Appeal by defendant from judgments entered 28 March 2002 by
Judge Ronald E. Spivey in Guilford County Superior Court. Heard in
the Court of Appeals 11 June 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III, for the State.
Hall & Hall, P.C., by Susan P. Hall, for defendant-appellant.
MARTIN, Judge.
Defendant appeals from sentences entered upon judgments for
habitual impaired driving and being an habitual felon. The
evidence presented at trial tended to show that on 7 March 2001
defendant was stopped on Rock Creek Dairy Road in Guilford County
by Deputy Sheriff Randal Shepard. Shepard testified that defendant
“had bloodshot and glassy eyes . . . his movements were sluggish”
and his speech was “slow, confused, thick-tongued, slurred and
mumbled.” Shepard also “noticed a strong odor of alcohol.”
Shepard transported defendant to the Guilford County jail, advised
him of his rights and administered an Intoxilyzer test, which
reported a breath alcohol concentration of 0.19. On 18 February
2002 defendant was indicted for driving while license revoked,driving while impaired and habitual impaired driving, and being an
habitual felon. The charge of driving while license revoked was
dismissed. A jury found defendant guilty of driving while
impaired, habitual impaired driving, and being an habitual felon.
Defendant was sentenced to a minimum term of 121 months and a
maximum term of 155 months for habitual impaired driving and being
an habitual felon and 12 months for driving while impaired.
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Defendant challenges the sentences imposed upon his
convictions by seven assignments of error. Pursuant to Rule 28(a)
of North Carolina Rules of Appellate Procedure, defendant has
abandoned his second and seventh assignments of error, so we need
not address them here. N.C. R. App. P. 28(a) (2003). His
remaining arguments are (1) the habitual driving while impaired
indictment does not allege his status as an habitual felon and so
cannot support the conviction; (2) the habitual driving while
impaired indictment fails to meet statutory requirements; (3)
defendant was not properly arraigned on the charge of habitual
driving while impaired; (4) the trial court erred in not declaring
a mistrial when the jury reported they could not reach a verdict;
(5) defendant cannot be sentenced for driving while impaired as
well as habitual driving while impaired. After careful
consideration, we reject his first four arguments, but remand the
case to the trial court to arrest judgment entered upon defendant's
conviction of driving while impaired.
Defendant contends that the habitual impaired drivingindictment fails to support his conviction as an habitual felon
because it did not allege his habitual felon status. “It is well
established precedent that the principal felony indictment need not
refer to the defendant's alleged status as an habitual offender”
provided the defendant had notice of the State's intent to
prosecute him as an habitual felon as well.
State v. Sanders, 95
N.C. App. 494, 504, 383 S.E.2d 409, 416,
disc. review denied, 325
N.C. 712, 388 S.E.2d 470 (1989). There were two separate
indictments here which adequately informed defendant of the State's
prosecution. Therefore, we overrule this assignment of error.
Defendant next assigns error to the trial court's failure to
strike the habitual impaired driving indictment because it did not
meet statutory requirements. Defendant improperly argues that this
failure constitutes plain error. The plain error doctrine is used
in exceptional cases when a question “was not preserved by
objection as noted at trial.” N.C. R. App. P. 10(c)(4) (2003).
However, the analysis “applies only to jury instructions and
evidentiary matters,”
State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d
22, 39-40 (2002),
cert. denied, ___ U.S. ___, 154 L. Ed. 2d 795
(2003), and it is a defendant's burden to show that but for the
error a different result would have been reached or that a
miscarriage of justice or denial of a fair trial resulted.
State
v. Anderson, 355 N.C. 136, 558 S.E.2d 87 (2002). Plain error
review is not available to defendant upon this issue.
Relying on
State v. Jackson, 306 N.C. 642, 652, 295 S.E.2d
383, 389 (1982), defendant argues a “separate document” should setforth the information about prior convictions required when a lower
grade offense becomes an element of a higher grade offense.
Neither
Jackson, nor the relevant statute, however, requires
separate indictments. G.S. . 15A-928 allows the prosecutor to
issue either a special indictment containing the information or
incorporate it into “the principal indictment as a separate count.”
N.C. Gen. Stat. § 15A-928(b) (2003). In the present case, the
first count states the elements of impaired driving under G.S. §
20-138.1 and the second count lists three separate convictions, as
delineated by § 15A-928(b).
See State v. Lobohe, 143 N.C. App.
555, 558-59, 547 S.E.2d 107, 109-110 (2001) (explaining the format
for an indictment charging habitual driving while impaired). The
trial court was not required to strike the habitual driving while
impaired indictment, and defendant's assignment of error is
overruled.
Defendant maintains that he was not properly arraigned on the
charge of habitual driving while impaired. G.S. § 15A-928(c)
requires that after commencement of the trial, but before the close
of the State's evidence, a defendant must be arraigned concerning
the special indictment, providing him an opportunity to admit or
deny the previous convictions. At the conclusion of the State's
case, the trial court stated in the absence of the jury:
The defendant is now at a point where he must
make an election to whether or not he wishes
to stipulate he has three prior driving while
impaired offenses, or put the state to the
burden of presenting those records to the jury
and proving it beyond a reasonable doubt.
After a brief conversation with the prosecutor, defendant deniedthe convictions. As noted in
State v. Phillips, 152 N.C. App. 679,
686, 568 S.E.2d 300, 304 (2002), lack of a formal arraignment is
not reversible error provided a defendant is fully aware of the
charge against him. Defendant's argument is without merit and this
assignment of error is overruled.
Defendant next contends that the trial court erred in failing
to declare a mistrial when the jury reported it was unable to reach
a verdict. G.S. . 15A-1235 allows the trial court to “require the
jury to continue its deliberations” when it appears that the jury
has not been able to agree. However, the trial court “may not
require or threaten to require the jury to deliberate for an
unreasonable length of time or for unreasonable intervals.”
Defendant argues that when the foreperson requested instruction
because the jury was unable to reach a unanimous verdict after
approximately four hours of deliberation, the judge should have
granted his motion for a mistrial. Denying the motion, the court
requested that the jurors “try just a little bit more” to reach a
verdict, but further instructed them “none of you should surrender
your honest conviction as to the weight or effect of the evidence.”
One hour and twenty minutes later, the jury presented its verdicts.
We examine the totality of the circumstances to discern
coercion by the trial court as required by
State v. Patterson, 332
N.C. 409, 416, 420 S.E.2d 98, 101 (1992);
see also State v. Woody,
124 N.C. App. 296, 309, 477 S.E.2d 462, 468 (1996) (noting that
four hours of deliberations with repeated breaks is not a coercive
length of time.) Attempts to coerce the jury into reaching averdict constitute an abuse of discretion.
State v. Burroughs, 147
N.C. App. 693, 698, 556 S.E.2d 339, 343 (2001) (listing cases where
the trial court's instructions referring to the time and expense of
a new trial constituted error). Here, however, the judge “properly
exercised his discretion to hold the jurors to their duty to
deliberate thoroughly together before concluding that they were
indeed unable to agree.”
State v. Bussey, 321 N.C. 92, 97, 361
S.E.2d 564, 567 (1987). After a careful examination of the record,
we determine that the trial court did not abuse its discretion in
denying the motion for mistrial; there were no improper statements
concerning the effect of the jury remaining deadlocked, nor were
the deliberations unreasonably lengthy. This assignment of error
is overruled.
Finally, defendant maintains his conviction of both driving
while impaired and habitual driving while impaired violated his
double jeopardy rights. Thus, he argues, the trial court should
have dismissed one of the charges. We disagree.
Habitual driving while impaired is a substantive offense,
State v. Priddy, 115 N.C. App. 547, 445 S.E.2d 610,
disc. review
denied, 337 N.C. 805, 449 S.E.2d 751 (1994), as well as a
punishment, or recidivist, offense.
State v. Vardiman, 146 N.C.
App. 381, 385, 552 S.E.2d 697, 700 (2001),
cert. denied, ___ U.S.
___, 154 S.E.2d 51 (2002). “Prior convictions of driving while
impaired are the elements of the offense of habitual impaired
driving, but the statute 'does not impose punishment for [these]
previous crimes, [it] imposes an enhanced punishment' for thelatest offense.”
Id. (citation omitted).
Driving while impaired is an element of habitual driving while
impaired, G.S. . 20-138.5, and is a lesser included offense of that
charge.
State v. Scott, 356 N.C. 591, 573 S.E.2d 866 (2002). Thus,
it was not error for the trial court to deny the motion to dismiss
and charge the jury as to both offenses. However, as conceded by
the State, defendant cannot be sentenced for both habitual driving
while impaired and the lesser included offense, punishing twice for
the same conduct.
State v. Gardiner, 315 N.C. 444, 340 S.E.2d 701
(1986). “Double jeopardy bars additional punishment where the
offenses have the same elements or when one offense is a lesser
included offense of the other.”
State v. McAllister, 138 N.C. App.
252, 255, 530 S.E.2d 859, 862,
appeal dismissed, 352 N.C. 681, 545
S.E.2d 724 (2000). Upon sentencing defendant for habitual driving
while impaired, the trial court should have arrested defendant's
conviction of driving while impaired.
No error, remanded for arrest of judgment upon the conviction
of driving while impaired.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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