State v. Lindsey, ___ N.C. App. ___, 791 S.E.2d 496 (Sept. 20, 2016)

The trial court did not err by denying the defendant final closing arguments in this DWI case. Rule 10 of the General Rules of Practice for the Superior and District Courts provides that “if no evidence is introduced by the defendant, the right to open and close the argument to the jury shall belong to him.” Here, the defendant did not call any witnesses or put on evidence but did cross-examine the State’s only witness and sought to play a video of the entire traffic stop recorded by the officer’s in-car camera during cross-examination. At issue on appeal was whether admitting the video of the stop during cross-examination constituted introducing evidence. Although the officer provided testimony describing the stop shown in the video, the video went beyond the officer’s testimony and “is different in nature from evidence presented in other cases that was determined not to be substantive.” Playing the video allowed the jury to hear exculpatory statements by the defendant to the police beyond those testified to by the officer and introduced evidence of flashing police lights that was not otherwise in evidence to attack the reliability of the HGN test. The video was not merely illustrative. It allowed the jury to make its own determinations concerning the defendant’s impairment apart from the officer’s testimony and therefore was substantive evidence.