Opinion
No. COA07-888.
Filed February 19, 2008.
Randolph County No. 06 CRS 50441, 05 CRS 50130-31.
Appeal by defendant from judgment entered 2 November 2006 by Judge Steve A. Balog in Randolph County Superior Court. Heard in the Court of Appeals 10 January 2008.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General John J. Aldridge, III, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defenders David W. Andrews and Benjamin Dowling-Sendor, for defendant-appellant.
Daniel Brent Owens ("defendant") appeals his conviction on 2 November 2006 for involuntary manslaughter as the result of a 30 December 2005 automobile accident. For the reasons stated below, we hold no error.
At approximately 10:30 p.m. on 30 December 2005, there were only a few cars driving eastbound on Highway 64 in Randolph County. Among the drivers were Whitney Lynn Smith ("Smith"), Carroll Faye Nickerson ("Nickerson"), Lennon Robert Meekins ("Meekins"), and defendant. At the same time, and in the same area, Katherine Presnell Atkins ("Atkins") was driving westbound on Highway 64 behind William Eugene Harris ("Harris"), deceased. Smith was driving in the left-hand lane when a black pickup truck driven by defendant, came up behind her, sped by in the right-hand lane, and cut back in front of her. The black truck was moving at approximately seventy miles per hour in her estimation. The truck approached a stoplight and pulled alongside a silver car driven by Meekins. As the black truck and silver car crossed the intersection, she observed the backs of their cars "go down like they took off really fast." She thought they were racing.
Approximately seventy-five to one hundred yards ahead of her, Smith saw the truck "whip into" the center turn lane. She then saw "smoke everywhere and his truck turned over." It looked to her as though the silver car kept going, but she pulled over to see if everyone was all right. She observed fire coming from the black truck.
Smith saw defendant exit the black truck, as well as a passenger. She saw another truck with damage to its front end. She observed Atkins getting out of it, clearly hurt. She also walked over to see the other car that had been involved in the collision. She was worried because no one was getting out of it.
Nickerson also was driving eastbound when a black truck came up behind her, then went around her at "a high rate of speed." She glanced at her speedometer, thinking she was going too slowly, frustrating the other driver. She was driving approximately forty-three miles per hour. The posted speed limit was forty-five. As the truck gathered speed, it started switching lanes to pass other cars. She estimated the truck was traveling at least fifty-five miles per hour. As she continued to watch the truck, she thought to herself, "My goodness, they gonna kill somebody." When the truck approached a traffic light, she heard the engine "vroom" as the truck picked up speed.
Nickerson thought it prudent to slow down. She then saw a white cloud of smoke above the roadway, which quickly dissipated. She pulled to the side of the road and turned on her emergency flashers. The black truck was on its side and on fire. She saw defendant climb out of it. She also observed Atkins and her husband get out of their truck. Atkins was moaning and her husband was holding his heart.
Meekins was driving a silver Honda Accord the night of 30 December 2005. As he approached a stoplight, he saw defendant driving a black truck and Eddie Milliken ("Milliken") in the passenger seat with a bullhorn in his hand. Milliken yelled something he did not understand at him with the bullhorn. The stoplight had been red, but it changed as they approached and neither Meekins, nor defendant came to a complete stop. There was a car in front of defendant, but not in front of Meekins. After passing through the light, Meekins accelerated to between fifty-three and fifty-five miles per hour. He intended to pull away from both other vehicles, "beating them from the light." As he pulled up to the next stoplight to make a left turn, he heard a "boom" behind him. After turning his car around in a parking lot, Meekins saw smoke and some cars that had been in an accident. He did not know if his driving had provoked defendant. Atkins was driving westbound on Highway 64 when she stopped at a red light behind Harris. After the light changed, they both drove forward, approaching thirty or thirty-five miles per hour as they approached the next light. Harris turned on his left turn signal and proceeded to move into the turn lane. He then suddenly moved back in front of her. She looked up, having slowed down to prepare for Harris's turn, and saw "a big black truck barreling down the center lane." When Harris swerved back in front of her, she saw how fast the black truck was moving, and said, "Oh, my gosh, he's gonna hit us, too." As the black truck hit Harris's car, she "knew [she] was gonna die that night."
After she regained her senses, she heard someone say that the truck was on fire. She was not sure which truck, but she knew she was in a truck and needed to get out. As she and her husband were struggling to open their doors, she saw two men — defendant and Milliken — descend from the truck that was on top of her hood. Defendant was no more than ten feet away when she screamed for them to help her get out. He did not respond. Her husband managed to get out of the truck, but could not get her out by himself. He enlisted a bystander's help to get her out of her truck.
Harris died on 12 January 2006 as a result of the injuries he sustained in the accident. Defendant was indicted on 13 March 2006 for several traffic violations and involuntary manslaughter. On 2 November 2006, defendant was found guilty of, or responsible for, all charges. Judgment was arrested on all traffic violations, and defendant was sentenced to a term of sixteen to twenty months of incarceration for involuntary manslaughter. Defendant appeals.
Defendant first argues that the trial court committed plain error when it allowed an expert witness to testify that defendant's operation of his truck was the proximate cause of the accident and that the other drivers involved acted reasonably. We disagree.
The challenged testimony was admitted without objection.
In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion.
N.C. R. App. P. 10(b)(1) (2007). Having failed to object, defendant ordinarily would not have preserved this issue for appeal. However,
[i]n criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C. R. App. P. 10(c)(4) (2007). Defendant brought forward sixteen assignments of error from the record on appeal with respect to this argument. Only eight specifically and distinctly allege plain error. The remaining eight therefore are deemed abandoned.
Our Rules of Appellate Procedure also require that assignments of error "shall state plainly, concisely and without argumentation the legal basis upon which error is assigned." N.C. R. App. P. 10(c)(1) (2007). Of the remaining eight assignments of error brought forward with respect to this issue, two are based on North Carolina Rule of Evidence 403. However, defendant's argument does not discuss Rule 403. "Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned." N.C. R. App. P. 28(b)(6) (2007). Therefore, these two assignments of error are deemed abandoned, leaving only six assignments of error properly before us on this issue.
The North Carolina Supreme Court adopted the plain error rule in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983), stating that
the plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a " fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "`resulted in a miscarriage of justice or in the denial to appellant of a fair trial'" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can be fairly said "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
Id. at 660, 300 S.E.2d at 378 (alterations and emphasis in original) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). "Before deciding that an error by the trial court amounts to `plain error,' the appellate court must be convinced that absent the error the jury probably would have reached a different verdict." State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (citing Odom, 307 N.C. at 661, 300 S.E.2d at 378-79).
Defendant challenges the testimony of Edward Alexander Livesay, Jr. ("Livesay"), an accident reconstruction specialist. Specifically, defendant challenges the following exchange:
Q: Okay. What other conclusions did you reach, based on your research?
A: The actions of the drivers of the Saturn, automobile [Harris] and the Ford pickup truck, [Atkins] 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, [defendant's] 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 [defendant's], 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.
Q: What about the contributions of the Saturn, vehicle and the Ford vehicle?
A: I'm not aware of any contributions.
Q: Okay.
A: The evidence before the Court that I'm aware of is that both were at or near the speed limit of the area, both responded, were maintaining a proper lookout, and tried their best to avoid the collision from the evidence before us.
Defendant contends that Livesay's testimony violated North Carolina Rules of Evidence 702 and 704.
"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion." N.C. Gen. Stat. § 8C-1, Rule 702(a) (2005). "Testimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." N.C. Gen. Stat. § 8C-1, Rule 704 (2005). However, "an expert may not testify that a particular legal conclusion or standard has or has not been met, at least where the standard is a legal term of art which carries a specific legal meaning not readily apparent to the witness." State v. Ledford, 315 N.C. 599, 617, 340 S.E.2d 309, 321 (1986) (citing State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985)).
In the instant case, Livesay was qualified by the court as an expert in the field of accident reconstruction, based upon his specialized knowledge of the science and technology related to accident reconstruction. His opinions were formed in reliance upon his examination of the physical evidence obtained from the vehicles involved in the accident and at the scene.
Defendant contends that Livesay's statement — "The sole and proximate cause of the collision was the unusual actions and maneuvers of [defendant's] vehicle." — specifically connected defendant's conduct in driving the truck to Harris's death. He argues that pursuant to Ledford, "[t]he well-established rule is that opinion testimony to the effect that a defendant's conduct caused injury or death is clearly inadmissible as a legal conclusion." Id. at 619, 340 S.E.2d at 322 (emphasis in original). In Ledford, an expert witness testified that in his expert medical opinion, the injuries he observed were the proximate cause of decedent's death. The North Carolina Supreme Court held that the testimony related to a medical conclusion which the witness was fully qualified to make. "It clearly did not address a legal conclusion or standard. [The witness] could not and did not testify that, in his opinion, defendant's alleged conduct . . . caused [decedent's] subsequent death. . . . That question was properly left to the jury." Id. at 620, 340 S.E.2d at 322 (emphasis in original).
Here, the connection is even more attenuated. In the instant case, Livesay's testimony related to a scientific conclusion which he was qualified to reach. Livesay neither testified that, in his opinion, defendant's driving caused Harris's subsequent death, nor that his driving caused Harris's injuries. He neither testified to defendant's conduct in driving the pickup truck, nor to a causal connection to Harris's ultimate death. At most, Livesay's testimony leads to an inference that defendant's driving caused the accident. The legal conclusion left to the jury was whether defendant's driving caused Harris's subsequent death.
Defendant further contends that Livesay's testimony as to the reasonableness of Harris's and Atkins's driving was an improper conclusion about the legal standard of proximate cause. He cites 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), for the premise that "[i]t is the jury's domain, under appropriate instructions from the court, to apply the standard of the reasonable person to the facts in order to determine what was the proximate cause of the aggrieved party's injuries." Id. at 7, 392 S.E.2d at 637 (citing Williams v. Smith, 68 N.C. App. 71, 314 S.E.2d 279, cert. denied, 311 N.C. 769, 321 S.E.2d 158 (1984)).
The reasonable person standard is a negligence standard, generally inapplicable to criminal trials; however, "in a case in which defendant is charged with manslaughter by reason of his alleged culpable negligence, the negligence of the person fatally injured, or of a third person, is relevant and material on the question of proximate cause." State v. Harrington, 260 N.C. 663, 666, 133 S.E.2d 452, 455 (1963) (citing State v. Phelps, 242 N.C. 540, 89 S.E.2d 132 (1955)).
Livesay's testimony that "[t]he actions of the drivers of the Saturn automobile [Harris] and the Ford pickup truck [Atkins] just prior to the collision event were those of any other reasonable driver in a like circumstance" was a scientific opinion based upon his examination of the evidence. Harris and Atkins were obeying the speed limit, reduced their speed to avoid an accident, turned to avoid an accident, and otherwise acted in a reasonable manner. Livesay used the term "reasonable" in its ordinary sense, not in any legal sense.
Further, in Harrington, two children entered the roadway at night, on an asphalt road, wearing dark clothing and walking with, rather than against, traffic. The vehicle in front of the defendant had a better view of the children. As the defendant attempted to pass the vehicle in front of him, the other vehicle increased its speed, leaving the defendant little room to maneuver. Id. at 665, 133 S.E.2d at 454-55. Given these facts, whether the defendant's negligence could be excused by the contributory negligence of the children and the other driver was at issue. There is no evidence in the instant case that either Harris or Atkins were in any way contributorily negligent. Neither Livesay's testimony that the unusual actions of the black truck were the proximate cause of the accident, nor his testimony that Harris and Atkins drove reasonably, constitute improper expert opinions. Having thus concluded, we need not address whether Livesay's testimony constituted plain error.
Defendant next argues that the trial court erred in failing to intervene ex mero motu when the prosecutor repeatedly asserted that defendant lied during his testimony. We disagree.
Counsel generally are granted wide latitude in their closing arguments, with their control generally left to the discretion of the trial judge. State v. Tyler, 346 N.C. 187, 205, 485 S.E.2d 599, 609, cert. denied, 522 U.S. 1001, 139 L. Ed. 2d 411 (1997) (citing State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487 (1992)). "Counsel is permitted to argue the facts which have been presented, as well as reasonable inferences which can be drawn therefrom." State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986) (citations omitted). "The standard of review for assessing alleged improper closing arguments that fail to provoke timely objection from opposing counsel is whether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (citing State v. Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193 (1998), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80 (1999)).
Where defendant fails to object to an alleged impropriety in the State's argument and so flag the error for the trial court, "the impropriety . . . must be gross indeed in order for this court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it."
State v. Abraham, 338 N.C. 315, 338, 451 S.E.2d 131, 143 (1994) (alteration in original) (quoting State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979)).
To determine whether an argument is grossly improper, we must view the argument "in context and in light of the overall factual circumstances to which [it] refer[s]." State v. Alston, 341 N.C. 198, 239, 461 S.E.2d 687, 709 (1995), cert. denied, 516 U.S. 1148, 134 L. Ed. 2d 100 (1996) (citation omitted).
A prosecutor may argue to a jury that it should not believe a particular witness, "but he should not call him a liar." State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 345 (1967). By defendant's count, the prosecutor "used the term `whopper' twenty-four times in reference to [defendant]" in his closing argument. Defendant contends that the prosecutor "explicitly employed the term as a way to improperly assert that [defendant] lied."
Although prosecutors should not call defendants liars, to do so does not create per se reversible error. In State v. Davis, 291 N.C. 1, 229 S.E.2d 285 (1976), the defendant challenged the prosecutor's statement to the jury, "The State would argue and contend to you that his [defendant's] testimony was nothing but the testimony of a pathological liar." Id. at 12, 229 S.E.2d at 293 (alteration in original). The North Carolina Supreme Court reasoned that a lawyer may argue to the jury that they should not believe a witness and that the prosecutor's statement was a submission of defendant's credibility to the jury. Id.
Similarly, in Tyler, our Supreme Court rejected the defendant's contention that the trial court had erred by failing to intervene ex mero motu when the prosecutor commented that the defendant had put his "hand on the Bible and told about 35,000 whoppers and then he walked on it and did it." Tyler, 346 N.C. at 207, 485 S.E.2d at 610. There, several eyewitnesses had described the defendant's physical and emotional abuse of the victim, although the defendant denied any abuse. "Given this context, the prosecutor's argument was `no more than an argument that the jury should reject the defendant's testimony' because `his version of the events [was] unbelievable.'" Id. at 208, 485 S.E.2d at 610 (quoting State v., Solomon, 340 N.C. 212, 220, 456 S.E.2d 778, 784, cert. denied, 516 U.S. 996, 133 L. Ed. 2d 438 (1995)).
Having reviewed the entire closing argument in the instant case, we cannot say that the prosecutor's closing argument was "so grossly improper" that it was reversible error for the trial court not to intervene ex mero motu. Each incident defendant now challenges was accompanied by a discussion of defendant's version of events as compared to the testimony of other witnesses. As in Tyler and Davis, the central focus of the prosecution's argument was that defendant's testimony was not credible. Defendant's assignments of error as to this argument are without merit.
Finally, we note that defendant raised fifty-eight assignments of error in the record on appeal. Only twenty were specifically brought forward in his brief. Therefore, the thirty-eight assignments of error not set out in defendant's brief are deemed abandoned. See N.C. R. App. P. 28(b)(6) (2007).
No error.
Judges TYSON and ARROWOOD concur.
Report per Rule 30(e).