State v. Kostick, COA13–873.

• Decision Date: 18 March 2014
• Docket Number: No. COA13–873.,COA13–873.
• Citation: 755 S.E.2d 411
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Steven Clark KOSTICK, Defendant.

755 S.E.2d 411

STATE of North Carolina

v.Steven Clark KOSTICK, Defendant.

No. COA13–873.

Court of Appeals of North Carolina.

March 18, 2014.

Appeal by defendant from judgment entered 22 February 2013 by Judge James U. Downs in Swain County Superior Court. Heard in the Court of Appeals 11 December 2013.

Attorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton and Assistant Attorney General Kathryne E. Hathcock, for the State.

McLean Law Firm, P.A., by Russell L. McLean, III, Waynesville, for defendant-appellant.

BRYANT, Judge.

Pursuant to the Tribal Code of the Eastern Band of the Cherokee Indians and mutual compact agreements between the Tribe and other law enforcement agencies, the North Carolina Highway Patrol has authority to patrol and enforce the motor vehicle laws of North Carolina within the Qualla boundary of the Tribe, including authority to arrest non-Indians who commit criminal offenses on the Cherokee reservation. Our State courts have jurisdiction over the criminal offense of driving while impaired committed by a non-Indian, even where the offense and subsequent arrest occur within the Qualla boundary of the Cherokee reservation. A defendant's Knoll motion is properly dismissed where the magistrate follows N.C. Gen.Stat. § 15A–511(b) and any deviation from the statutory requirements is not prejudicial to defendant.

On 24 April 2010, the Cherokee Harley Davidson Rally (the “rally”) was held at the fairgrounds in Cherokee, North Carolina. As part of a cooperative agreement between the Eastern Band of the Cherokee Indians (the “Tribe”) and Swain County police departments and the North Carolina State Highway Patrol (“State Highway Patrol”), Swain County and State Highway Patrol officers assisted the Cherokee police officers in patrolling the rally, setting up and administering checkpoints, and providing assistance as needed. Checkpoints were established at the roads leading into and out of the fairgrounds, Drama Road/State Highway 1361 and State Highway 441, and were run by a combination of Cherokee and Swain County police officers. The checkpoints were intended to check all vehicles leaving the rally for potential driving while impaired (“DWI”), driver's license, insurance, and unsafe driving violations.

That evening at around 10:00 p.m., defendant Steven Clark Kostick (“defendant”) left the rally's parking lot and encountered a checkpoint on Drama Road. After rolling two car lengths past Cherokee Officer Dustin Wright who signaled for defendant to stop, defendant stopped his vehicle. As Officer Wright approached the vehicle, he immediately noticed an odor of alcohol and saw two open cans of beer in the car's center console cup holders. Officer Wright also noticed that a woman sitting in the front passenger seat of the vehicle was crying. Officer Wright directed defendant to return his vehicle to the parking lot and called for an available officer to come and conduct an investigation of defendant.

The responding officer was State Highway Patrol Trooper Jim Hipp who took over the investigation of defendant at the request of Officer Wright. After noticing that defendant smelled of alcohol, had red, glassy eyes, slurred speech, and an unsteady gait, Trooper Hipp conducted four field sobriety tests and concluded that defendant was likely intoxicated. Defendant told Trooper Hipp that he had consumed four to five beers that evening, and then admitted to having a handgun in his truck. The woman in defendant's car was driven by another officer back to the vacation cabin where she was staying with defendant.

Trooper Hipp arrested defendant on suspicion of DWI. Defendant was taken to the Swain County jail where he blew a 0.15 on a Breathalyzer test. Defendant was arraigned by a magistrate after being charged with DWI and was ordered to be held on a $500.00 secured bond. Defendant was released from the Swain County jail around 4 a.m. on 25 April 2010 after posting bail.

On 24 November 2011, defendant filed handwritten motions to suppress (entitled “Motion to Suppress Stop and Arrest;” “Motion to Suppress”). On 2 December 2011, defendant filed a motion to dismiss alleging lack of jurisdiction over defendant's arrest. The trial court denied all of defendant's motions, and on 6 April 2011, defendant was convicted of DWI in District Court. Defendant appealed his conviction to the Superior Court.

On 8 December 2011, defendant filed a new motion to dismiss alleging that the State Highway Patrol had no arrest authority within the Cherokee reservation and that defendant was on Cherokee, rather than State, property at the time of his arrest. Defendant further moved to suppress the evidence regarding the checkpoint stop and made a Knoll motion alleging that the magistrate did not properly inform defendant of his right to contact counsel and friends upon his arrest. At a pretrial hearing on 2021 February 2013, defendant's motions were denied. On 22 February 2013, a jury convicted defendant of DWI. Defendant appeals.

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On appeal, defendant challenges (I) the subject matter jurisdiction of the trial court, including whether the road on which defendant was stopped was a North Carolina state road, whether the North Carolina Highway Patrol had arrest authority, and whether the trial court erred in denying defendant's pretrial motion to dismiss the DWI charges; (II) whether the roadblock set-up by the Cherokee Police Department was constitutional; and (III) the trial court's failure to grant defendant's Knoll motion to dismiss the DWI citation.

Motion to Dismiss

On 2 October 2013, the State filed a motion to dismiss defendant's appeal, arguing that defendant failed to properly preserve his appeal. Specifically, the State contends that the record on appeal is insufficient because defendant failed to include a complete trial transcript to show that defendant properly renewed his pretrial objections at trial as to subject matter jurisdiction, suppression of evidence from the checkpoint and a Knoll violation, and that without proof that defendant did renew his objections at trial, those objections cannot be deemed to be preserved on appeal. Defendant, on the other hand, counters that he “has preserved each and every issue on appeal.”

Pursuant to our Rules of Appellate Procedure, “[t]he record on appeal in criminal actions shall contain ... so much of the litigation, set out in the form provided in Rule 9(c)( l ), as is necessary for an understanding of all issues presented on appeal....” N.C. R.App. P. 9(a)(3)(e) (2013).

In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection, or motion. Any such issue that was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, including, but not limited to, whether the judgment is supported by the verdict or by the findings of fact and conclusions of law, whether the court had jurisdiction over the subject matter, and whether a criminal charge is sufficient in law, may be made the basis of an issue presented on appeal.

N.C. R.App. P. 10(a)(1) (2013). Where a defendant does not preserve an issue for appeal, that issue may only then be appealed by claiming plain error pursuant to N.C. R.App. P. 10(a)(4). State v. Waring, 364 N.C. 443, 467–68, 701 S.E.2d 615, 631–32 (2010).

The State contends that defendant's appeal should be dismissed in its entirety because by not providing a complete trial transcript the record on appeal is insufficient. At the pretrial hearing, defendant raised three motions: a motion to dismiss for lack of subject matter jurisdiction; a motion to suppress evidence from the checkpoint; and a Knoll motion.

A. Defendant's motion to dismiss for lack of subject matter jurisdiction

Defendant provided a trial transcript for the pretrial hearing of 2021 February 2013 but did not provide the transcript for his jury trial on 22 February 2013. However, a determination of subject matter jurisdiction does not require the presence of a complete trial transcript, as “[j]urisdiction has been defined as ‘the power to hear and to determine a legal controversy; to inquire into the facts, apply the law, and to render and enforce a judgment [.]’ ” High v. Pearce, 220 N.C. 266, 271, 17 S.E.2d 108, 112 (1941) (citation omitted). As such, defendant's failure to include a trial transcript for his jury trial on 22 February 2013 does not negate his appeal regarding his motion to dismiss for lack of subject matter jurisdiction. SeeN.C. R.App. P. 10(a)(1). The State's motion to dismiss defendant's appeal as it relates to the issue of subject matter jurisdiction must, therefore, be denied.

B. Defendant's motion to suppress evidence from the checkpoint

[A] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial. Rulings on motions in limine are preliminary in nature and subject to change at trial, depending on the evidence offered, and thus an objection to an order granting or denying the motion is insufficient to preserve for appeal the question of the admissibility of the evidence.

State v. Reaves, 196 N.C.App. 683, 686, 676 S.E.2d 74, 77 (2009) (citation omitted).

Defendant made a pretrial motion to suppress evidence regarding the checkpoint and DWI arrest. However, defendant omitted the transcript of his jury trial; therefore, we have no objective means of ascertaining whether defendant renewed his motion to suppress at trial. “[A] ...