An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-89


Filed: 21 October 2003


    v.                            Pender County
                                No. 02 IFS 1710

    Appeal by defendant from judgment entered 1 November 2002 by Judge Jay D. Hockenbury in Pender County Superior Court. Heard in the Court of Appeals 29 September 2003.

    Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State.

    John Arthur Terrell III, defendant-appellant, pro se.

    EAGLES, Chief Judge.

    Defendant appeals on constitutional grounds from a judgment finding him responsible for operating a motor vehicle without having a seat belt fastened around his body, in violation of N.C. Gen. Stat. § 20-135.2A. We find no error.
    On 30 May 2002, defendant was issued a citation for the infraction of operating a motor vehicle without having a seat belt fastened around his body. On 27 June 2002, the district court found defendant responsible for committing the infraction. Defendant appealed to the superior court, where he moved to dismiss the charge on constitutional grounds, contending that N.C. Gen. Stat. § 20-135.2A forces the public to use a device that kills and injures people. On 23 July 2002, following a hearing, Judge W.Allen Cobb, Jr. denied the motion, based upon this Court's decision in State v. Swain, 92 N.C. App. 240, 374 S.E.2d 173 (1988). Defendant subsequently waived trial by jury, and on 1 November 2002, Judge Jay D. Hockenbury found defendant responsible and imposed a $25.00 penalty. Defendant appeals.
    Defendant first contends that Judge Cobb erred by contradicting the 1995 decision of another superior court judge, from another county, which allegedly ruled in defendant's favor as to the constitutional issue. We disagree. In State v. Swain, 92 N.C. App. 240, 374 S.E.2d 173 (1988), this Court upheld the constitutionality of the seat belt statute. An opinion of this Court is binding on this Court and all lower courts until it is overturned by a higher court. See In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Accordingly, this assignment of error is rejected.
    Defendant next contends that Judge Cobb erred by refusing “to answer questions presented to the court” by defendant. We disagree. The record shows that defendant sought to ask Judge Cobb the following questions: (1) “Does this fact that the Honorable Judge Bowen ruled in my favor refer to this -_ infers the legislation is void and a moot point?”; and (2) “Is the constitutional question concerning the illegality of the seatbelt legislation a higher degree of importance than the legislation as written?” Judge Cobb responded that defendant was not to ask questions for the court to answer but to make arguments to the court as to why he thinks the statute is unconstitutional. Defendant then proceeded to make arguments in support of his position. By directing the pro se defendant to make arguments instead of asking questions, Judge Cobb acted properly within his discretion in maintaining control over argument of counsel and pro se parties, and in conducting the hearing in an orderly fashion. See State v. Smith, 320 N.C. 404, 415, 358 S.E. 2d 329, 335 (1987). Accordingly, this assignment of error is rejected.
    Defendant next contends Judge Cobb erred by stating “the 'defense is trying to say the Constitution is unconstitutional.'” After thorough review of the record and transcript, we are unable to find any statement by Judge Cobb to this effect. Judge Cobb did, however, make the following statement:
        Now's the time if you want to put forth any argument to persuade me, this judge in this court, that this constitution as it applies to you standing here this day is unconstitutional, I'll be glad to hear from you.
    Defendant appears to have attributed this statement to Judge Cobb by taking his words entirely out of context. It is clear that Judge Cobb meant to say “this statute” instead of “this constitution.” It is the general rule that a misstatement by the court, termed lapsus linguae, “will not be held prejudicial if not called to the attention of the court and if it does not appear that the jury could have been mislead by the statement.” State v. Rudolph, 39 N.C. App. 293, 302, 250 S.E.2d 318, 324, disc. review denied and appeal dismissed, 297 N.C. 179, 254 S.E.2d 40 (1979). Since this matter was tried without a jury, we conclude this assignment of error is without merit and reject it.    By three contentions, defendant argues the court erred by “referring to injuries instead of deaths caused by the apparatus”; by “assuming that seat belt legislation will protect the Health, Safety and Welfare of the public”; and “by hearing secondary evidence on the infraction before all appeals and final renderings have been made concerning the constitutional question.” After careful review of the record, we find nothing that suggests the trial court did any of these things. The page references given by defendant under these assignments of error do not correspond to the arguments and do not provide a basis for review. See N.C.R. App. P. 10(c)(1). Accordingly, these assignments of error are rejected.
    Defendant next contends the court erred by denying his “motion to remove legislation from the statutes due to being repugnant to the State and Federal Constitutions” and by failing to give reasons for denying the motion. Judge Cobb did state a reason for his decision: the binding decision of the Court of Appeals in State v. Swain. Accordingly, these assignments of error are rejected as being wholly without merit.     
    By his final two contentions, defendant argues Judge Cobb erred by refusing to allow defendant to take an interlocutory appeal and by failing to give the reasons for this refusal. We disagree.
        A person who denies responsibility and is found responsible for an infraction in the district court . . . may appeal the decision to the criminal division of the superior court for a hearing de novo. . . . Unless otherwise provided by law, the procedures applicable to misdemeanors disposed of in the superior court apply to those infraction hearings.     
G.S. § 15A-1115(a). We hold Judge Cobb's ruling was proper, as “[t]here is no provision for appeal to the Court of Appeals as a matter of right from an interlocutory order entered in a criminal case.” State v. Henry, 318 N.C. 408, 409, 348 S.E.2d 593, 593 (1986).
    No error.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

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