State v Whitley, (04-920) 05/03/2005

Appeal by defendant from judgment entered 15 April 2004 by Judge D. Jack Hooks, Jr. in Hoke County Superior Court. Heard in the Court of Appeals 25 April 2005.

Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.

James M. Bell, for defendant-appellant.

CALABRIA, Judge.

    Charles Anthony Whitley (“defendant”) was charged with driving while impaired (“DWI”), exceeding the posted speed limit by traveling 79 miles per hour (“mph”) in a 55 mph zone, driving with a revoked license, driving a motor vehicle upon a public street or highway with an open container, and failing to wear a seat belt. Defendant was also subsequently indicted for habitual DWI, at which time the charge of misdemeanor DWI was dismissed by the State.
    The State's evidence at trial tended to show that at approximately 7:00 p.m. on 23 August 2002, Trooper Perry Marshall (“Trooper Marshall”) of the North Carolina Highway Patrol noticed a red two-door pickup truck traveling northbound on U.S. 401 inHoke County at a high rate of speed. A subsequent radar reading confirmed that the vehicle was exceeding the posted speed limit of 55 mph by traveling at a rate of 79 mph. The trooper passed defendant's vehicle and slowed down in order to turn around and pursue his truck. While doing so, Trooper Marshall “got a visual on the vehicle [and observed that the driver was] a black male wearing a white ball cap.” The trooper also noticed that the driver was not wearing a seat belt.
    Trooper Marshall activated his blue lights and “wig-wags.” After the vehicle went over a hill, the driver pulled the vehicle to the shoulder of the road. The trooper pulled his car in behind the red truck and immediately noticed that a white male (later identified as Donald Glenn Tew (“Tew”)) was, at that point, seated in the driver's seat and a black male was seated in the passenger seat of the truck, wearing a white baseball cap. Trooper Marshall approached the vehicle and asked Tew for his license and registration. Tew complied. The trooper detected an odor of alcohol and asked Tew to step back to his police vehicle.
    Once seated in the trooper's vehicle, Tew admitted he had drank a beer. Tew twice told the trooper that he had been driving, but, after taking an ALCO-SENSOR test, Tew stated he had not been driving. Tew explained he was not feeling well and called defendant to drive him into town to pick up some medicine. He and defendant had a “few” beers at his house before going to get the medicine. When he and defendant saw Trooper Marshall, they both “tensed up.” After they pulled onto the shoulder of the road,defendant crawled over into the passenger seat, instructing Tew, “Switch with me. Switch with me.” Tew complied.
    Trooper Marshall asked Tew to exit the patrol vehicle, and the trooper approached the red pickup from the passenger side where defendant was seated. Trooper Marshall opened the passenger side door of the vehicle and saw two half-empty beer bottles on the floorboard closest to the passenger side door. Trooper Marshall asked defendant to step out of the vehicle. Defendant asked, “Why?” The trooper responded, “To step back to my car.” Trooper Marshall noticed the odor of alcohol about defendant's person. As defendant exited the vehicle, the trooper also noticed he was having difficulty balancing himself while walking. Defendant used the pickup truck and the police cruiser as support as he walked back to be seated in the cruiser. Trooper Marshall placed defendant in the passenger's seat of his cruiser and questioned defendant as to how much he had to drink. Defendant admitted he “had a beer in the truck.” The trooper then asked defendant why he and Tew had switched drivers. Defendant denied driving and also twice refused to take an ALCO-SENSOR test. Trooper Marshall, having formed the opinion that defendant had consumed a sufficient amount of an impairing substance to appreciably impair his mental and physical faculties, placed defendant under arrest and handcuffed him. The trooper read defendant his Miranda rights and transported him to the Hoke County Law Enforcement Center.
    At the Law Enforcement Center, Trooper Marshall escorted defendant to the Intoxilyzer room, where he read defendant hisIntoxilyzer rights. Defendant twice refused to submit to the Intoxilyzer test, insisting, “I weren't driving. I'm not taking the test.” After performing poorly on subsequent field sobriety tests, defendant was taken before the magistrate.
    At the close of the State's evidence, the trial court dismissed the seat belt charges. Defendant did not present any evidence. A jury subsequently found defendant guilty of the remaining charges. Defendant stipulated to the three prior convictions for DWI listed in the indictment and pled guilty to habitual DWI. The trial court entered a consolidated judgment, sentencing defendant as a prior record level III offender to a term of 20 to 24 months' imprisonment. Defendant appeals.
    By his first assignment of error, defendant argues that the trial court erred in denying his motion to dismiss the habitual DWI charge. Defendant contends that the misdemeanor DWI charge was required to be dismissed before he could be indicted on the habitual DWI charge, which arose out of the same occurrence. We disagree.
    North Carolina General Statutes § 15A-627 (2003), which governs the submission of bills of indictment to grand jury by prosecutors, provides pertinently:
            (a) When a defendant has been bound over for trial in the superior court upon any charge in the original jurisdiction of such court, the prosecutor, unless he dismisses the charge under the terms of Article 50 of this Chapter, Voluntary Dismissal by the State, or proceeds upon a bill of information, must submit a bill of indictment charging the offense to the grand jury for its consideration.North Carolina General Statutes § 15A-931 (2003), entitled “Voluntary dismissal of criminal charges by the State,” provides in pertinent part:
         (a) Except as provided in G.S. 20-138.4, the prosecutor may dismiss any charges stated in a criminal pleading including those deferred for prosecution by entering an oral dismissal in open court before or during the trial, or by filing a written dismissal with the clerk at any time. The clerk must record the dismissal entered by the prosecutor and note in the case file whether a jury has been impaneled or evidence has been introduced.
“A voluntary dismissal taken by the State, pursuant to G.S. 15A- 931, does not preclude the State from instituting a subsequent prosecution for the same offense if jeopardy has not attached.” State v. Muncy, 79 N.C. App. 356, 360, 339 S.E.2d 466, 469 (1986) (emphasis added). In misdemeanor cases in the district court, jeopardy generally attaches upon the introduction of evidence. State v. Ward, 127 N.C. App. 115, 121, 487 S.E.2d 798, 802 (1997).
    In the instant case, defendant was charged by uniform citation with misdemeanor DWI (02CRS51831) on 23 August 2002. On 7 July 2003, defendant was indicted for habitual DWI (03CRS1510) by the Hoke County Grand Jury. On 31 July 2003, the District Attorney voluntarily dismissed the misdemeanor charge in 02CRS51831, specifying that an indictment premised on the same offense had been filed in the superior court. Defendant moved to dismiss the charges in 03CRS1510, arguing that the State was required to dismiss the misdemeanor charge in 02CRS51831 prior to obtaining the subsequent, superceding indictment for habitual DWI in 03CRS1510. Defendant referenced N.C. Gen. Stat. §§ 15A-627 and -931 in support of his argument. The trial court denied the motion.
    Although defendant argues to the contrary, neither N.C. Gen. Stat. §§ 15A-627(a) nor -931 requires that the prosecutor dismiss the misdemeanor DWI charges prior to the grand jury indicting him for habitual DWI. Jeopardy had not attached in the district court; therefore, the prosecutor was free to seek charges for habitual DWI premised upon the still-pending district court misdemeanor DWI charge. But see State v. Mayes, 31 N.C. App. 694, 230 S.E.2d 563 (1976) (holding that conviction in district court prevented the prosecutors from pursuing felony charges, arising out of the same facts, in superior court). Accordingly, there was nothing improper in dismissing the misdemeanor case subsequent to obtaining a superceding indictment. This assignment of error is overruled.
    By his next assignment of error, defendant argues that the trial court committed reversible error in allowing the State to amend the habitual DWI indictment to correct certain errors. Again, we disagree.
    In the case sub judice, the first paragraph of the habitual DWI indictment was amended to remove the term “feloniously” from the misdemeanor DWI charge; and the conviction dates of one of the underlying DWI offenses, erroneously listed as 21 September 2000, was corrected to reflect the correct conviction date of 6 January 2000. We are not persuaded by the State's argument that defendant waived any errors in the indictment, since such errors may be jurisdictional in nature. See e.g., State v. Wolfe, 158 N.C. App.539, 541-42, 581 S.E.2d 117, 118 (2003) (holding that the trial court did not have jurisdiction to rule on a motion to suppress filed prior to the defendant's indictment or waiver of indictment for criminal charges); McClure v. State, 267 N.C. 212, 215, 148 S.E.2d 15, 17-18 (1966) (holding that the sentence imposed upon the defendant's plea of guilty to offense for which he had not been properly indicted held null and void for lack of jurisdiction).
    Addressing the merits of the assignment of error, it is well settled that N.C. Gen. Stat. § 15A-923(e) prohibits only amendments to the indictment “which would substantially alter the charge set forth in the indictment.” State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996). The Supreme Court has noted that “when time is not of the essence of the offense charged, an indictment may not be quashed for failure to allege the specific date on which the crime was committed.” State v. Price, 310 N.C. 596, 599, 313 S.E.2d 556, 559 (1984). Particularly, this Court has held that the use of the word “feloniously” in a warrant charging a violation of N.C. Gen. Stat. § 14-33(b)(3), which was a misdemeanor, was surplusage. State v. Mayes, 31 N.C. App. 694, 697, 230 S.E.2d 563, 565 (1976). Such surplusage is to be “disregarded when testing the sufficiency of the indictment.” State v. Pelham, 164 N.C. App. 70, 79, 595 S.E.2d 197, 203, disc. review denied, 359 N.C. 195, ___ S.E.2d ___ (2004).
    In this case, the inadvertent use of the term “feloniously” to describe misdemeanor DWI, an offense in violation of N.C. Gen. Stat. § 20-138.1, was surplusage. We, therefore, conclude thatneither the error in the indictment nor its correction by amendment thereto was prejudicial to defendant. We conclude similarly in regard to the correction of one of the underlying conviction dates. The conviction date here was essential only in that it had to be within the seven-year period of the offense date for defendant's current charge. See N.C. Gen. Stat. § 20-138.5 (2003). Since both the 21 September 2000 (the erroneous date) and the 6 January 2000 (the correct date) were within that seven-year window, the amendment of the subject indictment to change dates was not error. See Price, 310 N.C. at 599, 313 S.E.2d at 559 (providing that amendment was not necessary but the court's decision to allow the correction of an erroneous date was proper). Accordingly, defendant's second assignment of error is also overruled.
    By his third assignment of error, defendant argues that the trial court erred in allowing Trooper Marshall to testify, over his objection, regarding certain statements defendant made prior to being advised of his Miranda rights. We note, however, that this issue was authoritatively addressed, contrary to defendant's position, by this Court in State v. Seagle, 96 N.C. App. 318, 320- 23, 385 S.E.2d 532, 534-35 (1989).
    In Seagle, the Court noted that incriminating statements made by a defendant to a trooper during a brief traffic stop were admissible. The Court explained, by way of several analogous cases, that the questions asked by a trooper, after observing the defendant commit a moving violation and pulling the defendant overon the roadside, were non-custodial in nature and did not require Miranda warnings.
    The facts of this case are much like those discussed in Seagle, its predecessors and progeny. Here, defendant was pulled over by Trooper Marshall after he was “clocked” going some 24 miles over the speed limit. After stopping the vehicle, the trooper noticed that a person other than defendant was in the driver's seat. When the passenger admitted to having switched places with defendant at defendant's request, the trooper then approached defendant. Defendant had the odor of alcohol about his person, had difficulty exiting the passenger side of his pickup truck and was unsteady as he walked back to Trooper Marshall's police cruiser. Once in the front seat of the trooper's cruiser, the trooper questioned defendant about how much he had to drink. Defendant told Trooper Marshall that he “had a beer in the truck.” The trooper then asked defendant why he and his passenger had switched places, whereupon defendant denied having been driving. Defendant also refused to take an ALCO-SENSOR test.
    As did the Court in Seagle, we conclude here that “a reasonable man” in defendant's position would not have felt like he was in custody. Defendant was never handcuffed and was not placed under arrest until after he refused to take the ALCO-SENSOR test. Moreover, the trooper was alone during the traffic stop and never showed a weapon nor employed any force to restrain defendant during questioning. In fact, both vehicles were parked on a roadside in public view during the entire exchange. Accordingly, thestatements made to Trooper Marshall were admissible as non- custodial statements, not requiring Miranda warnings. Defendant's arguments to the contrary fail, and hence, this assignment of error is overruled.
    Defendant specifically abandons his fourth assignment of error. Having overruled all of defendant's assignments of error brought forward on appeal, we hold that defendant received a fair trial, free from prejudicial error.
    No error.
    Chief Judge MARTIN and Judge McCULLOUGH concur.
    Report per Rule 30(e).

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