Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA06-1324

NORTH CAROLINA COURT OF APPEALS

Filed:  19 June 2007

STATE OF NORTH CAROLINA

v .                                     Surry County
                                        No. 04CRS006064
JUNIOR DAVIS HIATT

    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.

    HUNTER, Judge.

    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.

I.

    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 'fundamental 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, 316 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. Id. 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, 359 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. Aubin, 100 N.C. App. 628, 632, 397 S.E.2d 653, 655 (1990); State v. Jones, 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. § 20-139.1(f).
    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.
II.

    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 error.
III.

    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. Casey, 59 N.C. App. at 116, 296 S.E.2d at 483 (quoting State v. Locklear, 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.”'”

Id. (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.
IV.

    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 jury.
    No error.
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***