NO. COA14-175
NORTH CAROLINA COURT OF APPEALS
Filed: 2 December 2014
STATE OF NORTH CAROLINA
Pitt County
v.
No. 12 CRS 50689
JAMES M. ROBERTS
Appeal by defendant from judgment entered 27 June 2013 by
Judge Christopher W. Bragg in Pitt County Superior Court. Heard
in the Court of Appeals 11 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Derrick C. Mertz, for the State.
The Robinson Law Firm, P.A., by Leslie S. Robinson, for
Defendant.
ERVIN, Judge.
Defendant James M. Roberts appeals from a judgment entered
based upon his conviction for driving while subject to an
impairing substance. On appeal, Defendant argues that the trial
court erred by allowing the use of an unconstitutional mandatory
presumption regarding the effect of the results of the chemical
analysis of Defendant’s breath that was admitted into evidence,
allowing the admission of evidence concerning the result of a
chemical analysis of his breath, erroneously instructing the
jury concerning the extent to which the chemical analyst had
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complied with the applicable regulations and the extent to which
the time stamps shown on a video introduced into evidence
accurately reflected the amount of time that elapsed during the
time that certain events occurred, denying his motion to dismiss
the charge that had been lodged against him based upon the
State’s failure to prosecute other similarly situated defendants
using the presentment process, failing to intervene without
objection to preclude the prosecutor from making inappropriate
comments during her final argument, and placing him in jeopardy
twice for the same offense by using the results of a chemical
analysis of his breath to establish both the factual basis
needed to support his guilty plea and as the primary support for
the aggravating factor that the jury found to exist for
sentencing-related purposes. After careful consideration of
Defendant’s challenges to the trial court’s judgment in light of
the record and the applicable law, we conclude that the trial
court’s judgment should remain undisturbed.
I. Factual Background
A. Substantive Facts
At approximately 8:00 p.m. on 26 January 2012, Defendant
was seen in the parking lot of a Harris Teeter grocery store.
At that time, Defendant was walking in a slow, unsteady manner
and appeared to be having trouble locating his vehicle. After
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making these observations, Robert Aiken approached Defendant for
the purpose of ascertaining if he needed assistance. However,
Defendant failed to make eye contact with or otherwise
acknowledge Mr. Aiken’s presence. According to Mr. Aiken,
Defendant was “wasted.”
After noticing that Defendant had purchased beer, Mr. Aiken
enlisted the help of another man in an attempt to prevent
Defendant from getting in his car and driving away. As this was
occurring, Trooper William Brown of the North Carolina State
Highway Patrol arrived in the parking lot. Mr. Aiken flagged
Trooper Brown down and told Trooper Brown what he had observed.
As Mr. Aiken talked with Trooper Brown, Defendant reached his
automobile, placed a bag in the vehicle’s interior, and walked
away.
After learning of Defendant’s condition from Mr. Aiken,
Trooper Brown waited to see if Defendant would return to his
vehicle. About 30 minutes later, Defendant returned to the
parking space in which his automobile was located, entered his
vehicle, and began driving out of the parking lot. While
following Defendant, Trooper Brown observed that Defendant
crossed the fog line twice and ran a red light. As a result,
Trooper Brown stopped Defendant’s vehicle, placed Defendant
under arrest for driving while subject to an impairing
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substance, and transported Defendant to the Pitt County
Detention Center for the purpose of chemically testing
Defendant’s breath for the presence of alcohol.
After Trooper Brown and Defendant reached the testing room,
Trooper Brown removed Defendant’s handcuffs and asked Defendant
if he had anything in his mouth. In response, Defendant
mentioned “Copenhagen,” raked his finger between his lips and
his teeth, and displayed a tin of Copenhagen chewing tobacco.
Trooper Brown did not, however, see anything in Defendant’s
mouth. Although Defendant wanted to wash his mouth out before
the chemical test of his breath was administered, Trooper Brown
refused to allow Defendant to do so.
At 9:22 p.m., Trooper Brown advised Defendant of his rights
relating to the testing process and began the statutory
observation period, during which he was required to ensure that
Defendant did not put anything in his mouth, regurgitate, vomit,
smoke, eat, or drink. At 9:33 p.m., Defendant exercised his
right to call someone in an attempt to obtain the presence of a
witness during the testing process. Shortly thereafter, Trooper
Brown left the testing room with Defendant for the purpose of
allowing Defendant to use the restroom. After Trooper Brown and
Defendant returned to the testing room, Defendant placed his
fingers in his mouth, causing Trooper Brown to place Defendant
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in handcuffs and initiate a new observation period, which began
at 9:52 p.m.
At 10:06 p.m., Trooper Brown and Defendant left the testing
room for the purpose of ascertaining if Defendant’s witness had
arrived. During that process, Defendant wiped his mouth on his
jacket on two separate occasions. Upon returning to the testing
room, Trooper Brown took three samples of Defendant’s breath,
after which he reported that Defendant had a 0.19 blood alcohol
level.
B. Procedural History
On 26 January 2012, a citation charging Defendant with
driving while subject to an impairing substance was issued. On
13 August 2012, the Pitt County grand jury returned a
presentment requesting the District Attorney to investigate the
underlying circumstances and submit a bill of indictment
charging Defendant with driving while subject to an impairing
substance. On that same date, the Pitt County grand jury
returned a bill of indictment charging Defendant with driving
while subject to an impairing substance.
The charge against Defendant came on for trial at the 24
June 2013 criminal session of the Pitt County Superior Court.
On 25 June 2013, the trial court summarily denied Defendant’s
Motion to Suppress Evidence (Miranda) and denied in part and
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granted in part Defendant’s Motion in Limine and/or Motion to
Prohibit the State From Introducing Any Expert Testimony. On 26
June 2013, the trial court denied Defendant’s Motion to Dismiss,
Motion to Suppress Chemical Analysis of Breath, and Motion to
Suppress Evidence (Investigatory Stop & Seizure).1 After the
trial court announced its rulings with respect to Defendant’s
pre-trial motions, Defendant entered a plea of guilty to driving
while subject to an impairing substance while preserving his
right to seek appellate review of the denial of his pretrial
motions. After concluding that there was a factual basis for
Defendant’s plea, the trial court accepted his plea of guilty.
On 26 June 2013, the issue of whether Defendant had a blood
alcohol concentration of 0.15 or more within a relevant time
after driving came on for hearing before the trial court and a
jury. On 27 June 2013, the jury returned a verdict finding the
existence of the aggravating factor delineated in N.C. Gen.
Stat. § 20-179(d)(1). At the conclusion of the ensuing
sentencing hearing, the trial court determined that Level III
punishment should be imposed and entered a judgment sentencing
Defendant to a term of 90 days imprisonment in the custody of
the Sheriff of Pitt County, suspending Defendant’s sentence, and
placing Defendant on supervised probation for 12 months on the
1
The trial court entered written orders denying these
motions on 13 August 2013.
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condition that he pay the court costs and a $1,000 fine,
surrender his driver’s license and not operate a motor vehicle
until properly licensed to do so, complete 72 hours of community
service within 60 days, abstain from alcohol consumption for a
period of 60 days as verified by a continuous alcohol monitoring
system, and comply with the usual terms and conditions of
probation.2 Defendant noted an appeal to this Court from the
trial court’s judgment.
II. Substantive Legal Analysis
A. Validity of Breath Test Result Presumption
In his first challenge to the trial court’s judgment,
Defendant contends that language added to N.C. Gen. Stat. § 20-
179(d)(1) in 2007 creates an unconstitutional mandatory
presumption. More specifically, Defendant contends that the
statutory provision to the effect that the result of a chemical
test of a defendant’s breath for the presence of alcohol “shall
be conclusive, and shall not be subject to modification by any
party” for purposes of determining that Defendant’s sentence
should be enhanced violates his federal and state constitutional
rights not to be deprived of liberty without due process of law
2
According to the transcript developed during the trial of
this case, the judgment was entered on 27 June 2013. However,
the judgment included in the record on appeal is dated 25 June
2013, a clerical error that creates the necessity for us to
remand this case to the trial court for correction.
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and to have the existence of an aggravating factor proven beyond
a reasonable doubt. N.C. Gen. Stat. § 20-179(d)(1). We do not
believe that Defendant is entitled to relief from the trial
court’s judgment on the basis of this contention.
“The standard of review for alleged violations of
constitutional rights is de novo.” State v. Graham, 200 N.C.
App. 204, 214, 683 S.E.2d 437, 444 (2009), disc. review denied,
363 N.C. 857, 694 S.E.2d 766-67 (2010); see also Piedmont Triad
Reg’l Water Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543
S.E.2d 844, 848 (2001) (stating that “de novo review is
ordinarily appropriate in cases where constitutional rights are
implicated”). “‘Under a de novo review, the court considers the
matter anew and freely substitutes its own judgment’ for that of
the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33,
669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen,
Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
According to N.C. Gen. Stat. § 20-179(d)(1), an aggravated
sentence can be imposed following a defendant’s conviction for
driving while subject to an impairing substance in the event
that there is:
Gross impairment of the defendant’s
faculties while driving or an alcohol
concentration of 0.15 or more within a
relevant time after driving. For purposes
of this subdivision, the results of a
chemical analysis presented at trial or
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sentencing shall be sufficient to prove the
person’s alcohol concentration, shall be
conclusive, and shall not be subject to
modification by any party, with or without
approval by the court.
The trial court did not, however, include the language to which
Defendant’s constitutional challenge is directed in its
instructions to the jury concerning the extent, if any, to which
the jury should find that Defendant’s sentence should be
enhanced pursuant to N.C. Gen. Stat. § 20-179(d)(1). Instead,
the trial court instructed the jury that:
when a defendant denies the existence of an
aggravating factor, he is not required to
prove that the aggravating factor does not
exist. It is presumed that the aggravating
factor does not exist. The State must prove
to you beyond a reasonable doubt that the
aggravating factor exists.
In addition, the trial court instructed the jury that, although
“the testing procedures and test results are admissible . . .
you are the sole judges of the credibility and weight to be
given to any evidence, and you must determine the importance of
this evidence in light of all other believable evidence.”
Finally, the trial court instructed the jury that:
The defendant having pled guilty to Driving
While Impaired, you must now consider the
following question: Do you find from the
evidence beyond a reasonable doubt the
existence of the following aggravating
factor?
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The defendant had an alcohol concentration
of .15 or more at the time of the offense or
within a relevant time of the driving
involved in this offense.
If you find from the evidence beyond a
reasonable doubt that the aggravating factor
exists, then you will write “yes” in the
space after the aggravating factor on the
verdict sheet. If you have found the
existence of the aggravating factor and have
written “yes” in the space after the
aggravating factor, then you will also
answer Issue One “yes” and write “yes” in
the space after Issue One on the verdict
sheet.
As a result, instead of instructing the jury in accordance with
the portion of N.C. Gen. Stat. § 20-179(d)(1) upon which
Defendant’s constitutional challenge to the trial court’s
judgment is based, the trial court refrained from incorporating
any reference to the allegedly impermissible mandatory
presumption into its instructions and specifically instructed
the prosecutor to refrain from making any reference to the
challenged language in the presence of the jury.
A criminal defendant lacks standing to challenge the
constitutionality of a specific statutory provision in the
absence of a showing he has suffered, or is likely to suffer, an
injury stemming from the application of the challenged provision
in the case in which he is involved. See Messer v. Town of
Chapel Hill, 346 N.C. 259, 260, 485 S.E.2d 269, 270 (1997)
(stating that “[s]tanding to challenge the constitutionality of
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a legislative enactment exists where the litigant has suffered,
or is likely to suffer, a direct injury as a result of the law’s
enforcement”) (internal quotation marks and citation omitted);
State v. Fredell, 283 N.C. 242, 247, 195 S.E.2d 300, 304 (1973)
(stating that, “[u]niformly, the accused has been permitted to
assert the invalidity of the law only upon a showing that his
rights were adversely affected by the particular feature of the
statute alleged to be in conflict with the Constitution”). In
the absence of such a showing, the defendant is precluded from
attacking the constitutionality of the relevant statutory
provision. See Poore v. Poore, 201 N.C. 791, 792, 161 S.E. 532,
533 (1931) (stating that “[i]t is no part of the function of the
courts, in the exercise of the judicial power vested in them by
the Constitution, to give advisory opinions, or to answer moot
questions, or to maintain a legal bureau for those who may
chance to be interested, for the time being, in the pursuit of
some academic matter”) (citations omitted). Defendant has not
directed our attention to any portion of the record which tends
to suggest that the jury’s decision to find the existence of the
aggravating factor set out in N.C. Gen. Stat. § 20-179(d)(1) was
in any way affected by the statutory provision upon which
Defendant’s constitutional argument rests. As a result,
Defendant lacks the standing necessary to support a challenge to
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the constitutionality of the statutory provision discussed in
his brief and is not, for that reason, entitled to relief from
the trial court’s judgment on the basis of this argument.
B. Admissibility of the Breath Test Results
Secondly, Defendant argues that the trial court erred by
failing to suppress the results of the chemical analysis of his
breath that Trooper Brown performed following Defendant’s
arrest. More specifically, Defendant contends that, since
Trooper Brown failed to satisfactorily comply with the statutory
requirement that there be a fifteen minute “observation period”
prior to the administration of the chemical test of Defendant’s
breath mandated by N.C. Gen. Stat. § 20-139.1, the trial court
should have granted his motion to suppress the breath test
results and refused to allow the admission of the chemical
analysis results into evidence. Defendant’s argument lacks
merit.
1. Standard of Review
As this Court has previously recognized, a defendant is
entitled to challenge the denial of a motion to suppress the
result of a chemical test of his breath as having been obtained
in violation of the applicable provisions of the General
Statutes by means of a motion to suppress filed pursuant to N.C.
Gen. Stat. § 15A-974. State v. Hatley, 190 N.C. App. 639, 642-
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44, 661 S.E.2d 43, 45-46 (2008). “Our review of a denial of a
motion to suppress by the trial court is ‘limited to determining
whether the trial judge’s underlying findings of fact are
supported by competent evidence, in which event they are
conclusively binding on appeal, and whether those factual
findings in turn support the judge’s ultimate conclusions of
law.’” State v. Barden, 356 N.C. 316, 340, 572 S.E.2d 108, 125
(2002) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d
618, 619 (1982)), cert. denied, 538 U.S. 1040, 123 S. Ct. 2087,
155 L. Ed. 2d 1074 (2003).
2. Applicable Legal Principles
N.C. Gen. Stat. § 20-139.1(b)(1) provides that a chemical
analysis of a defendant’s breath is admissible if “[i]t is
performed in accordance with the rules of the Department of
Health and Human Services.” According to 10A N.C.A.C.
41B.0322(2), which governs testing performed using equipment
designed to analyze a defendant’s breath, the analyst must have
ensured that the applicable “observation period requirements
have been met.” The applicable regulations define “observation
period” as:
a period during which a chemical analyst
observes the person or persons to be tested
to determine that the person or persons has
not ingested alcohol or other fluids,
regurgitated, vomited, eaten, or smoked in
the 15 minutes immediately prior to the
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collection of a breath specimen. The
chemical analyst may observe while
conducting the operational procedures in
using a breath-testing instrument. Dental
devices or oral jewelry need not be removed.
10 N.C.A.C. 41B.0101(6). According to well-established North
Carolina law, the State bears the burden of proving compliance
with the “observation period” requirement set out in N.C. Gen.
Stat. § 20-139.1. State v. Drdak, 101 N.C. App. 659, 664, 400
S.E.2d 773, 775 (1991), rev’d on other grounds, 330 N.C. 587,
411 S.E.2d 604 (1992); State v. Gray, 28 N.C. App. 506, 507, 221
S.E.2d 765, 765 (1976). In his brief, Defendant argues that
Trooper Brown violated the “observation period” requirement by
leaving Defendant alone on two occasions, failing to observe
that Defendant had wiped his face or mouth on his jacket twice,
and focusing his attention on unrelated activities, and that
these violations of the “observation period” requirement should
have led to the suppression of Defendant’s breath test results.
We do not find this argument persuasive.
3. Evidentiary Analysis
As an initial matter, Defendant was accompanied by Trooper
Brown on both of the occasions when he left the chemical testing
room. For that reason, we are unable to find any record support
for Defendant’s contention that Trooper Brown left him alone on
two occasions during the required observation period. In
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addition, Defendant fails to specify the exact conduct in which
Trooper Brown engaged at the time that he allegedly focused his
attention on irrelevant matters. However, Trooper Brown did
acknowledge that there were “split second[s]” when his eyes were
not trained directly on Defendant and that there were times
during which his “attention [was both] on [Defendant] and where
[he was] going.” As a result, Defendant’s contention that
Trooper Brown failed to satisfy the observation requirement
hinges upon the fact that, when Trooper Brown and Defendant left
the testing room at 10:06 p.m. in order to ascertain if
Defendant’s witness had arrived, Trooper Brown allowed Defendant
to walk behind him and may have failed to observe that Defendant
wiped his mouth on his jacket on two occasions.
According to Defendant, the term “to observe” means “to
watch carefully[,] especially with attention to details or
behavior for the purpose of arriving at a judgment.” Merriam-
Webster Dictionary. Although we agree with Defendant that the
concept of “observation” as outlined in 10A N.C.A.C. 41B.0322(2)
contemplates the maintenance of a careful watch over the subject
to be tested, a proper resolution of Defendant’s challenge to
the trial court’s ruling must necessarily depend on the purpose
for which the observation period requirement was imposed. As we
have already noted, the observation period requirement was
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adopted to ensure that “a chemical analyst observes the person
or persons to be tested to determine that the person or persons
has not ingested alcohol or other fluids, regurgitated, vomited,
eaten, or smoked in the 15 minutes immediately prior to the
collection of a breath specimen.” 10A N.C.A.C. 41B.0101(6). As
a result, since the analyst is supposed to focus his or her
observations on the extent, if any, to which any event that
might affect the accuracy of the test has occurred, nothing in
the relevant regulatory language requires the analyst to stare
at the person to be tested in an unwavering manner for a fifteen
minute period prior to the administration of the test.3 Thus,
given that the record shows that Trooper Brown observed
Defendant over the course of a period of 21 minutes, during
which Defendant did not “ingest[] alcohol or other fluids,
regurgitate[], vomit[], eat[], or smoke[],” 10A N.C.A.C.
41B.0101(6), and during which Trooper Brown only lost direct
sight of Defendant for very brief intervals in the course of
attempting to ensure that Defendant’s right to the presence of a
witness was adequately protected, we are unable to conclude that
3
Our determination to this effect is reinforced by the fact
that the applicable regulations were amended in 2001 so as to
allow a single officer to observe multiple subjects
simultaneously. Should an analyst be required to act in the
manner described in Defendant’s brief, an analyst could never,
as the 2001 amendment allows, properly observe more than one
subject at a time.
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the trial court erred by determining that Trooper Brown failed
to comply with the applicable observation period requirement.
As a result, Defendant is not entitled to relief from the trial
court’s judgment based upon the denial of his motion to suppress
the results of the chemical analysis of his breath.
C. Trial Court’s Instructions
Thirdly, Defendant argues that the trial court erred by
instructing the jury that the trial court had previously
determined that the breath test upon which the State relied had
been performed in accordance with the applicable regulations, so
that the test results were admissible, and that the video
footage of Defendant’s activities in the breath testing room did
not reflect the actual elapsed time because of the manner in
which the video camera in question operated. According to
Defendant, the challenged instructions constituted an
impermissible expression of opinion and lacked adequate
evidentiary support. We do not find Defendant’s arguments
persuasive.
1. Admissibility of the Chemical Test Results
In his first challenge to the trial court’s instructions,
Defendant argues that the trial court erred by stating that:
earlier in this case and out of your
presence[,] the Court heard evidence
regarding the chemical analysis testing of
the Defendant . . . by Trooper Brown. The
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Court has concluded that Trooper Brown
followed the North Carolina Department of
Health and Human Services regulations and
standards regarding the chemical analysis of
the Defendant’s breath and that the testing
procedures and test results are admissible
for purposes of this trial.
The trial court delivered the challenged instruction in light of
the State’s objection to the “attack on the chemical analysis”
made in Defendant’s opening argument. Although the trial court
allowed Defendant’s trial counsel to attack the credibility of
and the weight to be given to the chemical analysis, it
concluded that an instruction to the effect that the trial court
had deemed the chemical test results to be admissible would be
appropriate in order to eliminate any concern that the jury
might have about the admissibility of the breath test results.
In his brief, Defendant contends that the trial court’s
instruction violated N.C. Gen. Stat. § 15A-1222, which provides
that “[t]he judge may not express during any stage of the trial,
any opinion in the presence of the jury on any question of fact
to be decided by the jury,” and N.C. Gen. Stat. § 15A-1232,
which provides that, “[i]n instructing the jury, the judge shall
not express an opinion as to whether or not a fact has been
proved and shall not be required to state, summarize or
recapitulate the evidence, or to explain the application of the
law to the evidence.” Although the relevant statutory
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provisions prohibit the trial court from “express[ing] any
opinion as to the weight to be given to or credibility of any
competent evidence presented before the jury,” State v. Fleming,
350 N.C. 109, 126, 512 S.E.2d 720, 733 (internal quotation marks
and citation omitted), cert. denied, 528 U.S. 941, 120 S. Ct.
351, 145 L. Ed. 2d 274 (1999), we are not persuaded that the
trial court expressed such an opinion in this instance. On the
contrary, the challenged portion of the trial court’s
instruction related to the admissibility of the chemical test,
which is a legal determination to be made by the trial court,
see N.C. Gen. Stat. § 8C-104(a), rather than an issue of fact to
be determined by the jury. In addition, Defendant’s argument
overlooks the trial court’s subsequent statement that, “[a]s I
have previously instructed you, you are the sole judges of the
credibility and the weight to be given to any evidence and you
must determine the importance of this evidence in light of all
other believable evidence.” After carefully analyzing the trial
court’s instructions in their entirety, we are unable to see how
the challenged instruction in any way impinged on the jury’s
right to make a determination concerning the credibility of or
the weight to be given to the chemical test results. As a
result, we do not believe that the trial court expressed an
opinion about a matter of fact that the jury was required to
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decide in order to determine whether the aggravating factor set
out in N.C. Gen. Stat. § 20-179(d)(1) existed.
2. Testing Room Camera
Secondly, Defendant challenges the appropriateness of the
trial court’s instruction that:
on the video that you watched concerning
[Defendant] and Trooper Brown in the Intox
room in the Pitt County Sheriff’s Detention
Center, that the numbers on the bottom of
that indicate the length of the tape. Okay?
It is not a true or accurate reflection of
the time. The reason being is the cameras
in the Intox room are . . . motion
activated. If someone walks into the room,
the camera will begin to record
automatically. In fact, it will start and
record ten seconds before. When someone
walks out of the room, ten seconds later the
camera will stop. It does not—and then when
someone walks back into the room, whether
it’s a minute, two minutes, 10 minutes, or
30 minutes later, the camera will resume
recording from where it stopped. So it does
not show accurate reflections of the length
of the time. That number on the bottom is
the total amount of recorded time.
In challenging this instruction, Defendant contends that the
record did not contain any support for the trial court’s
comments. Once again, we do not find Defendant’s argument
persuasive.
The testing room video was introduced into evidence at the
hearing concerning the existence of the aggravating factor set
out in N.C. Gen. Stat. § 20-179(d)(1) by Defendant, rather than
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by the State. Admittedly, the State did introduce the testing
room video during the hearing held in connection with
Defendant’s motion to suppress the test results, at which
counsel for both parties stipulated to the video’s authenticity
and acknowledged that the video did not accurately depict the
amount of time that actually transpired during the events
depicted on the resulting footage given that the camera used to
produce the video stopped recording 10 seconds after any persons
in the testing room left and resumed recording when someone re-
entered the room. As a result, the parties both appeared to
have agreed during an earlier stage of this proceeding that the
durational information shown on the video did not accurately
reflect the time that actually elapsed during the events
depicted on the resulting video footage.
In the course of his closing argument, Defendant’s trial
counsel implied that the video accurately depicted the amount of
time covered in the recording. More specifically, Defendant’s
trial counsel argued that:
Now here’s what we know for absolute sure if
you look at the video, look at the time.
From the time Trooper Brown and [Defendant]
walk out to go to that bathroom until the
time that they come back in is 35 seconds—35
seconds. So he is gone, walked out, gone
down to the bathroom down the hallway, done
all these horrible things he’s described and
come back, and he’s in the room in about 34—
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it would be 34 seconds if you look at the
video.
After the State objected to the argument being made by
Defendant’s trial counsel and requested the trial court to
deliver a curative instruction, the trial court told Defendant’s
trial counsel that “You’re saying that these things are true
when I know them not to be true, and you’re saying because the
State didn’t prove that, I can argue that they’re not true or
didn’t offer evidence on that. And . . . I can’t accept that.”
As a result, the trial court gave the curative instruction about
which Defendant now complains.
As a general proposition, “one who causes . . . the court
to commit error is not in a position to repudiate his action and
assign it as ground for a new [sentencing hearing].” State v.
Payne, 280 N.C. 170, 171, 185 S.E.2d 101, 102 (1971); see also
N.C. Gen. Stat. § 15A-1443(c) (stating that “[a] defendant is
not prejudiced . . . by error resulting from his own conduct”).
In view of the fact that the argument advanced by Defendant’s
trial counsel conflicted with Defendant’s earlier assertions
concerning the manner in which the timing mechanism on the
testing room video equipment operated, we see no error of law in
the trial court’s decision to correct the record using
information to which Defendant had, in effect, previously
stipulated. As a result, Defendant is not entitled to relief
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from the trial court’s judgment on the basis of the alleged
instructional errors discussed in his brief.
D. Prosecution by Presentment
Fourthly, Defendant argues that the State deprived him of
the equal protection of the laws by initiating the present
proceeding using a presentment instead of prosecuting him in
reliance upon the issuance of a citation.4 More specifically,
Defendant, who is a licensed attorney, argues that he was denied
his right to equal protection of the laws given that other
attorneys who had been charged with driving while subject to an
impairing substance had been charged using a citation rather
than the presentment process. Defendant is not entitled to
4
As an aside, we note that, although the argument heading
contained in the relevant portion of his brief makes reference
to a due process violation, Defendant did not advance any
argument in the body of his brief to the effect that he had been
deprived of his liberty without due process of law as the result
of the State’s reliance upon the presentment process. For that
reason, Defendant has abandoned any due process claim that he
might have intended to assert. N.C. R. App. P. 28(b)(6)
(stating that “[i]ssues not presented in a party’s brief, or in
support of which no reason or argument is stated, will be taken
as abandoned.”); Viar v. North Carolina Dep’t of Transportation,
359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (stating that
“[i]t is not the role of the appellate courts . . . to create an
appeal for the appellant”). Thus, the discussion in the text of
this opinion will focus entirely on Defendant’s equal protection
claim.
-24-
relief from the trial court’s judgment on the basis of this
argument.5
As a result of the fact that, as Defendant acknowledges,
attorneys practicing in Pitt and surrounding counties do not
constitute a suspect class, the challenged governmental conduct
must be upheld if “there is a rational relationship between
disparity of treatment and some legitimate governmental
purpose.” Central State University v. American Assoc. of
University Professors, 526 U.S. 124, 128, 119 S. Ct. 1162, 1163,
143 L. Ed. 2d 227, 231 (1999) (citing Heller v. Doe, 509 U.S.
312, 319-21, 113 S. Ct. 2637, 2639, 125 L. Ed. 2d 257, 266
(1993)). In other words, in the present context, “the burden
is on the one attacking the [act] to negate every conceivable
basis which might support it.” Heller, 509 U.S. at 320, 113 S.
Ct. at 2643, 125 L. Ed. 2d at 271 (internal quotation marks and
citations omitted). As a result, in order to obtain relief from
the trial court’s judgment on the basis of this claim, Defendant
5
Although the State has not addressed this issue in its
brief, we question whether Defendant waived his right to
challenge the denial of his dismissal motion on appeal by
pleading guilty. State v. White, 213 N.C. App. 181, 183, 711
S.E.2d 862, 864 (2011) (holding that a defendant is entitled to
challenge only a limited number of issues after entering a plea
of guilty, with the denial of a dismissal motion not being
included among them) (citations omitted). However, given that
the parties have not addressed this issue in their briefs in any
detail and the fact that Defendant’s contention lacks merit as a
substantive matter, we will simply assume, without in any way
deciding, that Defendant’s contention is properly before us.
-25-
must show that there was no rational basis for proceeding
against him utilizing the presentment process rather than using
a citation as the charging instrument.
As the record clearly reflects, Defendant is an attorney
who lives and practices in Pitt County and who has had dealings
with the court system and the District Attorney’s Office. For
this reason, the district court and superior court judges
residing in Pitt County recused themselves from presiding over
Defendant’s case and the District Attorney’s Office recused
itself from prosecuting the charge that had been lodged against
Defendant. For that reason, Defendant was prosecuted by a
special prosecutor and the trial of this case was presided over
by a jurist brought in from a different division. As the State
notes, considerations of judicial economy justified the use of
the presentment process, given that proceeding against Defendant
by presentment rather than citation obviated the necessity for
utilizing a special prosecutor and a non-resident trial judge on
two occasions, rather than one. As a result, given that the
State clearly had a rational basis for proceeding against
Defendant by means of a presentment rather than on the basis of
a citation, Defendant is not entitled to relief from the trial
court’s judgment on the basis of this argument.
E. Prosecutor’s Final Argument
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Next, Defendant argues that several comments made during
the prosecutor’s final argument were so grossly improper that
the trial court should have intervened in the absence of an
objection to preclude the making of those comments. More
specifically, Defendant contends that, as a result of the trial
court’s failure to preclude the making of these improper
prosecutorial arguments, he was deprived of his state and
federal constitutional right not to be deprived of liberty
without due process of law. Once again, we conclude that
Defendant is not entitled to relief from the trial court’s
judgment on the basis of this argument.
“[A]rguments of counsel are left largely to the control and
discretion of the trial judge,” with counsel being “granted wide
latitude in the argument of hotly contested cases.” State v.
Fullwood, 343 N.C. 725, 740, 472 S.E.2d 883, 891 (1996), cert.
denied, 520 U.S. 1122, 117 S. Ct. 1260, 137 L. Ed. 2d 339
(1997). As a result of the fact that Defendant only lodged
contemporaneous objections to two of the comments that he now
challenges on appeal and the fact that the trial court sustained
both of Defendant’s objections,6 appellate “review [of
Defendant’s challenges to the prosecutor’s jury argument] is
6
Defendant has not contended that he is entitled to any
relief on the basis of the arguments to which the trial court
sustained Defendant’s objection.
-27-
limited to an examination of whether the argument was so grossly
improper that the trial [court] abused [its] discretion in
failing to intervene ex mero motu.” State v. Gladden, 315 N.C.
398, 417, 340 S.E.2d 673, 685, cert. denied, 479 U.S. 871, 107
S. Ct. 241, 93 L. Ed. 2d 166 (1986).
In his brief, Defendant challenges the prosecutor’s
reference to Defendant as “an alcoholic”; her statement that
Defendant “can tolerate his booze”; her contention that
Defendant sought to “make [Trooper Brown] out to be a liar”; her
question as to whether “it seem[s] reasonable that [Trooper
Brown] would give up his career, his integrity, his family, his
livelihood just to get that guy”; her contention that Trooper
Brown “was fair and because he’s honest and because he’s
decent,” “he’s telling the truth”; that Trooper Brown “was out
protecting and serving you” and “did not come in this room and
lie about it”; that the “judge has already told you [that the
time shown on the video footage] is not an accurate time”; that
the “[b]reath test is in. It’s done. It’s absolutely done”;
and that “the only way you can find [that the breath test
results] didn’t happen is if you pretend.” Although the
prosecutor might have been better advised to refrain from making
some of the challenged comments, we do not believe that
Defendant has established that “the [prosecutor’s] argument was
-28-
so grossly improper that the trial [court] abused [its]
discretion in failing to intervene ex mero motu.” Gladden, 315
N.C. at 417, 340 S.E.2d at 685.
A number of the prosecutorial comments to which Defendant’s
argument is addressed relate to Defendant’s status as an
alcoholic and the extent to which he had developed a tolerance
for alcoholic beverages, neither of which appear to us to be
directly relevant to the issue of whether Defendant had a blood
alcohol level sufficient to trigger application of the relevant
aggravating factor. In addition, we have already held that,
given the unusual circumstances present in this case, it was not
error for the trial court to instruct the jury that the time
stamp on the video footage that the jury saw at the hearing held
for the purpose of determining whether the aggravating factor
set out in N.C. Gen. Stat. § 20-179.1(d)(1) existed did not
accurately reflect the time that actually elapsed during the
events depicted on that footage. A considerable number of the
comments upon which Defendant’s contention is based stemmed from
the prosecutor’s efforts to rebut Defendant’s contention that
the jury should conclude that Trooper Brown’s testimony was not
credible.7 Although a number of the comments that the prosecutor
7
For example, Defendant’s trial counsel argued to the jury
that “[t]hat should raise you some concerns . . . about Mr.
Brown’s credibility” and stated, “[h]ow’s his balance and
-29-
made in the course of defending Trooper Brown’s credibility may
lack adequate evidentiary support, we are unable to say that the
making of those comments rendered the hearing fundamentally
unfair given the strength of the evidence in favor of the
existence of the aggravating factor upon which the State relied.8
Finally, the prosecutor’s suggestion that the jury would have to
“pretend” in order to refrain from accepting the validity of the
breath test results strikes us as nothing more than a
permissible argument that Defendant’s challenge to the validity
coordination? Is it consistent with what Trooper Brown said?
Because I say that’s a credibility issue[.]”
8
In support of his challenge to the prosecutor’s defense of
Trooper Brown’s credibility, Defendant cites our decision in
State v. Potter, 69 N.C. App. 199, 202-04, 316 S.E.2d 359, 360-
64, disc. review denied, 312 N.C. 624, 323 S.E.2d 925 (1984), in
which we granted the defendant a new trial based, at least in
part, on the trial court’s failure to sustain Defendant’s
objections to the prosecutor’s repeated suggestion that the
arresting officers risked being prosecuted for perjury, being
fired from their jobs, and losing their retirement benefits if
they were untruthful, and asked the jury to “form some opinion
in your mind as to who has the most to lose by not telling the
truth in this case.” Id. at 202, 316 S.E.2d at 360. Although
the prosecutor in this case did assert that Trooper Brown would
not “give up his career, his integrity, his family, his
livelihood just to get that guy,” Defendant’s trial counsel did
not object to that statement. In addition, the argument made at
Defendant’s hearing did not tend to place any juror “in the
moral dilemma of either convicting the defendant or, in the
alternative, causing the officers to suffer the grievous
penalties suggested by the prosecutor.” Id. at 204, 316 S.E.2d
at 362. As a result, given the absence of an objection to the
challenged prosecutorial argument and the fundamental difference
between the argument at issue in Potter and the argument at
issue in this case, Potter provides no basis for awarding
Defendant any relief.
-30-
of the breath test results had no merit. Thus, for all of these
reasons, we are unable to conclude that the prosecutor’s
argument was so grossly improper as to have necessitated ex mero
motu intervention by the trial court. As a result, Defendant is
not entitled to relief from the trial court’s judgment on the
basis of his challenge to the prosecutor’s jury argument.
F. Defendant’s Double Jeopardy Claim
Finally, Defendant argues that the trial court violated his
right not to be placed in jeopardy twice for the same offense
given that the State used the breath test result to assist in
establishing the factual basis for Defendant’s plea and to
support the aggravating factor used to enhance Defendant’s
punishment. We do not find Defendant’s argument persuasive.
“The constitutional prohibition against double jeopardy
protects a defendant from additional punishment and successive
prosecution for the same criminal offense.” State v. Sparks,
362 N.C. 181, 186, 657 S.E.2d 655, 658-59 (2008) (internal
quotation marks and citation omitted). Put another way, the
double jeopardy clause protects criminal defendants against a
second prosecution for the same offense after acquittal, a
second prosecution for the same offense after conviction, and
multiple punishments for the same offense. State v. Gardner,
315 N.C. 444, 451, 340 S.E.2d 701, 707 (1986). Although
-31-
Defendant appears to claim that he has been subjected to
multiple punishments for the same offense, his argument to this
effect cannot succeed given that, instead of being punished
twice, he has been subjected to a more severe punishment for an
underlying substantive offense based upon the fact that his
blood alcohol level was higher than that needed to support his
conviction for that offense.9 Defendant had not cited any case
in support of his contention that a double jeopardy violation
occurs in the event that the same item of evidence is used once
to prove an element of a substantive offense and a second time
to support the imposition of an enhanced sentence, particularly
when the evidence in question is used to support different
factual determinations in each instance. As a result, Defendant
is not entitled to relief from the trial court’s judgment on the
basis of the final argument set out in his brief.
III. Conclusion
9
According to N.C. Gen. Stat. § 20-138.1(a), a defendant is
guilty of driving while subject to an impairing substance in the
event that he or she is under the influence of an impairing
substance or has an alcohol concentration of at least 0.08 at
any relevant time after driving. According to N.C. Gen. Stat. §
20-179(d), an aggravating factor that can be used to enhance the
sentence to be imposed upon a person convicted of driving while
impaired exists in the event that the defendant had an alcohol
concentration of at least 0.15 within a relevant time after the
driving. N.C. Gen. Stat. § 20-179(d)(1). As a result, one
blood alcohol level suffices to support a finding of the
defendant’s guilt of the substantive offense and a different,
and higher, blood alcohol level suffices to support the
enhancement of the defendant’s sentence.
-32-
Thus, for the reasons set forth above, we conclude that
none of Defendant’s challenges to the trial court’s judgment
have merit. As a result, the trial court’s judgment should, and
hereby does, remain undisturbed, except that the judgment should
be, and hereby is, remanded to the trial court for the
correction of a clerical error.
NO ERROR. REMANDED TO TRIAL COURT FOR CORRECTION OF
CLERICAL ERROR.
Judges Robert C. HUNTER and MCCULLOUGH concur.