State v Moser, (02-1118) 05/06/2003

Appeal by defendant from judgments entered 4 April 2002 by Judge Julius A. Rousseau in Guilford County Superior Court. Heard in the Court of Appeals 28 April 2003.

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

Russell J. Hollers III for defendant appellant.

McCULLOUGH, Judge.

    A jury found defendant guilty of driving while impaired (“DWI”) and felony speeding to elude arrest. Based on defendant's prior stipulation to three prior DWI convictions, the trial court entered judgment on the charged offense of habitual impaired driving, as well as felony speeding to elude arrest. The trial court sentenced defendant to consecutive prison terms totaling twenty-nine to thirty-five months.
    The State's evidence tended to show the following: At 10:30 p.m. on 29 July 2001, Greensboro Police Officer B.E. Davis observed defendant's Chevrolet pickup truck proceeding south on State Highway 220 near Creekridge Road at an approximate speed of eightymiles per hour. As defendant exited Highway 220 onto Interstate 85 South, Officer Davis activated his blue lights and siren in an attempt to initiate a traffic stop. Instead of stopping, defendant exited Interstate 85 onto Holden Road and proceeded through several red lights and traffic intersections at speeds of over one hundred miles per hour. At the intersection of Vandelia Road and Rehobeth Church Road, Greensboro Police Officer Friel took over the pursuit. Officer Friel saw defendant's vehicle “swerv[e] back and forth from across the turn lane and back to the curb numerous times as if the driver was intoxicated.” After turning onto Elm-Eugene Street from Vandelia, defendant's truck left the road and stalled in a grassy area. Defendant tried without success to restart his engine before stepping out of the truck. He ignored the officers' repeated instructions to get on the ground. Once subdued, defendant refused to put his hands behind his back and resisted the officers' attempt to place him in handcuffs. Defendant smelled strongly of alcohol, his eyes were glassy, and he declined to submit to a Breathalyzer test. Based on his observations and experience, Officer Friel believed “defendant had consumed a sufficient quantity of an impairing substance as to appreciably impair his mental and physical faculties[.]” Officer Davis also believed that defendant “was impaired by some type of impairing substance.”
    Following trial, defense counsel moved to set aside the verdict and order a new trial after a juror informed counsel that she had consulted the dictionary definitions of “impair” and “influence” during deliberations. The trial court declined todisturb the jury verdict on this ground.
    In his sole argument on appeal, defendant claims the trial court erred in refusing to set aside the verdict based on the injection of the dictionary definitions into the jury's deliberations. Because these definitions were not introduced into evidence or subject to cross-examination, defendant contends he was denied his constitutional right to confront the witnesses and evidence against him. He further claims the jury's access to these definitions lowered the State's burden of proof on the issue of impairment.
    “As with a motion for mistrial, a motion to set aside the verdict is addressed to the discretion of the trial court and such ruling will not be disturbed on appeal absent an abuse of discretion.” State v. Smith, 138 N.C. App. 605, 610, 532 S.E.2d 235, 239 (2000).
    As a general matter, jurors will not be heard to impeach a verdict after it has been rendered. Pinckney v. Van Damme, 116 N.C. App. 139, 148-49, 447 S.E.2d 825, 831 (1994). Narrow exceptions to this rule are found in N.C. Gen. Stat. § 15A-1240 (2001) and N.C. Gen. Stat. § 8C-1, Rule 606 (2001). In pertinent part, section 15A-1240(c)(1) allows juror testimony to impeach a verdict “only when it concerns . . . [m]atters not in evidence which came to the attention of one or more jurors under circumstances which would violate the defendant's constitutional right to confront the witnesses against him[.]” Similarly, Rule 606(b) provides that juror testimony is inadmissible to impeach averdict except to address “whether extraneous prejudicial information was improperly brought to the jury's attention[.]" The North Carolina Supreme Court has defined “extraneous prejudicial information” as "information dealing with the defendant or the case which is being tried, which information reaches a juror without being introduced in evidence. It does not include information which a juror has gained in his experience which does not deal with the defendant or the case being tried.” State v. Rosier, 322 N.C. 826, 832, 370 S.E.2d 359, 363 (1988).
    The standard dictionary definition of a word, even of a legal term of art, does not constitute “extraneous prejudicial information” for purposes of Rule 606. Lindsey v. Boddie-Noell Enters., Inc., 355 N.C. 487, 487, 562 S.E.2d 420, 420 (2002) (per curiam) (adopting the reasoning of the dissent in Lindsey v. Boddie-Noell Enters., Inc., 147 N.C. App. 166, 178-79, 555 S.E.2d 369, 377 (2001) (Tyson, J., dissenting). In Lindsey, the plaintiff moved to set aside the jury verdict based upon “four affidavits from jurors concerning dictionary definitions of 'willful' and 'wanton' brought into the jury room during deliberations.” Lindsey, 147 N.C. App. at 178, 555 S.E.2d at 377. In an analysis subsequently adopted by the Supreme Court, Judge Tyson found this evidence did not qualify as extraneous information and was thus inadmissible to challenge the verdict:
        [T]he reading of the dictionary definitions by Juror Couch is analogous to a situation where one of the jurors informs the jury what "willful" and "wanton" mean, according to his knowledge of the English language. Thedefinition of words in our standard dictionaries has been considered a matter of common knowledge which the jury is supposed to possess.

            The information received in this case does not fall within the definition of extraneous information contemplated by our Supreme Court.

Id. (citations omitted).
    The facts here are indistinguishable from Lindsay. Evidence that one or more jurors consulted the dictionary definitions of “impair” and “influence” during the course of deliberations is inadmissible to impeach the verdict under Rule 606. Moreover, a juror's consultation of a dictionary does not implicate a defendant's constitutional right to confrontation so as to be inadmissible under N.C. Gen. Stat. § 15A-1240(c)(1). We note that defendant did not raise this constitutional claim below and has, therefore, waived appellate review thereof. State v. Wiley, 355 N.C. 592, 624, 565 S.E.2d 22, 44 (2002), cert. denied, ___ U.S. ___, 154 L. Ed. 2d 795 (2003). We find no abuse of discretion by the trial court.
    The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. We deem them abandoned. See N.C.R. App. P. 28(b)(6) (2003).
    No error.
    Judges MARTIN and CALABRIA concur.
    Report per Rule 30(e).

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