{
  "id": 8525248,
  "name": "STATE OF NORTH CAROLINA v. WALTER EARL FERGUSON, JR.",
  "name_abbreviation": "State v. Ferguson",
  "decision_date": "1988-06-21",
  "docket_number": "No. 8726SC1132",
  "first_page": "513",
  "last_page": "520",
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      "cite": "90 N.C. App. 513"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state_regional",
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      "year": 1971,
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      "cite": "277 N.C. 547",
      "category": "reporters:state",
      "reporter": "N.C.",
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  "last_updated": "2023-07-14T21:55:12.261630+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Johnson and Greene concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. WALTER EARL FERGUSON, JR."
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nDefendant, Walter Ferguson, was convicted of driving while impaired in violation of N.C. Gen. Stat. Sec. 20-138.1 (1983) and was sentenced to thirty days in jail which was to be suspended upon completion of the Alcohol and Drug Education Traffic School and upon payment of a $100 fine. Defendant appeals. We vacate the judgment and remand for findings of fact and conclusions of law consistent with this opinion.\nI\nThe State presented evidence that on 2 November 1986, defendant\u2019s automobile was observed on highway U.S. 74 in Meck-lenburg County at approximately 6:45 p.m. by State Trooper A. J. Fox. Trooper Fox testified that defendant was proceeding ahead of him at a speed of 35 m.p.h., although the maximum speed on the highway was 55 m.p.h. He observed that the car traveled left of the center line several times, then traveled off the road onto the right shoulder. Trooper Fox activated his blue light; defendant proceeded for another half mile, then stopped. Trooper Fox approached the vehicle and found defendant alone in the car behind the steering wheel, his eyes bloodshot, and his pupils dilated. When defendant spoke, he emitted a strong odor of alcohol, and his speech was slurred. Upon the trooper\u2019s request, and after some searching, defendant presented his driver\u2019s license and registration card. Also upon the Trooper\u2019s request, defendant performed two sobriety tests. The first test \u2014 known as the gaze test \u2014required the defendant to follow the trooper\u2019s fountain pen with his eyes as the pen was moved in front of his face. The second test \u2014 known as the sway test \u2014 required defendant to stand with his feet together, hands to his side, eyes closed and head tilted back as the trooper observed his balance. Trooper Fox testified that defendant lost his balance and swayed from side to side. He then arrested defendant and transported him to the magistrate\u2019s office.\nAt the magistrate\u2019s office, defendant performed another sobriety test which required him to close his eyes and touch his nose with his index finger. When using his right hand, he touched underneath his nose. When using his left hand, he touched the right side of his right nostril with the second joint of his finger. In another test, he was asked to stand on one leg and count to 30. He did so and proceeded to count to 44. In another test, he was asked to walk in a straight line by placing one foot directly in front of the other. Defendant crossed over his feet, stepped on the insteps of his feet, and swayed from side to side. The trooper then read defendant his Fifth Amendment rights and his rights under N.C. Gen. Stat. Sec. 20-16.2 regarding the breathalyzer test. Defendant telephoned his wife but, the trooper testified, she did not arrive within the required 30 minutes to witness the test. Trooper Fox stated that in his opinion, defendant was under the influence of an impairing substance.\nDefendant testified that the trooper advised him of his right to have a witness to observe the breathalyzer test. After a delay, he reached his wife on the telephone, and the police told him that she must arrive within twenty minutes. He informed his wife of the time constraints. The police informed him when the 20 minutes expired, but he did not submit to the test because his wife was not present.\nHe testified further that he was driving normally before Trooper Fox stopped him. He admitted that he consumed five beers between 3:00 p.m. and 6:15 p.m. at the Charlotte Airport Motel. He testified that the only sobriety test conducted at the scene of his arrest was the gaze test. He stated that he performed correctly all of the tests administered at the jail. He saw his wife when he was released from jail later that evening. She told him she had been waiting for one and one-half hours.\nDefendant\u2019s wife, Judy Ferguson, also testified on his behalf. She stated that her husband telephoned her after 8:00 p.m. on the night of his arrest. In her opinion, his speech was not slurred, consequently, she had trouble taking him seriously when he asked her to come to the jail. She and her daughter drove immediately to the county jail and arrived within 20 minutes. She told the law enforcement personnel at the desk that she came to witness her husband\u2019s breathalyzer test. One woman told her it was too late, that he had already refused the breathalyzer test. No one made any further inquiries. Mrs. Ferguson and her daughter sat in the waiting area for approximately one and one-half hours. Then defendant came out.\nII\nDefendant first contends that the trial judge erred by denying his motion to dismiss because he was denied his constitutional and statutory rights of access to a witness to observe the breathalyzer test. This argument by defendant is threefold. Defendant presented evidence that (1) his wife may have arrived within the time required for a witness to the breathalyzer test under Section 20-16.2, (2) his wife was implicitly denied access to him upon her arrival to the jail, and (3) he was denied the opportunity to take the breathalyzer test in the presence of his chosen witness and thereby to obtain evidence for his defense. N.C. Gen. Stat. Sec. 15A-954(a) provides in pertinent part that a trial court \u201cmust dismiss the charges stated in a criminal pleading if it determines that .... (4) [t]he defendant\u2019s constitutional rights have been flagrantly violated and there is irreparable prejudice to the defendant\u2019s preparation of his case. . . .\u201d (emphasis added). In the instant case, the trial judge did not make any findings of fact or conclusions of law regarding these alleged statutory and constitutional violations. Rather, the following colloquy occurred.\nTHE COURT: Ladies and gentlemen, I\u2019m going to ask you to step out of your jury room for just a minute. We have to go through what\u2019s called a pre-charge conference at this point, and it will take me about five minutes to conclude that.\n(Thereupon, the jury exited the courtroom.)\nTHE COURT: Let the record reflect at the conclusion of all of the evidence, the defendant moves for motions for dismissal and motion for non-verdict.\nMr. PlumideS: I want to call to the Court\u2019s attention \u2014 it has happened before, Judge, people being prevented from going into the jail to confront the defendant, and in this case the defendant\u2019s wife. The fact that he is denied the opportunity, not only to have a breatholyzer [sic] witness, to have a witness to testify on his behalf, and this becomes a very serious problem, almost to the point that I would make a motion to exclude all evidence in this ca;se that took place in that jail, because we are denied a constitutional right of confrontation from our witnesses.\nNow, because I tell you, there\u2019s a case on point, Judge, Kirby (phonetic) I think it was, I went through this argument on the question of whether or not to take a refusal of a breatholyzer [sic], my witness didn\u2019t get there in time, and the Judge went into another voir dire to determine \u2014 forget the breatholyzer [sic]. Let\u2019s assume we were late, but there\u2019s a confrontation of a defendant, he has as a matter of right, that somebody should be able to observe him and observe him in the jail, other than the police authorities, to give their views. Had she been allowed, in she could have witnessed the test that the officer gave him after the breatholyzer [sic]. She would \u2014 But refusal to permit her to enter, under these circumstances, I would say is almost tantamount to making all of the evidence of the State tainted, and creates a problem in my mind.\nThe COURT: You would be able to argue that.\nMr. PLUMIDES: There is a case like that, and I\u2019ll present it to Your Honor after the fact, if they convict my man. I have had that same identical fact situation. The judge overruled me on the fact she didn\u2019t get there in time for the breatholyzer [sic], but the Judge did not find as a fact there was a large lapse of time. But here\u2019s where she\u2019s denied a hour and a half confrontation as a potential witness for her husband.\nThe Court: Well\u2014\nMr. PLUMIDES: And it becomes such a constitutional right, I wish Your Honor would take that into consideration. I don\u2019t normally make that argument, but this is a flagrant violation of the rights of this gentleman.\nThe COURT: Mr. Plumides, I\u2019m confused as to the circumstances. I understand that Mrs. Ferguson went down to the entry into the area where the Magistrate\u2019s Office and the jail are located. I\u2019m not familiar with this county, but I think I have an idea of what area she\u2019s talking about because it seems to me some years ago I went into that area once myself for what was then a client of mine. But I think it\u2019s regrettable that she did not go to the nearest telephone or pay booth and call and try to re-establish contact with the Magistrate or the jail personnel. I don\u2019t know why she didn\u2019t take other alternatives.\nMr. PLUMIDES: I think we shift the burden to the citizen, Judge. We\u2019re making the criminal law\u2014\nTHE COURT: I don\u2019t know.\nMR. PLUMIDES: That\u2019s the problem.\nThe COURT: I don\u2019t know what your jailing and administrative policies are. I\u2019m sure there is some method whereby access can be gained to the jail and the Magistrates\u2019s Office. I\u2019ve never heard of a Magistrate\u2019s Office not being accessible before in my life. The reason I say that is a Magistrate\u2019s Office is a place where persons may go to issue \u2014 secure the issuance of warrants, to make complaints, and to get bonds set and take care of a multitude of other things.\nMr. PLUMIDES: We have a different system here, fortunately or unfortunately. She went to the right place. I think the District Attorney will agree. She drove down the ramp, went to the right place, because the Magistrate\u2019s Office is unconnected. It\u2019s on the other side. You don\u2019t go through the Magistrate\u2019s.\nTHE COURT: Why didn\u2019t she go there?\nMr. PLUMIDES: Our Magistrates are concealed behind some windows. You have to knock on the window and hope someone will come answer. We don\u2019t have a Magistrate\u2019s accessible to us, where, like you do in Asheville, somebody is sitting behind a desk. The only Magistrate available in this court, you have to go here [sic] 9:00 to 5:00 and see about getting a warrant. A little different setup. I don\u2019t know if it\u2019s good or bad.\nThe COURT: I\u2019m not able to judge the whole setup, and that\u2019s largely a criminal justice problem.\nMR. PLUMIDES: I bring that to your attention. I rest and renew my motions.\nTHE COURT: I found the evidence here distressing in that regard, because I can see how anyone\u2019s wife might confront this problem and be distraught with a child tugging at her skirt, but I don\u2019t know. I can\u2019t take issue with Mr. Fox on that account.\nMr. PLUMIDES: It\u2019s not Mr. Fox\u2019s fault. It wasn\u2019t his fault at all. He had nothing to do with it.\nTHE COURT: It\u2019s regrettable. I would hope that the District Attorney\u2019s Office and the Public Defender\u2019s Office and the Bar would take care of this matter, open that thing up. You\u2019re going to have plenty to talk about. You\u2019re going to have an awful lot to talk about, in the absence of Mr. Myers, and I\u2019m expecting to listen to a very good argument.\nMr. PLUMIDES: I promise you you\u2019ll have one.\nThe COURT: But I think insofar as my duty is concerned, might I have the duty to bring this case to a conclusion.\nA trial judge\u2019s \u201cdistress\u201d over the circumstances surrounding a defendant\u2019s arrest are of little comfort when not coupled with an application of the relevant law. Nor can the criminal justice system rely on the hope that the local Bar will take measures to ensure the rights of criminal defendants. We therefore remand this case for entry of required findings of fact and conclusions of law regarding the alleged constitutional and statutory violations.\nIf, on remand, the trial judge finds and concludes that none of defendant\u2019s statutory or constitutional rights have been violated then an appropriate judgment should be entered. If, on the other hand, the trial judge should find that Mrs. Ferguson\u2019s arrival to the jail was timely and she made reasonable efforts to gain access to defendant, then defendant was denied access to a potential witness. The denial of access to a witness in this case\u2014 when the State\u2019s sole evidence of the offense is the personal observations of the authorities \u2014 would constitute a flagrant violation of defendant\u2019s constitutional right to obtain witnesses under N.C. Const. Art. I Sec. 23 as a matter of law and would require that the charges be dismissed. Cf. State v. Hill, 277 N.C. 547, 178 S.E. 2d 462 (1971) (defendant\u2019s attorney was denied access to defendant after posting bail and asking the jailer to see him. The Court held, because time is of the essence when one is taken into police custody for an offense of which intoxication is an essential element, defendant was unconstitutionally denied the opportunity to confront the State\u2019s witnesses with other testimony).\nIII\nWe have considered defendant\u2019s three remaining assignments of error and find them to be without merit.\nWe vacate the judgment and remand for further findings of fact consistent with this opinion.\nJudges Johnson and Greene concur.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg by Associate Attorney General Linda Anne Morris for the State.",
      "John G. Plumides and Daniel J. Clifton for defendant-appellant and Plumides, Plumides and Caudle of Counsel for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WALTER EARL FERGUSON, JR.\nNo. 8726SC1132\n(Filed 21 June 1988)\nAutomobiles and Other Vehicles 8 125\u2014 driving while impaired \u2014 opportunity to have witness to breathalyzer test \u2014 witness denied access to defendant \u2014 no findings\nJudgment on a conviction for driving while impaired was vacated and the case remanded for further findings where defendant presented evidence that he called his wife to witness the breathalyzer test, she arrived in time but was denied access to defendant, the breathalyzer test was not given, the only evidence against defendant was the personal observations of the authorities, and the trial judge did not make any findings or conclusions concerning the alleged statutory or constitutional violations. N.C. Constitution Art. I, \u00a7 23, N.C.G.S. \u00a7 15A-954(a).\nAppeal by defendant from Lamar Gudger, Judge. Judgment entered 4 September 1987 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 6 April 1988.\nAttorney General Lacy H. Thornburg by Associate Attorney General Linda Anne Morris for the State.\nJohn G. Plumides and Daniel J. Clifton for defendant-appellant and Plumides, Plumides and Caudle of Counsel for defendant-appellant."
  },
  "file_name": "0513-01",
  "first_page_order": 543,
  "last_page_order": 550
}