{
  "id": 8551599,
  "name": "STATE OF NORTH CAROLINA v. JAMES KENNETH BRANDON",
  "name_abbreviation": "State v. Brandon",
  "decision_date": "1973-12-19",
  "docket_number": "No. 7317SC748",
  "first_page": "262",
  "last_page": "264",
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      "cite": "11 N.C. App. 577",
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  "last_updated": "2023-07-14T15:39:00.958655+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Britt and Vaughn concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES KENNETH BRANDON"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nDefendant contends error in the failure of the trial court to strike Officer Hall\u2019s testimony that defendant, after agreeing to take a breathalyzer test, said, \u201cWhat I have been taking won\u2019t show up anyway.\u201d Defendant, noting that the testimony of the two officers was in conflict as to whether defendant was warned of his rights before or after making this statement, argues that defendant\u2019s statement was an impermissible product of custodial interrogation and that Miranda applies. The record discloses, however, that when Officer Shumate asked defendant, after stopping him on the highway, if he wanted to take a breathalyzer test, defendant replied that he did and then gratuitously volunteered the comment above quoted. This and other evidence amply supports the trial court\u2019s determination upon voir dire that the defendant\u2019s statement \u201cwas freely and voluntarily and understandingly given without any attempt on the part of the officer to interrogate him,\u201d and was volunteered \u201cand not in response to any interrogation.\u201d Under the circumstances of this case, the rules of Miranda have no application. This holding also disposes of defendant\u2019s contentions that admission of defendant\u2019s statement necessitated a mistrial and that the solicitor should not have referred to it during the State\u2019s closing argument to the jury.\nDefendant contends that the trial court erroneously and prejudicially restricted his right of cross-examination. This contention is without merit. During cross-examination of Officer Shumate, defendant\u2019s counsel asked, \u201cDoesn\u2019t he [referring to the defendant] normally walk in a sort of loose nonchalant manner?\u201d The court sustained the solicitor\u2019s objection to this question. In this we find no error, since the witness had previously testified that he did not know how defendant normally walked. In any event the defendant could have suffered no prejudice from the court\u2019s ruling, since the record shows that, had the solicitor\u2019s objection been overruled, the witness would have answered, \u201cI don\u2019t know because I don\u2019t know him personally and don\u2019t know how he walks.\u201d If defendant was attempting to explain his staggering on the night of the arrest as being chronic rather than alcohol-induced, clearly the excluded testimony would have been of no service.\nAppellant\u2019s further contention that he suffered prejudicial error because he was not permitted to place the witness\u2019s answer in the record until after completion of the trial is also without merit. No sound reason has been advanced as to how the excluded testimony, had it been disclosed to defense counsel while the witness was still on the stand, could possibly have aided counsel in developing by further cross-examination any matter beneficial to the defense.\nFinally, defendant contends that the solicitor, in his argument to the jury, impermissibly commented on the defendant\u2019s failure to testify. Upon careful review of the solicitor\u2019s argument, however, we do not find either the direct or indirect references to the accused\u2019s silence as were condemned in State v. Waddell, 11 N.C. App. 577, 181 S.E. 2d 737. It was entirely legitimate for the solicitor to argue, as he did in the present case, that he did not know what defendant \u201chad been taking. It is not in evidence.\u201d And it was also legitimate for him to argue that the State did not have to rely on the breathalyzer in this case. His further statement to the jury, \u201cWe have many facts and circumstances not contradicted so that we don\u2019t need the result of that test from the breathalyzer,\u201d was not, in our opinion and in view of the circumstances of this case, prejudicial. State v. Morrison, 19 N.C. App. 573, 199 S.E. 2d 500. The statements to which defendant now excepts did not, in our opinion, unduly call attention to defendant\u2019s failure to testify.\nIn defendant\u2019s trial and in the judgment rendered we find\nNo error.\nJudges Britt and Vaughn concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan by Assistant Attorneys General William W. Melvin and William B. Ray for the State.",
      "Franklin Smith and Fredrick Johnson for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES KENNETH BRANDON\nNo. 7317SC748\n(Filed 19 December 1973)\n1. Criminal Law \u00a7 75\u2014 voluntary statement \u2014 admissibility\nIn a prosecution for driving under the influence, defendant\u2019s statement made after he agreed to take a breathalyzer test that, \u201cWhat I have been taking won\u2019t show up anyway,\u201d was voluntary and not the result of any interrogation.\n2. Criminal Law \u00a7 88\u2014 cross-examination \u2014 limitation proper\nThe trial court did not erroneously and prejudicially restrict defendant\u2019s right of cross-examination by sustaining the solicitor\u2019s objection to a question where the witness had previously testified that he did not know the answer to that question and where the record shows that he would have given the same testimony again if allowed to answer.\n3. Constitutional Law \u00a7 33; Criminal Law \u00a7 102 \u2014 solicitor\u2019s jury argument\u2014 no comment on defendant\u2019s failure to testify\nStatements by the solicitor in his argument to the jury that he did not know what defendant \u201chad been taking. It is not in evidence.\u201d and that \u201cWe have many facts and circumstances not contradicted so that we don\u2019t need the result of that test from the breathalyzer\u201d did not constitute impermissible comments on defendant\u2019s failure to testify.\nAppeal by defendant from Kivett, Judge, June 1973 Criminal Session of Superior Court held in Surry County.\nDefendant was charged with driving an automobile upon a public highway while under the influence of intoxicating liquor. He pled not guilty. The State\u2019s evidence tended to show that at about 9:40 p.m. on 27 January 1973, Officers Shumate and Hall, in a patrol car on Highway 268, observed a vehicle drive by at high speed. The officers, alerted by the speed of the vehicle, followed for two miles on Highway 268, estimating the vehicle\u2019s speed at 70 miles per hour as it weaved back and forth across the center line, before stopping it. The defendant was found to be the driver and sole occupant of the car. Staggering and smelling of alcohol, he was arrested and taken to the county jail, where a breathalyzer test indicated a blood alcohol count of .10 percent. The defendant offered no evidence. Upon verdict of guilty, judgment was entered imposing sentence of four months imprisonment.\nAttorney General Robert Morgan by Assistant Attorneys General William W. Melvin and William B. Ray for the State.\nFranklin Smith and Fredrick Johnson for defendant appellant."
  },
  "file_name": "0262-01",
  "first_page_order": 290,
  "last_page_order": 292
}