State v. Harrell

192 S.E.2d 645, 16 N.C. App. 620, 1972 N.C. App. LEXIS 1779

Opinion

GRAHAM, Judge.

Defendant’s first assignment of error is directed to the admission of the results of the breathalyzer test. No objection to the admission of this evidence was made at trial and no exception to its admission appears in the record. Even if the evidence were inadmissible, which is not conceded, defendant’s objection comes too late. State v. Davis, 8 N.C. App. 589, 174 S.E. 2d 865.

Defendant contends in the alternative that the failure of his privately employed counsel to object to the evidence in question shows that he had ineffective counsel and entitles him to a new trial. This argument has no merit. A mere error in judgment or tactical blunder by counsel is not grounds for a new trial. Moreover, the failure of counsel to object in this instance could very well have been a deliberate choice of trial strategy, especially since the results of the breathalyzer test tended to show a lesser degree of intoxication than did the testimony of the officers.

The evidence was plenary to support the verdict of the jury, and the record affirmatively shows that defendant’s counsel ably represented him at trial. We find that defendant had a fair trial free from prejudicial error.

No error.

Judges Vaughn and Hedrick concur.