State v. Wilson

Annotate this Case

Download PDF

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-110 NORTH CAROLINA COURT OF APPEALS Filed: 19 November 2013 STATE OF NORTH CAROLINA v. Mecklenburg County No. 09 CRS 258861 MARK WILSON Appeal by defendant from judgment entered 31 May 2012 by Judge Eric L. Levinson in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 August 2013. Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State. Arnold & Smith, PLLC, by Appellant. Paul A. Tharp, for Defendant- HUNTER, JR., Robert N., Judge. Mark Wilson ( Defendant ) appeals from judgment entered 31 May 2012 driving. denying after a jury verdict convicting him of impaired Defendant argues that the trial court erred by (1) his motion to dismiss, (2) denying his motion to suppress, and (3) allowing testimony regarding a blood sample where the chain of custody was not properly established. find no error. We -2I. Factual & Procedural History Defendant was charged with impaired driving on 8 December 2009. On 1 November 2010, Defendant was found guilty in district court and appealed to the Mecklenburg County Superior Court for a jury trial. Prior to the trial, Defendant filed motions to suppress his arrest based on unlawful arrest and to dismiss based on the unavailability of evidence of blood-alcohol tests conducted during his arrest. The motions were denied. The State s evidence at the superior court trial tended to show the following. On 8 December 2009, at approximately midnight, Officer David Georgion ( Officer Georgion ) of the Charlotte-Mecklenburg Police Department watched for cars failing to stop for the stop sign at Charlotte. the intersection of Sedley zone. and Arborway in Officer Georgion observed a car drive through the intersection without stopping. estimated Road speed of 45 The car was miles-per-hour in a traveling at an 25 miles-per-hour Officer Georgion pursued the vehicle, which eventually came to a stop on the wrong side of the street. Upon reaching Defendant s vehicle, Officer Georgion asked for Defendant s driver license. Instead of giving Officer Georgion his license, Defendant repeatedly mumbled, I ve helped -3the police. noticed the speech. that As Defendant continued to speak, Officer Georgion smell of alcohol, glassy red eyes, and slurred When asked, Defendant admitted to having three beers evening. Officer Georgion then placed Defendant under arrest for driving while impaired. After passing out at the jail, Defendant was transported to the hospital. Deputy Edward Elmendorf of the Mecklenburg County Sheriff s Office, a licensed chemical analyst, took Defendant s blood and put it Officer Georgion. in sealed containers before giving it to Officer Georgion delivered the sealed blood kit to property control. Ann Charlesworth, a criminalist for the Charlotte-Mecklenburg Police Department crime lab tested the blood for alcohol concentration. Following Defendant s objection, based on concerns regarding the chain of custody, the trial court did not allow testimony regarding the results of Ms. Charlesworth s blood testing. Defendant presented beers prior to driving. testimony that he only consumed two Defendant testified that after he was pulled over, he was arrested and was not told why he was being arrested. Defendant said he had previously assisted the police in apprehending burglary suspects and mistook Officer Georgion for one of the officers he had worked with. Defendant testified -4that the emergency room doctor told him he had a heart murmur, which was the reason he passed out. On 9 March 2011, Defendant filed a motion to suppress with the superior court based on violations of Defendant s constitutional rights, as Defendant s arrest was made without probable cause or reasonable suspicion. On 10 June 2011, the superior court denied Defendant s motion to suppress. 2012, Defendant destruction of Department. filed a evidence During motion by the to the dismiss Charlotte trial, the On 23 May based on Mecklenburg trial court the Police denied Defendant s motion to dismiss. On 31 May 2012, Defendant was found guilty of impaired driving and was sentenced to 40 days imprisonment, suspended for 12 months of unsupervised probation. Defendant timely filed notice of appeal on 14 June 2012. II. Jurisdiction As Defendant appeals from the final judgment of a superior court, an appeal lies of right to this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2011). III. Analysis Defendant denying his first motion argues to that dismiss the where trial the court blood erred sample in was -5destroyed and Defendant was not given the opportunity to test the sample. We disagree. This Court reviews the trial court s denial of a motion to dismiss de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court evidence held favorable that to suppression an accused by prosecution request upon the violates of due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. defendant must Id. at 87. show To establish a Brady violation, a (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial. State v. McNeil, 155 N.C. App. 540, 542, 574 S.E.2d 145, 147 (2002), disc. rev. denied, 356 N.C. 688, 578 S.E.2d 323 (2003). Favorable evidence can be either impeaching the State s evidence. exculpatory or useful in State v. Williams, 362 N.C. 628, 636, 669 S.E.2d 290, 296 (2008). Evidence is considered material if there is a reasonable probability of a different result had the evidence been disclosed. State v. Berry, 356 N.C. 490, 517, 573 S.E.2d 132, 149 (2002). [A] reasonable -6probability is a probability sufficient to undermine confidence in the outcome. United States v. Bagley, 473 U.S. 667, 682 (1985). However, when the evidence is only potentially useful or when no more can be said [of the evidence] than that it could have been subjected to tests, the results of which might have exonerated the defendant, the State s failure to preserve the evidence does not violate the defendant s constitutional rights unless a defendant can show bad faith on the part of the State. State v. Mlo, 335 N.C. 353, 373, 440 S.E.2d 98, 108, cert. denied, 512 U.S. 1224 (1994) (quoting Arizona v. Youngblood, 488 U.S. 51, 57 (1988)). The blood sample in this case has been destroyed. It is speculative to try and determine whether the blood would have been material and favorable to Defendant. There is nothing to show that the blood would have been exculpatory. Since the blood sample was only potentially useful, Defendant must show bad faith on the part of the State. evidence of bad faith. Defendant presents no The only evidence at trial showed that the blood sample was destroyed in February of 2011, more than a year after Defendant s arrest. Defendant made a motion to get the physical evidence for testing on 20 July 2011, more than a -7year and a half after the arrest. There is no evidence of bad faith on the part of the State. Since Defendant cannot show that the blood sample would have been material and favorable and cannot show bad faith by the State, the trial court was correct in denying Defendant s motion to dismiss. Defendant next argues that the trial court erred in denying Defendant s motion to suppress all evidence. Defendant has failed to preserve this objection. Although Defendant made a motion in limine to suppress the evidence arising out of his arrest, Defendant did not object to evidence regarding the traffic stop and arrest at trial. motion in limine [A] is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial. (1999) State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (per curiam) (quotation marks and citation omitted). Since Defendant did not object at trial, this issue was not preserved. Defendant s final argument is that the trial court erred in allowing testimony regarding the blood sample where the chain of custody was not established. We disagree. -8Defendant did not object to most of the evidence that Defendant s blood had been taken and that the blood had been tested. Although Defendant did object under Rule 403 to the introduction of evidence regarding why the blood was destroyed and also objected to the introduction of the lab report, both of those objections were granted. testimony of Officer Defendant did not object to the Georgion, Deputy Elmendorf, and Ms. Charlesworth that he now contends should not have been admitted under Rule 403 of our Rules of Evidence. In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds ruling the party desired the court to make . . . . App. P. 10(a)(1). Where a party did not make a for the N.C. R. specific objection at trial, plain error review is available in criminal cases for certain issues. in order for specifically brief. Id. plain and N.C. R. App. P. 10(a)(4). error review distinctly Since Defendant to contended has not apply, in the requested it However, must be appellant s plain error review, he has not properly preserved these issues for appeal. -9Even if Defendant had preserved this issue under plain error, however, we would find no plain error in the present case. [T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury s finding that the defendant was guilty. State v. Lawrence, 365 N.C. 506, 516 17, 723 S.E.2d 326, 333 (2012) (quotation marks and citation omitted). In the present case, the testimony regarding the blood samples was not so prejudicial as to deny Defendant justice. The results of the lab report were not admitted into evidence. The only evidence regarding the blood sample that was before the jury was evidence that there was a blood sample and that it was tested. Absent the test results, the prejudice arising from such evidence is unclear. Evidence regarding Defendant s intoxication included -10Officer Georgion s observations of Defendant s slurred speech, odor of alcohol, and glassy red eyes, as well as his traffic movements, including stopping on the wrong side of the road. Officer Georgion consumed three admitted at testified alcoholic trial to that drinks having had Defendant passed out at the jail. independent of any Defendant guilty. 572 S.E.2d sobriety 838, tests chemical Defendant that two told him evening. drinks. he had Defendant In addition, There was sufficient evidence analysis for a jury to find See State v. Gregory, 154 N.C. App. 718, 721, 840 are (2002) not ( An required intoxilyzer to test establish a and field defendant s faculties as being appreciably impaired under N.C. Gen. Stat. § 20-138.1. ). There is no indication that the evidence that Defendant s blood sample was taken had a probable impact on the jury s verdict. jury regarding Given the amount of evidence presented to the Defendant s guilt, the admission of testimony that Defendant s blood sample was taken and tested was not the sort of error. fundamental error requiring reversal under plain See Lawrence, 365 N.C. at 516 17, 723 S.E.2d at 333. IV. Conclusion For the foregoing reasons we find NO ERROR -11Chief Judge MARTIN and Judge ELMORE concur. Report per Rule 30(e).

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.