Opinion
No. COA09-1062
Filed 18 May 2010 This case not for publication
Appeal by defendant from judgment entered 9 April 2009 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 9 February 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton, for the State. William D. Auman for defendant appellant..
Forsyth County No. 07 CRS 58188.
Dolores Marie Wright ("defendant") appeals as a matter of right from a jury verdict of guilty of misdemeanor driving while impaired. On appeal, defendant contends that the trial court committed plain error by allowing the arresting officer to (1) testify regarding statements made by defendant to him prior to being given a Miranda warning, and (2) render expert testimony that defendant was impaired by prescription drugs at the time of the incident. Based upon these contentions, defendant maintains that the trial court should have granted her motion to dismiss, as there would have been insufficient evidence of the elements of misdemeanor driving while impaired if the trial court had not committed plain error. After review, we conclude that the trial court did not err by admitting the officer's testimony, as defendant's own testimony at trial supports the officer's testimony and defeats her plain error argument. As such, we hold that defendant's assignments of error are without merit and defendant received a trial free of prejudicial error.
I. FACTUAL BACKGROUND
On 15 August 2007, at approximately 5:00 p.m., after taking three 5-milligram pills of Ambien, defendant drove her Subaru station wagon into a utility pole on Academy Street in Winston-Salem, North Carolina. Defendant was charged with driving while impaired, pursuant to N.C. Gen. Stat. § 20-138.1 (2009), and failing to decrease speed to avoid colliding with property, pursuant to N.C. Gen. Stat. § 20-141(m) (2009). On 9 June 2008, the charge of failing to decrease speed was dismissed, and defendant was tried and found guilty of driving while impaired in Forsyth County District Court. On 17 June 2008, defendant appealed to the superior court, and the matter was called for trial on 7 April 2009.
Ambien is a sedative that is used for short-term treatment of insomnia.
During defendant's misdemeanor appeal trial, the State's sole witness was Officer T.S. Hanks ("Officer Hanks"), a five-year veteran of the Winston-Salem Police Department. Officer Hanks was tendered as a drug recognition expert without objection after he gave extensive testimony regarding his years of experience and the training that he received while becoming formally certified as a drug recognition expert in November of 2007. Prior to entering the drug recognition program, Officer Hanks was required to attend a two-day course wherein he demonstrated his proficiency in conducting standardized field sobriety tests. Moreover, Officer Hanks testified that the actual drug recognition program lasted approximately fifty-six hours and required the officer to pass both a written examination and a field certification.
Officer Hanks' testimony regarding the 15 August 2007 incident tended to show the following: On 15 August 2007, at approximately 7:30 p.m., Officer Hanks responded to a radio dispatch of an accident on Academy Street in Winston-Salem, North Carolina. Upon his arrival, Officer Hanks noticed that a white Subaru station wagon had struck a utility pole located off the right side of the road; however, the driver was not in the vehicle. A bystander gave a brief description of the driver, and defendant, matching the description, was located walking on Academy Street about one-tenth of a mile away from the accident and determined to be the driver of the vehicle.
Officer Hanks approached defendant at approximately 7:45 p.m., at which point he noted that defendant had a minor cut on her leg and was slurring her speech. When asked about the accident and whether defendant had taken any impairing substance, defendant told the officer that she was the driver of the white Subaru and that she had taken three 5-milligram prescription Ambien pills at approximately 4:00 p.m. that day.
Officer Hanks conducted four standardized field sobriety tests on defendant including the horizontal gaze nystagmus ("HGN") test, the walk-and-turn, the one-legged-stand, and the Romberg Balance test . While conducting the HGN test, the officer noticed that defendant was unsteady on her feet and exhibited all the signs of impairment. During the walk-and-turn test, defendant lost her balance twice, missed the heel-and-toe four times, stepped off the line twice, and took eleven steps instead of nine. In addition, defendant could not complete the one-legged-stand test due to her unsteadiness. Finally, during the Romberg test, when defendant was asked to estimate the time it takes thirty seconds to pass by opening her eyes, defendant began swaying in a circular motion and opened her eyes after 50 seconds had passed. Officer Hanks explained that the Romberg test is important because a driver must be able to properly estimate time while driving in order to avoid collisions with other vehicles. After Officer Hanks concluded that defendant was appreciably impaired, defendant was arrested and taken to the magistrate's office where Officer Hanks Mirandized defendant.
The HGN test is a field sobriety test which tracks pupil size and eye movement for signs of impairment.
During the walk-and-turn test, the officer asks the person to walk a straight line by placing the left foot on a line, and putting the right foot in a heel-to-toe manner, with the person's arms remaining at his/her side.
The one-legged-stand test is a field sobriety test wherein a person is asked to raise one foot six inches from the ground for a period of time determined by the officer.
The Romberg sobriety test is a test of a person's internal clock and his/her ability to estimate the passage of time.
At the magistrate's office, defendant waived her Miranda rights and agreed to participate in a drug influence evaluation, consisting of a screening for alcohol and a repeat of the aforementioned field sobriety tests. Defendant tested negative for the presence of alcohol, but again failed each of the sobriety tests. During the drug influence evaluation interview, defendant told Officer Hanks that she had taken three Ambien pills at approximately 5:00 p.m., and had taken Seroquel, a central nervous system depressant, earlier that day. In addition, when asked by Officer Hanks to rate her intoxication on a scale of 0 to 10, defendant stated that she was at about a four. During this time, the officer also noted that defendant was yawning and that her face was flushed, both of which he believes are consistent with impairment. A subsequent blood test confirmed that defendant's impairment was caused by her taking Ambien and also showed the presence of cocaine metabolite. The entire drug influence evaluation, as described above, was recorded at the time of the incident, and a video of the evaluation was shown to the jury during the trial.
The trial court denied defendant's motion to dismiss at the close of the State's case-in-chief, and defendant took the stand in her own defense. Her testimony tended to show the following: Defendant, a 64-year-old woman, took three 5-milligram pills of Ambien around 5:00 p.m. and fell asleep shortly thereafter. Defendant subsequently drove her vehicle into a utility pole while sleeping.
Defendant contends that the accident occurred due to the adverse side effects of Ambien. Defendant further testified that she did not know where she was going at the time of the accident, and that she was approached by Officer Hanks after she left her vehicle and began walking back to her husband's home after the accident to tell him what happened.
Finally, defendant stated that she did not recall anything from the scene of the accident, nor participating in the standard field sobriety tests administered by Officer Hanks, or answering Officer Hanks' questions during the interview. However, when asked whether she admitted taking Ambien and Seroquel to the officer, defendant stated, "I'm sure I did since that's what the video showed, but I don't remember it. I mean, I'm sure I did, the video showed it, and my voice was saying it, but I don't remember telling him."
During its rebuttal case, the State recalled Officer Hanks who testified that defendant was not asleep at the time he encountered her. Specifically, Officer Hanks stated that
[defendant] was awake, . . . her eyes never closed while she was in my presence[.] . . . She was not sleeping, however she was carrying on a conversation, her eyes were blinking, she was breathing, and at no point during the time did I notice that she was lapsing in and out of consciousness.
The State rested after its rebuttal and defense counsel renewed its motion to dismiss, which the trial court denied.
After being properly charged and instructed by the trial court, the jury found defendant guilty of driving while impaired. Defendant received a sixty-day suspended sentence with supervised probation after she was determined to be a level V for sentencing purposes. On 20 April 2009, defendant, through appointed counsel, filed notice of appeal to this Court. We now review defendant's assignments of error pursuant to N.C. Gen. Stat. § 7A-27(b) (2009).
II. OFFICER HANKS' TESTIMONY
Defendant's first two assignments of error on appeal assert that the trial court committed plain error by (1) allowing Officer Hanks to testify to defendant's statements prior to being given a Miranda warning, and (2) allowing Officer Hanks to be tendered as an expert in drug recognition. We disagree.
A. Standard of Review
Defendant did not make a proper objection at trial to Officer Hanks' testimony regarding her pre- Miranda statements, or to his being tendered as an expert. With regard to defendant's pre- Miranda statement, "[i]t is well established that appellate courts will not ordinarily pass on a constitutional question unless the question was raised in and passed upon by the trial court." State v. Muncy, 79 N.C. App. 356, 364, 339 S.E.2d 466, 471 (1986). "However, the North Carolina Rules of Appellate Procedure allow review for `plain error' in criminal cases even where the error is not preserved `where the judicial action questioned is specifically and distinctly contended to amount to plain error.' N.C. R. App. P. 10(c)(4) (2009) (amended Oct. 1, 2009)." State v. Mobley, ___ N.C. App. ___, ___, 684 S.E.2d 508, 510, disc. review denied, 363 N.C. 809, ___ S.E.2d ___ (2010). As defendant asserts plain error on appeal, we must review defendant's first and second assignments to determine whether the alleged error "was `so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'" State v. Jones, 137 N.C. App. 221, 226, 527 S.E.2d 700, 704 (2000).
"[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, 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."'"
State v. Steen, 352 N.C. 227, 255, 536 S.E.2d 1, 18 (2000) (citations omitted). Moreover, because we are reviewing a constitutional issue for plain error, the State is not required to prove that the error was harmless beyond a reasonable doubt. Mobley, ___ N.C. App. at ___, 684 S.E.2d at 510.
B. Pre- Miranda Statements
The purpose of the Miranda warning is to protect an individual's Fifth Amendment right against self-incrimination in the inherently compelling context of custodial interrogations by police officers. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966). It is well settled that " Miranda warnings are required only when a defendant is subjected to custodial interrogation." State v. Patterson, 146 N.C. App. 113, 121, 552 S.E.2d 246, 253 (2001) (citations omitted). In accordance with this principle, defendant contends that whether or not her pre- Miranda statements were improperly admitted during trial turns on whether she was in "custody" at the time the statements were given to Officer Hanks. However, applying the plain error standard of review, we refrain from addressing defendant's contention as defendant's post- Miranda statements to the officer and her in-court sworn testimony provided the jury with sufficient evidence to reach a guilty verdict.
The undisputed evidence produced at trial, via testimony and a video of defendant's drug influence evaluation interview, showed that defendant told Officer Hanks that she took three Ambien pills around 5:00 p.m. prior to driving her car into the utility pole. In addition, when asked to rate her level of intoxication on a scale of 0 to 10, defendant stated that she was at about a four. The State also presented the jury with evidence that defendant twice failed four standard sobriety tests which were conducted by Officer Hanks both at the scene of the accident and at the magistrate's office. We note that defendant gave statements to Officer Hanks both at the scene of the accident, prior to being read her Miranda rights, and at the magistrate's office after defendant had been Mirandized and subsequently had waived her rights.
Moreover, defendant took the stand and testified that she told Officer Hanks that she took three Ambien pills and then fell asleep, whereupon she got into her car and drove into a utility pole. Defendant further testified that she was asleep at the time of the accident, but that she woke up and walked back to her husband's home to notify him that she had been in an accident. Defendant also testified that she was asleep during most of Officer Hanks' investigation; however, Officer Hanks testified that, based on his observations at the scene of the accident and at the magistrate's office, defendant was awake at all stages of the investigation. The jury convicted defendant of driving while impaired based upon defendant's and Officer Hanks' testimony.
When reviewing the evidence that was presented to the jury, we note that defendant's in-court testimony supported, and was essentially the same as, Officer Hanks' testimony regarding defendant's pre- Miranda statements. As such, defendant's testimony essentially waives any perceivable error that could have resulted from the admission of her pre- Miranda statements. Therefore, pursuant to the plain error standard of review, we conclude that the trial court's admission of defendant's pre- Miranda statements did not amount to a miscarriage of justice. Moreover, given defendant's own testimony at trial, even if Officer Hanks had not been permitted to testify to defendant's statements, it is not likely that the jury would have reached a different verdict than it otherwise reached. Accordingly, we overrule defendant's assignment of error. B. Expert Testimony
Defendant next argues that the trial court committed plain error by allowing Officer Hanks to testify as a drug recognition expert.
N.C. Gen. Stat. § 8C-1, Rule 702(a1)(2) (2009) provides that a person who is certified by the State Department of Health and Human Services as a drug recognition expert may give testimony regarding "[w]hether a person was under the influence of one or more impairing substances, and the category of such impairing substance or substances." In the present case, Officer Hanks is a state-certified drug recognition expert who was giving testimony regarding the level and cause of defendant's impairment on the night of the incident. As such, we conclude that Officer Hanks was properly tendered as a drug recognition expert under Rule 702, and his testimony regarding defendant's impairment was proper.
Moreover, we note that even if Officer Hanks was improperly tendered as an expert, defendant's own testimony at trial, as set forth above, defeats her argument for plain error review of this issue. As such, we overrule defendant's assignment of error.
III. MOTION TO DISMISS
Finally, defendant contends, based upon the aforementioned assignments of error, that the trial court erred by failing to grant her motion to dismiss. We disagree.
When considering a motion to dismiss, based on insufficiency of evidence, the standard of review is "whether the State has offered substantial evidence to show the defendant committed each element required to be convicted of the crime charged." State v. Jackson, 189 N.C. App. 747, 753, 659 S.E.2d 73, 77, disc. review denied, appeal dismissed, 362 N.C. 512, 668 S.E.2d 564 (2008), cert. denied, ___ U.S. ___, 173 L. Ed. 2d 662 (2009). "`"Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."'" State v. Edwards, 174 N.C. App. 490, 496, 621 S.E.2d 333, 338 (2005) (citations omitted). In making a determination, the Court must view the evidence admitted in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor. State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994). "`The motion to dismiss should be denied if there is substantial evidence supporting a finding that the offense charged was committed.'" State v. Poag, 159 N.C. App. 312, 318, 583 S.E.2d 661, 666 (2003) (citations omitted).
Here, defendant was charged with driving while impaired. A defendant is guilty of driving while impaired if the State can prove the following elements: "(1) [d]efendant was driving a vehicle; (2) upon any highway, any street, or any public vehicular area within this State; (3) while under the influence of an impairing substance." State v. Mark, 154 N.C. App. 341, 345, 571 S.E.2d 867, 870 (2002), aff'd, 357 N.C. 242, 580 S.E.2d 693 (2003).
Officer Hanks' testimony and defendant's testimony at trial were sufficient to prove the essential elements of driving while impaired. For instance, defendant admitted that she had taken three Ambien pills and was driving her vehicle on Academy Street in Winston-Salem, North Carolina, at the time the vehicle struck the utility pole. Moreover, Officer Hanks testified that defendant admitted taking Ambien, and twice failed four field sobriety tests, once at the scene of the incident, and the second at the magistrate's office. Accordingly, we hold that the State presented sufficient evidence to withstand defendant's motion to dismiss, and the trial court did not err in denying defendant's motion to dismiss.
IV. CONCLUSION
Based on the foregoing, we hold that defendant received a trial free of prejudicial error.
No error.
Judges STEPHENS and JACKSON concur.
Report per Rule 30(e).