State v. Fowler

• Decision Date: 19 May 2009
• Docket Number: No. COA08-652.,COA08-652.
• Citation: 676 S.E.2d 523
• Parties: STATE of North Carolina v. Wayne Brooks FOWLER, Defendant.
• Court: North Carolina Court of Appeals

676 S.E.2d 523

STATE of North Carolina v. Wayne Brooks FOWLER, Defendant.

No. COA08-652.

Court of Appeals of North Carolina.

May 19, 2009.

Appeal by the State from order entered 15 January 2008 by Judge Timothy S. Kincaid in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 January 2009.

Roy Cooper, Attorney General, by Sebastian Kielmanovich, Assistant Attorney General, and William B. Crumpler, Assistant Attorney General, for the State.

Wyrick Robbins Yates & Ponton, LLP, by K. Edward Greene and Tobias S. Hampson, Raleigh, and Law Offices of Bush & Powers, by Bill Powers, Charlotte, for defendant-appellee.

Center for Death Penalty Litigation, by Thomas K. Maher, Durham, and The Ward Law Firm, P.A., by David J. Ward, Raleigh, for North Carolina Advocates for Justice, amicus curiae.

MARTIN, Chief Judge.

On 2 January 2007, defendant Wayne Brooks Fowler was arrested for willfully operating a motor vehicle while subject to an impairing substance in violation of N.C.G.S. § 20-138.1. On 6 August 2007, defendant made a pretrial motion in district court in accordance with N.C.G.S. § 20-38.6(a) alleging that the arresting officer lacked probable cause to arrest him.

On 9 October 2007, the Mecklenburg County District Court entered a Preliminary Finding Granting Pretrial Motion to Dismiss in accordance with N.C.G.S. § 20-38.6(f). In its Preliminary Finding, after concluding that the arresting officer "did not possess probable cause to arrest and charge [d]efendant with Driving While Impaired," and that "a reasonable person, in same or similar circumstances could not believe the [d]efendant guilty of Driving While Impaired," the district court made the preliminary finding that it would grant defendant's motion and dismiss the charges against him for lack of probable cause.

The State gave notice of appeal to superior court from the district court's Preliminary Finding pursuant to N.C.G.S. § 20-38.7(a). The State's appeal was heard in Mecklenburg County Superior Court. On 15 January 2008, the superior court entered its Order in which it found that the district court's "Conclusions of Law granting the motion to dismiss are based upon the Findings of Fact that are cited in [its] order." The Order further concluded that N.C.G.S. §§ 20-38.6 and 20-38.7—which "allow[ed] the State to appeal the [d]istrict [c]ourt determination on [d]efendant's motion to dismiss based on a lack of probable cause"—violated the Equal Protection and Due Process Clauses of the United States and North Carolina Constitutions, the Former Jeopardy Clause of the United States Constitution, as well as Article I, Section 3 and Article IV, Section 1 of the North Carolina Constitution. The superior court remanded the matter to district court "for the entry of an order consistent with th[e superior c]ourt's findings." The State gave notice of appeal to this Court and certified that the appeal was not taken for the purpose of delay. The State filed a petition for writ of certiorari on 10 June 2008, and defendant filed a motion to dismiss on 30 October 2008.

In considering whether this appeal is properly before us, we are guided by two well-established principles. First, "[t]he [S]tate's right of appeal in a criminal proceeding is entirely statutory; it had no such right at the common law. [Accordingly, s]tatutes granting a right of appeal to the [S]tate must be strictly construed." State v. Murrell, 54 N.C.App. 342, 343, 283 S.E.2d 173, 173 (1981), disc. review denied, 304 N.C. 731, 288 S.E.2d 804 (1982). Second, "[a]s a general rule, the appellate courts will not review interlocutory orders entered by a superior court in a criminal case." State v. Monroe, 330 N.C. 433, 436, 410 S.E.2d 913, 915 (1991); see also Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 ("An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy."), reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). "An appeal from such [an] order will be dismissed unless the order affects some substantial right and will work injury to the appellant if not corrected before appeal from the final judgment." Privette v. Privette, 230 N.C. 52, 53, 51 S.E.2d 925, 926 (1949).

In the present case, the State concedes that the superior court's 15 January 2008 Order from which it appeals is interlocutory, and does not argue that it will suffer injury if its appeal is not heard prior to entry of a final judgment in this matter. Nevertheless, the State asserts that it is authorized to appeal the superior court's 15 January Order pursuant to N.C.G.S. § 15A-1445(a)(1). We disagree.

N.C.G.S. § 15A-1445(a)(1) provides that the State "may appeal from the superior court to the appellate division ... [w]hen there has been a decision or judgment dismissing criminal charges as to one or more counts," provided that "the rule against double jeopardy [does not] prohibit[] further prosecution." N.C. Gen.Stat. § 15A-1445(a)(1) (2007). Here, although the State concedes that the superior court's Order was not "a decision or judgment dismissing criminal charges" against defendant, see id. (emphasis added), the State asserts that it has a right of appeal pursuant to N.C.G.S. § 15A-1445(a)(1) because "the effect of the superior court's order [wa]s to dismiss the DWI charge whether or not the court pronounce[d] a dismissal per se." (Emphasis added.) However, since statutes authorizing an appeal by the State in a criminal case must be strictly construed, see State v. Harrell, 279 N.C. 464, 466-67, 183 S.E.2d 638, 640 (1971), we decline to extend the application of N.C.G.S. § 15A-1445(a)(1) to grant the State a right of appeal to the Appellate Division from a superior court's interlocutory order which may have the same "effect" of a final order but requires further action for finality. Therefore, we hold the State has no statutory right of appeal to this Court pursuant to N.C.G.S. § 15A-1445(a)(1) from the superior court's 15 January 2008 Order.

The State also asserts that it is authorized to appeal the superior court's 15 January Order pursuant to N.C.G.S. § 20-38.7(a) in pari materia with N.C.G.S. § 15A-1432(e). Again, we disagree.

When strictly construing a statute to determine whether it authorizes the State to appeal in a criminal case, we must "resort first to the words of the statute," and be certain to interpret the "words and phrases of a statute ... contextually, in a manner which harmonizes with the underlying reason and purpose of the statute." See In re Kirkman, 302 N.C. 164, 167, 273 S.E.2d 712, 715 (1981). Additionally, while "the caption [of a statute] will not be permitted to control when the meaning of the text is clear," "[w]here the meaning of a statute is doubtful, its title may be called in aid of construction." Dunn v. Dunn, 199 N.C. 535, 536, 155 S.E. 165, 166 (1930). Further, "[w]hen multiple statutes address a single subject, this Court construes them in pari materia to determine and effectuate the legislative intent." Brown v. Flowe, 349 N.C. 520, 523-24, 507 S.E.2d 894, 896 (1998).

The title of the statute upon which the State relies as its authority to appeal the superior court's 15 January 2008 Order to this Court is "Appeal to superior court." See N.C. Gen.Stat. § 20-38.7 (2007) (emphasis added). N.C.G.S. § 20-38.7(a) provides, in part: "The State may appeal to superior court any district court preliminary determination granting a motion to suppress or dismiss. ... Any further appeal shall be governed by Article 90 of Chapter 15A of the General Statutes." N.C. Gen.Stat. § 20-38.7(a) (emphasis added). In addition, N.C.G.S. § 20-38.6(f), which was enacted pursuant to the same enabling legislation as N.C.G.S. § 20-38.7(a), see Motor Vehicle Driver Protection Act of 2006, ch. 253, § 5, 2006 N.C. Sess. Laws 1180-83, provides that, when a district court judge "preliminarily indicates" that a defendant's pretrial motion to suppress evidence or dismiss charges for an implied-consent offense made in accordance with N.C.G.S. § 20-38.6(a) "should be granted, the judge shall not enter a final judgment on the motion until after the State has appealed to superior court or has indicated it does not intend to appeal." N.C. Gen.Stat. § 20-38.6(f) (2007) (emphasis added). In other words, according to the plain language of the statutory subsection immediately preceding N.C.G.S. § 20-38.7(a), the prohibition regarding the district court's entry of a final judgment granting a defendant's pretrial motion applies only to the State's appeal to superior court.

Further, N.C.G.S. § 15A-1432 provides, in part:

(a) Unless the rule against double jeopardy prohibits further prosecution, the State may appeal from the district court judge to the superior court:

(1) When there has been a decision or judgment dismissing criminal charges as to one or more counts.

....

(e) If the superior court finds that the order of the district court was correct, it must enter an order affirming the judgment of the district court. The State may appeal the order of the superior court to the appellate division upon certificate by the district attorney to the judge who affirmed the judgment that the appeal is not taken for the purpose of delay.

N.C. Gen.Stat. § 15A-1432(a)(1), (e) (2007) (emphasis added). In other words, N.C.G.S. § 15A-1432(a)(1) gives the State a statutory right of appeal to superior court from a district court's order dismissing criminal charges against a defendant, and N.C.G.S. § 15A-1432(e) gives the State a statutory right of appeal to this Court from a superior court's order affirming a district court's dismissal. However, the statutory right of appeal conferred upon the State pursuant to N.C.G.S. § 20-38.7(a) is only a right of appeal to superior court from a district court's preliminary determination indicating that it would g...