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Motor Vehicles--felony death by vehicle--instruction--contributory negligence not a defense in criminal action
The trial court did not err in a felony death by vehicle case by denying defendant's
requested jury instruction on contributory negligence, because: (1) contributory negligence is not
a defense in a criminal action, and defendant's proposed instruction is counter to the
jurisprudence of this state; (2) intervening negligence would be relevant as to whether
defendant's actions were the proximate cause of decedent's death, but defendant did not request
such an instruction; (3) even assuming decedent was negligent, her negligence, if any, would be,
at most, a concurring proximate cause of her own death, and negligence must be such as to break
the causal chain of defendant's negligence in order for negligence of another to insulate
defendant from criminal liability; and (4) the State's evidence tended to show that defendant's
blood alcohol content was over twice the legal limit, and this impairment inhibited defendant's
ability to exercise due care and to keep a reasonable and proper lookout in the direction of travel.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General John W. Congleton, for the State.
Thorsen Law Office, by Haakon Thorsen, for defendant- appellant.
Danny Bailey (defendant) appeals his conviction for felony death by vehicle entered on 26 April 2006. See N.C. Gen. Stat. § 20-141.4(a1) (2005). He argues that the trial court committed reversible error by denying his request for a jury instruction on contributory negligence. We disagree and find no error.
Shortly after noon on 9 June 2003, defendant was operating a vehicle southbound on Highway 18/64 in Burke County, NorthCarolina. The highway is a two-lane road with a solid yellow line on the southbound lane and a broken yellow line in the northbound lane.
The State's evidence tended to show that defendant's vehicle was traveling behind a blue Ford Aspire being operated by Kathy Baker (Baker). David Henschen (Henschen) was traveling in the direction opposite to defendant and Baker. As Henschen approached the intersection of Highway 18/64 and Antioch Road, he observed Baker's vehicle come to a stop in the roadway in the southbound lane. Henschen testified to seeing smoke come from the tires of defendant's vehicle as defendant was approaching Baker's car. Henschen also witnessed defendant's vehicle collide with the rear of Baker's vehicle. The collision pushed Baker's vehicle into Henschen's travel lane. According to Henschen, he had no time to take evasive maneuvers and struck Baker's vehicle. Defendant's vehicle left 122 feet of skid marks prior to the point of impact with Baker's car and traveled another 102 feet after the collision. Baker was ejected from her car and died at the scene from her injuries.
Defendant was transported to the hospital. Once there, hospital personnel drew a blood sample from defendant. Tests of the blood sample yielded a blood alcohol concentration of 0.22. Defendant told hospital staff that he had consumed two beers and was taking Valium.
Approximately three and a half hours after the collision, Trooper W. A. Martin (Trooper Martin) arrived at the hospital andinterviewed defendant. Defendant told the trooper that he had consumed two beers. Trooper Martin observed that defendant had a strong odor of alcohol on his breath and that defendant was mushmouthed. Trooper Martin then requested a second blood sample be tested which yielded a blood alcohol concentration of 0.18. Trooper Martin also administered psychophysical tests to defendant in an effort to determine whether defendant was intoxicated. On the walk-and-turn test, defendant missed the line once. On the sway test, defendant did not follow all of Trooper Martin's instructions. On the finger-to-nose test, defendant missed his nose once and used the wrong hand twice. Trooper Martin concluded that defendant's performance on the tests was [f]air.
John Hennings, an expert in accident reconstruction analysis, testified that the damage to the cars was consistent with defendant's vehicle traveling slower than forty miles per hour when it struck Baker's car. Defendant testified that he had been drinking the night before and into the early morning of 9 June 2003. He said that he had been following Baker for some time and that she had been driving erratically before suddenly stopping in the highway. Defendant stated that he could not stop in time nor could he swerve to the side because there was a ditch off the shoulder of the road.
Defendant presents one issue for this Court's review: Whether defendant is entitled to a new trial because the trial court denied his request for a jury instruction on contributory negligence.
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