State v. Bucklew
| Decision Date | 07 December 2021 |
| Docket Number | No. COA20-556,COA20-556 |
| Citation | 867 S.E.2d 362 |
| Parties | STATE of North Carolina v. Keith Aaron BUCKLEW, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E. Hathcock, for the State.
The Robinson Law Firm, P.A., Greenville, by Leslie S. Robinson, for Defendant-Appellant.
¶ 1 Keith Bucklew ("Defendant") appeals from judgments from the superior court finding Defendant guilty of assault with a deadly weapon inflicting serious injury, felony serious injury by a motor vehicle, and driving while impaired. We hold the trial court committed no error.
¶ 2 The appeal arises from the convictions of Defendant, a retired Marine with twenty years of service. On November 26, 2014, Defendant was driving himself and his ten year old son in a white Land Rover. An eyewitness reported Defendant was speeding, drifting within his lane toward the center line, crossing the center line, and driving erratically and aggressively. Around dusk, Defendant's Land Rover swerved into oncoming traffic and hit a white Cadillac Escalade driven by Tina Wasinger ("Wasinger"), with her two minor sons as passengers, and a Hyundai Sante Fe driven by Richard Sermon ("Sermon"), with his wife and four children as passengers. Trooper Mark Peaden ("Trooper Peaden") of the North Carolina State Highway Patrol responded to the call. Trooper Peaden observed that Defendant and Wasinger's vehicles had heavy front end damage and Sermon's vehicle appeared to have been sideswiped. As a result of the collision, Wasinger suffered both significant, long-term, physical injuries and the loss of her job. At the scene of the accident, Trooper Peaden observed that there were no apparent skid marks indicating an attempt to stop the vehicle.
¶ 3 Trooper Peaden located Defendant at the scene and noted Defendant appeared impaired; acted loopy, apathetic, and lethargic; had slurred speech; and was very tired. Due to Defendant's injuries, Defendant was transported to the hospital. Defendant had sustained substantial injuries, including a fractured femur
and broken hand.
¶ 4 At the hospital, Defendant was described as having "droopy eyelids
, a blank stare, slurred speech and [was] lethargic"; but also having a few coherent moments where he could answer questions. In response to Trooper Peaden's inquiry about whether Defendant was taking any medication or drinking alcohol, Defendant responded he was on oxycodone, valium, and morphine which he reported he last took at 4:00 o'clock that morning. Trooper Peaden performed an alcosensor breath test on Defendant which indicated Defendant had not consumed alcohol prior to the collision.
¶ 5 Trooper Peaden found Defendant to be at-fault in the collision and impaired to the extent he was unable to appreciate the danger of the collision. Trooper Peaden placed Defendant under arrest for driving while impaired ("DWI"), notified Defendant of his rights to a chemical analysis test, and requested Defendant to submit to a chemical analysis test. Defendant's blood sample revealed the presence of oxycodone
, diazepam, nordiazepam, and morphine. A urine screen conducted at the hospital was positive for benzodiazepines, opiates, and tricyclic antidepressants.1 Defendant was transported by helicopter to another hospital to receive a higher level of care after the blood draw was complete. On November 26, 2014, Defendant was indicted for assault with a deadly weapon inflicting serious injury, DWI, misdemeanor child abuse, and felony serious injury by vehicle.
¶ 6 Defendant filed a pretrial motion to suppress the seizure and analysis of his blood. The trial court denied Defendant's motion to suppress, explaining that based upon testimony from Trooper Peaden; the eyewitness's, a hospital nurse's, Defendant's and Sermon's statements; the emergent medical care needed by Defendant; and the results of Defendant's blood draw, there was sufficient probable cause to charge Defendant with the offense of DWI and there was sufficient exigent and articulable basis to conduct a warrantless blood draw for a chemical analysis. The trial court also denied Defendant's motion for judicial notice of the National Weather Service's weather report ("Weather Report"), motions to dismiss, objection to the lab and chain of custody report, and objection to the analyst's testimony regarding Defendant's blood sample. On December 11, 2019, Defendant was found guilty of assault with a deadly weapon inflicting serious injury, DWI, and felonious serious injury by a motor vehicle. On appeal, Defendant contends the trial court erred by denying Defendant's motion for judicial notice, motion to suppress the blood draw, and motion to dismiss, and by admitting, over Defendant's objection, the lab result and chain of custody report and analyst's testimony.
¶ 7 We turn first to Defendant's contention the trial court's findings of fact in the order denying Defendant's motion to suppress the blood draw (the "Denial Order") were not supported by competent evidence. We note at the outset the standard of review for a motion to suppress is not substantial competent evidence, but rather a lower threshold of competent evidence. State v. Biber , 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011). "In reviewing a trial judge's ruling on a suppression motion, we determine only whether the trial court's findings of fact are supported by competent evidence , and whether these findings of fact support the [trial] court's conclusions of law." State v. Pulliam, 139 N.C. App. 437, 439-40, 533 S.E.2d 280, 282 (2000) (citation omitted and emphasis added). The trial court's findings of fact which are supported by competent evidence are "conclusive on appeal ... even if the evidence is conflicting." State v. Buchanan , 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (quoting State v. Eason , 336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994) ). "[T]he trial court's conclusions of law are reviewed de novo and must be legally correct." State v. Scruggs , 209 N.C. App. 725, 727, 706 S.E.2d 836, 838 (2011) (citation omitted).
¶ 8 Here, the findings of fact in the Denial Order support the conclusion probable cause and exigent circumstances existed to initiate a warrantless blood draw. Probable cause is the "facts and circumstances within an officer's knowledge and of which he had reasonably trust-worthy information which are sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense." State v. Williams , 314 N.C. 337, 343, 333 S.E.2d 708, 713 (1985) (citations omitted). Whether exigent circumstances exist as to justify a warrantless blood draw, though yet to be precisely defined, depends on the totality of the circumstances. Missouri v. McNeely , 569 U.S. 141, 156, 133 S. Ct. 1552, 1563, 185 L. Ed. 2d 696, 709 (2013) ; State v. McCrary , 237 N.C. App. 48, 53, 764 S.E.2d 477, 481 (2014).
¶ 9 We are not persuaded by Defendant's argument the Denial Order's findings of fact were not supported by competent evidence. The evidence in the record tends to show the eyewitness reported that Defendant, prior to collision, crossed the center line, drifted within his lane, and drove aggressively and erratically. Sermon testified Defendant's vehicle swerved from oncoming traffic and "almost made like a left turn directly into [Wasinger's vehicle] ...." Once Trooper Peaden arrived at the scene, he noted there were no skid marks indicating any attempt to stop. After Defendant was transported to the hospital due to his injuries, a breath alcosensor test revealed no presence of alcohol, but Defendant admitted to taking oxycodone
, valium, and morphine that morning. When Trooper Peaden spoke with Defendant at the hospital, he noticed Defendant had slurred speech, a loopy demeanor, was lethargic and slow to answer questions. At one point Defendant told Trooper Peaden he did not remember what happened while, at another point, he told Trooper Peaden he was hit by a car. Nurse Warren, a nurse at the first hospital to which Defendant was taken, testified Defendant had a significant injury to his femur, injury to his neck, a contusion, a fracture, swelling, and enlarged pupils, and that he was falling asleep between questions.
¶ 10 Based off his observations, Trooper Peaden formed the opinion Defendant had consumed a "sufficient quantity of impairing substances so that his mental and physical facilities were appreciably impaired." However, Trooper Peaden did not have time to leave the hospital to acquire a search warrant because Defendant was "very, very badly injured" and the hospital does not administer pain medication until after a blood draw is performed. Defendant's injuries, moreover, were so severe as to warrant air-lifting Defendant to another hospital for a higher level of care after the blood draw was complete. Based on the evidence presented at trial, there was competent evidence to support the findings of fact in the Denial Order.
¶ 11 In addition to a general challenge to the findings of fact in the Denial Order, Defendant specifically challenges findings of fact twelve, fourteen, seventeen, and twenty-three.
¶ 12 Finding of fact number twelve states, "Stacy Toppin, RN, described the defendant as alert and able to answer questions. She described his speech as slow and thick tongued. He was further described as neurologically intact with no visible head injuries
. She described his pupils as appearing pinpoint." Competent evidence exists to support fact number twelve through Stacy Toppin's testimony where she stated Defendant "had slurred speech at the time, [was a] little thick tongue, [and had a] little bit of confusion[,]" and his pupils were "pinpoint looking." On voir dire , Stacy Toppin explained that Defendant had no apparent head injuries, was stable, and was able to answer...
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