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State v. Peace

Court of Appeals of North Carolina

November 21, 2017

STATE OF NORTH CAROLINA,
v.
BERTYLAR PEACE, JR., Defendant.

          Heard in the Court of Appeals 10 August 2017.

         Appeal by defendant from judgment entered 21 July 2016 by Judge Henry W. Hight, Jr. in Granville County Superior Court, No. 13CRS050782.

          Attorney General Joshua H. Stein, by Assistant Attorney General Christine Wright, for the State.

          Irons & Irons, PA, by Ben G. Irons II, for defendant-appellant.

          BERGER, Judge.

         Bertylar Peace, Jr. ("Defendant") was charged with driving while impaired on April 18, 2013. Defendant appealed to Superior Court where a Granville County jury found him guilty of driving while impaired on July 20, 2016. Defendant alleges his trial counsel provided ineffective assistance by failing to raise the statute of limitations as an affirmative defense, and further contends that the prosecutor made improper statements during closing argument that would entitle him to a new trial. As to both, we disagree.

         Factual & Procedural Background

         On April 18, 2013, Detective Brian Carey with the Oxford Police Department observed a GMC pickup truck fail to stop at a stop sign at the intersection of Henderson and Hunt Streets. After making a left onto Henderson Street, the vehicle was observed exiting the roadway. Detective Carey followed the vehicle for approximately one-half mile. After Defendant's vehicle crossed the center line and veered back off the road, Detective Carey initiated a traffic stop.

         As Detective Carey approached the GMC pickup truck, Defendant was exiting the driver's side door. He stumbled towards the officer and attempted to steady himself by grabbing the bed of the truck. Detective Carey instructed Defendant to get back into the vehicle, but Defendant refused to comply.

         Detective Carey asked Defendant to produce his license and registration. Defendant sifted through various cards, but was unable to locate his driver's license. Detective Carey witnessed him pass his license in the stack of cards at least four times, and ultimately had to identify the license for Defendant. Defendant indicated he did not have a registration card for the vehicle.

         While interacting with Defendant, Detective Carey observed that Defendant's speech was slurred, he was swaying, and unable to keep his eyes open. Detective Carey asked Defendant if he had anything to drink, and Defendant admitted he had consumed alcohol "approximately five hours" prior to the stop. Detective Carey observed a pint of Seagram's Gin in the front seat of Defendant's vehicle that was nearly empty. Defendant was not asked to perform field sobriety tests because "he was so unstable on his feet, [Detective Carey] felt that it would be unsafe[.]"

         A preliminary breath test administered to Defendant at the scene was positive for alcohol. However, the trial court struck this testimony after it was determined that the preliminary breath test was improperly administered. Defendant requested, and the trial court instructed the jury, that

Detective Brian Carey testified as to the administration and results of a preliminary breath test or P-B-T that was administered to Bertylar Peace on April 18, 2013. The Court instructs you that Detective Carey did not administer the P-B-T properly. I instruct you that you are to disregard all the testimony you've heard relating to the administration and-or results of any P-B-T test to Mr. Peace on April the 18th, 2013, and that evidence should have no bearing whatsoever on your consideration and determination of the facts in this case.

         Defendant was arrested and transported to the Oxford Police Department for a separate breath test. Defendant informed Officer Alice Judkins that he would not provide a breath sample for the test, and the testing sheet was marked as a refusal. However, both Detective Carey and Officer Judkins testified that, in their opinion, Defendant had consumed a ...


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