State v. Merritt9/7/2004
endant's speech?
A: Yes, sir.
Q: And earlier, when you testified that his speech was slurred, could you tell us how it was different than other times that you had dealt with him?
A: It wasn't slurred in the past.
No objection was made in reference to this testimony. On appeal, the State does not contend that the trial court did not err when it overruled one of defendant's objections, but rather, argues that defendant has not shown that a reasonable possibility exists that a different result would have been reached absent the error. State v. Hoffman, 349 N.C. 167, 182, 505 S.E.2d 80, 89 (1998), cert. denied, 526 U.S. 1053, 143 L.Ed. 2d 522 (1999). After a careful review of the transcript and record, we conclude that the State presented substantial unchallenged evidence that defendant was driving while intoxicated on the evening in question. See id. (defendant did not show prejudice where the State "presented substantial evidence tending to show defendant's guilt"). Further, the trial court ultimately required the prosecutor to appropriately phrase his questions, allowing the witness to fairly convey his basis for comparing defendant's behavior and appearance on the night in question to defendant's behavior and appearance on other occasions. Again, we admonish trial counsel to phrase questions appropriately in the first place so as to avoid potential prejudice to defendants. However, because defendant has not shown that he was prejudiced by any error stemming from the admission of the testimony at issue, we overrule this assignment of error. N.C. Gen. Stat. § 15A-1443(a)(2003); see State v. Weeks, 322 N.C. 152, 170, 367 S.E.2d 895, 906 (1988).
III.
Defendant's final argument asserts that the trial court erred in overruling defendant's objection during the State's closing argument. Specifically, defendant contends that the prosecutor'sdescription of an intoxilyzer as "[t]he big machine with a tube that comes out of it, and you blow into it, and it says whether he's guilty," is a misstatement of law and thus, the trial court erred by overruling defendant's objection on this ground. This argument is without merit. "Trial counsel is allowed wide latitude in argument to the jury and may argue all of the evidence which has been presented as well as reasonable inferences which arise therefrom." State v. Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721 (1998), cert. denied, 526 U.S. 1133, 143 L.Ed. 2d 1013 (1999). Further, a prosecutor's statements in jury argument "must be reviewed in the overall context in which they were made and in view of the overall factual circumstances to which they referred." State v. Penland, 343 N.C. 634, 662, 472 S.E.2d 734, 750 (1996), cert. denied, 519 U.S. 1098, 136 L.Ed. 2d 725 (1997).
In the instant case, the statement objected to by defendant was made as part of the prosecutor's argument concerning the inferences the jury might make from defendant's refusal to take the intoxilyzer test. The evidence presented at trial established that defendant was given an opportunity to take the intoxilyzer test but declined to do so. Further, North Carolina prosecutors are allowed by statute to use a refusal to take an intoxilyzer-type test against defendants at trial. N.C. Gen. Stat. . 20-16.2(a)(3) (2003); see State v. Wike, 85 N.C. App. 516, 517, 355 S.E.2d 221, 222 (1987) ("the fact of defendant's refusal to take a breathalyzer test is admissible in evidence at trial"). Thus, after reviewing the overall context and factual circumstances surrounding thestatement at issue, we conclude that the trial court did not abuse his discretion by overruling defendant's objection.
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