in the Court of Appeals 13 March 2019.
by defendant from judgment entered on or about 22 September
2017 by Judge Mark E. Powell in Superior Court, Madison
County No. 15CRS000352.
Attorney General Joshua H. Stein, by Assistant Attorney
General Kathryne E. Hathcock, for the State.
& Petersen, P.A., by Ann B. Petersen, for
appeals his conviction for felony death by vehicle. The trial
court erred by admitting lay opinion testimony identifying
defendant as the driver of the vehicle at the time of an
accident in which an occupant of the car was killed where the
expert accident reconstruction analyst was unable to form an
expert opinion based upon the same information available to
the lay witness. We therefore reverse defendant's
conviction and grant defendant a new trial.
August 2014, defendant and Danielle Mitchell were both in a
car when it ran off the road and wrecked; both were ejected
from the car and Ms. Mitchell died at the scene from her
injuries. Defendant was indicted for felony death by vehicle.
The primary factual issue at trial was whether defendant was
driving at the time of the accident.
State's evidence showed that on the morning of 1 August
2014, defendant and Ms. Mitchell decided to go to Asheville
to find some "[w]hite lightning" liquor in a
"[k]ind of an old and red, burgundy looking" car
that "might've been a Dodge" that defendant
drove. Defendant and Ms. Mitchell spent time together often
during the year preceding the wreck, either at her home or
the home of Ms. Mitchell's father, Mr. Daniel Seay, where
they would "hang out, talk . . . drink, smoke, watch
football games, baseball games." Ms. Mitchell and her
father lived about a quarter of a mile from each other, and
defendant's understanding was that Ms. Mitchell did not
have her own car.
August 2014, defendant and Ms. Mitchell left before lunch and
defendant was driving as they left Mr. Seay's house, and
Mr. Seay testified that he had "never seen nobody else
ever drive [defendant's] car." Mr. Seay recalled
that "[defendant] wouldn't let nobody behind the
wheel of that car[, ]" and "[t]here was a few times
that he, he had to move to let somebody out, and he would
always move the car. Nobody touched his car." Mr. Seay
testified that his daughter, Ms. Mitchell, had ridden in the
car before but she always sat in the front passenger seat.
before 10:00 p.m. that evening, defendant and Ms. Mitchell
called Mr. Seay from a gas station and told him that the car
was overheating. Defendant told Mr. Seay, "She's
flipping out," and reassured Mr. Seay they were all
right and would "be there in a few minutes."
Shortly thereafter, Mr. Seay heard sirens close to the house.
Around 10:10 p.m., Trooper Jason Fox of the North Carolina
State Highway Patrol received a dispatch call regarding a
vehicle crash at U.S. 25-70 near the Brush Creek area. After
arriving at 10:22 p.m., Trooper Fox spoke with EMS who
advised that two occupants had been ejected from the vehicle.
One of the occupants, later identified as Ms. Mitchell, was
already deceased. Defendant suffered from a severe head
injury in the accident and had no memory of what happened on
the day of the accident.
was also seriously injured, and EMS called for a helicopter
to transport him to the hospital. EMS stabilized
defendant's neck in a "C" collar and placed him
on a backboard. While EMS was working with defendant, he was
screaming, hyperventilating, and combative; he was ultimately
sedated for flight.
the crash resulted in a fatality, Trooper Fox notified his
supervisor. Trooper Fox also found a witness to the wreck,
Mr. David Martin. Mr. Martin reported that he was traveling
on the highway toward Hot Springs when an "orange- ish,
reddish" car came up behind him "extremely
fast" such that Mr. Martin "did not see it coming
before it was basically on top of [him]." Mr. Martin
estimated that the car was traveling twice as fast as he was.
The car passed Mr. Martin on the left side in a no-passing
zone, "started . . . a left turn and . . . ran off the
right side of the road, and when it did, dust and rocks and
stuff started flying." At that point, Mr. Martin saw
"just headlights and taillights. Looked like [the car]
was rolling, flipping." Mr. Martin stopped immediately
to help and call 911. Mr. Martin saw a woman, apparently
deceased, and a man further up the road, moving a little but
Sorrells and Carver, along with First Sergeant Bray, went to
the scene to assist Trooper Fox with his investigation and
completion of the field sketch. Trooper Fox took photographs
of the scene. The vehicle involved in the crash, a red or
burgundy 2001 Dodge Neon registered to defendant's
mother, was off the left shoulder of the roadway facing
towards Hot Springs. Trooper Fox found a sealed beer bottle
by Ms. Mitchell's body, a Miller Highlife can and an
empty Corona box in the debris path, and Corona beer bottle
caps inside the vehicle and near Ms. Mitchell's body.
Trooper Fox believed the crash involved alcohol use because
of "the bottle caps located in the vehicle, the
still-closed beer bottle that was located in the debris path
. . . there was a ...