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[T] State v. Brown8/3/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
John Spencer Brown (defendant) was charged with second degree murder, two counts of assault with a deadly weapon inflicting serious injury, and driving while impaired. Defendant was convicted on all counts and was sentenced to 268 to 351 months in prison. Defendant appeals.
The evidence at trial tended to show that on 9 August 2002, at approximately 8:00 a.m., Angela Bass (Bass) was driving her son, Zachary Davis (Zachary), to Jenkins Elementary School in Hickory, North Carolina. Bass was traveling southbound along Highway 127 (the highway), an undivided five-lane road with a center turn lane separating the north and south lanes of travel. Bass was traveling in the left southbound lane. The posted speed limit was forty-fivemiles per hour and traffic on the highway was heavy, but normal.
Bass observed a white truck, driven by defendant, approaching from the northbound lanes of travel. The truck veered over into the center turn lane, and then into Bass's southbound lane of travel. Bass attempted to avoid a collision by moving into the right lane, but the truck struck Bass's vehicle on the driver's side. The collision caused Bass's vehicle to spin out of control. Defendant's truck then struck a vehicle driven by Sherry Sluss (Sluss), who was traveling southbound in the right lane of the highway.
Officer Mike Beach (Officer Beach) of the Hickory Police Department talked to all three drivers at the scene of the collision, prepared a diagram of the accident, and determined from the data he collected that defendant was traveling over eighty miles per hour when he struck Bass's vehicle. As he spoke with defendant, Officer Beach observed that defendant's speech was slurred, his eyes were bloodshot, and he had a strong odor of alcohol on his breath. In a search of defendant's vehicle to locate ownership information, Officer Beach found a single blue pill wrapped in clear plastic. At trial, Officer Beach testified that defendant had consumed "a sufficient quantity of some impairing substance to impair his mental physical faculties or both."
Defendant was transported by ambulance to the hospital. On arrival at the hospital, defendant was asked by Officer Jason Reynolds (Officer Reynolds) to submit to a blood alcohol test. Defendant refused and replied, "You can just take me to court." Defendant was charged with driving while impaired. Officer Reynolds served a search warrant on defendant at about 2:00 p.m., and defendant's blood was drawn by a nurse. On the basis of this sample, and a blood sample ordered by the attending emergency room doctor at 9:15 a.m., Paul Glover (Glover), research scientist and training specialist for the Department of Social Services, concluded defendant's blood alcohol concentration at the time of the accident was 0.17 g. per 100 ml. of blood. Glover also testified that the blood sample taken pursuant to the search warrant revealed the presence of alprazolam, which is sold by prescription under the brand name Xanax, and benzoylecgonine, a byproduct of cocaine. Glover noted that alcohol and alprazolam are both central nervous system depressants that affect walking, balance, and the ability to think. When alcohol and alprazolam are mixed together, the effects of both are intensified.
While defendant was in the hospital, he talked with his father. Their conversation was overheard by Officer Reynolds, who testified that at some point during the conversation he heard defend
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