Opinion
No. COA12–955.
2013-04-2
STATE of North Carolina v. Anthony Tyrone BURROUGHS.
Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. Goodman, Carr, Laughrun, Levine & Greene, by W. Rob Heroy, for defendant appellant.
Appeal by defendant from judgment entered 2 March 2012 by Judge Jerry Cash Martin in Mecklenburg County Superior Court. Heard in the Court of Appeals 29 January 2013. Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. Goodman, Carr, Laughrun, Levine & Greene, by W. Rob Heroy, for defendant appellant.
McCULLOUGH, Judge.
On 2 March 2012, a jury found Anthony Tyrone Burroughs (“defendant”) guilty of driving while impaired (“DWI”). The trial court entered judgment on the verdict, sentencing defendant to 60 days' imprisonment, suspended for 12 months of unsupervised probation. On appeal, defendant contends the trial court erred in 1) denying his motion to suppress evidence resulting from the extended stop of his vehicle, 2) denying his counsel the opportunity to cross-examine the arresting officer as to the potential for bias, 3) denying his request to give a curative instruction or Allen charge to the jury, 4) allowing a redacted Intoxilyzer test report into evidence, and 5) requiring him to serve a one-day active term of imprisonment as a special condition of his probation. We affirm the trial court's denial of defendant's motion to suppress, find no error in the conduct of defendant's trial, and affirm the sentence imposed by the trial court.
I. Background
On 27 May 2005 at approximately 12:10 a.m., defendant approached a DWI checkpoint at the 3400 block of Park Road in Charlotte, North Carolina. Officer Matthew Pressley (“Officer Pressley”) with the Charlotte–Mecklenburg Police Department organized the checkpoint and prepared the written checkpoint plan. The checkpoint plan provided that those officers involved in administering the checkpoint should perform the following screening for drivers who approach the checkpoint: 1) request the driver to produce a driver's license, 2) observe the driver's eyes for signs of impairment, 3) engage the driver in conversation for signs of impairment, and 4) observe the driver's clothing. The checkpoint plan further provided:
If [, ] after the above observations are made, the officer forms a reasonable and articulable suspicion that the driver is impaired ..., [the officer] shall take the driver to a secondary location near the check point for further tests or observations [that] may aid in determining whether probable cause exists to believe that the driver is impaired.
As defendant approached the checkpoint, Officer Pressley stopped defendant's vehicle. Officer Pressley engaged defendant in conversation by asking him for his driver's license, inquiring whether the address on his driver's license was correct, and asking him where he was coming from and where he was going. During the conversation, Officer Pressley observed that defendant's eyes were “glossy and bloodshot,” and Officer Pressley detected a strong odor of alcohol on defendant's breath. When Officer Pressley asked defendant if he had consumed any alcohol, defendant responded that he had consumed two glasses of wine at a business dinner with a colleague in the downtown area, from which he was coming. Based on defendant's statements and the officer's observations, Officer Pressley asked defendant to step out of his vehicle and escorted defendant to the secondary location so that Officer Pressley could conduct further investigation.
Officer Pressley continued to notice the strong odor of alcohol on defendant's breath after defendant exited his vehicle. Officer Pressley then administered a series of field sobriety tests, including the horizontal gaze and nystagmus test, the walk-and-turn test, and the one-leg stand test. Defendant did not perform any of those tests to Officer Pressley's satisfaction, and Officer Pressley thereafter placed defendant under arrest for impaired driving. Following defendant's arrest, Officer Pressley transported defendant to the Mecklenburg County Intake Center, where he administered an Intoxilyzer breath test and obtained two breath samples from defendant for chemical analysis. Defendant submitted to the Intoxilyzer breath test at 1:35 a.m. and registered readings of .12 and .11 breath alcohol concentration.
On 8 December 2005, defendant was convicted of DWI in district court and gave notice of appeal to superior court. In superior court, defendant moved to suppress the evidence derived from the extended stop of his vehicle at the checkpoint. Following a hearing, the trial court granted defendant's motion to suppress, from which the State appealed to this Court. This Court reversed the trial court's order granting defendant's motion to suppress and remanded the case to the trial court for further findings of fact as to the constitutionality of the individual stop of defendant. State v. Burroughs, 185 N.C.App. 496, 648 S.E.2d 561 (2007) [hereinafter Burroughs I]. On remand, the trial court heard additional testimony and arguments and again granted defendant's motion to suppress, finding that the checkpoint was applied in an unconstitutional manner. The State again appealed the trial court's order to this Court, and on 7 April 2009, this Court again reversed the trial court's order granting defendant's motion to suppress and remanded the case for trial. State v. Burroughs, No. COA08–891 (April 7, 2009) (unpublished) (hereinafter Burroughs II ]. Specifically, this Court held that the stop of defendant constituted a reasonable search pursuant to the Fourth Amendment and that the checkpoint was not administered in a racially discriminatory manner. Id., slip op. at 2–3.
Defendant was tried by jury in superior court beginning 1 March 2012. On 2 March 2012, the jury returned a guilty verdict. At sentencing, the trial court found no grossly aggravating factors, no aggravating factors, and four mitigating factors. The trial court found the factors in mitigation outweighed any factors in aggravation and sentenced defendant as a Level V offender to sixty days' imprisonment, suspended for twelve months of unsupervised probation. As a special condition of probation, defendant was ordered to serve an active sentence of one day imprisonment. Defendant gave oral notice of appeal from the trial court's judgment to this Court.
II. Denial of Motion to Suppress
In his first argument on appeal, defendant argues the trial court erred in denying his motion to suppress the evidence obtained from the extended seizure of his person and vehicle. Defendant contends that Officer Pressley lacked the requisite reasonable suspicion to justify his continued detention beyond the initial checkpoint stop, and accordingly, defendant argues that all evidence obtained after he was moved to the secondary location should have been suppressed.
Our review of a trial court's denial of a motion to suppress is “strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “The trial court's conclusions of law ... are fully reviewable on appeal.” State v. Hughes, 353 N .C. 200, 208, 539 S.E.2d 625, 631 (2000).
In this Court's opinion in Burroughs II, we upheld the constitutionality of the original checkpoint stop of defendant. However, defendant argues that even if the initial checkpoint stop was constitutional, Officer Pressley unreasonably detained him following the initial checkpoint stop by directing him to a secondary checking station without the requisite reasonable suspicion to do so.
Defendant is correct that “[o]nce the original purpose of the stop has been addressed, there must be grounds which provide a reasonable and articulable suspicion in order to justify further delay.” State v. Falana, 129 N.C.App. 813, 816, 501 S.E.2d 358, 360 (1998). “While individualized suspicion is not required for police to briefly detain a driver at a lawful checkpoint, any further detention or search must be based on either consent or individualized suspicion of criminal wrongdoing.” State v. Veazey, 191 N.C.App. 181, 195, 662 S.E.2d 683, 692 (2008). “The reasonable and articulable suspicion standard requires that the court examine both the articulable facts known to the officers at the time they determined to approach and investigate the activities of [defendant], and the rational inferences which the officers were entitled to draw from those facts.' “ State v. Jarrett, 203 N.C.App. 675, 683, 692 S.E.2d 420, 427 (2010) (alteration in original) (quoting State v. Butler, 147 N.C.App. 1, 7, 556 S.E.2d 304, 308 (2001)). “To determine whether the officer had reasonable suspicion, it is necessary to look at the totality of the circumstances.' “ Id. (quoting State v. Myles, 188 N.C.App. 42, 45, 654 S.E.2d 752, 754 (2008)).
In the present case, the trial court found as fact that upon defendant's approach to the checkpoint, Officer Pressley “observed an odor of alcoholic beverage from the defendant's breath and his person. He further observed the defendant's eyes and observed and saw that they were glossy and bloodshot eyes.” The trial court also found as fact that “[t]he officer asked [defendant] how much he had to drink, and the defendant indicated two glasses of wine; the last one was approximately a half hour earlier,” and that defendant was coming from a downtown area restaurant where he had dinner with a business associate. These factual findings are supported by Officer Pressley's testimony and are not challenged by defendant on appeal.
Based on these findings, the trial court concluded that Officer Pressley “had a reasonable articulable suspicion that the defendant was operating the vehicle while impaired .... [a]nd the officer had the right to stop [defendant's] vehicle, and to detain the defendant's person for further investigation.” Defendant argues the trial court's conclusion is erroneous because the officer did not observe any signs of actual impairment, e.g., faulty driving, slurred speech, mental confusion, or dexterity issues, being exhibited by defendant. Defendant argues that without those additional observations, Officer Pressley did not have reasonable suspicion that defendant was actually impaired, as opposed to merely having consumed some alcohol.
Defendant relies on our Supreme Court's opinion in Atkins v. Moye, 277 N.C. 179, 176 S.E.2d 789 (1970), in support of his argument. In Moye, our Supreme Court noted that
[a]n odor of alcohol on the breath of the driver of an automobile is evidence that he has been drinking. However, an odor, standing alone, is no evidence that he is under the influence of an intoxicant, and the mere fact that one has had a drink will not support such a finding.
Id. at 185, 176 S.E.2d at 793. Here, however, Officer Pressley observed that defendant's eyes were glossy and bloodshot, which the officer testified was a very typical indication that an individual has consumed alcohol. Moreover, the circumstances presented in Moye are entirely distinguishable from those in the present case. In Moye, a civil personal injury action, the defendant sought to establish that the plaintiff was contributorily negligent in causing a traffic accident by demonstrating that the plaintiff had been impaired by alcohol at the time of the accident. Id. at 184, 176 S.E.2d at 793–94. As quoted above, our Supreme Court noted that the odor of alcohol on the plaintiff was merely a circumstance to be considered with other evidence in determining whether the plaintiff was in fact contributorily negligent in causing the accident. Id. at 185, 176 S.E.2d at 793–94. However, in the present case, unlike Moye, Officer Pressley needed only sufficient articulable facts to form a reasonable belief that defendant was committing the criminal violation of driving while impaired.
To that end, the circumstances in State v. Veazey, 191 N.C.App. 181, 662 S.E.2d 683 (2008), disc. review denied,363 N.C. 811, 692 S.E.2d 876 (2010), are substantially similar to those in the present case. In Veazey, like the present case, the defendant argued on appeal that “even if the initial checkpoint stop was constitutional, Trooper Carroll [the arresting officer] unreasonably detained Defendant by directing him to a secondary checking station.” Id. at 195, 662 S.E.2d at 692. At trial in Veazey, “Trooper Carroll testified that when Defendant presented his driver's license during the initial checkpoint detention, Trooper Carroll detected a strong odor of alcohol in the vehicle and also observed that Defendant's eyes were red and glassy.” Id. Given these circumstances, we held that “[t]hese facts provided a sufficient basis for reasonable suspicion permitting Trooper Carroll to pursue further investigation and detention of Defendant.” Id.
In the present case, like Veazey, the strong odor of alcohol on defendant's breath accompanied with defendant's admission to having consumed alcohol and Officer Pressley's observation that defendant's eyes were red and glossy provided Officer Pressley with reasonable grounds to conduct further investigation into whether defendant had committed the implied-consent offense of DWI. Defendant's argument on this issue is without merit.
III. Scope of Cross-examination
In his second argument on appeal, defendant argues the trial court erred in denying defense counsel the opportunity to cross-examine Officer Pressley as to the potential for racial bias in the administration of the checkpoint. Defendant contends such testimony was relevant to the officer's credibility and the weight that might have been given to his testimony by the jury.
Pursuant to North Carolina Rule of Evidence 611(b), “[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” N.C. Gen.Stat. § 8C–1, Rule 611(b) (2011). “[T]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence.” State v. Larrimore, 340 N.C. 119, 150, 456 S.E.2d 789, 805 (1995) (internal quotation marks and citation omitted). “The long-standing rule in this jurisdiction is that the scope of cross-examination is largely within the discretion of the trial judge, and his rulings thereon will not be held in error in the absence of a showing that the verdict was improperly influenced by the limited scope of the cross-examination.” State v. Woods, 307 N.C. 213, 220–21, 297 S.E.2d 574, 579 (1982).
In order to establish error in the exclusion of evidence, there must be a showing of what the excluded testimony would have been.... There must be a specific offer of proof unless the significance of the evidence is obvious from the record. The substance of the witness's testimony is needed to determine whether there was prejudicial error in its exclusion.
State v. Foust, ––– N.C.App. ––––, ––––, 724 S.E.2d 154, 160 (2012) (citation omitted).
At trial in the present case, during cross-examination of Officer Pressley, the following exchange occurred:
Q. That night at the checkpoint, was the procedure to stop every car'
A. Yes, sir.
Q. Are you aware if every car was actually stopped going through that checkpoint'
A. To my knowledge it was, at least when I was there.
Q. Are you aware of any individuals being waived through'
A. I'm not.
Q. Are you aware of an individual named Chris Miller who was at the checkpoint that night'
A. I am now.
MR. PAYNE [the prosecutor]: Your Honor, at this time I'd ask to approach with counsel.
THE COURT: Yes, sir.
(WHEREUPON, the Court and Mr. Payne and Heroy conferred off the record.)
THE COURT: The Court sustains the objection. Counsel may proceed, then.
MR. HEROY [counsel for defendant]: Yes, Your Honor.
Thereafter, the trial court again addressed the issue for the record:
THE COURT: All right, all counsel are present; no jurors are present, and we are revisiting the Court's ruling. I believe counsel on the cross-examination of Officer Pressley had asked at the checkpoint the rule was to stop every car, and then I believe he was asked was every car stopped, and as I recall the officer did, as far as I know.
And then he was asked do you know if Chris Miller was there. At that point the State objected, the Court sustained the objection, and the Court indicated it would hear arguments or put on the record after the fact of arguments and the ruling.
Does counsel want to be heard on the record with regard to the objection, then'
MR. HEROY: No, Your Honor. If we could just put on there that we approached the bench and that was the discussion, and that it was—part of the discussion was based on the prior Court of Appeals opinion. Maybe if we can just incorporate that in as an offer of proof.
THE COURT: Yes, sir. Does the State want to be heard, then'
MR. PAYNE: No, Your Honor.
THE COURT: Let me just recapitulate, then. The Court did sustain the objection and we had a bench conference outside of the jury's presence. At which point the Court let the ruling stand, the ruling that it was irrelevant, and also a ruling that it's a matter that's already been determined by the court.
I think the implication was that from the questions that—we revisited the matter that was heard before the North Carolina Court of Appeals. I've had occasion to read Judge Atkins rulings in this, I also read the Court of Appeals and Judge Wynn's ruling particularly having to do with—if I recall correctly, that the checkpoint was—the trial court had concluded that the checkpoint plan was applied in a racially discriminatory manner based upon the fact that all—that the defendant, a black male, was stopped, and that Mr. Miller, a black male (sic) in the next car, approached the checkpoint and was not.
That the tests that were applied to the defendant were not applied to Mr. Miller. Judge Wynn I believe perceived it differently and was of the view that these findings may be sufficient for raising suspicion about the manner in which the checkpoint was conducted.
The evidence presented at the hearing was not sufficient to establish intentional racial discrimination against the defendant. So the Court was of the view that the matter was irrelevant. Also that it's a matter that was already adjudicated for purposes of this, the Court's ruling on this.
Any additional thing about that from the State or the defendant, then'
MR. PAYNE: No, Your Honor.
MR. HEROY: If we could just include the Court of Appeals' opinion as an offer of proof.
THE COURT: Does the State want to be heard about that, then'
MR. PAYNE: No, Your Honor.
THE COURT: It is a part of the record and the Court will take judicial notice of the record and incorporate that into its ruling.
Defendant contends that in preventing his counsel's line of questioning on cross-examination regarding racial bias, the trial court misinterpreted this Court's previous opinions in this case.
In this Court's prior opinion in Burroughs II, this Court expressly addressed the possibility of racial bias in the administration of the checkpoint at issue. In Burroughs II, we addressed the evidence regarding the events that occurred at the checkpoint with defendant as compared to those that occurred at the checkpoint with Mr. Miller. Specifically, this Court noted:
Evidence in the record shows that Defendant and Mr. Miller consumed alcoholic beverages together at a local tavern and approached the same checkpoint on the same night at approximately the same time; Mr. Miller was not asked any questions nor engaged in any conversation by the officer who conducted the stop, while the Defendant was subject to the full four-part inquiry by Officer Pressley as mandated by the checkpoint plan; and the only other person arrested during the checkpoint was a black male.
Burroughs II, No. COA08–891, slip op. at 9. This Court held, “While these findings may be sufficient to raise a suspicion about the manner in which the checkpoint was conducted, the evidence presented at the hearing was not sufficient to establish intentional racial discrimination against Defendant.” Id.
Although defendant now argues on appeal that the testimony his counsel sought to elicit from Officer Pressley at trial regarding the possibility of racial bias in the administration of the checkpoint was relevant to a determination of Officer Pressley's credibility as a witness, defendant made no such contention to the trial court below. In fact, the only “offer of proof” made by defendant at trial incorporated this Court's opinion in Burroughs II. Assuming that defendant sought to elicit the same facts elaborated by this Court in Burroughs II, we fail to see how the trial court's sustaining the State's objection on grounds of relevancy and prior adjudication was manifestly unsupported by reason.
As the trial court elaborated for the record, the testimony and facts that defense counsel sought to elicit, as described in this Court's opinion in Burroughs II, was held by this Court to be insufficient to establish racial discrimination against defendant. We see no meaningful difference in the issue previously decided by this Court—that defendant was not the victim of intentional racial discrimination—and the issue raised now by defendant—the possibility of racial bias on the part of Officer Pressley, who conducted the checkpoint stop of defendant. That defendant sought to establish racial bias on the part of Officer Pressley at trial is tantamount to seeking to establish that defendant was the target of racial discrimination at the checkpoint. In light of this Court's opinion in Burroughs II, we fail to see how the verdict in this case was improperly influenced by the trial court's limiting the scope of cross-examination to exclude questions addressing the possibility of racial bias on the part of Officer Pressley in administering the checkpoint stop of defendant. Therefore, defendant's argument on this issue is without merit.
IV. Failure to Give Allen Charge
In his third argument on appeal, defendant argues the trial court erred in refusing to give a curative instruction or an Allen charge to the jury during the verdict stage of trial.
At trial, following deliberations, the jury returned a guilty verdict, upon which defendant requested that the jury be polled. Upon the trial court's polling of juror number three, the following exchange occurred:
THE COURT: Sir, you're Ernesto Lozano, juror seat number three. Your foreman has returned in open court in this case ... a verdict of guilty of driving while impaired.
Was that your verdict'
MR. LOZANO: No, it was not. May I have permission to speak'
THE COURT: No, I need a yes or a no answer only. Let me just repeat the question and make sure you understand. Your foreperson has returned in this case ... a verdict of guilty of driving while impaired.
Was that your verdict'
MR. LOZANO: Sort of. Sorry.
THE COURT: Is it your verdict now' MR. LOZANO: It is now.
THE COURT: All right. You may be seated, then.
Thereafter, the trial court conferred with counsel for both defendant and the State and informed them that the court was inclined to reject the jury's verdict and to instruct the jury to resume deliberations until they reach a unanimous verdict. Defendant requested the trial court to give the jury a curative instruction or an Allen charge to avoid the possibility of coercion regarding juror number three. The trial court denied defendant's request, noting that there was no clear indication of deadlock or juror conflict and that it was difficult to know whether juror number three was confused by the court's questioning or was confused about his verdict. The trial court then gave the jury the following instruction:
Upon consideration of the Court's inquiry concerning the verdict, and particularly the responses that were made upon polling, the individual polling of the jurors, the Court is of the view that the recorded verdict is not a unanimous verdict. The Court does not accept the verdict as a unanimous verdict.
I am going to direct that you return to the jury room, continue with deliberations, and direct as well that you may not return a verdict until all twelve jurors agree unanimously.
Madam Sheriff, we'll let the verdict form be returned at this time, and I'm going to ask that you step to the jury room and continue with deliberations.
Approximately fifteen minutes later, the jury again returned with a guilty verdict. The trial court again polled the jury, during which juror number three unequivocally announced his agreement with the verdict. In light of these circumstances, defendant contends the trial court's failure to give a curative instruction or an Allen charge to the jury injected an element of coercion into the verdict stage.
“The right to a poll of the jury in criminal cases is firmly established by Article I, Section 24 of the Constitution of North Carolina and by statute.” State v. Black, 328 N.C. 191, 197, 400 S.E.2d 398, 402 (1992). N.C. Gen.Stat. § 15A1238 (2011) provides:
Upon the motion of any party made after a verdict has been returned and before the jury has dispersed, the jury must be polled. The judge may also upon his own motion require the polling of the jury. The poll may be conducted by the judge or by the clerk by asking each juror individually whether the verdict announced is his verdict. If upon the poll there is not a unanimous concurrence, the jury must be directed to retire for further deliberations.
Id.
The purpose of polling the jury is:
“to give each juror an opportunity, before the verdict is recorded, to declare in open court his assent to the verdict which the foreman has returned, and thus to enable the court and the parties to ascertain with certainty that a unanimous verdict has been in fact reached and that no juror has been coerced or induced to agree to a verdict to which he has not fully assented.”
State v. Holadia, 149 N.C.App. 248, 259–60, 561 S.E.2d 514, 522 (2002) (quoting Davis v. State, 273 N.C. 533, 541, 160 S.E.2d 697, 703 (1968) (emphasis in original omitted)).
N.C. Gen.Stat. § 15A–1235, another corollary to a defendant's right to a unanimous jury verdict under Article I, Section 24 of the North Carolina Constitution, addresses the trial court's obligations in connection with a deadlocked jury. State v. Fernandez, 346 N .C. 1, 21, 484 S.E.2d 350, 363 (1997). These statutory guidelines provide, in pertinent part:
(a) Before the jury retires for deliberation, the judge must give an instruction which informs the jury that in order to return a verdict, all 12 jurors must agree to a verdict of guilty or not guilty.
(b) Before the jury retires for deliberation, the judge may give an instruction which informs the jury that:
(1) Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(2) Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
(3) In the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
(4) No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
(c) If it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue its deliberations and may give or repeat the instructions provided in subsections (a) and (b).
N.C. Gen.Stat. § 15A–1235(a)–(c) (2011). “[T]his statute is the proper reference for standards applicable to charges which may be given a jury that is apparently unable to agree upon a verdict.' “ Fernandez, 346 N.C. at 22, 484 S.E.2d at 363 (quoting State v.. Easterling, 300 N.C. 594, 608, 268 S.E.2d 800, 809 (1980)). However, the plain language of the statute clearly provides the trial court with discretion as to whether to give an Allen instruction under subsection (c) of this statute. Id. “The purpose behind the enactment of N.C.G.S. § 15A–1235 was to avoid coerced verdicts from jurors having a difficult time reaching a unanimous decision.' “ State v. Baldwin, 141 N.C.App. 596, 607, 540 S.E.2d 815, 823 (2000) (quoting State v. Evans, 346 N.C. 221, 227, 485 S.E.2d 271, 274 (1997)).
[I]t has long been the rule in this [s] tate that in deciding whether a court's instructions force a verdict or merely serve as a catalyst for further deliberations, an appellate court must consider the circumstances under which the instructions were made and the probable impact of the instructions on the jury.
State v. Peek, 313 N.C. 266, 271, 328 S.E.2d 249, 253 (1985).
In reviewing the totality of the circumstances in the present case, we fail to see how the trial court's actions injected an element of coercion in the verdict stage of trial. As the trial court noted, there appeared no indication of a jury deadlock that would implicate the provisions of N.C. Gen.Stat. § 15A–1235, although the trial judge was free to give an Allen instruction under this section in his discretion had he believed that the jury was having difficulty reaching a verdict. Rather, it appears from the record, as the trial court reasoned, that juror number three was confused by the trial court's questioning during the polling of the jury instead of either being confused about his verdict or having difficulty reaching a verdict in agreement with the other members of the jury. When given an opportunity to unequivocally assent to the verdict in open court, juror number three did so.
We see no meaningful difference in the circumstances presented here and those presented in State v. Davis, 61 N.C.App. 522, 300 S.E.2d 861 (1983), in which a juror announced that her verdict was “[n]ot guilty” upon the trial court's polling of the jury after the foreman returned a guilty verdict. Id. at 524, 300 S.E.2d at 863. In Davis, we noted that “it is likely that when [the juror] said [n] ot guilty' she was asking if the clerk's question was whether she voted guilty or not guilty. Her subsequent assent to the verdict was unequivocal.” Id. at 525,300 S.E.2d at 863. Accordingly, in Davis, we held that the defendant “was convicted by an unambiguous, unanimous verdict.” Id.
Similarly, we believe juror number three in the present case demonstrated confusion by the trial court's questioning during the polling process and was given a second chance to dissent from the verdict, had he truly wished to do so. Even upon the first polling, juror number three announced that his verdict was guilty in open court, and he did so again upon the second polling. “A verdict is not defective if the juror understood that he or she has a right to dissent and eventually freely assented to the verdict.” Id. (citing State v. Asbury, 291 N.C. 164, 229 S.E.2d 175 (1976)). We therefore find no error in the trial court's failure to give any curative instruction following the polling of the jury in light of the circumstances presented here. The record reveals defendant was convicted by an unambiguous, unanimous verdict, and his argument on this issue is without merit.
V. Admission of Redacted Evidence
In his fourth argument on appeal, defendant argues the trial court erred in allowing into evidence a redacted version of the Intoxilyzer test report. Defendant contends that because significant portions of the report were whited-out and photocopied, the report as submitted violated the Best Evidence Rule and was misleading. The Best Evidence Rule, N.C. Gen.Stat. § 8C–1, Rule 1002 (2011), provides that “[t]o prove the content of a writing, ... the original writing ... is required, except as otherwise provided in these rules or by statute.” Id. However, “[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” N.C. Gen.Stat. § 8C–1, Rule 1003 (2011).
We first note that, although defendant originally objected to the State's admission of the Intoxilyzer test results on the basis of the Best Evidence Rule, defendant later withdrew that objection. Accordingly, defendant's challenge to the admissibility of this evidence must be reviewed under a plain error standard. See State v. Farmer, 177 N.C.App. 710, 716, 630 S.E.2d 244, 248 (2006).
In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C.R.App. P. 10(a)(4) (2013); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007). Plain error arises when the error is “so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]' “ State v. Odom, 307 N .C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982)). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
In the present case, defendant failed to specifically and distinctly contend that the trial court's alleged error in admitting the redacted Intoxilyzer test report amounted to plain error. Defendant recites a portion of the plain error standard in his brief, yet he wholly fails to meet his burden of showing to this Court that absent the alleged error, the jury would have reached a different verdict. Indeed, we fail to see how the admission of the original, unredacted Intoxilyzer test report indicating a second breath test result of .12 would have aided defendant's case before the jury.
Moreover, we note that in the present case, the admissibility of the Intoxilyzer test results was governed by the pre-December 1, 2006 version of N.C. Gen.Stat. § 20–139.1(b3). In pertinent part, that statute provided:
(b3) Sequential Breath Tests Required.—By January 1, 1985, the regulations of the Commission for Health Services governing the administration of chemical analyses of the breath shall require the testing of at least duplicate sequential breath samples. Those regulations must provide:
....
(2) That the test results may only be used to prove a person's particular alcohol concentration if:
a. The pair of readings employed are from consecutively administered tests; and
b. The readings do not differ from each other by an alcohol concentration greater than 0.02.
(3) That when a pair of analyses meets the requirements of subdivision (2), only the lower of the two readings may be used by the State as proof of a person's alcohol concentration in any court or administrative proceeding.
N.C. Gen.Stat. § 20–139.1(b3) (2005); see also State v. Shockley, 201 N.C.App. 431, 434, 689 S.E.2d 455, 456–57 (2009). We note that the present revision of this statute likewise provides that “[o]nly the lower of the two test results of the consecutively administered tests can be used to prove a particular alcohol concentration.” N.C. Gen.Stat. § 20–139.1(b3) (2011).
Here, Officer Pressley testified at trial that the Intoxilyzer breath test was administered pursuant to the terms of this statute, and defendant does not challenge such on appeal. Accordingly, pursuant to this statute, the trial court did not commit reversible error in admitting into evidence a duplicate of the Intoxilyzer test report showing only the lower reading of defendant's sequential and consecutive Intoxilyzer breath test results. See Shockley, 201 N.C.App. at 436, 689 S.E.2d at 458. Thus, defendant has failed to show the trial court committed error, let alone plain error, in admitting the redacted Intoxilyzer test report.
VI. Imposition of Active Term as Special Condition of Probation
In his final argument on appeal, defendant argues the trial court erred in requiring him to serve a one-day active prison term as a special condition of his probation. Defendant argues that the record reveals the trial court required all defendants convicted of DWI during that term of superior court to serve an active term of one day in prison. Defendant contends that the trial court's alleged requirement constituted punishment for exercising his right to trial by jury.
Pursuant to N.C. Gen.Stat. § 20–179(f) (2011),
If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, the judge shall weigh all aggravating and mitigating factors listed in subsections (d) and (e). If the judge determines that:
....
(3) The mitigating factors substantially outweigh any aggravating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Five punishment and impose a punishment within the limits defined in subsection (k).
Id. Defendant does not challenge on appeal that pursuant to the trial court's order, he should be sentenced to a Level Five punishment.
A defendant subject to Level Five punishment may be fined up to two hundred dollars ($200.00) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 24 hours and a maximum term of not more than 60 days. The term of imprisonment may be suspended. However, the suspended sentence shall include the condition that the defendant:
(1) Be imprisoned for a term of 24 hours as a condition of special probation; or
(2) Perform community service for a term of 24 hours; or
(3) Repealed by Session Law 2006–253, S. 23, effective December 1, 2006, and applicable to offenses committed on or after that date.
(4) Any combination of these conditions.
If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20–17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.
N.C. Gen.Stat. § 20–179(k) (2011). Here, the trial court, pursuant to the terms of the statute, imposed both a twenty-four-hour term of imprisonment and a community service condition on defendant's probation. The trial court's sentence was entirely authorized by statute.
Furthermore, although defendant alleges the trial court acted improperly by announcing that it would impose the twenty-four-hour imprisonment condition for all defendants whose trial resulted in conviction, the trial court noted on the record that any such allegation was a rumor being circulated among defense attorneys. Accordingly, we cannot say from the record that the trial court acted improperly in sentencing defendant in the present case. Defendant's argument on this issue is without merit.
VII. Conclusion
We hold the trial court properly denied defendant's motion to suppress evidence resulting from the extended stop of his person and vehicle. The odor of alcohol on defendant's breath and person together with defendant's admission to having consumed alcohol within an hour of driving and the officer's observation that defendant's eyes were red and glossy provided the officer with reasonable grounds to conduct further investigation into whether defendant had committed the implied-consent offense of DWI.
We find no abuse of discretion in the trial court's limiting the scope of defendant's cross-examination of Officer Pressley to exclude questions addressing the possibility of racial bias on the part of Officer Pressley in administering the checkpoint stop of defendant. As the trial court reasoned, these same facts were previously adjudicated in this Court's prior opinion in Burroughs II. We also find that, under the totality of the circumstances presented, the trial court did not commit error in failing to give a curative instruction or Allen charge to the jury during the verdict stage of trial. The record reveals that juror number three was confused by the trial court's questioning during polling, and juror number three unequivocally assented to the verdict in open court.
We find no error in the trial court's admission of the redacted Intoxilyzer test report pursuant to the pre-December 1, 2006 version of N.C. Gen.Stat. § 20–139.1(b3). Moreover, defendant has failed to show plain error in the admission of the redacted Intoxilyzer test report. Finally, we hold defendant's sentence, including the special conditions of probation imposed by the trial court, is entirely authorized by statute and is therefore proper. Accordingly, we affirm the trial court's denial of defendant's motion to suppress, find no error in the conduct of defendant's trial, and affirm the sentence imposed by the trial court.
No error in part, affirmed in part. Judges HUNTER (Robert C.) and DAVIS concur.
Report per Rule 30(e).