1. Arrest and Bail_impaired driving_opportunity to contact
witnesses and communicate with counsel
The trial court did not err by denying a motion to dismiss a
charge of driving while impaired for failure to afford defendant
the opportunity to contact witnesses and communicate with counsel
where, although there was conflicting evidence, the trial court
found that defendant was informed of his rights by a trooper and
the magistrate and that defendant was given the opportunity to
exercise those rights but failed to do so. N.C.G.S. § 15A-501.
2. Constitutional Law_right to remain silent_testimony
concerning silence_no prejudice
The trial court did not err in an impaired driving
prosecution by admitting testimony of defendant's failure to
answer questions after he had been given his Miranda warnings.
While a defendant's exercise of his constitutionally protected
right to remain silent may not be used against him at trial, such
a constitutional error will not warrant a new trial where it was
harmless beyond a reasonable doubt.
3. Judges_testimony by magistrate_condition of impaired driving
defendant_no prejudice
There was no prejudicial error in an impaired driving
prosecution where a magistrate was allowed to give her opinion as
to defendant's impairment. Testimony by a judicial official
giving an opinion about the condition of a person who appeared
before that official is disapproved; however, there was no
prejudicial error in this case because the magistrate's testimony
was cumulative and only tended to corroborate the officers.
4. Criminal Law_prosecutor's argument_objection sustained_no
prejudice
The defendant in an impaired driving prosecution was not
prejudiced by a prosecutor's argument where defendant objected,
the judge sustained the objection, and the judge gave a curative
instruction.
WALKER, Judge.
Defendant appeals his conviction for driving while impaired.
The State's evidence tended to show the following. On 7 February
1998, defendant, a Miami, Florida police officer, was traveling
north on N.C. 19/23 in Buncombe County when he was stopped by
Officer Barry Jarrett of the North Carolina Department of Motor
Vehicles. Officer Jarrett had observed the defendant speeding and
almost striking Officer Jarrett's vehicle.
After stopping the defendant, Officer Jarrett observed that
the defendant's eyes were bloodshot, his face was flushed, he had
an odor of alcohol about him, his speech was slurred and he had
difficulty keeping his balance. Defendant told Officer Jarrett
that he had consumed a couple of beers over dinner. Officer
Jarrett attempted to administer an alcosensor test but it failed
to produce any results. Based on his observations, Officer Jarrett
placed the defendant under arrest for driving while impaired.
Trooper Timothy Jackson arrived at the scene, took the
defendant into custody and transported him to the detention center.
Trooper Jackson observed that the defendant was red faced, had red,
glassy eyes, slurred speech, and had an odor of alcohol about him.
At the detention center, the defendant's wallet and other personal
effects were turned over to the jailer and he was taken to a room
to be administered a breathalyzer test. Trooper Jackson read thedefendant his rights, including “the right to call an attorney and
select a witness to view for you the testing procedures, but the
testing may not be delayed for these purposes longer than 30
minutes from the time you are notified of your rights.” At 12:20
a.m., the defendant signed the form acknowledging that he had been
advised of these rights.
Defendant did not attempt to make any telephone calls until
twenty-nine minutes had elapsed. He then attempted to call the
Fraternal Order of Police in Florida or the Police Internal Affairs
Office in Miami. All of his attempts were unsuccessful. A police
officer in the detention center gave him the telephone number of
the North Carolina Chapter of the Fraternal Order of Police but he
was unable to make contact. During this time, the defendant
requested his wallet which he said contained local telephone
numbers of family and friends whom he wished to call. However, his
wallet and personal effects were not returned until he was
released.
When the defendant was offered the breathalyzer test, he
refused to take it. He was then given his Miranda warnings but he
refused to answer any further questions. Trooper Jackson took the
defendant before Magistrate Jan Alexander for a determination of
conditions of pre-trial release. She advised the defendant of his
rights including the right to communicate with counsel, family, and
friends; however, the defendant did not ask the magistrate for his
wallet. Defendant posted bond and was released later that morning.
Magistrate Alexander testified at the trial as to the defendant's
appearance and his impairment. Defendant's evidence tended to show that his wallet and
personal effects were taken when he was brought into the detention
center. He was placed in a holding cell; however, he was not given
his wallet which contained the local telephone numbers he needed to
call people to come to the detention center to post his bond and
view his condition.
[1]Defendant first assigns as error the denial of his motion
to dismiss for failure to afford him the opportunity to contact
witnesses and communicate with counsel, family, and friends. A
defendant in this State must be informed of his right to
communicate with counsel, family, and friends pursuant to N.C. Gen.
Stat. § 15A-501 (1999) which states in part:
Upon the arrest of a person, with or without a
warrant, but not necessarily in the order
hereinafter listed, a law-enforcement officer:
&
nbsp; . . .
(5) Must without unnecessary delay advise the
person arrested of his right to communicate
with counsel and friends and must allow him
reasonable time and reasonable opportunity to
do so.
A magistrate has the duty to inform a defendant of this statutory
right. State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988); N.C.
Gen. Stat. § 15A-511(b). If the defendant is denied this right,
the charges are subject to being dismissed. Knoll, 322 N.C. at
545, 369 S.E.2d at 564. Our Supreme Court has held that “[t]he
right to communicate with counsel and friends necessarily includes
the right of access to them.” State v. Hill, 277 N.C. 547, 552,
178 S.E.2d 462, 466 (1971). When a defendant alleges he has been denied his right to
communicate with counsel, family, and friends, the trial court must
conduct a hearing on defendant's motion to dismiss and make
findings and conclusions. On appeal, the standard of review is
whether there is competent evidence to support the findings and the
conclusions. State v. Cumberlain, 307 N.C. 130, 143, 297 S.E.2d
540, 548 (1982). “If there is a conflict between the state's
evidence and defendant's evidence on material facts, it is the duty
of the trial court to resolve the conflict and such resolution will
not be disturbed on appeal.” Id.
Approximately three months prior to trial, defendant moved to
dismiss the charges based on Knoll, supra (Knoll motion). After a
hearing, the trial court made the following findings in part:
3. . . .[Trooper Jackson] advised [defendant]
of his rights regarding an intoxilyzer test.
The defendant acknowledged that he understood
the rights and did not invoke his rights.
4. That the officer waited -- told him that
he had thirty minutes from the time his rights
were read to have an attorney present. The
defendant waited twenty-nine minutes before
wanting to make a phone call. And then he
tried to call Miami, but he couldn't even
function during that dialing the phone.
5. . . .[T]he defendant refused to take the
test, that is, the intoxilyzer test.
6. The defendant tried to dial long distance
by dialing a seven-digit number without even
dialing the area code ahead of it.
7. Furthermore, he advised that he had a
wallet that had been taken from him and that
there were phone numbers in it and he needed
the wallet to get numbers to call Miami and/or
some local relatives; that his proximity to
the wallet was some fifteen to twenty feetaway where the wallet had been secured. He
primarily -- he stated he primarily wanted the
wallet to get the phone number to dial the
Fraternal Order of Police in Miami, Florida.
&
nbsp;. . .
9. That Magistrate Alexander advised the
defendant that he had the right to communicate
with counsel and friends . . . .
&
nbsp;. . .
14. And it is further noted that the bail
bondsman [sic] are present in and around the
premises of the Buncombe County Detention
Center all night long. . . .
Based on its findings, the trial court concluded in part the
following:
[T]he defendant was informed of his right to
communicate with counsel and friends . . .;
that he failed to communicate properly in
determining -- in securing his pre-trial
release conditions and that -- and that he
failed to exercise his own rights to require -
- to acquire the attendance of a sober and
responsible adult to be released to.
At the hearing on the Knoll motion, the defendant stipulated
that Magistrate Alexander informed him of his right to communicate
with counsel, family, and friends. Defendant testified that he was
given a telephone and he attempted to make calls. Although there
was conflicting evidence, the trial court found the defendant was
informed of his rights by Trooper Jackson and Magistrate Alexander.
Further, it found that the defendant was given the opportunity to
exercise those rights but he failed to do so. The findings of the
trial court support its conclusions. Thus, the trial court did not
err in denying the motion to dismiss.
[2]Defendant also contends the trial court erred in admittingtestimony of his failure to answer questions after he
had been
given his Miranda warnings. During his testimony, Trooper Jackson
testified that the defendant refused to perform any field sobriety
tests and the defendant refused to answer questions after being
given his Miranda warnings. Defendant did not object to this
testimony until cross-examination when he made a motion to dismiss
based on the “flagrant violation of his rights under the 5th
Amendment.” Defendant argues that this testimony violates his
constitutional right to remain silent and was therefore prejudicial
to him.
While a defendant's exercise of his constitutionally protected
right to remain silent may not be used against him at trial, “such
a constitutional error will not warrant a new trial where it was
harmless beyond a reasonable doubt.” State v. Elmore, 337 N.C.
789, 792, 448 S.E.2d 501, 502 (1994). N.C. Gen. Stat. § 15A-
1443(b). The trial court did not err in denying the motion to
dismiss the charges based on this testimony.
[3]Defendant next contends the trial court erred in allowing
Magistrate Alexander to give her opinion of the defendant's
impairment thus violating her role as a judicial official. At the
trial, Magistrate Alexander testified regarding her observations of
the defendant at the pre-trial release hearing. Defendant did not
object until she was asked her opinion as to whether the defendant
was impaired.
North Carolina Rules of Evidence, N.C. Gen. Stat. § 8C-1, Rule
601(a) states, “Every person is competent to be a witness except asotherwise provided in these rules.” Rule 605 states, “Th
e judge
presiding at the trial may not testify in that trial as a witness.”
N.C. Gen. Stat. § 8C-1, Rule 605. Thus, a judicial official is
only incompetent to testify in certain situations. “It is
generally accepted that a judge is competent to testify as to some
aspects of a proceeding previously held before him.” State v.
Simpson, 314 N.C. 359, 372, 334 S.E.2d 53, 61 (1985). Although
judges are competent to testify, there is a fear of unfair
prejudice. Thus, it is within the trial court's discretion to
allow or not allow a judicial official to testify. Id. See also,
N.C. Gen. Stat. § 8C-1, Rule 403.
Defendant only cited Rule 403 of the North Carolina Rules of
Evidence and Article I, Section 6 of our State Constitution as
authority for his contention of error in admitting Magistrate
Alexander's testimony of defendant's impairment.
Although a judicial official should exercise discretion when
testifying, we disapprove of such testimony when it gives an
opinion as to a person's condition who had previously appeared
before that judicial official. However, in the context of this
case, we conclude there was no prejudicial error. Officer Jarrett
and Trooper Jackson had already testified that the defendant was
appreciably impaired. Magistrate Alexander's testimony was
cumulative and only tended to corroborate the officers.
[4]Finally, defendant claims that he was prejudiced by the
prosecutor's comments during closing arguments and thus the charges
should have been dismissed, or in the alternative, a mistrialordered. The granting or denying of a motion for mistrial is in
the sound discretion of the trial judge. State v. McCarver, 341
N.C. 364, 383, 462 S.E.2d 25, 36 (1995).
Here, the closing arguments were not recorded; however, the
record shows that the defendant objected to the prosecutor's
argument and the judge sustained the objection and gave a curative
instruction. “When defense counsel objects, and the objection is
sustained, and curative instructions are given to the jury,
defendant has no grounds for exception on appeal. 'Jurors are
presumed to follow a trial judge's instructions.'” State v.
Fletcher, 125 N.C. App. 505, 511, 481 S.E.2d 418, 423, disc. rev.
denied, 346 N.C. 285, 487 S.E.2d 560, cert. denied, 522 U.S. 957,
139 L. Ed. 2d 299 (1997) (quoting State v. Taylor, 340 N.C. 52, 64,
455 S.E.2d 859, 866 (1995)).
In summary, the defendant has failed to establish prejudicial
error in any of his assignments of error.
No error.
Judges MARTIN and TYSON concur.
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