the scene, the jury was better able to
understand why Trooper Silance proceeded as he did, including
pursuing defendant's cab. The jury could also better understand -17- the Trooper's testimony regarding what he saw when he arrived at
the scene.
Moreover, as this Court explained in State v. Graham, 186
N.C. App. 182, 195, 650 S.E.2d 639, 648 (2007) (quoting State v.
Lloyd, 354 N.C. 76, 109, 552 S.E.2d 596, 620 (2001)), "'[t]he
instantaneous conclusions of the mind as to the appearance,
condition, or mental or physical state of persons, animals, and
things, derived from observation of a variety of facts presented
to the senses at one and the same time, are, legally speaking,
matters of fact.'" These conclusions are commonly referred to
as "'shorthand statements of fact'" and are not subject to the
limits on lay opinion testimony in Rule 701. 186 N.C. App. at
195, 650 S.E.2d at 648-49. A "shorthand statement of facts" is
"a well recognized method of permitting a witness to describe an
incident or scene that can hardly be described in any other
manner." State v. Nichols, 268 N.C. 152, 154, 150 S.E.2d 21, 23
(1966). We hold that Trooper Silance's statements to the extent
they pertain to how the wreck occurred were a "shorthand
statement of fact" that described the accident scene as he
observed it and did not amount to a purported scientific or
technical opinion on accident reconstruction subject to Rule
702. -18- In other cases, our appellate courts have similarly
designated as "shorthand statements of fact" witnesses'
impressions of the manner in which physical damage or
disturbance had been caused. In Graham, the defendant
challenged the admission of testimony from one officer who
stated, "'When I got there [to the crime scene], I noticed . . .
[t]hat the front door had been forced open . . . . It was clear
to me that the front door had been forced,'" and testimony from
another officer that "'somebody had kicked in the door . . . .
The door had actually been locked to where when the door was
kicked in, the deadbolt was still in the locked position but had
pushed through the doorframe.'" 186 N.C. App. at 195, 650
S.E.2d at 648. This Court held that the observations "were
simply instantaneous conclusions drawn by the witnesses upon
seeing the door standing ajar but still bolted, and the
splintered door frame. The testimony of each witness was a
shorthand statements [sic] of fact . . . ." Id. at 196, 650
S.E.2d at 649. See also, e.g., Alexander, 337 N.C. at 190-91,
446 S.E.2d at 88-89 (upholding admissibility as shorthand
statement of fact officer's testimony that photograph shown to
him at trial indicated "small openings that appeared to be
[caused by] buckshot" in victim's arm). -19- Even if we were to find that admission of the testimony was
error, defendant has still failed to show that the omission of
this evidence would have probably produced a different result.
In addition to the ample evidence of defendant's guilt, the
State presented evidence from Mr. Cash regarding how fast
defendant was driving and from Trooper Silance and others
describing the scene of the accident. Various witnesses
testified that the Jetta was "overturned," and testimony and
photographs established that the Jetta was heavily damaged all
over. Ms. Barwick also testified that Mr. Embler and Mr.
Jackson were "ejected," testimony to which defendant did not
object and that Ms. Wann told her, "'I was the only one wearing
a seatbelt.'"4
Testimony further indicated that one deceased person was
located about 60 to 100 feet from the Jetta on the asphalt while
the other was about 30 to 40 feet from the Jetta, face down in
the ditch. Trooper Silance described the damage to the vehicle
as severe, and EMS first responders described the emergency as
one involving a rolled vehicle.
Thus, contrary to defendant's claim, Trooper Silance's
testimony was not "the only evidence suggesting how the accident
4 The defense also objected to this testimony from Ms. Barwick, but the objection was overruled, and defendant does not challenge that ruling on appeal. -20- occurred." Evidence from other witnesses and exhibits suggested
a substantially similar description of the scene of the wreck
from which the jury could easily infer that defendant caused a
wreck consistent with the description provided by Trooper
Silance's challenged statements.
III
Lastly, we address the problem in sentencing that defendant
raises and which the State concedes. Defendant argues that "the
trial court entered judgment and sentence against [defendant]
for two counts of hit and run with serious bodily injury or
death -- a class F felony . . . . The jury, however, was only
instructed on and found [defendant] guilty of two counts of hit
and run with injury -- a class H felony . . . ." After
reviewing the record, we agree.
Under N.C. Gen. Stat. § 20-166(a1) (2013), hit and run with
injury is a Class H felony. Under N.C. Gen. Stat. § 20-166(a),
hit and run with serious bodily injury is a Class F felony.
Defendant was indicted on one count of hit and run causing
serious bodily injury to Mr. Cash and one count of hit and run
causing injury to Ms. Wann under N.C. Gen. Stat. § 20-166(a).
The trial court, however, did not give any instruction on
"serious bodily injury, as defined in G.S. 14-32.4," N.C. Gen.
Stat. § 20-166(a)(2), for either of the hit and run counts, and -21- the verdict sheets identified the hit and run offenses as two
counts of "felonious hit and run with injury." (Emphasis
added.) Yet, the trial court sentenced defendant for each of
the hit and run offenses "in the presumptive range" for a Class
F felony, a minimum of 25 months and a maximum of 39 months
active punishment. We conclude that the trial court erred in
entering a judgment and sentence for two violations of N.C. Gen.
Stat. § 20-166(a) when the only hit and run crimes for which
defendant was convicted were under N.C. Gen. Stat. § 20-166(a1).
Consequently, we reverse and remand for resentencing on those
two convictions.
No error in part; reversed in part and remanded.
Judges ROBERT C. HUNTER and McCULLOUGH concur.
Report per Rule 30(e).