STATE v. WARREN (2018)

Defendant appeals following a jury verdict finding him guilty of driving while impaired (“DWI”) and his guilty plea to driving while license revoked for impaired driving. On appeal, Defendant argues the trial court erred in admitting evidence of his revoked license and probationary status. We find no prejudicial error.

I. Factual and Procedural Background

On 9 January 2016, State Trooper Jamie Bullard arrested Defendant and issued him citations for DWI and driving while license revoked. On or about 9 May 2016, a Pitt County Grand Jury indicted Defendant for DWI, habitual DWI, driving while license revoked for impaired driving, and speeding. On 8 December 2016, Defendant stipulated to prior DWI convictions. In his stipulation, Defendant argued the State would no longer have reason to “refer to any specific prior DWI conviction of the defendant[.]” The same day, Defendant filed a motion in limine, seeking to exclude his post-arrest statement, which was “․ [he was] on probation and Judge Duke was going to be mad.” Defendant argued “[t]his statement[’s] probative value is outweighed by the prejudicial nature of the statement.”

The court called the case for trial on 27 February 2017. Prior to trial beginning, defense counsel informed the court of Defendant's plea to driving while license revoked and stated:

We have also filled out a plea transcript to driving while license revoked/impaired driving revocation. He, at arraignment, pled not guilty to all the charges but upon discussion with counsel, we would like to change our plea for the driving while license revoked/impaired driving revocation from not guilty to guilty. I have a transcript by the Defendant. So, therefore, the State would not have to reference anything about the Defendant's prior history or driving record in the trial.

The State argued it could still reference the fact Defendant's license was revoked. The trial court ruled “[the] State would be allowed to reference during the course of the trial on the driving while impaired that [Defendant's] license was revoked but would not be able to reference the reason for the revocation.”

Defense counsel next argued the motion in limine seeking to exclude Defendant's post-arrest statement he was “on probation and Judge Duke was going to be mad.” Defense counsel argued the prejudice to Defendant outweighed any probative value. The trial court denied the motion.

Defendant entered a guilty plea to driving while license revoked, and stipulated to the existence of three prior DWI convictions, pursuant to N.C. Gen. Stat. § 15A-928 (2017), in support of the habitual DWI charge. The State dismissed the speeding charge.

The matter proceeded to trial. The State called Jamie Bullard, a Trooper for the North Carolina State Highway Patrol. On 9 January 2016 around 11:30 a.m., Trooper Bullard patrolled on North Carolina Highway 11, in Pitt County. In that area, the speed limit was fifty-five miles per hour. Trooper Bullard saw a 2004 Chrysler vehicle “traveling south on N.C. 11, coming from Bethel towards Greenville at a high rate of speed.” Based on his experience and training, Trooper Bullard estimated the car traveled at “[a]pproximately eighty miles per hour[.]” Trooper Bullard's radar clocked the car's speed at seventy-six miles per hour.

Trooper Bullard followed the car and activated his blue lights. The driver of the car and Trooper Bullard pulled over. Trooper Bullard walked up to the driver's side of the car. Trooper Bullard identified Defendant as the driver. When he saw Defendant, he “immediately” thought “this person looked hung over.” Defendant's eyes were “yellow and very glassy.” Trooper Bullard smelled “a moderate odor of alcohol.” From Defendant's clothes and appearance, Trooper Bullard thought Defendant slept in his clothes.

Trooper Bullard asked Defendant for his license. Defendant told Trooper Bullard he did not have a license. Trooper Bullard asked Defendant if Defendant's license was suspended, and Defendant answered “yes.” ¹

Defendant gave Trooper Bullard his registration. Trooper Bullard asked Defendant his name. Defendant “was slow to respond, and spoke very light and mumbled.” Trooper Bullard “had to get him to talk louder and repeat himself several times.” Trooper Bullard asked Defendant his date of birth. Again, Trooper Bullard “had to get [Defendant] to speak louder and repeat himself, and had to tell him numerous times to do all that, to be able to understand him.” Trooper Bullard asked Defendant if he had anything to drink, and Defendant told him he had drank “last night ․ but it had been a while.”

Trooper Bullard ran Defendant's name through the system and learned his license was suspended.² Trooper Bullard asked Defendant to conduct an alkasensor test, and Defendant agreed. Defendant's breath sample tested positive for alcohol. Trooper Bullard asked again if Defendant drank anything. Defendant admitted he last drank alcohol at 1:30 a.m. Trooper Bullard took another breath sample, which also tested positive for alcohol.

Trooper Bullard asked Defendant to get out of his car. Defendant complied and walked “very slowly” to the back of his car. Trooper Bullard arrested Defendant for DWI. While en route to the Pitt County Detention Center, Defendant asked Trooper Bullard “not to charge him with DWI, because he was on probation and Judge Duke was going to be mad.” ³

At the Detention Center, Trooper Bullard brought Defendant to the intoxilyzer room. At 12:19 p.m., Trooper Bullard read Defendant his “breath rights” from a Department of Health and Human Services standard form. Without objection, the State admitted Defendant's “rights form[.]” Trooper Bullard administered an intoxilyzer test at 12:42 p.m. and 12:45 p.m., which measured Defendant's blood alcohol concentration as .08.

Trooper Bullard informed Defendant of his Miranda rights. Defendant told Trooper Bullard he stopped drinking at 3:30 a.m., and “he knew he should have ate something after drinking, and he should have slept longer.”

The State rested. Defendant moved to dismiss the charges. The trial court denied Defendant's motion. Defendant did not present evidence and renewed his motion to dismiss. The trial court denied his motion.

The jury found Defendant guilty of DWI. Based upon Defendant's guilty plea to driving while license revoked, and Defendant's stipulation to his prior DWI convictions pursuant to N.C. Gen. Stat. § 15A-928, the trial court entered a consolidated judgment for habitual impaired driving and driving while license revoked for impaired driving. The court sentenced Defendant to 21 months to 35 months of imprisonment. On 28 February 2017, Defendant filed timely written notice of appeal.⁴

II. Jurisdiction

Defendant has an appeal of right to this Court pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2017).

III. Standard of Review

“In criminal cases, an issue that was not preserved ․ may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C. R. App. P. 10(a)(4) (2017). However, failure to argue plain error waives plain error review. State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012) (citations omitted).

Where Defendant objected at trial, we review for prejudicial error. N.C. Gen. Stat. § 15A-1443(a) (2017). See also State v. Chavis, 141 N.C. App. 553, 566, 540 S.E.2d 404, 414 (2000) (citation omitted) (“The erroneous admission of evidence requires a new trial only when the error is prejudicial.”). “A defendant is prejudiced by an evidentiary error ‘when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.’ ” State v. Wilkerson, 363 N.C. 382, 415, 683 S.E.2d 174, 194 (2009) (quoting N.C. Gen. Stat. § 15A-1443(a) ).

IV. Analysis

Defendant argues the trial court erred by admitting evidence of his revoked license and probationary status.

1. Evidence of Revoked License

Defendant first argues the trial court erred in admitting evidence of his revoked license. The State contends Defendant waived his right to challenge the admissibility of this evidence because he failed to object when the evidence was offered at trial and did not argue plain error on appeal.

Our Supreme Court “has long held that when, as here, evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost.” State v. Maccia, 311 N.C. 222, 229, 316 S.E.2d 241, 245 (1984) (citation omitted). At trial, Trooper Bullard testified “[w]hen [he] asked for [Defendant's] license, [Defendant] stated that he did not have one․ And [he] asked if [Defendant's] license was suspended, and [Defendant] stated, yes.” Defendant did not object to this testimony. Trooper Bullard also testified he ran Defendant's name through the system, and the system showed Defendant's driver's license was suspended. Defendant objected to this testimony, and the trial court overruled the objection. Trooper Bullard later testified one of the factors that led him to form the opinion Defendant was impaired was “that he was driving with a suspended licenses [sic][.]” Defendant did not object.

Because Defendant failed to object to the first admission of evidence his license was suspended, and again when the State later admitted the evidence after his objection, Defendant failed to preserve this issue for appeal. See N.C. R. App. P. 10(a)(1) (2017) (“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion[.]”); see also State v. Lewis, 231 N.C. App. 438, 442, 752 S.E.2d 216, 219 (2013) (“Because defendant did not object to the evidence the first time it was introduced, he did not preserve the issue for appeal.”). “Moreover, because Defendant did not ‘specifically and distinctly’ allege plain error [in his brief] as required by North Carolina Rule of Appellate Procedure [10(a)(4) ], defendant is not entitled to plain error review of this issue.” State v. Dennison, 359 N.C. 312, 312-13, 608 S.E.2d 756, 757 (2005) (citation omitted).

2. Evidence of Defendant's Probationary Status

Defendant next argues the trial court erred in admitting evidence of his probationary status through Trooper Bullard's testimony about Defendant saying “he was on probation and Judge Duke was going to be mad.” Defendant contends the court erred by allowing the admission of this evidence because the evidence violates Rules 401, 403, and 404(b) of the Rules of Evidence. N.C. R. Evid. 401, 403, 404(b) (2017). Defendant argues the improper admission of this evidence prejudiced him because “[t]his was a case on the borderline” and Defendant “was entitled to have the jury consider the evidence untainted by the knowledge ․ that he was on probation for some unspecified crimes.”

Even assuming, without deciding, the trial court erred by allowing the admission of this evidence, we conclude the error does not amount to prejudicial error, in light of the overwhelming evidence of Defendant's guilt. At trial, Trooper Bullard testified Defendant was speeding more than twenty miles per hour over the speed limit, Defendant's eyes were “yellow and very glassy” and he appeared disheveled, and there was a “moderate” odor of alcohol on Defendant's breath. Defendant admitted to drinking alcohol until the early morning hours and registered a .08 blood alcohol concentration on the intoxilyzer test. In light of this evidence, we conclude Defendant fails to demonstrate any prejudice resulting from the admission of his statement about his probationary status. See State v. Grant, 178 N.C. App. 565, 576, 632 S.E.2d 258, 266 (2006) (quotation marks, citation, and brackets omitted) (“Erroneous admission of evidence may be harmless where there is an abundance of other competent evidence to support the state's primary contentions, or where there is overwhelming evidence of the defendant's guilt.”). Accordingly, we find no prejudicial error.

V. Conclusion

For the foregoing reasons, we find no prejudicial error in the judgment.

NO PREJUDICIAL ERROR.

Report per Rule 30(e).

FOOTNOTES

1.   Defendant did not object to this portion of testimony.

2.   Defendant objected to this portion of testimony.

3.   Defendant objected “based on the previous objection.” The trial court overruled Defendant's objection.

4.   On 30 March 2018, appellate defense counsel filed a brief on Defendant's behalf. On 2 May 2018, the State filed its appellee brief. On 18 July 2018, Defendant filed a motion to amend the appellate brief, arguing appellate defense counsel failed to bring forth meritorious arguments. In an order entered 19 July 2018, this Court dismissed Defendant's motion because “Defendant, who has appointed counsel, cannot file motions on his own behalf or attempt to represent himself.” On 3 September 2018, appellate defense counsel filed a motion to withdraw. Appellate defense counsel asserted Defendant discharged counsel and directed counsel to withdraw from representation. In an order entered 18 September 2018, this Court granted the motion to withdraw. On 26 July 2018, Defendant filed a pro se brief, titled as a supplemental brief or amendment to counsel's brief. On 29 October 2018, the State filed a motion to strike Defendant's pro se brief and argued Defendant's pro se brief is improperly before this Court. We agree and allow the State's motion.

HUNTER, JR., Robert N., Judge.

Judges DAVIS and MURPHY concur.