State v. Burris

890 S.E.2d 539

STATE of North Carolina v. Kyle Allen BURRIS, Defendant.

No. COA22-408

Court of Appeals of North Carolina.

Filed July 5, 2023

Attorney General Joshua H. Stein, by Special Deputy Attorney General Phillip T. Reynolds, for the State.

Kimberly P. Hoppin, for the Defendant.

DILLON, Judge.

Defendant Kyle Allen Burris appeals from a judgment entered upon a jury verdict convicting him of driving while impaired and reckless driving to endanger. We conclude that Defendant received a fair trial, free of reversible error.

I. Background

On the evening of 22 November 2014, a law enforcement officer responded to a single-vehicle accident in Buncombe County. Upon arriving at the scene, the trooper saw a pickup truck off the right side of the road. The vehicle was up against a steel fence and had sustained extensive damage. The trooper found Defendant lying trapped under the steel fence outside the vehicle. Defendant was unresponsive and appeared to suffer from severe injuries. He was bleeding excessively. He smelled of alcohol. The trooper found open beer cans, both inside and outside the vehicle. Defendant was eventually taken to the hospital, still unconscious, while the trooper remained at the scene. The trooper was able to determine that Defendant was the owner of the vehicle, and there was no evidence at the scene that anyone else was riding in the vehicle when the wreck occurred.

Defendant was convicted by a jury in superior court for driving while impaired and reckless driving to endanger. Defendant timely appealed.

II. Analysis

Defendant raises two issues on appeal, which we address in turn.

A. Evidence That Defendant Was Driving the Vehicle

Defendant makes two arguments concerning the evidence that he was, in fact, driving the wrecked vehicle.

First, Defendant contends the trial court erred when it allowed certain evidence showing the trooper believed Defendant driving the vehicle when it wrecked. This argument pertains to both Defendant's driving while impaired conviction and his reckless driving to endanger convictions, both of which required the State to prove that Defendant was driving the vehicle when the wreck occurred.

We agree that the trooper's opinion testimony that Defendant was the driver was inadmissible because the trooper did not personally observe Defendant driving the vehicle. See N.C. Gen. Stat. § 8C-1, Rule 701 (2021) (Lay testimony is generally confined to a witness's personal observations); State v. Fulton , 299 N.C. 491, 494, 263 S.E.2d 608, 610 (1980) (stating that "[o]rdinarily opinion evidence of a non-expert witness is inadmissible because it tends to invade the province of the jury.")

However, we conclude the admission of the trooper's opinion testimony does not constitute reversible error in this case. In so holding, we note the trial court gave a curative instruction regarding the trooper's opinion testimony. Specifically, the trial court expressly stated that the officer would be permitted to talk about what he observed during his post-crash investigation of the scene, but that he would not be permitted to "conclusively say [Defendant] was the driver". The trial court instructed the jury to disregard the trooper's opinion testimony, stating:

The Court is going to sustain the defendant's objection to the extent [the officer] has referred to the defendant as "the driver." The jury is to disregard any testimony referring to the defendant as "the driver", because that's actually an issue that you will decide as the jury.

See State v. Black , 328 N.C. 191, 200, 400 S.E.2d 398, 404 (1991) ("When the trial court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured.")

Further, assuming the trial court's curative instruction was insufficient, Defendant has failed to establish that he was prejudiced by the officer's statement, as Defendant failed to object to other evidence tending to show the trooper believed Defendant to be the driver. See State v. Delau , 381 N.C. 226, 237, 872 S.E.2d 41, 48 (2022) (holding that any error in allowing an officer to testify about the driver's identity was not prejudicial when the warrant application admitted without objection contained the same information, the officer's conclusion that the defendant was driving). For example, Defendant did not object when the State offered the trooper's "Affidavit and Revocation Report" as evidence, which contained multiple references to Defendant as the driver.

Second, Defendant argues the trial court erred when it denied Defendant's motion to dismiss the charges for insufficient evidence showing Defendant was the driver. To survive a motion to dismiss, there must be substantial evidence of each essential element of the crime and that the defendant is the offender. State v. Winkler , 368 N.C. 572, 574, 780 S.E.2d 824, 826 (2015). When considering the motion, evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference. Id. at 574, 780 S.E.2d at 826.

We conclude there was sufficient evidence from which the jury could find that Defendant was driving the vehicle when the crash occurred. In addition to the State's exhibits which were not objected to which described Defendant as the driver, there was evidence that Defendant was found alone at the accident scene and that Defendant was the owner of the vehicle. See, e.g., State v. Ray , 54 N.C. App. 473, 475, 283 S.E.2d 823, 825 (1981) ("It is possible that other circumstantial evidence – such as ... evidence as to the [defendant's] ownership of the automobile – in addition to the testimony of the officer [finding the defendant alone in a vehicle that was running]" would be sufficient to meet the State's burden of showing the defendant was driving the vehicle). When viewed in the light most favorable to the State, we conclude that the evidence was sufficient to survive Defendant's motion to dismiss.

B. Warrantless Blood Draw

At trial, the jury was instructed it could convict Defendant of drunk driving solely on the grounds that Defendant's blood alcohol level was above the legal limit. N.C. Gen. Stat. § 20-138.1(a)(2) (2021). It was on this ground that Defendant was convicted of this charge. Defendant argues the trial court erred by denying his motion to suppress the warrantless blood draw, the results of which were the only evidence that his blood alcohol level exceeded the legal limit.

The evidence concerning the blood draw showed that Defendant was transported to the hospital, that the trooper went directly to the hospital after completing his work at the crash scene, and that the trooper obtained a blood sample from Defendant while Defendant remained unconscious.

Blood tests are considered a search under both the federal and North Carolina constitutions. Schmerber v. California , 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Accordingly, "blood draws may only be performed after either obtaining a warrant, obtaining valid consent from the defendant, or under exigent circumstances with probable cause." State v. Romano , 369 N.C. 678, 692, 800 S.E.2d 644, 653 (2017).

Here, the trooper did not obtain a warrant prior to obtaining a blood sample from Defendant at the hospital.

Also, Defendant did not give express consent for the blood draw as he was unconscious throughout. Our General Assembly, however, has provided that a driver has given implied consent to a blood draw when he is found unconscious and there is reasonable grounds to suspect that he has been driving while impaired. N.C. Gen. Stat. § 20-16.2(b) (2021). Our Supreme Court has limited the scope of this statute by holding that the Fourth Amendment is violated when an unconscious driver is deemed as consenting to a blood draw based on this implied consent statute for purposes of an impaired driving prosecution. See Romano , 369 N.C. at 691, 800 S.E.2d at 652 (stating that Section 20-16(b) is not "a per se categorical exception to the warrant requirement.")

We, therefore, consider whether there were sufficient exigent circumstances to justify the trooper's action in not first obtaining a warrant before obtaining a draw of Defendant's blood. Our resolution of this issue is controlled by the recent United States Supreme Court decision in Mitchell v. Wisconsin , ––– U.S. ––––, 139 S. Ct. 2525, 204 L.Ed.2d 1040 (2019).

Mitchell , decided two years after our Supreme Court decided Romano , concerned the constitutionality of a warrantless blood draw from an unconscious motorist suspected of impaired driving in a state with an implied consent statute similar to our implied consent statute.

A four-judge plurality of the Court in Mitchell - sidestepping the issue as to whether prosecutors can rely on an implied consent statute to show consent by an unconscious driver to a blood draw – held that exigent circumstances "almost always" exist to conduct a warrantless blood draw where an unconscious driver is taken to the hospital ¹ :

Thus, exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious [ ]: With such suspects, too, a warrantless blood draw is lawful.

... [U]nconsciousness does not just create pressing needs; it is itself a medical emergency.... Police can reasonable anticipate that ... [the defendant's] blood may be drawn anyway, ... and that immediate medical treatment could delay (or otherwise distort the results of) a blood draw conducted later, upon receipt of a warrant, thus reducing evidentiary value.

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When police have probable cause to believe a person has committed a drunk-driving offense and the driver's unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to

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