71 N.C. App. 570 | N.C. Ct. App. | 1984
Lead Opinion
One of the two main contentions asserted by defendant is that the evidence presented was not sufficient to warrant defendant’s conviction of driving under the influence. Two of the three elements of the offense — that at the time charged defendant was driving a motor vehicle upon a public highway — were clearly established and are not in dispute. The dispute is only whether the evidence was sufficient to show that defendant was under the influence of intoxicating liquor at the time. G.S. 20-138, repealed by Session Laws 1983, c. 435, s. 23, effective October 1, 1983. Testimony that defendant emerged from this wreck smelling of alcohol, later admitted that he had had two beers during the night, appeared to be “high,” and drove in an erratic and dangerous manner, greatly in excess of the speed limit though the road and weather conditions were unfavorable, was sufficient, in our opinion, under the rule laid down in State v. Hewitt, 263 N.C. 759, 140 S.E. 2d 241 (1965), to warrant the jury in concluding that he was under the influence of an intoxicating liquor. See Atkins v. Moye, 277 N.C. 179, 176 S.E. 2d 789 (1970); State v. Cartwright, 12 N.C. App. 4, 182 S.E. 2d 203 (1971).
The defendant’s other main contention is that the court, to defendant’s prejudice, improperly permitted the State to impeach its own witnesses. In two instances the State, disappointed with the halting testimony of its witnesses, asked them to read portions of their written statements to the jury. The first instance involved State’s witness Staiert Porter, who first expressed the opinion that defendant’s speed at the curve a mile before the collision was 65 to 75 miles an hour; but upon “refreshing his recollection” by reading from his statement, he opined that the speed was 80 miles per hour. The second instance involved State’s witness Johnathan Ray, who, when first asked about defendant’s physical appearance two hours before the accident, responded that he “didln’t appear to be drinking”; but when referred to his
Q. All right, sir. Do you recall what your answer was back on February 11th, 1983?
A. February 11th?
Q. Yes, sir.
A. He had a beer in his hand.
Q. All right, sir. And did you go on to say something else after that?
A. I said, “Yes, he had a beer in his hand. He didn’t seem drunk but he seemed like he was high.”
Our law is that though the State may not impeach its own witness, the trial judge, in his discretion, upon it appearing that the State has been genuinely misled or surprised, can permit the witness to be questioned about prior inconsistent statements. 1 Brandis N.C. Evidence § 40 (1982). Actually what the prosecutor did was not impeach the witnesses, since their credibility was not attacked, but ask them leading questions, which does not justify a new trial unless prejudice is shown. State v. Young, 291 N.C. 562, 231 S.E. 2d 577 (1977). And here the leading questions were not prejudicial to defendant. Porter’s revised statement only added five miles to defendant’s speed, which was grossly excessive under any view of the evidence, and evidence as to defendant’s intoxication and irresponsible driving was overwhelming without Ray’s addendum.
The defendant’s several other assignments of error, which require no discussion, are likewise without merit.
No error.
Dissenting Opinion
dissenting.
In the midst of defendant’s ten arguments, set forth in forty-nine pages of his brief, are two assignments of error which the majority summarily dismisses and which I believe have merit. Defendant assigns error to the trial court’s actions (a) overruling defendant’s objection to the prosecutor’s closing argument and (b) denying defendant’s motion for mistrial based on the prosecutor’s closing argument. Believing that the trial court improperly allowed the prosecutor to suggest to the jury that it could and should be influenced by public pressure, community expectations, public favor, and emotion, I dissent.
Over objection, the prosecutor was allowed to make the following argument to the jury:
Now, we often hear, we often read in the paper or hear on television or anything else, something that happens there’s a lot of public sentiment at this point against driving and drinking, causing accidents on the highway. And, you know, you read these things and you hear these things and you think to yourself, ‘My God, they ought to do something about that.’ Well, Ladies and Gentlemen, . . . the buck stops here. You twelve jurors in Cumberland County have become the ‘they.’
The prosecutor’s appeal to some alleged community interest in convicting the defendant in this case based on community expectations about what should be done in cases in general draws the minds of the jurors away from the matters in evidence and subjects them to influences outside the case. While I am not so far from the practice of law that I stand ready to dampen the zeal of trial advocates who seek to argue the whole case as well of law as of fact, I feel constrained by State v. Mayfield, 28 N.C. App. 304, 220 S.E. 2d 643 (1976). In Mayfield, the prosecutor argued: “Ladies and gentlemen, you know that we have been having a great many of these type robberies of convenience stores here in our county, and we’ve got to do something about it to put a stop to it.” 28 N.C. App. at 307, 220 S.E. 2d at 644-45. The trial court sustained defendant’s objection to the remarks and instructed the jury not to consider the remarks. In Mayfield, this Court said: “Conceding that the solicitor’s remark was improper, nevertheless any error was cured by the court’s prompt instruction to
New trial.
