Opinion
No. COA09-1485
Filed 7 September 2010 This case not for publication
Appeal by defendant from judgment entered 1 September 2009 by Judge James Gregory Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 April 2010.
Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. Eugene C. Hicks, III, for defendant.
Mecklenburg County No. 08 CR 238168.
On 9 August 2008, Gail Y. Bowens (defendant) was arrested in Charlotte for driving while impaired. On 31 October 2008, defendant filed a motion to dismiss, arguing that the arresting officer had no reasonable articulable suspicion to stop her vehicle. On 11 March 2009, the matter came on for trial in district court; at that time, the only evidence heard by the court was testimony from the arresting officer. In a document entered 19 March 2009 reciting findings of fact from that hearing, the court stated that defendant was not arraigned, nor her plea taken; that the arresting officer had testified, and the particulars of her testimony; that defendant's attorney did not cross-examine the arresting officer nor present any evidence, but rather moved to dismiss based on the lack of reasonable articulable suspicion; and that the case was dismissed on those grounds. Both the assistant district attorney and the attorney for defendant signed the document under the statement "the undersigned Assistant District Attorney and the undersigned counsel for defendant stipulate that the foregoing is an accurate statement of the facts of this case."
On 26 March 2009, the State gave notice of appeal from that ruling, requesting a de novo hearing in superior court. At that hearing, defendant moved to dismiss the appeal on the basis that she had already been put in jeopardy via the proceedings in district court and that the State was not entitled to appeal the ruling. The superior court denied the motion to dismiss and continued the matter. Defendant now appeals the ruling to this Court.
We note first that this appeal is interlocutory. While such orders are not generally immediately appealable, "if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review[,]" it may be immediately appealed pursuant to N.C. Gen. Stat. § 1-277(a) and 7A-27(d)(1). North Carolina Dep't of Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995) (citation omitted). Here, defendant argues that the superior court's ruling allowing the trial to go forward will place her in double jeopardy in violation of U.S. Const. Amend. V. We agree that this affects a substantial right, and thus consider the appeal.
Defendant first argues that the superior court erred because, pursuant to N.C. Gen. Stat. § 20-38.7, the motion was not properly before that court. We disagree.
Per N.C. Gen. Stat. § 20-38.6(a), "The defendant may move to suppress evidence or dismiss charges only prior to trial, except the defendant may move to dismiss the charges for insufficient evidence at the close of the State's evidence and at the close of all of the evidence without prior notice." N.C. Gen. Stat. § 20-38.6(a) (2009). N.C. Gen. Stat. § 20-38.7(a) states, in relevant part:
The State may appeal to superior court any district court preliminary determination granting a motion to suppress or dismiss. If there is a dispute about the findings of fact, the superior court shall not be bound by the findings of the district court but shall determine the matter de novo.
N.C. Gen. Stat. § 20-38.7(a) (2009). This Court recently noted that "a motion to dismiss for insufficient evidence cannot be made pretrial[.]" State v. Fowler, ___ N.C. App. ___, ___, 676 S.E.2d 523, 545 (2009).
The State correctly notes that, even though defendant's motion was titled Motion to Dismiss, the motion is more properly termed a motion to suppress. Specifically, it was a motion arguing that the evidence put on by the State — the only evidence heard by the district court — was insufficient to establish that the officer had a reasonable, articulable suspicion to stop defendant's car. "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.'" Fowler, ___ N.C. App. at ___, 676 S.E.2d at 545 (quoting State v. Edwards, 185 N.C. App. 701, 706, 649 S.E.2d 646, 650 (2007)) (alteration in original). As in Fowler, here, because the district court dismissed the case, "this Court must infer that the district court not only considered whether the officer had probable cause to arrest defendant but, further, preliminarily determined that there was insufficient evidence for the State to proceed against defendant on the charge of driving while impaired." Id. In such circumstances, an appeal from the district court's ruling is clearly available to the State pursuant to N.C. Gen. Stat. § 20-38.7(a) (2009).
Defendant next argues that the appeal to the superior court should have been dismissed because allowing it, and thus allowing a trial of defendant on this charge to go forward, puts defendant in jeopardy twice for the same charge. This argument is without merit.
The Fifth Amendment to the United States Constitution guarantees the right of criminal defendants to be free from double jeopardy. It protects against a second prosecution for the same offense after acquittal; . . . against a second prosecution for the same offense after conviction; . . . [and] against multiple punishments for the same offense. This right has been made applicable to the states through the Fourteenth Amendment.
State v. Ward, 127 N.C. App. 115, 121, 487 S.E.2d 798, 802 (1997) (quotations and citations omitted; alterations in original). As our Supreme Court stated in State v. Brunson, "once a defendant has been arraigned, has pled, and has appeared before a qualified judge who is ready to hear the case, jeopardy has attached." 327 N.C. 244, 246, 393 S.E.2d 860, 863 (1990). Defendant does not dispute the fact that she did not enter a plea at the hearing — indeed, it appears among the stipulated facts in the document entered on 19 March 2009 — and it is plain from the record that the judge was not present in order to hear the case, but rather to consider defendant's motion. "`The rule in North Carolina is that in non-jury trials, jeopardy attaches when the court begins to hear evidence or testimony.'" Fowler, ___ N.C. App. at ___, 676 S.E.2d at 538 (quoting Brunson, 327 N.C. at 249, 393 S.E.2d at 864. "Conversely, when the court is `presented' with evidence or testimony for its consideration of a pretrial motion on a question of law, jeopardy has not yet attached to the proceeding." Id. at ___, 676 S.E.2d at 538. As such, no jeopardy attached at that hearing, and defendant may now be tried on that charge.
Defendant purports to make one further argument, but as it cites to no supporting authority or source other than the Merriam-Webster Dictionary, Home and Office edition, it is not a valid argument of law for this Court's review. See N.C.R. App. P. 28(b)(6) (2010). Furthermore, the record clearly indicates that the State did not stipulate to the correctness of the district court's findings, but merely that the findings accurately reflected the district court proceedings. Thus, the State was entitled to seek a de novo review of the district court's preliminary determination pursuant to N.C. Gen. Stat. § 20-38.7(a).
Affirmed.
Judges BRYANT and ERVIN concur.
Report per Rule 30(e).