State v. Jernigan, No. 945SC286

• Docket Nº: No. 945SC286
• Citation: 118 N.C.App. 240, 455 S.E.2d 163
• Case Date: March 21, 1995
• Court: Court of Appeal of North Carolina (US)

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455 S.E.2d 163 118 N.C.App. 240 STATE of North Carolina
v.
Joseph Francis JERNIGAN. No. 945SC286. Court of Appeals of North Carolina. March 21, 1995.

Atty. Gen., Michael F. Easley by Sp. Deputy Atty. Gen., Isaac T. Avery, III and Associate Atty. Gen., Allyson K. Kurzmann, Raleigh, for the State.

Nora Henry Hargrove, Wilmington, for defendant-appellant.

LEWIS, Judge.

Defendant was convicted of habitual impaired driving, no operator's license, and resisting arrest and was sentenced to consecutive terms of three years, six months, and six months, respectively. From the judgments and commitments, defendant appeals.

The State's evidence tended to show that on 2 January 1993 at about 1:45 a.m., Detective Douglas Vredenburgh, of the New Hanover County Sheriff's Department, observed defendant get into the driver's side of a black

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pickup truck at a convenience store. Vredenburgh [118 N.C.App. 242] knew defendant and was aware that he did not have a valid driver's license. Vredenburgh followed defendant for approximately a mile and a half with his blue lights on, and he noticed that defendant was driving erratically. The truck then pulled into a driveway near defendant's home. Defendant got out by the driver's side door and began running away from the truck. Defendant's passenger, Charles Curtis Atkinson, whom Vredenburgh also knew, got out of the passenger's side door but stood by the truck. Vredenburgh called for backup and then began to chase defendant, who had run out of sight. About three or four minutes later, Vredenburgh found defendant hiding in a bush in back of a nearby house. Defendant was then placed under arrest.

Defendant's evidence consisted of the testimony of Jasper Hollowuay and that of defendant. Hollowuay testified that at about 1:45 on the morning in question, he was driving to his parents' house, when he saw defendant, walking along the side of the road. Though he did not know him, he decided to offer defendant a ride because defendant was stumbling and weaving back and forth. As they approached defendant's home, Hollowuay saw the blue lights of the police car and decided to stop and let defendant out. Hollowuay testified that he had drunk a few beers and did not want to be stopped by the police.

Defendant testified that, after leaving a lounge, he began to walk home. As he was walking, Hollowuay offered him a ride and he accepted. After defendant got out of Hollowuay's car, he noticed the blue lights and saw a person running toward him. Defendant ducked behind a bush and the person ran by him. Shortly thereafter, an officer came up, ordered defendant out of the bushes, and arrested him.

Defendant also testified that because of his poor vision he receives disability benefits and is unable to drive. He further stated that he had not driven since 1990. On cross-examination, defendant testified that he had been receiving disability benefits for about seven years because of his vision. He also testified that in those seven years, he had been convicted of driving while impaired three times.

I.

Defendant's first contention relates to his conviction for habitual impaired driving. A person commits the offense of habitual impaired driving if he drives while impaired and has been convicted of three or more offenses involving impaired driving within seven years of the date of the current offense. N.C.G.S. § 20-138.5(a) (Cum.Supp.1994). [118 N.C.App. 243] N.C.G.S. § 15A-928 (1988) provides the procedures to be followed in cases in which "the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter." § 15A-928(a). Defendant's contention is that the trial court erred in failing to follow the procedures set out in section 15A-928.

Section 15A-928(c) provides that after the commencement of the trial and before the close of the State's case, the judge must arraign the defendant in the absence of the jury upon the charge that the defendant was previously convicted of the specified offense. The judge must advise the defendant that he may admit the previous conviction, deny it, or remain silent. Id. If the defendant admits the previous conviction, that element of the higher grade offense is established, and no evidence in support thereof may be adduced by the State. § 15A-928(c)(1). If the defendant denies the previous conviction or remains silent, the State may prove that element of the higher grade offense before the jury as a part of its case. § 15A-928(c)(2).

In this case, the trial court did not formally arraign defendant upon the charge alleging the previous convictions and did not advise defendant that he could admit the previous convictions, deny them, or remain silent, as required by section 15A-928(c). Defendant argues that this failure to follow the statute was reversible error. We disagree.

Before trial, the prosecutor and defense counsel informed the trial court that defendant was willing to stipulate to his previous convictions. The prosecutor asked defense counsel if, in fact, defendant was stipulating

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to the previous convictions set out in the indictment. Thereafter, the following exchange took place:

[Defense Counsel]: Your Honor, for purposes of simplifying the case I have had discussions with my client and he understands that basically our defense is that he was not there. He is not only willing to stipulate as to his criminal record and it would be a felony, he is also willing to stipulate that he was legally impaired....

[Prosecutor]: [A]s far as the criminal record I just want to make sure that the basis as set out in the indictment is correct.

[Defense Counsel]: That's correct.

[118 N.C.App. 244] [Prosecutor]: And would be guilty of felony DWI?

[Defense Counsel]: That's correct.

Because defendant stipulated to his previous convictions, the State, in accordance with section 15A-928(c)(1), presented no evidence to the jury of defendant's previous impaired driving convictions, and the case was submitted to the jury with no reference to those convictions and as if the fact of the previous convictions were not an element of the offense.

The purpose of section 15A-928 is to insure that the defendant is informed of the previous convictions the State intends to use and is given a fair opportunity to either admit or deny them or remain silent. State v. Ford, 71 N.C.App. 452, 454, 322 S.E.2d 431, 432 (1984). This purpose is analogous to that of N.C.G.S. § 15A-941 (Cum.Supp.1994), the general...