{ "id": 9379178, "name": "STATE OF NORTH CAROLINA v. GEORGE EDWIN LEWIS", "name_abbreviation": "State v. Lewis", "decision_date": "2001-11-20", "docket_number": "No. COA00-1235", "first_page": "274", "last_page": "281", "citations": [ { "type": "official", "cite": "147 N.C. App. 274" } ], "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": "455 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "866" } ], "opinion_index": 0 }, { "cite": "340 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790121 ], "year": 1995, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0052-01" ] }, { "cite": "139 L. Ed. 2d 299", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "pin_cites": [ { "parenthetical": "quoting State v. Taylor, 340 N.C. 52, 64, 455 S.E.2d 859, 866 (1995)" } ], "opinion_index": 0 }, { "cite": "522 U.S. 957", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11550816, 11551009, 11550690, 11550979, 11550660, 11550850, 11550620, 11551114, 11550891, 11550736, 11550931, 11550780, 11551069, 11550590 ], "year": 1997, "pin_cites": [ { "parenthetical": "quoting State v. Taylor, 340 N.C. 52, 64, 455 S.E.2d 859, 866 (1995)" } ], "opinion_index": 0, "case_paths": [ "/us/522/0957-07", "/us/522/0957-12", "/us/522/0957-04", "/us/522/0957-11", "/us/522/0957-03", "/us/522/0957-08", "/us/522/0957-02", "/us/522/0957-14", "/us/522/0957-09", "/us/522/0957-05", "/us/522/0957-10", "/us/522/0957-06", "/us/522/0957-13", "/us/522/0957-01" ] }, { "cite": "487 S.E.2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "quoting State v. Taylor, 340 N.C. 52, 64, 455 S.E.2d 859, 866 (1995)" } ], "opinion_index": 0 }, { "cite": "346 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139329, 139650, 139654, 139660, 139643 ], "year": 1997, "pin_cites": [ { "parenthetical": "quoting State v. Taylor, 340 N.C. 52, 64, 455 S.E.2d 859, 866 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0285-04", "/nc/346/0285-02", "/nc/346/0285-01", "/nc/346/0285-05", "/nc/346/0285-03" ] }, { "cite": "481 S.E.2d 418", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "423", "parenthetical": "quoting State v. Taylor, 340 N.C. 52, 64, 455 S.E.2d 859, 866 (1995)" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11869055 ], "year": 1997, "pin_cites": [ { "page": "511", "parenthetical": "quoting State v. Taylor, 340 N.C. 52, 64, 455 S.E.2d 859, 866 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0505-01" ] }, { "cite": "462 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "36" } ], "opinion_index": 0 }, { "cite": "341 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793083 ], "year": 1995, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0364-01" ] }, { "cite": "334 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "61" } ], "opinion_index": 0 }, { "cite": "314 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694660 ], "year": 1985, "pin_cites": [ { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0359-01" ] }, { "cite": "448 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "502" } ], "opinion_index": 0 }, { "cite": "337 N.C. 789", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549625 ], "year": 1994, "pin_cites": [ { "page": "792" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0789-01" ] }, { "cite": "297 S.E.2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "548" } ], "opinion_index": 0 }, { "cite": "307 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561131 ], "year": 1982, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0130-01" ] }, { "cite": "178 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "466" } ], "opinion_index": 0 }, { "cite": "277 N.C. 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566758 ], "year": 1971, "pin_cites": [ { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0547-01" ] }, { "cite": "369 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "564" } ], "opinion_index": 0 }, { "cite": "322 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515688 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0535-01" ] } ], "analysis": { "cardinality": 658, "char_count": 14249, "ocr_confidence": 0.776, "pagerank": { "raw": 1.3166055224023458e-07, "percentile": 0.625667558224437 }, "sha256": "625ce2664d647fd543dc1ed65e509ec517ac23c2e3c81020e2381f103fd56eb9", "simhash": "1:9beb5526483e0856", "word_count": 2318 }, "last_updated": "2023-07-14T20:07:10.251034+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and TYSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GEORGE EDWIN LEWIS" ], "opinions": [ { "text": "WALKER, Judge.\nDefendant appeals his conviction for driving while impaired. The State\u2019s evidence tended to show the following. On 7 February 1998, defendant, a Miami, Florida police officer, was traveling north on N.C. 19/23 in Buncombe County when he was stopped by Officer Barry Jarrett of the North Carolina Department of Motor Vehicles. Officer Jarrett had observed the defendant speeding and almost striking Officer Jarrett\u2019s vehicle.\nAfter stopping the defendant, Officer Jarrett observed that the defendant\u2019s eyes were bloodshot, his face was flushed, he had an odor of alcohol about him, his speech was slurred and he had difficulty keeping his balance. Defendant told Officer Jarrett that he had consumed a couple of beers over dinner. Officer Jarrett attempted to administer an alcosensor test but it failed to produce any results. Based on his observations, Officer Jarrett placed the defendant under arrest for driving while impaired.\nTrooper Timothy Jackson arrived at the scene, took the defendant into custody and transported him to the detention center. Trooper Jackson observed that the defendant was red faced, had red, glassy eyes, slurred speech, and had an odor of alcohol about him. At the detention center, the defendant\u2019s wallet and other personal effects were turned over to the jailer and he was taken to a room to be administered a breathalyzer test. Trooper Jackson read the defendant his rights, including \u201cthe right to call an attorney and select a witness to view for you the testing procedures, but the testing may not be delayed for these purposes longer than 30 minutes from the time you are notified of your rights.\u201d At 12:20 a.m., the defendant signed the form acknowledging that he had been advised of these rights.\nDefendant did not attempt to make any telephone calls until twenty-nine minutes had elapsed. He then attempted to call the Fraternal Order of Police in Florida or the Police Internal Affairs Office in Miami. All of his attempts were unsuccessful. A police officer in the detention center gave him the telephone number of the North Carolina Chapter of the Fraternal Order of Police but he was unable to make contact. During this time, the defendant requested his wallet which he said contained local telephone numbers of family and friends whom he wished to call. However, his wallet and personal effects were not returned until he was released.\nWhen the defendant was offered the breathalyzer test, he refused to take it. He was then given his Miranda warnings but he refused to answer any further questions. Trooper Jackson took the defendant before Magistrate Jan Alexander for a determination of conditions of pre-trial release. She advised the defendant of his rights including the right to communicate with counsel, family, and friends; however, the defendant did not ask the magistrate for his wallet. Defendant posted bond and was released later that morning. Magistrate Alexander testified at the trial as to the defendant\u2019s appearance and his impairment.\nDefendant\u2019s evidence tended to show that his wallet and personal effects were taken when he was brought into the detention center. He was placed in a holding cell; however, he was not given his wallet which contained the local telephone numbers he needed to call people to come to the detention center to post his bond and view his condition.\nDefendant first assigns as error the denial of his motion to dismiss for failure to afford him the opportunity to contact witnesses and communicate with counsel, family, and friends. A defendant in this State must be informed of his right to communicate with counsel, family, and friends pursuant to N.C. Gen. Stat. \u00a7 15A-501 (1999) which states in part:\nUpon the arrest of a person, with or without a warrant, but not necessarily in the order hereinafter listed, a law-enforcement officer:\n(5) Must without unnecessary delay advise the person arrested of his right to communicate with counsel and friends and must allow him reasonable time and reasonable opportunity to do so.\nA magistrate has the duty to inform a defendant of this statutory right. State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988); N.C. Gen. Stat. \u00a7 15A-511(b). If the defendant is denied this right, the charges are subject to being dismissed. Knoll, 322 N.C. at 545, 369 S.E.2d at 564. Our Supreme Court has held that \u201c[t]he right to communicate with counsel and Mends necessarily includes the right of access to them.\u201d State v. Hill, 277 N.C. 547, 552, 178 S.E.2d 462, 466 (1971).\nWhen a defendant alleges he has been denied his right to communicate with counsel, family, and friends, the trial court must conduct a hearing on defendant\u2019s motion to dismiss and make findings and conclusions. On appeal, the standard of review is whether there is competent evidence to support the findings and the conclusions. State v. Cumberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982). \u201cIf there is a conflict between the state\u2019s evidence and defendant\u2019s evidence on material facts, it is the duty of the trial court to resolve the conflict and such resolution will not be disturbed on appeal.\u201d Id.\nApproximately three months prior to trial, defendant moved to dismiss the charges based on Knoll, supra (Knoll motion). After a hearing, the trial court made the following findings in part:\n3. . . . [Trooper Jackson] advised [defendant] of his rights regarding an intoxilyzer test. The defendant acknowledged that he understood the rights and did not invoke his rights.\n4. That the officer waited \u2014 told him that he had thirty minutes from the time his rights were read to have an attorney present. The defendant waited twenty-nine minutes before wanting to make a phone call. And then he tried to call Miami, but he couldn\u2019t even function during that dialing the phone.\n5. . . . [T]he defendant refused to take the test, that is, the intoxi-lyzer test.\n6. The defendant tried to dial long distance by dialing a seven-digit number without even dialing the area code ahead of it.\n7. Furthermore, he advised that he had a wallet that had been taken from him and that there were phone numbers in it and he needed the wallet to get numbers to call Miami and/or some local relatives; that his proximity to the wallet was some fifteen to twenty feet away where the wallet had been secured. He primarily \u2014 -he stated he primarily wanted the wallet to get the phone number to dial the Fraternal Order of Police in Miami, Florida.\n9. That Magistrate Alexander advised the defendant that he had the right to communicate with counsel and friends ....\n14. And it is further noted that the bail bondsman [sic] are present in and around the premises of the Buncombe County Detention Center all night long. . . .\nBased on its findings, the trial court concluded in part the following:\n[T]he defendant was informed of his right to communicate with counsel and friends . . .; that he failed to communicate properly in determining \u2014 in securing his pre-trial release conditions and that \u2014 and that he failed to exercise his own rights to require \u2014 to acquire the attendance of a sober and responsible adult to be released to.\nAt the hearing on the Knoll motion, the defendant stipulated that Magistrate Alexander informed him of his right to communicate with counsel, family, and friends. Defendant testified that he was given a telephone and he attempted to make calls. Although there was conflicting evidence, the trial court found the defendant was informed of his rights by Trooper Jackson and Magistrate Alexander. Further, it found that the defendant was given the opportunity to exercise those rights but he failed to do so. The findings of the trial court support its conclusions. Thus, the trial court did not err in denying the motion to dismiss.\nDefendant also contends the trial court erred in admitting testimony of his failure to answer questions after he had been given his Miranda warnings. During his testimony, Trooper Jackson testified that the defendant refused to perform any field sobriety tests and the defendant refused to answer questions after being given his Miranda warnings. Defendant did not object to this testimony until cross-examination when he made a motion to dismiss based on the \u201cflagrant violation of his rights under the 5th Amendment.\u201d Defendant argues that this testimony violates his constitutional right to remain silent and was therefore prejudicial to him.\nWhile a defendant\u2019s exercise of his constitutionally protected right to remain silent may not be used against him at trial, \u201csuch a constitutional error will not warrant a new trial where it was harmless beyond a reasonable doubt.\u201d State v. Elmore, 337 N.C. 789, 792, 448 S.E.2d 501, 502 (1994). N.C. Gen. Stat. \u00a7 15A-1443(b). The trial court did not err in denying the motion to dismiss the charges based on this testimony.\nDefendant next contends the trial court erred in allowing Magistrate Alexander to give her opinion of the defendant\u2019s impairment thus violating her role as a judicial official. At the trial, Magistrate Alexander testified regarding her observations of the defendant at the pre-trial release hearing. Defendant did not object until she was asked her opinion as to whether the defendant was impaired.\nNorth Carolina Rules of Evidence, N.C. Gen. Stat. \u00a7 8C-1, Rule 601(a) states, \u201cEvery person is competent to be a witness except as otherwise provided in these rules.\u201d Rule 605 states, \u201cThe judge presiding at the trial may not testify in that trial as a witness.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 605. Thus, a judicial official is only incompetent to testify in certain situations. \u201cIt is generally accepted that a judge is competent to testify as to some aspects of a proceeding previously held before him.\u201d State v. Simpson, 314 N.C. 359, 372, 334 S.E.2d 53, 61 (1985). Although judges are competent to testify, there is afear of unfair prejudice. Thus, it is within the trial court\u2019s discretion to allow or not allow a judicial official to testify. Id. See also, N.C. Gen. Stat. \u00a7 8C-1, Rule 403.\nDefendant only cited Rule 403 of the North Carolina Rules of Evidence and Article I, Section 6 of our State Constitution as authority for his contention of error in admitting Magistrate Alexander\u2019s testimony of defendant\u2019s impairment.\nAlthough a judicial official should exercise discretion when testifying, we disapprove of such testimony when it gives an opinion as to a person\u2019s condition who had previously appeared before that judicial official. However, in the context of this case, we conclude there was no prejudicial error. Officer Jarrett and Trooper Jackson had already testified that the defendant was appreciably impaired. Magistrate Alexander\u2019s testimony was cumulative and only tended to corroborate the officers.\nFinally, defendant claims that he was prejudiced by the prosecutor\u2019s comments during closing arguments and thus the charges should have been dismissed, or in the alternative, a mistrial ordered. The granting or denying of a motion for mistrial is in the sound discretion of the trial judge. State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995).\nHere, the closing arguments were not recorded; however, the record shows that the defendant objected to the prosecutor\u2019s argument and the judge sustained the objection and gave a curative instruction. \u201cWhen defense counsel objects, and the objection is sustained, and curative instructions are given to the jury, defendant has no grounds for exception on appeal. \u2018Jurors are presumed to follow a trial judge\u2019s instructions.\u2019 \u201d State v. Fletcher, 125 N.C. App. 505, 511, 481 S.E.2d 418, 423, disc. rev. denied, 346 N.C. 285, 487 S.E.2d 560, cert. denied, 522 U.S. 957, 139 L. Ed. 2d 299 (1997) (quoting State v. Taylor, 340 N.C. 52, 64, 455 S.E.2d 859, 866 (1995)).\nIn summary, the defendant has failed to establish prejudicial error in any of his assignments of error.\nNo error.\nJudges MARTIN and TYSON concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III and Assistant Attorney General Patricia A. Duffy, for the State.", "Sean P. Devereux, PA., by Sean P. Devereux, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGE EDWIN LEWIS\nNo. COA00-1235\n(Filed 20 November 2001)\n1. Arrest\u2014 impaired driving \u2014 opportunity to contact witnesses and communicate with counsel\nThe trial court did not err by denying a motion to dismiss a charge of driving while impaired for failure to afford defendant the opportunity to contact witnesses and communicate with counsel where, although there was conflicting evidence, the trial court found that defendant was informed of his rights by a trooper and the magistrate and that defendant was given the opportunity to exercise those rights but failed to do so. N.C.G.S. \u00a7 15A-501.\n2.Constitutional Law\u2014 right to remain silent \u2014 testimony concerning silence \u2014 no prejudice\nThe trial court did not commit prejudicial error in an impaired driving prosecution by admitting testimony of defendant\u2019s failure to answer questions after he had been given his Miranda warnings. While a defendant\u2019s exercise of his constitutionally protected right to remain silent may not be used against him at trial, such a constitutional error will not warrant a new trial where it was harmless beyond a reasonable doubt.\n3. Judges\u2014 testimony by magistrate \u2014 condition of impaired driving defendant \u2014 no prejudice\nThere was no prejudicial error in an impaired driving prosecution where a magistrate was allowed to give her opinion as to defendant\u2019s impairment. Testimony by a judicial official giving an opinion about the condition of a person who appeared before that official is disapproved; however, there was no prejudicial error in this case because the magistrate\u2019s testimony was cumulative and only tended to corroborate the officers.\n4. Criminal Law\u2014 prosecutor\u2019s argument \u2014 objection sustained \u2014 no prejudice\nThe defendant in an impaired driving prosecution was not prejudiced by a prosecutor\u2019s argument where defendant objected, the judge sustained the objection, and the judge gave a curative instruction.\nAppeal by defendant from judgment entered 30 July 1999 by Judge L. Oliver Noble, Jr. in Buncombe County Superior Court. Heard in the Court of Appeals 18 September 2001.\nAttorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III and Assistant Attorney General Patricia A. Duffy, for the State.\nSean P. Devereux, PA., by Sean P. Devereux, for defendant-appellant." }, "file_name": "0274-01", "first_page_order": 304, "last_page_order": 311 }