               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-62

                             Filed: 21 November 2017

Granville County, No. 13CRS050782

STATE OF NORTH CAROLINA,

             v.

BERTYLAR PEACE, JR., Defendant.


      Appeal by defendant from judgment entered 21 July 2016 by Judge Henry W.

Hight, Jr. in Granville County Superior Court. Heard in the Court of Appeals 10

August 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Christine
      Wright, for the State.

      Irons & Irons, PA, by Ben G. Irons II, for defendant-appellant.


      BERGER, Judge.


      Bertylar Peace, Jr. (“Defendant”) was charged with driving while impaired on

April 18, 2013. Defendant appealed to Superior Court where a Granville County jury

found him guilty of driving while impaired on July 20, 2016. Defendant alleges his

trial counsel provided ineffective assistance by failing to raise the statute of

limitations as an affirmative defense, and further contends that the prosecutor made

improper statements during closing argument that would entitle him to a new trial.

As to both, we disagree.
                                    STATE V. PEACE

                                   Opinion of the Court



                          Factual & Procedural Background

      On April 18, 2013, Detective Brian Carey with the Oxford Police Department

observed a GMC pickup truck fail to stop at a stop sign at the intersection of

Henderson and Hunt Streets. After making a left onto Henderson Street, the vehicle

was observed exiting the roadway.          Detective Carey followed the vehicle for

approximately one-half mile. After Defendant’s vehicle crossed the center line and

veered back off the road, Detective Carey initiated a traffic stop.

      As Detective Carey approached the GMC pickup truck, Defendant was exiting

the driver’s side door. He stumbled towards the officer and attempted to steady

himself by grabbing the bed of the truck. Detective Carey instructed Defendant to

get back into the vehicle, but Defendant refused to comply.

      Detective Carey asked Defendant to produce his license and registration.

Defendant sifted through various cards, but was unable to locate his driver’s license.

Detective Carey witnessed him pass his license in the stack of cards at least four

times, and ultimately had to identify the license for Defendant. Defendant indicated

he did not have a registration card for the vehicle.

      While interacting with Defendant, Detective Carey observed that Defendant’s

speech was slurred, he was swaying, and unable to keep his eyes open. Detective

Carey asked Defendant if he had anything to drink, and Defendant admitted he had

consumed alcohol “approximately five hours” prior to the stop. Detective Carey



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                                   Opinion of the Court



observed a pint of Seagram’s Gin in the front seat of Defendant’s vehicle that was

nearly empty. Defendant was not asked to perform field sobriety tests because “he

was so unstable on his feet, [Detective Carey] felt that it would be unsafe[.]”

      A preliminary breath test administered to Defendant at the scene was positive

for alcohol. However, the trial court struck this testimony after it was determined

that the preliminary breath test was improperly administered. Defendant requested,

and the trial court instructed the jury, that

             Detective Brian Carey testified as to the administration
             and results of a preliminary breath test or P-B-T that was
             administered to Bertylar Peace on April 18, 2013. The
             Court instructs you that Detective Carey did not
             administer the P-B-T properly. I instruct you that you are
             to disregard all the testimony you’ve heard relating to the
             administration and-or results of any P-B-T test to Mr.
             Peace on April the 18th, 2013, and that evidence should
             have no bearing whatsoever on your consideration and
             determination of the facts in this case.

      Defendant was arrested and transported to the Oxford Police Department for

a separate breath test. Defendant informed Officer Alice Judkins that he would not

provide a breath sample for the test, and the testing sheet was marked as a refusal.

However, both Detective Carey and Officer Judkins testified that, in their opinion,

Defendant had consumed a sufficient amount of an impairing substance to

appreciably impair his physical and mental faculties.

      Following a jury trial which took place on July 19 and 20, 2016, Defendant was

found guilty of driving while impaired, and was sentenced to twenty-four months


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                                   Opinion of the Court



imprisonment as a Level 1 offender. Defendant timely appealed, contending that (1)

his trial counsel was ineffective by failing to raise the statute of limitations as an

affirmative defense to his prosecution for impaired driving, and that (2) the trial court

erred in failing to intervene concerning comments made during the prosecutor’s

closing argument. As to both contentions, we disagree.

                                       Analysis

I. Ineffective Assistance of Counsel Claim

      “In general, claims of ineffective assistance of counsel should be considered

through motions for appropriate relief and not on direct appeal.” State v. Stroud, 147

N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001), cert. denied, 356 N.C. 623, 575 S.E.2d

758 (2002). See also State v. Todd, ___ N.C. ___, ___, 799 S.E.2d 834, 838 (2017)

(holding that where the record “is insufficient to determine whether defendant

received ineffective assistance of counsel,” the trial court should determine if

counsel’s performance was deficient and if defendant was prejudiced).           Because

Defendant’s claim for ineffective assistance of counsel is prematurely asserted on

direct appeal, the same is dismissed without prejudice.

II. Comments During Closing Arguments

      Defendant next contends that the trial court erred by failing to intervene ex

mero motu during the State’s closing argument. At trial, Defendant failed to object




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                                   Opinion of the Court



to the statements which he now contends were improper comments by the prosecutor.

Defendant’s contentions are meritless at best.

        Defendant claims that the following comment by the prosecutor was an

improper expression of opinion: “[t]he State has proven beyond a reasonable doubt

that this man was under the influence of some impairing substance.” Defendant

further asserts that the prosecutor made an improper statement of the law when he

said,

              And implied consent means when everyone here who gets
              their license, if a police officer asks you to blow into that
              machine, you have to blow into that machine.

              ....

              This clearly says that you’re required to take the test, and
              that if you don’t take the test, you’re going to lose your
              license for a year and possibly longer.

Finally, Defendant claims that the prosecutor’s statement that “Defendant said ‘I

have been drinking tonight’ ” was not supported by the evidence.

        North Carolina General Statute §15A-1230 plainly states:

              During a closing argument to the jury an attorney may not
              become abusive, inject his personal experiences, express
              his personal belief as to the truth or falsity of the evidence
              or as to the guilt or innocence of the defendant, or make
              arguments on the basis of matters outside the record
              except for matters concerning which the court may take
              judicial notice. An attorney may, however, on the basis of
              his analysis of the evidence, argue any position or
              conclusion with respect to a matter in issue.



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                                  Opinion of the Court



N.C. Gen. Stat. § 15A-1230(a) (2015).

      The trial court correctly instructed the jury that “lawyers are permitted in

their final statements, to argue, to characterize the evidence, and to attempt to

persuade you to a particular verdict.” Indeed, “counsel are given wide latitude in

arguments to the jury and are permitted to argue the evidence that has been

presented and all reasonable inferences that can be drawn from that evidence.” State

v. Jones, 355 N.C. 117, 128, 558 S.E.2d 97, 105 (2002) (citation and internal quotation

marks omitted).

      Judge Dillon, writing for this Court, recently stated:

                     Control of counsel’s arguments is left largely to the
             discretion of the trial court. When no objections are made
             at trial . . . the prosecutor’s argument is subject to limited
             appellate review for gross improprieties which make it
             plain that the trial court abused its discretion in failing to
             correct the prejudicial matters ex mero motu. Our review
             requires, a two-step inquiry: (1) whether the argument was
             improper; and, if so, (2) whether the argument was so
             grossly improper as to impede the defendant’s right to a
             fair trial.

                    In order to determine whether a prosecutor’s
             remarks are grossly improper, the remarks must be viewed
             in context and in light of the overall factual circumstances
             to which they refer. An argument is not improper when it
             is consistent with the record and does not travel into the
             fields of conjecture or personal opinion.


State v. Madonna, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, COA16-1300, 2017 WL

4629562, *4 (2017) (citations and internal quotation marks omitted).


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                                   STATE V. PEACE

                                  Opinion of the Court



      The statements at issue herein were consistent with the evidence presented to

the jury, and did not delve into conjecture or personal opinion. The prosecutor was

merely summarizing the evidence in the first statement, arguing that the State had

proven what is required by law, and attempting to persuade the jury “to a particular

verdict.”   With regards to the second argument concerning Defendant’s willful

refusal, the prosecutor reasonably summarized the impact of Defendant’s failure to

submit to blood alcohol screening pursuant to N.C. Gen. Stat. § 20-16.5(b), which is

not an element the jury was required to decide. Finally, Defendant admitted that he

consumed alcohol five hours earlier that evening. Whether Defendant’s merriment

ended in the late afternoon or early evening, it cannot reasonably be argued that the

prosecutor misstated the evidence regarding Defendant’s admission to alcohol

consumption.

      Even if there were some legitimacy to Defendant’s contentions regarding

closing arguments, the trial court’s instructions to the jury were, once again, more

than adequate to address any concern:

             At the conclusion of these arguments, I will instruct you on
             the law in this case[.]

             ....

             Now, if in the course of making a final argument to you, a
             lawyer attempts to restate part of the evidence, and what
             you remember the evidence to be is different from that of
             the lawyer, then it is your duty in recalling and



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                                    Opinion of the Court



             remembering the evidence to guide it exclusively and solely
             by what you determine the evidence to be.

See State v. Campbell, 359 N.C. 644, 679, 617 S.E.2d 1, 23 (2005), cert. denied, 547

U.S. 1073, 164 L. Ed. 2d 523 (2006) (holding that defendant’s right to a fair trial was

not impeded when the prosecutor made alleged improper statements, but the trial

court instructed the jury “not to rely on the closing arguments as their guide in

evaluating the evidence”).

      Even if, assuming arguendo, the remarks made by the prosecutor were

improper, which they were not, Defendant’s argument still fails because he has not

demonstrated prejudice. See State v. Huey, ___ N.C. ___, 804 S.E.2d 464 (2017); see

also N.C. Gen. Stat. § 15A-1443(a) (2015).           Given the overwhelming evidence

presented at trial, there is no “reasonable possibility . . . a different result would have

been reached[.]” Huey, ___ N.C. at ___, 804 S.E.2d at 473.

                                       Conclusion

      Defendant’s ineffective assistance of counsel claim is dismissed without

prejudice.   Furthermore, the statements made by the prosecutor during closing

arguments were not improper, and Defendant received a fair trial free from error.

      DISMISSED IN PART; NO ERROR IN PART.

      Judges DILLON and ZACHARY concur.




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