STATE OF NORTH CAROLINA
v. Polk County
No. 99 CRS 440
RICKEY ALLEN TUCKER,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III, and Assistant Attorney General
Patricia A. Duffy, for the State.
Office of the Appellate Defender, by Assistant Appellate
Defender Anne M. Gomez, for defendant-appellant.
GEER, Judge.
Defendant Rickey Allen Tucker appeals from his conviction of
habitual impaired driving. As the State concedes, by notifying the
potential jurors during jury selection that defendant was charged
"with the offense of habitual driving while impaired," the trial
court failed to comply with N.C. Gen. Stat. § 15A-928 (2001). We
reverse and remand for a new trial.
Defendant was arrested on 12 March 1999 and charged with
driving while impaired in violation of N.C. Gen. Stat. § 20-138.1
(2001). Subsequently, defendant was indicted for and found guilty
of habitual impaired driving. The trial court sentenced defendantto 34 months to 41 months imprisonment. Defendant failed to timely
perfect his appeal and, on 6 August 2002, defendant filed a
petition for writ of certiorari seeking a belated appeal. This
Court allowed the petition for writ of certiorari to review the
judgment entered against him on 7 August 2001 by Judge James Downs.
During jury selection at defendant's trial, the trial court
informed prospective jurors: "Mr. Tucker is charged . . . with the
offense of habitual driving while impaired." The case proceeded to
trial with the State calling the arresting officer as its only
witness. After his testimony, the prosecutor stated out of the
presence of the jury, "[F]rom what I understand the defendant has
no objection to the State introducing his prior record, certified
by the clerk's office. That would be three prior[s] which serve
for the basis for the charge. But other than that the State would
have no other evidence." The court then recessed for the day.
On the next morning, with the jury out of the courtroom, the
State moved to introduce exhibits regarding defendant's prior
convictions. Defense counsel stated, "Your Honor, there's no
objection to that. We stipulated to that earlier." Defense
counsel then made a motion to dismiss in the course of which he
stipulated that defendant had three previous convictions within the
prior seven years.
When the jury returned, the State moved to introduce a
certified computer printout showing defendant's conviction for
driving while impaired in 1992 and two 15 October 1996 judgments
showing convictions for impaired driving. Defense counsel did notobject. The trial court admitted the exhibits and they were
published to the jury. The trial court then submitted to the jury
the possible verdicts of guilty of habitual impaired driving or not
guilty; the jury found defendant guilty.
N.C. Gen. Stat. § 15A-928 (2001) specifies the procedure to be
used in cases where "the fact that the defendant has been
previously convicted of an offense raises an offense of lower grade
to one of higher grade and thereby becomes an element of the
latter":
(a) . . . If a reference to a previous
conviction is contained in the statutory name
or title of the offense, the name or title may
not be used in the indictment or information,
but an improvised name or title must be used
which labels and distinguishes the offense
without reference to a previous conviction.
(b) An indictment or information for the
offense must be accompanied by a special
indictment or information, filed with the
principal pleading, charging that the
defendant was previously convicted of a
specified offense. At the prosecutor's
option, the special indictment or information
may be incorporated in the principal
indictment as a separate count. . . . the
State may not refer to the special indictment
or information during the trial nor adduce any
evidence concerning the previous conviction
alleged therein.
(c) After commencement of the trial and
before the close of the State's case, the
judge in the absence of the jury must arraign
the defendant upon the special indictment or
information, and must advise him that he may
admit the previous conviction alleged, deny
it, or remain silent. Depending upon the
defendant's response, the trial of the case
must then proceed as follows:
(1) If the defendant admits the previous
conviction, that element of the
offense charged in the indictment or
information is established, no
evidence in support thereof may beadduced by the State, and the judge
must submit the case to the jury
without reference thereto and as if
the fact of such previous conviction
were not an element of the offense.
The court may not submit to the jury
any lesser included offense which is
distinguished from the offense
charged solely by the fact that a
previous conviction is not an
element thereof.
(2) If the defendant denies the previous
conviction or remains silent, the
State may prove that element of the
offense charged before the jury as a
part of its case. This section
applies only to proof of a prior
conviction when it is an element of
the crime charged, and does not
prohibit the State from introducing
proof of prior convictions when
otherwise permitted under the rules
of evidence.
This statute applies to trials for habitual impaired driving. See,
e.g., State v. Scott, 356 N.C. 591, 573 S.E.2d 866 (2002).
Section 15A-928 requires that the jury not be informed of the
fact that defendant has been charged with a recidivism offense
until defendant has had the chance to stipulate to his prior
convictions. N.C. Gen. Stat. § 15A-928(a) and (b). Furthermore,
the existence of the prior convictions becomes a question for the
jury if defendant challenges the prior convictions. N.C. Gen.
Stat. § 15A-928(c)(2).
Here, however, the trial court announced to the jury that
defendant had been charged with habitual impaired driving at the
commencement of the case and before defendant had a chance to
stipulate to his prior convictions. In addition, the trial court
submitted the case to the jury with reference to defendant'sprevious convictions even though defendant stipulated to the
existence of the prior convictions. Because the trial court did
not follow the requirements of N.C. Gen. Stat. § 15A-928, we
conclude defendant is entitled to a new trial. Because of our
disposition of this case, we deem it unnecessary to discuss
defendant's remaining assignments of error.
For the reasons stated above, this case is remanded to the
Superior Court of Polk County in order that defendant may receive
a new trial.
New trial.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).
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