{ "id": 11865967, "name": "STATE OF NORTH CAROLINA v. DANNY LESTER PYATT", "name_abbreviation": "State v. Pyatt", "decision_date": "1997-01-07", "docket_number": "No. COA96-213", "first_page": "147", "last_page": "151", "citations": [ { "type": "official", "cite": "125 N.C. App. 147" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "470 S.E.2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": -1 }, { "cite": "343 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798768 ], "year": 1996, "opinion_index": -1, "case_paths": [ "/nc/343/0202-01" ] }, { "cite": "26 ALR4th 1112", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "14 ALR4th 690", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "209 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "756", "parenthetical": "quoting 7 Strong, N.C. Index 2d, Statutes \u00a7 5 (1968)" } ], "opinion_index": 0 }, { "cite": "286 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563921 ], "year": 1974, "pin_cites": [ { "page": "152", "parenthetical": "quoting 7 Strong, N.C. Index 2d, Statutes \u00a7 5 (1968)" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0148-01" ] }, { "cite": "447 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "470" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 329", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523784 ], "year": 1994, "pin_cites": [ { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0329-01" ] }, { "cite": "442 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "138" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 435", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527672 ], "year": 1994, "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0435-01" ] }, { "cite": "474 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "387", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "344 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867692 ], "year": 1996, "pin_cites": [ { "page": "221", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0198-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "298 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "644", "parenthetical": "\"It is the appellant's duty and responsibility to see that the record is in proper form and complete.\"" } ], "opinion_index": 0 }, { "cite": "307 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562282 ], "year": 1983, "pin_cites": [ { "page": "341", "parenthetical": "\"It is the appellant's duty and responsibility to see that the record is in proper form and complete.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0321-01" ] }, { "cite": "367 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "623" } ], "opinion_index": 0 }, { "cite": "322 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517321 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0229-01" ] }, { "cite": "470 S.E.2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "21" } ], "opinion_index": 0 }, { "cite": "343 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798768 ], "year": 1996, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0202-01" ] } ], "analysis": { "cardinality": 548, "char_count": 9459, "ocr_confidence": 0.717, "pagerank": { "raw": 8.090380750742169e-08, "percentile": 0.4672975142566227 }, "sha256": "1b761cbb5c2bd6d0236b2e8ab755d7bdd7ea6e352a1358473c90a8e7b02f57a6", "simhash": "1:6724ce6e24af00d2", "word_count": 1546 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and SMITH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DANNY LESTER PYATT" ], "opinions": [ { "text": "LEWIS, Judge.\nDefendant was arrested and charged with driving while subject to an impairing substance in violation of N.C. Gen. Stat. section 20-138.1. The matter came on for trial in Rutherford County District Court on 2 February 1995 and defendant was found guilty. He appealed to superior court- where a jury also returned a guilty verdict. Defendant appeals.\nOn 27 June 1994, Sergeant J.S. Whiteside of the Forest City Police Department testified that he arrested defendant for driving while impaired and transported him to the intoxilyzer room at the police department. However, when defendant was asked to take the intoxi-lyzer, he did not blow into the machine long enough to provide a sufficient breath sample, despite Sergeant Whiteside\u2019s instructions to blow longer or he would be considered to have refused the test. After two minutes, Sergeant Whiteside marked defendant as refused. Earlier, after being advised of his Miranda rights, defendant had told Sergeant Whiteside that he had been drinking beer about thirty minutes prior to the time that Whiteside stopped him.\nLarry Pyatt, defendant\u2019s brother, testified that he and defendant are partners in a wholesale automotive business which re-conditions cars. He further testified that on 27 June 1994, he was with defendant from 6:30 p.m. until 10:30 p.m. and that for most of that time they were painting cars. Mr. Pyatt testified that his brother consumed two beers between 7:30 p.m. and 8:30 p.m., but did not seem affected by them. He also stated that the area in which defendant painted was not ventilated, had no fans and was kept air-tight.\nDr. Hugh Burford, an expert witness in pharmacology, testified that prolonged exposure to substances in the paints used by defendant could result in impaired motor skills, slurred speech and shortness of breath. He further acknowledged on cross-examination that, based on evidence of what defendant was exposed to, it was possible that at the time he was operating the car, he was impaired.\nDefendant first argues that as a result of the trial court\u2019s failure to define \u201cimpairing substance\u201d for the jury, he was \u201csubstantially prejudiced.\u201d We find no error.\nIn State v. Martin, 322 N.C. 229, 367 S.E.2d 618 (1988), the Supreme Court stated:\nN.C.G.S. \u00a7 15A-1231 which provides for conferences on jury instructions says, \u201cany party may tender written instructions.\u201d Superior and District Court Rules, Rule 21, which deals with jury instruction conferences, says, \u201cIf special instructions are desired, they should be submitted in writing to the trial judge at or before the jury instruction conference.\u201d The defendant in this case did not submit his request for instructions in writing. We hold it was not error for the court not to charge on this feature of the case.\nMartin, 322 N.C. at 237, 367 S.E.2d at 623.\nWe find this analysis equally applicable in the present case. It appears from the record that the only type of request made by defendant for his special instruction was an oral request during the charge conference. As Martin dictates, this is insufficient.\nAdditionally, a copy of the requested written instruction, if it was presented to the trial court, is a necessary part of the record on appeal in cases, such as this one, where it is unclear from the transcript exactly what instruction was requested. It does not appear from defendant\u2019s oral request at the charge conference that he ever actually requested that the definition of \u201cimpairing substance\u201d be included in the jury instructions, as he now claims. If we cannot determine what was requested of the trial court, we cannot review the issue on appeal. See N.C.R. App. P. 10(b)(1) (1997) (requiring a timely request from trial court for appellate review); see also, State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983) (\u201cIt is the appellant\u2019s duty and responsibility to see that the record is in proper form and complete.\u201d)\nFor these reasons, we cannot review defendant\u2019s assignments of error based on the alleged insufficient instructions.\nDefendant next maintains that the trial court erred in instructing the jury that it could consider defendant\u2019s refusal to take the intoxilyzer test without finding that the refusal was willful. Defendant did not object to this instruction, so it is reviewable for plain error. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). \u201c \u2018The plain error rule ... is always to be applied cautiously,\u2019 and \u2018it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.\u2019 \u201d State v. Wilkinson, 344 N.C. 198, 221, 474 S.E.2d 375, 387 (1996) (citations omitted).\n\u201cN.C.G.S. \u00a7 20-139.1(f) (1993) provides that evidence of a defendant\u2019s refusal to submit to a chemical analysis is admissible against him in a DWI prosecution.\u201d State v. O\u2019Rourke, 114 N.C. App. 435, 438, 442 S.E.2d 137, 138 (1994). Defendant argues that because \u201cwillful refusal\u201d is required before a driver\u2019s license is revoked under N.C. Gen. Stat. section 20-16.2, the requirement of a \u201cwillful\u201d refusal should be read into G.S. 20-139.1.\nHowever, G.S. 20-139.1(f) does not require a willful refusal before evidence of a refusal is admissible and we will not read in this additional requirement. The controlling factor in all statutory construction is the intent of the legislature. In re Estate of Bryant, 116 N.C. App. 329, 334, 447 S.E.2d 468, 470 (1994). \u201c \u2018Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give it its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein.\u2019 \u201d State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754, 756 (1974) (quoting 7 Strong, N.C. Index 2d, Statutes \u00a7 5 (1968)).\nApplying these tenets of statutory construction to the present case, we determine that the language in G.S. 20-139.1(f) is clear and unambiguous and not subject to judicial interpretation. Additionally, elsewhere in G.S. 20-139.1, the General Assembly used the term \u201cwillful refusal.\u201d See G.S. \u00a7 20-139.1(b3) (1993). Obviously, if it had intended to require a \u201cwillful\u201d refusal in G.S. 20-139.1(f), it would have done so. We therefore conclude that there was no error, much less plain error, in the trial court\u2019s instructions. Defendant\u2019s assignment of error is overruled.\nFinally, defendant contends that his motion to dismiss should have been granted to prevent a violation of the prohibition against double jeopardy. He argues that the charge against him should have been dismissed since he had previously been punished by having his license revoked and paying a $50 fee. This issue has been decided otherwise by the Supreme Court in State v. Oliver, 343 N.C. 202, 210, 470 S.E.2d 16, 21 (1996), and we are bound thereby.\nNo error.\nJudges WALKER and SMITH concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery III, for the State.", "Roy D. Neill for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DANNY LESTER PYATT\nNo. COA96-213\n(Filed 7 January 1997)\n1. Criminal \u00a7 695 (NCI4th Rev.)\u2014 impairing substance \u2014 special instructions \u2014 oral request \u2014 written requirement\nThe trial court did not err by failing to instruct the jury on the definition of \u201cimpairing substance\u201d where defendant, who was arrested and charged with driving while subject to an impairing substance, did not properly request that the definition of \u201cimpairing substance\u201d be included in the jury instructions. The only type of request made by defendant for a special instruction was an oral request during the charge conference and this request was insufficient because it was not in writing as required by N.C.G.S. \u00a7 16A-1231.\nAm Jur 2d, Trial \u00a7 1247.\n2. Evidence and Witnesses \u00a7 1811 (NCI4th)\u2014 breathalyzer\u2014 impairing substance \u2014 willful refusal \u2014 admissible\nIt was not error, much less plain error, for the trial court to instruct the jury in a prosecution for impaired driving that it could consider evidence of defendant\u2019s refusal to take an intoxi-lyzer test without finding that the refusal was willful. N.C.G.S. \u00a7 20-139.1(f) does not require a willful refusal before evidence of a refusal is admissible.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 379.\nAdmissibility in criminal case of blood-alcohol test where blood was taken despite defendant\u2019s objection or refusal to submit to test. 14 ALR4th 690.\nAdmissibility in criminal case of evidence that accused refused to take test of intoxication. 26 ALR4th 1112, sec. 1.\n3. Automobiles and Other Vehicles \u00a7 115 (NCI4th)\u2014 motion to dismiss \u2014 driving while impaired \u2014 revoked license \u2014 f\u00edne\nThe trial court did not err in denying defendant\u2019s motion to dismiss charges that he was driving while impaired where defendant\u2019s basis for dismissal was that it would be double jeopardy because he had previously been punished by having his license revoked and paying a $50 fee. The Supreme Court decided in State v. Oliver, 343 N.C. 202, 470 S.E.2d 16 (1996), that it is not double jeopardy to try an individual for driving while impaired after revoking his license and requiring him to pay a restoration fee for the same offense.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 137 et seq.\nAppeal by defendant from judgment entered 14 September 1995 by Judge Hollis Owens, Jr. in Rutherford County Superior Court. Heard in the Court of Appeals 29 October 1996.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery III, for the State.\nRoy D. Neill for defendant-appellant." }, "file_name": "0147-01", "first_page_order": 185, "last_page_order": 189 }