State v. Lovett

460 S.E.2d 177 (1995)

STATE of North Carolina v. Antonio Bernard LOVETT.

No. COA95-255.

Court of Appeals of North Carolina.

August 1, 1995.

*180 Attorney Gen. Michael F. Easley by Asst. Atty. Gen. Linda M. Fox, for the State.

Paul J. Williams, Charlotte, for defendant-appellant.

ARNOLD, Chief Judge.

Defendant first argues that the trial court erred by denying his motion to suppress the blood test results. Specifically, defendant contends the chemical analyst did not give him a notice in writing of his rights in violation of N.C.Gen.Stat. § 20-16.2 (1993). We disagree.

N.C.Gen.Stat. § 20-16.2 (1993) provides in pertinent part as follows:

[B]efore any type of chemical analysis is administered the person charged must be taken before a chemical analyst authorized to administer a test of a person's breath, who must inform the person orally and also give the person a notice in writing that: (1) He has a right to refuse to be tested. (2) Refusal to take any required test or tests will result in an immediate revocation of his driving privilege for at least 10 days and an additional 12-month revocation by the Division of Motor Vehicles. (3) The test results, or the fact of his refusal, will be admissible in evidence at trial on the offense charged. (4) His driving privilege will be revoked immediately for at least 10 days if: a. The test reveals an alcohol concentration of 0.08 or more; or b. He was driving a commercial motor vehicle and the test reveals an alcohol concentration of 0.04 or more. (5) He may have a qualified person of his own choosing administer a chemical test or tests in addition to any test administered at the direction of the charging officer. (6) He has the right to call an attorney and select a witness to view for him the testing procedures, but the testing may not be delayed for these purposes longer than 30 minutes from the time he is notified of his rights.

Defendant does not contend that he was not informed orally of his rights or that he did not waive them. Instead, he contends the chemical analyst failed to "give" him notice in writing.

Evidence presented at the suppression hearing shows that the chemical analyst, Deputy Ploger, placed the written rights form with defendant's emergency room chart. Defendant was not capable of signing the form since his hands were strapped down and IVs were in both arms. Deputy Ploger testified that he would normally have placed the written rights form in defendant's "E.R. bag," but that defendant did not have one.

Deputy Ploger's placement of the written rights form with defendant's emergency room chart was tantamount to "giving" defendant notice in writing. In light of the treatment defendant was receiving for his injuries, there was effectively no other means by which the notice could have been given to him. Clearly, defendant was informed of his rights and he waived them. The trial court did not err by denying defendant's motion to suppress.

Defendant next argues that the trial court committed "plain error" by failing to instruct the jury on felony death by vehicle because it is a lesser included offense of involuntary manslaughter and by erroneously instructing the jury regarding misdemeanor death by vehicle. We disagree.

Defendant did not object to the trial court's omission of an instruction on felony death by vehicle. Nor did he assign error to *181 the trial court's instructions on this basis. He contends this Court should nonetheless address his argument pursuant to a "plain error" analysis.

The "plain error" rule, adopted by our Supreme Court in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983), allows for review of alleged errors although no objection was made to them at trial. The rule mitigates the potential harshness of Rules 10(b)(1) and 10(b)(2) of the North Carolina Rules of Appellate Procedure. However, the rule does not waive N.C.R.App.P. 10(a) which limits the scope of appellate review to the assignments of error set out in the record on appeal. Therefore, a "plain error" analysis is not available to defendant in this case since he failed to make the trial court's omission of the instruction in question, the subject of an assignment of error.

Even if the question were properly before this Court, it is meritless. It is well-settled that felony death by vehicle is not a lesser included offense of involuntary manslaughter. State v. Byers, 105 N.C.App. 377, 413 S.E.2d 586 (1992); State v. Williams, 90 N.C.App. 614, 369 S.E.2d 832, disc. review denied, 323 N.C. 369, 373 S.E.2d 555 (1988).

Defendant contends the trial court erred by instructing the jury that speeding was the underlying offense as to misdemeanor death by vehicle. While there was ample evidence to instruct that running the red light was the underlying offense, there was also sufficient evidence to show that speeding was the underlying offense. Defendant, having been found guilty of second degree murder, has failed to show that he was prejudiced in any way by the trial court's instruction as to misdemeanor death by vehicle. His argument is meritless.

Finally, defendant argues that the trial court erred by failing to find as a nonstatutory mitigating factor that he "showed remorse, was sorry, and accepted full responsibility." We disagree.

Failure to find a nonstatutory mitigating factor, even if it is supported by uncontradicted, substantial, and manifestly credible evidence, will not be disturbed absent an abuse of discretion. State v. Spears, 314 N.C. 319, 333 S.E.2d 242 (1985). In this case, the evidence showed that defendant told his cousin that he was sorry and took full responsibility, but he also said to his cousin: "[H]ey, I can't bring back anybody and the car is gone; so, you know, you got to keep on moving on." During sentencing, defendant asked the victim's family to forgive him for his negligence or irresponsibility. While this evidence may show that defendant had some regrets concerning his actions, particularly following his conviction for second degree murder, it does not mandate a finding of a nonstatutory mitigating factor. The trial court did not abuse its discretion by failing to find the factor.

We hold defendant had a fair trial, free from prejudicial error.

No error.

COZORT and GREENE, JJ., concur.