State v. Harper

346 S.E.2d 223, 82 N.C. App. 398, 1986 N.C. App. LEXIS 2440
Court of Appeals of North Carolina·Decided August 5, 1986·No. No. 856SC1234·Published

Opinion

JOHNSON, Judge.

Defendant did not present any argument or authority in support of his first Assignment of Error; therefore, it is deemed abandoned. Rule 28(a), N.C. Rules App. P.

Defendant’s second and fourth Assignments of Error pertain to evidentiary rulings of the trial court, whereby defendant contends the trial court committed prejudicial error. Due to the interrelation of Assignments of Error two and four, we shall review them together accordingly. By his second Assignment of Error defendant contends he was prejudiced when the trial court allowed testimony from which the jury could deduce that defendant [401] was administered two breathalyzer tests. By his fourth Assignment of Error defendant contends that he was prejudiced by the introduction into evidence of a breathalyzer checklist which revealed that the two breathalyzer tests administered to him resulted in identical record alcohol concentration readings of 0.12.

G.S. 15A-1443 contains the codification of the definition of prejudice in North Carolina. In pertinent part G.S. 15A-1443 states the following:

(a) A defendant is prejudiced by errors relating to rights arising other than under the constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.

G.S. 15A-1443(a) (emphasis supplied). The General Assembly, by enactment of G.S. 20-139.1(b3)(3), restricts the State from seeking to introduce into evidence the higher of two chemical analyses as proof of a defendant’s alcohol concentration. We agree with defendant’s assertion that G.S. 20-139.1(b3)(3) protects him from a conviction based on the higher of two breathalyzer test results. However, we do not think that it was prejudicial for the court to allow testimony that two breathalyzer tests were administered to this defendant. This is particularly true in the case sub judice, since both breathalyzer test results were 0.12. Moreover, defendant did not object or move to strike prior testimony that a sequential breathalyzer test was administered to him. Therefore, defendant waived any objection he may have to the chemical analyst’s testimony with respect to the number of tests administered to him. State v. Black, 308 N.C. 736, 303 S.E. 2d 804 (1983).

Defendant made a general objection when the State sought to publish to the jury, inter alia, a breathalyzer checklist that revealed two identical 0.12 record alcohol concentrations. Defendant did not bring to the court’s attention that the checklist revealed the results of both tests. Moreover, defendant has not carried his burden of showing how the outcome would differ if the [402] checklist had not been published to the jury. G.S. 15A-1443. Accordingly, defendant’s fourth Assignment of Error is overruled.

Defendant next argues that the court erred in finding that his statements to Trooper Carmon were knowingly, understanding^ and voluntarily made after he had waived his right to silence and right to counsel. Once a defendant objects to the admission of a confession into evidence it is incumbent upon the trial court to make findings of fact and conclusions of law. State v. Chamberlain, 307 N.C. 130, 297 S.E. 2d 540 (1982). Findings of fact made by the trial court, when supported by competent evidence, are conclusive on appeal. State v. Booker, 306 N.C. 302, 293 S.E. 2d 78 (1980).

The State must affirmatively show that defendant was fully informed of his rights and voluntarily waived them. State v. Biggs, 289 N.C. 522, 223 S.E. 2d 371 (1976). The burden is on the State to prove the voluntariness of a confession by the preponderance of the evidence. State v. Johnson, 304 N.C. 680, 285 S.E. 2d 792 (1981). An explicit statement of a waiver is not always necessary to support a finding that defendant waived his right to counsel or the right to remain silent as guaranteed by Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966). North Carolina v. Butler, 441 U.S. 369, 60 L.Ed. 2d 286, 99 S.Ct. 1755 (1979). The voluntariness of a waiver is to be determined by “the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461, 1466, 58 S.Ct. 1019, 1023 (1938).

The trial court, upon defendant’s objection, allowed voir dire and entered appropriate findings and conclusions. The trial court found as fact that prior to interrogation defendant was advised of his constitutional rights against self-incrimination; that defendant acknowledged to Trooper Carmon that he understood each right as previously read and explained; that thereafter defendant voluntarily made a statement and answered questions posed by Trooper Carmon; that defendant at no time requested the right to remain silent or requested the presence of counsel or requested that counsel be appointed or requested that any interrogation cease; that defendant appeared to Trooper Carmon to have a slight impairment of his normal faculties to understand the [403] nature of the warnings and to intelligently waive his rights; that defendant by his words and conduct, after acknowledging that he understood all of his constitutional rights, waived those rights by voluntarily answering questions posed by Trooper Carmon; and that defendant was not threatened, promised or coerced in any manner during this interview and his statements were knowingly, understandingly and voluntarily made. Based upon its findings the court found an implied waiver under State v. Connley, 297 N.C. 584, 256 S.E. 2d 234 (1974), and concluded as a matter of law that “no constitutional right of the defendant was violated and that the defendant’s statements to Officer Carmon were knowingly, understandingly and voluntarily made after he had waived his right to silence and right to counsel.”

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State v. Harper, 346 S.E.2d 223, 82 N.C. App. 398, 1986 N.C. App. LEXIS 2440 (N.C. Ct. App. 1986).

346 S.E.2d 223 (State v. Harper) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Johnson v. Zerbst
304 U.S. 458 (Supreme Court, 1938)
Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
North Carolina v. Butler
441 U.S. 369 (Supreme Court, 1979)
Harrell v. Scheidt
92 S.E.2d 182 (Supreme Court of North Carolina, 1956)
State v. Black
303 S.E.2d 804 (Supreme Court of North Carolina, 1983)
State v. Booker
293 S.E.2d 78 (Supreme Court of North Carolina, 1982)
State v. Chamberlain
297 S.E.2d 540 (Supreme Court of North Carolina, 1982)
State v. Biggs
223 S.E.2d 371 (Supreme Court of North Carolina, 1976)
State v. Connley
256 S.E.2d 234 (Supreme Court of North Carolina, 1979)
State v. Johnson
285 S.E.2d 792 (Supreme Court of North Carolina, 1982)