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.
I
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.
Id. 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.
II
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.
III
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.
Affirmed.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
Footnote: 1