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State v. Scaturro

Court of Appeals of North Carolina

June 6, 2017


          Heard in the Court of Appeals 5 April 2017.

         Appeal by defendant from judgment entered 29 January 2015 by Judge Phyllis M. Gorham in New Hanover County Superior Court. No. 13 CRS 55758; 13 CRS 7020.

          Attorney General Joshua H. Stein, by Assistant Attorney General Anne Goco Kirby, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A. Goldman, for defendant-appellant.

          MURPHY, JUDGE.

         Michael Scaturro, Jr. ("Defendant") appeals from his convictions for felony hit and run and attaining habitual felon status. He was indicted for failing to remain at the scene of the crash in which he was involved. On appeal, he contends that the trial court erred by denying his motion to dismiss the felony hit and run charge on the grounds that the record did not contain sufficient evidence to show that he willfully and unlawfully failed to remain at the scene and, in the alternative, that his trial counsel provided him with constitutionally deficient representation by failing to preserve that error for appellate review. If the Court finds no error on that basis, Defendant instead argues he was denied his right to a unanimous jury verdict because the trial court's instructions permitted the jury to convict Defendant on the basis of either failure to remain or failure to return. Finally, in the alternative to his first two assignments of error, Defendant maintains that the trial court committed plain error by failing to instruct on an essential element of the offense - that a "willful" failure to remain or return is one "without justification or excuse." After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and applicable law, we conclude that the trial court's judgments should be overturned.


         On 6 July 2013, Christopher Jamie Eric Fisher ("Fisher") left home on his bicycle to go to his friend's house. As he rode up Gordon Road and approached the Farrington Farms Road intersection, he noticed a truck waiting to turn onto Gordon Road from Farrington Farm Road. Rather than continuing straight on his route up Gordon Road and thereby crossing in front of the truck, Jamie turned right onto Farrington Farm Road, planning to make a U-turn around a median to get back onto Gordon Road, so as to allow the truck a clear path. As he made the U-turn, Defendant struck Fisher with his car. As a result, Fisher was thrown from his bicycle and the left side of his head, shoulder, and elbow hit the pavement as he skidded across the road. The fall nearly severed Fisher's left ear from his head, and he was left profusely bleeding. Defendant got out of his car and told Fisher, "You pulled out in front of me." Then, Defendant retrieved a rag from his car and gave it to Fisher to hold against his head.

         Fisher called 911, but as the emergency operator began speaking to him, Defendant told Fisher that he would take him to the hospital. Fisher decided to go with Defendant, and he reported that Defendant drove "like a maniac to get [him] to the hospital." Although at trial Fisher testified that Defendant refused to provide his name during the drive to the hospital, Fisher, in an earlier, statement said that Defendant did provide his name. Upon exiting his vehicle at Cape Fear Hospital, Fisher made note of Defendant's license plate number before Defendant drove away.

         After checking into the emergency room, Fisher was transferred to New Hanover Hospital where he underwent surgery to remove his torn ear. He has had to return to the hospital several times for additional surgeries as well.

         Around 4:45 p.m., Trooper Michael A. Kirk ("Trooper Kirk") of the North Carolina Highway Patrol was dispatched to the accident scene and arrived just as the fire department was clearing it. At the time, Fisher's bicycle was still lying in the yard just off the roadway. Defendant did not return to the accident scene during the 30 to 45 minutes Trooper Kirk remained to wait for a wrecker and mark pertinent evidence. Moreover, Trooper Kirk did not receive any calls informing him that Defendant attempted to contact him, the highway patrol, or any other police agency during his investigation of the scene.

         After completing his initial on-scene investigation, Trooper Kirk went to the Cape Fear Hospital upon receiving information from the New Hanover County Sheriff's Department that a possible collision victim was being treated there. While at the hospital, Trooper Kirk spoke with Fisher and his mother. Fisher reported being hit by a car with Defendant's license plate number. Trooper Kirk contacted another trooper and asked him to respond to the address to which the vehicle bearing that license plate number was registered. After spending approximately 10 minutes at the hospital, Trooper Kirk returned to the accident scene for another 30 to 45 minutes in order to complete his investigation. Once again, Defendant did not return to the scene during that period, and the trooper sent to his address was unable to locate him there.

         On 8 July 2013 Trooper Kirk located Defendant and confronted him about the accident. Defendant readily admitted to being involved, and Trooper Kirk arrested him. After being read his Miranda rights, Defendant initially stated he was willing to speak with law enforcement; however, upon placing two phone calls, he refused to discuss the accident further.

         On 23 September 2013, Defendant was indicted for one count of felony hit and run resulting in serious bodily injury in violation of N.C. G.S. § 20-166(a). Specifically, the indictment charged that Defendant "unlawfully, willfully, and feloniously did fail to remain at the scene" in which he was involved until law enforcement completed its investigation and authorized him to leave. He was also indicted for having attained habitual felon status. Beginning on 28 January 2015, a jury trial was held in New Hanover County Superior Court before the Honorable Phyllis Gorham. Defendant moved to dismiss the charge of felony failure hit and run at the close of the State's evidence and at the close of all of the evidence, arguing that the State had not met its burden beyond a reasonable doubt and that "there is no jury question as a matter of law." The trial court denied Defendant's motions.

         The trial court instructed the jury that in order to find Defendant guilty of the offense, the State must prove six things beyond a reasonable doubt:

First, that the defendant was driving a vehicle.
Second, that the vehicle was involved in a crash.
Third, that a person suffered serious bodily injury in this crash. Serious bodily injury is bodily injury that creates or causes serious permanent disfigurement or permanent or protracted loss or impairment ...

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