Appeal by defendant from judgments entered 2 February 2006 by
Judge Ronald K. Payne in Buncombe County Superior Court. Heard in
the Court of Appeals 21 February 2007.
Attorney General Roy Cooper, by Special Counsel Isaac T.
Avery, III, for the State.
Charns & Charns, by D. Tucker Charns, for defendant.
Michael Dwayne Shelton (defendant) appeals from 2 February
2006 judgments entered consistent with jury verdicts convicting him
of felony habitual impaired driving and misdemeanor driving while
license revoked. The trial court sentenced him to a minimum of
eighteen months and a maximum of twenty-two months imprisonment.
The State's evidence tended to show: On 8 January 2005,
Officer Michael Garrison and Officer Meg Donahue of the Asheville
Police Department were on foot patrol in the Hillcrest complex, a
high crime area. At approximately 1:30 a.m., they heard loud music
coming from a car proceeding through the main entrance into the
complex. Officer Garrison observed the car en route for about a
tenth of a mile. The car pulled up right in front of the officersand into a parking space and stopped. The music was still on and
no one got out of the car. Officers Garrison and Donahue waited
about 30 seconds for the music to stop. They approached the car
and found defendant in the driver's seat and a passenger in the
front seat. Officer Garrison requested that defendant turn down
the music and noticed a strong odor of alcohol on defendant's
breath. Both officers noticed defendant's eyes were glassy and
blood shot. There was a bottle of brandy in the front passenger
side and a case of beer and empty alcohol bottles in the back seat.
When defendant spoke, Officer Garrison noticed his speech was
slurred and muffled. Defendant told Officer Garrison that Officer
Garrison could not deal with defendant because the keys were not in
the ignition and the car was parked. When Officer Garrison asked
defendant to get out of the car, defendant stumbled. Defendant
refused to perform any field sobriety tests. Both officers noticed
the strong odor of alcohol remained with defendant. Defendant was
arrested for DWI and transported to the Buncombe County Detention
Facility to be administered a breathalyzer test. Defendant refused
to take the breathalyzer test. However, Officer Donahue noted on
her DWI report form that defendant had a strong odor of alcohol,
was hilarious, talkative and cocky, laughing and that his
impairment was extreme.
After being informed of his Miranda rights, defendant agreed
to answer some questions. Defendant stated he was not operating a
vehicle, he was going nowhere and coming from nowhere.
Defendant stated he was on the only street leading into the complexand his direction of travel was just around the corner. When
asked what he was doing for the three hours prior to being
apprehended, defendant said Had a good time . . . drinking. When
asked when he began drinking he said seven. He said he had been
drinking B&J. Officers did in fact find brandy in the car.
Defendant said he had consumed a half of a bottle, which was the
same amount found remaining in the bottle in the car. When asked
when defendant had stopped drinking, he said When you all got me.
Defendant stated he was not under the influence of an alcoholic
beverage and had been parked.
At trial, both officers testified defendant's mental and
physical faculties were appreciably and extremely impaired.
(See footnote 1)
Defendant presented testimony of Vincent Finley, the passenger in
the car and his lifelong friend. Mr. Finley testified that he and
defendant were sitting in the car that belonged to Travis Simpson
drinking B&J. They had been there for four hours. Defendant drank
about one half a bottle of brandy. Mr. Finley testified they had
been listening to music and had not moved the car for four hours.
The keys to the car were in the seat when the officers approached
the car. Defendant appeals.
Defendant argues: (I) he received ineffective assistance of
counsel because his trial counsel failed to request a recordation
of jury voir dire
, opening and closing statements and that thetrial court erred for failing to sua sponte
require the same; (II)
the trial court erred by denying defendant's motion to suppress
statements because he waived his Fifth Amendment Miranda rights;
and (III) the trial court erred in accepting defendant's admission
that he had three prior DWI convictions and in accepting
defendant's stipulation as a Level III offender.
Defendant argues his trial counsel's failure to request
recordation of jury voir dire
, opening statements and closing
arguments constitute ineffective assistance of counsel and that the
trial court erred for failing to sua sponte
require the same.
Defendant cites no authority and acknowledges that this argument
has been repeatedly rejected by the Court. Defendant says
[a]ppellate counsel is well aware of this Honorable Court's view
on this issue and respectfully requests that this Court re-consider
its position. We decline counsel's request.
As for counsel's ineffective assistance of counsel claim, this
Court is bound by the Supreme Court's rulings as set forth in
Strickland v. Washington
, 466 U.S. 668, 80 L. Ed. 2d 674 (1984) and
State v. Braswell
, 312 N.C. 553, 324 S.E.2d 241 (1985); see In The
Matter of: The Appeal From The Civil Penalty
, 324 N.C. 373, 384,
379 S.E.2d 30, 37 (1989) (Where a panel of the Court of Appeals
has decided the same issue, albeit in a different case, a
subsequent panel of the same court is bound by that precedent,
unless it has been overturned by a higher court.); and State v.
, ___ N.C. App. ___, 630 S.E.2d 208 (2006). [I]t is not[this Court's] prerogative to overrule or ignore . . . written
decisions of our Supreme Court, Kinlaw v. Long Mfg., N.C. Inc.
40 N.C. App. 641, 643, 253 S.E.2d 629, 630, rev'd on other grounds
298 N.C. 494, 259 S.E.2d 552 (1979); State v. Parker
, 140 N.C. App.
169, 172, 539 S.E.2d 656, 659 (2000).
In State v. Hardison
, 326 N.C. 646, 392 S.E.2d 364 (1990), our
Supreme Court found that the defendant failed to establish
ineffective assistance for failure to request recordation of the
jury selection and bench conferences when no specific allegations
of error were made and no attempts were made to reconstruct the
at 661-62, 392 S.E.2d at 373. In State v. Price
170 N.C. App. 57, 67, 611 S.E.2d 891, 898 (2005), this Court
recently held that our case law does not support the argument that
the trial court must ensure recordation of those items specifically
exempted by statute from the record, and defendant cannot show
prejudice from the failure to do so. See
N.C. Gen. Stat. § 15A-
1241(a) (2005) (The trial judge must require that the reporter
make a true, complete, and accurate record of all statements from
the bench and all other proceedings except
:(1) Selection of the
jury in noncapital cases; (2) Opening statements and final
arguments of counsel to the jury; and (3) Arguments of counsel on
questions of law.)(emphasis added).
Here, defendant failed to cite any error arising from the lack
of recordation of jury selection, opening statements or closing
arguments. Accordingly, defendant has made no showing that a lack
of such recordation amounts to ineffective assistance of counselsuch that the outcome in his case has been prejudiced. Defendant
has also not cited authority requiring the trial court to record
those items specifically exempted by statute. Id.
assignments of error are overruled.
Defendant next argues the trial court erred by denying
defendant's motion to suppress statements because he waived his
Fifth Amendment Miranda rights. Defendant contends the State
failed to establish that he waived his Miranda
It is well established that the standard of
review in evaluating a trial court's ruling on
a motion to suppress is that the trial court's
findings of fact are conclusive on appeal if
supported by competent evidence, even if the
evidence is conflicting.
State v. Buchanan
, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)
(quoting State v. Brewinston
, 352 N.C. 489, 498, 532 S.E.2d 496,
501 (2000)), cert. denied
, 531 U.S. 1165, 148 L. Ed. 2d 992 (2001).
Both the United States Supreme Court and this Court have held that
Miranda applies only in the situation where a defendant is subject
to custodial interrogation. State v. Gaines
, 345 N.C. 647, 661,
483 S.E.2d 396, 404, cert. denied
, 522 U.S. 900, 139 L. Ed. 2d 177
On the day of the trial, defendant filed a written motion to
suppress any statement taken from defendant after he was in custody
and for which he did not waive his rights. The trial court found
that the conversation at the car between the officers and defendant
was non-custodial and not subject to Miranda
. With respect to thequestions asked of defendant at the Buncombe County Detention
Facility, the trial judge found as follows:
At that time Officer Donahue informed the
Defendant of what is commonly referred to as
his Miranda Rights. Informed him of his rights
to counsel, right to remain silent, statements
he made can be used against him, and his right
to court appointed counsel, if he cannot
afford one, one will be appointed for him. She
then asked him if he had any questions and he
responded that he did not. She stated that she
reached the conclusion that he understood
those rights and began to ask questions
contained and the answers which are contained
on the Driving While Impaired Form, HP-327. At
some point during the interview the Defendant,
Mr. Shelton, exercised his right to silence
and did not answer any further questions.
The trial judge then concluded:
[T]he Defendant was properly advised of his
Miranda Rights and taken to the Buncombe
County Detention Facility. That he made a
knowing waiver after being informed of it and
answered the questions that are answered on
the interview form.
It is not required that a waiver be express nor that a signature
be required for a confession to be admissible. See State v.
, 27 N.C. App. 405, 407, 219 S.E.2d 270, 271 (1975). This
Court has held [a]n implicit waiver may be sufficient. State v.
, 42 N.C. App. 69, 71, 255 S.E.2d 658, 660 (1979) (citing
North Carolina v. Butler
, 441 U.S. 369, 60 L. Ed. 2d 286 (1979)).
Whether or not there has been a waiver depends on the particular
facts and circumstances surrounding the case, including the
background, experience and conduct of the accused. State v.
, 42 N.C. App. 69, 71, 255 S.E.2d 658, 660 (1979) (quoting
Johnson v. Zerbst
, 304 U.S. 458, 464, 82 L. Ed. 1461, 1466 (1938)). Defendant contends based on Officer Donahue's testimony that
any waiver was insufficient, making the statements involuntary.
Officer Donahue read defendant his Miranda
rights from a card she
carries. She asked defendant if he had an questions about those
rights to which he replied he had none. Officer Donahue concluded
that defendant understood his rights. Officer Donahue then told
defendant that she was going to ask him some questions. Defendant
began answering her questions. At some point thereafter, defendant
stopped answering the officer's questions.
In his brief on appeal, defendant does not specify which
statements were improperly admitted at trial. In fact, most of
defendant's statements were exculpatory. Defendant admitted to
consuming alcohol, but never admitted to drinking and driving.
Therefore any statements defendant made were harmless beyond a
reasonable doubt. N.C. Gen. Stat. § 15A-1443(b) (2005).
Here, there was a sufficient waiver of defendant's Miranda
rights. The findings of fact of the trial judge made at the
hearing on the motion to suppress are supported by the evidence and
support the conclusions of law. Defendant's motion to suppress was
properly denied. This assignment of error is overruled.
Defendant next argues the trial court erred in accepting
defendant's admission that he had three prior DWI convictions and
in accepting defendant's stipulation to being punished as a Level
III offender. Defendant contends that his trial counsel's
stipulation as to prior convictions was insufficient. We disagree. Defendant can stipulate to his prior convictions as long as
the stipulation is definite and certain and assented to by the
parties. State v. Powell
, 254 N.C. 231, 234, 118 S.E.2d 617, 619
(1961). Prior to the close of the State's evidence and outside the
presence of the jury, the trial court arraigned defendant on the
three prior convictions that were elements of the habitual DWI
charge. The trial court read the dates and charges to defendant as
outlined in the indictment and asked him whether he would admit to
them. The following colloquy ensued:
MR. SNEAD: You Honor, if I could have a
moment, I have explained this to him.
THE COURT: Make sure he understands it.
(Pause while Attorney talks with client)
MR. SNEAD: He will admit.
THE COURT: All right. Therefore the State
will not be allowed to present any evidence of
that. With that does the State rest?
[PROSECUTOR]: Yes, for the issue of that then
I won't need to admit for the record those
THE COURT: He has already admitted them.
The procedure as I understand it.
Defendant conferred with his attorney and admitted his prior DWI
convictions to prevent the State from presenting this testimony to
the jury. On appeal defendant does not contend the convictions did
not belong to him. Trial counsel's discussion with defendant and
accompanying statement to the trial court that defendant admits the
convictions (an element of the offense) is a sufficient
stipulation. Moreover, at the end of the trial and duringsentencing, defendant's attorney stipulated to the Level III
sentencing for the misdemeanor and the habitual impaired driving.
These assignments of error are overruled.
Judges MCCULLOUGH and LEVINSON concur.
Report per Rule 30(e).