State v. Kitchen

• Decision Date: 03 May 2022
• Docket Number: COA21-297
• Citation: 872 S.E.2d 580
• Parties: STATE of North Carolina v. James Matthew KITCHEN
• Court: North Carolina Court of Appeals

872 S.E.2d 580

STATE of North Carolina

v.James Matthew KITCHEN

No. COA21-297

Court of Appeals of North Carolina.

Filed May 3, 2022

Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E. Hathcock, for the State-Appellee.

Thomas, Ferguson & Beskind, by Kellie Mannette, Chapel Hill, for Defendant-Appellant.

COLLINS, Judge.

¶ 1 Defendant James Matthew Kitchen appeals a judgment entered upon his conviction for driving while impaired, his stipulation to three prior driving while impaired convictions resulting in Defendant attaining habitual impaired driving status, and his guilty plea of attaining habitual felon status. Defendant argues that the trial court erred by denying his motion to suppress his medical records, which included evidence of his blood alcohol concentration level, because disclosure of the medical records to the State pursuant to N.C. Gen. Stat. § 8-53 violated his Fourth Amendment right to be free from warrantless search and seizure, and that admitting the records at trial was prejudicial error. Assuming arguendo that the trial court erred by denying Defendant's motion to suppress and admitting the medical records at trial, any error was harmless in light of the overwhelming evidence of Defendant's guilt of driving while impaired by driving "[w]hile under the influence of an impairing substance" under N.C. Gen. Stat. § 20-138.1(a)(1). Accordingly, there is no prejudicial error in the trial court's judgment.

I. Background

¶ 2 Defendant was arrested on 1 May 2017 for driving while impaired. Defendant was indicted by superseding indictment for habitual driving while impaired and attaining habitual felon status.¹ The State filed an Amended Motion For Production of Medical Records on 22 June 2020, moving the court to enter an order directing the custodian of records at Carteret Health Care to disclose to the Carteret County District Attorney, Defendant's medical records, including blood tests and toxicology screens, relating to his treatment at Carteret Health Care on or about 1 May through 2 May 2017. In support of its motion, the State alleged as follows:

1. That Defendant is currently charged with Habitual Impaired Driving, Assault on a Female, Resisting Public Officer.

2. All the above stated charges resulted from an incident that occurred in the evening of May 1, 2017.

3. That Defendant was arrested for impaired driving. Prior to his arrest, Officer's (sic) asked him to submit to a PBT (Portable Breath Test) and the results of that test indicated a positive reading for alcohol. The number results are not admissible at trial.

4. Officer's (sic) noted a strong odor of alcohol on Defendant's breath and witnesses stated that a male inside the same type of vehicle that was stopped appeared intoxicated.

5. During processing, the Defendant was combative, aggressive with officers, and refused to submit to an ECIR II breath test.

6. That Officers did not seek a search warrant for a blood test and the Defendant did not consent to a blood test.

7. That the Carteret County Detention Center refused to accept Defendant into the jail without medical clearance which resulted in Defendant being transported to Carteret Health Care/Carteret General Hospital.

8. Medical Staff would not release Defendant and Defendant remained at the hospital for treatment.

9. These records are necessary for the prosecution of Defendant for Habitual Impaired Driving.

10. Upon information and belief, Defendant's medical records are in the custody of Carteret Health Care in Carteret County, N.C. and may contain information regarding Defendant's impairment within a relevant time after driving and information regarding what substances Defendant consumed leading to his impaired condition.

11. That production and disclosure of these records may be compelled pursuant to provisions by N.C. General Statute 8-53 which states that "any resident or presiding judge ... either at trial or prior thereto ... may compel disclosure (of medical records) if in his opinion disclosure is necessary to a proper administration of justice."

12. Federal HIPAA laws allow the disclosure of protected health information during any judicial hearing when pursuant to a court order, subpoena, discovery request, or other lawful process, 45 C.F.R. § 164.512(e)(1)(i), as long as the information is "relevant and material to a legitimate law enforcement inquiry and limited in scope as reasonably practicable". 45 C.F.R. § 164.512(f)(1)(ii).

13. Disclosure of this information is in the best interest of justice and the enforcement of the laws of the State of North Carolina. The information sought in Defendant's medical records is relevant and material to the prosecution of Defendant for Driving While Impaired. The information sought is not available to the State from any other appropriate source and is limited in scope as reasonably practicable.

14. The State believes the information contained in the medical records described is necessary and relevant to this case and that it is necessary to the proper administration of justice for the Court to enter an order compelling disclosure of the above-described records to the Carteret County District Attorney's office pursuant to N.C. [ Gen. Stat. §] 8-53.

¶ 3 The trial court granted the motion, finding and concluding that "the proper administration of justice requires that these records be provided to the State of North Carolina for the prosecution of this case." The records were released to the State.

¶ 4 On 23 October 2020, Defendant filed a motion to suppress the medical records asserting that, (1) the State failed to meet the requirements of N.C. Gen. Stat. § 8-53 by failing to submit "an affidavit or other similar evidence setting forth facts or circumstances sufficient to show reasonable grounds to suspect that a crime has been committed, and that the records sought are likely to bear upon the investigation of that crime," as required by State v. Scott , 269 N.C. App. 457, 462, 838 S.E.2d 676, 680 (2020), rev'd on other grounds , 377 N.C. 199, 2021-NCSC-41, 856 S.E.2d 507, and (2) disclosure of the medical records violated the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and Article I, Sec. 19 and/or 23 of the North Carolina Constitution. The motion was accompanied by Defendant's affidavit, in which he averred that he "never consented to the State obtaining [his] medical records from Carteret Health Care for May 1st and 2nd, 2017" and "never saw a search warrant for those records."

¶ 5 Defendant's motion came on for hearing on 9 November 2020. Following argument, the trial court denied the motion, finding that the State had filed a Motion for Production pursuant to N.C. Gen. Stat. § 8-53, and that "[a]lthough it was not supported by affidavit, the motion did contain sufficient other information as required by [ section] 8-53 for the [trial court] to be able to make an independent determination that the production of the records was necessary for the proper administration of justice." The trial court further concluded, "[t]here is a presumption that statutes are constitutional. The Court is not going to hold that [ section] 8-53 violate[s] the federal or state constitution.... Defendant's motion to suppress is, therefore, denied."

¶ 6 Also on 9 November 2020, Defendant admitted and stipulated to driving while impaired convictions on 10 December 2012, 20 December 2012, and 8 January 2013. The case proceeded to trial and the evidence and arguments of counsel tended to show the following:

A. Kirsten Lambert

¶ 7 Kirsten Lambert, an assistant general manager at the Taco Bell in Morehead City, North Carolina, was working the Taco Bell drive-through on the evening of 1 May 2017 when a vehicle pulled up to the drive-through window. A woman was driving the vehicle, and a man was in the passenger's seat. "The female driver was nervous and scared. You could see she was visibly shaken. The male passenger seemed to be kind of sloppy and he was slurring his speech. So he appeared intoxicated." Ms. Lambert then, "quietly asked the female driver if she was okay because she seemed scared. And she quietly said ‘yes.’ " After the vehicle drove away, Ms. Lambert called 911, describing the situation and her concerns, and gave the operator the vehicle's license plate number and description. An officer arrived at the Taco Bell and took a written statement from Ms. Lambert. The statement was admitted into evidence. Ms. Lambert reported in the statement that the male passenger appeared "intoxicated" and "irritated."

B. Sergeant Kristopher Cummings

¶ 8 Sergeant Kristopher Cummings of the Morehead City Police Department ("MCPD") was on duty on the night of 1 May 2017 when he received a dispatch to perform a "welfare check" on a female occupant of a blue Oldsmobile, last seen leaving the Morehead City Taco Bell. Within a "minute or two" of receiving the dispatch, Sergeant Cummings spotted an Oldsmobile that matched the description of the vehicle reported for the welfare check. The Oldsmobile was speeding 55 miles-per-hour in a 35 mile-per-hour zone. Sergeant Cummings stopped the Oldsmobile approximately 2 miles from the Taco Bell and approached the vehicle on foot.

¶ 9 Defendant was in the driver's seat and there was a female in the front passenger's seat. There was "a strong odor of alcohol coming from the passenger area. The female passenger was nervous, seemed very anxious, kind of matched the description given by dispatch of the welfare check." Sergeant Cummings had Defendant step out of the vehicle because, based on the call, "there was a possible domestic, or an assault, or something to do with the two of them ... but also that there was a strong odor of alcohol," and he wanted to separate Defendant from the cabin area of the car. Sergeant Cummings determined the smell of alcohol was coming from Defendant.

¶ 10 Sergeant Cummings was trained in detecting and apprehending impaired drivers. Defendant "had a slur to his speech,...