in the Court of Appeals 10 August 2017.
by defendant from judgment entered 21 July 2016 by Judge
Henry W. Hight, Jr. in Granville County Superior Court, No.
Attorney General Joshua H. Stein, by Assistant Attorney
General Christine Wright, for the State.
& Irons, PA, by Ben G. Irons II, for defendant-appellant.
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.
& Procedural Background
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.
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.
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.
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[.]"
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,
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.
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 ...