State v. Perry, COA16-768

Decision Date20 June 2017
Docket NumberNo. COA16-768,COA16-768
CourtNorth Carolina Court of Appeals
Parties STATE of North Carolina, v. Justin Lee PERRY, Defendant.

Attorney General Joshua H. Stein, by Assistant Attorney General Robert T. Broughton, for the State.

Parish & Cooke, Fayetteville, by James R. Parish, for defendant-appellant.

BERGER, Judge.

On April 14, 2016, Justin Lee Perry ("Defendant") was convicted by a Mecklenburg County jury of felony fleeing to elude arrest, resisting a public officer, and driving while impaired. Defendant was sentenced as an habitual felon for 90 to 120 months in prison. Defendant has only challenged his driving while impaired conviction on appeal. Specifically, he asserts that (1) the trial court erred when denying his motion to suppress the results of a blood alcohol concentration test; (2) he received ineffective assistance of counsel when his counsel failed to argue the constitutionality of the warrantless blood draw performed on Defendant when counsel was arguing for the suppression of that evidence; and (3) he also received ineffective assistance of counsel when his counsel admitted Defendant’s guilt of the driving while impaired charge during closing arguments.

Because Defendant has waived appellate review of his first argument on appeal, we decline to address its merits. For Defendant’s first ineffective assistance of counsel claim, because he has failed to show that a different outcome would have been obtained had his counsel made a constitutional argument in favor of suppressing the warrantless blood draw, we grant Defendant no relief. However, for his second ineffective assistance claim, because the trial record does not provide this Court with sufficient facts to make a determination as to Defendant’s consent for his counsel to argue his guilt, we must dismiss this part of his appeal without prejudice. Defendant may take this matter up again in the trial court by filing a motion for appropriate relief. Therefore, we find no error in part, and dismiss without prejudice in part.

Factual Background

On May 10, 2014, Mecklenburg County Sheriff Deputy Robert Stokes observed a gold Toyota Camry, driven by a man later identified as Defendant, moving at a high rate of speed on Atando Avenue in Mecklenburg County. Deputy Stokes estimated Defendant’s vehicle was traveling approximately fifty miles per hour in a thirty mile per hour zone. As Defendant’s vehicle approached Deputy Stokes, he passed other vehicles on the road, using the center turning lane. Deputy Stokes activated his marked patrol vehicle’s lights and siren, and turned to follow Defendant’s vehicle.

Deputy Stokes attempted to stop Defendant’s vehicle, but he continued, "squeezing in between the median and [other] vehicles that were traveling in the same lane [and] ... pushing [other cars] off to the side [of the road]." Deputy Stokes caught up with Defendant’s vehicle "because ... the traffic was slowing him down." However, Defendant was able to accelerate and Deputy Stokes fell behind. Defendant’s vehicle continued at speeds estimated to be between sixty-five and seventy miles per hour, while the speed limit remained thirty miles per hour.

Still traveling at this high rate of speed, Defendant drove through a red light at the intersection of Atando and Statesville Avenues. Defendant then failed to stop at a stop sign at the entrance ramp onto Interstate 77, causing a truck to slam on its brakes to avoid a collision with the subject vehicle. Defendant’s vehicle then nearly hit another vehicle that was turning left. Defendant then drove over a concrete island and hit a mound of dirt where it came to a stop.

Defendant exited the vehicle and fled on foot. Deputy Stokes shouted four or five times for Defendant to stop running, a command Defendant failed to follow. Deputy Stokes continued to pursue Defendant into a residential neighborhood where he lost sight of Defendant. Deputy Stokes soon found Defendant lying under a piece of plywood "face down," "breathing heavily," and "sweating profusely."

Deputy Stokes ordered Defendant to get up, but he remained on the ground. Deputy Stokes handcuffed Defendant and "pulled him out to an open area[, out from under the plywood] ... so he [could] get more oxygen." Defendant was initially unresponsive, but suddenly "jumped up" and said, "I’m ready to go. Let’s go." Defendant walked a short distance before passing out again. Defendant was transported to the emergency room of a local hospital.

In the hospital, Defendant remained unresponsive. He periodically drifted in and out of consciousness and would suddenly state that he had been poisoned and "[didn’t] remember anything," and that "he drank a whole lot." Because Deputy Stokes suspected Defendant of driving while impaired, he read Defendant his rights, filled out "a rights form," and directed a nurse to draw Defendant’s blood so that it could be analyzed for its blood alcohol concentration ("BAC").

Procedural History

The State timely provided Defendant with notice of its intent to introduce the results of its analysis of Defendant’s blood, and its BAC findings, as evidence at trial. Defense counsel made no pretrial motion to suppress the BAC results.

At a motions hearing before trial, defense counsel notified the trial court that he may address certain "bad acts" regarding Defendant’s driving in his opening statement. Counsel requested that the trial court address "any kind of acknowledgement or reference by us to wrongdoing [that] may require for us to protect [Defendant’s] rights [so that counsel could] present the defense ... we have strategized." Defense counsel also indicated that these comments would likely reference Defendant’s driving and implicate Defendant’s fleeing to elude charge. The trial court conducted a colloquy with Defendant addressing these possible admissions regarding his driving. Defendant acknowledged that he had previously discussed with counsel the possible admissions and how those facts related to Defendant’s overall trial strategy. Defendant consented to these disclosures for the purposes of opening arguments. Following its colloquy with Defendant, the trial court found that:

Defendant has heard from his attorney relating to the intent to discuss his driving behavior in the opening and they have discussed the dangers and advantages of possibly providing that information early on. And based on discussion with counsel, the Defendant has, without undue influence from anyone else, made the decision to allow his attorney to make those statements.

During trial, Deputy Stokes testified to the circumstances surrounding Defendant’s blood draw while at the hospital. Defense counsel objected to the admission of any evidence gained from the blood draw and moved for its suppression. The trial court overruled the objection and denied the motion to suppress. A State Bureau of Investigation ("SBI") lab analyst testified to the results of the tests of Defendant’s blood sample, and to the SBI lab report giving Defendant’s BAC. This evidence was admitted without objection.

Defendant was found guilty of felony fleeing to elude, resisting a public officer, and driving while impaired. Defendant admitted to attaining habitual felon status. Defendant gave timely notice of appeal in open court.

I. Motion to Suppress

Defendant asserts that the trial court erred in summarily denying his motion to suppress evidence obtained from the warrantless blood draw taken from Defendant during his hospitalization. This motion to suppress was made during trial when the State sought to introduce the blood draw evidence.

However, this Court is procedurally barred from addressing the merits of Defendant’s argument because the basis for the objection given during trial is not the basis of Defendant’s argument on appeal. At trial, defense counsel objected to the introduction of evidence resulting from the warrantless blood draw because Deputy Stokes had not complied with the requirements of N.C. Gen. Stat. § 20-16.2 when he failed to arrest Defendant for driving while impaired before he drew Defendant’s blood.

On appeal, however, Defendant states a different argument for the suppression of the blood draw evidence. In his appeal, Defendant merely mentions N.C. Gen. Stat. § 20-16.2 once in an argument heading, but substantively argues that "[t]he drawing of the blood violated [his] Fourth Amendment rights against unreasonable searches and seizures as set out by the Constitution of North Carolina and the Constitution of the United States." Specifically, Defendant argues that (1) "taking a blood sample is a search governed by the Fourth Amendment [of the U.S. Constitution]"; (2) the North Carolina Supreme Court has held that a "search warrant must be issued before a blood sample can be obtained, unless probable cause and exigent circumstances" exist; and (3) the U.S. Supreme Court ha[s] previously held that "the natural dissipation of alcohol from the blood stream does not always indicate an exigency to justify warrantless taking of a blood sample."

Exceptions to the admission of evidence must generally be preserved by counsel with an objection made at the time evidence is admitted. N.C. Gen. Stat. § 8C–1, Rule 103 ; N.C.R. App. P. 10(a)(1). "In order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent." State v. Eason , 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991) (citing N.C.R. App. P. 10(b)(1) ).

The specific grounds for objection raised before the trial court must be the theory argued on appeal because "the law does not permit parties to swap horses between courts in order to get a better mount in the [appellate court]." Weil v. Herring , 207 N.C. 6, 10, 175 S.E. 836, 838 (1934). Furthermore, when counsel objects to the admission of evidence on only one ground, he or she fails...

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