Opinion
No. COA12–1313.
2013-06-4
STATE of North Carolina v. Steven Lamont FOREMAN.
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. James W. Carter for Defendant–Appellant.
Appeal by Defendant from judgment entered 16 May 2012 by Judge Quentin T. Sumner in Superior Court, Edgecombe County. Heard in the Court of Appeals 14 May 2013. Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. James W. Carter for Defendant–Appellant.
McGEE, Judge.
The sole issue before us is whether Steven Lamont Foreman (Defendant) was denied effective assistance of counsel because of his trial counsel's failure to move to suppress evidence obtained by an allegedly illegal arrest of Defendant.
Defendant was arrested and charged on 22 April 2010 with driving while impaired and driving without a driver's license. Defendant pleaded guilty to the charge of driving while impaired in Edgecombe County District Court and received an active sentence. Defendant appealed to superior court, where a jury found him guilty of that offense. The trial court determined Defendant to be a Level One offender and sentenced Defendant to an active sentence of two years. Defendant appeals.
The State's evidence at trial tended to show that on 22 April 2010, Deputy Julie Worley (Deputy Worley) of the Edgecombe County Sheriff's Office was patrolling the Conetoe area when she noticed a vehicle stopped at an intersection where there was no stop sign. Deputy Worley observed that the driver of the vehicle appeared to be leaning forward. She drove beside the vehicle so that her driver's window was directly across from the driver's window of the stopped vehicle. Deputy Worley spoke to the driver, identified as Defendant, who told her that he was working on a new radio. He also told her that he lived in a trailer park that was one block away. Deputy Worley told him that he could not remain in the roadway and that he should move his vehicle to his house to continue to work on the radio.
As Defendant drove forward, Deputy Worley observed that the rear taillights of Defendant's vehicle were not operating. She turned around and followed Defendant to his residence for the purpose of advising him of that fact. Deputy Worley exited her vehicle and approached Defendant while he was still seated in his vehicle. Defendant mumbled something to Deputy Worley that she could not understand, but she smelled an odor of alcohol.
Because people were coming out of their residences in the trailer park, Deputy Worley called for backup assistance. While awaiting the arrival of another officer, she asked Defendant whether he had been drinking and Defendant admitted that he had. Corporal Robert Tinder (Corporal Tinder) arrived and Deputy Worley told him what had occurred. Corporal Tinder advised her to perform a horizontal gaze nystagmus (HGN) test upon Defendant while he monitored the crowd. After Deputy Worley administered the test under Corporal Tinder's supervision, Corporal Tinder gave her the code to arrest Defendant and charge him with driving while impaired.
Deputy Worley transported Defendant to the magistrate's office, where she turned Defendant over to State Highway Patrol Trooper Lynn Porcher (Trooper Porcher) to conduct further tests. Trooper Porcher observed that Defendant's eyes were red and glassy and that his speech was slurred. Trooper Porcher detected a moderate odor of alcohol upon Defendant's person. Trooper Porcher asked Defendant whether he had been drinking and Defendant admitted he had. Trooper Porcher administered field sobriety tests to Defendant. The HGN test indicated Defendant had some type of impairment or impairing substance because he could not control the jerking of his eyes. In six attempts to perform the finger to nose test, Defendant hunted for his nose three times, hit the pad of his nose twice, and completely missed his nose one other time. Defendant missed only the letter “o” in performing the alphabet test. Finally, the lower of two readings of the intoxilyzer test indicated Defendant had a blood alcohol content of 0.16. Trooper Porcher concluded that Defendant “had consumed a sufficient amount of an impairing substance to impair both his mental and physical faculties to operate a motor vehicle.”
Defendant testified at trial that he had been drinking on the evening in question. Defendant stated that he had given his keys to his cousin, who resembled him, to make a run for more beer. His cousin had just returned from making the run, and Defendant was standing next to him when Deputy Worley arrived at his residence. Defendant subsequently had no contact with his cousin.
Defendant contends that his trial counsel rendered ineffective assistance by not challenging the legality of Defendant's arrest. Defendant argues that Deputy Worley lacked probable cause to arrest him. To make a successful claim of ineffective assistance of counsel, a defendant must show: (1) his counsel made serious errors; and (2) his counsel's errors prejudiced the defense. State v. Braswell, 312 N.C. 553, 561–62, 324 S.E.2d 241, 247–48 (1985). “[I]f a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient.” Id. at 563, 324 S.E.2d at 249. We conclude that, even if Defendant's trial counsel had challenged the legality of the arrest by a motion to suppress, it is not reasonably probable that Defendant would have prevailed upon the motion.
An arrest without a warrant is lawful if the officer has probable cause to believe the person committed a criminal offense. N.C. Gen.Stat. § 15A–401(b)(1) & (2) (2011). Probable cause exists when, at the time of an arrest, there are “facts and circumstances within the knowledge of the arresting officer which would justify a prudent [person's] belief that a suspect had committed an offense.” State v. Rinck, 303 N.C. 551, 561, 280 S.E.2d 912, 921 (1981) (citation omitted).
We hold Deputy Worley had ample probable cause to believe that Defendant had committed the offense of driving while impaired. Deputy Worley observed Defendant in the driver's seat of a vehicle stopped at a roadway intersection without a stop sign at 9:30 p.m. She observed Defendant operate the vehicle on the public roadway. While speaking to Defendant in the driveway of his residence minutes later, Deputy Worley observed that Defendant mumbled when he spoke. Deputy Worley also noted the odor of alcohol on Defendant's person. Defendant told Deputy Worley that he had been drinking. With her experienced supervising officer as a witness, Deputy Worley administered the HGN test which gave some indication that Defendant was impaired by an intoxicating substance. Defendant's argument that Deputy Worley lacked probable cause to arrest him is without merit.
No error. Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).