State v. Wells, 824SC380

• Decision Date: 07 December 1982
• Docket Number: No. 824SC380,824SC380
• Citation: 298 S.E.2d 73,59 N.C.App. 682
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Dalton Patrick WELLS.

Page 73

298 S.E.2d 73

59 N.C.App. 682

STATE of North Carolina v. Dalton Patrick WELLS.

No. 824SC380.

Court of Appeals of North Carolina.

Dec. 7, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. David Gordon, Raleigh, for the State.

Jeffrey S. Miller, Jacksonville, for defendant-appellant.

HILL, Judge.

The State's evidence tends to show that on 16 February 1981 North Carolina State Highway Patrolman W.F. Preast saw defendant driving a car on rural paved road 1511. When the officer tried to stop the car, defendant backed it approximately three hundred feet before he stopped. When Officer Preast asked to see his driver's license, defendant said he did not have one. Defendant got out of his car and walked without difficulty, but the officer noticed the odor of alcohol on his breath. He arrested defendant for driving under the influence of intoxicating liquor and driving without an operator's license. After advising defendant of his rights, the officer told him to accompany him to the police department, but defendant refused. Officer Preast again told defendant he was arrested and took him by the arm. Defendant jerked away and struck the officer across the face with his right fist. When the officer once more told defendant to come along, defendant hit him a second time. Officer Preast then brought defendant under control with a blackjack. On the date in question, defendant was driving with his license permanently revoked.

Defendant admitted driving the car but said he was arrested despite the fact that he had driven on private property. When defendant tried to walk away from the arresting officer, the officer beat him on the head with a blackjack, knocking him to the ground. Defendant denied having anything to drink or striking Officer Preast. Defendant admitted that his license was permanently revoked on the day he was arrested.

In his first assignment of error, defendant argues the trial judge erred in his instructions to the jury on the charge of resisting an officer (G.S. 14-223). He contends the jury should have been instructed on the defendant's right to resist an illegal arrest and right to self-defense. We do not agree. Defendant denied ever striking the police officer and therefore raised no issue of self-defense. State v. Pritchard and State v. Carswell, 11 N.C.App. 166, 180 S.E.2d 370 (1971). Defendant may not rely on self-defense where the State's evidence is that defendant provoked the incident after his lawful arrest, and the officer used only the amount of force necessary to bring the situation under control. State v. Gatewood, 23 N.C.App. 211, 208 S.E.2d 425, cert. den., 286 N.C. 338, 210 S.E.2d 59 (1974). The trial judge properly did not submit self-defense and the right to resist an illegal arrest because these issues are not supported by the evidence.

The defendant also argues that the trial judge erred in entering a judgment on the resisting arrest charge because the uniform citation used as a pleading in this case was fatally defective. We agree. The citation charges defendant with "[r]esisting arrest. To wit did resist and delay officer W.E. Preast a state patrolman performing the duties of his office by striking said officer with his hands and fist." To charge a violation of G.S. 14-223, the warrant or bill must indicate the specific official duty the officer was discharging or attempting to discharge. State v. Smith, 262 N.C. 472, 137 S.E.2d 819 (1964). Although defendant made no motion in the trial court to arrest judgment on this charge, this Court ex mero motu has taken notice of the fatally defective citation and now orders that judgment on this charge be arrested. See State v. Fowler, 266 N.C. 528, 146 S.E.2d 418 (1966).

Defendant next contends the trial judge erred in not dismissing the reckless driving charge at the close of the evidence. We agree.

G.S. 20-140(c), as it read at the time of this offense, provides:

Any person who operates a motor vehicle upon a highway or public vehicular area after consuming such quantity of intoxicating liquor as directly and visibly affects his operation of said vehicle shall be guilty of reckless driving and such offense shall be a lesser included offense of driving under the influence of intoxicating liquor as defined in G.S. 20-138 as amended.

Officer Preast testified in pertinent part:

When I first observed him, I noticed nothing unusual except he was coming toward me.... He had a strong odor of intoxicating liquor about his person on his breath.... He had no trouble getting out of his car, walking or otherwise that I observed.... I did not observe anything about him except the odor. Based on that, and, of course, the way in which he drove trying to elude me, I charged him. I stated in direct examination that the only thing unusual I noticed was that he was leaning against the car and his driving.

Although the officer's testimony...