STATE OF NORTH CAROLINA
v. Pender County
No. 02 IFS 1710
JOHN ARTHUR TERRELL III
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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