State v. ScottÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-250
Filed: 21 January 2020
Alamance County, No. 13 CRS 3976
STATE OF NORTH CAROLINA
v.
WILLIAM LEE SCOTT
Appeal by defendant from judgment entered 23 July 2018 by Judge Paul C.
Ridgeway in Alamance County Superior Court. Heard in the Court of Appeals 15
October 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E.
Hathcock, for the State.
Franklin E. Wells, Jr., for defendant-appellant.
TYSON, Judge.
William Lee Scott (“Defendant”) appeals from a judgment entered after a jury
found him guilty of second-degree murder and felony death by vehicle. The trial court
arrested judgment in the felony death by vehicle and entered judgment and sentenced
Defendant on the conviction for second-degree murder. We find no prejudicial error.
I. Background
During the afternoon of 21 June 2013, Jose Munoz (“Munoz”) was driving on
University Drive in Elon. He observed a green Jeep vehicle pass him in a no-passing
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Opinion of the Court
zone at a high rate of speed. Munoz depressed his brake pedal to allow the green
Jeep “to get in [his lane] and not hit” oncoming traffic. When Munoz arrived at the
intersection of Manning Drive and University Drive, he observed the green Jeep had
collided with a 2003 white Chevrolet Impala vehicle, which had attempted to make a
left turn. Munoz also observed Defendant seated in the driver’s seat of the green Jeep
with blood on his face and Veocia Warren (“Warren”) apparently deceased seated
inside the white Chevrolet.
Burlington Police Officer Michael Giroux (“Lt. Giroux”) was the first responder
to arrive on the scene. Giroux also serves as a part-time volunteer lieutenant with
the Elon Fire and Rescue Department. Lt. Giroux observed “an approximately
[seventy] year old black female in the driver’s seat [of the white Impala vehicle] with
her face covered with blood who was unresponsive and did not appear to be
breathing.”
John Cuthriell (“Cuthriell”) of the Alamance County Rescue Department also
arrived on the accident scene. Cuthriell observed “significant amounts of trauma to
[Warren].” “There was blood visible and the head was essentially cocked at an angle
that [he] did not believe that the patient’s condition to be sustainable of life.”
Both Cuthriell and Lt. Giroux checked Warren and were unable to detect a
pulse in her carotid artery by feel or by using an oximeter. They used a heart monitor
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Opinion of the Court
to check for electrical activity in her heart. After they were unable to find an electrical
rhythm, Warren was pronounced dead at the scene.
Warren sustained multiple abrasions and lacerations to her head, her upper
body and her lower extremities, a possible broken neck, and a fracture to her left arm.
Her cause of death was listed as multiple blunt force trauma.
Elon Assistant Fire Chief Charles Walker (“Asst. Chief Walker”) arrived on the
scene and began assisting Defendant. Asst. Chief Walker observed Defendant, while
he was still restrained in the driver’s seat of the green Jeep. Defendant was observed
to be “in and out” of consciousness. Defendant was removed from his vehicle, placed
on a backboard, and transported by ambulance to Moses Cone Hospital (“Hospital”)
in Greensboro.
After finishing his investigation at the accident scene, Elon Police Lieutenant
Jim Giannotti (“Lt. Giannotti”) went to the Hospital to speak with Defendant. Upon
arrival, he was informed Defendant had already been released from the Hospital. Lt.
Giannotti contacted Defendant at his girlfriend’s house later that day.
Defendant was described as “really, really upset” and crying when he learned
of Warren’s death. Defendant stated he remembered seeing the white car as she
approached his vehicle, and “the next thing [he] knew she was in front of his lane.
And that [he] tried to get out of the way of it.” Defendant further stated he was going
“the speed limit or a little over” at the time of the crash.
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Opinion of the Court
Lt. Giannotti observed Defendant “didn’t seem impaired” but noted “he just
seemed different.” In his accident report, Lt. Giannotti determined that Warren’s
vehicle was in Defendant’s right-of-way or “in his path of travel” at the time of the
collision.
A. Blood Evidence
Investigators sought and obtained a court order for release of Defendant’s
medical records from the Hospital. Lt. Giannotti obtained the order from the Elon
Police Department. Five days after the accident Lt. Giannotti returned to the
Hospital to determine whether Defendant’s blood had been drawn and tested. The
Hospital confirmed that Defendant’s blood was drawn shortly after his arrival in the
emergency department.
In addition to the blood tests and results for the purposes of diagnosing
Defendant’s injuries incurred in the accident, the Hospital produced three vials of
blood. The Hospital did not conduct any toxicology tests on Defendant’s blood. Each
vial was labeled with Defendant’s name (Scott, William) and Medical Record Number:
(MRN: 030043599). All three vials were closed, two of them with a red snap and one
vial was closed with a purple top, to signify the vial contained an anti-coagulate, but
no preservatives.
Lt. Giannotti received the three vials from the Hospital and drove them to the
State Bureau of Investigation (“SBI”) laboratory in Raleigh. The SBI’s laboratory test
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Opinion of the Court
results showed Defendant’s blood alcohol concentration was .22 grams of alcohol per
100 milliliters of blood.
B. Speed Evidence
North Carolina Highway Patrol Sergeant Stephen Myers (“Sgt. Myers”) was
dispatched to the scene of the crash as a member of the Accident Reconstruction Unit.
The posted speed limit at the intersection of University Drive and Manning Drive
was forty-five miles per hour.
Sgt. Myers utilized a data retrieval tool to download information from the
computer of Defendant’s vehicle. The data Sgt. Myers retrieved indicated the Jeep’s
speed five seconds prior to the crash was seventy-eight miles per hour with a fifty-
three percent accelerator pedal and a forty-seven percent engine throttle. The data
also indicated that a tenth of a second before impact, Defendant’s green Jeep was
traveling at seventy-three miles per hour, with zero percent accelerator pedal, and
the brake pedal was depressed.
Two months after the crash, Elon Police Lieutenant Kelly Blackwelder and
Detective Brian Roof conducted a follow-up interview with Defendant at his home in
Burlington. Defendant stated that on the day of the crash he visited several
construction sites, traveled back to his house to retrieve a tool, and to a pharmacy to
buy some ear drops. Defendant further stated he was “maybe going 58, maybe 60
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Opinion of the Court
miles per hour” at the time of the crash and that he was “not much of a speeder in
general. Not even on the Interstate.”
Defendant stated he had seen Warren’s Impala in the roadway on Manning
Avenue but noted “it happened so quickly.” Defendant thought Warren had probably
run a stop sign. The last thing Defendant recalled from the incident was slamming
on his brakes and trying to stop his car to avoid Warren’s vehicle in his lane of travel.
Defendant denied consuming alcohol or medication prior to the crash.
Defendant was indicted for second-degree murder, felony death by vehicle, and
misdemeanor death by vehicle on 3 September 2013. On 13 April 2018, Defendant
filed a motion to suppress and memorandum of law seeking to exclude the results of
the blood samples obtained from the Hospital. The same day, Defendant also filed a
motion in limine and memorandum of law seeking to exclude the same blood evidence.
Defendant’s motion to suppress was heard on 6 July 2018 and denied by order on 16
July 2018. On 16 July 2018 the State dismissed the misdemeanor death by vehicle
charge. Defendant’s trial began 17 July 2018.
The jury’s verdict found Defendant was guilty of second-degree murder and
felony death by vehicle. The trial court sentenced Defendant in the mitigated range
to an active term of 120-156 months and arrested judgment on the conviction for
felony death by vehicle. Defendant gave written notice of appeal.
II. Jurisdiction
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Opinion of the Court
This Court possesses jurisdiction pursuant to N.C. Gen. Stat. §§ 7A-27(b) and
15A-1444(a) (2017).
III. Issues
Defendant argues the trial court erred by denying his motion to suppress blood
evidence obtained pursuant to a court order.
IV. Motion to Dismiss
A. Standard of Review
Our review of a trial court’s denial of a motion to suppress is “strictly limited
to determining whether the trial judge’s underlying findings of fact are supported by
competent evidence, in which event they are conclusively binding on appeal, and
whether those factual findings in turn support the judge’s ultimate conclusions of
law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “The trial court’s
conclusions of law . . . are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200,
208, 539 S.E.2d 625, 631 (2000).
B. Analysis
1. Admission of Blood Test Results
Defendant asserts the trial court’s denial of his motion to suppress blood
evidence was error. He argues the court order authorizing blood evidence to be
collected and tested was insufficient under the statutes.
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Opinion of the Court
The trial court issued its order requiring the Hospital to release Defendant’s
medical records under N.C. Gen. Stat. § 8-53 (2017), which provides:
No person, duly authorized to practice physic or surgery,
shall be required to disclose any information which he may
have acquired in attending a patient in a professional
character, and which information was necessary to enable
him to prescribe for such patient as a physician, or to do
any act for him as a surgeon, and no such information shall
be considered public records under G.S. 132-1. Confidential
information obtained in medical records shall be furnished
only on the authorization of the patient, or if deceased, the
executor, administrator, or, in the case of unadministered
estates, the next of kin. Any resident or presiding judge in
the district, either at the trial or prior thereto, or the
Industrial Commission pursuant to law may, subject
to G.S. 8-53.6, compel disclosure if in his opinion disclosure
is necessary to a proper administration of justice. If the
case is in district court the judge shall be a district court
judge, and if the case is in superior court the judge shall be
a superior court judge.
In evaluating the district court’s order to release Defendant’s medical records
under N.C. Gen. Stat. § 8-53, we are guided by our Supreme Court’s precedent in the
case of In re Superior Court Order, 315 N.C. 378, 338 S.E.2d 307 (1986). “[T]he trial
judge must be presented with something more than the complainant’s bare allegation
that it is the best interest of justice to allow the examination.” Id. at 381, 338 S.E.2d
310. The movant must show by an “affidavit or similar evidence setting forth facts
or circumstances sufficient to show reasonable grounds to suspect that a crime has
been committed, and that the records sought are likely to bear upon the investigation
of that crime.” Id.-8-
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Opinion of the Court
The officer’s Application for Order contained a “bare allegation” that a fatality
had occurred during a car crash. No affidavit or any evidence of a crime being
committed or any indicia to raise a reasonable suspicion was included. When the
order was sought, the collision had been preliminarily declared to have been caused
by Warren’s vehicle being in Defendant’s right of way and lane of travel at the time
of the collision.
In State v. Smith, 248 N.C. App. 804, 805 789 S.E.2d 873,874 (2016), an officer
responding at the scene of a motorcycle crash had noted “the strong odor of alcoholic
beverage . . . emanating from [the defendant’s] breath as he was trying to speak and
breathe.” Another officer investigating the crash “noticed the ‘very strong’ odor of
alcohol on [the defendant’s] breath.” Id. at 805, 789 S.E.2d at 874. At the hospital,
the same investigating officer “continued to detect a strong odor of alcohol on [the
defendant’s] breath and observed that [the defendant] had bloodshot eyes and slurred
speech.” Id. The officer concluded “it was more probable rather than not that [the
defendant had been] driving under the influence of alcohol.” Id.
Here, no allegation or indication of Defendant’s purported intoxication was
asserted in the record or in the Application for Order. None of the officers,
firefighters, or paramedics on the scene, nurses, physicians, or investigating officers
in close and direct contact with Defendant at the hospital noticed any signs of
impairment at the time of the collision or thereafter.
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Opinion of the Court
The first and only indication of Defendant’s intoxication were results of tests
on Defendant’s blood samples taken from the Hospital and tested over a week later
at the SBI laboratory. The trial court’s order on Defendant’s motion to suppress
specifically found “the affidavit and order entered in this case on June 26, 2013 would
fail” under N.C. Gen. Stat. § 8-53, but denied Defendant’s motion to suppress and
admitted the results of the blood tests under N.C. Gen. Stat. § 90-21.
We agree the trial court’s order cannot be sustained under N.C. Gen. Stat. § 8-
53, but this does not end our analysis of the order. This Court has held a “trial court’s
ruling must be upheld if it is correct upon any theory of law, and thus it should not
be set aside merely because the court gives a wrong or insufficient reason for it.” State
v. Turner, 239 N.C. App. 450, 455, 768 S.E.2d 356, 359 (2015). N.C. Gen. Stat. § 90-
21.20B may provide a statutory method for a “judicial official” to order the disclosure
of private health information in the event of a vehicle crash. See Smith, 248 N.C. App.
at 814-15, 789 S.E.2d at 879-80.
N.C. Gen. Stat. § 90-21.20B(a1) (2017) provides:
Notwithstanding any other provision of law, if a person is
involved in a vehicle crash:
(1) Any health care provider who is providing
medical treatment to the person shall, upon request,
disclose to any law enforcement officer investigating
the crash the following information about the
person: name, current location, and whether the
person appears to be impaired by alcohol, drugs, or
another substance.
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Opinion of the Court
(2) Law enforcement officers shall be provided access
to visit and interview the person upon request,
except when the health care provider requests
temporary privacy for medical reasons.
(3) A health care provider shall disclose a certified
copy of all identifiable health information related to
that person as specified in a search warrant or an
order issued by a judicial official.
The State asserts the trial court’s ruling on Defendant’s motion to suppress
was proper under this statute. It argues Defendant’s blood was drawn in the regular
course of medical treatment after arrival in the Hospital’s emergency department
with injuries from a motor vehicle crash. The samples were not drawn at the request
or suggestion of a law enforcement officer or in connection with any pending
investigation. The Hospital conducted routine blood draws upon Defendant’s arrival
in the emergency department to diagnose his condition for medical treatment.
Application of the car crash provisions of this statute falls outside of the
statutes at issue and reviewed in Mitchell v. Wisconsin, __ U.S. __, __ n.1, 204 L. Ed.
2d 1040, 1044 n.1 (2019). (“Wisconsin also authorized BAC testing of drivers involved
in accidents that cause significant bodily harm, with or without probable cause of
drunk driving. We do not address those provisions.” (citation omitted)). The Supreme
Court of the United States’ plurality opinion in Mitchell does not support the State’s
argument.
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Opinion of the Court
In addition, the trial court’s order does not base its reasoning upon exigent
circumstances to draw blood without a warrant from an incapacitated person, who is
under suspicion for drunk driving. “[T]he natural dissipation of alcohol in the
bloodstream does not constitute an exigency in every case sufficient to justify
conducting a blood test without a warrant.” State v. Romano, 369 N.C. 678, 687, 800
S.E.2d 644, 656 (2017) (quoting Missouri v. McNeely, 569 U.S. 141, 165, 185 L. Ed.
2d 696, 715 (2013)).
The State’s reliance on State v. Smith is also inapposite. The facts in Smith
involved a search warrant for the defendant’s test results and did not involve whether
the search warrant was supported by sufficient probable cause. Smith, 248 N.C. App.
at 815, 789 S.E.2d at 879. This Court concluded the “identifiable health information”
in § 90-21.2-B(a1)(3) requires a search warrant or judicial order that “specifies the
information sought.” Id.
However, a valid order remains subject to the reasonable suspicion standard
required by our Supreme Court’s opinion in In re Superior Court Order, 315 N.C. at
382, 338 S.E.2d at 307. A search warrant remains subject to the probable cause
standard contained in N.C. Gen. Stat. § 15A-244 (2017). As noted above, the order
before us is not based upon either reasonable suspicion or probable cause.
Under N.C. Gen. Stat. § 8-53, the only evidence tending to show Defendant was
impaired by intoxication was the results of Defendant’s blood draws, which were
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Opinion of the Court
conducted at the SBI laboratory more than a week after the blood had been drawn at
the Hospital. Defendant’s motion to suppress should have been sustained and the
blood test results should have been excluded. Defendant’s second-degree murder
conviction cannot be supported on a theory of intoxication to provide the required
element of malice. Because we reach this conclusion that the admission of the test
results of Defendant’s blood was error, we do not need to address Defendant’s
remaining arguments related to the denial of the motion to suppress the results of
the blood evidence.
2. Speeding and Reckless Driving as Malice
The trial court also instructed the jury on two other grounds from which it
could find the requisite malice to support a conviction for second-degree murder:
b. The laws of this State make it unlawful to drive in
excess of the posted speed limit. To establish that the
Defendant drove in excess of the posted speed limit, the
State must prove the following two things beyond a
reasonable doubt.
i. A speed limit was lawfully posted by appropriate
signs erected by proper authorities giving motorists
notice of the speed limit on University Drive giving
motorists notice of the speed limit; and
ii. that the defendant drove a vehicle on this portion
of the highway at a speed exceeding the posted speed
limit.
c. The laws of this State make it unlawful to drive
recklessly. To establish that the Defendant drove
recklessly, the State must prove the following two things
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Opinion of the Court
beyond a reasonable doubt.
i. That the defendant drove a vehicle upon a street
or highway; and
ii. That he drove that vehicle in disregard of posted
speed limits and marked no passing lanes and that
in doing so he acted carelessly and heedlessly in
willful or wanton disregard of the rights or safety of
others.
This instruction followed the pattern jury instruction. See N.C.P.I. -- Crim. 206.32A
(2010). The jury was instructed on two additional and distinct theories of Defendant’s
unlawful conduct to support a finding of malice, for second-degree murder, in addition
to Defendant’s intoxication.
a. Eyewitness and Officers’ Testimony
The State presented the testimony of Munoz, who had observed Defendant’s
green Jeep pass him at a high rate of speed in a no-passing zone immediately prior
to the collision. Munoz testified he had to slow his vehicle down to allow Defendant’s
green Jeep back into the lane and avoid a collision. He continued driving to the scene
and personally observed that the green Jeep had collided with the white Chevrolet.
The State also provided the testimony of Sgt. Myers, who had examined
Defendant’s vehicle’s computer. This data tended to show Defendant’s vehicle was
traveling seventy-eight miles per hour five seconds prior to the crash and was
traveling seventy-three miles per hour near the point of impact, while in a forty-five
mile per hour speed zone.
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Opinion of the Court
Because the jury returned a general verdict form that did not specify the
specific ground to support malice, and Defendant did not object to this testimony nor
challenge any of the jury instructions to support the element of malice, evidence of
these other two theories support Defendant’s conviction for second-degree murder.
Contrary to the assertion in our colleague’s dissent, Defendant has not argued and
cannot show any error on the blood test results of intoxication is prejudicial under
either of these grounds to warrant a new trial.
b. Rule 404(B) Evidence
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2017) provides:
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident.
The trial court admitted, over Defendant’s objection, a certified copy of
Defendant’s three judgments and convictions for driving while impaired, two
instances of speeding, driving while license revoked, and no operator’s license. The
State argues the evidence of Defendant’s prior traffic offenses is properly admitted
under Rule 404(b) and shows his intent, knowledge, or absence of mistake to support
malice as an essential element of second-degree murder. We agree.
“[P]rior 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
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Opinion of the Court
meaning of Rule 404(b).” State v. Goodman, 149 N.C. App. 57, 72, 560 S.E.2d 196, 206
(2002) (Greene, J., dissenting), rev’d per curiam per the dissent, 357 N.C. 43, 577
S.E.2d 619 (2003). Defendant’s argument is without merit and is overruled.
V. Conclusion
The admission of the later SBI laboratory alcohol test results of Defendant’s
blood, which was drawn a week earlier at the Hospital immediately following the
accident, was erroneous under either statute. The State provided substantial
evidence of both Defendant’s high speed and his reckless driving, together with his
prior record, to show malice to support Defendant’s conviction for second-degree
murder.
Defendant has failed to carry his burden to show any prejudicial error in the
denial of the motion to suppress. Defendant received a fair trial, free from prejudicial
errors he preserved and argued. We find no prejudicial error in the jury’s verdict or
in the judgment entered thereon. It is so ordered.
NO PREJUDICIAL ERROR.
Judge BRYANT concurs in the result.
Judge BROOK concurs in part and dissents in part with separate opinion.
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No. COA19-250 – State v. Scott
BROOK, Judge, concurring in part and dissenting in part.
I join the portion of the lead opinion holding that neither of the orders entered
by the district court or superior court allowing the State to obtain and introduce
evidence that Defendant was impaired at the time his vehicle collided with Ms.
Warren’s were based on evidence showing reasonable suspicion that Defendant had
committed any crime. I therefore concur in the holding that Defendant’s motion to
suppress this evidence should have been granted. However, I respectfully dissent
from the portion of the lead opinion holding that admission of this evidence in
violation of Defendant’s Fourth Amendment rights did not constitute prejudicial
error. This error was not harmless beyond a reasonable doubt. Defendant is
therefore entitled to a new trial.
I. Fourth Amendment Violation
The Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures[.]” U.S. Const. amend. IV. The U.S. Supreme Court has observed:
[t]he interests in human dignity and privacy which the
Fourth Amendment protects forbid any such intrusions on
the mere chance that desired evidence might be obtained.
In the absence of a clear indication that in fact such
evidence will be found, these fundamental human interests
require law officers to suffer the risk that such evidence
may disappear unless there is an immediate search.
Schmerber v. Cal., 384 U.S. 757, 769-70, 86 S. Ct. 1826, 1835, 16 L. Ed.2d 908 (1966).
“The Amendment thus prohibits ‘unreasonable searches,’ . . . [and] the taking of a
STATE V. SCOTT
BROOK, J., concurring in part and dissenting in part
blood sample . . . is a search.” Birchfield v. North Dakota, ___ U.S. ___, ___, 136 S.
Ct. 2160, 2173, 195 L. Ed.2d 560 (2016). See also State v. Romano, 369 N.C. 678, 685,
800 S.E.2d 644, 649 (2017) (“drawing blood . . . constitutes a search under both the
Federal and North Carolina Constitutions”). “The reasonableness of a search
depends on the totality of the circumstances, including the nature and purpose of the
search and the extent to which the search intrudes upon reasonable privacy
expectations.” Grady v. North Carolina, 575 U.S. 306, 310, 135 S. Ct. 1368, 1371, 191
L. Ed.2d 459 (2015) (per curiam). Blood tests, in particular, (1) “require piercing the
skin and extract a part of the subject’s body”; (2) are “significantly more intrusive
than blowing into a tube”; and (3) “place[] in the hands of law enforcement authorities
a sample that can be preserved and from which it is possible to extract information
beyond a simple BAC reading.” Birchfield, ___ U.S. at ___, 136 S. Ct. at 2178 (internal
marks and citation omitted).
As a general matter, the Fourth Amendment requires the issuance of a
warrant supported by probable cause to effectuate a search and seizure. Terry v.
Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1879-80, 20 L. Ed.2d 889 (1968). There are
exceptions to this requirement, however. For instance, law enforcement may
effectuate a brief investigatory seizure of a person to search for weapons if based upon
reasonable suspicion. Id. at 27, 88 S. Ct. at 1883. As this Court has observed,
[r]easonable suspicion is a less demanding standard than
probable cause and requires a showing considerably less
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BROOK, J., concurring in part and dissenting in part
than preponderance of the evidence. The standard is
satisfied by some minimal level of objective justification. A
court must consider ‘the totality of the circumstances—the
whole picture’ in determining whether a reasonable
suspicion to make an investigatory stop exists. When a
defendant in a criminal prosecution makes a motion to
suppress evidence obtained by means of a warrantless
search, the State has the burden of showing, at the
suppression hearing, how the warrantless search was
exempted from the general constitutional demand for a
warrant.
State v. Smathers, 232 N.C. App. 120, 123, 753 S.E.2d 380, 382-83 (2014) (internal
marks and citation omitted). “The reasonable suspicion” that serves as the basis for
the investigatory search and seizure “must arise from the officer’s knowledge prior to
the time of the stop.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
In In re Superior Court Order, 315 N.C. 378, 381, 338 S.E.2d 307, 310 (1986),
our Supreme Court held that the State was required to make a showing of reasonable
suspicion before the production of certain bank records could be compelled. The
records in question were potential evidence of a crime but at the time they were
sought the matter was in an investigatory stage and no charges had been filed. Id.
at 379-80, 338 S.E.2d at 308-09. Rejecting the argument that, in the absence of an
authorizing statute, the trial court lacked the authority to order the production of the
records, the Supreme Court held that trial courts are invested with inherent
authority to order potential evidence to be produced during investigations, including
the bank records in question. Id. at 380, 338 S.E.2d at 309. The Supreme Court
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BROOK, J., concurring in part and dissenting in part
cautioned, however, that this inherent authority is still subject to constitutional
limits; that is, the State still must present “an affidavit or similar evidence setting
forth facts or circumstances sufficient to show reasonable grounds to suspect that a
crime has been committed, and that the records sought are likely to bear upon the
investigation of that crime.” Id. at 381, 338 S.E.2d at 310. “With this evidence before
it,” the Supreme Court explained, “the trial court can make an independent decision
as to whether the interests of justice require the issuance of an order rather than
relying solely upon the opinion of the prosecuting attorney.” Id.
In the present case, the superior court’s order denying Defendant’s motion to
suppress misstated that the motion to obtain the blood collected from Defendant
during his treatment at the hospital, styled an “Application for Order for Moses Cone
Hospital Medical Records,” contained a bare allegation by the officer investigating
the death of Ms. Warren “that a fatality had occurred during a car crash.” This
allegation was made by an assistant district attorney tasked with prosecuting the
case, not an officer investigating Ms. Warren’s death. That is what the Supreme
Court held was improper in In re Superior Court Order; the superior court’s reliance
on the prosecutor’s allegation in the motion is precisely the “sole[] [reliance] upon the
opinion of the prosecuting attorney” that the Supreme Court rejected in In re Superior
Court Order. 315 N.C. at 381, 338 S.E.2d at 310. Likewise, “[r]elying solely upon the
opinion of the prosecuting attorney,” the district court was unable to “make an
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BROOK, J., concurring in part and dissenting in part
independent decision as to whether the interests of justice require[d] the issuance of
[the] order[.]” Id. Furthermore, as the superior court noted in the order denying the
motion to suppress, “the [motion] and order simply recite the bare allegations that
Defendant was involved in an automobile accident; that the other driver was killed;
that Defendant was treated and released at the hospital; and that ‘due to the motor
vehicle accident resulting in the death of another, and in order to complete the
investigation and to determine if [Defendant] was impaired, the Elon Police
Department is in need of all medical records from Moses Cone Hospital for
[Defendant][.]’”
In short, at the time the State sought the order compelling the hospital to
produce Defendant’s blood, the allegation in the June 2013 motion that a fatality had
occurred during a car crash was not supported by any evidence. There is no record
affidavit or testimony by a witness with knowledge of the circumstances surrounding
the wreck or investigation of Ms. Warren’s death pre-dating the district court’s June
2013 order that could have constituted reasonable suspicion to support entry of this
order. Nor is there any indication that the district court considered any evidence
beyond that in the record before our Court when it ordered the hospital to produce
Defendant’s blood in June 2013. The superior court acknowledged as much in
denying the motion to suppress based on the incorrect legal standard, conceding that
“[i]f measured against [the] principle [that the equivalent of reasonable suspicion is
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STATE V. SCOTT
BROOK, J., concurring in part and dissenting in part
required], the . . . order entered in this case on June 26, 2013 would fail[.]1 The orders
allowing the State to obtain and introduce evidence that Defendant was impaired at
the time his vehicle collided with Ms. Warren’s were therefore erroneous.
II. Remedy for Constitutional Violation
Having concluded that Defendant’s Fourth Amendment rights were violated
by compelling the production of his blood from the hospital without a warrant and in
the absence of any evidence establishing reasonable suspicion that he committed any
crime, I turn to whether this error, and the subsequent introduction at trial of
evidence obtained from analysis of Defendant’s blood by personnel at the State
Bureau of Investigation (“SBI”) laboratory, requires that the judgment entered upon
the jury’s verdict be vacated, necessitating a new trial. I conclude that the judgment
must be vacated, and a new trial is required.
1 The superior court concluded that the required showing under N.C. Gen. Stat. § 90-
21.20B(a1), which the court believed provided the governing standard, was merely “of (a) the fact that
an automobile accident occurred and (b) that specified individual health information exists that is
relevant thereto,” a lower standard than reasonable suspicion. However, the unsupported allegations
of the prosecutor in June 2013 did not even meet this standard; these allegations did not constitute
evidence “of (a) the fact that an automobile accident occurred and (b) that specified individual health
information exists that is relevant thereto” because they were not verified by the prosecutor or a
witness, nor was a supporting affidavit attached to the motion as an exhibit. See, e.g., State v.
Simmons, 205 N.C. App. 509, 523-25, 698 S.E.2d 95, 105-06 (2010) (evidence establishing reasonable
suspicion may be supported by affidavit but is not limited to affidavit and may also include testimony).
There is no record testimony pre-dating the district court order compelling production of the blood
supporting the allegations in the motion either. When “the government coerces, dominates, or directs
the action of a private person, a resulting search and seizure may violate the guarantees of the Fourth
Amendment.” State v. Hauser, 115 N.C. App. 431, 436, 445 S.E.2d 73, 78 (1994) (citation omitted).
The warrantless compelled production of records under N.C. Gen. Stat. § 90-21.20B(a1) by a private
party, such as a hospital, must be supported by reasonable suspicion. See In re Superior Court Order,
315 N.C. at 381, 338 S.E.2d at 310.
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STATE V. SCOTT
BROOK, J., concurring in part and dissenting in part
“Fourth Amendment rights are enforced primarily through the ‘exclusionary
rule,’ which provides that evidence derived from an unconstitutional search or seizure
is generally inadmissible in a criminal prosecution of the individual subjected to the
constitutional violation.” State v. McKinney, 361 N.C. 53, 58, 637 S.E.2d 868, 872
(2006) (citation omitted). “The ‘fruit of the poisonous tree doctrine,’ a specific
application of the exclusionary rule, provides that ‘[w]hen evidence is obtained as the
result of illegal police conduct, not only should that evidence be suppressed, but all
evidence that is the “fruit” of that unlawful conduct should be suppressed.’” Id.(quoting State v. Pope, 333 N.C. 106, 113-14, 423 S.E.2d 740, 744 (1992)). Although
preserved errors not of constitutional dimension are reviewed for 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,” State v. Wiggins, 334 N.C. 18, 27, 431
S.E.2d 755, 760 (1993) (citation omitted), “before a federal constitutional error can be
held harmless, the court must be able to declare a belief that it was harmless beyond
a reasonable doubt,” State v. Lawrence, 365 N.C. 506, 513, 723 S.E.2d 326, 331 (2012)
(internal marks and citation omitted).
Defendant argues he “was prejudiced by the trial court’s denial of his motion
to suppress the blood evidence[;]” a review of the facts reveals that admission of
evidence obtained in violation of the Fourth Amendment was not harmless beyond a
reasonable doubt here. The State’s theory of the case was predicated upon the blood
7
STATE V. SCOTT
BROOK, J., concurring in part and dissenting in part
evidence of Defendant’s impairment establishing the malice element required to
convict Defendant of second-degree murder. Indeed, the State dismissed the
misdemeanor death by vehicle charge and proceeded to trial on second-degree murder
by vehicle and felony death by vehicle alone once the trial court denied Defendant’s
motion to suppress. In discussing the admissibility of the blood evidence, the superior
court stressed its centrality to the State’s case: “I’m not sure what the evidence of
impairment is. You know, there will be a motion to dismiss at the end of the State’s
case. And as I understand the case, it rises or falls on the blood evidence.” As the
trial court predicted and the majority of this Court agrees, “[t]he first and only
indication of Defendant’s intoxication were results of tests on Defendant’s blood
samples taken from the Hospital and tested over a week later at the SBI laboratory.”
State v. Scott, supra at ___. And, most importantly, none of the witnesses testifying
at trial who came into contact with Defendant after his vehicle collided with Ms.
Warren’s vehicle noticed the odor of alcohol on or about his person, nor did any notice
Defendant slur his speech or exhibit other signs of impairment. As Officer Giannotti
confirmed on cross-examination, as of 21 June 2013, the day of the wreck, he had seen
no evidence that Defendant was impaired. Officer Giannotti testified further that he
never requested that Defendant submit to any alcohol testing because “there was
nothing that gave rise to a belief that [Defendant] was impaired[.]”
8
STATE V. SCOTT
BROOK, J., concurring in part and dissenting in part
The opinion of the Court suggests that the introduction of the blood evidence
and results of testing performed on the blood did not constitute prejudicial error
because there was other evidence – namely, Defendant’s prior convictions for
impaired driving and speeding and evidence that Defendant was speeding on the day
of the collision with Ms. Warren – from which the jury could have concluded that the
showing of malice required for a conviction of second-degree murder by motor vehicle
had been met. This suggestion seems to be based on a misapplication of the
applicable legal standard, however. The standard is whether we can “declare a belief
that [the federal constitutional error] was harmless beyond a reasonable doubt.”
Lawrence, 365 N.C. at 513, 723 S.E.2d at 331 (citation omitted). Although it is true
that evidence was introduced at trial that Defendant was speeding on the day of the
wreck and had prior speeding and impaired driving convictions, I cannot say with
any confidence that the erroneous admission of blood evidence here – evidence the
superior court observed at the outset of trial the case “rises and falls on” – did not
prejudice Defendant, much less can I so state beyond a reasonable doubt. See id.9