State v. Marino

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NO. COA12-1422 NORTH CAROLINA COURT OF APPEALS Filed: 20 August 2013 STATE OF NORTH CAROLINA v. Moore County No. 09 CRS 51150 JORY JOSEPH MARINO Appeal by defendant from judgment entered 18 May 2012 and order entered 24 July 2012 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 24 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. The Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr., for defendant appellant. McCULLOUGH, Judge. Jory Joseph Marino ( defendant ) appeals from convictions for impaired driving ( DWI ) and speeding. his For the following reasons, we find no error. I. Background On the evening of 21 March 2009, at approximately 10:40 p.m., Officer Robbie Moore ( Officer Moore ), at that time a patrol officer with the Pinehurst Police Department ( PPD ), -2stopped defendant on Morganton Road in Pinehurst, North Carolina, after clocking him speeding 52 m.p.h. in a 35 m.p.h. zone. Defendant and his wife were in the vehicle. As Officer Moore approached the vehicle, defendant, who was driving, rolled his window down. to ask Officer Moore testified he was initially going defendant to move his car further off the road but changed his mind when he noticed the smell of alcohol coming from the vehicle. When Officer Moore informed defendant that he was speeding, defendant disputed the allegation stating, I wasn't speeding. I could have swore I was only going 35 or 36 miles per hour." Officer Moore testified that defendant s speech was slightly slurred and his face seemed flushed. Due to the smell of alcohol, combined with defendant s slurred speech and flushed face, Officer Moore became concerned about the possibility of impaired driving and inquired into whether defendant had had anything to drink. Defendant initially denied having performed a anything quick to version drink; yet, of horizontal the after Officer gaze Moore nystagmus ( HGN ) test, and two preliminary breath tests indicated the presence of alcohol, defendant admitted that he may have had a couple of drinks with dinner. -3Officer Moore then asked defendant to exit the vehicle to perform several standardized field sobriety tests. wife remained inside the vehicle. Defendant s Officer Moore indicated that, once defendant exited the vehicle and the two were face-to-face, he could smell alcohol coming from defendant s mouth. Officer Moore administered three separate field sobriety tests; an HGN test, a walk-and-turn test, and a one-leg stand test. Officer Moore testified that each test revealed numerous indicators given an that defendant additional was impaired. preliminary breath Defendant test which, prior breath tests, indicated the presence of alcohol. the totality of his observations, Officer Moore opinion that defendant was impaired by alcohol. was then like the Based on formed the As a result, Officer Moore placed defendant under arrest and transported him to the PPD. At Defendant s wife followed behind them. approximately 11:30 p.m., with his wife present, defendant consented to a chemical analysis breath test on the Intoximeter first and EC/IR II second ( Intoximeter ) breath at samples the PPD. Defendant s registered alcohol concentrations of .11 and .10 grams of alcohol per 210 liters of breath, respectively. A citation defendant with DWI and speeding. was then issued charging Officer Moore continued to -4believe that defendant was impaired by alcohol throughout the testing of defendant s breath. Defendant s citation originally came on for trial in Moore County District Court. Upon entry of a guilty judgment defendant appealed to Moore County Superior Court. On 29 June 2010, defendant filed a motion for Brady material and a request for disclosure, objection to affidavit, and motion in limine. Several days later on 2 July 2010, defendant filed an additional motion seeking an order finding materiality, relevance, software source code. and necessity of the Intoximeter The purpose of the 2 July 2010 motion was to facilitate the pretrial issuance of a subpoena to out-ofstate witnesses in order to procure the source code so that defendant could mount a challenge to the Intoximeter results. The State filed a response on 6 August 2010. Defendant s motions came on for hearing in Moore County Superior Court on 3 November 2010 before the Honorable James M. Webb ( Judge Webb ). By order filed 18 November 2010, the court ordered the State to provide defendant with all downloaded and non-downloaded data in its possession that was generated from [the] Intoximeter [used court, however, deferred to analyze ruling on defendant s the breath.] materiality of The the -5Intoximeter source code until defendant had had the opportunity to analyze the data produced by the State. On 11 February 2011, the State provided defendant with data from the Intoximeter used to analyze defendant s breath. Thereafter, following numerous hearings on issues of discovery, the trial court denied defendant s motion for an order finding the Intoximeter source code material in open court on 8 December 2011. Defendant s case came on for trial de novo in Moore County Superior Court on 14 May 2012, Judge Webb presiding. conclusion of the trial, the jury returned defendant guilty of DWI and speeding.1 verdicts At the finding Judgment was entered on defendant s DWI conviction on 18 May 2012 and defendant was sentenced to a term of suspended on condition 60 that days imprisonment; defendant complete the 12 term was months of notice of unsupervised probation and pay costs, fines, and fees. Defendant appealed to this Court. Following appeal, on 29 May 2012, defendant filed a Motion for Appropriate 1 The jury unanimously found defendant guilty of DWI on both of the following grounds: (1) defendant was under the influence of an impairing substance; and (2) defendant had consumed sufficient alcohol that at any relevant time after the driving defendant had an alcohol concentration of 0.08 or more grams of alcohol per 210 liters of breath. -6Relief ( MAR ) in Moore County Superior Court. Defendant s MAR was denied by order filed 24 July 2012. II. Analysis Improper Closing Argument Defendant s first argument on appeal is that portions of the State s Consequently, closing argument were defendant contends that grossly he was improper. denied a fundamentally fair trial and is entitled to a new trial. As our Supreme Court reiterated in State v. Jones, [a] lawyer s function during closing argument is to provide the jury with a summation of the evidence, which in turn serves to sharpen and clarify the issues for resolution by the trier of fact, and should be limited to relevant legal issues. 355 N.C. 117, 127, 558 S.E.2d 97, 103 (2002) (internal quotation marks and citations omitted). Thus, [d]uring a closing argument to the jury an attorney may not become abusive, inject his personal experiences, express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice. An attorney may, however, on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue. -7N.C. Gen. Stat. § 15A-1230(a) (2011). Furthermore, [i]n considering specific cases of improper argument, we acknowledge our oft-quoted refrain that counsel are given wide latitude in arguments to the jury and are permitted to argue the evidence that has been presented and all reasonable inferences that can be drawn from that evidence. Jones, 355 N.C. at 128, 558 S.E.2d at 105 (quoting State v. Richardson, 342 N.C. 772, 79293, 467 S.E.2d 685, 697 (1996)). In this case, defendant asserts that the failure of the trial court to intervene, ex mero motu, to address the grossly improper closing argument of the State constituted plain error and an abuse of discretion[.] At the outset, we note that defendant has muddled different standards of review. review is [T]his Court has stated that plain error appropriate only when the issue involves either errors in the trial judge's instructions to the jury or rulings on the admissibility of evidence. State v. Walters, 357 N.C. 68, 110, 588 S.E.2d 344, 369 (2003) (quoting State v. Cummings, 346 N.C. 291, 314, 488 S.E.2d 550, 563 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998)). for alleged errors in closing The standard of review arguments depends on whether there was a timely objection made or overruled, or whether no -8objection was made and defendant contends that the trial court should have intervened ex mero motu. State v. Chappelle, 193 N.C. App. 313, 325, 667 S.E.2d 327, 334 (2008) (quoting Walters, 357 N.C. at 101, 588 S.E.2d at 364). If there is an objection, this Court must determine whether the trial court abused its discretion by failing to sustain the objection. Walters, 357 N.C. at 101, 588 S.E.2d at 364 (quoting Jones, 355 N.C. at 131, 558 S.E.2d at 106). If there is no objection, this Court must determine if the argument was so grossly improper that the trial court erred in failing to intervene ex mero motu. Id. (quoting State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002)). In other words, the reviewing court must determine whether the argument in question strayed far enough from the parameters of propriety that the trial court, in order to protect the rights of the parties and the sanctity of the proceedings, should have intervened on its own accord and: (1) precluded other similar remarks from the offending attorney; and/or (2) instructed the jury to disregard the improper comments already made. Jones, 355 N.C. at 133, 558 S.E.2d at 107. In either case, in order for an improper closing argument to constitute reversible error, the prosecutor s prejudicial. remarks must be both Id. at 133, 558 S.E.2d at 107-08. improper and -9In this case, defendant contends that the State s closing argument as misstatement a whole of the reveals law, a opinion, pattern of speculation, mean-spiritedness, and prejudicial stereotyping[.] Additionally, defendant identifies specific remarks made during the State s closing argument that he alleges were improper because they (1) speculated that this was not the first time defendant had driven impaired, (2) were sarcastic and provoked a sense of class envy, (3) tended to shift the burden of proof to defendant, and defendant s witnesses were hypocrites and liars. (4) indicated As a result of the alleged improper arguments, defendant argues he was denied a fundamentally fair trial. As recognized by the State, defendant did not object to any of the remarks he now asserts were improper.2 Therefore, we review the State s closing argument for gross impropriety. 2 In his reply brief, defendant asserts that he did object to a portion of the State s closing argument and he should not be penalized for failing to offer further objections. A review of the record shows that defendant did in fact object to the State s comment, Don t call yourself an instructor if you don t know how to teach, and don t call yourself an instructor if you don t even know the topic of the subject matter. Just grab your check from [defendant] and head on out the courtroom. On appeal, however, defendant did not argue that the statement to which he objected was improper. We do not penalize defendant for failing to object; yet, we find defendant s single objection insufficient to serve as an objection to the remainder of the State s closing argument. -10After reviewing the entirety of the State s closing argument and considering the context in which the specifically challenged remarks were made, see State v. Call, 349 N.C. 382, 420, 508 S.E.2d 496, 519 (1998) ( [C]omments must be viewed in the context in which they were made and in light of the overall factual circumstances to which they referred. ), we hold that, although the State pushed the bounds of impropriety, its remarks during closing argument were not so grossly improper that the trial court erred in failing to intervene ex mero motu. Defendant received a fundamentally fair trial. Furthermore, even if a closing argument is grossly improper, the failure of the trial court to intervene ex mero motu does not necessarily constitute reversible error. [Our Supreme] Court has on numerous occasions found closing arguments to be outside the bounds of propriety, with varying consequences. For some violations those in which the defendant failed to object or that lacked a definitive showing of prejudice caused by the improper argument we have opted to warn or discipline the offending attorney in lieu of awarding a new trial. Jones, 355 N.C. at 129, 558 S.E.2d at 105. Assuming arguendo that the State s closing argument was improper in the present case, defendant has failed to make a definitive showing of -11prejudice to warrant a new trial. Thus, we simply warn the State.3 Intoximeter Source Code The second issue raised by defendant on appeal is whether the trial court erred in denying his motions to examine the Intoximeter source code. In support of his assertion that the trial court erred, defendant raises constitutional arguments. Defendant first contends that he is entitled to the Intoximeter source code pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963). Under Brady v. Maryland, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. State v. Cornett, 177 N.C. App. 452, 456, 629 S.E.2d 857, 859 (2006) (quoting Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218) (emphasis added). As the Supreme Court has further explained: 3 Without raising it as a separate issue on appeal, defendant asserts several times in his argument that, to the extent his counsel failed to object at trial, he received ineffective assistance of counsel. We dismiss this argument as defendant has not demonstrated a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286, cert. denied, 549 U.S. 867, 166 L. Ed. 2d 116 (2006). -12The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial[.] U.S. v. Bagley, 473 U.S. 667, 675, 87 L. Ed. 2d 481, 489-90 (1985). However, in United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342 (1976), the United States Supreme Court rejected the idea that every nondisclosure automatically constitutes reversible error and held that prejudicial error must be determined by examining the materiality of the evidence. State v. Tirado, 358 N.C. 551, 589, 599 S.E.2d 515, 540 (2004) (quoting State v. Howard, 334 N.C. 602, 605, 433 S.E.2d 742, 744 (1993)). The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Bagley, 473 U.S. at 682, 87 L. Ed. 2d at 494. Defendant bears the burden of showing materiality. Tirado, 358 N.C. at 589-90, 599 S.E.2d at 541. The mere possibility that an item of undisclosed information might have helped the defense, -13or might have affected the outcome of the trial, does not establish materiality in the constitutional sense. U.S. v. Agurs, 427 U.S. at 109 10, 49 L. Ed. 2d at 353. In the Intoximeter present source case, code to defendant be has favorable material either to guilt or to punishment. seeks to examine exculpatory Where in defendant the nature has source or code will failed not in lead to to show his the case or Instead, defendant hopes to shown that it exculpatory discrepancies will be material. in the Intoximeter results, the materiality of the Intoximeter source code is speculative at best. Additionally, where the jury found defendant guilty of impaired driving under both N.C. Gen. Stat. § 20-138.1(a)(1) and (2), defendant has not shown a reasonable possibility that disclosure of the Intoximeter source code would have affected the outcome. Accordingly, we hold the trial court did not err in denying defendant source code under Brady v. Maryland. access to the Intoximeter Information that is only potentially beneficial to a defendant is not Brady material.4 4 Other jurisdictions have held likewise in cases addressing similar issues under their respective state laws. See State v. Bastos, 33 Fla. L. Weekly D1541, 985 So. 2d 37 (Fla. 3d DCA 2008); State v. Bernini, 222 Ariz. 607, 218 P.3d 1064 (Ariz. Ct. App. 2009). We find those cases instructive. -14Defendant s second constitutional argument is that the trial court s denial of his request to examine the Intoximeter source code confront is a those violation bearing of his testimony Sixth against Amendment him. right to Specifically, defendant contends that examination of the source code could have assisted him in exercising his right to confront his primary accuser, the Intoximeter. The United Confrontation States Clause Constitution in the provides Sixth that, Amendment [i]n all to the criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. Washington, the Supreme Court interpreted In the Crawford v. Confrontation Clause to grant a defendant the right to confront and crossexamine those witnesses that bear testimony against him. U.S. 36, 51, 158 L. Ed. 2d 177, 192 (2004). emphasized that the testimony, but also right to extends not out-of-court The Court further only Massachusetts, the to statements testimonial in nature and introduced at trial. 158 L. Ed. 2d at 192. 541 in-court that are Id. at 50-51, Following Crawford, in Melendez-Diaz v. Supreme Court extended the confrontation rights to grant a defendant the right to confront and crossexamine those individuals involved in the production of -15testimonial documents to be introduced at trial, such as the technician operating the Intoximeter in the present case. 557 U.S. 305, 310-11, 174 L. Ed. 2d 314, 321-22 (2009). As applied to this case, neither Crawford nor Melendez-Diaz stands for the proposition that defendant has a right under the Sixth Amendment to examine the Intoximeter source code. Nevertheless, defendant argues that extending the holdings in Crawford and Melendez-Diaz to allow examination of the Intoximeter source code is the next logical step in the line of confrontation extend cases. Crawford and We decline Melendez-Diaz defendant s and hold invitation defendant s to Sixth Amendment right has not been infringed. N.C. Gen. Stat. § 15A-901 In addition to discovery issues concerning the Intoximeter source code, both defendant and the State request that this Court address the more general issue concerning a defendant s right to discovery when a misdemeanor conviction is appealed for trial de novo in superior court. At the outset, we recognize that, [w]ith the exception of evidence falling within the realm of the Brady rule, . . . there is no general right to discovery in criminal cases under the United States Constitution[.] State v. Cunningham, 108 N.C. -16App. 185, 195, 423 S.E.2d 802, 808 (1992) (citation omitted). Thus, a defendant s right to discovery beyond the scope of Brady is purely statutory. Pursuant to N.C. Gen. Stat. § 15A-901, et. seq., a defendant has a right to statutory discovery only in cases within the original jurisdiction of the superior court. N.C. Gen. Stat. § 15A-901 (2011). Thus, as stated in State v. Cornett, [i]n North Carolina, no statutory right to discovery exists for criminal cases originating in district court. 177 N.C. App. 452, 455, 629 S.E.2d 857, 859 (2006). In the present case, jurisdiction over Consequently, defendant the district defendant s had no court statutory original DWI misdemeanor had charge. to pretrial right discovery. Defendant now asserts on appeal that N.C. Gen. Stat. § 15A901 violates the Sixth, Eighth, and Fourteenth Amendments. Specifically, defendant contends the statute is arbitrary and a violation of due process. We disagree. As noted above, there is no constitutional right to discovery beyond the realm of Brady not material. [T]hus a state does violate the Due Process Clause of the Federal Constitution when it fails to grant pretrial disclosure of material relevant to defense -17preparation but not exculpatory. Cunningham, 108 N.C. App. at 195, 423 S.E.2d at 808. In short, when a defendant s misdemeanor charge is within the original jurisdiction of the district court, the defendant is not entitled to statutory discovery but is, nonetheless, constitutionally entitled to discovery of Brady material. In addition to defendant arguing the constitutionality of N.C. Gen. Stat. § 15A-901 on appeal, the State requests that we hold the trial court exceeded its authority under statute and erroneously granted discovery in its 18 November 2010 order. Upon review of the record, it appears the trial court ordered the State to produce the data from the Intoximeter in order to allow defendant a chance to prove the source code was material Brady information. Where the State voluntarily complied with the 18 November 2010 order, we will not hold that the trial court exceeded its authority. Motion for Appropriate Relief During defendant s trial, a factual issue arose as to whether Sergeant Paul Leroy of the PPD responded to the scene of the stop as backup to Officer Moore Officer Moore testifying that Sergeant Leroy was present and defendant s wife testifying -18Officer Moore was the only officer present. Neither party, however, called Sergeant Leroy to testify at trial. Following imposition of judgment, defendant filed an MAR pursuant to N.C. Gen. Stat. § 15A-1414(b)(3). In the MAR defendant contended that, in violation of due process, he did not receive a fair and impartial trial because Officer Moore falsely testified that Sergeant Leroy provided backup during the stop. In support of his MAR, defendant attached affidavits of his counsel and Sergeant Leroy. Without an evidentiary hearing, the superior court denied defendant s MAR by order filed 24 July 2012. In the order, the court found [t]hat the conflicting testimony as to whether or not Sgt. Leroy was at the scene of the stop was a question of fact for the jury to determine and further it was in the jury s discretion to determine the importance of that evidence in light of all other believable evidence in the case. Now on appeal, defendant s final argument is that the trial court erred in denying his MAR without an evidentiary hearing. When considering rulings on motions for appropriate relief, we review the trial court s order to determine whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the -19conclusions court. of law support the order entered by the trial State v. Frogge, 359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (quoting State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982)). However, [i]f the issues raised by Defendant's challenge to [the trial court's] decision to deny his motion for appropriate relief are primarily legal rather than factual in nature, we will essentially use a de novo standard of review in evaluating Defendant's challenges to [the court's] order. State v. Jackson, ___ N.C. App. ___, ___, 727 S.E.2d 322, 329 (2012) (quoting State v. Taylor, ___ N.C. App. ___, ___, 713 S.E.2d 82, 86, disc. review denied, 365 N.C. 342, 717 S.E.2d 558 (2011)) (alterations in original). Whether the trial evidentiary court hearing is was required primarily a to afford question of defendant law an subject to de novo review. Citing N.C. Gen. Stat. § 15A-1420(c)(1) and State v. McHone, 348 N.C. 254, 258, 499 S.E.2d 761, 763 (1998), defendant argues that it is clearly established that a defendant who files an MAR is entitled to disputed issues of fact. an evidentiary hearing to determine We disagree. N.C. Gen. Stat. § 15A-1420(c) governs hearings on an MAR. As stated in McHone, -20[u]nder subsection (c)(4), read in pari materia with subsections (c)(1), (c)(2), and (c)(3), an evidentiary hearing is required unless the motion presents assertions of fact which will entitle the defendant to no relief even if resolved in his favor, or the motion presents only questions of law, or the motion is made pursuant to N.C.G.S. § 15A-1414 within ten days after entry of judgment. 348 N.C. at 258, 499 S.E.2d at 763 (emphasis added). In McHone, the Court simply restated what is provided in the statute, [a]n evidentiary hearing is not required when the motion is made in the trial court pursuant to G.S. 15A-1414, but the court may hold an evidentiary hearing if it is appropriate to resolve questions of fact. N.C. Gen. Stat. § 15A-1420(c)(2). The reasoning for not mandating an evidentiary hearing is clearly expressed in Obviously, would be the it commentary to unlikely that is necessary on the N.C. such immediate Gen. an Stat. § 15A-1420: evidentiary post-trial hearing motion, made within 10 days as provided by G.S. § 15A-1414, and that is reflected in subdivision (c)(2). In the present case, the trial judge reviewed defendant s MAR made pursuant to N.C. Gen. Stat. § 15A-1414(b)(3) and the attached post-conviction affidavits. Based on all the evidence, the trial court determined that defendant received a fair and impartial trial, received effective assistance of counsel, and -21none of defendant s rights were violated. We hold that disposing of the MAR without an evidentiary discretion of the trial judge. hearing was within the See State v. Elliott, 360 N.C. 400, 419, 628 S.E.2d 735, 748 (2006) ( [I]f a defendant files a motion for appropriate relief under N.C.G.S. § 15A 1414, the decision of whether an evidentiary hearing is held is within the sound discretion of the trial court. ). judge did not abuse his discretion Moreover, the trial where the factual issue raised in the MAR could have been further litigated at trial. III. Conclusion For the reasons discussed above, we hold the trial court did not argument err in failing ex mero motu to and intervene in in denying examine the Intoximeter source code. the State s defendant s closing motion to Furthermore, we affirm the order denying defendant s MAR. No error; affirmed. Judges CALABRIA and STEELMAN concur.

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