State v. Harrington
| Decision Date | 03 December 1985 |
| Docket Number | No. 853SC301,853SC301 |
| Citation | 336 S.E.2d 852,78 N.C.App. 39 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Edward Ken HARRINGTON. |
Defendant brings forward three assignments of error, one relating to questions asked at trial regarding prior convictions and two relating to punishment, challenging (1) the trial court's finding in aggravation that defendant was "grossly impaired" and (2) a condition of probation. We find no error.
State Trooper Davis saw defendant drive by at 1:00 a.m. and began following him, originally because he saw a "state-owned" license plate on defendant's car. Davis followed defendant about one-quarter mile, observing him come to an abrupt stop, make a wide left turn, and weave between two southbound lanes. Davis stopped defendant. Davis noticed that defendant had a strong odor of alcohol about him, his eyes were red and watery, and he walked unsteadily. Defendant failed all four field sobriety tests, and had a blood alcohol concentration (BAC) of .14 when tested approximately forty minutes later. Davis testified that defendant told him he had had four or five mixed drinks within four hours of the stop, and admitted being under the influence. Defendant testified that he had only drunk one beer but had taken a heavy dose of cough medicine to combat a cold, and denied making the admissions to Davis. Upon a jury verdict of guilty of DWI, judgment imposing a sentence of 72 hours active imprisonment, six months imprisonment suspended for five years on conditions of probation, and $1300 in costs and fines was entered.
Defendant testified at trial. On cross examination the prosecutor asked him about his prior convictions:
Q. What have you been convicted of, Mr. Harrington?
A. Speeding. Careless and reckless driving and a misdemeanor larceny.
Q. When were you convicted of careless and reckless driving?
MR. MILLER [Defense Counsel]: Objection.
THE COURT: Sustained.
Q. What court were you convicted in?
Q. Do you recall what car you were driving?
Q. Had you been drinking any alcoholic beverages at the time you were arrested on that charge?
Q. How many times have you been convicted of speeding?
Q. Have you ever been convicted of speeding?
Q. What else did you say you had been convicted of other than reckless driving and speeding?
A. Misdemeanor larceny.
Q. When was that?
Q. Can you tell us what it was you were convicted of stealing?
MRS. AYCOCK [Prosecutor]: I don't think so. That's all. (exceptions omitted.)
Defendant has excepted and assigned error, arguing that the State's improper questions prejudiced him by innuendo.
It is well established that specific acts of bad conduct may be inquired into on cross examination for purposes of impeachment. State v. Purcell, 296 N.C. 728, 252 S.E.2d 772 (1979); State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971). The Supreme Court has specifically declined to set precise limits for the scope of cross examination for impeachment, requiring only that "(1) the scope thereof is subject to the discretion of the trial judge, and (2) the questions must be asked in good faith." Id. at 675, 185 S.E.2d at 181. The abuse of discretion standard is a high one, and ordinarily no abuse occurs unless the prosecutor affirmatively places before the jury his own opinion or makes totally unfounded or overbroad insinuations, see State v. Dawson, 302 N.C. 581, 276 S.E.2d 348 (1981) (collecting cases), or the court otherwise allows the questioning to "get out of hand." See State v. Thomas, 35 N.C.App. 198, 241 S.E.2d 128 (1978). The admission by a defendant of a prior conviction does not preclude further inquiry. The cross-examiner may also ask about the time and place of the conviction and the punishment imposed. State v. Finch, 293 N.C. 132, 235 S.E.2d 819 (1977).
In the instant case, defense counsel objected each time only generally and objected to some questions which were permissible under Finch. The court sustained all defense objections relating to the details of the admitted convictions. Defendant did not volunteer any answers to the questions to which objections were sustained. See State v. Maccia, 311 N.C. 222, 316 S.E.2d 241 (1984). Of the three unanswered questions urged most strongly as error, responsive answers to the two concerning the type of car and the article(s) stolen could have contained little to prejudice the defendant. The third question, whether defendant had been drinking when arrested for careless and reckless driving, involved misconduct possibly separate from the act of improper driving, see G.S. 20-140, 20-138.1, and could be a proper subject of inquiry. See State v. Atkinson, 309 N.C. 186, 305 S.E.2d 700 (1983) (distinguishing
proper examination into defendant's efforts to avoid criminal investigation from improper examination into details of underlying charge). On this record, however, we find no abuse of discretion regarding the scope of cross examination, no prejudice to defendant, and no basis for declaring a mistrial.
Defendant argues that the prosecution acted in bad faith in asking whether he had been drinking when arrested, since the State had his driving record, and since the prosecution did not respond when defense counsel asserted that no alcohol was involved in the prior offense. For defendant to prevail the record must affirmatively show that the prosecution acted in bad faith. Bad faith will not be implied from an otherwise silent record. State v. Dawson, supra, followed State v. Corn, 307 N.C. 79, 296 S.E.2d 261 (1982). As we noted above, the question appears to have been permissible since we find no evidence of record (as opposed to the bare assertion of defense counsel) that alcohol was not involved in the prior offense. The record does not disclose bad faith. Accordingly, we conclude that defendant was not prejudiced.
Defendant next assigns as error that the court erroneously found as a statutory factor in aggravation that defendant was "grossly impaired." The statutory basis for the finding is G.S. 20-179(d)(1): "Gross impairment of the defendant's faculties while driving or an alcohol concentration of 0.20 or more within a relevant time after the driving." This language is not explained elsewhere in Chapter 20 nor has it been judicially construed. In construing "gross impairment," the intent of the legislature controls; we look first to the plain and ordinary meanings of the words, with an eye to previous enactments and decisions construing similar statutes. See generally In re Banks, 295 N.C. 236, 244 S.E.2d 386 (1978).
"Gross impairment" must be defined with reference to "impairment." "Impairment" does not appear to have any special legal meaning, but simply means "weakening, making worse, diminishment." See Black's Law Dictionary 677 (5th ed. 1979). Under our former "driving under the influence" statutes, the test was whether the accused had "drunk a sufficient quantity of intoxicating beverage or taken a sufficient amount of narcotic drugs, to cause him to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties." State v. Carroll, 226 N.C. 237, 241, 37 S.E.2d 688, 691 (1946). The new statute 1983 N.C. Sess. Laws c. 435, s. 24, codified at G.S. 20-138.1, consolidated existing impairment offenses into a single offense with two different methods of proof, but it does not appear to have changed the basic definition of "impaired." See State v. Shuping, 312 N.C. 421, 323 S.E.2d 350 (1984); State v. Coker, 312 N.C. 432, 323 S.E.2d 343 (1984).
Under our statutes, the consumption of alcohol, standing alone, does not render a person impaired. State v. Ellis, 261 N.C. 606, 135 S.E.2d 584 (1964). An effect, however slight, on the defendant's faculties, is not enough to render him or her impaired. State v. Hairr, 244 N.C. 506, 94 S.E.2d 472 (1956). Nor does the fact that defendant smells of alcohol by itself control. State v. Cartwright, 12 N.C.App. 4, 182 S.E.2d 203 (1971). On the other hand, the State need not show that the defendant is "drunk," i.e., that his or her faculties are materially impaired. See State v. Painter, 261 N.C. 332, 134 S.E.2d 638 (1964). The effect must be appreciable, that is, sufficient to be recognized and estimated, for a proper finding that defendant was impaired. See State v. Felts, 5 N.C.App. 499, 168 S.E.2d 483 (1969) ().
"Gross" is susceptible to a range of meanings: "great, culpable, general, absolute";
"out of all measure, ... flagrant, [78 N.C.App. 46] shameful." Black's Law Dictionary 632 (5th ed. 1979). Our courts have defined it as meaning "out-and-out, complete, utter, unmitigated." In re Faulkner, 38 N.C.App. 222, 247 S.E.2d 668 (1978) ("gross incompetence"). They have also defined "gross negligence" as ordinary negligence magnified to a high, even shocking, degree, Doss v. Sewell, 257 N.C. 404, 125 S.E.2d 899 (1962), following Crabtree v. Dingus, 194 Va. 615, 74 S.E.2d 54 (1953), but have stopped short of equating it with willful or wanton negligence. Doss v. Sewell, supra. See Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985) ().
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