Opinion
No. COA10-642
Filed 17 May 2011 This case not for publication
Appeal by Defendant from judgment entered 3 December 2009 by Judge Edwin G. Wilson, Jr. in Rockingham County Superior Court. Heard in the Court of Appeals 3 November 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton, for the State. Robert W. Ewing for Defendant-appellant.
Rockingham County Nos. 09 CRS 52039, 09 CRS 52040.
I. Factual and Procedural Background
The Rockingham County Grand Jury indicted Arnold Arnaz Johnson ("Defendant") on 1 June 2009 for habitual impaired driving and misdemeanor possession of marijuana. Defendant pled not guilty and a jury trial began 2 December 2009, at which the State's evidence tended to show the following.
On 16 May 2009, around 1:35 a.m., Defendant was driving a scooter on North Carolina Highway 14. He was in the left lane traveling about 30 miles per hour and weaving within his lane. Sergeant Ray Gibson of the North Carolina Highway Patrol ("NCHP") noticed the weaving, which he described as "four to five, six feet between each weave."
Sergeant Gibson turned on his bluelights and, when he did not get a response from Defendant, turned on his siren, at which point Defendant pulled over to the shoulder of the road. Defendant remained standing over the scooter with his hands on the handlebars. When asked for his driver's license, Defendant responded that he did not have one, at which point Sergeant Gibson noticed Defendant had slurred speech, the strong odor of alcohol on his breath, and red, glassy eyes. At that point, Sergeant Gibson called Trooper Rakestraw of the NCHP, because as district supervisor, Sergeant Gibson could not be tied up with an arrest.
Upon arrival, Trooper Rakestraw also noticed the odor of alcohol on Defendant's breath and his bloodshot, glassy eyes. Trooper Rakestraw arrested Defendant for driving while impaired. At the Sherriff's Office, Trooper Rakestraw administered breath tests using an Intoximeter EC/IR II ("Intoximeter") after reading Defendant his rights and waiting thirty minutes. Trooper Rakestraw testified that Defendant "barely puff[ed]" into the machine, and the sample was not strong enough for the instrument to get a reading. After resetting the machine, three more attempts to get a measurement resulted in insufficient samples.
Trooper Rakestraw offered several field sobriety tests, including the one-leg stand, the walk-and-turn, the finger-to-the-nose, and the sway test, all of which were refused by Defendant. Trooper Rakestraw obtained a search warrant for Defendant's blood, and Lieutenant Billy McKinney of the Rockingham County EMS took a blood sample from Defendant at 5:15 a.m. At trial, Justin Sigman of the North Carolina State Bureau of Investigation testified that he tested Defendant's blood and found the alcohol concentration to be 0.11 grams of alcohol per 100 milliliters of whole blood. Driving with an alcohol concentration of 0.08 or more is impaired driving. N.C. Gen. Stat. § 20-138.1 (2009).
After the blood test, Trooper Rakestraw searched Defendant for weapons as a part of processing him for jail. Trooper Rakestraw found a small bag of marijuana in Defendant's jeans.
At trial, Defendant testified that he was driving home from playing cards the night he was arrested. He admitted to having three or four beers around 6 p.m. that evening. Defendant testified it did not "take long to drink that many. They watered down now. They ain't as strong as they used to be. Probably could drink a 12-pack and walk the line. They're watered down. That's something that probably need to be re-evaluated." Defendant testified he had smoked marijuana that night and the marijuana may be the reason his eyes were red and glassy.
Defendant also testified that he tried "with all [his] might" to blow into the Intoximeter, but that Trooper Rakestraw "snatched it out" before the instrument could produce a reading. Defendant admitted he had three previous driving while impaired convictions within the ten years prior to this trial.
The jury found Defendant guilty of habitual impaired driving and possession of marijuana up to one-half ounce. Defendant was sentenced to a minimum of 19 and a maximum of 23 months' imprisonment.
II. Preservation of Right to Appeal
Defendant did not object to either of the alleged errors he raises on appeal. Although this would generally preclude Defendant's appeal of these alleged errors, "when a trial court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court's action is preserved, notwithstanding defendant's failure to object at trial." State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985) (emphasis added). As both alleged errors in this case deal with statutory mandates, we review them despite Defendant's failure to object at trial. We have jurisdiction over this appeal under N.C. Gen. Stat. § 7A-27(b) (2009).
III. Argument
Defendant argues the trial court failed to follow the statutory mandate of N.C. Gen. Stat. § 15A-928, and that he was prejudiced by this failure. We disagree.
Section 15A-928 of our General Statutes requires that, in cases where previous convictions cause an offense to be raised to a higher grade:
[a]fter 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 be adduced 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.
N.C. Gen. Stat. § 15A-928(c) (2009).
In the present case, the following colloquy occurred prior to the empaneling of the jury:
[Assistant District Attorney]: Your honor, just to clarify for the Court, it's my understanding that the defendant does not wish to stipulate to any of his prior DWI convictions, so the State will be proceeding in having to prove that fourth element as part of its case in chief.
The Court: Okay.
[Defense Counsel]: And, Your Honor, just for the record, I had filed an objection to the introduction of the blood sample without the chemical analyst being here. . . .
. . . .
The Court: Now, as I understand that when the defendant won't stipulate to the previous DWIs you don't bifurcate the trial, do you? You simply acknowledge at the beginning that it's habitual DWI. Do you all disagree with that?
[Defense Counsel]: No, sir.
[Assistant District Attorney]: That's my understanding and in reading the jury instructions as well, Your Honor.
The trial court did not explicitly advise Defendant that he could admit, deny, or remain silent on the previous convictions. Since the trial court did not follow the statutory mandate to the letter of the law, we turn our attention to the issue of prejudice.
Where Defendant was aware of the charges against him, understood his rights, and was not prejudiced by the failure of a formal arraignment, there is no reversible error. State v. Jernigan, 118 N.C. App. 240, 245, 455 S.E.2d 163, 167 (1995) ("We must not put form over substance; we must not return to strict legalism and require magic words chanted in precise sequence to make an act right.") In the present case, we find no prejudice, as Defendant knew the charges against him and his right to stipulate and twice chose to remain silent.
Twice during pre-trial motions the issue of whether Defendant would stipulate to his prior convictions was discussed. In the first instance, the assistant district attorney stated her understanding that Defendant was not going to stipulate. When the trial court accepted this statement, defense counsel did not attempt to correct the trial court and, in fact, moved on to another issue. In the second instance, the trial court stated that Defendant would not stipulate and again defense counsel did not attempt to correct the trial court, but actually agreed with the trial court's statement about how the trial should be conducted in the absence of stipulations.
Defendant argues defense counsel's actions should not bind him, because he asserted at trial that his attorney was not communicating with him. We do not find this argument persuasive, as Defendant has offered no evidence that his attorney was not acting on his behalf in failing to stipulate to the prior convictions. See Jernigan, 118 N.C. App. at 245, 455 S.E.2d at 166-67 ("[A]n attorney is presumed to have the authority to act on behalf of his client. The burden is upon the client to prove lack of authority to the satisfaction of the court.") The trial court found Defendant's bald assertion that his attorney was not adequately representing him was unsupported and pointed out that Defendant had met with his attorney twice and missed a third appointment. We agree with the trial court that Defendant has not met his burden of showing his attorney was not acting on his behalf.
The exchange between the attorneys and the trial court shows the purpose of section 15A-928 was met. See State v. Burch, 160 N.C. App. 394, 397, 585 S.E.2d 461, 463 (2003) ("The purpose of this procedure is to afford the defendant an opportunity to admit the prior convictions which are an element of the offense and prevent the State from presenting evidence of these convictions before the jury."). Defendant was given the opportunity to admit his convictions twice and declined to do so both times.
In addition, we find no prejudice to Defendant by the introduction of evidence of his prior convictions. Having refused to stipulate to the prior convictions, they were necessary elements of which the State had to produce evidence. Id. Defendant has failed to show that, but for the introduction of his prior convictions, he would not have been convicted of the present offense. See N.C. Gen. Stat. § 15A-1443(a) (2009) ("A defendant is prejudiced . . . when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached. . . ."). The evidence against Defendant included the testimony by two members of the highway patrol that Defendant demonstrated signs of intoxication including red, glassy eyes, slurred speech, and the odor of alcohol on his breath. An analysis of Defendant's blood, taken after he was arrested, showed a blood-alcohol concentration of 0.11, a concentration above the permissible limit. Defendant admitted to having had alcohol that evening. We fail to find a reasonable possibility that the jury would have reached a different verdict if Defendant's prior convictions had not been admitted.
Defendant also argues the trial court's admission of Defendant's arrest warrant into evidence violated section 15A-1222 of our General Statutes, which prohibits judges from expressing an opinion in front of the jury on a question of fact to be decided by the jury. N.C. Gen. Stat. § 15A-1222 (2009). Defendant claims that because the arrest warrant was signed by a judicial officer, it constitutes an improper opinion. We disagree.
"Generally, ordinary rulings by the court in the course of trial do not amount to an impermissible expression of opinion." State v. Welch, 65 N.C. App. 390, 393-94, 308 S.E.2d 910, 913 (1983). In addition, a "defendant must show that he was prejudiced by a judge's remark." State v. Weeks, 322 N.C. 152, 158, 367 S.E.2d 895, 899 (1988).
We find no expression of opinion in the trial court's admission of Defendant's arrest warrant into evidence. The admission of a statement by a magistrate that there was probable cause to arrest Defendant is not an expression of the opinion of the trial court on a fact to be decided by the jury. In addition, we find no prejudice to Defendant. For the reasons discussed above, we find no reasonable possibility that Defendant would have achieved a different result had the arrest warrant not been admitted.
No error.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).