State v. Spivey

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-656
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
STATE OF NORTH CAROLINA
v. Robeson County
Nos. 11 CRS 5000
09 CRS 57970
09 CRS 706839
09 IFS 707165
09 CRS 8828
TERRY DEAN SPIVEY, SR.
Appeal by defendant from judgment entered 19 October 2012
by Judge James Gregory Bell in Robeson County Superior Court.
Heard in the Court of Appeals 11 December 2013.
Roy Cooper, Attorney General, by Kathryne E. Hathcock,
Assistant Attorney General, for the State.
T. Craig Wright for defendant-appellant.
STEELMAN, Judge.
Where the exclusion of photographs of the scene of the
collision would not have had a probable impact on the outcome of
trial, the trial court did not commit plain error. Where other
evidence supported the finding that defendant was the driver of
the vehicle, the admission of a hearsay statement as to the
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driver’s identity was harmless error. Where defendant failed to
offer legal arguments to support the exclusion of medical
reports, this argument is deemed abandoned. Where defendant was
not sentenced for both manslaughter and felony death by vehicle,
the indictment alleging both offenses was not fatally flawed.
Where the State presented evidence that defendant was found at
the scene of the collision, pinned beneath the steering wheel,
there was sufficient evidence that defendant was operating the
vehicle at the time of the collision. The trial court did not
err in denying defendant’s motion to dismiss at the close of all
of the evidence.
I. Factual and Procedural Background
On 2 October 2009, Terry Dean Spivey, Sr., (defendant)
attended a cookout at the home of his mother, along with his
wife and six year-old granddaughter. Defendant consumed alcohol
at the cookout. Defendant got into an altercation with his
half-brother and stepfather, and left with his wife and
granddaughter. Shortly thereafter, defendant returned, and
smashed the windshields of his mother’s and stepfather’s
vehicles. Defendant again departed.
At roughly 9:30 p.m. that evening, Lori and Jimmy Chavis
heard a “loud bang sound” outside of their home, and discovered
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defendant’s vehicle in a ditch against an uprooted pine tree.
Beer cans were scattered in the roadway and ditch. Mr. Chavis
helped defendant’s granddaughter from the vehicle, and Mrs.
Chavis’ mother cleaned up the girl’s bloody nose until emergency
responders arrived. Defendant requested assistance getting out
of the vehicle, but could not be removed because his legs were
pinned beneath the steering wheel. Mrs. Chavis noted that
defendant smelled of alcohol.
Defendant’s son arrived at the scene of the collision, and
observed defendant pinned beneath the steering column.
Defendant’s wife informed defendant’s son that she was dying.
Emergency responders found defendant pinned in the driver’s
seat by the steering wheel, his knees trapped under the
dashboard. The driver’s seat had to be forcibly repositioned to
remove defendant. Defendant was not wearing a seatbelt, but
insisted that he had been wearing one at the time of the
collision. Assistant Chief Elaine Dixon-Parker of the South
Robeson Rescue Squad testified that defendant’s injuries were
inconsistent with seatbelt usage, and defendant admitted at
trial that he was not wearing a seatbelt at the time of the
collision. The extraction team observed that defendant smelled
of alcohol, that his breathing was heavy, that his speech was
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slurred, and that there were open cans of alcohol in the
vehicle.
In the front passenger seat of the vehicle, which had been
hurled into the dashboard, rescue workers found defendant’s
wife. She was taken to the hospital in Chapel Hill, where she
died sixteen days later from her injuries.
While defendant and his wife were being extracted, other
emergency responders were attending to defendant’s
granddaughter, who stated that she had been seated in the back
seat. She later informed emergency room doctors that defendant
had been driving too fast, lost control, and struck a tree.
Defendant was charged with second-degree murder, aggravated
felony death by vehicle, misdemeanor child abuse and reckless
driving, failure to wear a seat belt, failure to secure a
passenger under 16, driving while impaired, and driving while
license revoked. The jury found defendant guilty of all
criminal charges and responsible for all infractions. The jury
also found the existence of an aggravating factor: that
defendant committed the offense while on pretrial release on
another charge. All of defendant’s convictions were
consolidated into one judgment, and defendant was sentenced to
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an active term of imprisonment of 276-341 months, from the
aggravated range.
Defendant appeals.
II. Admission of Photographs
In his first argument, defendant contends that the trial
court erred in admitting five photographs of the scene of the
accident, showing a cross and flowers that were placed there
after the accident. We disagree.
A. Standard of Review
[T]he plain error rule ... is always to be
applied cautiously and only in the
exceptional case where, after reviewing the
entire record, it can be said the claimed
error is a “fundamental error, something so
basic, so prejudicial, so lacking in its
elements that justice cannot have been
done,” or “where [the error] is grave error
which amounts to a denial of a fundamental
right of the accused,” or the error has
“‘resulted in a miscarriage of justice or in
the denial to appellant of a fair trial’” or
where the error is such as to “seriously
affect the fairness, integrity or public
reputation of judicial proceedings” or where
it can be fairly said “the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.”
State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326,
333 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d
375, 378 (1983)).
B. Analysis
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At trial, the State introduced five photographs of the tree
at the scene of the collision. Several of these photographs
were taken a year after the collision, and showed a cross and
flowers, marking the site of the accident as a memorial.
Defendant did not object to the admission of these photographs
at trial, but now alleges that this was prejudicial, and that
these photographs should not have been admitted. Because
defendant did not make this objection at trial, we review the
admission of these photographs for plain error.
In our review of the record, it appears that the evidence
against defendant included these photographs, several reports,
and eyewitness testimony. There was no shortage of evidence
against defendant. The photographs themselves were admitted for
illustrative purposes, to show how the tree had been uprooted by
the impact. We hold that the exclusion of these photographs
would not have “had a probable impact on the jury’s finding that
the defendant was guilty,” and that the trial court did not
commit plain error by admitting them into evidence.
This argument is without merit.
III. Admission of Minor Child’s Statement
In his second argument, defendant contends that the trial
court erred in admitting the statement of defendant’s
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granddaughter to emergency responders as to who was driving the
vehicle. We disagree.
A. Standard of Review
“The trial court’s determination as to whether an out-of-
court statement constitutes hearsay is reviewed de novo on
appeal.” State v. Castaneda, ___ N.C. App. ___, ___, 715 S.E.2d
290, 293, appeal dismissed and disc. review denied, 365 N.C.
354, 718 S.E.2d 148 (2011).
B. Analysis
After the collision, defendant’s minor granddaughter gave a
statement to emergency responders that defendant was driving the
vehicle. At trial, the State sought to introduce this statement
as a hearsay exception pursuant to Rule 803 of the North
Carolina Rules of Evidence: a statement made in the course of
medical treatment. Defendant objected, and the trial court
overruled the objection. Defendant contends that the admission
of the granddaughter’s statement to emergency responders,
without calling the granddaughter as a witness, violated his
right to confront the witnesses against him.
Even assuming arguendo that the trial court erred in
admitting this evidence, we hold that any error was harmless.
In addition to the statement by defendant’s granddaughter, other
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witnesses testified that defendant’s legs were pinned under the
steering column, and that defendant was in the driver’s seat
subsequent to the collision. Defendant’s wife, the only other
adult in the vehicle, was found crushed inside of the front
passenger seat, which had collapsed on top of her. The physical
evidence at the scene of the accident demonstrated that
defendant had to have been the operator of the vehicle at the
time of the collision. We hold that any error resulting from
the admission of the granddaughter’s statement to medical
examiners was harmless.
This argument is without merit.
IV. Admission of Medical Reports
In his third argument, defendant contends that the trial
court erred in admitting medical reports as evidence of his
identity as the driver of the vehicle. We disagree.
At trial, the State introduced the medical reports of
defendant’s granddaughter, which contained statements that
defendant was in the driver’s seat, was driving too fast and
lost control. Defendant objected, and the trial court overruled
the objection. Defendant contends that the trial court admitted
this evidence in error, but makes no legal argument as to why
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this was error. Accordingly, we deem this argument abandoned
pursuant to N.C. R. App. P. 28(b).
This argument is without merit.
V. Alleged Flaws in Indictment
In his fourth argument, defendant contends that the
indictment for aggravated felony death by vehicle was fatally
flawed. We disagree.
A. Standard of Review
“An attack on an indictment is waived when its validity is
not challenged in the trial court.” State v. Wallace, 351 N.C.
481, 503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148
L. Ed. 2d 498 (2000). “However, where an indictment is alleged
to be invalid on its face, thereby depriving the trial court of
its jurisdiction, a challenge to that indictment may be made at
any time, even if it was not contested in the trial court.” Id.B. Analysis
Defendant was indicted for aggravated felony death by
vehicle and second-degree murder. With regard to the murder
charge, the trial court instructed the jury as to the lesser
included offense of involuntary manslaughter.
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N.C. Gen. Stat. § 20-141.4 states that no defendant may be
charged with both death by vehicle and manslaughter arising from
the same incident. N.C. Gen. Stat. § 20-141.4(c) (2013).
Defendant contends that the indictment alleging both was fatally
flawed.
In our recent decision of State v. Elmore, ___ N.C. App.
___, 736 S.E.2d 568 (2012), we held that this statute prohibited
a defendant from being sentenced for both manslaughter and
felony death by vehicle. It did not hold that a defendant could
not be indicted for both offenses. In the instant case, the
jury was instructed on involuntary manslaughter as a lesser
offense to second-degree murder, as well as felony death by
vehicle. Defendant was found guilty of second-degree murder,
not manslaughter, which is not prohibited by the statute.
Accordingly, we hold that the indictment, alleging both murder
and felony death by vehicle, was not fatally flawed.
This argument is without merit.
VI. Motion to Dismiss
In his fifth and sixth arguments, defendant contends that
the trial court erred in failing to grant his motion to dismiss
at the close of the State’s evidence and at the close of all of
the evidence. We disagree.
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A. Standard of Review
“This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007).
“Our courts have consistently held that when a defendant
presents evidence at trial, he waives his right on appeal to
assert the trial court's error in denying the motion to dismiss
at the close of the State's evidence.” State v. Davis, 101 N.C.
App. 409, 411, 399 S.E.2d 371, 372 (1991). Because defendant
presented evidence at trial, our review is limited to the motion
to dismiss at the close of all of the evidence.
B. Analysis
At the close of the State’s evidence, and again at the
close of all of the evidence, defendant moved to dismiss the
charges against him. Defendant contends that no evidence was
presented to show that he was driving the vehicle at the time of
the collision.
Pursuant to a motion to dismiss at the close of all of the
evidence, “[t]he defendant's evidence, unless favorable to the
State, is not to be taken into consideration, except when it is
consistent with the State's evidence, the defendant's evidence
may be used to explain or clarify that offered by the State[.]”
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State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009)
(citations and quotations omitted).
In the instant case, the State’s evidence showed that
defendant was found behind the steering wheel of the vehicle,
that defendant was intoxicated, that defendant was not wearing a
seatbelt, that defendant’s granddaughter was not wearing a
seatbelt, that defendant’s driver’s license had been revoked,
and that defendant’s driving caused the death of defendant’s
wife. Defendant’s evidence, to the extent that it was
inconsistent with or sought to rebut the State’s evidence, was
not to be considered by the trial court. We hold that the
evidence presented at trial was sufficient to support all of the
charges submitted to the jury. The trial court did not err in
denying defendant’s motion to dismiss at the close of all of the
evidence.
This argument is without merit.
NO ERROR.
Judges STEPHENS and DAVIS concur.
Report per Rule 30(e).