State v. King

171 S.E.2d 33 (1969) 6 N.C. App. 702

STATE of North Carolina
v.
James T. KING.

No. 6915SC516.

Court of Appeals of North Carolina.

December 17, 1969.

Atty. Gen., Robert Morgan and Staff Attorney T. Buie Costen, Raleigh, for the State.

Hampton, Comer & Harrelson by Wallace C. Harrelson, Greensboro, for defendant appellant.

CAMPBELL, Judge.

The defendant makes four contentions wherein error was committed in the trial.

The defendant contends that his motion for judgment as of nonsuit should have been sustained for that there was insufficient competent evidence to sustain a conviction. There is no merit in this contention. The evidence on behalf of the State when considered in the light most favorable to the State was ample and sufficient to sustain a conviction. There was raised a dispute of facts for the jury, and the jury decided these against the defendant.

The defendant next contends that the trial court committed error in the charge to the jury in that the court expressed an opinion in violation of G.S. § 1-180. There is no merit in this contention. The trial court correctly instructed the jury as to the pertinent law and applied the same to the evidence in order to give a satisfactory explanation. The trial judge gave the respective contentions of both the State and the defendant and in doing so clearly designated the same as contentions. The defendant at no time objected to the statement of such contentions at the time they were given by the trial judge. The following rule would be applicable:

"There are in the record many exceptions lodged to the contentions by the State given in his Honor's charge and these exceptions are preserved in the assignments of error, and some of them are set out in the appellant's brief, but in no instance did the defendant object to the statement of such contentions at the time they were given, and objections thereto for the first time being made upon appeal in this Court would seem to be untenable." State v. Baldwin, 226 N.C. 295, 37 S.E.2d 898 (1946).

The third contention of the defendant is to the effect that the trial court committed error in permitting the introduction in evidence of the results of the breathalyzer test. The defendant asserts that Officer Woodruff who gave the breathalyzer test to the defendant was not shown to be a qualified person to give such test. The defendant relies upon the case of State v. Mobley, 273 N.C. 471, 160 S.E.2d 334 (1968). The instant case is readily distinguishable from the Mobley case. In the Mobley case it was held that the evidence was entirely too meager to show the qualifications of the person making the test. In the instant case the evidence reveals that Officer Woodruff had received 68 hours of instruction for the breathalyzer machine and that he was licensed by the North Carolina State Board of Health to administer the test, and a copy of the license to do so was introduced in evidence. The relevant statute provides:

"* * * The State Board of Health is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the State Board of Health * * *." G.S. § 20-139.1 (b).

We are of the opinion that a person holding a valid permit issued by the State Board of Health is qualified to administer a breathalyzer test. When such permit is introduced in evidence, the permittee is competent to testify as to the results of the test.

The fourth contention made by the defendant is that there was error in admitting the testimony of the arresting Officer, Oakley, when the defendant had not been sufficiently warned and advised as to his constitutional rights to remain silent. The defendant relies upon the case of State v. Thorpe, 274 N.C. 457, 164 S.E.2d 171 (1968). The Thorpe case is readily distinguishable from the instant case.

In the Thorpe case the defendant was a "dull, retarded, uneducated indigent" 20 years of age who had not even completed the third grade in school. As a result of questioning the defendant, many incriminating statements were procured by the officers. In the instant case the defendant was an educated schoolteacher who was not an indigent and who made no incriminating statements, but to the contrary at all times denied that he was under the influence of any intoxicating beverages. Before admitting any statements of the defendant in the instant case the trial judge conducted a voir dire examination and entered an order finding the facts based upon competent evidence, and the findings made by the trial judge supported his conclusion that the statements made by the defendant were "freely, voluntarily, knowingly and intelligently made."

We think the statements made by the defendant to Officer Oakley were competent. State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966).

The defendant had a fair and impartial trial free from any prejudicial error in law. The jury as the trier of the facts found the facts to be contrary to the contentions of the defendant. We find in law

No Error.

PARKER and GRAHAM, JJ., concur.