{ "id": 8549741, "name": "STATE OF NORTH CAROLINA v. DELDON LEACH STRIDER", "name_abbreviation": "State v. Strider", "decision_date": "1973-12-12", "docket_number": "No. 7319SC216", "first_page": "112", "last_page": "116", "citations": [ { "type": "official", "cite": "20 N.C. App. 112" } ], "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": "155 S.E. 2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "270 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569892 ], "opinion_index": 0, "case_paths": [ "/nc/270/0644-01" ] }, { "cite": "85 S.E. 2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610947 ], "opinion_index": 0, "case_paths": [ "/nc/241/0382-01" ] }, { "cite": "171 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560350 ], "opinion_index": 0, "case_paths": [ "/nc/276/0123-01" ] }, { "cite": "196 S.E. 2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "283 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558855 ], "opinion_index": 0, "case_paths": [ "/nc/283/0368-01" ] } ], "analysis": { "cardinality": 499, "char_count": 9787, "ocr_confidence": 0.608, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20588072895369575 }, "sha256": "2634a6291a8a124b3d4def372929997e8a69c55dc3ffe25a07a1764ead7eecef", "simhash": "1:052cf48e57dc0019", "word_count": 1625 }, "last_updated": "2023-07-14T15:39:00.958655+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Hedrick concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DELDON LEACH STRIDER" ], "opinions": [ { "text": "PARKER, Judge.\nAppellant first contends that the trial court limited the scope of cross-examination of the State\u2019s witnesses in such a way as to preclude the presentation of a proper defense. The record however, does not support this contention. On the contrary, the record shows that defendant\u2019s counsel was permitted to cross-examine the two witnesses for the State as fully and effectively as the nature of the case permitted. Indeed, the only two instances referred to in appellant\u2019s brief to support his first contention are the following: During cross-examination of the arresting officer, defendant\u2019s counsel asked, with reference to the walking test, \u201cIsn\u2019t it true that a lot of people have a problem with this?\u201d and during cross-examination of the breathalyzer operator, defendant\u2019s counsel asked, \u201cYou disagree with me that 0.17 percent alcohol presumes to indicate that the defendant\u2019s blood was 17 parts by weight of alcohol in every 10,000 part (sic) of blood?\u201d The court sustained the solicitor\u2019s objections to each of these questions. Without passing on the correctness of these rulings, it is clear that on this record no prejudicial error has been made to appear. The record does not show what the answers of the witnesses would have been had the solicitor\u2019s objections not been sustained, and it is well established that the sustaining of an objection directed to a witness, whether on direct or cross-examination, will not be held prejudicial when the record does not show what the answer would have been had the objection not been sustained. State v. Felton, 283 N.C. 368, 196 S.E. 2d 239; State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416; State v. Poolos, 241 N.C. 382, 85 S.E. 2d 342. Appellant\u2019s contention that his counsel\u2019s cross-examination was unduly limited is without merit and the assignments of error relating thereto are overruled.\nAppellant\u2019s second assignment of error is directed to a statement made by the trial judge. The record shows that at some time while the arresting officer was testifying on redirect ex-animation, the judge made the statement that \u201c[t]he statute provides that everyone who operates a motor vehicle on the highways of this State consents to take a breathalyzer test when driving under the influence.\u201d What may have prompted the making of this statement cannot be ascertained from the record before us. None of the questions asked or the testimony given by the witness on re-direct examination is included, and the context in which the court\u2019s statement was made cannot be known. Appellant complains that the statement is incomplete in that the judge did not explain that the statute also provides that no test shall be given to a motor vehicle operator who refuses to take the test, but that the refusal will bring a mandatory revocation of his license, and appellant contends that this \u201ctherefore left the jury with an insufficient understanding of the statute.\u201d Even so, appellant has failed to show how he was prejudiced. In this case he did not refuse to take the test, and the portions of the statute which were omitted from the judge\u2019s statement did not come into play. Nor do we agree with appellant\u2019s contention that the judge\u2019s statement \u201cassumed the guilt of the defendant and severely prejudiced him in the eyes of the jury.\u201d While the statement as it appears in this record is neither a complete exposition of the statute nor couched in the most felicitous words, we fail to see how the jury could have been given any impression that the judge was assuming the guilt of the defendant. No prejudicial error having been made to appear, we find appellant\u2019s second assignment of error without merit.\nBy assignment of error number 7 appellant brings forward a number of exceptions to the court\u2019s charge to the jury. These we also find to be without merit. The court\u2019s definition of \u201creasonable doubt\u201d was in substantial accord with definitions approved by our Supreme Court. The court correctly explained the portion of our statute, G.S. 20-16.2, relating to the consent deemed given by the operator of a motor vehicle upon the highway to take a breathalyzer test in connection with a charge of driving while under the influence of intoxicating liquor, and, as above noted, there was no occasion for the court to expound on other portions of the statute dealing with the consequences of a refusal to take the test, since in this case the defendant did not refuse. The court\u2019s inadvertence in referring to the evidence as showing \u201c.17 percent or more\u201d by weight of alcohol in defendant\u2019s blood was adequately corrected in a subsequent portion of the charge and could not have misled the jury. The court\u2019s instruction concerning the effect to be given to the statutory presumption created by G.S. 20-139.1 (a) (1) was in substantial eomplianc\u00e9 with the holding in State v. Cooke, 270 N.C. 644, 155 S.E. 2d 165; while it might have been preferable to have used the words \u201cpermissive inference\u201d in describing the presumption, the court did expressly instruct that the statutory presumption did not shift the burden to the defendant but was to be considered by the jury along with all other evidence in arriving at their verdict. When the charge is considered contextually and as a whole, we find it to be free from prejudicial error.\nWe have considered all assignments of error which are brought forward in appellant\u2019s brief, and in the trial and in the judgment appealed from we find\nNo error.\nJudges Campbell and Hedrick concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Attorney General Robert Morgan by Assistant Attorney General Edward L. Eatman, Jr., for the State.", "Charles H. Dorsett for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DELDON LEACH STRIDER\nNo. 7319SC216\n(Filed 12 December 1973)\n1. Criminal Law \u00a7 88 \u2014 cross-examination\nIn a prosecution for drunken driving, the trial court did not limit the scope of cross-examination of the State\u2019s witnesses in such way as to preclude the presentation of a proper defense.\n2. Criminal Law \u00a7 169 \u2014 failure of record to show excluded testimony\nThe sustaining of an objection to a question directed to a witness, whether on direct or cross-examination, will not be held prejudicial when the record does not show what the answer would have been had the objection not been sustained.\n3. Automobiles \u00a7 129; Criminal Law \u00a7 99 \u2014 drunken driving \u2014 statutory consent to breathalyzer \u2014 comment by court during evidence\nIn this prosecution for drunken driving, the trial court did not assume defendant\u2019s guilt when, during redirect examination of the arresting officer, the court stated that \u201cthe statute provides that everyone who operates a motor vehicle on the highways of this State consents to take a breathalyzer test when driving under the influence\u201d; nor did the court err in failing to expound on other portions of the statute dealing with the consequences of refusal to take the test since defendant did not refuse.\n4. Automobiles \u00a7 129 \u2014 drunken driving \u2014 breathalyzer results \u2014 instructions\nIn this prosecution for drunken driving, the court\u2019s inadvertence in referring to the evidence as showing \u201c.17 percent or more\u201d by weight of alcohol in defendant\u2019s blood could not have misled the jury where it was corrected in a subsequent portion of the charge, and the court adequately instructed the jury on the presumption created by G.S. 20-139.1 (a) (1).\nAppeal by defendant from McConnell, Judge, 23 October 1972 Session of Superior Court held in Montgomery County.\nDefendant was charged in a warrant with operating a motor vehicle on a public highway while under the influence of intoxicating liquor. After trial and conviction in the District Court he appealed to the Superior Court, where he again pled not guilty. The State presented the testimony of the arresting highway patrol officer, who testified in substance to the following: At about 2 o\u2019clock p.m. on 21 May 1972 he saw defendant driving a pickup truck on U.S. Highway 27. Defendant\u2019s truck was in a line of traffic going east and the patrolman was in a line of traffic going west. Defendant pulled out and passed in face of oncoming traffic and forced the vehicle in front of the patrolman off on the shoulder of the road. The patrolman turned around and pursued defendant\u2019s truck. While the patrolman was overtaking him, the defendant \u201ccrossed the white line three or four times\u201d and also \u201coperated crooked in his own lane.\u201d When stopped, defendant had a strong odor of alcohol on his breath, his eyes were red and his face flushed, he was \u201cvery staggery,\u201d weaved rather badly on the balance test, had some trouble with the finger to nose test, and staggered badly during the walking test. From the patrolman\u2019s observation of defendant\u2019s driving and from his personal observation of defendant, the patrolman was of the opinion that defendant was highly intoxicated at the time he was operating his vehicle. On cross-examination, the arresting officer testified that when stopped, the defendant had no trouble parking his truck, there was nothing unusual about the way and manner in which he stopped and parked, he got out of the truck without help, \u201cseemed to be very cool and calm,\u201d and gave the patrolman his license when asked for it. This witness also testified on cross-examination that he was acquainted with the defendant and \u201c[i]t is true his eyes are red at all times.\u201d\nDefendant was given a breathalyzer test which resulted in a reading of .17. The officer who administered the test testified that from his personal observation of defendant and independently of the results of the breathalyzer test, he was of the opinion that defendant was highly intoxicated.\nDefendant did not introduce evidence. The jury found him guilty, and from judgment entered on the verdict imposing a six months active prison sentence, defendant appealed.\nAttorney General Robert Morgan by Assistant Attorney General Edward L. Eatman, Jr., for the State.\nCharles H. Dorsett for defendant appellant." }, "file_name": "0112-01", "first_page_order": 140, "last_page_order": 144 }