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Carter v. State9/21/2005
NOT DESIGNATED FOR PUBLICATION
A jury found appellant, Don Carter, guilty of the crime of first-offense driving while intoxicated. Acting pro se, he challenges the conviction on appeal raising several allegations of error by the circuit court, including claims that the court erred in (1) denying appellant's pretrial motion to recuse; (2) admitting evidence relating to appellant's refusal to consent to a blood-alcohol test; (3) permitting a witness to testify about statements made by appellant; (4) limiting appellant's questioning of a witness; (5) permitting a witness to lie during his testimony; (6) engaging in ex parte communications; (7) permitting a witness to testify about appellant's prior convictions and failing to instruct the jury to disregard the testimony; (8) denying appellant's post-trial motion to recuse; and finally, a claim that (9) the driving-while-intoxicated statute is unconstitutional. We affirm his conviction.
To summarize the testimony of the three witnesses at trial, on November 10, 2003, Ladonna Brown and Wilson Bay, who were in separate vehicles, came upon appellant's vehicle, which was stopped sideways in the road. Appellant was slumped over in the driver's seat, with the car lights on, the car in drive, and the keys in the ignition, but the engine off. Brown honked, and appellant raised his head, looked at her, and dropped his head. Brown and Bay walked over to appellant's car, and Bay knocked on the car window. In response to Bay's questions, appellant said he was okay, and he asked if Bay was okay. Appellant started his car and was able to back up and move forward a few feet, but the car's engine kept dying. Both Brown and Bay thought appellant was intoxicated. Brown called the sheriff's office, and when a deputy arrived, appellant exited his vehicle.
Steven Cox of the Sebastian County Sheriff's Office testified that, when he arrived at the scene, appellant smelled of an intoxicating beverage, was unsteady on his feet, had difficulty speaking, and had urinated on himself. Cox testified that he attempted to speak to appellant about what had happened, but to any question Cox asked, appellant "got in my face and asked me the same question back; he wouldn't answer the questions." Appellant would not take a field-sobriety test. Cox thought appellant was intoxicated, and he placed appellant under arrest for driving while intoxicated and transported him to a detention facility. There, Cox asked appellant to take an electronic breathalyzer test to determine his breath-alcohol content, but appellant refused to provide Cox with the information needed to administer the test. Cox testified that appellant "would get right back in my face and ask me the same question I asked him." When Cox asked appellant if he would take the test, appellant replied, "Will you take it?" and would not otherwise give an answer.
Appellant first contends that the court erred in denying his pretrial motion to recuse because the judge's demeanor was so intemperate during a pretrial hearing on appellant's motion to suppress that it violated his right to due process. By way of background, appellant filed the motion to suppress a statement he made while being transported by Cox. Appellant contended that the statement should be suppressed because he was not given a Miranda warning. He further sought to suppress the videotape of his statement because his voice was muffled and because part of the tape may have been missing.
At the hearing, the judge granted appellant's motion to suppress his statement that he drove the car but denied the remainder of the motion. Appellant replied that he did not understand. The judge again stated that he was granting the motion to s
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