Gibson v. Faulkner, COA98-712.
| Docket Nº | No. COA98-712. |
| Citation | 515 S.E.2d 452, 132 NC App. 728 |
| Case Date | April 06, 1999 |
| Court | Court of Appeal of North Carolina (US) |
515 S.E.2d 452
132 NC App. 728
v.
Janice FAULKNER, Commissioner North Carolina Division of Motor Vehicles, Respondent/Appellee
No. COA98-712.
Court of Appeals of North Carolina.
April 6, 1999.
Attorney General Michael F. Easley, by Associate Attorney General Jeffrey R. Edwards, for respondent appellee.
HORTON, Judge.
Petitioner contends the trial court erred in, among other things, (I) concluding, as a matter of law, that Trooper Silver had reasonable grounds to believe that petitioner committed an implied consent offense; (II) finding as fact that petitioner had been advised of his rights under the appropriate statute; (III) concluding, as a matter of law, that petitioner wilfully refused to submit to a chemical analysis upon the request of Trooper Silver; and (IV) finding that DMV could proceed to revoke petitioner's driver's license, despite petitioner being found not guilty of the related criminal offenses in district court.
I. Reasonable Grounds Based on Hearsay Evidence
Defendant contends that the trial court erred in concluding as a matter of law that Trooper Silver had "reasonable grounds" to believe that petitioner committed an implied consent offense. Petitioner claims that Trooper Silver based his arrest upon hearsay information submitted to him by Deputy Reece, and that such hearsay testimony is inadmissible in court. Petitioner asks this Court to review its holding in Melton v. Hodges, 114 N.C.App. 795, 443 S.E.2d 83 (1994), that "reasonable grounds for belief may be based upon information given to the officer by another, the source of the information being reasonably reliable, and it is immaterial that the hearsay information itself may not be competent in evidence at the [criminal] trial of the person arrested." Id. at 798, 443 S.E.2d at 85.
We are bound by our holding in Melton. "Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court." In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Since our ruling in Melton has not been overturned by a higher court, it is binding upon this panel. This assignment of error is overruled.
II. Advice of Chemical Test Rights
Petitioner argues that the trial court erred in determining that he had been advised of his rights under the appropriate statute. Petitioner relies on the following excerpt from the transcript of proceedings before the trial court, and argues that Trooper Silver advised him of his rights under the incorrect statute:
Q [District Attorney]: At that point did you advise Mr. Gibson of his rights pursuant to GS20-16.2b?
A [Trooper Silver]: Yes, sir, I did.
Q [District Attorney]: Did you advise him of those rights orally?
A [Trooper Silver]: Yes, sir.
Q [District Attorney]: Did you make a written copy of the rights read to him—
A [Trooper Silver]: Yes, sir. Yes, sir, I did.
Q [District Attorney]: Did he indicate to you whether or not he understood those rights?
A [Trooper Silver]: Yes, sir, he did.
Q [District Attorney]: Did you present him with the written rights form and ask him to sign it?
A [Trooper Silver]: Yes, sir, I did.
Q [District Attorney]: Did he sign it?
A [Trooper Silver]: No, sir, he refused.
Q [District Attorney]: After you advised him of his rights, did he exercise his right to call a witness or to speak with an attorney?
A [Trooper Silver]: Yes, sir. He exercised that right and he used the phone.
Where the trial judge sits as the trier of fact, "[t]he court's findings of fact are conclusive on appeal if supported by competent evidence, even though there may be evidence to the contrary." Gilbert Engineering Co. v. City of Asheville, 74 N.C.App. 350, 364, 328 S.E.2d 849, 858, disc. review denied, 314 N.C. 329, 333 S.E.2d 485 (1985). In the case before us, we find there was competent evidence to support the trial judge's findings of fact. We note that N.C.Gen.Stat. § 20-16.2(b) does not even contain a recital of rights. Further, the written form referred to by Trooper Silver appears of record as an exhibit at the hearing in this matter. The written form, which the petitioner understood but refused to sign, sets out in detail the rights found in N.C.Gen.Stat. § 20-16.2(a). One of the rights enumerated in N.C.Gen.Stat. §...
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Guzman v. Gore, COA0 9-1241
...if supported by competent evidence, even though there may be evidence to the contrary.'" Gibson v. Faulkner, 132 N.C. App. 728, 732-33, 515 S.E.2d 452, 455 (1999) (quoting Gilbert Engineering Co. v. City of Asheville, 74 N.C. App. 350, 364, 328 S.E.2d 849, 858, disc. rev. denied, 314 N.C. 3......
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Steinkrause v. Tatum, COA08-1080.
...if supported by competent evidence, even though there may be evidence to the contrary. Gibson v. Faulkner, 132 N.C.App. 728, 732-33, 515 S.E.2d 452, 455 (1999). We review whether the trial court's Findings of Fact support its conclusions of law de novo. State v. Campbell, 188 N.C.App. 701, ......
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Monson v. Paramount Homes, Inc., COA98-463.
...that repairs may constitute the "last act" of the defendant giving rise to the cause of action. Accordingly, we are bound, at this 515 S.E.2d 452 stage of the proceedings, to hold that the applicable statute of repose began to run in 1994, the date of the alleged "last act" giving rise to t......
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Powers v. Tatum, COA08-137.
...See In re Gardner, 39 N.C.App. 567, 573, 251 S.E.2d 723, 727 (1979) (legality of arrest); Gibson v. Faulkner, 132 N.C.App. 728, 734, 515 S.E.2d 452, 456 (1999) (applicable rules and regulations). On appeal, this Court is bound by the trial court's findings of fact if they are "supported by ......
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Guzman v. Gore, NO. COA0 9-1241
...supported by competent evidence, even though there may be evidence to the contrary.'" Gibson v. Faulkner, 132 N.C. App. 728, 732-33, 515 S.E.2d 452, 455 (1999) (quoting Gilbert Engineering Co. v. City of Asheville, 74 N.C. App. 350, 364, 328 S.E.2d 849, 858, disc. rev. denied, 314 N.C.......
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Steinkrause v. Tatum, No. COA08-1080.
...if supported by competent evidence, even though there may be evidence to the contrary. Gibson v. Faulkner, 132 N.C.App. 728, 732-33, 515 S.E.2d 452, 455 (1999). We review whether the trial court's Findings of Fact support its conclusions of law de novo. State v. Campbell, 188 N.C.App. 701, ......
-
Monson v. Paramount Homes, Inc., No. COA98-463.
...repairs may constitute the "last act" of the defendant giving rise to the cause of action. Accordingly, we are bound, at this 515 S.E.2d 452 stage of the proceedings, to hold that the applicable statute of repose began to run in 1994, the date of the alleged "last act" g......
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Powers v. Tatum, No. COA08-137.
...See In re Gardner, 39 N.C.App. 567, 573, 251 S.E.2d 723, 727 (1979) (legality of arrest); Gibson v. Faulkner, 132 N.C.App. 728, 734, 515 S.E.2d 452, 456 (1999) (applicable rules and regulations). On appeal, this Court is bound by the trial court's findings of fact if they are "supporte......