Opinion
No. COA10-925
Filed 1 March 2011 This case not for publication
Appeal by defendant from judgment entered 2 December 2009 by Judge W. Allen Cobb, Jr., in Pender County Superior Court. Heard in the Court of Appeals 25 January 2011.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. Brett Donald Sullivan pro se.
Pender County Nos. 09 CRS 568, 570.
Where defendant was stopped at a license checkpoint and did not state his address upon the request of a uniformed Highway Patrol Officer, he was in violation of North Carolina General Statutes, section 20-29. Where defendant's vehicle license plate registration had expired and his trailer registration was unavailable, defendant was in violation of section 20-111(1).
Facts
On 24 March 2009, at 9:50 a.m., defendant was driving on North Carolina Highway 210, in Pender County, when he approached a driver's license checkpoint set up by the North Carolina Highway Patrol. Defendant was driving a Ford pick-up truck and pulling a utility trailer. A trooper noticed that the registration on the Michigan license plate had expired and the utility trailer did not have a license plate. Upon request, defendant presented the trooper with a driver's license issued in Michigan; the trooper asked if defendant was a resident of North Carolina. Defendant replied that he refused to answer that question. The trooper stated that in North Carolina, defendant was required to answer the question. So, defendant was asked whether he lived in Michigan or North Carolina. Defendant responded by stating that he had provided the officer with a valid Michigan driver's license and refused to further answer the question. Unable to obtain any information on defendant through either his law enforcement database or the database for the North Carolina Department of Motor Vehicles, the trooper placed defendant under arrest and charged him for driving with no operator's license, failure to register a vehicle, failure to maintain liability insurance, failure to register a trailer, and failure to produce an address. About a month after his arrest, a building permit was issued to defendant from a Pender County office; defendant was building a house near Atkinson. At trial, the officer testified that the address on defendant's driver's license was 18057 Green Street, Allendale, Michigan; however, the officer noted that defendant's address, as it was reflected on the "NPT" law enforcement database, had been updated to 8787 Tireman Avenue, Dearborn, Michigan. Upon further investigation, the address on Tireman Avenue was determined not to be a residence but a business.
Defendant was tried in Pender County District Court and found guilty of all charges. Defendant appealed, and, on 30 November 2009, defendant was tried before a jury in Pender County Superior Court. The jury found defendant guilty of two counts of driving an unregistered vehicle and refusing to produce an address on demand. The trial court entered judgment. Defendant was sentenced to an active term of forty-five days, which was suspended and defendant placed on supervised probation for twenty-four months. As special conditions, defendant was ordered to serve an active sentence of five days, pay jail fees, and participate in an intensive supervision program for six months. Defendant was further ordered to not operate a motor vehicle on the streets and highways of North Carolina until he held a valid North Carolina driver's license, and to provide an accurate and current residential address to his probation officer. Defendant appealed.
On appeal, defendant raises the following ten issues: Did the trial court commit plain error by (I) refusing to dismiss the case based on a lack of probable cause; (II) refusing to enter a directed verdict; (III) upholding a denial of defendant's right to remain silent; (IV) denying defendant unfettered counsel during pre-trial activities; (V) assuming jurisdiction over defendant; (VI) instructing the jury on the law of vehicle registration; (VII) instructing the jury on failing to produce an address; (VIII) improperly swearing in the jury; (IX) imposing sentence; and (X) instructing the jury on the law of vehicle registration and failing to intervene during the prosecutor's closing argument.
Standard of Review
[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.
State v. Cummings, 361 N.C. 438, 470, 648 S.E.2d 788, 807 (2007) (citation omitted).
I
Defendant contends the trial court committed plain error by refusing to dismiss the case. Defendant argues that, at the time he was initially questioned, the only information available to the arresting officer was that defendant was a resident of Michigan; therefore, the arresting officer lacked probable cause to make an arrest. We disagree.
Under North Carolina General Statutes, section 20-29,
Any person operating or in charge of a motor vehicle, when requested by an officer in uniform, . . . who shall refuse to write his name for the purpose of identification or to give his name and address and the name and address of the owner of such vehicle . . . shall be guilty of a Class 2 misdemeanor.
N.C. Gen. Stat. § 20-29 (2009). Under section 15A-401, "[a]n officer may arrest without a warrant any person who the officer has probable cause to believe has committed a criminal offense in the officer's presence." N.C. Gen. Stat. § 15A-401(b)(1) (2009). "Probable cause refers to those facts and circumstances within an officer's knowledge and of which he had reasonably trustworthy information which are sufficient to warrant a prudent [person] in believing that the suspect had committed or was committing an offense." Ellis v. White, 156 N.C. App. 16, 26, 575 S.E.2d 809, 816 (2003) (quoting State v. Williams, 314 N.C. 337, 343, 333 S.E.2d 708, 713 (1985)).
Here, defendant was stopped at a license check point by uniformed officers of the North Carolina Highway Patrol. A trooper requested that defendant provide his place of residence. Defendant refused. Therefore, the trooper had probable cause to arrest defendant for a violation of N.C.G.S. § 20-29. See State v. Zuniga, 312 N.C. 251, 262, 322 S.E.2d 140, 147 (1984) ("[O]ur role is to determine whether the officer has acted as a man of reasonable caution who, in good faith and based upon practical consideration of everyday life, believed the suspect committed the crime for which he was later charged." (citations omitted)). Accordingly, defendant's argument is overruled.
II
Defendant argues that the trial court committed plain error by failing to enter a directed verdict on the charge of failing to register his vehicle. Defendant contends that, because the State failed to produce evidence he was a resident of North Carolina, he could not, as a matter of law, be found guilty of failing to register his vehicle with the North Carolina Department of Motor Vehicles. We believe defendant misconstrues the statute.
Defendant was charged and convicted of violating N.C. Gen. Stat. § 20-111(1).
It shall be unlawful for any person to commit any of the following acts:
(1) To drive a vehicle on a highway, or knowingly permit a vehicle owned by that person to be driven on a highway, when the vehicle is not registered with the Division in accordance with this Article or does not display a current registration plate.
N.C. Gen. Stat. § 20-111(1) (2009). "Properly registered, as applied to place of registration, means . . . [t]he jurisdiction where the person registering the vehicle has his legal residence. . . ." N.C. Gen. Stat. § 20-4.2(5)(a.) (2009). The evidence presented showed that the registration for the Michigan license plate on defendant's pick-up truck had expired, and the utility trailer being pulled did not have a license plate. By driving his unregistered vehicle and trailer on a North Carolina highway, defendant violated two counts of N.C.G.S. § 20-111(1). Accordingly, defendant's argument is overruled.
III VII
Defendant argues that the trial court committed plain error in not upholding his constitutional right to remain silent and by not properly instructing the jury. Defendant contends that, because he was detained and did not feel free to leave the license check point, he was under arrest, and the officer's request that defendant provide his place of residence, after defendant's statement that he would not answer beyond providing his driver's license, violated defendant's right to remain silent. And, he further argues, to the extent that section 20-29 authorizes an officer to interrogate a person in custody after that person has instituted his right to remain silent, section 20-29 is unconstitutional. Finally, defendant argues the trial court erred in instructing the jury on section 20-29 because the statute impacts his right to remain silent.
Defendant's arguments implicate Fourth and Fifth Amendment rights under the Constitution of the United States. However, defendant did not raise these arguments before the trial court. "Constitutional arguments not raised at trial are not preserved for appellate review." State v. Roache, 358 N.C. 243, 291, 595 S.E.2d 381, 412 (2004) (citing State v. Call, 349 N.C. 382, 410, 508 S.E.2d 496, 514 (1998)); see also N.C. R. App. P. 10(a)(1). Accordingly, defendant's arguments are dismissed.
IV
Defendant argues that the trial court committed plain error by failing to allow defendant's "next friend," a person not licensed to practice law in this State, to provide aid and assistance during the trial. We disagree.
Pursuant to the Sixth Amendment to the Constitution of the United States,
[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence [sic].
U.S. Const. Amend. VI. "The Sixth Amendment right to choose one's own counsel is circumscribed in several important respects. Regardless of his persuasive powers, an advocate who is not a member of the bar may not represent clients (other than himself) in court." State v. Phillips, 152 N.C. App. 679, 683, 568 S.E.2d 300, 303 (2002) (citing Wheat v. United States, 486 U.S. 153, 159, 100 L. Ed. 2d 140, 148-49, reh'g denied, 487 U.S. 1243, 101 L. Ed. 2d 949 (1988)). The record does not independently indicate the qualifications of defendant's "next friend"; however, relying on defendant's assertion that his "next friend" was not a member of the bar, this "next friend" could not represent defendant in court. This argument is overruled.
V
Defendant argues that the trial court committed plain error by exercising jurisdiction over him. As far as we can discern, defendant contends that the lower court impermissibly infringed on defendant's right to travel, where there was no evidence that defendant's travel constituted a threat to public safety and defendant had not entered into any willful or voluntary contractual relationship with the State.
In State v. Sullivan, ___ N.C. App. ___, 687 S.E.2d 504 (2009), the defendant appealed from
a judgment entered upon a jury verdict finding him guilty of operating a motor vehicle on a street or highway without the vehicle being registered with the North Carolina Department of Motor Vehicles ("NCDMV") and operating a motor vehicle on a street or highway without having in full force and effect the financial responsibility required by N.C. Gen. Stat. § 20-313 (2007).
Id. at ____, 687 S.E.2d at 507. The defendant contended that the pertinent statutes infringed upon his right to travel and that "the trial court lacked jurisdiction because defendant ha[d] no contractual relationship with the State." Id. at ___, 687 S.E.2d at 508. The Court acknowledged
[t]he right to travel upon the public streets of a city is a part of every individual's liberty, protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and by the Law of the Land Clause, Article I, § 19, of the Constitution of North Carolina.
Id. (citation omitted). However, the Court noted that this liberty interest "may be regulated, as to the time and manner of its exercise, when reasonably deemed necessary to the public safety, by laws reasonably adapted to the attainment of that objective." Id. (quoting State v. Dobbins, 277 N.C. 484, 497, 178 S.E.2d 449, 456 (1971)).
[A] State may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles. . . . And to this end it may require the registration of such vehicles and the licensing of their drivers. . . . This is but an exercise of the police power uniformly recognized as belonging to the States and essential to the preservation of the health, safety and comfort of their citizens[.]
Id. (citing Hendrick v. Maryland, 235 U.S. 610, 622, 35 S. Ct. 140, 59 L. Ed. 385, 391 (1915)).
Defendant was arrested while driving a vehicle with an expired license plate registration and pulling an unregistered trailer, on North Carolina Highway 210, in Pender County, in violation of the motor vehicle laws of the State. As such, he was properly subject to the initial jurisdiction of the Pender County District Court and, subsequently, to that of the Pender County Superior Court. Accordingly, defendant's argument is overruled.
VI
Defendant argues that the trial court committed plain error by instructing the jury on the charge of operating or driving an unregistered vehicle but failing to instruct that if defendant was a resident of another state he was not required to register his vehicle. We disagree.
"[T]he purpose [of a trial court's jury instruction] `is to give a clear instruction which applies the law to the evidence in such manner as to assist the jury in understanding the case and in reaching a correct verdict.'" State v. Smith, 360 N.C. 341, 346, 626 S.E.2d 258, 261 (2006) (quoting State v. Williams, 280 N.C. 132, 136, 184 S.E.2d 875, 877 (1971)). "It is well established that when a defendant requests a special instruction which is correct in law and supported by the evidence, the trial court must give the requested instruction, at least in substance." State v. Tidwell, 112 N.C. App. 770, 773, 436 S.E.2d 922, 924 (1993) (citing State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988); State v. Hooker, 243 N.C. 429, 90 S.E.2d 690 (1956)).
Here, the trial court instructed the jury as follows:
For you to find the defendant guilty of [operating or driving an unregistered vehicle], the State must prove four things beyond a reasonable doubt. . . . [H]e's been charged with two counts. . . .
First, that the defendant drove or operated;
Second, a motor vehicle. In the first count that would be the Ford pickup truck. In the second count that would be the utility vehicle;
Third, that he drove this vehicle on a public highway or street in the state of North Carolina; and
Fourth, that the vehicle was not registered in this state or the vehicle did not display a current registration plate.
The trial court's instruction clearly and accurately conveyed the elements of N.C.G.S. § 20-111(1). Further, defendant's requested instruction was not supported in law. Defendant's argument is overruled.
VIII
Defendant argues that the jury was improperly sworn. Defendant contends that jurors are judicial officers and thus required to take the oath of office for elected or appointed officers required by the Constitution of North Carolina. However, defendant does not provide any authority for this assertion. Upon review, we hold that the oath provided to the jurors was in compliance with N.C. Gen. Stat. § 11-11 (Oath of Petit Juror). This argument is overruled.
"You do solemnly swear (affirm) that you will truthfully and without prejudice or partiality try all issues in civil or criminal actions that come before you and give true verdicts according to the evidence, so help you, God." N.C.G.S. § 11-11 (2009) (Oath for Petit Juror).
IX
Defendant argues that the trial court violated his Fifth and Eighth Amendment rights under the Constitution of the United States, when it ordered him to get a North Carolina driver's license, register his vehicles, and provide a North Carolina address. Defendant further contends that the appeal bond assessed was excessive and in violation of the Eighth Amendment prohibitions against excessive bail.
However, these constitutional arguments were not raised before the trial court and, therefore, are not preserved for appellate review. Roache, 358 N.C. at 291, 595 S.E.2d at 412; N.C. R. App. P. 10(a)(1). These arguments are dismissed.
X
Defendant argues that the trial court committed plain error by failing to instruct the jury that a resident of another state is not required to register his automobile in North Carolina. Further, he contends the trial court acted in collusion with the prosecutor in allowing the prosecutor to argue to the jury that the right to remain silent only takes effect after a person is placed under arrest.
We have addressed the substance of defendant's initial contention in issues II and VI, above, and note that defendant does not further support his contention that a resident of another state is not required to have his automobile registered. Accordingly, we deem this issue abandoned. See N.C. R. App. P. 28(b)(6) (providing that "[i]ssues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.").
As to the second part of defendant's contention regarding his right to remain silent, we affirm our earlier holding in issues III and VII, that defendant's arguments implicating constitutional rights not raised and preserved at trial will not be heard on appeal. To the extent that defendant's argument challenges the propriety of the State's closing argument on this issue, we see no support in the record for defendant's contentions. Here, the prosecutor's closing argument included the following:
The law required that if you drive in North Carolina that you have a driver's license, that you keep you tags up, and that if you get stopped by a police officer and he asks you where you live because he's trying to do his job and verify that your address information on your driver's license is correct, you have to tell him where you live. He wasn't under arrest when he was asking him that. But we have all watched tv shows where they read you your Miranda rights, where they place him under arrest and they say you have the right to remain silent, you have the right to an attorney, you have the right to have an attorney appointed for you if you can't afford to hire a lawyer, after you're placed under arrest.
He's not under arrest. They're by the roadside having a conversation. . . .
"In order to be entitled to reversal based upon closing remarks, the defendant must establish both that the closing arguments were improper and that they prejudiced him before the jury." State v. Peterson, 179 N.C. App. 437, 466, 634 S.E.2d 594, 615 (2006) (citation omitted). Defendant has failed to show that the prosecutor's statements were improper or impermissibly prejudicial. Accordingly, defendant's argument is overruled.
No error.
Judges McGEE and BEASLEY concur.
Report per Rule 30(e).