By Dave Russell
Asheville lawyer Stephen Lindsay said his client, Mary Harper, might not have been behind the wheel Nov. 4, 2017, when her Subaru crashed, killing her passenger.
He thinks DNA testing might prove it.
Harper, 38, of Sylva, was indicted in Jan. 2018 on a felony death by vehicle charge.
She stands accused of drinking alcohol at her workplace, the now-shuttered No Name Sports Bar, and getting into her car with a passenger, Shannon Rae Marsden, 28, also of Sylva. The car wrecked about a mile down Skyland Drive, killing Marsden and severely injuring Harper.
She is suspected of driving with a blood alcohol content of .17 percent, more than double the state’s 0.08 legal limit.
“This is a horrible, horrible case,” Lindsay said. “One person died, Mary Harper almost died. The injuries she suffered were substantial. She had well over $100,000 in medical costs just to keep her alive. She has absolutely no recall of any of this.”
Who was driving Harper’s 2005 Impreza when it crashed into a utility pole and overturned is a question that needs to be answered, Lindsay said.
“What we are having to do since there were just these two people, is that the state and I are trying to put this back together, to reconstruct what happened to figure out who in fact was driving,” he said. “There are a whole lot of question marks there that are yet to be answered.”
DNA tests on various places in the vehicle have been performed in an attempt to answer that question, Lindsay said.
“DNA testing might help us understand who made contact with the vehicle,” he said. “In a vehicle rollover like this, it’s kind of like a washing machine turning around and around and around. When you have things that aren’t fastened down, like people without seat belts, they tumble around and move about and it’s very, very hard to figure out where they were at any given time.”
N.C. Alcohol Law Enforcement officers interviewed Harper’s fellow employees at the No Name and confirmed that Marsden and Harper had consumed alcoholic beverages prior to the accident, documents show.
A probable cause affidavit filed for a search of Harper’s Subaru stated No Name employee Colt Hoyle told agents “he had spoken with and observed Marsden and Harper enter Harper’s red 2005 Subaru Impreza” and leave the parking lot.
However, Hoyle’s statement makes no mention of who was driving.
As a result of Harper having no recall of the events of that night, Lindsay filed an affirmative defenses document with the state.
“In the criminal case, the rules require me in defending somebody to let the state know if I am intending to rely upon the mental state of the person I am representing,” he said.
By holding that she lost her memory, Harper could offer one of four affirmative defenses:
• Voluntary intoxication is a plea stating Harper knows of test results that show alcohol present in her system, but does not recall consuming alcohol.
• Involuntary intoxication would apply if Harper were given the intoxicating beverages by a third party without her knowledge.
• Automatism is a defense that says she would not be aware of her actions and “may have been functioning in an automated state” rendering her incapable of intentionally breaking the law.
• Diminished capacity would apply if the defendant was so severely intoxicated or suffering from some mental defect that rendered her unable to form intent.
“Because she can’t recall, I’m letting them know that mental condition is going to be an issue in this case,” Lindsay said.
Marsden’s family has filed a civil suit against Harper seeking in excess of $25,000.