{
  "id": 8525240,
  "name": "STATE OF NORTH CAROLINA v. PAUL GRAHAM FERRELL",
  "name_abbreviation": "State v. Ferrell",
  "decision_date": "1985-06-04",
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    "judges": [
      "Judges WEBB and PARKER concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. PAUL GRAHAM FERRELL"
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nIn this driving while under the influence of an impairing substance case, defendant, Paul Graham Ferrell, contends (1) that the relevant statute, N.C. Gen. Stat. Sec. 20-138.1(a)(2) (1983), which proscribes driving after consuming sufficient alcohol to have a blood alcohol concentration of 0.10% or more at \u201cany relevant time after the driving,\u201d is unconstitutional in that the statute is vague and uncertain, and in that it otherwise violates his substantive due process rights; (2) that the \u201cresults of the chemical analysis of the breath should not have been allowed into evidence because there was no foundation for the testimony\u201d; and (3) that the trial court erred by \u201cpermitting the State to question the defendant regarding his failure to testify in the district court trial.\u201d We find merit in defendant\u2019s third argument and accordingly award him a new trial.\nI\nThe recent Supreme Court decision in State v. Rose, 312 N.C. 441, 323 S.E. 2d 339 (1984), effectively disposes of all of defendant\u2019s constitutional challenges to G.S. Sec. 20-138.1. The Supreme Court in Rose held that the 0.10% blood alcohol concentration standard in the statute is not unconstitutionally vague simply because a drinking driver does not know precisely when he has reached the 0.10% level and further, that the statute is not unconstitutional on the theory that blood alcohol measurement made sometime after drinking may reflect a driver\u2019s physical condition so dissimilar from his condition while driving that it bears no reasonable relationship to the State\u2019s legitimate goal of penalizing impaired drivers.\nII\nWe summarily reject defendant\u2019s second argument that an insufficient foundation was laid for the admission of the breathalyzer test results. The evidence, both circumstantial and direct, including defendant\u2019s statement to the arresting officer, is overwhelming that the defendant was the driver of the car. Additionally, the State offered substantial evidence that the defendant consumed alcohol before or during the time he drove. Defendant\u2019s admission that he had consumed three beers prior to the accident and his further statement that he drank several big swallows from a Jack Daniels bottle given to him by an individual who picked him up after the accident and asked him if he wanted a drink to calm him down, were properly admitted in evidence. Defendant\u2019s argument goes to the weight to be given to the chemical analysis and not its admissibility. Consequently, the State introduced sufficient evidence to lay a foundation for the admissibility of the chemical analysis.\nIll\nWe agree with defendant\u2019s final assertion that \u201cthe trial court committed prejudicial error by permitting the State to question the defendant regarding his failure to testify in the district court trial.\u201d As the following colloquy shows, the State, by inquiring into defendant\u2019s failure to testify in district court, did more than attempt to impeach defendant with his prior silence considering his allegedly belated attempt in superior court to establish his defense that the alcohol concentration in his blood was caused by drinking after the accident as opposed to drinking before the accident:\nQ. Do you remember being in District Court on this charge?\nA. Yes, sir, I do.\nQ. Did you ever or anybody ever mention that you had been drinking after the accident on that occasion?\nMr. Crescenzo: I object, Your Honor.\nThe Court: Overruled.\nA. I did not take the stand on that occasion. We did not put up a defense.\nQ. Did anybody mention at all that you had been drinking after the accident?\nA. No, sir.\nQ. Now, you have had time to speak with your attorney since the accident, haven\u2019t you?\nA. Yes, sir.\nQ. And you have had time to speak with everybody involved since the District Court case, haven\u2019t you?\nA. Yes, sir.\nQ. And you know that if someone drinks after the accident, that would be a defense to this charge, don\u2019t you?\nA. No, sir.\nQ. This is the first time we have ever heard of you drinking since this accident, isn\u2019t it?\nMr. Crescenzo: I object, Your Honor.\nThe Court: Sustained.\nQ. You never told the officers on November 16th, 1983, that you had been drinking after this accident, did you, Mr. Ferrell?\nA. No, sir, I didn\u2019t.\nQ. As a matter of fact, you refused to answer any questions, didn\u2019t you?\nA. Yes, sir, I did.\nThe confluence of N.C. Gen. Stat. Sec. 8-54 (1981), N.C. Gen. Stat. Sec. 7A-290 (1981), and defendant\u2019s constitutional right not to testify and to have counsel represent him compels us to find error by the trial court in permitting the State to question defendant regarding his failure to testify in district court.\nG.S. Sec. 8-54, in pertinent part, provides that:\nIn the trial of all indictments, complaints, or other proceedings against persons charged with the commission of crimes, offenses or misdemeanors, the person so charged is, at his own request, but not otherwise, a competent witness, and his failure to make such request shall not create any presumption against him.\nThe language of the statute is unmistakable, and our Supreme Court has made it clear that the statute prohibits the district attorney from making direct, or even indirect, references to a defendant\u2019s failure to testify. State v. McCall, 286 N.C. 472, 212 S.E. 2d 132 (1975), and State v. Monk, 286 N.C. 509, 212 S.E. 2d 125 (1975).\nG.S. Sec. 7A-290 provides, in pertinent part, that: \u201c[a]ny defendant convicted in district court before the judge may appeal to the superior court for trial de novo.\u201d (Emphasis added.) And, \u201c[t]he trial de novo is not really an appeal on the record. It is a new trial as a matter of absolute right from the beginning to the end. It totally disregards the plea, trial, verdict, and judgment of\nthe District Court.\u201d State v. Brooks, 287 N.C. 392, 405, 215 S.E. 2d 111, 120 (1975).\nThe prejudice inherent in allowing the district attorney to question defendants at superior court trials regarding their choice not to testify at the initial district court trial or hearing is obvious. Counsel often advise defendants not to testify or not to present evidence at district court hearings for a number of reasons, one of which, specifically approved by our Supreme Court as well as by the United States Supreme Court, is \u201cto learn about the prosecution\u2019s case and . . . not reveal his own.\u201d Id. at 405, 215 S.E. 2d at 121 (quoting Colten v. Kentucky, 407 U.S. 104, 118, 32 L.Ed. 2d 584, 594, 92 S.Ct. 1953, 1961 (1972)). Additionally, a defendant in district court may, on the advice of counsel, opt to roll the die, not testify, and then determine, depending on the district court\u2019s sentence, whether to appeal. The trial lawyer who knows his case, knows what kind of impression the defendant will make before the judge, and knows the habits, or even the idiosyn-cracies, of the particular judge hearing the case, may strategically advise his client not to take the stand. On the other hand, a jury of laymen (and it would be equally prejudicial if just one juror did) could, as suggested by defendant in his brief, \u201cconclude that the failure to testify meant that the defendant either had something to hide, or, as was the obvious intent in the instant case, that the defendant had developed his story only after hearing the State\u2019s case and conferring with counsel.\u201d This danger is precisely what the law addresses. The State\u2019s impeachment in this case adversely implicated defendant\u2019s right not to testify in district court as well as his right to counsel. Further, it violated both the law and spirit of G.S. Secs. 8-54 and 7A-290.\nFor the above reasons, defendant is entitled to a\nNew trial.\nJudges WEBB and PARKER concur.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Thornburg, by Special Deputy Attorney General Isaac T. Avery, III, for the State.",
      "David E. Crescenzo for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. PAUL GRAHAM FERRELL\nNo. 8421SC928\n(Filed 4 June 1985)\n1. Automobiles and Other Vehicles \u00a7 120\u2014 0.10% breathalyzer standard constitutional\nThe 0.10% blood alcohol standard for driving while impaired in G.S. 20-138.1 is not unconstitutionally vague because drivers do not know when they have reached the 0.10% level and the statute is not unconstitutional on the theory that blood alcohol measurement made sometime after drinking is so dissimilar from a defendant\u2019s condition while driving that it bears no reasonable relationship to penalizing impaired drivers.\n2. Automobiles and Other Vehicles \u00a7 126.2\u2014 breathalyzer results \u2014proper foundation-evidence of drinks after driving went to weight not admissibility\nThe State introduced sufficient evidence to lay a foundation for the admissibility of breathalyzer results where the evidence was overwhelming that defendant was the driver of the car and the State offered substantial evidence that defendant consumed alcohol before or during the time he drove. Defendant\u2019s admission that he consumed three beers prior to the accident and that he drank several big swallows from a Jack Daniels bottle to calm down after the accident goes to the weight to be given the chemical analysis, not to its admissibility.\n3. Constitutional Law \u00a7 75; Criminal Law \u00a7 102.5\u2014 DWI \u2014 appeal de novo to superior court \u2014 State\u2019s inquiry about defendant\u2019s failure to testify in district court \u2014 improper\nThe trial court erred in a DWI trial in superior court by allowing the State to inquire into defendant\u2019s failure to testify in district court. The State\u2019s impeachment of defendant adversely implicated defendant\u2019s right not to testify in district court as well as his right to counsel and violated both the law and the spirit of G.S. 8-54 and 7A-290.\nAPPEAL by defendant from Seay, Judge. Judgment entered 11 April 1984 in Superior Court, FORSYTH County. Heard in the Court of Appeals 14 March 1985.\nAttorney General Thornburg, by Special Deputy Attorney General Isaac T. Avery, III, for the State.\nDavid E. Crescenzo for defendant appellant."
  },
  "file_name": "0156-01",
  "first_page_order": 188,
  "last_page_order": 192
}
