State v. Pyatt

• Decision Date: 07 January 1997
• Docket Number: No. COA96-213,COA96-213
• Citation: 479 S.E.2d 218,125 N.C.App. 147
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Danny Lester PYATT.

Page 218

479 S.E.2d 218

125 N.C.App. 147

STATE of North Carolina v. Danny Lester PYATT.

No. COA96-213.

Court of Appeals of North Carolina.

Jan. 7, 1997.

Attorney General Michael F. Easley by Special Deputy Attorney General Isaac T. Avery III, for the State.

Roy D. Neill, Hendersonville, for defendant-appellant.

LEWIS, Judge.

Defendant was arrested and charged with driving while subject to an impairing substance in violation of N.C. Gen.Stat. section 20-138.1. The matter came on for trial in Rutherford County District Court on 2 February 1995 and defendant was found guilty. He appealed to superior court where a jury also returned a guilty verdict. Defendant appeals.

On 27 June 1994, Sergeant J.S. Whiteside of the Forest City Police Department testified that he arrested defendant for driving while impaired and transported him to the intoxilyzer room at the police department. However, when defendant was asked to take the intoxilyzer, he did not blow into the machine long enough to provide a sufficient breath sample, despite Sergeant Whiteside's instructions to blow longer or he would be considered to have refused the test. After two minutes, Sergeant Whiteside marked defendant as refused. Earlier, after being advised of his Miranda rights, defendant had told Sergeant Whiteside that he had been drinking beer about thirty minutes prior to the time that Whiteside stopped him.

Larry Pyatt, defendant's brother, testified that he and defendant are partners in a wholesale automotive business which reconditions cars. He further testified that on 27 June 1994, he was with defendant from 6:30 p.m. until 10:30 p.m. and that for most of that time they were painting cars. Mr. Pyatt testified that his brother consumed two beers between 7:30 p.m. and 8:30 p.m., but did not seem affected by them. He also stated that the area in which defendant painted was not ventilated, had no fans and was kept airtight.

Dr. Hugh Burford, an expert witness in pharmacology, testified that prolonged exposure to substances in the paints used by defendant could result in impaired motor skills, slurred speech and shortness of breath. He further acknowledged on cross-examination that, based on evidence of what defendant was exposed to, it was possible that at the time he was operating the car, he was impaired.

Defendant first argues that as a result of the trial court's failure to define "impairing substance" for the jury, he was "substantially prejudiced." We find no error.

In State v. Martin, 322 N.C. 229, 367 S.E.2d 618 (1988), the Supreme Court stated:

N.C.G.S. § 15A-1231 which provides for conferences on jury instructions says, "any party may tender written instructions." Superior and District Court Rules, Rule 21, which deals with jury instruction conferences, says, "If special instructions are desired, they should be submitted in writing to the trial judge at or before the jury instruction conference." The defendant in this case did not submit his request for instructions in writing. We hold it was not error for the court not to charge on this feature of the case.

Martin, 322 N.C. at 237, 367 S.E.2d at 623.

We find this analysis equally applicable in the present case. It appears from the record that the only type of request made by defendant for his special instruction was an oral request during the charge conference. As Martin dictates, this is insufficient.

Additionally, a copy of the requested written instruction, if it was presented to the trial court, is a necessary part of the record on appeal in cases, such as this one, where it is unclear from the transcript exactly what instruction was requested. It does not appear from defendant's oral request at the charge conference that he ever actually requested that the definition of "impairing substance" be included in the jury instructions, as he now claims. If we cannot determine what was requested of the trial court, we cannot review the issue on appeal. See N.C.R.App. P. 10(b)(1)(1997)(requiring a timely request from trial court for appellate review); see also, State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983)("It is the appellant's duty and responsibility to see that the record is in proper form and complete.")

For these reasons, we cannot review defendant's assignments of error based on the alleged insufficient instructions.

Defendant next maintains that the trial court erred in instructing the jury that it could consider defendant's refusal to take the intoxilyzer test without finding that the refusal was willful. Defendant did not object to this instruction, so it is reviewable for plain error. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). " 'The plain error rule ... is always to be applied cautiously,' and 'it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.' " State v. Wilkinson, 344 N.C. 198, 221, 474 S.E.2d 375, 387 (1996) (citations omitted).

"N.C.G.S. § 20-139.1(f)(1993) provides that evidence of a defendant's refusal to...