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North Carolina v. Moore9/15/1992
COZORT, Judge.
On 9 July 1990, defendant Michael Grady Moore was indicted for involuntary manslaughter for the death of a pedestrian in a motor vehicle accident. On 30 November 1990, a jury found defendant guilty of misdemeanor death by motor vehicle. Judge Thomas S. Watts imposed a two-year suspended sentence conditional on service of a 120-day active term and surrender of defendant's driver's license for five years. From the conviction and sentence, defendant appeals. We find no error.
At trial, the State presented evidence that, in June 1990, Highway 158 in Currituck County was being widened from two lanes to five lanes. On 8 June 1990, at approximately 10:00 p.m. defendant was driving north in a van in the outermost right lane, which was closed to traffic. Defendant's vehicle struck Elizabeth Rene Speight who was walking on the newly constructed roadway. The impact damaged the vehicle's hood and windshield directly in front of the driver's seat. Immediately after the impact, defendant stopped his vehicle on the side of the road. Highway Patrol Trooper W. M. Long arrived at the scene of the accident. Trooper Long identified defendant as the driver of the damaged vehicle and asked defendant to accompany him to the patrol car. During the initial encounter, Trooper Long noticed defendant smelled strongly of alcohol. While defendant waited in the car, Trooper Long investigated the accident scene. Highway Patrol Trooper A. C. Joyner arrived on the scene shortly after Officer Long and assisted in the investigation.
Upon his return to the patrol car, Trooper Long questioned defendant about the accident. Defendant stated that he did not know which lane he was driving in when he struck Ms. Speight and that "she was just right in front of me." Defendant told Officer Long that he had consumed two beers prior to the accident, but that he had not had any alcohol since the accident. Trooper Long observed that defendant was confused about what happened in the accident, his face was flushed, his eyes were glassy, his speech slurred, and his sentences unfinished. Based upon his observations and the results of a Gaze Nystagmus test, requiring the defendant to follow the tip of an ink pen with his eyes without moving his head, Trooper Long formed the opinion that defendant was impaired. At 11:45 p.m. Trooper Long arrested defendant and transported him to the highway patrol station. Once at the highway patrol station, defendant refused to submit to a breathalyzer test and other psycho-physical tests. Trooper Joyner observed defendant at the patrol station, noting that his eyes were watery and bloodshot, his speech slow and deliberate, and that he smelled strongly of alcohol. From his observations and based on his training, Trooper Joyner concluded defendant was impaired by alcohol.
Defendant presented evidence that he believed the portion of highway upon which he was traveling was open to traffic and that he had traveled through six intersections in that lane prior to striking Ms. Speight. Defendant testified that he consumed three beers and a small amount of wine earlier that evening, but did not have any difficulties operating his vehicle while driving. As he was driving down the center of the lane, he struck an object which he believed to be a person. He stopped his car and observed Ms. Speight lying on the shoulder of the road. Defendant's accident reconstruction expert testified that Ms. Speight would have been visible approximately 150 feet away from defendant's vehicle with the headlights on low beam. Traveling at 55 m.p.h. defendant could not have stopped his vehicle after Ms. Speight first became visible in time to avoid striking her whether or not he was impaired. He f
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