State Of North Carolina v. Kincer
| Decision Date | 16 November 2010 |
| Docket Number | No. 08 CRS 55300,NO. COA0 9-1639,COA0 9-1639,08 CRS 55300 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. JOSEPH MICHAEL KINCER, Defendant. |
Appeal by defendant from judgment entered 18 June 2009 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 13 May 2009.
Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for State.
The Robinson Law Firm, P.A., by Leslie S. Robinson, for defendant-appellant.
Defendant Joseph Michael Kincer appeals from a judgment subjecting him to Level 5 punishment based on his plea of guilty to driving while impaired. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we find no error in the trial court's judgment.
On 17 May 2008, Sergeant Joseph Collins of the North Carolina State Highway Patrol signed two Highway Patrol Policy-14 (HP-14)authorization forms documenting his approval of a driver's license checkpoint. According to both forms, the checkpoint was to be located on Rural Paved Road 1534 in Pitt County for the purpose of inspecting drivers' licenses.1 Among the five troopers who actually participated in the operation of the checkpoint were Sergeant Collins and Trooper Everett Deans. One HP-14 form indicated that the checkpoint would operate between 6:00 p.m. and 8:30 p.m. and designated Trooper S.G. Tyndall as the Lead Trooper. The other HP-14 form stated that the checkpoint would operate from 5:45 p.m. until 8:00 p.m. and designed Trooper S.P. Ziemba as the Lead Trooper. Sergeant Collins was unable to explain the reason that he signed two HP-14 forms or the reason that there were differences in the contents of the two forms.
Sergeant Collins testified that the designated location, which was situated at the intersection of the Old Pactolus Highway and Blue Heron Drive, had not been utilized for checkpoint-related purposes in recent months and was a "good location for all types of violations." The participating troopers did not erect signs or markers on either side of the checkpoint in order to advise approaching motorists that they were nearing an authorized checkpoint. However, the emergency lights on all five patrol vehicles present at the checkpoint site remained activated during its existence. Participating troopers wore reflective vests bearing the letters "SHP" during that period as well. Although Sergeant Collins remained at the checkpoint throughout the entire period that it was in operation, he did not recall writing any citations during the time that he was present at the checkpoint.
Sergeant Collins told the troopers participating in the checkpoint to stop every vehicle that entered the operation, to "request a driver's license, talk with the driver, make sure that the driver's license was valid, and observe... the interior... and also the exterior of the vehicle." The participating troopers were directed to limit their interactions with the drivers who entered the checkpoint to the activities set out in the instructions given by Sergeant Collins and to refrain from asking for other items of information, such as proof that the driver had insurance or a specification of the places where the driver had been or was going. In addition, participating troopers were prohibited from searching stopped vehicles in the absence of independently obtained reasonable suspicion. "[I]f other violations were noticed" or unusual information appeared on licenses of drivers entering the checkpoint, participating troopers were allowed to "follow[] up" by posing additional questions.
At approximately 7:49 p.m., Defendant approached the checkpoint and attempted to drive past Trooper Deans, who was standing in the roadway. After being told to stop, Defendant pulled his vehicle over at a point approximately four or five feet from the place at which Trooper Deans was standing. As he approached the vehicle for the purpose of examining Defendant's driver's license, Trooper Deans immediately detected a strong odorof alcohol. A subsequent chemical analysis revealed that Defendant had a blood alcohol level of.12.
On 17 May 2008, Trooper Deans cited Defendant for driving while subject to an impairing substance. On 29 September 2008, Defendant filed a motion seeking to have evidence "obtained as a result of the stop of Defendant's motor vehicle and his subsequent arrest" suppressed. On 17 February 2009, Judge Charles M. Vincent heard Defendant's case in the Pitt County District Court, denied Defendant's suppression motion, convicted him of driving while impaired, determined that Level Five punishment should be imposed, and ordered that Defendant be imprisoned for a term of 45 days in the custody of the Sheriff of Pitt County, with that sentence suspended for twelve months on the condition that Defendant pay a $50.00 fine and the costs, perform 24 hours of community service, obtain a substance abuse assessment and comply with any treatment recommendations, and surrender his driver's license and not operate a motor vehicle until properly licensed to do so. Defendant noted an appeal to the Pitt County Superior Court from Judge Vincent's judgment.
On 28 April 2009, Defendant filed a motion in the Superior Court seeking the suppression of evidence "obtained as a result of the stop of Defendant's motor vehicle and his subsequent arrest." After a hearing held at the 15 June 2009 session of the Pitt County Superior Court, the trial court announced its decision to deny Defendant's suppression motion on 18 June 2009 and entered awritten order containing findings of fact and conclusions of law on 22 September 2009, nunc pro tunc to 15 June 2009, that denied Defendant's suppression motion.2 On 18 June 2009, Defendant, after preserving his right to challenge the denial of his suppression motion on appeal, entered a plea of guilty to driving while impaired. Based upon Defendant's plea, the trial court found him to be a Level V offender and sentenced him to a minimum and maximum term of 30 days imprisonment in the custody of the North Carolina Department of Correction, with this active sentence to be suspended pending his completion of twelve months unsupervised probation and the payment of a $100.00 fine and the costs. Defendant noted an appeal to this Court from the trial court's judgment and the denial of his suppression motion.
On appeal, Defendant challenges the trial court's decision to deny his motion to suppress the evidence obtained as a result of the fact that he was stopped at the 17 May 2008 checkpoint. "Our review of a trial court's denial of a motion to suppress is strictly limited to a determination of whether [the trial court's]findings are supported by competent evidence, and in turn, whether the findings support the trial court's ultimate conclusion." State v. Allison, 148 N.C. App. 702, 704, 559 S.E.2d 828, 829 (2002) (citing State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). If there is a conflict between the evidence concerning a material factual issue, it is the duty of the trial court to make findings resolving the conflict, which will not be disturbed on appeal if they have adequate evidentiary support. State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982) (citations omitted). The trial court's conclusions of law are subject to de novo review. State v. Haislip, 362 N.C. 499, 500, 666 S.E.2d 757, 758 (2008) (citation omitted). The critical inquiry that must be undertaken in connection with the appellate review of a trial court order granting or denying a suppression motion is determining "whether the ruling of the trial court was correct... and whether the ultimate ruling was supported by the evidence." State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641, 650, cert, denied, 484 U.S. 916, 98 L. Ed. 2d 224 (1987) (internal citation omitted). If the answer to this question is in the affirmative, the trial court's conclusions of law are binding on appeal as well. State v. West, 119 N.C. App. 562, 565, 459 S.E.2d 55, 57 (citation omitted), disc, reviewdenied and appeal dismissed, 341 N.C. 656, 462 S.E.2d 524 (1995).
In challenging the trial court's decision to deny his suppression motion, Defendant first argues that the trial court erred by finding that the HP-14 form admitted into evidence as State's Exhibit No. 1 controlled the operation of the checkpoint in light of the fact that Defendant introduced a different HP-14 form into evidence as Defendant's Exhibit No. 1A and the fact that Sergeant Collins was unable to explain the reason for the existence of the two forms. According to Defendant, the record did not contain sufficient evidence to support the trial court's determination that the existence of the differing forms was attributable to an administrative error. We do not find Defendant's argument persuasive.
In denying Defendant's suppression motion, the trial court found as a fact that:
At the suppression hearing, Sergeant Collins confirmed that he signed both of the HP-14 forms that were admitted into evidence.
According to Sergeant Collins, although State's Exhibit No. 1 specified a different time period for the operation of the checkpoint than Defendant's Exhibit No. 1A, he intended that the checkpoint operate from 6:00 p.m. to 8:30 p.m. This evidence,...
To continue reading
Request your trial