STATE OF NORTH CAROLINA
v. Union County
No. 01 CRS 13211
EDWARD ANDERSON
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards and Certified Legal Intern Kathryne E.
Hathcock, for the State.
Haakon Thorsen, for defendant-appellant.
LEVINSON, Judge.
Defendant was charged by citation with reckless driving to
endanger and with operating a vehicle without being registered.
From convictions of the charges in district court, he appealed to
superior court, where he was found guilty by a jury of the charges.
He was sentenced to a term of imprisonment of 45 days, suspended
with unsupervised probation for one year.
The State presented evidence tending to show the following: At
approximately 7:20 a.m. on 3 October 2001, an automobile operated
by defendant collided with a pickup truck headed north on Highway
601 in Monroe. Two witnesses who were operating vehicles behind
the pickup truck testified that they saw defendant's vehicle
proceed at an accelerated rate of speed from a gasoline stationlocated at the intersection of Highway 601 and Highway 218, enter
the roadway of Highway 601, and collide with the pickup truck. In
the opinion of the investigating officer, defendant's vehicle
traveled through the parking lot of the gasoline station at a speed
of 55 miles per hour. The investigating officer also determined
that the temporary license plate displayed on defendant's vehicle
had expired.
Defendant testified that as he prepared to stop at the
intersection headed westbound on Highway 218, the brakes on his
vehicle failed. He maneuvered his vehicle into the parking lot of
the gasoline station to avoid a collision at the intersection. He
brought his vehicle to a stop when it was struck by the pickup
truck. He possessed a current license tag, which was inside his
vehicle, but he had not attached it to his vehicle.
The sole question presented is whether the court committed
plain error by refusing to allow defendant to argue the doctrine of
last clear chance to the jury. The record shows that the court
denied defendant's request to make this argument and that defendant
did not object to the court's ruling. Defendant did not request an
instruction to the jury on the principle of last clear chance and
he did not object to the court's failure to give such instruction.
Our Supreme Court has established that “plain error analysis
applies only to jury instructions and evidentiary matters.” State
v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39-40 (2002). Because
the question presented does not involve a jury instruction or an
evidentiary issue, it is not properly before the Court. Moreover, defendant is not entitled to relief under “plain error” analysis
because he can point to no instructional mistake having a probable
impact upon the jury's verdict. See State v. Odom, 307 N.C. 655,
660, 300 S.E.2d 375, 378 (1983). Defendant does not cite any law
for the proposition that the civil law doctrine of last clear
chance is a defense to a charge of reckless driving. Regardless,
the court instructed the jury consistent with Pattern Jury
Instruction 102.15, without objection by the State, that defendant
“would be excused from having chosen a course that resulted in a
collision if under like circumstances a reasonable and prudent
person would have followed the same course.” Moreover, the
evidence of defendant's guilt is compelling. Under these
circumstances, we conclude that the outcome probably would have
been the same had the instruction been given.
No error.
Chief Judge EAGLES and Judge BRYANT concur.
Report per Rule 30(e).
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