An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-251


Filed: 6 May 2003


    v .                             Randolph County    
                                No. 99 CRS 4122

    Appeal by defendant from order dated 16 February 2001 by Judge Melzer A. Morgan, Jr. in Randolph County Superior Court. Heard in the Court of Appeals 11 March 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III and Assistant Attorney General Patricia A. Duffy, for the State.

    James P. Hill, Jr. for defendant appellant.

    BRYANT, Judge.

    Arnold Wayne Callicutt (defendant) appeals from a judgment dated 15 February 2001 entered consistent with his guilty plea to the offense of driving while impaired (DWI). Defendant's guilty plea followed the denial of his motion to suppress the results of a blood test and, as part of a plea agreement, defendant reserved the right to appeal that denial pursuant to N.C. Gen. Stat. § 15A- 979(b).
    At a suppression hearing held on 14 February 2001, W.A. Smith (Smith), testified for the State that on 23 March 1999 he was an officer with the Asheboro Police Department. He was called to respond to a two-vehicle accident and arrived on the scene afterapproximately fifteen to twenty minutes. By the time he arrived, EMS personnel were already removing “the passenger and the driver” from a pick-up truck, defendant's vehicle, and examining the driver of the other vehicle. Smith testified he attempted to speak with the drivers of both vehicles also.
    Scattered around defendant's vehicle were several unopened beer cans that were “ice cold” to the touch and appeared to have fallen out of the back of the vehicle. Smith also discovered at least one open beer can in the passenger compartment of the vehicle containing beer that was still cold. Later, Smith went to the hospital to which the accident victims had been transported to assess their conditions. The attending physician stated that he believed one of the victims had been drinking because defendant had alcohol on his breath. Smith thought he subsequently told the physician that the person with alcohol on his breath was the driver of one of the vehicles. Smith requested that defendant submit to a blood test, and defendant consented. The test revealed defendant to have a 0.08 blood alcohol level. Defendant was consequently charged with DWI and transporting an open container of alcoholic beverage after consuming alcohol.   (See footnote 1) 
    On cross-examination, Smith admitted he was no longer employed by the Asheboro Police Department. In response to being asked why he had left that employment, the State objected but was overruled on the ground that the question went to the credibility of thewitness. Smith then invoked his Fifth Amendment right against self-incrimination. Defendant moved to strike Smith's entire testimony, which the trial court denied.
    On re-direct examination and in response to an objection by defendant, the trial court required the State to present proper foundation to show defendant had received oral and written notice of his chemical analysis rights. During the presentation of this evidence, the trial court requested various clarifications on the foundation laid for the introduction of that evidence. Although Smith testified that he had read defendant his chemical analysis rights, he could not remember whether he had given defendant a written copy. The State, however, submitted Smith's affidavit and revocation report which indicated he had informed defendant of his rights both orally and in writing. Based on the presentation of the evidence, the trial court found and concluded in pertinent part:
        5.    . . . Smith determined that he had reasonable grounds to believe the defendant had committed two implied consent offenses . . . . This conclusion was based on the occurrence of the collision and its extent, the presence of one or more open alcoholic beverages in the truck cab, and the noticeable odor of an alcoholic beverage on the defendant's breath in the emergency room. Even if the open beer container . . . did not belong to . . . defendant, the defendant's driving a motor vehicle on a highway or street with alcohol in his body would constitute a violation of [N.C. Gen. Stat. §] 20-138.7(a).

        6.    . . . [Smith] then informed . . . defendant, both orally and in writing, of the rights specified by [N.C. Gen. Stat. §] 20- 16(a). . . .
        . . . .

        The Court concludes as a matter of law that [Smith] had, from the circumstances apparent to him, reasonable grounds to believe . . . defendant had committed two implied-consent offenses and therefore was entitled to request . . . defendant submit to a chemical analysis of his blood. None of . . . defendant's statutory or constitutional rights were violated . . . . Therefore, . . . defendant's motion to suppress should be denied.


    The issues are whether: (I) Smith's invocation of his right against self-incrimination unreasonably limited defendant's ability to cross-examine him; (II) defendant was deprived of a fair hearing by the trial court's requests for clarification of the State's evidence, including evidence supporting a foundation for exhibits; and (III) the trial court's findings are supported by competent evidence, and those findings support the trial court's conclusion.

    Defendant first contends the trial court's refusal to strike Smith's entire testimony, in response to Smith's invocation of his right against self-incrimination, deprived defendant of the right to test the credibility of Smith's direct testimony on cross- examination. Both the Sixth Amendment to the United States Constitution and Article I, Section 23 of the North Carolina Constitution guarantee a defendant's right to confront all witnesses against him. State v. Ray, 336 N.C. 463, 468, 444 S.E.2d 918, 922 (1994). Included in this right is “'the right to test the truth of those witnesses' testimony by cross-examination.'” Id. (quoting United States v. Cardillo, 316 F.2d 606, 610 (2d Cir.1963)). The Fifth Amendment to the federal constitution and Article I, Section 23 of the North Carolina Constitution, however, provide that a witness may not be compelled to give self- incriminating evidence. Ray, 336 N.C. at 468, 444 S.E.2d at 922. Where, as in the case sub judice, these rights come into conflict, “[t]he issue thus becomes whether defendant's right to confront witnesses through cross-examination was unreasonably limited by [the witness's] assertion of the testimonial privilege.” Id. at 469, 444 S.E.2d at 922. In Ray, our Supreme Court set out the test to apply in resolving this issue:
        In determining whether the testimony of a witness who invokes the privilege against self-incrimination during cross-examination may be used against the defendant, a distinction must be drawn between cases in which the assertion of the privilege merely precludes inquiry into collateral matters which bear only on the credibility of the witness and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination.
. at 470, 444 S.E.2d at 923 (quoting Cardillo, 316 F.2d at 611). There is little danger of prejudice to a defendant in cases where the invocation of the privilege against self-incrimination is related to a matter collateral to the details of the direct examination. Ray, 336 N.C. at 470, 444 S.E.2d at 923.
    In this case, there is no indication the circumstances of Smith's dismissal from the police department were related in any way to his investigation, and defendant does not contend that they were. Instead, Smith's dismissal was a collateral matter bearing only on his credibility in general rather than the particulardetails provided in his direct testimony about the issues involved in defendant's case. The trial court, therefore, did not err by declining to strike Smith's testimony.

    Defendant next contends the trial court abandoned its role as an impartial arbiter by impermissibly assisting the State in meeting its burden of proof, thus depriving defendant of a fair hearing. Although a trial court has a duty to remain impartial, State v. Fleming, 350 N.C. 109, 125-26, 512 S.E.2d 720, 732 (1999), it also “has a duty to control the examination of witnesses,” State v. White, 340 N.C. 264, 299, 457 S.E.2d 841, 861 (1995). This duty to supervise and control examination is to “insure justice for all parties.” State v. Agnew, 294 N.C. 382, 395, 241 S.E.2d 684, 692 (1978). The trial court is permitted to question a witness “to clarify the witness's testimony or to elicit neglected pertinent facts.” State v. Taylor, 141 N.C. App. 321, 329, 541 S.E.2d 199, 204 (2000).
    In this case, prior to starting the suppression hearing, the trial court made sure there were no members of the jury panel in the courtroom. Thus, any comments or questions by the trial court would not have prejudiced defendant in the eyes of potential jurors. See N.C.G.S. § 15A-1222 (2001). The trial court, after defendant's objection to chemical analysis evidence for lack of a proper evidentiary foundation, requested that the State present a proper foundation for its evidence that defendant had been informed of his chemical analysis rights prior to blood testing. During thepresentation of this evidence, the trial court on several occasions requested further clarification that there was a proper foundation for the introduction of exhibits. On this record, we conclude the trial court was acting within permissible bounds of supervising and controlling the examination of Smith to insure justice for both parties by clarifying testimony as well as eliciting pertinent facts. Accordingly, we reject defendant's argument on this assignment of error.

    Defendant finally contends the trial court's findings are not supported by competent evidence and do not support its conclusion of law. In appellate review of a trial court's ruling on a motion to suppress, the findings of fact are conclusive if they are supported by competent evidence. See State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000). A trial court's conclusions of law are binding if they are supported by the findings of fact. See id.
    In this case, after careful review of defendant's contentions, we determine that the evidence shows Smith had reasonable grounds to believe defendant had committed two implied-consent offenses and therefore properly requested defendant to submit to chemical analysis testing. Having been identified as the driver of a vehicle involved in an accident, defendant was observed to have alcohol on his breath and later determined to have a blood alcohol level of 0.08. At the scene of the accident, cold beer cans appeared to have fallen out of the vehicle, and at least one opencan of cold beer was found inside the defendant's vehicle. Prior to submitting to testing, defendant was given both oral and written notice of his chemical analysis rights. This evidence supports the trial court's findings and these findings support its conclusion that Smith had reasonable grounds to suspect defendant had committed an implied-consent offense, and that defendant's rights were not violated. Accordingly, the trial court did not err in denying defendant's motion to suppress.
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
    The open container violation was later dismissed as part of the plea agreement.

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