State v. Allen

188 S.E.2d 568 (1972) 14 N.C. App. 485

STATE of North Carolina
v.
Bruce Lee ALLEN (Case No. 71CR832), Bruce Lee Allen (Case No. 71CR833), and Walter Allen, Jr. (Case No. 71CR834).

No. 721SC162.

Court of Appeals of North Carolina.

May 24, 1972.

Atty. Gen. Robert Morgan by Asst. Attys. Gen. James E. Magner and Claude W. Harris for the State.

John T. Chaffin, Elizabeth City, for defendant appellants.

CAMPBELL, Judge.

At the trial the court asked a number of questions of the State's witnesses. Defendants assign as error these questions contending that they conveyed the impression that the court had an opinion and was expressing that opinion in violation of G.S. § 1-180.

Our examination of the record reveals that the questions asked by the trial court were for the purpose of clarification. We cannot perceive any expression of opinion in these questions. Defendants do not show us how the questions could have expressed an opinion nor do they show us how they were prejudiced by the trial court's questions.

It is sometimes necessary for a trial judge to question a witness, and such questions are proper so long as they are asked with care and in a manner which avoids prejudice to either party. State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968). The questions by the judge did not indicate an opinion nor did they prejudice the defendants. They served only to clarify the evidence and were therefore proper. State v. Carter, 233 N.C. 581, 65 S.E.2d 9 (1951).

Defendants also contend that the court erred in permitting the State to ask its witness leading questions. The questions to which exception was taken were for the purpose of eliciting elaboration about matters already mentioned. The questions did not suggest an answer. The court has discretionary power to permit leading questions to be asked and there will be no review of the court's ruling unless an abuse of discretion appears. State v. Hairston and State v. Howard and State v. McIntyre, 280 N.C. 220, 185 S.E.2d 633 (1972). There was no abuse of discretion in this case. This assignment of error is overruled.

Defendant Bruce Lee Allen next contends that it was error to admit the results of a breathalyzer test given him shortly after his arrest. Defendant contends that he was not informed of his right to refuse to take the breathalyzer test and therefore the results of the test should not have been admitted. Defendant also contends that the court erred in permitting the officer who administered the breathalyzer test to testify that the ampules used in the breathalyzer had been tested by the S.B.I. It is contended that this testimony was hearsay.

Defendants' first argument is without merit. Under our statutes anyone who operates a motor vehicle upon the highways of the State is deemed to have given consent to a breathalyzer test. G.S. § 20-16.2. This Court has held that under this statute failure to advise a defendant of his right to refuse the breathalyzer test does not render the results of the test inadmissible in court. State v. McCabe, 1 N.C.App. 237, 161 S.E.2d 42 (1968).

Defendants' next assignment of error is to certain testimony by the officer who administered the breathalyzer test. The officer testified that ampules containing an alcohol sensitive solution were used in the breathalyzer. The following questions were then put to the witness by the solicitor and the court:

"Q. Do you know whether or not they are tested at any time after they leave the manufacturer?

A. Yes, sir, they are tested.

Q. Where?

A. By the SBI laboratory.

OBJECTION by Mr. Chaffin

BY THE COURT: Yes, do you know of your own knowledge?

A. I have a copy of the analysis, they are numbered, the batch; the ampules are numbered and a certain batch of these are sent in to the SBI laboratory and I have an analysis of it."

Defendant contends that the testimony as to where the ampules were tested was hearsay.

Evidence, oral or written, is called hearsay when its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to be produced. Stansbury, N.C.Evidence, 2d Ed., § 138. Hearsay evidence is not admissible, unless it falls within one of the many exceptions to the hearsay rule.

The witness in this case had no firsthand knowledge of any tests run by the S.B.I. laboratory and the report to which he referred was itself hearsay. We conclude that the testimony was in fact hearsay and should not have been admitted. Reversal will not, however, be granted for mere harmless error in the admission of evidence. In this case there was extensive testimony on both the procedure for administering the breathalyzer test and on the operator's test of the equipment. The defendant could not have been prejudiced in any way by the admission of this testimony. Defendant has failed to show prejudicial error and the ruling of the lower court will not be disturbed.

The defendant next assigns as error the court's charge to the jury on intoxication. We have examined this portion of the charge and find that the trial court gave full and proper instructions to the jury on this question. This assignment of error is overruled.

The defendants next assign as error the denial of their motions for nonsuit as to each charge. An examination of the record reveals that there was sufficient evidence to go to the jury on the charge against Bruce Lee Allen of driving under the influence of intoxicating liquor. The arresting officer stated that Bruce Lee Allen walked with a weave, had a strong odor of alcohol about him and was obviously intoxicated. The breathalyzer test indicated a blood alcohol content of .16 per cent and a content of .10 per cent creates a presumption of intoxication. This evidence, when viewed in the light most favorable to the State, as it must be in ruling on a motion for nonsuit, was sufficient to go to the jury. The court was correct in denying defendant Bruce Lee Allen's motion for nonsuit on the charge of driving under the influence of intoxicating liquor.

A review of the evidence against Bruce Lee Allen on the charge of assaulting an officer leads us to the conclusion that there is a fatal variance between the allegations in the indictment and the evidence. The indictment charges Bruce Lee Allen with assaulting a public officer, "while such officer was discharging and attempting to discharge a duty of his office, to wit: arresting the said Bruce Lee Allen for the offense of driving a motor vehicle while under the influence of intoxicating liquor. . . ." All the evidence, however, was to the effect that Bruce Lee Allen had been arrested some fifteen minutes earlier. He submitted to the arrest and offered no resistance. Bruce Lee Allen did nothing to interfere with the officer until the officer attempted to arrest Walter Allen and an altercation developed between the officer and Walter Allen. Thus, the alleged assault was committed while the officer was attempting to arrest Walter Allen, not while the officer was attempting to arrest Bruce Lee Allen. The State's evidence did not establish the defendant's guilt as charged. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969). State v. Kimball, 261 N.C. 582, 135 S.E.2d 568 (1964). The defendant Bruce Lee Allen's motion for nonsuit should have been allowed as to this charge.

Defendant Walter Allen also moved for a nonsuit at the conclusion of the State's evidence. The indictment against Walter Allen charges him with resisting, delaying and obstructing a public officer while the officer was attempting to arrest Bruce Lee Allen and with assault on a public officer while the officer was attempting to arrest Bruce Lee Allen.

The evidence produced at the trial is that Walter Allen protested that the liquor seized by the officer was his and that the officer had no right to take it. Walter Allen followed the officer back to the patrol car insisting that the officer return the liquor. He made no attempt to interfere with the officer and did not threaten to do so. There was no threat of physical violence. Walter Allen offered no resistance to the officer until he was placed under arrest.

The question is whether Walter Allen's actions up until the time of his arrest constituted the offense of resisting, delaying and obstructing an officer and thereby gave the officer cause to arrest Walter Allen. We hold that they did not.

"[M]erely remonstrating with an officer in behalf of another, or criticizing an officer while he is performing his duty, does not amount to obstructing, hindering, or interfering with an officer; . . .

". . . Vague, intemperate language used without apparent purpose. . . is not sufficient. . . . " 58 Am.Jur.2d, Obstructing Justice, §§ 12 and 13, pp. 863, 864.

The Supreme Court of the United States has said that:

"Although force or threatened force is not always an indispensable ingredient of the offense of interfering with an officer in the discharge of his duties, mere remonstrances or even criticisms of an officer are not usually held to be the equivalent of unlawful interference. . . ." District of Columbia v. Little, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599.

Walter Allen was merely arguing with the officer and protesting the confiscation of his liquor. He had committed no offense and the officer had no authority to arrest him.

The assault alleged in count two of the indictment did not occur until the officer placed his hand on Walter Allen and arrested him. It is contended that since the arrest was illegal, the defendant had a right to resist the arrest.

We have held that the initial arrest was illegal. It is well established that every person has the right to resist an unlawful arrest and he may use such force as reasonably appears to be necessary to prevent the unlawful arrest. State v. Mobley, 240 N.C. 476, 83 S.E.2d 100 (1954). See also 5 Am.Jur.2d, Arrest, § 94. The evidence is that when the officer "took hold" of Walter Allen, Walter grabbed the officer's shirt pocket. The officer slapped Walter Allen who was then subdued by another officer. This is clearly not an unreasonable amount of force to use in resisting the unlawful arrest. It did not exceed that force which appeared to be necessary to resist the restraint. We conclude that Walter Allen was exercising his lawful right to resist an illegal arrest when the affray, out of which these charges arose, occurred.

The motion for nonsuit should have been allowed as to both counts in the indictment against Walter Allen.

Defendants have also assigned as error portions of the charge relating to resisting arrest and assault on an officer. In view of our holding above, it is not necessary to reach these questions.

For the reasons set forth above, the judgment of the court below is

Affirmed on Indictment No. 832, Case No. 71CR832 (Bruce Lee Allen).

Reversed on Indictments Nos. 833 and 834, Cases Nos. 71CR833 and 71CR834 (Bruce Lee Allen) and (Walter Allen, Jr.).

MALLARD, C. J., and BROCK, J., concur.