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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. MICHAEL RAY HEINRICY
Filed: 5 June 2007
1. Constitutional Law_chemist's report from prior arrest_right of
confrontation_business records exception
A chemist's report from a prior impaired driving conviction in South Dakota was not
testimonial, did not violate defendant's confrontation rights, and was admissible under the
business records exception to the hearsay rule in this prosecution for second-degree murder,
driving while impaired, and other offenses in North Carolina. Moreover, there was no prejudice
because the State presented sufficient other evidence of impairment in the South Dakota
conviction, as well as evidence of other impaired driving incidents and multiple motor vehicle
2. Sentencing_aggravated--post-Blakely, pre-statute_special verdict
The trial court did not err in imposing an aggravated sentence after the decision in
Blakely v. Washington, 542 U.S. 296, but before the statutory amendment, where the court
complied with the limitations for a special verdict.
Appeal by defendant from judgment entered 8 November 2005 by
Judge Ronald K. Payne in Buncombe County Superior Court. Heard in
the Court of Appeals 23 April 2007.
Roy Cooper, Attorney General, by Isaac T. Avery, III, Special
Deputy Attorney General, for the State.
Glover & Petersen, P.A., by Ann B. Petersen, for defendant-
MARTIN, Chief Judge.
Michael Ray Heinricy (defendant) was convicted by a jury of
the second degree murder of Clifton Lloyd Turner (Turner),
driving with no operator's license, driving while impaired, and
felony hit and run when personal injury is involved. The trial
court arrested judgment on the charges of no operator's license and
driving while impaired. Defendant appeals from the judgmentsentered upon his convictions of second degree murder and felony hit
The State presented evidence tending to show that on 17 March
2005, Officer Dru Cosner observed what he believed to be an illegal
drug purchase involving two individuals in a gold Dodge Intrepid.
Officer Cosner pulled the vehicle over on Sweeten Creek Road at a
gravel driveway thirty feet south of the Hot Spot convenience
store. Lieutenant Devin West arrived to offer assistance. The
driver was brought back to a drug rehabilitation facility by
Lieutenant West and the passenger was arrested. At Officer
Cosner's request, a tow truck was dispatched to tow the Dodge
Intrepid. Officer Sean Aardema arrived at the scene and parked his
patrol car in the Hot Spot parking lot. Clifton Turner arrived
with his tow truck and parked in the southbound lane of travel
close to the gravel driveway. The tow truck's yellow lights and
flashing headlights were in operation to alert oncoming traffic to
move into the left lane. The wrecker and its lights were visible
to an approaching car at all points within 1325 feet heading
southbound on Sweeten Creek Road.
Officer Cosner left to transport his suspect to the jail.
Around this time, Officer Victor Morman and Officer Scott Muse
arrived and parked their patrol cars in the Hot Spot parking lot.
Turner began loading the Dodge onto the tipped down bed of the tow
truck when the officers heard a loud crash. The officers turned
around to see a 1995 Ford Contour landing top down on the road.
The officers got into and positioned their patrol cars to guard thescene. Turner was found lying in the roadway. He had been hit by
the Contour and sustained significant injuries. Officer Aardema
drove past the wrecker toward defendant, who was on his knees next
to the wrecked Contour. Defendant got up and began running into a
field. Officer Aardema caught up with and arrested him. Defendant
had a strong odor of alcohol and was having difficulty walking.
Defendant was taken to the hospital and blood was drawn with his
consent. The lab results from his blood sample showed a level of
alcohol of 0.19%. In addition, defendant blew a 0.15% on a
breathalyzer and failed field sobriety tests administered at the
Turner died in the emergency room as a result of massive
trauma to the lower extremities and the pelvis. An investigation
of the accident scene uncovered tire impressions from the
defendant's vehicle on the platform of the wrecker. Defendant told
investigators that at 4:45 p.m. on the day of the accident, he went
to the Polar Bar, a drinking establishment. Afterward, he went to
the Depot Bar, which sells alcohol and has adult entertainment.
Defendant then went to McDonald's and purchased three value meals.
Defendant did not have a valid North Carolina driver's license.
The State introduced evidence related to defendant's history
of drinking and driving, showing that defendant had been convicted
of driving while impaired in Buncombe County on 14 August 2003. In
addition, he had been convicted of driving while impaired in South
Dakota on 11 April 2001, and of refusing to take an implied consenttest in Minnesota, after having operated a commercial vehicle while
having the odor of alcohol about his person.
Defendant testified in his own behalf, admitting each of his
prior convictions caused by alcohol consumption and driving. On 17
March 2005, he went to the Polar Bar. At the bar, defendant drank
three or four beers. He left around 7:30 p.m. and went to the
Depot Bar were he drank a beer or two and a drink called a
Derailer. After leaving the bar, defendant picked up food at
McDonald's. Defendant testified that as he approached the Hot
Spot, he was looking down while searching for french fries.
Immediately before the accident, defendant noticed the patrol cars
in the Hot Spot parking lot. Defendant did not remember specifics
related to the accident.
 Defendant argues that the trial court committed reversible
error in admitting the affidavit of a chemist, Brad Johnson,
containing defendant's blood alcohol level stemming from his 2001
DWI conviction in South Dakota. Specifically, defendant contends
that the challenged affidavit (1) was inadmissible hearsay that
cannot qualify under the business records exception and (2)
violated defendant's state and federal constitutional right to
confrontation. At trial, defendant objected to the affidavit's
admission only on proffered grounds, due process and
confrontation. As a result of defendant's failure to object to
the admission of the evidence as hearsay, he may not now argue that
the evidence does not qualify under the business records hearsayexception. State v. Brigman, 178 N.C. App. 78, 90-91, 632 S.E.2d
498, 506 (2006).
Testimonial statements of a witness absent from trial may be
admitted only where the declarant is unavailable, and only where
defendant has had a prior opportunity to cross-examine. Crawford
v. Washington, 541 U.S. 36, 59, 158 L. Ed. 2d 177, 197 (2004). At
trial, a voir dire hearing was held concerning the admissibility of
the affidavit. No evidence was submitted suggesting that the
defendant had a prior opportunity to cross-examine Brad Johnson.
Therefore, we must determine whether the affidavit in this case is
testimonial in nature and, thus, inadmissible under Crawford. We
hold that the affidavit is nontestimonial in nature and does not
violate defendant's rights to confrontation.
Crawford provided only a limited definition of testimonial
evidence, indicating that at a minimum, the term covered prior
testimony at a preliminary hearing, before a grand jury, or at a
former trial; and to police interrogations. Id. at 68, 158 L. Ed.
2d at 203. It was, however, suggested in dicta that business
records were not testimonial in nature. Id. at 56, 158 L. Ed. 2d
at 195-96 (describing hearsay exceptions as covering statements
that by their nature were not testimonial _ for example, business
records[.]) [B]usiness records are neutral, are created to serve
a number of purposes important to the creating organization, and
are not inherently subject to manipulation or abuse. State v.
Forte, 360 N.C. 427, 435, 629 S.E.2d 137, 143 (2006). Our Supreme
Court has previously held that a chemical analyst's affidavitprovides one example of the sort of evidence that the traditional
business and public records exceptions to the hearsay rule intended
to make admissible. State v. Smith, 312 N.C. 361, 374-75, 323
S.E.2d 316, 324 (1984).
Following Crawford, our Courts have held that business
records, even when created for law enforcement purposes, are
nontestimonial in nature.
[L]aboratory reports or notes of a laboratory
technician prepared for use in a criminal
prosecution are nontestimonial business
records only when the testing is mechanical,
as with the Breathalyzer test, and the
information contained in the documents are
objective facts not involving opinions or
conclusions drawn by the analyst.
State v. Cao, 175 N.C. App. 434, 440, 626 S.E.2d 301, 305 (2006).
In Cao, the defendant twice sold crack cocaine to an undercover
detective. Id. at 435, 626 S.E.2d at 302. The detective sealed
the drugs and sent them to a testing laboratory technician. Id. at
435-36, 626 S.E.2d at 302. At trial, the technician did not
testify and the detective read into evidence the technician's
laboratory reports identifying the evidence as cocaine. Id. at
436, 626 S.E.2d at 302. This Court concluded that the record did
not contain the necessary information about the procedures used to
identify the presence of cocaine in a substance so as to ascertain
whether the testing was mechanical and whether the information
contained in the report was limited to objective facts. Id. at
440, 626 S.E.2d at 305; see also State v. Melton, 175 N.C. App.
733, 739, 625 S.E.2d 609, 613 (2006) (applying the Cao analysis,
this Court was unable to determine whether a laboratory reportdiagnosing the defendant with genital herpes was arrived at through
mechanical means). This Court in both Cao and Melton held that
regardless of the admissibility of the lab reports, any error in
their admission was harmless beyond a reasonable doubt. Cao, 175
N.C. App. at 440-41, 626 S.E.2d at 305; Melton, 175 N.C. App. at
739, 625 S.E.2d at 613.
In addition, our Supreme Court has upheld a nonmechanical
report as nontestimonial where the prosecution sought the admission
of a lab report examining samples and identifying fluids. See
Forte, 360 N.C. at 437, 629 S.E.2d at 144. The report was
described as an objective analysis of the evidence, along with
routine chain of custody information, that did not bear witness
against a defendant. Id. at 435, 629 S.E.2d at 143. The agent who
prepared the report was found to have no interest in the trial's
outcome. Id. Ultimately, the report was found to be neutral,
having the power to exonerate as well as convict. Id.
Here, the State called the arresting officer from defendant's
2001 DWI conviction, former deputy sheriff Jeff Merrill
(Merrill). During his testimony, Merrill was asked to identify
the affidavit of Brad Johnson, the chemical analyst:
Q: What I'm showing you now I've marked for
identification purposes as State's Exhibit 56,
and see if you can recognize that affidavit of
a Mr. Brad Johnson.
Q: And what is that affidavit of Mr. Brad
A: It's the percentage of alcohol _ percentage
of weight of ethanol in his bloodstream.
Q: And he signed the authentication of this
Q: And he signed it when?
A: January 12th, 2001.
Q: And on Block No. 2 it lists on the top of
that page _ would you read that out?
A: That on 12-8 of 2000 I received custody of
sample submitted by Merrill by direct deposit
of the Sioux Falls Police Department,
Identification Section locked box. Said
sample is identified as a sample from
[defendant], 008316. This sample is assigned
to Laboratory Sample No. 2000120801H for
Q: And the third sentence, what does that
A: That in my capacity as a degreed chemist I
tested the above using gas chromatograph head
space method on 12-12-2000, which the results
of my examination is [sic] as follows: The
exhibit contains 0.17 percent by weight
Brad Johnson determined defendant's blood alcohol content
using the gas chromatograph head space method. Special Agent Aaron
Joncich, tendered as an expert in forensic chemistry, described in
detail a seemingly similar process used to arrive at defendant's
blood alcohol level on 17 March 2005. Much like the lab report in
Forte, Johnson's affidavit was limited to his objective analysis of
the evidence and routine chain of custody information. Although
the affidavit was prepared with the understanding that its use in
court was probable, Johnson had no interest in the outcome of the
trial. The affidavit was nontestimonial and properly admitted. As in Cao and Melton, even assuming, arguendo, the admission
of the chemist's affidavit was error, we conclude that any error
was harmless beyond a reasonable doubt. The test for prejudicial
error is whether there is a reasonable possibility that, had the
error in question not been committed, a different result would have
been reached at the trial out of which the appeal arises. N.C.
Gen. Stat. § 15A-1443(a) (2005). Prior to the admission of Brad
Johnson's affidavit, the trial court issued an instruction limiting
the evidence to proof of malice sufficient for second degree
murder. See State v. Edwards, 170 N.C. App. 381, 386-87, 612
S.E.2d 394, 397 (2005) (indicating that evidence of prior DWI and
other traffic offenses is admissible to show the malice necessary
to support a second degree murder conviction). Here, the State
presented sufficient evidence of impairment relating to the South
Dakota DWI charge beyond defendant's blood alcohol level. Merrill
testified as to defendant's admission that he consumed two Black
Russians, defendant's failure to satisfactorily perform field
sobriety tests and Merrill's overall opinion that defendant was
impaired. In addition, the State presented evidence of multiple
motor vehicle law violations, such as speeding and driving on a
sidewalk in a commercial vehicle. The defendant admitted to
driving a commercial vehicle after drinking in Minnesota and
refusing to have his blood alcohol level tested. Evidence was also
entered of defendant's August 2003 DWI conviction in Buncombe
Q: Mr. Heinricy, it didn't take the first time
that you were stopped for driving whileimpaired in Minnesota, it didn't take the
second time that you were stopped for driving
while impaired in South Dakota, and it didn't
take the third time that you were stopped for
driving while impaired in North Carolina to
change your attitude and feelings on the
effects of you drinking and driving. Is that
what you're telling these folks right here?
It took you killing somebody to change your
feelings about consuming alcohol and driving?
A: Just that I was hard headed and didn't
Defendant's assignment of error is overruled.
 Next, defendant contends the trial court erred in imposing
an aggravated sentence for second degree murder. In Blakely v.
, 542 U.S. 296, 301, 159 L. Ed. 2d 403, 412 (2004), the
Supreme Court held that a defendant's constitutional right to a
jury trial requires that jurors find, beyond a reasonable doubt,
facts which increase the penalty for a crime beyond the prescribed
statutory maximum. Statutory maximum was defined as the
maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.
. at 303, 159 L. Ed. 2d at 413 (emphasis removed). The North
Carolina Legislature responded, amending N.C.G.S. § 15A-1340.16 on
30 June 2005 to comply with the holding in Blakely
Defendant's indictment relating to the second degree murder
charge alleged that [t]he defendant knowingly created a great risk
of death to more than one person by means of a weapon or device
which would normally be hazardous to the lives of more than one
person. N.C. Gen. Stat. 15A-1340.16 (d)(8) (2006). The trialcourt submitted this alleged aggravating factor to the jury. The
jury found this aggravating factor to be proven beyond a reasonable
doubt and the defendant was sentenced accordingly. Defendant
argues that because the crime occurred prior to the effective date
of the amended N.C.G.S. § 15A-1340.16, no court had jurisdiction or
power to impose a sentence in the aggravated range.
In State v. Johnson
, 181 N.C. App. 287, 639 S.E.2d 78 (2007),
this Court addressed essentially the same question presented here,
that of whether the trial court took the appropriate steps to
submit aggravating factors to a jury following the Blakely
but prior to the effective date of N.C.G.S. § 15A-1340.16 (2006).
Defendant does not assert that the trial court
violated his rights under Blakely
, but that
the trial court acted without authority when
it fashioned its own remedy to comply with
before our legislature had amended the
structured sentencing act. However, the North
Carolina Supreme Court recently addressed this
issue, where the trial court allegedly lacked
a procedural mechanism by which to submit the
challenged aggravating factor to the jury,
and concluded that North Carolina law permits
the submission of aggravating factors to a
jury using a special verdict. State v.
, 361 N.C. 41, 46, 638 S.E.2d 452,
A special verdict is a common law
procedural device by which the jury
may answer specific questions posed
by the trial judge that are separate
and distinct from the general
verdict. Despite the fact that the
General Statutes do not specifically
authorize the use of special
verdicts in criminal trials, it is
well-settled under our common law
that special verdicts are
permissible in criminal cases.
Special verdicts, however, are
subject to certain limitations.After the United States Supreme
Court decision in United States v.
, [515 U.S. 506, 115 S.Ct.
2510, 132 L.Ed. 2d 444 (1995)] a
special verdict in a criminal case
must not be a true special verdict
-- one by which the jury only makes
findings on the factual components
of the essential elements alone --
as this practice violates a criminal
defendant's Sixth Amendment right to
a jury trial. Thus, trial courts
using special verdicts in criminal
cases must require juries to apply
law to the facts they find, in some
cases straddl[ing] the line between
facts and law as a mini-verdict of
sorts. Furthermore, requests for
criminal special verdicts must
require the jury to arrive at its
decision using a beyond a reasonable
doubt standard, since a lesser
standard such as preponderance of
the evidence would violate a
defendant's right to a jury trial.
Aside from these limitations,
however, we are aware of no limits
on our trial courts' broad
discretion to utilize special
verdicts in criminal cases when
appropriate. It is difficult to
imagine a more appropriate set of
circumstances for the use of a
special verdict than those existing
in the instant case, in which a
special verdict in compliance with
the above limitations would have
safeguarded defendant's right to a
jury trial under Blakely
. . . .
[P]rior to the Blakely Act, special
verdicts were the appropriate
procedural mechanism under state law
to submit aggravating factors to a
, 181 N.C. App. at 293, 639 S.E.2d at 81-82 (quoting
, 361 N.C. at 46-49, 638 S.E.2d at 456-58). As in
, we conclude that the trial court complied with thelimitations for a special verdict and we overrule defendant's
assignment of error.
Judges STEELMAN and STEPHENS concur.
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