First recognized by this Court in State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969), overruled in part on other grounds by State v. Caddell, 287 N.C. 266, 290, 215 S.E.2d 348, 363 (1975), the defense of unconsciousness, or automatism, is a complete defense to a criminal charge. Jerrett, 309 N.C. at 264, 307 S.E.2d at 353. This is so because " '[t]he absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability.' " Id. (quoting Mercer, 275 N.C. at 116, 165 S.E.2d at 334). Unconsciousness is an affirmative defense, and the burden rests upon defendant to prove its existence to the satisfaction of the jury. Caddell, 287 N.C. at 290, 215 S.E.2d at 363. After a careful scrutiny of the transcript, we conclude that defendant has not met his burden.
[343 N.C. 713] Taking the evidence in the light most favorable to defendant, State v. McCray, 312 N.C. 519, 324 S.E.2d 606 (1985), defendant has failed to produce substantial evidence that he was so intoxicated that he could not form a deliberate and premeditated intent to kill. At best, the combined testimony of defendant and the other witnesses establishes that defendant was intoxicated at the time of the murders. Evidence of mere intoxication, however, is not sufficient to meet defendant's burden of production. State v. McQueen, 324 N.C. 118, 141, 377 S.E.2d 38, 51 (1989). Such testimony did not tend to show that "at the time of the killing the defendant's mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill." Mash, 323 N.C. at 346, 372 S.E.2d at 536; McQueen, 324 N.C. at 140, 377 S.E.2d at 51. Therefore, the trial court was not required to instruct on voluntary intoxication. Id. Defendant's assignment of error is overruled.
The rule in this jurisdiction is that where a person commits an act without being conscious thereof, the act is not a criminal act even though it would be a crime if it had been committed by a person who was conscious. State v. Boone, 307 N.C. 198, 297 S.E.2d 585 (1982); State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975);State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969). The defense, while related to insanity, is different from insanity inasmuch as unconsciousness at the time of the act need not be the result of a mental disease or defect. State v. Caddell, supra. Unconsciousness, sometimes referred to as automatism, is a complete defense to a criminal charge. State v. Mercer, supra. This is so because "[t]he absence of consciousness not only precludes the [309 N.C. 265] existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability." Id. at 116, 165 S.E.2d at 334 [quoting 1 Wharton's Criminal Law and Procedure (Anderson), § 50, p. 116.] Unconsciousness is an affirmative defense and the burden is on the defendant to prove its existence to the satisfaction of the jury. State v. Caddell, supra; State v. Williams, 296 N.C. 693, 252 S.E.2d 739 (1979).
Unconsciousness is a complete, affirmative defense to a criminal charge and the burden rests upon the defendant to prove its existence, unless it arises out of the State's own evidence, to the jury's satisfaction. State v. Boyd, 343 N.C. 699, 714, 473 S.E.2d 327, 334 (1996) (citing State v. Caddell, 287 N.C. 266, 290, 215 S.E.2d 348, 363 (1975), cert denied, 519 U.S. 1096, 136 L. Ed. 2d. 722 (1997)). The defense of unconsciousness, or automatism, requires that the person "though capable of action, is not conscious of what he is doing. It is to be equated with unconsciousness, involuntary action [and] implies that there must be some attendant disturbance of conscious awareness." State v. Fields, 324 N.C. 204, 208, 376 S.E.2d 740, 742 (1989) (citation and quotations omitted). Whether the defendant or State offers such evidence, the jurors are to determine if they are satisfied beyond a reasonable doubt that defendant voluntarily committed the act. Caddell, 287 N.C. at 297, 215 S.E.2d at 367.
A "trial court must instruct on all 'substantive' or 'material' features arising on the evidence and the law applicable thereto without a special request." State v. Jackson, 139 N.C. App. 721, 724, 535 S.E.2d 48, 50 (2000), overruled on other grounds, 353 N.C. 495, 546 S.E.2d 570 (2001). This Court has previously held that, "[f]or a particular defense to result in a required instruction, there must be substantial evidence of each element of the defense when viewing the evidence in a light most favorable to the defendant." State v. Brown, 182 N.C. App. 115, 118, 646 S.E.2d 775, 777, disc. review denied, 361 N.C. 431, 648 S.E.2d 848, cert. denied, ___ U.S. ___, 169 L. Ed. 2d 373
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF MECKLENBURG 08-CRS-, et al
STATE OF NORTH CAROLINA
NOTICE OF AUTOMATISM AND/OR INVOLUNTARY INTOXICATION
vs. NOTICE OF EXPERT TESTIMONY
MOTION TO SUPPRESS
_________________________,
Defendant. ______________________________________________
NOW COMES the Defendant, by and through counsel, and moves the Court suppress breath evidence collected from Defendant upon the grounds that said exclusion are required by the Constitution of the United States and the Constitution of North Carolina; that such evidence was obtained as a result of substantial violations of the provisions of Chapter 15A of the North Carolina General Statutes; that pursuant to State v. Boyd, 343 N.C. 699, 473 S.E.2d 327, (1996), State v. Caddell, 287 N.C. 266, 215 S.E.2d 348, (1975), cert denied, 519 U.S. 1096, 136 L. Ed. 2d. 722 (1997), State v. Fields, 324 N.C. 204, 376 S.E.2d 740, (1989), State v. Bunn, 283 N.C. 444, 196 S.E.2d 777(1973); State v. Williams, 343 N.C. 345, 471 S.E.2d 379, (1996), et al; and pursuant to N.C.G.S. 15A-901 (and associated Official Commentary) Defendant is informed, believes and therefore alleges that he was unconsciousness or otherwise suffering from automatism at all relevant times with regard to the above-referenced matter and that although capable of action, was not conscious of what he was doing where there was some attendant disturbance of conscious awareness, and that further Defendant was involuntarily intoxicated at all relevant times with regard to the above-reference matter.
The above facts are shown by Affidavit prepared upon information and belief attached hereto and incorporated herein by reference.
WHEREFORE, Defendant prays the Court:
1. That an Order issue suppressing the results of breath testing; and,
2. That the Court instruct the jury on the defenses of Automatism and Involuntary Intoxication; and,
3. That the Defendant be granted such other and further relief as the Court may deem just, fit and proper.
Respectfully submitted this the 28th day of January, 2009.
Powers McCartan, pllc
_____________________________
Bill Powers, Esquire
2412 Arty Avenue
Charlotte, North Carolina 28208
(704) 342-4357 Office
NCSB #: 19227
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF MECKLENBURG 08-CRS-, et al
STATE OF NORTH CAROLINA
AFFIDAVIT IN SUPPORT OF NOTICE
AND MOTION TO SUPPRESS
vs.
______________________,
Defendant. ________________________________________________
The undersigned, attesting to the veracity of the materials provided below, deposes and says as follows:
1. That he is duly licensed and authorized to practice law in the State of North Carolina and he is the retained counsel for the above-named Defendant in the above-captioned case.
2. That Defendant has not been provided Discovery materials by the State of North Carolina; yet counsel has examined the arrest materials / notes of the charging officer and further conducted cross examination of said officer at the District Court Trial and therefore prepares this Affidavit upon information and belief from materials previously prepared and/or testified to by the charging officer.
3. That it is alleged the Defendant was operating a motor vehicle on 7th Street, at or near the intersection of McDowell Street, in Charlotte, North Carolina within Mecklenburg County as reported by charging Officer xxxxxxxx of the Charlotte-Mecklenburg Police Department.
4. That the charging officer reports "Defendant was drifting between right lane and left lane at approximately 40mph. Defendant ran the red light at 7th and Independence. Defendant also did not have any headlights on, just parking lights and no tail lights."
5. That the charging officer determined "Defendant could not perform field sobriety tests. . ." and thereafter arrested Defendant for Driving While Impaired pursuant to N.C.G.S. §20-138.1.
6. That upon information and belief, Defendant was lawfully prescribed a sleep aid known as "Ambien" and had in fact taken said medication prior to going to bed.
7. That upon information and belief, Defendant fell deeply asleep and thereafter became unconscious or "automatistic" that though capable of action, was not conscious of what he was doing. That subject to the effects of Ambien, Defendant suffered from an attendant disturbance of conscious awareness.
8. That upon information and belief, Defendant has no memory of the event until becoming conscious in the Mecklenburg County Jail.
9. That upon information and belief, Defendant has no recollection of waking from sleep.
10. That upon information and belief, Defendant has no recollection of driving his vehicle.
11. That upon information and belief, Defendant has no recollection of speaking with the charging officer or submitting to Standardized Field Sobriety Tests.
12. That upon information and belief, Defendant has no recollection of submitting to breath testing on the AlcoSensor and the EC/IR II.
13. That upon information and belief, Defendant has no recollection of his rights being reviewed pursuant to N.C.G.S. §20-16.2(a).
14. That upon information and belief, Defendant has no recollection of signing the "Rights of Person Requested to Submit to Chemical Analysis to Determine Alcohol Concentration or Presence of Impairing Substance" form.
15. That upon information and belief, Defendant has no recollection of meeting with or speaking to the Magistrate.
16. That upon information and belief, Defendant was disoriented as to time, location or his whereabouts until the following morning.
17. That upon information and belief, Defendant was not wearing shoes at the time of his arrest.
18. That upon information and belief, Defendant was wearing "sleeping gear" when arrested as testified to previously by Officer xxxxxxx.
19. That Defendant could not knowingly, understandably or voluntarily understand or otherwise waive his rights regarding the collection of a breath sample.
20. That Defendant was temporarily incapable of asserting any of his rights, including but not limited to the right to remain silent, the right to consult with counsel, friends and family, the right to refuse testing, and the right to obtain alternate testing.
21. That the Defendant has not been provided discovery, as traditionally no right of discovery existed under Common Law and that the North Carolina General Assembly has specifically precluded Discovery to Defendants charged with Driving While Impaired. State v. Taylor, 327 N.C. 147, 393 S.E.2d 801, (1990).
23. That within the Official Commentary of N.C.G.S. §15A-901 it is noted, "As cases in District Court are tried before the judge, and usually on a fairly expeditious basis, the Commission decided there was no need at the present to provide for discovery procedures prior to trial in district court. As misdemeanors tried in superior court on trial de novo have already had a full trial in district court, there is little reason for requiring discovery after that trial and prior to the new trial in superior court."
24. That despite recent sweeping revisions to the Chapter 15A, specifically "Discovery in Superior Court" N.C.G.S. 15A-905, 904, 903 & 902, in addition to any other provision(s) regarding discovery and notice procedures within Chapter 15A, are inapplicable to the case at hand.
25. That within said "Discovery Procedures" certain reciprocal requirements regarding the introduction of certain evidence and defenses, notice provisions,et al are set forth.
26. That Defendant attaches herewith as "Exhibit A" and incorporates by reference as if fully set forth herein "The Blow" as published by the North Carolina Conference of District Attorneys.
27. That consistent with the Official Commentary of N.C.G.S. §15A-901, the State of North Carolina was made aware of Defendant's defenses in District Court, specifically including Automatism and Involuntary Intoxication.
28. That upon information and belief, the prosecuting attorney in District Court,
Ms. xxxxxxxxx, is the same prosecuting attorney for this matter in Superior Court.
29. That Defendant presents his Notice of Automatism and/or Involuntary Intoxication and Notice of Expert Testimony in good faith, while asserting that such is not required under North Carolina General Statutes or Common Law.
Respectfully submitted this the 28th day of January, 2009
` Powers McCartan, pllc
_____________________________
Bill Powers
2412 Arty Avenue
Charlotte, North Carolina 28208
(704) 342-4357 Office
NCSB #: 19227
SWORN and SUBSCRIBED before me,
a Notary Public this the 28th day of January, 2009.
____________________________________
Notary Public