STATE OF NORTH CAROLINA
v
.
Iredell County
No. 03 CRS 58699
ALLAN R. STITT, SR.,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
Charlotte Gail Blake, for defendant-appellant.
HUDSON, Judge.
At the 10 May 2005 criminal session of the Superior Court in
Iredell County, defendant Allan R. Stitt, Sr., was indicted for
second-degree murder and driving while impaired (“DWI”) in
connection with the death of Kathryn Tolbert Collins. Defendant
timely filed a motion to suppress the results of a blood test.
Following a hearing, the court denied defendant's motion and the
jury convicted defendant on both counts. The court sentenced
defendant to twelve months on the DWI charge and 145 to 183 months
on the second-degree murder charge. Defendant appeals. As
discussed below, we find no error.
The evidence tended to show the following: On 28 August 2003,
William and Kathryn Collins were returning home from Charlotte toMount Airy after transporting a car via tow dolly to their
daughter, a college student at the University of North Carolina at
Charlotte. The Collins were pulling their daughter's broken-down
car on a tow dolly behind their pickup truck. The dolly's lights
were not working, but Mr. Collins had turned on the car's parking
lights to make it visible. At approximately 9:30 p.m., as Mr.
Collins drove north on I-77, he saw a red pickup truck come up
close behind him, and then try to pass him on the right in the
breakdown lane. Defendant clipped the guardrail and then collided
with the Collins' truck and tow dolly. The Collins' truck went
over the guardrail and off the road, landing on its side. Mrs.
Collins died at the scene and Mr. Collins suffered serious injuries
and was hospitalized for twelve days. Several other drivers
testified that, prior to the accident, they had seen defendant
tailgating, flashing his lights and driving in an aggressive and
reckless manner.
Trooper Brad Hyatt of the North Carolina Highway Patrol
arrived on the scene, and after checking on the Collins, spoke to
defendant who had remained in his truck. Trooper Hyatt noted that
defendant smelled of alcohol and had slurred, mumbled speech, and
seemed disoriented. Trooper Travis Baity arrived at the scene and
saw several beer cans in and around defendant's truck. Trooper
Baity testified that defendant had red, glassy eyes, a flushed
face, slurred speech and was unable to recite the ABCs. Both
Troopers and an EMT at the scene formed the opinion that defendant
was intoxicated. Defendant refused to submit to an Alco-Sensortest, and Troutman Fire and Rescue transported him to Davis
Regional Hospital.
Trooper Baity obtained a search warrant for a blood sample
from defendant, which subsequently revealed defendant's blood
alcohol concentration to be 0.09 grams per 100 milliliters. An
expert witness testified that defendant's blood alcohol
concentration would have been about 0.15 at the time of the crash.
Defendant first argues that the court erred in denying his
motion to suppress the blood test results obtained pursuant to the
search warrant. We do not agree.
Defendant contends that the search warrant was defective and
thus violated his constitutional rights and rights under N.C. Gen.
Stat. § 15A-974. Defendant also contends that the court erred in
considering the testimony of Trooper Baity about what he told the
magistrate when obtaining the warrant. The State acknowledges that
the warrant application contained inadvertently false information,
but asserts that the application also contained sufficient truthful
allegations to establish probable cause.
Our standard of review of the trial court's ruling on the
motion to suppress is well-established:
[T]he trial court's findings of fact are
conclusive on appeal if supported by competent
evidence, even if the evidence is conflicting.
Any conclusions of law reached by the trial
court . . . must be legally correct,
reflecting a correct application of applicable
legal principles to the facts found.
State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120-21 (2002),
cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003) (internalcitations and quotation marks omitted). In addition, where a
defendant fails to specifically challenge any of the trial court's
findings of fact relating to the motion to suppress or to clearly
identify in his brief which of the trial court's findings of fact
are not supported by the evidence, “this Court's review is limited
to whether the trial court's findings of fact support its
conclusions of law.” State v. Cheek, 351 N.C. 48, 63, 520 S.E.2d
545, 554 (1999), cert. denied, 530 U.S. 1245, 147 L. Ed. 2d 965
(2000).
An affidavit supporting a search warrant is presumed valid.
State v. Monserrate, 125 N.C. App. 22, 30, 479 S.E.2d 494, 500
(1997). “Where, however, defendant makes a substantial preliminary
showing that a false statement was knowingly and intentionally, or
with reckless disregard for the truth, included by the affiant in
the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, he is entitled to a
hearing at his request.” Id. at 30-31, 479 S.E.2d at 500. Where
information that is false is “included in the affidavit as a result
of exaggeration, reckless disregard, or even bad faith,” the error
is harmless if “the affidavit's remaining content is sufficient to
establish probable cause.” Id. at 32, 479 S.E.2d at 501.
Here, defendant has not assigned error to any specific finding
of fact in the trial court's order denying his motion to suppress,
nor has he clearly identified an erroneous finding in his brief.
The trial court made extensive findings about the accurate and
relevant information contained in the search warrant application,including sworn statements from Trooper Baity that: he detected
the odor of alcohol on defendant's breath and saw a beer can under
defendant's vehicle, that defendant had red, glassy eyes and a
flushed face, was belligerent, and was unable to correctly recite
the alphabet, all of which in Trooper Baity's experience suggested
defendant had consumed alcohol. These factual findings support the
court's conclusion that the truthful and accurate information
contained in the application was “sufficient to establish probable
cause for purposes of the magistrate issuing a search warrant.”
This assignment of error is without merit.
Defendant next argues that the trial court erred in admitting
testimony about defendant's prior speeding convictions under Rule
404(b). We do not agree.
Defendant contends that the admission of evidence about his
prior convictions for speeding for the purpose of showing malice
was improper under N.C. Rule Of Evidence 404(b). However, we
conclude that defendant failed to preserve this issue for our
review. Defendant testified on his own behalf at trial, and the
State questioned him about four prior speeding convictions.
Defendant admitted each conviction without objection from his
counsel. Even if defendant had preserved this issue, he would not
prevail. Our Courts have repeatedly held that “prior driving
convictions of a defendant are admissible to show malice, and the
showing of malice in a second-degree murder case is a proper
purpose within the meaning of Rule 404(b).” State v. Edwards, 170
N.C. App. 381, 385, 612 S.E.2d 394, 396 (2005) (internal citationand quotation marks omitted). We overrule this assignment of
error.
Defendant also argues that the court erred in denying his
motion to dismiss for insufficiency of the evidence. We disagree.
Defendant contends that the State failed to prove malice, one
of the elements of second-degree murder. When a defendant moves
for dismissal, “'the question for the Court is whether there is
substantial evidence (1) of each essential element of the offense
charged, or of a lesser offense included therein, and (2) of
defendant's being the perpetrator of such offense.'” State v.
Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting State
v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). In
reviewing challenges to the sufficiency of evidence, this Court
must view the evidence in the light most
favorable to the State, giving the State the
benefit of all reasonable inferences.
Contradictions and discrepancies do not
warrant dismissal of the case but are for the
jury to resolve. The test for sufficiency of
the evidence is the same whether the evidence
is direct or circumstantial or both.
Circumstantial evidence may withstand a motion
to dismiss and support a conviction even when
the evidence does not rule out every
hypothesis of innocence.
Id. at 596, 573 S.E.2d at 869 (quoting State v. Barnes, 334 N.C.
67, 75-6, 430 S.E.2d 914, 918-19 (1993)).
As discussed supra, evidence of defendant's four prior
speeding convictions was properly admitted to show malice. In
addition, the State presented evidence that defendant was driving
while impaired on a congested highway at night, tailgating other
vehicles and flashing his lights at them, and then tried to pass avehicle on the right in the emergency lane while speeding. Viewing
this evidence in the light most favorable to the State and giving
the State the benefit of all reasonable inferences, this evidence
was sufficient to establish malice. We overrule this assignment of
error.
No error.
Judges WYNN and STEPHENS concur.
Report per Rule 30(e).
The judges participated and submitted this opinion for filing
prior to 1 January 2007.
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