Opinion
No. COA12–252.
2012-09-18
STATE of North Carolina v. William Bradley LANGLEY, II.
Attorney General Roy Cooper, by Assistant Attorney General Tamara S. Zmuda, for the State. Joseph L. Ledford for Defendant.
Appeal by Defendant from judgment entered 29 September 2011 by Judge Linwood O. Foust in Mecklenburg County Superior Court. Heard in the Court of Appeals 29 August 2012. Attorney General Roy Cooper, by Assistant Attorney General Tamara S. Zmuda, for the State. Joseph L. Ledford for Defendant.
STEPHENS, Judge.
Defendant William Bradley Langley, II, appeals from judgment entered upon his conviction for impaired driving (“DWI”), in violation of N.C. Gen.Stat. § 20–138.1. As discussed herein, we find no error.
Defendant was arrested on 29 May 2010 and charged with DWI. He was convicted in Mecklenburg County District Court and appealed to Superior Court for trial de novo.
Defendant was tried before a Mecklenburg County jury on 29 September 2011. The State's evidence tended to show the following: On 29 May 2010, at approximately 7:37 p.m., Officer Todd Davis (“Davis”) of the Charlotte–Mecklenburg County Police Department initiated a traffic stop after he observed Defendant speeding. Upon approaching Defendant's vehicle, Davis noticed signs suggesting Defendant had been drinking, including “red and glassy” eyes and a moderate odor of alcohol. When Davis asked, Defendant admitted he had been “drinking at the Speedway.”
Davis had Defendant perform three field sobriety tests: (1) the horizontal gaze nystagmus (“HGN”), (2) the walk-and-turn test, and (3) the one-leg stand. Davis observed six clues indicating impairment during the HGN and two clues during the second test. Defendant performed test three as requested, showing no signs of impairment. Davis then placed Defendant under arrest for DWI.
At the intake center, using a properly maintained and calibrated instrument known as the Intoxilyzer EC/IR–II, Davis collected two breath samples from Defendant at approximately 9:01 p.m. and 9:05 p.m. The first sample registered a 0.10; the second a 0.09. For an accurate chemical analysis, our General Statutes require consecutive breath tests to be within 0.02. N.C. Gen.Stat. § 20–139.1(b3) (2012). As such, the difference in the samples was acceptable, with the lower being used in the charge.
Davis was the only witness to testify and Defendant presented no evidence. At the charge conference, Defendant objected to the trial court charging the jury in accordance with two provisions of the North Carolina Pattern Jury Instructions for DWI, which state (1) “a relevant time is any time after the driving that the driver still has in the body alcohol consumed before or during the driving,” and (2) “[t]he results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration .” N.C.P.I.—Crim. § 207–20A (2011). Defendant also requested the following modification to the pattern instruction:
The state has introduced evidence that the defendant submitted to chemical analysis of his breath and that the results of that chemical analysis were 0.09. This is some evidence that the defendant had an alcohol concentration of 0.09 at some relevant time after the driving, however, this evidence is not conclusive and does not create any presumption as to the defendant's alcohol concentration, and you may believe that this evidence supports the state's position that the defendant had an alcohol concentration greater than 0.08 grams of alcohol per 210 liters of breath at a relevant time after the driving or you may believe this evidence does not support the state's contention that the defendant had an alcohol concentration of 0.08 grams of alcohol per 210 liters of breath at a relevant time after the driving. The facts of this case are ultimately yours to decide and you may believe or reject some or all of the evidence presented, including the evidence of the chemical analysis presented in this case.
The trial court declined to give the requested instruction, finding the pattern instruction sufficient to inform the jury on the particular issue. The jury found Defendant guilty of DWI, and the court entered judgment accordingly.
Standard of Review
A “[d]efendant's tender of proposed jury instructions and the trial court's refusal to submit these to the jury suffice[ ] to preserve the issue for appeal [.]” State v. West, 146 N.C.App. 741, 743, 554 S.E.2d 837, 839 (2001); see alsoN.C.R.App. P. 10(a)(2).
If a requested instruction is correct in law and supported by the evidence, the court, while not required to parrot the instructions or to become a mere judicial phonograph for recording the exact and identical words of counsel, must charge the jury in substantial conformity to the prayer. Whether the trial court instructs using the exact language requested by counsel is a matter within its discretion and will not be overturned absent a showing of abuse of discretion.
State v. Herring, 322 N.C. 733, 742, 370 S.E.2d 363, 369 (1988) (citations and quotation marks omitted). “In order for [a] defendant to show error, he must show that the requested instructions were not given in substance [.]” State v. Garvick, 98 N.C.App. 556, 568, 392 S.E.2d 115, 122 (1989), disc. rev. denied, 327 N.C. 142, 394 S.E.2d 182,affirmed per curiam,327 N.C. 627, 398 S.E.2d 330 (1990) (citation omitted). In addition, “the defendant bears the burden, when challenging a jury instruction, to show that a different result would have been reached had the requested instruction been given, or at least that the jury was misled or misinformed.” State v. Williams, 95 N.C.App. 627, 630, 383 S.E.2d 456, 458 (1989). Further, “[i]t is well settled in this jurisdiction that in determining the propriety of the trial judge's charge to the jury, the reviewing court must consider the instructions in their entirety, and not in detached fragments.” State v. Wright, 302 N.C. 122, 127, 273 S.E.2d 699, 703 (1981).
Discussion
On appeal, Defendant brings forward four arguments: (1) that the trial court erred by denying Defendant's request for a special instruction; (2) that the trial court erred by defining “relevant time” in its jury instruction; (3) that the trial court erred by instructing the jury that the results of a chemical analysis are deemed sufficient to prove a person's alcohol concentration; and (4) that the trial court's instruction, taken as a whole and without Defendant's requested instruction, violated Defendant's rights to due process of law and trial by jury. Because arguments two, three, and four are related, we address them together.
Denial of Request for Special Instructions
Defendant argues the trial court's denial of his requested special instruction was error. Specifically, Defendant argues that because evidence of Defendant's impairment while driving was weak, the requested instruction should have been given. We are not persuaded.
Our Supreme Court “encourage[s] the trial court[s] to utilize the pattern jury instructions given the danger of distraction and prejudice and the desirability of uniform jury instructions for all trials, despite the unique features of each.” State v. Morgan, 359 N.C. 131, 169, 604 S.E.2d 886, 909 (2004) (quotation marks, brackets, and citation omitted). Appellate courts “presume that jurors pay close attention to the particular language of the judge's instructions in a criminal case and that they undertake to understand, comprehend, and follow the instructions as given.” State v. Nicholson, 355 N.C. 1, 60, 558 S.E.2d 109, 148,cert. denied,537 U.S. 845, 154 L.Ed.2d 71 (2002) (quotation marks and citation omitted).
In Garvick, the defendant appealed the trial court's denial of his requested instruction related to the chemical analysis. 98 N .C.App. at 567, 392 S.E.2d at 122. The requested instruction stated: “[N]o legal presumption attaches to the results of a [chemical analysis]. You, members of the jury, are still at liberty to acquit the defendant if you find that his alcohol concentration was not proven to be [0.08] or more ... beyond a reasonable doubt.” Id. This Court found the trial court's pattern instruction—“that [the jury] must be convinced beyond a reasonable doubt that the defendant had an alcohol concentration of [0.08] or more”—gave the defendant's request in substance. Id. at 568, 392 S.E.2d at 122.
Here, Defendant contends his behavior 90 minutes before the chemical analysis was that of a sober person because he politely complied with all of Davis's instructions and performed well on the “great majority” of tests and observations used to assess impairment. Defendant cites Davis's testimony that an individual's alcohol concentration “begins, rises, levels off, and then decreases” in support of his assertion that his blood alcohol concentration could have risen and been higher at the intake center than it had been when he was stopped.
Thus, Defendant argues that “it was incumbent upon the trial court to instruct the jury [that] it was free to accept or reject the evidence of the chemical analysis[.]” Our review of the transcript reveals that the court instructed the jury using North Carolina Pattern Jury Instructions § 207–20A, which emphasizes the jury's role as sole judge of the weight and credibility of all of the evidence. In pertinent part, the jury was told:
It is now your duty to decide from the evidence what the facts are.
...
You must decide for yourselves whether to believe the testimony of any witness.
...
You're the sole judges of the weight to be given any evidence.
...
For you to find [D]efendant guilty of this offense, the State must prove [,] .... that [D]efendant has consumed sufficient alcohol that at any relevant time after the driving defendant had an alcohol concentration of .08 or more[.]
The court also instructed the jury that the State had the burden of proving Defendant guilty beyond a reasonable doubt, defined reasonable doubt, and that it could believe “all or any part or none” of the evidence. Because the chemical analysis in question was one piece of evidence before the jury, we conclude that the jury was instructed in substantial conformity with Defendant's requested instruction. Accordingly, we find no error.
In response to Defendant's argument concerning his behavior at the time he was stopped, we offer a clarification. Section 20–138.1(a) provides that a person commits the offense of DWI (i) “[w]hile [driving] under the influence of an impairing substance” or (ii) driving “[a]fter having consumed sufficient alcohol that he has, at any relevant time after driving, an alcohol concentration of 0.08 or more.” N.C. Gen.Stat. § 20–138.1(a) (2012). “[T]he acts of driving while under the influence of an impairing substance and driving with an alcohol concentration of [0.08] are two separate, independent and distinct ways by which one can commit the single offense of [DWI].” State v. Coker, 312 N.C. 432, 440, 323 S.E.2d 343, 349 (1984) (emphasis in original). Defendant's argument conflates the two acts by which a person can commit the single offense. The second prong does not require a defendant's alcohol concentration to be 0.08 or more while the defendant is driving, only 0.08 or more at a relevant time after driving.
Preservation Issues
Defendant also argues that the trial court's instruction violated his right to due process of law and trial by jury because it served to tell the jury that two elements of the offense had already been proven. Specifically, Defendant assigns error to (1) the definition of “relevant time” as “any time after the driving that the driver still has in the body alcohol consumed before or during the driving” and (2) the portion of the instruction stating that “[t]he results of a chemical analysis are deemed sufficient to prove a person's alcohol concentration.”
Although conceding that our State's appellate courts have already rejected both arguments in previous cases, Defendant asks this Court to reconsider these decisions. This we cannot do. “Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.” In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
In State v. Rose, our Supreme Court declared the provision defining “relevant time” constitutional:
If the legislature can constitutionally proscribe driving after the consumption of any alcohol, it follows that this aspect of [the] defendant's attack on subsection (a)(2) must be rejected. A person whose blood-alcohol concentration, as a result of alcohol consumed before or during driving, was at some time after driving [0.08] or greater must have had some amount of alcohol in his system at the time he drove. The legislature has decreed that this amount, whatever it might have been, is enough to constitute an offense. This it may constitutionally do.
312 N.C. 441, 447, 323 S.E.2d 339, 343 (1984).
In State v. Narron, this Court determined that the portion of the instruction stating that “[t]he results of a chemical analysis are deemed sufficient to prove a person's alcohol concentration” does not create an unconstitutional mandatory presumption in violation of due process:
[T]he statute simply authorizes the jury to find that the report is what it purports to be—the results of a chemical analysis showing the defendant's alcohol concentration. This is the definition of prima facie evidence of an element of any criminal offense or civil cause of action—that the jury may find it adequate proof of a fact at issue.
193 N.C.App. 76, 84, 666 S.E.2d 860, 866 (2008). “[O]nce it is determined that the chemical analysis of the defendant's breath was valid, then a reading of 0.08 constitutes reliable evidence and is sufficient to satisfy the State's burden of proof as to this element of the offense of DWI.” Id. at 84, 666 S.E.2d at 865 (quotation marks, brackets, and citation omitted).
Because no higher court has overturned Rose or Narron, we are bound by those decisions and Defendant's arguments are overruled. See In re Appeal from Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37. For the reasons set forth above, we find
NO ERROR. Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).