Opinion
No. COA12–497.
2012-11-20
STATE of North Carolina v. Sinetta Michelle RUIZ.
Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. Irons & Irons P.A., by Ben G. Irons, II, for Defendant.
Appeal by Defendant from judgment entered 9 December 2011 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 25 September 2012. Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. Irons & Irons P.A., by Ben G. Irons, II, for Defendant.
BEASLEY, Judge.
Sinetta Michelle Ruiz (Defendant) appeals from judgment entered on her conviction for driving while impaired. For the following reasons, we find no error.
On 4 January 2010 around 8:00 or 8:30 p.m., Defendant was driving her vehicle in a grocery store parking lot when she struck another vehicle that was parked in the parking lot. Defendant parked, exited the driver's side of the vehicle, and entered the store with her passenger. Five minutes later, Defendant and her passenger exited the store, “looked around,” and drove away. Officer Holtzclaw relayed Defendant's license plate number to police dispatch. Officer Soward located the vehicle, waited for Officer Dillon to join him, and both spoke with Defendant. Defendant admitted to driving the vehicle and was arrested for hit and run. While in custody, Defendant admitted to drinking and smoking marijuana earlier in the evening. Defendant failed several sobriety tests and registered an alcohol concentration of .11 grams per 210 liters of breath.
On 25 October 2010, Defendant was adjudged guilty of driving while impaired and hit and run with property damage in district court. Defendant appealed to superior court, with jury trial beginning on 8 December 2011. That morning, at the start of the trial, Defendant requested a continuance on the grounds that she had been involved in a serious car accident on 5 December 2011. Defendant claimed she had a fractured toe, a broken foot, and contusions of the chest; she also claimed she was taking Oxycodone, Percocet, and Laxol.
At trial, the owner of the damaged vehicle testified that her vehicle sustained $155.08 worth of damage. Officer Soward knew Defendant from other incidents but the trial court directed the State and Officer Soward to avoid any mention of this. However, Officer Soward testified before the jury that he knew Defendant from “several incidents.” The court denied Defendant's motion for mistrial but left the issue open until the following morning for Defendant to prepare a well-supported argument. Defendant did not provide a new argument and the court offered to provide a curative instruction; Defendant declined.
The jury unanimously found Defendant guilty of driving while subject to an impairing substance and not guilty of hit and run with property damage.
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“[A] default precluding appellate review on the merits necessarily arises when the appealing party fails to complete all of the steps necessary to vest jurisdiction in the appellate court. It is axiomatic that courts of law must have their power properly invoked by an interested party.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 364 (2008). “A jurisdictional default ... precludes the appellate court from acting in any manner other than to dismiss the appeal. Id. at 197, 657 S.E.2d at 365. Rule 4 of the North Carolina Rules of Appellate Procedure provides that notice of appeal “shall designate ... the court to which appeal is taken” and shall be served on the other party. N.C. R.App. P. 4(b), (c). Without compliance with this rule, this Court is deprived of jurisdiction and the appeal must be dismissed. State v. McMillian, 101 N.C.App. 425, 427, 399 S.E.2d 410, 411 (1991).
Our Supreme Court has ruled that service of the notice of appeal may be waived by participating in the appeal without objection or failing to file a motion. Hale v. Afro–American Arts International, 335 N.C. 231, 232, 436 S.E.2d 588, 589 (1993)( per curiam ). Our Supreme Court further adopted the premise that the proper time for objecting to the lack of service of notice of appeal is prior to settling the record on appeal and should be addressed with the trial court. See Hale v. Afro–American Arts International, 110 N.C.App. 621, 624–25, 430 S.E.2d 457, 459–60 (1993)(Wynn, J., dissenting), rev'd per curiam,335 N.C. 231, 436 S.E.2d 588 (1993)(adopting dissent).
Here, there is nothing in the record to indicate that notice of appeal was served on the State as required by the rule. However, the proposed record on appeal was served on the State on 9 March 2012. Such service would be sufficient to notify the State that an appeal was pending; the State should have filed an objection at this point in time. Instead, Defendant settled the record on 24 April 2012 after the time for the State to respond to the notice of the record on appeal had expired. On 26 April 2012, Defendant filed a petition for writ of certiorari in the event that this Court found it lacked jurisdiction. The State's first active response came in the form of a response brief to this petition, which it filed 8 May 2012 and claimed that jurisdiction was lacking due to failure to serve the notice of appeal. However, this course of events constitutes waiver on the State's part, given that the State allowed the record of appeal to be settled without objection to the appeal itself. As such, this Court has the jurisdiction necessary to hear this appeal.
Defendant first argues that the trial court erred in denying her motion to continue, as this violated her constitutional right to confront her accusers and present her defense. We disagree.
We review the trial court's denial de novo as a question of law. State v. Maher, 305 N.C. 544, 547, 290 S.E.2d 694, 696 (1982) (“[W]hen the motion [for continuance] is based on a constitutional right the ruling of the trial judge is reviewable on appeal as a question of law.”).
Ordinarily, a motion to continue is addressed to the discretion of the trial court, and absent a gross abuse of that discretion, the trial court's ruling is not subject to review. When a motion to continue raises a constitutional issue, the trial court's ruling is fully reviewable upon appeal. Even if the motion raises a constitutional issue, a denial of a motion to continue is grounds for a new trial only when defendant shows both that the denial was erroneous and that he suffered prejudice as a result of the error.
State v. Taylor, 354 N.C. 28, 33–34, 550 S.E.2d 141, 146 (2001) (internal citations omitted).
“Continuances should not be granted unless the reasons therefor are fully established. Therefore, a motion for continuance should be supported by an affidavit showing sufficient grounds.” State v. Horner, 310 N.C. 274, 277, 311 S.E.2d 281, 284 (1984) (citations omitted). Defendant fails to show that the denial was erroneous or that she suffered prejudice as a result of the denial. Defendant herself testified, but the trial court found her testimony to be “appropriately responsive” and we agree. Defendant's answers were consistent throughout her testimony. Contrary to Defendant's argument, we find no apparent indications of inhibiting effects from medication in Defendant's testimony. Further, as the trial court noted, Defendant failed to produce a medical note indicating that her prescribed dosage of medication would render her incapable of testifying or participating in the trial. Defendant proffers no legitimate constitutional breach and we find none.
We find that the Defendant has made no showing of either error or prejudice sufficient to warrant overturning the denial of the motion to continue. Defendant's argument is overruled.
Defendant next argues that the trial court erred in denying her motion for a mistrial. We disagree.
We review a trial court's denial of a motion for a mistrial for abuse of discretion. “An abuse of discretion occurs when a ruling is ‘manifestly unsupported by reason, which is to say it is so arbitrary that it could not have been the result of a reasoned decision.’ “ State v. Taylor, 362 N.C. 514, 538, 669 S.E.2d 239, 260 (2008)(quoting State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998)).
“The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.” N.C. Gen.Stat. § 15A–1061 (2011). “Mistrial is a drastic remedy, warranted only for such serious improprieties as would make it impossible to attain a fair and impartial verdict.” Taylor, 362 N.C. at 538, 669 S.E.2d at 260 (internal quotations marks and citations omitted).
Defendant argues that Officer Soward's statement that he went to her house because he knew of her “through several incidents” created the need for a mistrial due to its prejudicial effect on the jury. Defendant cites no authority to support her position. While the trial court had directed the prosecutor and Officer Soward to avoid any reference to how or even that Officer Soward knew Defendant, Officer Soward nonetheless made the statement on direct examination. All parties agreed that the statement was not made purposefully or with malice.
Additionally, the trial court offered to provide a curative instruction to the jury, but the Defendant declined. While such a refusal may have been a sound trial strategy, a curative instruction would have definitively nullified any claim for a mistrial under the standard above. As such, Defendant may not now claim the trial court's denial of her motion for a mistrial was in error when she refused the curative instruction.
Further, Defendant admitted to prior marijuana use without any reference to prior incidents by the State. Defendant also admitted that the officer was aware of her reputation for marijuana use. Such comments were unconnected to Officer Soward's statement and were freely given by Defendant without any specific inquiry by the State. As such, the officer's statement created no prejudice. Defendant's argument is overruled.
Defendant last argues that the trial court erred in denying her motion to dismiss the charge on which she was convicted. We need not address the merits of this argument because Defendant has waived her right to appeal on this issue due to the motion's improper form and untimeliness.
Where a defendant challenges the admissibility of evidence on constitutional grounds, she must do so exclusively through a motion to suppress. N.C. Gen.Stat. § 15A–979(d) (2011); State v. Golden, 96 N.C.App. 249, 252, 385 S.E.2d 346, 348 (1989).
A motion to suppress evidence in superior court made before trial must be in writing and a copy of the motion must be served upon the State. The motion must state the grounds upon which it is made. The motion must be accompanied by an affidavit containing facts supporting the motion.
N.C. Gen.Stat. § 15A–977(a) (2011). Further, “the defendant may move to suppress evidence only prior to trial unless the defendant did not have reasonable opportunity to make the motion before trial or unless a motion to suppress is allowed during trial” because the State failed to properly notify the defense of the evidence or new evidence is discovered during trial. N.C. Gen.Stat. § 15A–975 (2011) (emphasis added).
Treating defendant's motion to dismiss as one to suppress evidence, defendant has the burden of establishing that the motion was proper in form and timely as set forth above.... Our Supreme Court has held that a defendant's failure to meet the requirements of G.S. Sec. 15A–977 waives his right to contest on appeal the admission of evidence on statutory or constitutional grounds.
Golden, 96 N.C.App. at 253, 385 S.E.2d at 348 (citing State v. Holloway, 311 N.C. 573, 577–78, 319 S.E.2d 261, 264 (1984)).
Defendant cites State v. Foreman, 351 N.C. 627, 527 S.E.2d 921 (2000) in support of her argument that her motion to dismiss should be analyzed as a motion to suppress and heard on its merits. However, as Defendant herself points out, in Foreman, the defense filed a motion to dismiss prior to the start of trial, which included a motion to suppress in the alternative. Id. at 628, 527 S.E.2d at 922. Thus, when the motion to dismiss was reviewed and analyzed as a motion to suppress (under the alternative argument), the motion to suppress was timely and properly filed before trial. Id. Here, that is not the case. Even if we were willing to regard Defendant's motion to dismiss as a motion to suppress, that does not resolve the problem of timeliness and proper form. Defendant's motion was not filed in writing, was not accompanied by an affidavit, and was not filed prior to trial. SeeN.C. Gen.Stat. § 15A–977(a) (2011); Golden, 96 N.C.App. at 252–53, 385 S.E.2d at 348–49 (dismissing such an appeal on the same grounds). There are no extenuating circumstances that would permit a late filing in this case. Consequently, Defendant has waived her right to appeal on this matter and we dismiss this argument.
No Error.
Report per Rule 30(e).