Appeal by defendant from judgment entered 28 June 2006 by
Judge A. Moses Massey in Surry County Superior Court. Heard in the
Court of Appeals 25 April 2007.
Attorney General Roy A. Cooper, III, by Special Counsel Isaac
T. Avery, III, for the State.
Daniel F. Read for defendant-appellant.
Junior Davis Hiatt (defendant) appeals his conviction of
driving while impaired on 28 June 2006. After careful
consideration, we find no error.
On 19 October 2004, Lieutenant Lorin Osborne (Lt. Osborne)
of the Surry County Sheriff's Office was dispatched to the area of
Bluemont and Caudle Roads after receiving a description of a
vehicle that might be operated by an impaired driver. Lt. Osborne
spotted a vehicle matching that description, a Nissan king cab
pickup truck, at the intersection of Bluemont and Caudle Roads.
According to Lt. Osborne, he followed the truck for three
quarters of a mile to a mile and observed that the vehicle was
traveling at a slow speed, weaving within its travel lane butnever crossed the line, and had mufflers that were louder than
what would be reasonably acceptable by the equipment that it came
with . . . from the factory. The State presented evidence that
the truck was traveling twenty miles per hour in both a thirty-five
miles per hour zone and a twenty-five miles per hour zone. Lt.
Osborne testified that the truck began to turn into a convenience
store, so he went ahead and activated [his] blue lights[.] The
truck pulled up to the building and stopped.
Lt. Osborne testified that he noticed a moderate odor of
alcohol when he spoke with defendant and noted that Deborah Puckett
(Ms. Puckett) was the passenger in defendant's pick up. Lt.
Osborne noticed that the defendant's speech was a little bit
slurred[,] so he had defendant submit to an alcohol screening
test. To administer the test, Lt. Osborne asked the dispatcher to
contact the Highway Patrol. Trooper Selba arrived approximately
five minutes later.
When speaking to defendant, Trooper Selba noticed that
defendant had an odor of alcohol, red and glassy eyes, mumbled when
speaking, and was unsteady on his feet. Having made these
observations and administered an alco-sensor test, Trooper Selba
concluded that defendant was unfit to drive, and had consumed a
sufficient quantity of some impairing substance so as to impair
both his mental and physical faculties. Trooper Selba also
answered in the affirmative to the question of whether defendant
was appreciably impaired. Trooper Selba arrested defendant around
10:05 p.m. A search of defendant's pickup revealed two open cansof beer and an open three inch diameter bowl of beer in the center
console of the vehicle.
Defendant was then transported to the Mount Airy Police
Department. According to the State's evidence, defendant failed
the following sobriety tests: (1) the one-leg stand; (2) the walk
and turn; and (3) the finger-to-nose test. According to the State,
defendant was read his rights pertaining to an intoxilyzer test.
Defendant provided one breath sample in which he blew a 0.09.
Defendant refused to provide a second sample. After waiving his
Miranda rights, defendant was questioned by Trooper Selba.
According to the State, defendant stated that he began drinking at
2:00 p.m., that he had consumed a few beers; when pressed, he said
that he had 'two or three.'
Defendant testified on his own behalf. In pertinent part he
stated that he had been convicted of: (1) a breaking and entering
charge twenty years ago; (2) a DWI a few years ago; and (3) driving
with a revoked license. Defendant stated that he left his home on
the day of his arrest on this charge to check on a trailer that he
owns, presumably at a location different from his home, because he
was told that someone was breaking windows out of it. Defendant
also testified that Ms. Puckett was the one who brought the beers
and that both of the open cans were hers.
Defendant presents the following issues for review: (1)
whether the trial court committed plain error in failing to
suppress evidence obtained after the traffic stop, and whether the
trial court committed plain error in instructing the jury onrefusal to provide a breath sample; (2) whether defendant's trial
counsel provided ineffective assistance of counsel; and (3) whether
the evidence was sufficient to support submission of the DWI charge
to the jury.
Defendant argues that the trial court committed plain error
when it failed to suppress evidence obtained after the traffic
stop. We disagree. [P]lain error analysis is the appropriate
standard of review when a defendant does not object to the
admission of evidence at trial. State v. Rourke
, 143 N.C. App.
672, 675, 548 S.E.2d 188, 190 (2001). In the instant case, trial
counsel failed to argue that the stop was unconstitutional.
Defendant argues that making a constitutional challenge was the
only realistic means of securing an acquittal[,] and as such, the
trial court should have made inquiry into the stop. An error will
be plain error if
it can be said the claimed error is a
error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done,' or 'where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,'
or the error has 'resulted in a miscarriage
of justice or in the denial to appellant of a
fair trial' or where the error is such as to
'seriously affect the fairness, integrity or
public reputation of judicial proceedings' or
where it can be fairly said 'the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.'
State v. Moore
, 311 N.C. 442, 445, 319 S.E.2d 150, 152 (1984)
(citations omitted). Before assessing whether there was a plain error, we must
determine whether there was an error at all. State v. Torain
N.C. 111, 116, 340 S.E.2d 465, 468, cert. denied
, 479 U.S. 836, 93
L. Ed. 2d 77 (1986). The Fourth Amendment of the United States
Constitution prohibits 'unreasonable searches and seizures' by the
Government, and its protections extend to brief investigatory stops
of persons or vehicles that fall short of traditional arrest.
United States v. Arvizu
, 534 U.S. 266, 273, 151 L. Ed. 2d 740, 749
(2002). Accordingly, in order to prevail on a motion to suppress,
defendant must first establish that he was stopped within the
meaning of the Fourth Amendment. See United States v. Mendenhall
446 U.S. 544, 551-52, 64 L. Ed. 2d 497, 507-08 (1980).
A stop will occur when, in the totality of the
circumstances, a reasonable person does not feel free to leave.
. at 554, 64 L. Ed. 2d at 509; California v. Hodari D
., 499 U.S.
621, 628, 113 L. Ed. 2d 690, 698 (1991); State v. Campbell
N.C. 644, 662, 617 S.E.2d 1, 13 (2005). A stop does not occur,
however, 'simply because a police officer approaches an individual
and asks a few questions.' State v. Johnston
, 115 N.C. App. 711,
714, 446 S.E.2d 135, 138 (1994) (citation omitted).
From the record, it appears that defendant began to turn into
a parking lot and, before he parked or had a conversation with the
police, Lt. Osborne turned on his blue lights and pulled defendant
over. Under these circumstances, a reasonable person would not
feel free to leave. In fact, motorists are required to stop when
police signal for them to do so by light or siren and [must]remain in such position unless otherwise directed by a law
enforcement officer. N.C. Gen. Stat. § 20-157(a) (2005).
Accordingly, we hold that defendant was stopped within the
meaning of the Fourth Amendment.
Having determined that there was a stop in this case, we next
address whether Lt. Osborne had reasonable suspicion to pull
defendant over. [T]he Fourth Amendment is satisfied if the
officer's action is supported by reasonable suspicion to believe
that criminal activity 'may be afoot.' Arvizu
, 534 U.S. at 273,
151 L. Ed. 2d at 749 (citations omitted); see also State v. Sutton
167 N.C. App. 242, 244, 605 S.E.2d 483, 484 (2004). 'Reasonable
suspicion' requires that the stop be based on specific, articulable
facts -- as well as the rational inferences from those facts -- as
viewed through the eyes of a reasonable, cautious officer, guided
by his experience and training. Sutton
, 167 N.C. App. at 247, 605
S.E.2d at 486. 'The only requirement is a minimal level of
objective justification, something more than an unparticularized
suspicion or hunch.' Id
. (citations omitted).
In the instant case, we find that the officer had reasonable
suspicion to suspect wrongdoing when he stopped defendant.
Defendant was driving fifteen miles per hour below the speed limit
and weaving within the lane. We have previously held that driving
twenty miles per hour below the speed limit and weaving within the
lane is sufficient to establish reasonable suspicion. See State v.
, 100 N.C. App. 628, 632, 397 S.E.2d 653, 655 (1990); State v.
, 96 N.C. App. 389, 395, 386 S.E.2d 217, 221 (1989). We donot find the difference of five miles per hour between these cases
relevant to the determination of this case. See State v. Bonds
139 N.C. App. 627, 629, 533 S.E.2d 855, 857 (2000) (citing with
approval a National Highway Traffic Safety Administration which
stated that driving ten miles per hour or more under the speed
limit showed a forty-five percent (45%) to seventy-five percent
(75%) likelihood that the motorist was driving while impaired).
Thus, even if defense counsel had objected to the admission of
evidence stemming from Lt. Osborne's stop, the evidence would still
be admissible because no violation of defendant's Fourth Amendment
rights had occurred. Because we do not find any error, defendant
cannot now claim that there was plain error. As such, we reject
defendant's assignments of error as to this issue.
Defendant also argues that the trial court committed plain
error when it instructed the jury on defendant's refusal to provide
a second breath test because he had already provided one. We
disagree. Plain error analysis is the appropriate standard of
review when a defendant does not object to the instructions given
by the trial court. State v. Duke
, 360 N.C. 110, 138, 623 S.E.2d
11, 26 (2005) (citing N.C.R. App. P. 10(b)(1); N.C.R. App. P.
10(c)(4); State v. Cummings
, 352 N.C. 600, 613, 536 S.E.2d 36, 47
(2000)). The General Assembly has already conclusively addressed
this issue. First, in determining a motorist's blood alcohol
content, at least duplicate sequential breath samples are
required. N.C. Gen. Stat. § 20-139.1(b3) (2005). When a person
refus[es] to give the sequential breath samples necessary . . .[it] is a refusal under G.S. 20-16.2(c). N.C. Gen. Stat. § 20-
139.1(b3). The General Assembly has also provided that refusal to
provide a breath sample is admissible evidence. N.C. Gen. Stat. §
Here, defendant failed to provide a second breath test which
is considered a refusal under N.C. Gen. Stat. § 20-139.1(b3).
Thus, his refusal was admissible under N.C. Gen. Stat. § 20-
139.1(f). Defendant contended at trial that his refusal was based
on the fact that the machine was not working. Trooper Selba,
however, testified that defendant refused the breath test.
Conflicts in testimony are for the jury to decide. State v. Casey
59 N.C. App. 99, 115-16, 296 S.E.2d 473, 483 (1982). We also note
that defendant's counsel told the trial court that an instruction
on refusal would be appropriate in this case. Accordingly, the
trial court did not err, much less commit plain error, when it
instructed the jury as to refusal. We therefore reject defendant's
assignments of error as to this issue.
Defendant next argues that he received ineffective assistance
of counsel. We disagree. In order to show that trial counsel was
ineffective, defendant must establish: (1) that his counsel's
performance was deficient under the circumstances of the case; and
(2) that he suffered prejudice from the inadequate representation.
Strickland v. Washington
, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693
(1984). Because we have determined that the evidence obtained
after defendant was stopped would not have been suppressed even ifthere had been an objection to its omission, defendant cannot
establish prejudice. Accordingly, we reject this assignment of
Defendant's final argument is that because he was driving
safely there was insufficient evidence for the jury to determine
that he was guilty of DWI. We disagree. Our test for determining
the sufficiency of the evidence states that 'there must be
substantial evidence of all material elements of the offense' in
order to create a question of guilt or innocense for the jury.
, 59 N.C. App. at 116, 296 S.E.2d at 483 (quoting State v.
, 304 N.C. 534, 537-38, 284 S.E.2d 500, 502 (1981)).
In ruling on this question:
'[(1)] [t]he evidence is to be considered in
[the] light most favorable to the State; [(2)]
the State is entitled to every reasonable
intendment and every reasonable inference to
be drawn therefrom; [(3)] contradictions and
discrepancies are for the jury to resolve and
do not warrant dismissal; and [(4)] all of the
evidence actually admitted, whether competent
or incompetent, which is favorable to the
State is to be considered by the court in
ruling on the motion.'
. (citations omitted).
Defendant was charged and subsequently convicted of driving
while impaired. The elements of this offense are, in relevant
part: (1) driving a vehicle upon any highway, street, or any
public vehicular area in this State; (2) while under the influence
of an impairing substance or having a blood alcohol content of 0.08
or higher at any relevant time after driving. N.C. Gen. Stat. §20-138.1(a) (2005). Taking the evidence in the light most
favorable to the State, it is clear that both elements are present
in this case.
First, it is beyond dispute that defendant was driving on a
public vehicular area in this State. Second, defendant registered
a 0.09 blood alcohol content after being administered an
intoxilyzer test. See State v. Shuping
, 312 N.C. 421, 431, 323
S.E.2d 350, 356 (1984) (results of an intoxilyzer test are reliable
evidence and are sufficient to satisfy the State's burden of proof
as to this element of the offense of DWI). Additionally, the State
put on evidence tending to show that defendant failed the following
sobriety tests: (1) the one-leg stand; (2) the walk and turn; and
(3) the finger-to-nose test. Finally, Trooper Selba concluded that
defendant was unfit to drive, and had consumed a sufficient
quantity of some impairing substance so as to impair both his
mental and physical faculties. Trooper Selba also answered in the
affirmative to the question of whether defendant was appreciably
impaired. Thus, we hold that the trial court did not error when it
denied defendant's motion to dismiss.
In summary, we find no error, much less plain error, in either
the admission of evidence stemming from Lt. Osborne's stop or the
instructions given to the jury. Because there was no error in the
admission of evidence defendant is also unable to establish that he
received ineffective assistance of counsel. Finally, we hold thatthe evidence was sufficient to submit the charge of DWI to the
Judges ELMORE and GEER concur.
Report per Rule 30(e).
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