Opinion
No. COA11–1239.
2012-05-15
STATE of North Carolina v. Steven Ray ROUSE, Defendant.
Roy Cooper, Attorney General, by Tammera S. Hill, Assistant Attorney General, for the State. Kevin P. Bradley, for defendant-appellant.
Appeal by defendant from judgments entered 29 April 2011 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 23 April 2012. Roy Cooper, Attorney General, by Tammera S. Hill, Assistant Attorney General, for the State. Kevin P. Bradley, for defendant-appellant.
MARTIN, Chief Judge.
Defendant Steven Ray Rouse appeals from judgments entered upon jury verdicts finding him guilty of driving while impaired and of driving while license revoked. We find no error, but remand for a clerical correction in the judgment.
The evidence tended to show that, on 23 May 2010, Officer Joseph Dollar with the Charlotte–Mecklenburg Police Department was travelling northbound on South Tryon Street in Charlotte, North Carolina, when he observed a vehicle that “was weaving within the lane of travel” and “was not able to maintain steady lane position .” After the vehicle “drew [the officer's] attention,” Officer Dollar “ran the license plate ... and the license plate came back stolen.” Officer Dollar then activated his blue lights and signaled for the vehicle to pull over. When the officer approached the vehicle, he saw that there were four occupants therein, “noticed the odor of alcohol coming from the vehicle,” and saw “an open container of what [he] believed to be alcohol in the back seat.” Officer Dollar testified that defendant was in the driver's seat and had been operating the vehicle. Because the officer could not “distinguish whether ... the odor of alcohol was coming from [defendant] or if it was coming from the open container that was in the vehicle,” Officer Dollar asked defendant to step out of the vehicle. Once out of the vehicle, the officer “continued to smell the odor of alcohol on [defendant's] breath,” and called for additional units to assist him.
When Officer Paul Horner arrived at the scene, he observed that there was “a moderate odor of alcohol coming from [defendant's] nose and mouth,” that defendant had “red, glassy eyes,” and that defendant's “speech was slightly slurred.” After administering a field sobriety test to defendant, Officer Horner—who was certified by the National Highway Transportation and Safety Administration to administer field sobriety tests—formed the opinion that defendant had “consumed a significant quantity of [the] impairing substance [alcohol] to impair his mental or physical faculties.” About an hour-and-a-half after defendant was first stopped, Officer Horner—who is also licensed as a chemical analyst by the North Carolina Department of Health and Human Services to operate an Intox ECIR2, which measures the alcohol content in a subject's breath—determined that defendant's blood alcohol content was 0.09.
On 23 May 2010, defendant was cited for driving while impaired in violation of N.C.G.S. § 20–138.1 and for driving while license revoked in violation of N.C.G.S. § 20–28(a). Defendant was found guilty of both offenses by the Mecklenburg County District Court; defendant appealed to superior court. Defendant moved to suppress the Intox ECIR2 blood alcohol content results and moved in limine to prohibit counsel and witnesses from referring to “the open containers found in the vehicle” or to any “facts pertaining to the stolen tags”; all such motions were denied. A jury found defendant guilty of the charged offenses. Upon the parties' stipulation, the court found that defendant had two prior North Carolina convictions involving impaired driving within the last seven years, and thus determined that defendant should receive a Level One punishment for his driving while impaired conviction. Defendant was sentenced to a term of twenty-four months imprisonment for his driving while impaired conviction and to a consecutive term of 120 days imprisonment for his driving while license revoked conviction. Defendant appeals.
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Defendant first contends his counsel was ineffective because, in both his opening statement and closing argument, defense counsel said that Officers Horner and Dollar “are very good officers.” Specifically, defendant asserts that his counsel's remarks “bolster[ed] the credibility” of the testifying officers and “undermined argument against the truth of their evidence.” We disagree.
“When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness.” State v. Braswell, 312 N.C. 553, 561–62, 324 S.E.2d 241, 248 (1985) (citing Strickland v. Washington, 466 U.S. 668, 687–88, 80 L.Ed.2d 674, 693,reh'g denied,467 U.S. 1267, 82 L.Ed.2d 864 (1984)). “In order to meet this burden defendant must satisfy a two part test.” Id. at 562,324 S.E.2d at 248. “ ‘First, the defendant must show that counsel's performance was deficient,’ “ which “ ‘requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.’ “ Id. (quoting Strickland, 466 U.S. at 687, 80 L.Ed.2d at 693). “ ‘Second, the defendant must show that the deficient performance prejudiced the defense,’ “ which “ ‘requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ “ Id. (emphasis omitted) (quoting Strickland, 466 U.S. at 687, 80 L.Ed.2d at 693).
In the present case, during his opening statement, defense counsel made the following, now-challenged remarks:
Officer Horner and Officer Dollar are very good officers, lots of experience, and they performed some field sobriety tests that day. And from their interpretation, they arrested [defendant].
Nevertheless, a review of defense counsel's opening and closing remarks in their entirety show that counsel did not solely laud the State's witnesses as “very good officers.” Instead, throughout his opening and closing remarks, counsel encouraged the jury to consider the possibility that Officers Horner and Dollar made mistakes in spite of their general competence, arguing:
Just because you get arrested for something doesn't mean you're guilty of the offense. Officers are like anybody else; they can make mistakes. We're all human.
....
Machines make mistakes. People makes [sic] mistakes. It's human nature.
....
Now, we talked about, at length, regarding the instrument that Officer Horner was operating that day.... [Y]ou heard Officer Paul Horner, who is a very good officer, you heard his testimony. The instrument doesn't make mistakes.... You know, if the machine has to have preventive maintenance, it has to be calibrated, but it never makes mistakes? ... Mistakes happen. Machines, instruments, people, they happen. You've got to keep an open mind here.
....
People make mistakes, good officers make mistakes, it happens.
....
Mistakes happen. It happens, it's human nature, it happens. But it matters to [defendant], because those mistakes led him to be sitting before you all today. They led to him being charged with driving while impaired.
....
The evidence presented by Officer Horner, who is a very good officer, he just got it wrong this time....
After reviewing defense counsel.s challenged remarks in context, we are not persuaded that counsel's characterization of Officers Horner and Dollar as “good” yet fallible caused his “ ‘representation [to fall] below an objective standard of reasonableness.’ “ See State v. Fletcher, 354 N.C. 455, 482, 555 S.E.2d 534, 551 (2001) (quoting Strickland, 466 U.S. at 688, 80 L.Ed.2d at 693),cert. denied,537 U.S. 846, 154 L.Ed.2d 73 (2002). Instead, we conclude that counsel could have reasonably made a tactical decision to refrain from challenging the officers' general professionalism and competence, while still encouraging the jury to find that the officers arrested defendant on 23 May 2010 as a result of their inadvertent mistakes. Accordingly, since “[c]ounsel is given wide latitude in matters of strategy, and the burden to show that counsel's performance fell short of the required standard is a heavy one for defendant to bear,” see id., we hold that defendant has not satisfied his burden to demonstrate that counsel's performance was rendered deficient as a result of these remarks and overrule this issue on appeal.
Defendant next contends defense counsel's performance was deficient because counsel began his closing argument to the jury by sharing the following personal anecdote:
I don't know if this has ever happened to any of you, but it actually happened to me one time. I actually went to the ATM, ... it was about eight o'clock at night. I put my card in, put my code in, asked to withdraw $120.00. The cash came out and I grabbed it, you know, I asked it to print a receipt, the receipt printed, I got my card back.
As I was putting my things back in my wallet, I looked at the money that I received; it was $60.00. I was like, wait a minute, what's happened? ... So I look at my receipt, the receipt says $120.00. I only have $60.00. Something's wrong.
There's nothing I can do about it, it's eight o'clock at night, so I went home. The first place I went, though, in the morning was the bank. Hey, hey, hey, this is what happened, here's my receipt, here's the money, it didn't give me what I asked for. The bank was very, very nice about it, presumed that I was telling the truth, presumed that I was innocent, they gave me my $60.00, and that was the end of it.
... [T]hey presumed I was innocent and they gave me my money. The ATM has made a mistake that night.... Machines make mistakes. People makes [sic] mistakes. It's human nature.
Defendant urges that these remarks were violative of N.C.G.S. § 15A–1230(a), which provides in part: “During a closing argument to the jury an attorney may not ... inject his personal experiences ... or make arguments on the basis of matters outside the record except for matters concerning which the court may take judicial notice.” N.C. Gen.Stat. § 15A–1230(a) (2011). Although defendant asserts that counsel's retelling of this personal anecdote to the jury rendered counsel's performance deficient because he “injected his own credibility into [defendant's] defense,” after reviewing these remarks in the context of defense counsel's closing as a whole, we are not persuaded by defendant's assertion on appeal. Instead, we conclude that counsel's anecdote about a faulty bank ATM was used only to illustrate the theory upon which he relied during defendant's trial; that neither people nor machines are infallible. Cf. State v. Bell, 359 N.C. 1, 20–21, 603 S.E.2d 93, 107 (2004) (“Looking at the prosecutor's statements in context, it is clear that the prosecutor employed the use of an analogy to aid in explaining a complex legal theory.... Given that the prosecution clearly linked its analogy to the legal theory it was meant to represent, we cannot now say that the trial court erred by allowing the prosecution to make its argument.”), cert. denied,544 U.S. 1052, 161 L.Ed.2d 1094 (2005). Accordingly, we overrule this issue on appeal.
Finally, defendant contends the trial court erred by imposing a Level One punishment upon him for his driving while impaired conviction, because defendant asserts that the evidence presented to the trial court only established that there was one grossly aggravating factor in violation of N.C.G.S. § 20–179(c)(1)(a).
N.C.G.S. § 20–179(c) provides that “[t]he judge must impose the Level One punishment under subsection (g) of this section if it is determined that the grossly aggravating factor in subdivision (4) of this subsection applies or two of the other grossly aggravating factors apply.” N.C. Gen.Stat. § 20–179(c) (2011) (emphasis added). A “grossly aggravating factor[ ]” includes “[a] prior conviction for an offense involving impaired driving if ... [t]he conviction occurred within seven years before the date of the offense for which the defendant is being sentenced,” N.C. Gen.Stat. § 20–179(c)(1)(a), and “[e]ach prior conviction is a separate grossly aggravating factor.” N.C. Gen.Stat. § 20–179(c)(1). “A defendant subject to Level One punishment may be fined up to four thousand dollars ($4,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 30 days and a maximum term of not more than 24 months.” N.C. Gen.Stat. § 20–179(g); cf.N.C. Gen.Stat. § 20–179(h) (“A defendant subject to Level Two punishment may be fined up to two thousand dollars ($2,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than seven days and a maximum term of not more than 12 months.”).
Defendant concedes that his counsel stipulated to the prior convictions set out in Section IV of the Prior Record Level Worksheet included in the record, and concedes that the form lists two separate North Carolina driving while impaired convictions dated 22 September 2008 and 1 October 2007. However, the form also indicates that these 2007 and 2008 convictions both occurred in Mecklenburg County and both share File No. 08 CR 239995, which defendant asserts is not supported by the redacted driving record from the North Carolina Division of Motor Vehicles (“DMV”). Although the DMV driving record includes a 22 September 2008 conviction in Mecklenburg County under File No. 08 CR 239995 and a 1 October 2007 conviction in Lincoln County under File No. 07 CR 005763, defendant suggests that, because the offense descriptions for the 2007 and 2008 convictions in the driving record before us are redacted, the evidence before the trial court was similarly insufficient to establish that the 1 October 2007 conviction was a second prior conviction for driving while impaired. Since the record before us includes only a redacted certified copy of defendant's DMV driving record, we cannot independently confirm whether the 1 October 2007 conviction was a conviction for the offense of driving while impaired. Nevertheless, because defense counsel stipulated in open court at least twice that defendant had two prior North Carolina convictions for driving while impaired within seven years of the conviction in the present case, we conclude the trial court did not err by accepting defendant's oral stipulation as proof of his prior North Carolina convictions. SeeN.C. Gen.Stat. § 15A–1340.14(f)(1) (2011) (“A prior conviction shall be proved by any of the following methods[, including] ... [s]tipulation of the parties.”); see also State v. Eubanks, 151 N.C.App. 499, 506, 565 S.E.2d 738, 743 (2002) (“[W]e hold that the statements made by the attorney representing defendant in the present case may reasonably be construed as a stipulation by defendant that he had been convicted of the charges listed on the worksheet.”). Accordingly, we hold that the trial court did not err by imposing a Level One punishment for defendant's 29 April 2011 driving while impaired conviction. Additionally, although we find no error in the judgment, we remand this matter to the trial court to correct the apparent clerical error in Section IV of the Prior Record Level Worksheet which lists the same file number and offense county for defendant's 22 September 2008 and 1 October 2007 driving while impaired convictions.
We decline to address any remaining assertions in support of which defendant has failed to present authority or argument as required by the Appellate Rules. SeeN.C.R.App. P. 28(a) (“The function of all briefs required or permitted by these rules is to define clearly the issues presented to the reviewing court and to present the arguments and authorities upon which the parties rely in support of their respective positions thereon. The scope of review on appeal is limited to issues so presented in the several briefs.”).
No error; Remand for clerical correction in judgment. Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).