An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-364


Filed: 3 June 2003


v .                         Mecklenburg County
                            No. 00 CRS 053047

    Appeal by defendant from judgment entered 11 September 2001 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 28 January 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III and William P. Hart and Assistant Attorney General Patricia A. Duffy for the State.

    William B. Gibson for defendant-appellant.

    GEER, Judge.

    This appeal arises out of defendant's conviction of driving while impaired ("DWI"). Defendant contends that (1) the trial court erred in failing to grant his motions to dismiss for insufficient evidence; (2) the trial court erred in failing to grant a mistrial on the court's own motion; and (3) trial counsel provided ineffective assistance of counsel by not seeking a mistrial. Since the State presented substantial evidence of each element of the offense of DWI, we hold the trial court properly denied the motions to dismiss. With respect to the assignments of error regarding a mistrial, we conclude that the trial court did not abuse its discretion in failing to declare a mistrial whendefendant's counsel for strategic reasons did not wish a mistrial. These strategic reasons also preclude defendant's claim of ineffective assistance of counsel.

    At approximately 11:20 p.m. on 5 December 2000, Officer Richard Wells of the Charlotte-Mecklenburg Police Department was on patrol when he noticed a Ford Explorer traveling in the oncoming lane of travel on Montreat Avenue. Officer Wells heard yelling coming from the Explorer and directed towards a woman walking down the street in the same direction as the Explorer. Officer Wells followed the Explorer for approximately 20 or 30 feet until he saw the Explorer "jerk[], quickly, to the right, off the road, into a yard." He then saw defendant "jump out of his vehicle; and, walk, quickly, towards the female, walking down the road, yelling at her." Officer Wells radioed for backup.
    Officer Wells got out of his patrol car and approached defendant and the woman to intervene in their argument. Officer Wells asked defendant to get back in his vehicle and defendant complied. Defendant claimed that the woman had taken his cellular phone, but the woman had no cellular phone.
    At this point, Officer Curtis Driggers of the Charlotte- Mecklenburg Police Department arrived. Officer Driggers approached defendant and noticed a strong odor of alcohol coming from defendant's direction when defendant spoke to him. He asked defendant for his driver's license and requested that he turn off his car and exit the vehicle. When defendant got out of the car,he took two or three side steps although the road was smooth and he was wearing sneakers. Officer Driggers noticed that defendant's eyes appeared to be red, bloodshot, and glassy.
    Officer Driggers then asked defendant to perform several field sobriety tests. He first asked defendant to recite his ABC's, but defendant became confused after the letter "G." Officer Driggers then asked defendant to perform the sway test: defendant was required to stand as still as possible, tilt his head back, and close his eyes for 30 seconds. Defendant was unable to maintain his balance and instead was "bobbing around." When asked to stand on one leg, defendant attempted to perform the test, but swayed back and forth, raised his arms twice, put his foot down three times, and then stopped the test early. Officer Driggers repeatedly asked defendant to perform a walk-and-turn test, but defendant refused. Officer Driggers then placed defendant under arrest for DWI.
    Officer Wells transported defendant to the intake center. During the drive, defendant was yelling and had slurred speech. Once they arrived at the intake center, defendant refused to take an intoxilyzer test.
    On 6 December 2000, defendant was charged with DWI. Before the district court, defendant was found guilty on 21 February 2001 and was sentenced as a Level Five to a suspended sentence of 60 days on the condition of 12 months of unsupervised probation and payment of fines and costs in the amount of $290.00. Defendant gave notice of appeal to superior court, waived arraignment, andpled not guilty on 21 March 2001.
    Defendant was tried before a jury at the 6 August 2001, criminal session of Mecklenburg County Superior Court with the Honorable W. Robert Bell presiding. The jury found defendant guilty on 9 August 2001 and the trial court sentenced defendant as a Level Five to a suspended sentence of 60 days on the condition of 18 months of supervised probation and the payment of fines and costs of $1,005.00.
    Defendant argues first that the trial court erred in denying his motions to dismiss presented at the close of the evidence and at the end of trial on the grounds that there was insufficient evidence of impairment. We disagree.
    "In reviewing a motion to dismiss, 'the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense.'" State v. Stancil, 146 N.C. App. 234, 244, 552 S.E.2d 212, 218 (2001) (quoting State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982)), aff'd per curiam as modified, 355 N.C. 266, 559 S.E.2d 788 (2002). When reviewing challenges to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the State, with the State receiving the benefit of all reasonable inferences to be drawn from the evidence. State v. Compton, 90 N.C. App. 101, 103-04, 367 S.E.2d 353, 355 (1988).     Defendant argues that the State offered insufficient evidence that defendant was "impaired" under N.C. Gen. Stat. § 20-138.1 (2001).   (See footnote 1)  Specifically, defendant relies on evidence that he was cooperative during his encounter with Officer Wells; that Officer Wells did not videotape the encounter; that Officer Driggers destroyed the audiotape of the encounter; that defendant told Officer Driggers _ after he was arrested _ that he was "paralyzed" and could not stand on one leg or do the walk-and-turn test; and that defendant's refusal to take the intoxilyzer test resulted in the State's having no objective evidence.
    On the other hand, the State's evidence tended to show that Officer Wells saw defendant's Explorer driving in the lane for oncoming traffic and observed it "jerk[], quickly, to the right, off the road, into a yard." Officer Driggers testified that he smelled a strong odor of alcohol coming from defendant's direction. Then, when Officer Driggers asked defendant to perform several standard field sobriety tests, he either failed them or refused to perform them. After he was arrested, Officer Wells observed that defendant's speech was loud and slurred. Finally, defendantrefused to take an intoxilyzer test, a fact admissible against defendant under N.C. Gen. Stat. § 20-16.2 (2001) . State v. Davis, 142 N.C. App. 81, 88, 542 S.E.2d 236, 240 ("N.C.G.S. § 20-16.2 clearly requires that a defendant be offered the right to refuse and if he refuses, evidence of the refusal is admissible against him."), disc. review denied, 353 N.C. 386, 547 S.E.2d 818 (2001).
    Under the required standard of review, substantial evidence existed that defendant was impaired. See State v. Scott, 356 N.C. 591, 597-98, 573 S.E.2d 866, 870 (2002) (in affirming denial of defendant's motion to dismiss his habitual DWI charge, relying on the State's evidence of a strong odor of alcohol, slurred speech, and defendant's refusal to take an intoxilyzer test). Defendant simply contends that the evidence should be weighed differently, an argument irrelevant to a motion to dismiss. This assignment of error is therefore overruled.
    Second, defendant argues that the trial court committed plain error in not declaring a mistrial on its own motion after the jury heard testimony that defendant had been convicted of DWI in district court concerning the same charge currently before the superior court. Plain error review is to be applied only to exceptional cases. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Further, our Supreme Court has specified that plain error review is limited only to jury instructions and evidentiary rulings. State v. Cummings, 346 N.C. 291, 313-14, 488 S.E.2d 550, 563 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998).     Defendant does not argue that the trial court erred in admitting the testimony, but rather that the court should have declared a mistrial. Since this issue does not involve a jury instruction or an evidentiary ruling, plain error does not apply. Id.
    Even if plain error did apply, defendant has not shown prejudicial error. N.C. Gen. Stat. § 15A-1061 (2001) provides:
        Upon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial. The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.

Defendant contends that the court was required to order a mistrial on its own motion because of conduct "resulting in substantial and irreparable prejudice to the defendant's case." Id. The standard of review for denial of a mistrial is, however, whether the trial court abused its discretion. State v. McNeill, 349 N.C. 634, 646, 509 S.E.2d 415, 422-23 (1998), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999).
    A major component of defendant's defense was an attack on the police officers' failure to videotape the encounter and failure to maintain the audiotape. In addressing this defense, the State asked Officer Driggers to describe the Police Department's policy regarding maintenance of tapes. After testifying that he could have marked the tape to be held for court, Officer Driggers explained why he had not done so: "I did not mark this tape to beheld for court storage because, I didn't feel like I needed it for court. And, in District Court, [he] was found guilty, at trial. And, it was over with, as far as I was concerned, then." Counsel for defendant did not object or move to strike this testimony. Instead, on cross-examination, counsel for defendant explored further the officers' failure to turn on the video camera and to save the audiotape so the jury could hear it. Counsel then specifically referenced the district court proceedings and pointed out that defendant had represented himself in district court and was not in a position to request a copy of the audiotape.
    After the State rested and the trial court denied defendant's motion to dismiss, the trial court summarized a conference that he had held off the record regarding a possible mistrial:
        THE COURT:    . . . I do want to at least have the defendant have an opportunity to put on the record. I called counsel up to the bench, while the state -- or, the jury was looking at State's Exhibit No. 1. And, asked of [counsel for defendant], if, in fact, the defendant was going to make a motions [sic] for a mistrial.

            Actually, I think what I said was I assume you were not going to make a motion for a mistrial, based on the questions that you subsequently asked of the witness, Officer Driggers.

            And, there was an answer that Officer Driggers had given, during his re-direct examination, concerning the District Court trial; and, the fact that the defendant had been found guilty, there.

            And, there was not an objection made at that time.

            And then, [counsel for defendant], as the record will reflect, asked a number ofquestions concerning the absence of counsel for the defendant, at that trial.

Counsel for defendant confirmed that the summary accurately reflected the conference and explained further:
        [My] answer to Your Honor was that once it came out, it was a tactical decision of trial strategy to go forward with certain issues that we wanted to explore about the District Court trial. And, indicated, in fact, we would not be requesting a motion for a mistrial.

The trial court did not abuse its discretion in failing to order a mistrial when defense counsel indicated that he did not, for strategic reasons, wish a mistrial.
    Third, defendant argues that his Sixth Amendment right to effective counsel was violated when trial counsel failed to move for a mistrial. While ordinarily claims of ineffective assistance of counsel are best presented in a motion for appropriate relief, such claims may be resolved on direct appeal "when the cold record reveals that no further investigation is required, i.e., claims . . . may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing." State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). Since the trial court explored on the record the reasons for defense counsel's actions, this appeal represents one of the rare instances in which an ineffective assistance of counsel claim may be raised on appeal.
    In North Carolina, there is a two-prong test for ineffective assistance of counsel. First, defendant must "show that counsel'sperformance fell below an objective standard of reasonableness as defined by professional norms." State v. Lee, 348 N.C. 474, 491, 501 S.E.2d 334, 345 (1998). Second, once defendant satisfies the first prong, "he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error." Id . Generally, disagreements concerning trial tactics do not constitute ineffective assistance of counsel. State v. Thomas, 350 N.C. 315, 329, 514 S.E.2d 486, 495 (citation omitted), cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999).
    Here, defense counsel expressly stated that he made a tactical decision not to seek a mistrial, but rather to question the officer about the district court proceedings _ an approach consistent with defendant's strategy of undercutting the officers' credibility by questioning the absence of any corroborating tape recordings. Since defendant does not argue that this strategic decision was in any way unreasonable, no basis exists for finding ineffective assistance of counsel.

    Judges WYNN and BRYANT concur.
    Report per Rule 30(e).

Footnote: 1
     N.C. Gen. Stat. § 20-138.1 (2001) (emphasis added) provides:

        (a) Offense. -- A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
             (1)    While under the influence of an impairing substance; or
             (2)    After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more.

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