Opinion
No. COA11–1516.
2012-07-17
STATE of North Carolina v. Jason Paul CREEF.
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. J. Blake Norman, for defendant-appellant.
Appeal by defendant from judgment entered 21 April 2011 by Judge Elaine M. Bushfan in Orange County Superior Court. Heard in the Court of Appeals 9 May 2012. Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. J. Blake Norman, for defendant-appellant.
CALABRIA, Judge.
Jason Paul Creef (“defendant”) appeals from a judgment entered upon a jury verdict finding him guilty of driving while impaired (“DWI”). We find no error.
I. Background
Defendant was driving his vehicle near Chapel Hill on 1 November 2009 at approximately 11:44 p.m. As defendant approached a stop sign, Officer Steven Slagle (“Officer Slagle”) of the Chapel Hill Police Department observed him driving through the stop sign at approximately ten to fifteen miles per hour. Officer Slagle followed defendant. Although defendant subsequently stopped at two stop signs, Officer Slagle initiated a traffic stop, approached the vehicle and noticed a strong odor of alcohol coming from defendant.
Officer Slagle asked defendant to step out of his vehicle and recite the alphabet. Defendant recited “Q–R–S–T–U– R–V.” He then refused Officer Slagle's request to submit to field sobriety tests and a preliminary breath test. Defendant did not stumble or lose his balance, but since he slurred his speech, Officer Slagle suspected defendant was impaired and placed him under arrest for DWI. Later, defendant submitted to an Intoxilyzer test. After defendant produced a breath sample which recorded a blood alcohol content (“BAC”) of .14, he was charged with DWI and failing to stop at a stop sign.
On 25 May 2010, in Orange County District Court, the trial court found defendant guilty on all counts. Defendant was sentenced to thirty days in the custody of the Sheriff of Orange County. His sentence was suspended and he was placed on unsupervised probation for twelve months. After sentencing, defendant entered oral notice of appeal to Superior Court.
Defendant made a Motion to Suppress, but the Orange County Superior Court denied defendant's motion. On 21 April 2011, in Orange County Superior Court, the jury returned verdicts finding defendant guilty of DWI and responsible for failing to stop at a stop sign. For failing to stop at a stop sign, the trial court gave defendant a Prayer for Judgment continued. For the DWI, defendant was sentenced to thirty days in the custody of the Sheriff of Orange County, the sentence was suspended and defendant was placed on twelve months unsupervised probation. The trial court also imposed special conditions of probation and monetary obligations. Defendant appeals the Order denying his Motion to Suppress and the DWI judgment.
II. Motion to Suppress
While defendant filed Notice of Appeal from the order denying his Motion to Suppress, he failed to raise this issue on appeal, and therefore it is deemed abandoned.
III. Mistrial
Defendant alleges the trial court erred by denying his motion for a mistrial as defendant was substantially prejudiced when testimony at trial revealed a prior conviction. We disagree.
As a preliminary matter, we note that defendant believes Officer Slagle's testimony was inadmissible. However, the admissibility of Officer Slagle's testimony is not an issue on appeal. The trial court agreed that Officer Slagle's testimony regarding the conviction should not have been admitted, and granted the motion to strike the testimony. Therefore, the issues on appeal are whether the trial court's limiting instruction, rather than granting defendant a mistrial, was a proper remedy and whether defendant was substantially prejudiced when testimony at trial revealed a prior conviction.
A. Motion for a Mistrial
“Upon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial.” N.C. Gen.Stat. § 15A–1061 (2011). “Whether to grant a motion for mistrial is within the trial court's discretion, and its ruling will not be disturbed unless it clearly amounts to a manifest abuse of discretion.” State v. Bethea, 173 N.C.App. 43, 49, 617 S.E.2d 687, 692 (2005). The trial court's ruling “is to be afforded great deference since the trial court is in a far better position than an appellate court to determine whether the degree of influence on the jury was irreparable.” State v. King, 343 N.C. 29, 44, 468 S.E .2d 232, 242 (1995).
A mistrial must be declared if “there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.” N.C. Gen.Stat. § 15A–1061 (2011). Thus, a mistrial is appropriate “where it appears from the entire record that the prejudicial effect of the evidence was not or probably could not be removed from the minds of the jury by the court's instruction.” State v. Bronson, 10 N.C.App. 638, 642, 179 S.E.2d 823, 826 (1971). However, the law presumes that “[w]hen the trial court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured.” State v. Black, 328 N.C. 191, 200, 400 S.E.2d 398, 404 (1991).
In the instant case, the State sought to present evidence regarding defendant's answers to questions Officer Slagle asked him. Specifically, the State wanted to elicit testimony from Officer Slagle that defendant answered “no” when Officer Slagle asked him whether he had ever been arrested before. Defendant objected to the State's proposed questions. The trial court overruled the objection and allowed the State to question Officer Slagle. However, the trial court limited Officer Slagle's testimony to an answer to the question “Have you ever been arrested before?” Despite the trial court's instructions, the following exchange took place when the State questioned Officer Slagle at trial:
Q. Sir, when you were discussing—having a discussion with [defendant] there, to your knowledge at that time and at this time, were any of the statements or responses that he made to you at that time untrue?
[Defense Attorney]: Objection for the record, your Honor.
THE COURT: So noted and overruled. A. One thing.
Q. Okay. And if you could very specifically or very directly as you understand, what statement or response did he make that to your knowledge was untrue?
[Defense Attorney]: Objection for the record.
THE COURT: So noted and overruled.
A. Of no conviction.
...
[Defense Attorney]: Objection, Your Honor, if we may approach.
(A bench conference was held off the record and out of the hearing of the jury.)
THE COURT: All right. Ladies and gentlemen of the jury, I'm going to ask that you be excused for our lunch break. We have to take up some issues at this time. So you will actually have a longer lunch break. You will not be due back into the jury room until 2:00 o'clock.
Please remember that you shall retire to the jury room and return here when the baliff summons you.
I remind you that it is your duty not to talk among yourselves about the case. It is your duty not to talk with the parties, the witnesses, or counsel about anything. It is your duty not to talk to anyone else or allow anyone else to talk with you or in your presence about the case.
So you may be excused for your lunch break.
After the jury was excused, defendant made a motion for a mistrial, but the trial court denied the motion. Defendant then made a motion to strike Officer Slagle's testimony regarding the veracity of defendant's statements. Defendant argued that he was now substantially and irreparably prejudiced by Officer Slagle's use of the word “conviction.” See King, 343 N.C. at 44, 468 S.E.2d at 242. The trial court granted defendant's motion to strike Officer Slagle's testimony.
After the jury returned from their lunch break, the trial court gave the jury a limiting instruction regarding the contested part of Office Slagle's testimony: “[p]rior to your lunch break, you heard a series of questions related to the veracity of statements—of questions and answers related to the veracity of statements made by the defendant. You are to disregard all questions and responses thereto.” All the jurors indicated they were able to follow the trial court's instruction.
Generally, when a limiting instruction is given to the jury, the law presumes the jury will follow the instruction, and any prejudice towards the defendant is cured. See State v. Oliver, 52 N.C.App. 483, 486, 279 S.E.2d 19, 21–22 (1981) (holding that any prejudice to the defendant arising from witness testimony was cured and any error was rendered harmless by the issuance of an instruction to the jury to disregard the testimony); State v. Barnard, 184 N.C.App. 25, 31, 645 S.E.2d 780, 784–85 (2007) (holding that any error stemming from an officer's testimony regarding statements the defendant made during the arrest was cured by the trial court's grant of the defendant's motion to strike and the prompt issuance of an instruction to the jury not to consider the statements).
B. Limiting Instruction
Defendant contends that even though the court gave a limiting instruction, the instruction could not overcome the error created by Officer Slagle's testimony. Specifically, defendant argues that the wording of the instruction did not clearly indicate the exact testimony that the jury was to disregard. In addition, defendant also argues that the limiting instruction was insufficient because although Officer Slagle's testimony referred to a prior conviction, too much time elapsed between the testimony and the instruction.
1. Challenging the Limiting Instruction
Defendant alleges that substantial prejudice resulted from Officer Slagle's statement regarding a conviction rather than defendant's previous arrest because the substance of the limiting instruction was insufficient. Specifically, the instruction only asks the jury to disregard evidence concerning the truth of statements made by the defendant. Because of the insufficient instruction, defendant concludes that the jurors were unable to determine which portion of the evidence they were supposed to disregard.
A defendant who submits proposed instructions to the court and agrees to them cannot later claim the instructions were insufficient. See State v. Basden, 339 N.C. 288, 302, 451 S.E.2d 238, 246 (1994) (holding that the defendant could not appeal a jury instruction where he “not only did not object to the challenged instruction, but in fact, requested it and stated he was satisfied with it”). Thus, “a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.” State v. Barber, 147 N.C.App. 69, 74, 554 S.E.2d 413, 416 (2001).
In the instant case, defendant did not object to the final wording of the instruction to the jury. The wording in the original proposed instruction was that the court would grant the motion to strike only the answers. Defendant requested that the trial court also include the questions. Therefore, it was agreed that the instruction would be worded, “a motion to strike questions and answers.” The trial court complied with defendant's request and so instructed the jury. Furthermore, the limiting instruction specifically referred to testimony heard “prior to [the] lunch break,” as well as the content of the disputed testimony. Consequently, the distinction defendant made is not substantial enough to render the limiting instruction insufficient.
2. Whether the Limiting Instruction Cured Prejudicial Error
Defendant cites two cases, State v. Foster and State v. Hines, to support his conclusion that the limiting instruction was insufficient to cure the substantial and irreparable prejudice created by Officer Slagle's testimony. Foster, 27 N.C.App. 531, 219 S.E.2d 535 (1975); Hines, 131 N.C.App. 457, 508 S.E.2d 310 (1998). In both cases, members of the jury received detailed information about the defendant's prior conviction. In Foster, a witness testified that he and one of the defendants were previously convicted of armed robbery. 27 N.C.App. at 532–33, 219 S.E.2d at 536. Similarly, in Hines, inadmissible evidence was published to the jury that included drug-related convictions in the defendant's criminal record. 131 N.C.App. at 462, 508 S.E.2d at 314.
The instant case is distinguishable from both Foster and Hines. In Foster, the witness testified about the nature of defendant's prior conviction. 27 N.C.App. at 532–33, 219 S.E.2d at 536. Since the prior armed robbery conviction was the same type of offense the jury was asked to determine whether or not defendants had committed in the Foster trial, the Court determined the witness's testimony was prejudicial to defendants. Id. at 533, 219 S.E.2d at 537. In the instant case, Officer Slagle indicated that defendant had a prior conviction but did not specify the nature of the offense during his testimony. Specifically, he did not mention that the offense was a DWI.
In Hines, the jury reviewed over forty documents, including prejudicial information. 131 N.C.App. at 463, 508 S.E.2d at 314. While the court's limiting instruction specified the documents that were to be disregarded, some jurors “could not specifically recall what information they had retained from the notes” or “what information they were being asked to exclude[.]” Id. Furthermore, the documents in Hines also included hearsay statements implicating defendants in the crime charged. Id. Defendant claims that the Hines Court's determination regarding the reason a mistrial was necessary was based on evidence of a prior conviction. Id. at 463–64, 508 S.E.2d at 314–15. However, in reviewing Hines, it is clear the Court was concerned about all of the erroneously admitted documents, not just those pertaining to the conviction and thus Hines is substantially different from the instant case. Id.
In the instant case, the jury apparently understood the trial court's limiting instruction because the instruction was tailored to a specific line of questioning that was to be disregarded. In addition, defendant's previous conviction was never specified. Therefore, the trial court cured any prejudice arising from Officer Slagle's testimony. See State v. Aldridge, 254 N.C. 297, 299, 118 S.E.2d 766, 767 (1961) (citation omitted) (recognizing that when determining whether the prejudicial effect of evidence is cured by limiting instructions the Court examines the “nature of the evidence and its probable influence upon the minds of the jury in reaching a verdict.”).
3. Timing of Limiting Instruction
Defendant further contends that the limiting instruction was insufficient because it was given over two hours after the jurors heard the disputed testimony. However, since the delay occurred while the jury was dismissed for lunch, there was no testimony presented and the jury did not hear any new testimony that would confuse them during the two-hour delay between the testimony prior to the lunch break and the instruction that was given when they returned. Therefore, since the jury did not hear any new testimony to confuse them, the delay did not cause the limiting instruction to be insufficient.
4. Whether Prejudice was Substantial and Irreparable
Even assuming, arguendo, that the limiting instruction was insufficient, as defendant contends, defendant has still failed to show that he was substantially and irreparably prejudiced by Officer Slagle's testimony. See King, 343 N.C. at 44, 468 S.E.2d at 242. Despite mentioning prior convictions, the State presented sufficient evidence to prove beyond a reasonable doubt that defendant was driving while impaired. Defendant contends that he rebutted the evidence of impairment offered against him. While it is true that defendant exhibited signs of sobriety, such as stopping at subsequent stop signs, not having bloodshot eyes, and not stumbling while exiting his car, there is ample evidence to suggest that defendant was indeed impaired. Specifically, Officer Slagle testified about defendant's slurred speech, the strong odor of alcohol coming from defendant, and most significantly, that defendant's BAC was nearly twice the legal limit. Therefore, defendant failed to show he was substantially and irreparably prejudiced by Officer Slagle's testimony. See King, 343 N.C. at 44, 468 S.E.2d at 242.
C. Nondisclosure of Prior Conviction
Contrary to defendant's claims, the State and the trial court did not admit that Officer Slagle's testimony was prejudicial. Rather, the State indicated that prejudice would arise if the jury was told that defendant's prior conviction was for DWI. Since Officer Slagle only stated the word “conviction,” but did not include the type of offense, the prior conviction for DWI was not disclosed to the jury. While the trial court admitted the questioning between the State and Officer Slagle probably should not have taken place, it determined, within its discretion, that a limiting instruction was an adequate remedy for any prejudice arising from Officer Slagle's testimony.
IV. Conclusion
The trial court did not commit reversible error by allowing testimony concerning the fact that defendant had a prior conviction. Since the type of conviction was not disclosed, the trial court cured the error by granting defendant's motion to strike and by issuing a limiting instruction to the jury regarding the testimony in question. The trial court's denial of defendant's motion for mistrial was not a manifest abuse of discretion.
No error. Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).