1
NO. COA07-888 NINETEEN-B JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)From RandolphCounty
)06 CRS 50441
DANIEL BRENT OWENS)
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DEFENDANT-APPELLANT’S BRIEF
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SUBJECT INDEX
Questions Presented
Statement of the Case
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
Statement of the Facts
ARGUMENT
I.The trial court committed plain error when it allowed Edward Livesay to provide improper legal conclusions that Mr. Owens’s operation of the truck was the proximate cause of the accident and that Mr. Harris and Mrs. Atkins acted like reasonable drivers, which violated Rules 702 and 704 of the North Carolina Rules of Evidence.
II.The trial court failed to intervene ex mero motu during the State’s Initial closing argument when the prosecutor repeatedly asserted that Mr. Owens lied during his testimony.
CONCLUSION
CERTIFICATE OF FILING AND SERVICE
APPENDIX
TABLE OF AUTHORITIES
Cases
Berger v. United States, 295 U.S. 78, 79 L. Ed. 1314 (1935).....27
Hajmm Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 403 S.E.2d 483 (1991) 16
Herring v. New York, 422 U.S. 853, 45 L. Ed. 2d 593, (1975)....27
Johnson v. Skinner, 99 N.C. App. 1, 392 S.E.2d 634, disc. rev. denied, 327 N.C. 429, 395 S.E.2d 680 (1990) 17
Smith v. Childs, 112 N.C. App. 672, 437 S.E.2d 500 (1993)...... 16
State v. Anderson, 175 N.C. App. 444, 624 S.E.2d 393, disc. rev. denied, 360 N.C. 484, 632 S.E.2d 492 (2006) 34
State v. Gainey, 292 N.C. 627, 234 S.E.2d 610 (1977)...... 14
State v. Hall, 60 N.C. App. 450, 299 S.E.2d 680(1983)...... 15
State v. Harrington, 260 N.C. 663, 133 S.E.2d 452 (1963)...... 17
State v. Holland, 150 N.C. App. 457,566 S.E.2d 90 (2002)...... 15
State v. Huang, 99 N.C. App. 658, 394 S.E.2d 279, disc. rev. denied, 327 N.C. 639, 399 S.E.2d 127 (1990) 19
State v. Jones, 355 N.C. 117, 558 S.E.2d 97 (2002)...... 22, 27
State v. Lackey, 71 N.C. App. 581, 323 S.E.2d 32 (1984)...... 20
State v. Ledford, 315 N.C. 599, 340 S.E.2d 309
(1986)...... 14, 15, 16
State v. Locklear, 294 N.C. 210, 241 S.E.2d 65 (1978)...... 28
State v. Matthews, 358 N.C. 102, 591 S.E.2d 535 (2004)...... 27, 31
State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967)...... 27, 28, 29
State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975)...... 28
State v. Nance, 157 N.C. App. 434, 579 S.E.2d 456 (2003)...... 33
State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)...... 12
State v. Scott, 343 N.C. 313, 471 S.E.2d 605 (1996)...... 31
State v. Solomon, 340 N.C. 212, 456 S.E.2d 778, cert. denied, 516 U.S. 996, 133 L. Ed. 2d 438 (1995) 32
State v. Tyler, 346 N.C. 187, 485 S.E.2d 599, cert. denied, 522 U.S. 1001, 139 L. Ed. 2d 411 (1997) 29
Statutes
North Carolina General Statute
§ 8C-1, Rule 702...... 15
§ 8C-1, Rule 704...... 16
1
NO. COA07-888 NINETEEN-B JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
****************************************************
STATE OF NORTH CAROLINA)
)
v.)From RandolphCounty
)06 CRS 50441
DANIEL BRENT OWENS)
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DEFENDANT-APPELLANT’S BRIEF
****************************************************
Questions Presented
- Whether The trial court committed plain error when it allowed Edward Livesay to provide improper legal conclusions that Mr. Owens’s operation of the truck was the proximate cause of the accident and that Mr. Harris and Mrs. Atkins acted like reasonable drivers, which violated Rules 702 and 704 of the North Carolina Rules of Evidence?
- Whether THE TRIAL COURT FAILED TO INTERVENE EX MERO MOTU DURING the State’s initial CLOSING ARGUMENT WHEN THE PROSECUTOR repeatedlyasserted THAT MR. OWENS LIED DURING HIS TESTIMONY?
Statement of the Case
A Randolph County grand jury indicted Mr. Owens on March 13, 2006 for unlawful racing on streets and highways, unsafe passing at a railroad crossing or highway intersection, exceeding the posted speed, reckless driving, failure to reduce speed to avoid a collision, unsafe lane change, and involuntary manslaughter. (R.pp. 8-12)[1] The State tried the case before a jury at the October 30, 2006 Criminal Session of Superior Court, RandolphCounty, the Honorable Steve A. Balog presiding. On November 2, 2006, the jury returned verdicts of guilty on all charges. (R.pp. 41-43) The court arrested judgment on all of the traffic charges, (R.pp. 46-47),and sentenced Mr. Owens on the remaining charge of involuntary manslaughter to a term of sixteen (16) to twenty (20) months of confinement. Mr. Owens gave oral notice of appeal. (5T.pp. 717-16)
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
Mr. Owens appeals pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a) from a final judgment in the SuperiorCourtofRandolphCounty.
Statement of the Facts
A.The State’s Evidence.
Around 10:30 p.m. on December 30, 2005, Carol Nickerson was driving east on Highway 64 in RandolphCounty. Highway 64 consisted of five lanes: two eastbound lanes, two westbound lanes, and one center turn lane. (2T.p. 214, 3T.p. 273) The speed limit on Highway 64 was forty-five m.p.h. (4T.p. 460) While Ms. Nickerson was driving, a black pickup truck passed her at a high rate of speed. Ms. Nickerson thought that the truck was going at least fifty-five m.p.h. and saw the truck change lanes several times. (2T.pp. 225-26)
Around the same time, Ronald Trotter was in a car with friends heading east on Highway 64. (2T.p. 242) Mr. Trotter saw a black pickup truck speed up behind the car, pass the car on the right, and move into the left eastbound lane of the highway. (2T.p. 244) Mr. Trotter estimated that the truck was going seventy m.p.h. At the next stoplight, the truck pulled up behind another car. A silver car was in the right lane. Then, the truck and the silver car “took off.” (2T.pp. 243-44)
Lynn Smith, who was in the car with Mr. Trotter, believed that the cars were racing because the rear parts of both cars went down “like they took off really fast.” (2T.p. 213) In a written statement that she gave to the police, she stated that she thought the truck was going eighty m.p.h. (3T.p. 324) As the truck and the silver car drove forward, the truck moved into the center turn lane to avoid hitting the car in front of it. (2T.p. 245) A moment later, Ms. Smith saw the truck on its side. She did not see whether the truck hit another vehicle because she was distracted by her friends. (2T.p. 215) Mr. Trotter also testified that he did not see the accident. (2T.p. 252)
Lennon Meekins testified that he owned a silver Honda Accord and was driving on Highway 64 on the night of December 30, 2005. He had just come from a SouthwesternRandolphHigh School boy’s basketball game at AsheboroHigh School and was going to meet his friend, Strader Briles, at Rock-Ola Cafe. (4T.p. 409) As Mr. Meekins approached a stoplight in the right eastbound lane, he noticed that Mr. Owens was in a black truck in the left eastbound lane behind another car. A friend of Mr. Owens, Eddie Milliken, was in the passenger seat of the truck. (4T.p. 412) Mr. Milliken said something through a megaphone when Mr. Meekins passed the truck. (4T.p. 413) Then, Mr. Meekins sped up in order to pull away from both cars that were at the light. (4T.pp. 414-15) At the next stoplight, Mr. Meekins heard a loud sound behind him. Once he pulled around in the parking lot at Rock-Ola Cafe, he saw that an accident had happened. (4T.p. 416)
Mr. Meekins stated that he was an acquaintance of Mr. Owens (4T.p. 421), but did not know what Mr. Owens was doing on the night of December 30, 2005 or whether Mr. Owens was going to Rock-Ola Cafe. (4T.p. 422, 425) Later in the trial, the State introduced a written statement from Mr. Meekins in which he said, “[S]o we just hit the gas...to see if I could get to Rock-Ola before him.” (4T.p. 430) Although Mr. Meekins acknowledged that he wanted to “beat” Mr. Owens from the light, he stated that it was his own decision to distance himself from the other cars and not a mutual agreement with Mr. Owens. (4T.p. 425)
Earlier in the evening, Katherine and Dale Atkins were driving home after shopping at Wal-Mart. The Atkinses turned west onto Highway 64 and after passing through a stoplight, they were behind William Harris. (3T.p. 272) Mr. Harris was a custodian at SouthwesternRandolphHigh School, where he had worked for twenty-four years, and had just left the SouthwesternRandolphHigh School basketball game. (2T.pp. 202-03) Mrs. Atkins testified that Mr. Harris “was driving the way he was supposed to be.” (3T.p. 273) Mr. Harris gave a left turn signal in front of a Buick dealership and then got into the center turn lane. Mrs. Atkins testified that Mr. Harris had not been in the turn lane more than ten seconds before he tried to “whip” back in front of the Atkinses. At that point, Mrs. Atkins saw a black truck “barreling down the center lane.” (3T.p. 273, 275)
Mr. Harris’s car and the black truck briefly swerved in opposite directions, but ended up hitting each other. (3T.p. 274) Then, the black truck hit the Atkinses’ truck. (3T.p. 276) After the impact, Mrs. Atkins saw Mr. Owens get out of the black truck. (3T.p. 278) She screamed for help, but Mr. Owens did not respond. (3T.p. 279) Mr. Atkins got out of the truck and a bystander helped him get Mrs. Atkins out. (3T.p. 279) Mr. Atkins did not know who helped him. (3T.p. 297)
When Mr. Trotter reached the scene of the accident, the black truck was on top of another vehicle. Mr. Trotter saw Mr. Owens and a passenger climb out of the truck and pick up a bucket and a megaphone that had fallen out of the truck. They turned the megaphone off because it was making a sound like a siren. (2T.pp. 249-51) Ms. Nickerson also pulled over near the accident. (2T.p. 228) She watched Mr. Owens climb out of the truck, walk over to a nearby car dealership, and talk to a group of bystanders. (2T.p. 229, 233) Ms. Nickerson testified that Mr. Owens did not appear to be injured and did not help Mrs. Atkins. (2T.pp. 232-33) She also stated that she did not see the wreck happen and did not see the truck racing with any other vehicle. (2T.p. 227, 237)
Andy Lane, a paramedic, treated Mr. Owens at the scene of the accident. Mr. Lanestated that he had to repeat himself several times because Mr. Owens was talking to bystanders. (3T.p. 305) After a quick assessment, the only injury Mr. Lane saw was a laceration above Mr. Owens’s left eyebrow. Then, Mr. Lane took Mr. Owens to a hospital. (3T.p. 308)
Once Mr. Owens arrived at the hospital, Officer Donald Thompson of the Asheboro Police Department asked him about the accident. Mr. Owens told Officer Thompson that he could not remember how the accident occurred. (4T.p. 333) Officer Ronald Horrell also spoke to Mr. Owens about the accident, but Mr. Owens told him that he could not remember what happened. Officer Horrell did not believe Mr. Owens and told him that “it might get a little hot in here.” (4T.pp. 359-60) Then, Mr. Owens cursed and threatened to fight Officer Horrell. (4T.p. 377) Officer Horrell ended the interview because he believed that Mr. Owens would not cooperate. (4T.p. 364) On January 6, 2006, Mr. Owens gave a written statement to Officer Horrell, in which he said that he did not remember how the accident happened. (4T.p. 369)
Dr. James Meredith testified that Mr. Harris died on January 12, 2006 from an infection that occurred as a complication of being in the accident. (4T.p. 399) Alexander Livesay, an accident reconstruction specialist, stated that “[t]he sole and proximate cause of the collision was the unusual actions and maneuvers of the Owens vehicle.” He testified that Mr. Harris and Mrs. Atkinsdrove like “any other reasonable driver in a like circumstance” and did not contribute to the accident. (4T.pp. 454-55) He also stated that at the time of the accident, Mr. Owens’s vehicle was going between fifty and fifty-five m.p.h. and that Mr. Harris’s vehicle was going 10 m.p.h. (4T.pp. 448-49)
B.Mr. Owens’s Evidence.
Mr. Owens testified that when he was in the hospital after the accident, he truthfully told the doctor, Officer Thompson, and Officer Horrell that he could not remember what happened. At the time, his head hurt and he could not get past the pain. By the time Mr. Owens testified at his trial, he was able to recall what happened because he had had a lot of time to reflect on the accident. (4T.pp. 472-73)
Mr. Owens stated that around 9:50 p.m. on December 30, 2005, he picked up Eddie Milliken at a Huddle House. (4T.p. 470) Strader Briles called Mr. Milliken and asked Mr. Milliken and Mr. Owens to meet him at a Rock-Ola Cafe restaurant. (4T.p. 472, 532) Mr. Owens decided to drop Mr. Milliken off at the restaurant because he was not feeling well. (4T.p. 476)
While Mr. Owens was driving on Highway 64 towardthe restaurant, Mr. Milliken found a megaphone in the truck. (4T.p. 475) Mr. Owens had purchased the megaphone for his birthday and lent it to a friend. It was in his truck because his friend had just given it back to him. (4T.pp. 495-96) As Mr. Owens and Mr. Milliken approached a stoplight, Mr. Milliken saw Mr. Meekins in the lane to the right of the truck and called out his name through the megaphone. (4T.p. 475, 532) The light turned green and both cars drove forward. Then, the car in front of Mr. Owenssuddenly braked. Mr. Owens also slowed down, but moved into the center turn lane because the brakes on the truck did not work well. (4T.p. 477, 479) Once Mr. Owens was in the center turn lane, he saw Mr. Harris enter the lane from the opposite direction. Mr. Owens swerved to avoid a collision, but hit Mr. Harris’s car. (4T.pp. 479-80, 501)
After the accident, Mr. Owens and Mr. Milliken got out of the truck. (4T.p. 480) A siren on the megaphone was going off, so Mr. Owens threw it on the ground to turn it off. Then, Mr. Owens went to the back of the Atkinses’ truck because someone yelled that it was on fire. (4T.p. 481) Mr. Atkins had gotten out of the truck and said that he couldnot get his wife out. Mr. Owens pushed on the door to open it, which enabled Mrs. Atkins to get out. (4T.p. 482)
A few moments later, a paramedic treated Mr. Owens and took him to a hospital. At the hospital, Mr. Owens spoke to Officer Thompson about the accident, but could not remember what happened. (4T.p. 485) Mr. Owens also told Officer Horrell that he could not recall how the accident occurred. Then, Officer Horrell told Mr. Owens’s mother, “You might want to leave the room ‘cause I’m gonna get hot.” Officer Horrell also asked Mr. Owens if he wanted to “take this outside.” (4T.pp. 487-88) Mr. Owens acknowledged that he cursed at Officer Horrell, but only after Officer Horrell said that it was going to “get hot.” (4T.p. 522) Mr. Owens’s brother, Bobby Owens, who had previously been a road deputy for the Randolph County Sheriff’s Office, testified that Mr. Owens did not curse at Officer Horrell until after Officer Horrell threatened to fight Mr. Owens. (4T.pp. 551-52)
During the trial, Mr. Owens denied that he passed any cars (4T.pp. 502-03), that he raced Mr. Meekins (4T.p. 493), that he “was gunning” the truck just before the accident occurred (4T.p. 503), or that he talked to bystanders after the accident. (4T.p. 499) He also denied that he turned the siren on just before the accident (4T.p. 498) or that he knew that Mr. Meekins was going to Rock-Ola Cafe. (4T.p. 508)
Dwayne York, Mr. Owens’s step-father, testified that he owned the black truck that Mr. Owens drove on the night of December 30, 2005. (4T.p. 526) He let Mr. Owens borrow the truck because the oil pump in Mr. Owens’s car was broken. The truck did not stop as quickly as it normally would because Mr. York had put new tires on the truck, which warped the rotors. Mr. York was injured after he replaced the tires and was not able to fix the rotors before the accident. (4T.pp. 527-28)
Mr. Milliken testified that just before the accident, he saw the car in front of Mr. Owens brake and that Mr. Owens swerved into the center turn lane to avoid hitting the car. (4T.p. 533) He said that he did not know that Mr. Meekins was driving on Highway 64 until he saw Mr. Meekins drive by. (4T.p. 535) Mr. Milliken also denied that Mr. Owens was racing Mr. Meekins. (4T.p. 536)
C.The State’s Rebuttal Evidence.
Mr. Livesay provided additional testimony in which he stated his opinion that Mr. Harris and the Atkins were in the center turn lane before Mr. Owens. (4T.p. 565) He also stated that the brakes on Mr. Owens’s truck were “efficient enough to totally lock the brakes and leave skid marks.” (4T.p. 568)
ARGUMENT
- The trial court committed plain error when it allowed Edward Livesay to provide improper legal conclusions that Mr. Owens’s operation of the truck was the proximate cause of the accidentand that Mr. Harris and Mrs. Atkins acted likereasonable drivers, which violated Rules 702 and 704 of the North Carolina Rules of Evidence.
ASSIGNMENTs OF ERROR NOS. 38-53, R.pp. 64-67
A.Standard of review.
Based on the absence of objection to Mr. Livesay’s testimony, the standard of review for this issue is plain error. State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). Plain error is error that has resulted in a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it would have reached without the error. Id. at 660, 300 S.E.2d at 378.
B.Procedural History.
One of the most critical issues at Mr. Owens’s trial was whether, out of all of the causes of the accident that led to Mr. Harris’s death, Mr. Owens’s conduct was the sole legal cause of the wreck. To help answer this question, the State hired Edward Livesay, an accident reconstruction expert, to testify at Mr. Owens’s trial. Instead of limiting his testimony to a description of the scientific conclusions that he reached during his investigation, Mr. Livesay provided improper legal conclusions about the proximate cause of the accident.
After the State tendered Mr. Livesay as an expert in accident reconstruction, Mr. Livesay testified about the speed of the vehicles involved in the wreck and the point at which the vehicles collided. Then, the following exchange took place:
Q:Okay. What other conclusions did you reach based on your research?
A:The actions of the drivers of the Saturn automobile and the Ford pickup truck just prior to the collision event were those of any other reasonable driver in a like circumstance.
Q:Well, how do you know that?
A:Well, all that’s available – for instance, with the Harris’s vehicle, all that’s available to a driver going down the road is to either scream, apply brakes, or turn, and he did two of the three that we know about.
Q:Okay. What about the Saturn?
A:The Saturn vehicle also obviously reduced the vehicle [sic]. I mean, that – that was the Harris vehicle. You know, reduced the speed. The Atkins vehicle also reduced speed, or I suspect he just simply didn’t have time as – as we have to realize the Harris vehicle was between he and the Owens vehicle, so he had less time to do anything about it.
...
Q:Okay, all right. And what did you say about the Saturn vehicle as far as a reasonable driver?
A:It had – the physical evidence shows that it had reduced speed and that it had turned from its original direction.
Q:Okay.
A:That’s all a driver can do is turn and hit the brakes.
Q:Okay. What caused the accident?
A:The sole and proximate cause of the collision was the unusual actions and maneuvers of the Owens vehicle.
Q:Why do you say “unusual”?
A:Well, obviously in comparison to the rest of the traffic – traffic, the evidence that we have before the Court is that his was far superior, quite a high speed. It was also head-on in relation to the other vehicles.