Appeal by defendant from judgment dated 13 December 2002 by
Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard
in the Court of Appeals 5 February 2004.
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III and Assistant Attorney General
Patricia A. Duffy, for the State.
The Dummit Law Firm, by E. Clarke Dummit, for defendant-
appellant.
BRYANT, Judge.
James Carey Wood (defendant) appeals a judgment dated 13
December 2002 entered consistent with a jury verdict finding him
guilty of habitual impaired driving.
The evidence at trial indicates that at about 1:00 a.m. on 26
August 2000, defendant drove his vehicle to a checkpoint on Healey
Drive in Forsyth County, North Carolina. At the checkpoint, police
officers stopped all oncoming vehicles and asked drivers to produce
drivers' licenses and registrations. When defendant stopped his
vehicle at the checkpoint and Officer S.D. Mitchell asked for his
driver's license and registration, defendant stated his license was
suspended. Upon smelling a strong odor of alcohol from defendantand observing defendant's speech to be slurred, slow, and mumbled,
Officer Mitchell requested defendant to pull over. Three sobriety
tests were administered to defendant, all of which he failed.
Defendant was arrested and charged with driving while impaired,
driving while license revoked, and felonious habitual driving while
impaired.
In an order filed 12 February 2002 denying defendant's motion
to dismiss the charge of habitual driving while impaired, the trial
court found:
2. . . . [O]n September 12, 2000 . . .
defendant appeared in Forsyth County Criminal
District Court . . . to answer the misdemeanor
charges pending against him;
3. . . . [D]efendant . . . tendered a plea
of guilty to misdemeanor Driving while
Impaired. The State dismissed the misdemeanor
Driving while License Revoked charge;
4. . . . [A]fter . . . defendant tendered
his plea to the [c]ourt[, the State] realized
that . . . the felony Habitual Driving while
Impaired charge was still pending. Based upon
this realization [the State] requested the
matter be continued until the afternoon
Session;
5. . . . [T]he Honorable Chester C. Davis,
District Court Judge presiding at the hearing,
allowed the continuance and directed that the
parties return to [c]ourt at 2:15 p.m. for
further proceedings;
6. . . . [W]hen the parties returned to
[c]ourt that afternoon [the State] informed
the [c]ourt that . . . defendant had a felony
charge pending based upon the same offense and
that the State was consequently taking a
voluntary dismissal of the misdemeanor charge;
7. . . . [C]ounsel for . . . defendant
objected to the dismissal on the grounds that
. . . defendant had tendered his plea ofguilty and that the [c]ourt had accepted . . .
defendant's plea;
8. . . . [D]efendant's objection was
overruled, but that Judge Davis instructed the
Clerk to note on the judgment that the State
dismissed the offense “after entry of plea”;
9. . . . [P]rior to the State taking a
voluntary dismissal of the misdemeanor Driving
while Impaired offense no witness had been
sworn, no testimony had been elicited, the
State had not presented a factual basis for
the plea and neither party had presented
evidence to the [c]ourt;
10 . . . [U]pon hearing that . . .
[d]efendant tendered a plea of guilty to the
misdemeanor Driving while Impaired offense,
the clerk erroneously noted a verdict of
guilty on the Judgment and erroneously
recorded a verdict of guilty in the courtroom
minutes;
11. . . . [T]he courtroom clerk erroneously
made these entries in anticipation of
proceedings consistent with a guilty plea;
12. . . . [T]he clerk also noted that the
case was voluntarily dismissed on the Judgment
and noted the voluntary dismissal on the
courtroom minutes;
13. . . . Judge Davis signed the Judgment
prepared by the courtroom clerk without
realizing the ambiguity reflected thereon.
The trial court then concluded:
1. . . . [T]he certified copies of the
District Court Judgment and courtroom minutes
relating to the [charge of] misdemeanor
Driving while Impaired found in file number 00
CR 55014 are ambiguous in that they reflect
both a verdict of guilty and a voluntary
dismissal by the State;
2. . . . [I]t was necessary and proper for
this [c]ourt to hear testimony from witnesses
present at the District Court hearing of the
misdemeanor offense in order that this [c]ourt
attempt to explain the ambiguity reflected bythe documents;
3. . . . [T]he State did not offer and this
[c]ourt did not consider evidence and
testimony at the hearing of . . .
[d]efendant's Motion to Dismiss for the
purpose of collaterally attacking any ruling
or finding of the District Court, but rather
for the purpose of explaining the ambiguity
reflected by the documents;
4. . . . [T]he Honorable Chester C. Davis
did not hear testimony or accept evidence at
the September 12, 2000 hearing of . . .
defendant's misdemeanor Driving while Impaired
offense, did not adjudge . . . defendant
guilty of that offense, and did not impose any
sentence relating to that offense;
5. . . . [J]eopardy did not attach at the
September 12, 2000 hearing of the misdemeanor
charge of Driving while Impaired, and that
prosecution of the present felonious Habitual
Driving while Impaired offense is not barred
by the double jeopardy clauses of the North
Carolina or United States Constitutions.
The trial court also denied defendant's motion to suppress
evidence obtained from the stop of defendant and his vehicle at the
checkpoint. On 10 December 2002, defendant was found guilty of
habitual impaired driving.
_________________________
The issues are whether the trial court erred in denying
defendant's: (I) motion to dismiss; and (II) motion to suppress.
I
Defendant first argues the trial court's denial of his motion
to dismiss the charge of habitual driving while impaired violates
the prohibition against double jeopardy. We disagree.
Double jeopardy prohibits
a second prosecution for the same offenseafter conviction[] . . . . Additionally, the
Supreme Court of the United States has noted
that “[a] plea bargain standing alone is
without constitutional significance; in itself
it is a mere executory agreement which, until
embodied in the judgment of a court, does not
deprive an accused of liberty or any other
constitutionally protected interest.”
State v. Wallace, 345 N.C. 462, 467, 480 S.E.2d 673, 676 (1997)
(citations omitted). When a plea of guilty tendered by the
defendant is not accepted, the prohibition of double jeopardy does
not apply.
Id. Here, the trial court, in denying the pre-trial
motion to dismiss, made numerous findings of fact and concluded
jeopardy did not attach.
Defendant has failed to assign error to any of the findings of
fact, therefore, these findings are presumed correct and are
binding on appeal.
State v. Eliason, 100 N.C. App. 313, 315, 395
S.E.2d 702, 703 (1990). In turn, our review is limited to whether
these findings support the trial court's conclusions of law.
Id.
The trial court conducted a hearing and received testimony
from Judge Davis and the courtroom clerk. The trial court's
findings, based on testimony and other evidence, indicate that
after defendant tendered a guilty plea to the charge of driving
while impaired, the “clerk erroneously noted a verdict of guilty on
the Judgment and erroneously recorded a verdict of guilty in the
courtroom minutes . . . in anticipation of proceedings consistent
with a guilty plea.” The findings further indicate the following:
The State then requested a continuance, which Judge Davis granted.
At the end of the continuance, the State voluntarily dismissed the
charge. “[P]rior to the State taking a voluntary dismissal of the[charge] no witness had been sworn, no testimony had been elicited,
the State had not presented a factual basis for the plea and
neither party had presented evidence to [Judge Davis].” “Judge
Davis signed the Judgment prepared by the . . . clerk without
realizing the ambiguity thereon.” These findings are supported by
the testimony of Judge Davis that the State would not have been
allowed to dismiss a charge after he had accepted a guilty plea.
Therefore, the fact that the State was allowed to dismiss the DWI
charge indicates Judge Davis had not accepted the guilty plea
tendered by defendant.
In sum, the trial court's findings support the conclusion that
the plea of guilty tendered by the defendant was not accepted by
the district court on 12 September 2000. We hold, therefore, that
the principle of double jeopardy does not apply here. This
assignment of error is overruled.
II
Defendant next contends the trial court erred in denying his
motion to suppress evidence obtained as result of the checkpoint
stop. Particularly, defendant argues the checkpoint and detention
of every vehicle without reasonable suspicion violated N.C. Gen.
Stat. § 20-16.3A and the Fourth Amendment of the United States
Constitution.
N.C. Gen. Stat. § 20-16.3A provides:
This section does not limit the authority of a
law-enforcement officer or agency to conduct a
license check independently or in conjunction
with the impaired driving check, to administer
psychophysical tests to screen for impairment,
or to utilize roadblocks or other types ofvehicle checks or
checkpoints that are
consistent with the laws of this State and the
Constitution of North Carolina and of the
United States.
N.C.G.S. § 20-16.3A (2003) (emphasis added).
The United States Supreme Court has held that random stops of
vehicles to check for drivers' licenses and registrations violates
the Fourth Amendment.
Delaware v. Prouse, 440 U.S. 648, 663, 59 L.
Ed. 2d 660, 673 (1979). However, the
Prouse Court noted that the
government is not precluded “from developing methods for spot
checks that involve less intrusion or that do not involve the
unconstrained exercise of discretion. Questioning of all oncoming
traffic at roadblock-type stops is one possible alternative.”
Id.
at 663, 59 L. Ed. 2d at 673-74.
In light of
Prouse, our Courts have consistently held
checkpoints for drivers' licenses and registrations where all
vehicles were stopped are constitutional under the Fourth
Amendment.
See State v. Mitchell, 358 N.C. 63, 68, 592 S.E.2d 543,
546 (2004) (“Because police officers are not constitutionally
mandated to conduct driver's license checkpoints pursuant to
written guidelines; because Officer Falls received sufficient
supervisory authority to conduct the checkpoint; and because the
officers stopped all oncoming traffic at the checkpoint, we
conclude that the checkpoint was constitutional.”);
State v.
Vancamp, 150 N.C. App. 347, 351, 562 S.E.2d 921, 925 (2002)
(checkpoint for drivers' licenses and registrations where all
vehicles were stopped was constitutional);
State v. Tarlton, 146
N.C. App. 417, 421-23, 553 S.E.2d 50, 53-54 (2001);
State v.Grooms, 126 N.C. App. 88, 90, 483 S.E.2d 445, 446 (1997)
(checkpoint for drivers' licenses, stolen vehicles, and individuals
with outstanding arrest warrants where all vehicles were stopped
was constitutional);
State v. Sanders, 112 N.C. App. 477, 480, 435
S.E.2d 842, 844 (1993) (checkpoint for drivers' licenses where all
vehicles were stopped was constitutional).
At the hearing on defendant's motion to suppress, Officer
Mitchell testified that, as authorized by her supervisor, all
vehicles were stopped at the checkpoint for drivers' licenses and
registrations according to the police department's written
guidelines. Officer Mitchell explained that the checkpoint was
established at a location with a “heavy flow of traffic” to check
for drivers' licenses and vehicle registrations. Defendant has
conceded all vehicles were stopped at the checkpoint.
Based on the foregoing, we conclude the checkpoint,
established to check for drivers' licenses and registrations of all
vehicles, was constitutional. As such, the trial court did not err
in denying defendant's motion to suppress.
No error.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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