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State v. Hudson8/6/1996
JOHN, Judge.
Defendant appeals convictions of three counts of involuntary manslaughter based upon violation of N.C. Gen. Stat. § 75A-10, "Operating boat . . . while intoxicated . . . ." (DWI boating). He contends the trial court erred in numerous respects, including its failure to submit DWI boating to the jury as a lesser included offense. We find this argument persuasive and award defendant a new trial.
The State's evidence at trial tended to show that on 6 June 1993, defendant, Amy Stevens (Stevens) and Jason Charlton (Charlton) traveled from defendant's home on Lake Wylie to the lakefront Bourbon Street Yacht Club (the club) in defendant's 19 foot Javelin bass boat. They arrived at approximately 9:00 p.m. During the course of the evening, defendant was observed consuming alcoholic beverages and socializing with friends, including Tracey Hamilton (Hamilton). Hamilton requested a ride in defendant's boat, and defendant consented because he had agreed to take Charlton and Stevens back across the lake that night. The four left the club at approximately midnight and headed south on the lake with defendant operating the boat.
That same evening, Rusty Hill (Hill) was traveling in a northerly direction on Lake Wylie in his 26-foot Chris-Craft cabin cruiser. Hill was proceeding at a cruising speed of approximately 18-22 miles per hour when he glanced towards the shore to look at a miniature lighthouse on property belonging to Ken Wilson (Wilson). As Hill directed his attention back to the water in front of him, his cabin cruiser collided with defendant's boat, sending the cruiser airborne. Hamilton, Stevens and Charlton were killed instantly as a result of the collision.
Defendant's uncontradicted testimony was that immediately before the accident, he had engaged the boat's idle device, or "hot foot," and allowed it to proceed at approximately 1-2 m.p.h. as he approached Wilson's lighthouse. He then retrieved a floatation device for Hamilton to sit on from a storage compartment near the front of the boat, and next bent down under the console to reach a shirt. He remembered nothing else except regaining consciousness in the hospital about one week later.
Although there was no actual witness to the collision, the defense presented unrefuted testimony from two accident reconstruction experts. Each stated that at the moment of impact, Hill's larger boat was traveling at approximately 20 m.p.h. while defendant's boat was either merely idling in the water or moving at a speed of less than 2 m.p.h., and that the larger boat overran the smaller. A test performed by hospital staff indicated defendant was intoxicated, while no alcohol was detected in Hill's blood.
On 21 September 1993, defendant was charged with three counts of involuntary manslaughter in the deaths of Stevens, Charlton, and Hamilton. Guilty verdicts were returned in each case 29 July 1994. Upon judgment entered upon these verdicts and imposition of a sentence totaling nine years, defendant appeals.
Prior to addressing the merits of defendant's appeal, we observe his appellate brief is 42 pages in length, thereby exceeding the 35 page limit prescribed by N.C.R. App. P. 28(j). At oral argument, defendant's counsel proffered minimal justification for this rule violation. Consequently, pursuant to our authority under N.C.R. App. P. 25(b), we impose upon counsel a fine and reimbursement of copying expenses in a total amount of $500.00, to be paid by counsel personally.
Turning to defendant's appeal, and notwithstanding objection by the State, we exercise our discretion, see N.C.R. App. P. 2, to consider defendant's argument that the trial court erred by failing
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