Opinion
No. COA12–118.
2012-08-21
STATE of North Carolina v. Suzsanna MORVAY.
Attorney General Roy Cooper, by Assistant Attorney General Carrie D. Randa, for the State. Daniel F. Read, for Defendant.
Appeal by Defendant from judgment entered 29 April 2011 by Judge Robert T. Sumner in Mecklenburg County Superior Court. Heard in the Court of Appeals 6 June 2012. Attorney General Roy Cooper, by Assistant Attorney General Carrie D. Randa, for the State. Daniel F. Read, for Defendant.
BEASLEY, Judge.
Suzsanna Morvay (Defendant) appeals her conviction for driving while impaired and possession of an open container of alcohol in the passenger area of a motor vehicle. For the following reasons, we find no error.
On or about 3 December 2009, Officer Charles G. Jamieson (Officer Jamieson) of the Charlotte–Mecklenburg Police Department arrived on the scene of an automobile accident. When Officer Jamieson arrived on the scene, he observed three vehicles that were involved in the accident. Officer Jamieson observed Defendant being treated by paramedics. Defendant was on a gurney in close proximity to one of the vehicles involved in the accident. Officer Jamieson approached Defendant while she was in the ambulance and he noticed the strong odor of alcohol. He also asked Defendant if she had been driving the vehicle and she responded in the affirmative. After further investigation, Officer Jamieson confirmed that the vehicle was registered to Defendant and also observed a half empty 1.7 liter bottle of vodka in the center console of the vehicle. Defendant was taken from the scene by ambulance and Officer Jamieson went to the hospital to continue his investigation. When he approached Defendant, he again smelled a strong odor of alcohol and observed that her eyes were red and glassy and her speech was slurred. Officer Jamieson informed Defendant that she was under arrest.
Defendant was charged with driving while impaired and possession of an open container of alcohol in the passenger area of a motor vehicle. On 10 August 2010, Defendant was convicted of both charges in Mecklenburg County District Court. Defendant gave notice of appeal to superior court. After a jury trial in superior court, Defendant was convicted of both charges. Defendant was sentenced as a Level II offender and sentenced to serve 12 months, which was suspended, with a 14 day active sentence and 24 months of supervised probation. Defendant gave notice of appeal in open court on 29 April 2011.
First, Defendant argues that the State's failure to comply with the notice requirement of N.C. Gen.Stat. § 20–139.1 rendered the blood kit and the chemical analysis inadmissible and the trial court erred by admitting this evidence. Although Defendant asserts that this issue was preserved for appeal because Defendant properly objected to the admission of the evidence, the State contends that this issue was not properly preserved. An examination of the statute and the record shows that Defendant did not preserve this issue for appellate review.
Defendant correctly asserts that N.C. Gen.Stat. § 20–139.1(c3) includes a notice requirement, but Defendant's argument grossly misinterprets the statute. Defendant properly states that N.C. Gen.Stat. § 20–139.1(c3) requires the State to give Defendant a 15 day notice of its intent not to call all of the witnesses in the chain of custody, but erroneously deduces that the blood kit, the chemical analysis, and the analyst's testimony all are barred for failure to comply with the notice requirement. Defendant argues that
since the statutory notice was not given and the State did not produce the other witnesses in the chain of custody, and since by the plain language of the statute they are necessary witnesses, it was error for the trial court to admit the blood kit into evidence and likewise error to admit the opinion of chemist [Anne] Charlesworth as to her analysis of its contents.
N.C. Gen.Stat. § 20–139.1(c3) (2011) addresses establishing the chain of custody without calling unnecessary witnesses. N.C. Gen.Stat. § 20–139.1(c3) provides,
[f]or the purpose of establishing the chain of physical custody or control of blood or urine tested or analyzed to determine whether it contains alcohol ... a statement signed by each successive person in the chain of custody that the person delivered it to the other person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the necessity of a personal appearance in court by the person signing the statement.
....
(3) The provisions of this subsection may be utilized in any administrative hearing, but can only be utilized in cases tried in the district and superior court divisions, or in an adjudicatory hearing in juvenile court, if:
a. The State notifies the defendant at least 15 business days before the proceeding at which the statement would be used of its intention to introduce the statement into evidence under this subsection and provides a copy of the statement to the defendant[.]
N.C. Gen.Stat. § 20–139.1(c3) permits the State to establish chain of custody by producing a statement signed by each successive person in the chain of custody if the State gives the defendant proper notice.
In this case, it is undisputed that the State failed to give the 15 day notice required for the State to use the signed statement to show chain of custody. Defendant argues that the State's failure to give Defendant notice of its intent to use the statement renders the blood kit, the chemical analysis, and Anne Charlesworth's statement inadmissible based on the plain meaning of the statute. We disagree. The State's violation of N.C. Gen.Stat. § 20–139.1(c3) would only prohibit the State from using the signed statement to prove chain of custody. Further, Defendant does not argue that she objected to introduction of the signed statement and our review of the record does not reveal that Defendant objected to the introduction of the statement at trial.
[I]n order to preserve for appeal the question of the admissibility of evidence offered by a witness, defendant must make an objection to such evidence at the time it is actually introduced at trial ... [;]it is insufficient for defendant to premise his objection on matters and evidentiary issues that he merely anticipates will be discussed by a prospective witness. Moreover, it is of no consequence if the witness' actual testimony substantively coincides with counsel's preliminary assumptions. For purposes of appeal preservation, objections to testimony must be contemporaneous with the time such testimony is offered into evidence.
State v. Thibodeaux, 352 N.C. 570, 581–82, 532 S.E.2d 797, 806 (2000). Here, Defendant raised the issue of chain of custody during Anne Charlesworth's voir dire, but failed to object to the introduction of the statement establishing chain of custody at trial, instead erroneously objecting to the introduction of the blood kit and the chemical analysis without giving the basis for the objection. We cannot construe Defendant's objection to the introduction of the blood kit and the chemical analysis as preserving the chain of custody argument under N.C. Gen.Stat. § 20–139.1(c3), where the statute states that the State cannot use a chain of custody statement and does not exclude the use of evidence. Moreover, Defendant failed to object to the introduction of the chain of custody statement. Accordingly, Defendant failed to preserve this issue for appeal and Defendant's argument is dismissed.
Defendant also argues that the trial court erred by denying her motion to dismiss where the evidence of chain of custody of the blood kit was not properly established under N.C. Gen.Stat. § 20–139.1(c3). Because we have determined that Defendant did not properly object to the introduction of the statement establishing chain of custody under N.C. Gen.Stat. § 20–139.1(c3), this issue was not properly preserved. Therefore, Defendant's argument is dismissed.
Next, Defendant argues that the trial court erred by denying her motion to dismiss because the State did not present sufficient evidence that Defendant was the driver of the vehicle. We disagree.
The standard of review for a motion to dismiss is well known. A defendant's motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant's being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The Court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.
State v. Phillpott, ––– N.C.App. ––––, ––––, 713 S.E.2d 202, 209 (2011) (citation omitted).
Defendant argues that the State relied solely on Defendant's uncorroborated confession to establish that Defendant was the driver of the vehicle. Defendant asserts that the State was required to provide “strong” corroborating evidence to support Defendant's admission that she was the driver. Defendant relies on a misinterpretation of State v. Trexler, 316 N.C. 528, 342 S.E.2d 878 (1986) and the corpus delicti rule to support her contention.
In Trexler, our high court explained that
[w]e adopt a rule in non-capital cases that when the State relies upon the defendant's confession to obtain a conviction, it is no longer necessary that there be independent proof tending to establish the corpus delicti of the crime charged if the accused's confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime.
We wish to emphasize, however, that when independent proof of loss or injury is lacking, there must be strong corroboration of essential facts and circumstances embraced in the defendant's confession.
Defendant seems to ignore the general rule and applies the exception even though it is clearly inapplicable. Defendant argues that the trial court should have applied the “strong corroboration” standard, but ignores the fact that this standard is only to be applied where independent proof of loss or injury is lacking. In this case, the State, contrary to Defendant's assertion, presented substantial independent evidence that Defendant was the driver. The State's evidence showed that (1) Defendant was at the scene of the accident and the only individual located near the vehicle; (2) the driver's side door was open and Defendant was placed on a gurney next to the vehicle, actually touching the driver's side of the vehicle. Based on the foregoing, there is substantial evidence, even without her admission, that Defendant was the driver of the vehicle. Therefore, Defendant's argument is overruled.
Finally, Defendant argues that the trial court erred by admitting Officer Jamieson's statement that the vehicle was registered to Defendant. Even assuming, arguendo, that the admission of Officer Jamieson's statement was in error, “in order to reverse the trial court, the appellant must establish the error was prejudicial.” State v. Bodden, 190 N.C.App. 505, 510, 661 S.E .2d 23, 26 (2008). An error is prejudicial “when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached[.]” N.C. Gen.Stat. § 15A–1443 (a) (2011). “The burden of showing such prejudice under this subsection is upon the defendant.” Id.
Defendant has not met her burden of establishing prejudice here, where the other evidence presented was sufficient to convict her. See, e.g., State v. Sierra, 335 N.C. 753, 762, 440 S.E.2d 791, 796 (1994) (finding defendant did not meet his burden of showing prejudice where based on the other evidence the jury's verdict would have been the same even without the inclusion of the contested evidence). Officer Jamieson testified that when he arrived on the scene, the driver's side door of the vehicle was open and Defendant was strapped to a gurney that was flush with the vehicle. There were no other individuals located near the vehicle, and Defendant admitted to driving a vehicle. Thus we find that there is no reasonable possibility a different result would have been reached had Officer Jamieson's testimony regarding the registration of the vehicle been excluded.
No Error. Judge HUNTER, Robert C. and GEER concur.
Report per Rule 30(e).