State v. Bishop, 8128SC568
| Decision Date | 15 December 1981 |
| Docket Number | No. 8128SC568,8128SC568 |
| Citation | 55 N.C.App. 211,284 S.E.2d 720 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. James William BISHOP. |
Atty. Gen. Rufus L. Edmisten by Deputy Atty. Gen. William W. Melvin and Associate Atty. Jane P. Gray, Raleigh, for the State.
Lawrence C. Stoker, Asst. Public Defender, Asheville, 28th Judicial District, for defendant-appellant.
Defendant first contends the court erred in allowing the investigating patrolman and the breathalyzer operator to offer opinions that he had consumed alcoholic beverages in sufficient quantity to impair appreciably his mental and/or physical faculties. He argues that the questions and answers did not relate to a specific time; and that the issue was his condition at the time of the accident, not at the subsequent times when these witnesses observed him.
This court has held such testimony admissible, its weight being for the jury under appropriate instructions. State v. Griffith, 24 N.C.App. 250, 210 S.E.2d 431 (1974) cert. denied 286 N.C. 546, 212 S.E.2d 168 (1975). See also State v. Lloyd, 33 N.C.App. 370, 235 S.E.2d 281 (1977). Each witness here testified as to when he observed defendant and the observations upon which his opinion was based. The court fully instructed regarding these times and observations. The probative value of this evidence was thus for the jury to determine. State v. Gurley, 257 N.C. 270, 125 S.E.2d 445 (1962), the sole authority cited by defendant for this argument, is inapposite.
Defendant next contends the court erred in denying his motions for nonsuit. By introducing evidence defendant waived his motion for nonsuit at the close of the State's evidence and is precluded from urging it as a ground for appeal. G.S. 15-173; see State v. Mendez, 42 N.C.App. 141, 256 S.E.2d 405 (1979). His motion at the close of all the evidence presents the question whether all the evidence, deemed true and considered in the light most favorable to the State, disregarding discrepancies and contradictions, and giving the State the benefit of every inference of fact which may reasonably be deduced therefrom, sufficed to show commission of the offense charged, or of a lesser offense included therein, and defendant as the perpetrator. State v. Snead, 295 N.C. 615, 247 S.E.2d 893 (1978); State v. Witherspoon, 293 N.C. 321, 237 S.E.2d 822 (1977).
The evidence, so considered, showed the following: Defendant, while operating a motor vehicle on U. S. Highway 191 in Buncombe County, drove the vehicle into the rear of another vehicle on that highway. When the other driver observed defendant immediately following the collision, defendant's "eyes looked a little glassy." When the investigating patrolman arrived, he detected an odor of alcohol about defendant's breath and person and observed that defendant's "eyes were glassy and red and his face had a flushed condition." Defendant advised the patrolman he had been drinking. When defendant walked, "[h]e was swaying." He received a breathalyzer test approximately one and one-half hours after the collision. The breathalyzer machine was working correctly, and the reading showed a blood alcohol content of .18 percent. When defendant took the test his face was flushed; he had an odor of alcohol about his person; his eyes were red; and his speech was slow, deliberate, and slurred. This evidence, viewed in the light most favorable to the State, fully justified a jury finding that defendant was intoxicated at the time of the collision. Snead, 295 N.C. 615, 247 S.E.2d 893; State v. Cummings, 267 N.C. 300, 148 S.E.2d 97 (1966).
Defendant next contends the court erred in refusing to answer the following question submitted by a juror:
What percent of alcohol in the Blood is considered intoxicating?
General facts about blood alcohol levels.
The court informed the juror it would instruct as to the violation charged, and that she need not be concerned about the question posed. It then fully and adequately instructed as to the elements of the offense charged and its lesser included offenses.
Further, the arguments in defendant's brief with regard to the instructions he contends the court should have given have not been properly brought forward, in that defendant has not complied with Rule 10(b)(2), Rules of Appellate Procedure, which in pertinent part provides: "An exception to the failure to give particular instructions to the jury ... shall identify the omitted instruction ... by setting out its substance immediately following the instructions given ...." We find no merit in this contention.
Defendant next contends the court erred in failing to instruct as to his contention that his consumption of intoxicating liquor occurred subsequent to his operation of the vehicle and before he took the breathalyzer test. Defendant and his sister had testified that defendant was diabetic; and that to prevent diabetic shock, his sister had given him a drink of Coke and Black Velvet after the collision occurred.
Defendant again has not set out in the record the substance of the instruction which he contends was improperly omitted. Appellate Rule 10(b)(2). Further, the court twice in the charge referred to the sister's having given defendant a drink with Black Velvet after the collision. In light of these instructions the lapsus linguae in which the court stated "that he did not have a drink before the--did not have a drink before the officer arrived" was an immaterial misstatement which was not prejudicial to defendant. "Ordinarily a misstatement of fact must be brought to the court's attention by counsel for defendant in apt time to afford opportunity for the court to correct it." State v. Brown, 280 N.C. 588, 598, 187 S.E.2d 85, 92, cert. denied, 409 U.S. 870, 93 S.Ct. 198, 34 L.Ed.2d 121 (1972). The misstatement here was not brought to the court's attention. The charge sufficiently met the mandatory requirements of G.S. 15A-1232. This contention is without merit.
Defendant's final contentions relate to the...
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