State v. Romano
Decision Date | 19 November 2019 |
Docket Number | No. COA19-133,COA19-133 |
Citation | 268 N.C.App. 440,836 S.E.2d 760 |
Parties | STATE of North Carolina v. Joseph Mario ROMANO, Defendant. |
Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly N. Callahan, for the State.
Meghan Adelle Jones, for defendant-appellant.
On April 19, 2016, this Court affirmed the trial court's pre-trial order granting Joseph Mario Romano's ("Defendant's") motion to suppress a State Bureau of Investigation ("SBI") test result. State v. Romano , 247 N.C. App. 212, 785 S.E.2d 168 (2016) (" Romano I "). Both parties subsequently sought review of Romano I to our Supreme Court, which "modified and affirmed," and remanded to our Court for "further remand to the trial court for additional proceedings." State v. Romano , 369 N.C. 678, 695, 800 S.E.2d 644, 655 (2017) (" Romano II ").
This case is now before us for a second time to determine whether the trial court, upon remand from the State's interlocutory appeal, should have granted Defendant's motion to dismiss because the evidence the State deemed "essential to the case," the SBI test result, was ordered suppressed. Defendant also argues, in the alternative, that his supplemental motion to suppress medical records should have been granted because the original motion to suppress encompassed all records related to the blood draw on the day in question. We find no error.
The factual history of this case has been discussed in Romano I and Romano II . We adopt and include the pertinent factual history from Romano II , discuss the procedural history of Romano I and II , and include additional procedural history as needed to understand the legal issues herein.
Romano II , 369 N.C. at 681, 693, 800 S.E.2d at 646-47, 654.
On January 26, 2015, Defendant filed a pre-trial motion to suppress "any analysis or the report thereof" resulting from the warrantless blood draw. On February 3, 2015, the State filed a motion for Defendant's medical records related to treatment received on February 17, 2014, which the trial court granted. After a hearing on Defendant's motion to suppress, the trial court filed an order suppressing "[t]he blood seized by [Sergeant] Fowler and any subsequent test results performed on the same by the SBI Crime Laboratory."
The State appealed the order and certified to this Court that the suppressed evidence was essential to the prosecution of the case. On April 19, 2016, our Court affirmed the trial court's order suppressing the evidence. Romano I , 247 N.C. App. at 212, 785 S.E.2d at 168. Both parties then petitioned our Supreme Court for discretionary review and our Supreme Court in Romano II ultimately "modified and affirmed" the decision of this Court, and remanded to our Court for "further remand to the trial court for additional proceedings." Romano II , 369 N.C. at 695, 800 S.E.2d at 655. Our Supreme Court held "that N.C.G.S. § 20-16.2(b) is unconstitutional under the Fourth Amendment as applied to defendant in this case," and as a result, the trial court correctly suppressed the SBI test result. Id. at 695, 800 S.E.2d at 655.
Prior to the decision in Romano II , on April 25, 2016, the State filed a second motion for medical records stating that the hospital's first production of medical records pursuant to the February 2015 order was for a date unrelated to the charged offense. Eventually, the proper medical records were produced. The State then proceeded to try the case for habitual impaired driving and driving while license revoked after impaired driving without reliance on the suppressed SBI blood test.
Defendant filed a pre-trial motion to dismiss the charges on January 29, 2018. Defendant also filed a supplemental motion to suppress medical records and 911 calls (the "supplemental motion to suppress")1 on February 6, 2018. At trial, the court denied Defendant's motion to dismiss, stating that "[o]bviously the ruling by the Supreme Court is binding on the [S]tate as to the evidence that was dealt with by the Court, but that does not prevent the [S]tate from proceeding to trial absent that evidence." The court also denied the supplemental motion to suppress.
Defendant's medical records, which included the results of a blood alcohol test performed by the hospital, were admitted into evidence at trial. The State tendered Paul Glover ("Glover") as an expert in blood alcohol testing. Glover testified about the instrumentation and methodology used by the treating hospital in testing Defendant's blood sample. After explaining how the hospital determined Defendant's alcohol concentration in milligrams per deciliter, Glover explained the method and formula used in converting it to grams per 100 milliliters of whole blood. Based on this formula, Glover testified Defendant had a blood alcohol level of .33 grams per 100 milliliters of whole blood.
Defendant was found guilty of habitual impaired driving and driving while license revoked following impaired driving revocation. The trial court sentenced Defendant to fifteen to twenty-seven months imprisonment, and he was ordered to pay a $2,500.00 fine. Defendant appeals.
Defendant first argues the trial court erred when it denied his motion to dismiss because this Court and our Supreme Court determined that the trial court properly suppressed the SBI test result conducted by law enforcement. Specifically, Defendant contends the State should not have been able to try the case against Defendant upon remand because the SBI test result, which the State deemed essential to convict Defendant, had been ordered suppressed. We disagree.
A motion to suppress is a type of motion in limine . State v. McNeill , 170 N.C. App. 574, 579, 613 S.E.2d 43, 46 (2005). A "decision on a motion in limine is not final" because "a ruling on a motion in limine is a preliminary or interlocutory decision which the trial court can change if circumstances develop which make it necessary." Id. at 581, 579, 613 S.E.2d at 46 (purgandum ).
"A trial court's decision to grant a pretrial motion to suppress evidence ‘does not mandate a pretrial dismissal of the underlying indictments’ because ‘[t]he district attorney may elect to dismiss or proceed to trial without the suppressed evidence and attempt to establish a prima facie case.’ " State v. Fowler , 197 N.C. App. 1, 28-29, 676 S.E.2d 523, 545 (2009) (quoting State v. Edwards , 185 N.C. App. 701, 706, 649 S.E.2d 646, 650 (2007) ). In addition, prior to trial, the State may also elect to appeal to this Court an order by the superior court granting a motion to suppress. N.C. Gen. Stat. § 15A-979(c) (2017). "The burden is on the State to show that it has the right to appeal and has appealed in accordance with the requirements of the statute." State v. Judd , 128 N.C. App. 328, 329, 494 S.E.2d 605, 606 (1998). Therefore, after a superior court grants a defendant's motion to suppress, the State may elect to dismiss the case, proceed to trial without the suppressed evidence, or appeal the order suppressing the evidence prior to trial.
Here, the State elected to appeal the trial court's order suppressing the SBI result. Ultimately, both this Court and our Supreme Court agreed that the SBI result had been properly suppressed. These were interlocutory decisions , not final decisions, and did not preclude the State from proceeding to trial without the suppressed evidence upon remand. However, Defendant contends the State should not have appealed the order granting the motion to suppress unless the State did not...
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