State v. Sauls , 255 N.C. App. 684 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-860
Filed: 19 September 2017
Johnston County, No. 14 CRS 050399
STATE OF NORTH CAROLINA, Plaintiff,
v.
CATHY MANGUM SAULS, Defendant.
Appeal by defendant from order entered 5 February 2016 by Judge Thomas H.
Lock and judgment entered 4 March 2016 by Judge Robert F. Floyd in Superior Court,
Johnston County. Heard in the Court of Appeals 23 February 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Lee J. Miller,
for the State.
The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for defendant-
appellant.
STROUD, Judge.
Defendant appeals the order denying her motion to suppress based upon her
contention that the evidence obtained from the stop of her vehicle should have been
suppressed because the deputy lacked reasonable suspicion for the traffic stop and
the judgment convicting her of driving while impaired (“DWI”) because the trooper
involved should not have been allowed to testify on the results of the horizontal gaze
nystagmus test (“HGN test”) because the State did not formally tender him as an
STATE V. SAULS
Opinion of the Court
expert witness. We affirm the order and determine there was no error as to the
judgment.
I. Background
In January of 2014, a citation was issued against defendant for operating a
vehicle while impaired. The case made its way through district court, and in
September of 2017 defendant filed a motion in superior court
for an order suppressing and excluding the evidence seized
. . . for the reason that . . . Deputy Thomas Sewell of the
Johnston County Sheriff’s Department and Trooper M.D.
Williams of the State Highway Patrol stopped the
defendant in her motor vehicle on January 25, 2014
without reasonable suspicion that defendant had violated
a criminal or traffic offense[.]
Defendant sought to suppress the evidence resulting from the stop of her vehicle,
including various field sobriety tests. In February of 2016, the trial court denied
defendant’s motion to suppress. Ultimately, defendant’s case went to trial, and the
jury convicted her of driving while impaired. The trial court entered judgment, and
defendant appeals both the order denying her motion to suppress and the judgment.
II. Motion to Suppress
Defendant first argues that the trial court committed plain error by denying
her motion to suppress. Defendant admits that she failed to properly preserve her
appeal of her motion to suppress because she failed to object when the evidence was
introduced. To be clear, defendant is actually challenging the denial of her motion
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Opinion of the Court
to suppress as plain error and is not challenging the evidence admitted at trial
because of the denial. Our Court recently addressed a case in the same posture:
Here, defendant filed a pretrial motion to suppress
evidence of his arrest alleging that there was not sufficient
evidence to establish probable cause for his arrest. That
motion was decided after an evidentiary hearing and
denied. Thereafter, the record is silent as to any further
objection from defendant to the introduction of the same
evidence at the trial of this case. Therefore, defendant has
waived any objection to the denial of his motion to
suppress, and it is not properly preserved for this Court’s
review. Defendant, however, attempts to cure this defect
by arguing that the trial court committed plain error
instead.
In criminal cases, an issue that was not
preserved by objection noted at trial and that
is not deemed preserved by rule or law
without any such action nevertheless may be
made the basis of an issue presented on
appeal when the judicial action questioned is
specifically and distinctly contended to
amount to plain error.
The North Carolina Supreme Court has elected to review
unpreserved issues for plain error when they involve either
(1) errors in the judge’s instructions to the jury, or (2)
rulings on the admissibility of the evidence. Under the
plain error rule, defendant must establish that a
fundamental error occurred at trial and that absent the
error, it is probable the jury would have returned a
different verdict.
Our review of a trial court’s denial of a motion to
suppress is strictly limited to determining whether the
trial judge’s underlying findings of fact are supported by
competent evidence, in which event they are exclusively
binding on appeal, and whether those factual findings in
turn support the judge’s ultimate conclusions of law. The
trial court's conclusions of law are fully reviewable on
appeal.
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State v. Williams, ___ N.C. App. ___, ___, 786 S.E.2d 419, 424-25 (2016) (citations
quotation marks, and ellipses omitted). Ultimately, this Court concluded that the
trial court did not commit plain error in denying the motion to suppress without
considering the evidence actually presented at trial because the only issue on appeal
was whether the trial court had plainly erred in denying the motion to dismiss to
suppress. See id. at ___, 786 S.E.2d at 425.
The unchallenged and binding findings of fact, see id., establish:
1. On 24 January 2014, at approximately 1:00 AM,
Deputy Thomas Sewell of the Johnston County
Sheriff’s Office was in uniform and on duty in
Johnston County, North Carolina.
2. The time was very late at night, sometime after
midnight.
3. The temperature was approximately twelve (12)
degrees Fahrenheit with a negative wind chill.
4. Deputy Sewell was on patrol in the area of Don Lee’s
Store, a gas station and convenience store located on
North Carolina Highway 50 in Johnston County,
North Carolina.
5. Deputy Sewell was familiar with this area because
it was his regular, assigned patrol district.
6. Deputy Sewell knew that Don Lee’s Store was closed
because he had patrolled the area several times
prior to this occasion.
7. There is an automobile repair shop across the road
from Don Lee’s Store.
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Opinion of the Court
8. There are several residential homes in the area of
Don Lee’s Store.
9. Deputy Sewell had performed several business
checks in the area including business checks at both
Don Lee’s Store and the automobile repair shop
across the road from Don Lee’s Store.
10. Deputy Sewell had personal knowledge of several
break-ins that had occurred at Don Lee’s Store prior
to 24 January 2014.
11. Deputy Sewell recalled that the area surrounding
Don Lee’s Store was a “decently high break-in area.”
12. While on routine patrol, Deputy Sewell saw the
Defendant’s vehicle close to the gasoline pumps in
the parking lot of Don Lee’s Store.
13. The Defendant’s vehicle was the only vehicle in the
parking lot at that time.
14. Deputy Sewell observed that the Defendant’s
vehicle’s engine was running and that its headlights
were on.
....
16. When Deputy Sewell drove into the parking lot, he
positioned his patrol vehicle directly behind the
Defendant’s vehicle.
17. The Defendant’s vehicle attempted to leave the
scene immediately upon Deputy Sewell’s arrival.
18. When Deputy Sewell saw the Defendant’s vehicle
drive away, he immediately became concerned and
felt that something must be wrong.
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Opinion of the Court
19. As soon as the vehicle began to move, Deputy Sewell
activated his emergency vehicle lighting.
20. The vehicle traveled approximately ten to fifteen
feet before it stopped.
21. The Defendant did not exit her vehicle at any time
and the Defendant committed no traffic or
equipment violations prior to Deputy Sewell
initiating the stop.
22. When Deputy Sewell drove into the parking lot of
Don Lee’s Store, he had no intentions of turning on
his emergency vehicle lighting; his only intent was
to perform a welfare check on the Defendant’s
vehicle.
23. When Deputy Sewell drove up behind the
Defendant’s vehicle, he intended to get out [of] his
patrol vehicle, walk to the driver’s side window of
the vehicle, check on the occupant(s) and ensure
each was in good health, verify there were no
mechanical problems with the vehicle, and then
continue on with his regularly assigned patrol
duties for that night.
24. Deputy Sewell did not think about turning on his
emergency vehicle lighting until the moment that
the Defendant’s vehicle began to drive away.
Based upon the binding findings of fact the trial court concluded:
2. The facts of this case and the evidence presented by
the State of North Carolina at this hearing are
sufficient to establish a reasonable articulable
suspicion to justify the investigative traffic stop of
the Defendant’s vehicle for Driving While Impaired.
3. The investigative traffic stop of the Defendant’s
vehicle for Driving While Impaired did not
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constitute any violation of the Defendant’s
Constitutional or statutory rights.
4. Under the totality of the circumstances, including
the time of day, Deputy Sewell’s personal knowledge
concerning break-ins at Don Lee’s Store, the
automobile repair shop across the road from Don
Lee’s Store, the residential homes in the area
(Deputy Sewell’s regular patrol district), the manner
in which the Defendant’s vehicle was stopped
(immediately adjacent to and parallel to the
highway so that traffic on the highway would have
been visible to occupants of the vehicle), and the fact
that the Defendant’s vehicle attempted to leave the
scene immediately upon Deputy Sewell’s arrival,
Deputy Sewell had a reasonable and articulable
suspicion to stop the Defendant’s vehicle.
Defendant contends these conclusions of law are not supported by the evidence
because the trial court’s “findings of fact are insufficient to give rise to anything more
than a generalized, inchoate and unparticularized suspicion or hunch that there was”
criminal activity. Defendant heavily relies on the finding that the deputy’s “only
intent was to perform a welfare check on the Defendant’s vehicle[,]” and the only
reason he actually stopped her vehicle was because she pulled away when he
approached which is not enough to validate the stop. While defendant’s argument
makes logical sense, it simply does not reflect the law as it exists: “[T]he Fourth
Amendment does not include a consideration of the officer’s subjective intent, and his
motive will not invalidate the action taken as long as the circumstances, viewed
objectively, justify that action.” State v. Icard, 363 N.C. 303, 318, 677 S.E.2d 822, 832
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(2009) (citations and quotation marks omitted); see also State v. Johnson, ___ N.C.
App. ___, 783 S.E.2d 753 (2016) (“[I]f sufficient objective evidence exists to
demonstrate reasonable suspicion, a Terry stop is justified regardless of a police
officer’s subjective intent.” (citation and quotation marks omitted).
Our Supreme Court has stated,
Reasonable suspicion is a less demanding standard
than probable cause and requires a showing considerably
less than preponderance of the evidence. Only some
minimal level of objective justification is required. This
Court has determined that the reasonable suspicion
standard requires that the stop be based on specific and
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.
Moreover, a court must consider the totality of the
circumstances—the whole picture in determining whether
a reasonable suspicion exists.
State v. Barnard, 362 N.C. 244, 247, 658 S.E.2d 643, 645 (2008) (citations, quotation
marks, brackets, and ellipses omitted). The objective “totality of the circumstances”
showed: (1) it was very late at night; (2) defendant’s vehicle was idling in front of a
closed business; (3) the business and surrounding properties had experienced several
break-ins; and (4) defendant pulled away when the deputy approached her car. Id.
Thus, the evidence together provides an “objective justification” for stopping
defendant. See id. Therefore, the trial court did not err in denying defendant’s motion
to suppress.
III. Testimony on HGN Test
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Opinion of the Court
Defendant next argues that the trial court committed plain error by allowing
the trooper to testify at trial about the HGN test he administered on defendant during
the stop. Specifically, defendant argues that the State never formally tendered the
trooper as an expert witness under Rule 702 of the North Carolina Rules of Evidence.
Again, defendant requests this Court to review for plain error because she failed to
preserve the issue for appellate review by objecting to the results of the HGN test at
trial.
Rule 702(a1) includes specific provisions for expert witnesses who testify
regarding results of HGN tests:
A witness, qualified under subsection (a) of this section and
with proper foundation, may give expert testimony solely
on the issue of impairment and not on the issue of specific
alcohol concentration level relating to the following:
(1) The results of a Horizontal Gaze Nystagmus (HGN)
Test when the test is administered by a person who
has successfully completed training in HGN.
North Carolina General Statute § 8C-1, Rule 702(a1) (2013).
During the pendency of this appeal, our Supreme Court addressed the specific
issue before us: “In this appeal we consider whether North Carolina Rule of Evidence
702(a1) requires a law enforcement officer to be recognized explicitly as an expert
witness pursuant to Rule 702(a) before he may testify to the results of a Horizontal
Gaze Nystagmus (HGN) test.” State v. Godwin, ___ N.C. ___, ___ 800 S.E.2d 47, 48
(2017). The Supreme Court ultimately reversed this Court’s decision in Godwin,
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which defendant had relied upon here, to conclude that a law enforcement officer need
not explicitly be tendered under Rule 702 to testify to the results of a HGN test. See
id. at ___, 800 S.E.2d at 54. The Court in Godwin reasoned that because the officer
had been tendered as an expert regarding his law enforcement knowledge, testified
he had completed training on how to administer the HGN test and other follow-up
courses, had experience with impaired driving investigations, was found to be reliable
upon the trial court’s voir dire, and the defendant’s only contention was not that the
officer was unqualified to testify as an expert regarding HGN testing but merely that
he had to formally be tendered as an expert, the State was correct in asserting that
the officer had been implicitly recognized as an expert witness in HGN testing and
did not need to be formally tendered as such. See id. at ___, 800 S.E.2d at 50-53. This
case is controlled by Godwin. Compare id., __ N.C. __, 800 S.E.2d 47.
Here, Trooper Williams testified that he had been a trooper with the North
Carolina State Highway Patrol since 2004 and that he had training in field sobriety
testing, including the HGN test. Trooper Williams specifically testified about his
training and qualifications to administer the HGN test, including refresher courses
in standardized field sobriety testing every year. Over his career, Trooper Williams
had participated in hundreds of DWI investigations. During voir dire, defendant’s
counsel agreed “[t]he evidence rule says that he can certainly talk about the HGN if
he has been trained in HGN, but I’m – my objection is that this – the trooper’s not
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qualified to testify about the medical effect of pupil dilation or the medical effect of
these drugs.”1 This portion of the transcript along with defendant’s brief parallels
Godwin, since the defendant was not arguing the officer was not qualified to testify
as an HGN testing expert, but only that he had to be formally tendered as such. See
id. at __, 800 S.E.2d at 52. Defendant does not argue that Trooper Williams was not
properly trained and qualified to testify regarding HGN testing, and the evidence
shows he “ha[d] successfully completed training in HGN.” N.C. Gen. Stat. § 8C-1,
Rule 702(a1). Under Godwin, it was simply unnecessary for the State to make a
formal tender of the trooper as an expert on HGN testing, and the trial court
committed no error, much less plain error, in allowing the testimony. See id.
IV. Conclusion
We conclude defendant received a fair trial, free from reversible error.
AFFIRM AND NO ERROR.
Judge DILLON concurs.
Judge MURPHY concurs in result only.
1 Based upon the voir dire, the trial court sustained defendant’s objection to Trooper
Williams’s testimony regarding defendant’s possible impairment by drugs other than alcohol.
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