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[T] State v. Moser5/6/2003
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
A jury found defendant guilty of driving while impaired ("DWI") and felony speeding to elude arrest. Based on defendant's prior stipulation to three prior DWI convictions, the trial court entered judgment on the charged offense of habitual impaired driving, as well as felony speeding to elude arrest. The trial court sentenced defendant to consecutive prison terms totaling twenty-nine to thirty-five months.
The State's evidence tended to show the following: At 10:30 p.m. on 29 July 2001, Greensboro Police Officer B.E. Davis observed defendant's Chevrolet pickup truck proceeding south on State Highway 220 near Creekridge Road at an approximate speed of eightymiles per hour. As defendant exited Highway 220 onto Interstate 85 South, Officer Davis activated his blue lights and siren in an attempt to initiate a traffic stop. Instead of stopping, defendant exited Interstate 85 onto Holden Road and proceeded through several red lights and traffic intersections at speeds of over one hundred miles per hour. At the intersection of Vandelia Road and Rehobeth Church Road, Greensboro Police Officer Friel took over the pursuit. Officer Friel saw defendant's vehicle "swerv back and forth from across the turn lane and back to the curb numerous times as if the driver was intoxicated." After turning onto Elm-Eugene Street from Vandelia, defendant's truck left the road and stalled in a grassy area. Defendant tried without success to restart his engine before stepping out of the truck. He ignored the officers' repeated instructions to get on the ground. Once subdued, defendant refused to put his hands behind his back and resisted the officers' attempt to place him in handcuffs. Defendant smelled strongly of alcohol, his eyes were glassy, and he declined to submit to a Breathalyzer test. Based on his observations and experience, Officer Friel believed "defendant had consumed a sufficient quantity of an impairing substance as to appreciably impair his mental and physical faculties[.]" Officer Davis also believed that defendant "was impaired by some type of impairing substance."
Following trial, defense counsel moved to set aside the verdict and order a new trial after a juror informed counsel that she had consulted the dictionary definitions of "impair" and "influence" during deliberations. The trial court declined todisturb the jury verdict on this ground.
In his sole argument on appeal, defendant claims the trial court erred in refusing to set aside the verdict based on the injection of the dictionary definitions into the jury's deliberations. Because these definitions were not introduced into evidence or subject to cross-examination, defendant contends he was denied his constitutional right to confront the witnesses and evidence against him. He further claims the jury's access to these definitions lowered the State's burden of proof on the issue of impairment.
"As with a motion for mistrial, a motion to set aside the verdict is addressed to the discretion of the trial court and such ruling will not be disturbed on appeal absent an abuse of discretion." State v. Smith, 138 N.C. App. 605, 610, 532 S.E.2d 235, 239 (2000).
As a general matter, jurors will not be heard to impeach a verdict after it has been rendered. Pinckney v. Van Damme, 116 N.C. App. 139, 148-49, 447 S.E.2d 825, 831 (1994). Narr
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