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[T] State v. Pezzuto5/6/2003
UNPUBLISHED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).
On 20 September 2000, Joel Pezzuto ("defendant") was arrested for driving while impaired in violation of N.C. Gen. Stat. § 20- 138.1 (2001). He was subsequently convicted of the crime on 5 December 2001. Defendant appealed, and this appeal is still pending. On 3 February 2003, defendant filed a motion for appropriate relief with this Court. On 14 April 2003, the State timely filed its response to defendant's motion. Since we find merit to defendant's motion, and hold a new trial is necessary, we need not reach the issues raised by defendant in his appeal.
A motion for appropriate relief is a motion in the original cause and may be brought before the Court of Appeals if the case isthen pending before this Court. N.C. Gen. Stat. §§ 15A-1411, -1418 (2001). The appellate court, faced with a motion for appropriate relief, "must decide whether the motion may be determined on the basis of the materials before it, or whether it is necessary to remand the case to the trial division for taking evidence or conducting other proceedings." N.C. Gen. Stat. § 15A-1418(b). "If the appellate court does not remand the case for proceedings on the motion, it may determine the motion in conjunction with the appeal and enter its ruling on the motion with its determination of the case." Id.
In his motion, defendant asserts he is entitled to a new trial because evidence has come to light, post appeal, that Deputy Sammy Turner ("Turner"), one of two witnesses for the State, did not tell "the truth, the whole truth, and nothing but the truth" and, therefore, perjured himself. In support, defendant supplied the Court with a transcript of Turner's testimony and a transcript of the 911 recordings from the afternoon in question. At trial, defendant and Turner told vastly different stories of the events of the afternoon of 20 September 2000. The 911 transcript calls into question Turner's credibility and corroborates some of defendant's testimony.
Defendant testified that at approximately 1 p.m. he "went through a big puddle. . . y car was sputtering and I couldn't get it to run evenly" and so he pulled into the parking lot in which he was later arrested. He "played with the ignition" without success and called his mechanic. Defendant testified hespent the afternoon talking to friends in the area, since he had previously run a business there. Defendant's mechanic corroborated his testimony.
Turner testified that "in the late afternoon" on 20 September 2000, he was responding to a 911 call when he spotted defendant "blow" through a stop sign. Turner pulled defendant over, and upon approaching the vehicle immediately "noticed a strong odor of alcohol." Thereafter, Turner contacted State Highway Patrol and Trooper Roy L. Murray later arrived and took defendant into custody.
The 911 transcript reveals that beginning at approximately 4 p.m., Turner worked closely with another officer for over forty minutes staking out defendant. When the accompanying officer informed Turner "the subject is pulling out of the parking lot at this time[,]" Turner immediately responded, "10-4. I'm getting ready to intercept same now." Thereafter, the other officer requested State Highway Patrol's assistance stating "we got him pulled."
We find the foregoing evidence is sufficient to reach the merits of the motion
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