State v. Shadding
| Decision Date | 17 January 1973 |
| Docket Number | No. 727SC599,727SC599 |
| Citation | 17 N.C.App. 279,194 S.E.2d 55 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Ralph Land SHADDING. |
Atty. Gen. Robert Morgan, by Asst. Attys. Gen. William B. Ray and William W. Melvin, for the State.
Farris & Thomas, by Robert A. Farris, Wilson, for the defendant
Defendant first assigns as error the Court's refusal to grant a continuance after the Solicitor arraigned defendant upon a charge of second offense of driving under the influence, stating that defendant had previously been convicted of driving under the influence. At arraignment the solicitor merely read the warrant used in District Court. Defendant contends that this was prejudicial error since he was not convicted of second offense driving under the influence in District Court, and was not on trial for that charge in Superior Court. Assuming, without deciding, that the Solicitor's reading of the warrant was error, it does not constitute prejudicial error in this case. The Court clearly instructed the jury only on driving under the influence, first offense. The instruction, coupled with defendant's failure to show that a different result would likely have occurred, renders such error harmless.
Defendant assigns as error the Court's allowance of the following testimony by Sgt. Parrish: 'at about 7:30 on that evening, we received a call, as a result of a call--'; and '. . . which led us to believe it might have been the car we were after.' This evidence was admissible, not to prove the truth of the telephone conversation, which was not stated, but to explain the subsequent actions of the witness. This evidence was admissible to explain the location and observations of the police officer. See Stansbury, N.C. Evidence 2d, §§ 138, 141. This assignment of error is overruled.
Defendant contends it was error for the Court to admit into evidence the results of the breathalyzer test. Defendant argues that the test has no probative value since it was not timely made (given two hours after the arrest) and since defendant testified that he consumed alcohol after his arrest. There is no merit in defendant's contention that a breathalyzer test given two hours after an arrest has no probative value because it is not timely made. Likewise, there is no merit in defendant's contention that the test results lacked probative value because defendant testified he had consumed alcohol after his arrest. Wherther defendant drank alcohol after his arrest was a jury question. The trial judge gave a proper instruction to the jury on this assertion. See State v. Cooke, 270 N.C. 644, 155 S.E.2d 165.
Defendant further contends that the breathalyzer test results were inadmissible because there was no evidence that defendant was advised of his right to have counsel or a witness present to view the taking of the test. Defendant does not contend that this is a constitutional right, but argues that it is specifically required by statute. G.S. § 20--16.2(a) provides that 'the accused person shall be permitted to call an attorney and to select...
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...establish the truth of any matter asserted by Officer Patton. See State v. Black, 230 N.C. 448, 53 S.E.2d 443 (1949); State v. Shadding, 17 N.C.App. 279, 194 S.E.2d 55, cert. denied, 283 N.C. 108, 194 S.E.2d 636 The statements are also admissible as part of the res gestae. The words of the ......
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...to defendant's condition at the time of the alleged violation. State v. Cooke, 270 N.C. 644, 155 S.E.2d 165 (1967); State v. Shadding, 17 N.C.App. 279, 194 S.E.2d 55 (1973). There was testimony that defendant had been drinking both before and after that time. From the colloquy set out above......
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