State v. Fields

268 N.C.App. 561

836 S.E.2d 886

STATE of North Carolina

v.Benjamin FIELDS

No. COA19-38

Court of Appeals of North Carolina.

Filed: December 3, 2019

Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, and Durham County Assistant District Attorney, by Adam Williamson, for the State-Appellant.

Office of the Appellate Defender, by Assistant Appellate Defender Sterling P. Rozear, for the Defendant-Appellee.

COLLINS, Judge.

The State appeals from an order granting Defendant's motion to suppress, heard at a pretrial hearing on Defendant's charge of driving while impaired. On appeal, the State's overarching argument is that the trial court erred in allowing the motion because the State had probable cause to arrest Defendant. We find no merit in the State's arguments and affirm the trial court's order.

I. Procedural History

On 24 February 2017, Defendant was issued a North Carolina Uniform Citation for, inter alia , driving while impaired. On 18 April 2018, following a bench trial in district court, Defendant was found guilty of driving while impaired. The trial court entered judgment and sentenced Defendant to 36 months’ imprisonment. Defendant appealed to superior court.

On 5 June 2018, Defendant filed a motion to suppress evidence derived from his arrest, arguing there was no probable cause to support the arrest. At a hearing on 20 August 2018, the trial court orally allowed Defendant's motion. The State immediately gave oral notice of appeal in open court. The trial court entered a written order on 12 September 2018 reflecting its ruling from the bench. The State filed written notice of appeal from the 12 September 2018 order on 3 October 2018.¹

II. Factual Background

On 24 February 2017, Officer Daryl Macaluso of the Durham Police Department responded to a disturbance call near the 800 block of Briggs Avenue. The caller reported a green pickup truck driving erratically and "attempting to hit people."

Macaluso's Testimony

Macaluso testified that as he approached the area, he was flagged down by an "extremely intoxicated" man who was telling him about the vehicle trying to run people over. Macaluso further testified, "I saw a vehicle that fit the description passing me .... And that vehicle was driven by the defendant. I clearly took a look at him while he was driving by." The intoxicated man did not react to the green pickup truck, nor did he "make references to the vehicle passing" them. The green pickup truck was not driving erratically or committing any traffic violations, and Macaluso did not follow the truck.

Macaluso drove his car around the block. Upon his return to the Briggs Avenue area, he was approached by "a lot more intoxicated people" who attempted to explain what had occurred. About two minutes later, as Macaluso was speaking with the group, Defendant approached on foot from about a half-block away. Macaluso noticed that Defendant was unsteady on his feet and slurred his speech. Defendant appeared angry and complained that he had been sold "fake crack." Macaluso asked Defendant to wait in the back of the patrol car while he investigated, and eventually called for backup in conducting an impaired driving investigation.

Munter's Testimony

Investigator Gabriel Munter responded to the call to investigate. When he arrived at the scene, he found Defendant sitting in the backseat of Macaluso's patrol car. Because Munter had not seen Defendant drive, Munter told Macaluso, "I would need you to put him behind the wheel." Munter testified, "I'm not going to pick up an impaired driving investigation unless that's been established by another officer because I wasn't there and I didn't see the driving. So if [Macaluso] can put him behind the wheel, yes, I'll pick up the investigation from that point." Munter testified that Macaluso "said that he saw [Defendant] driving. [Macaluso] said, He passed me, I believe were his words."

Munter proceeded to investigate a green pickup truck parked at the Big Apple Mini-mart. Munter found an empty liquor container in the back of the truck, but testified that it appeared to have been there a while. Munter did not check the temperature of the truck, exhaust pipe, or hood while he conducted his investigation. Munter returned to the Briggs Avenue area, where he conducted various field sobriety tests on Defendant, including a horizontal gaze nystagmus test. Defendant showed six out of six clues of impairment on the horizontal gaze nystagmus test. Munter arrested Defendant and charged him with driving while impaired.

Body Camera Video

Munter's body camera captured video of the events on that day, and Munter narrated the video while the jury watched it. At the beginning of the video, Munter walked up to Macaluso and asked questions about the original phone call tip regarding an erratic driver trying to hit people. The video then captured Macaluso telling Munter, "I didn't know that was [Defendant's] car until someone else pointed it out."

Mini-mart Video

Macaluso testified that he "continued to control the crowd" until Munter arrested Defendant and left the scene. Following Munter's departure, Macaluso went to the Big Apple Mini-mart to see if they had video of the area. Macaluso obtained video which "showed [Defendant] coming out of the truck and [he] got the video on a flash drive." However, Macaluso testified that the flash drive containing the video was lost when Macaluso brought his patrol car in for repairs. Macaluso testified, "The flash drive is gone. There's no video." The State did not present the video at the hearing.

III. Discussion

The State argues on appeal that the trial court erred by granting Defendant's motion to suppress because (1) the trial court lacked jurisdiction to enter the written order after notice of appeal to this Court had been given, (2) the trial court's findings are not supported by the evidence, and (3) the trial court erred in finding no probable cause to arrest Defendant. We address each argument in turn.

1. Trial Court's Jurisdiction

The State first argues that the trial court lacked jurisdiction to enter the written order on 12 September 2018 because the State had given oral notice of appeal immediately after the trial court announced its ruling from the bench on 20 August 2018. The State claims that once it gave notice of appeal, the trial court was without jurisdiction to enter any additional findings of fact or orders. The State's argument is meritless.

This Court reviews jurisdictional issues de novo. State v. Oates , 366 N.C. 264, 266, 732 S.E.2d 571, 573 (2012). Generally, when appeal entries are noted, the appeal becomes effective immediately, and the trial court is without authority to enter orders affecting the merits of the case. State v. Grundler , 251 N.C. 177, 185, 111 S.E.2d 1, 7 (1959) (citation omitted). However, the trial court maintains jurisdiction to enter a written order after notice of appeal has been given where the order does not "affect [ ] the merits , but, rather, is a chronicle of the findings and conclusions" decided at a prior hearing. State v. Walker , 255 N.C. App. 828, 830, 806 S.E.2d 326, 329 (2017) (emphasis in original) (citation omitted).

In this case, the trial court announced from the bench that Defendant's motion was allowed. In response to the State's request for "findings of the facts[,]" the trial court announced:

I'll reserve the right to find appropriate findings of fact. I've already indicated in open court that the State cannot make the nexus between the person that the officer saw driving, there were no traffic or Chapter 20 violations[,] to the person that came up two minutes later. I reserve the right to find further findings of fact. [Counsel for Defendant], you will prepare that order.

The State then gave notice of appeal. The written order contains 21 findings of fact, including the following:

Throughout the duration of the hearing the State's evidence did not establish a nexus between the driver of the green pickup truck observed by Officer Macaluso, which was not observed violating any Chapter 20 offense, and the individual who later walked upon the raucous scene on Briggs Avenue.

The written order thus concludes "that the State did not meet their statutory burden that of probable cause to arrest [Defendant] on February 24, 2017 for the offense of driving while impaired." The written order does not "affect [ ] the merits , but, rather, is a chronicle of the findings and conclusions" decided at the motion to suppress hearing, and thus, the written order is "not a new order affecting the merits of the case." Walker , 255 N.C. App. at 830, 806 S.E.2d at 329 (emphasis in original) (citation omitted). Accordingly, the trial court had jurisdiction to enter the written order, and we reject the State's contention to the contrary. See State v. Smith , 320 N.C. 404, 415-16, 358 S.E.2d 329, 335 (1987) (the trial court had jurisdiction to enter a written order out of term denying defendant's motion to suppress where the order was "simply a revised written version of the verbal order entered in open court which denied defendant's motion to suppress") (quotation marks omitted); State v. Franklin , 224 N.C. App. 337, 345, 736 S.E.2d 218, 223 (2012) (the trial court had jurisdiction to enter its written order denying defendant's motion to suppress after defendant had given notice of appeal as the written order "merely reduced its oral ruling to writing") (internal quotation marks, brackets, and citation omitted).

2. Contested Findings of Fact

The State next argues that the trial court's findings of fact 9, 19, and 21 are not supported by the evidence.

This Court's role in reviewing a trial court's order on a motion to suppress "is simply to determine whether the trial court's findings of fact are supported by the evidence and whether those findings support the court's conclusions of law." State v. Campbell , 188 N.C. App. 701, 706, 656 S.E.2d 721, 725 (2008). "Our review is limited to those facts...