Opinion
No. COA15-244
02-16-2016
STATE OF NORTH CAROLINA v. ERIC JONATHAN COX, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. Devereux & Banzhoff, PLLC, by Andrew B. Banzhoff, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Mecklenburg County, No. 11 CRS 252710-13 Appeal by Defendant from judgments entered 16 September 2014 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 9 September 2015. Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. Devereux & Banzhoff, PLLC, by Andrew B. Banzhoff, for defendant-appellant. INMAN, Judge.
Eric Cox ("Defendant") appeals his conviction for second degree murder, felony serious injury by vehicle, driving while impaired, and operating a motor vehicle in violation of a license restriction. Defendant argues, inter alia, that his statutory and constitutional rights were violated by an unnecessary seven-hour delay between his arrest and appearance before a magistrate, requiring the trial court to dismiss the charges. Because the trial court's order denying Defendant's motion to dismiss failed to resolve all material issues of fact and law presented in that motion, we must vacate the order and remand this matter for further findings and conclusions.
Defendant also argues that the trial court erred by: (1) preventing Defendant from cross-examining a witness regarding the contents of a verified complaint; (2) excluding evidence that the child victim was not properly restrained in a child seat; (3) instructing the jury on proximate cause; and (4) instructing the jury on a lesser standard of proof than required by statute. Because we vacate the order denying the motion to dismiss and remand this matter for further findings and conclusions with regard to that motion, we do not reach these additional issues.
Background
The State's evidence tended to show the following: On 28 November 2011, at approximately 2:37 a.m., Hluon Siu was driving on the Plaza through the intersection of East Sugar Creek Road in Charlotte when her Nissan Altima was struck by Defendant's vehicle, a 2000 gray Chevrolet Tahoe. Ms. Siu's four-year-old son, Khai, was in the rear passenger seat. Ms. Siu died shortly after the collision. Khai was taken to Carolinas Medical Center and treated for injuries including a severe and traumatic brain injury, a small spleen laceration, ligament injures in his neck, and a fracture to one of the bones in his back.
A witness at the scene who was driving on the Plaza and waiting to turn left onto Sugar Creek Road observed Defendant's vehicle "just c[o]me across the intersection and hit [Ms. Siu's Altima] on the driver's side." The traffic light was green for Ms. Siu and red for Defendant. The Altima was "knocked [] off the road" and flipped over. Witnesses approached the Altima and observed Ms. Siu was "smashed in" and "had blood coming from. . . her mouth. . . [and] her legs were pinned under the steering column." They subsequently noticed there was child in the car who was not moving or making any noise.
Around 2:45 a.m., Sergeant David Sloan of the Charlotte-Mecklenburg Police Department's Major Crash Unit called Sergeant Jesse Wood, Officer Jonathan Cerdan, and Detective Matthew Sammis for assistance. Between 3:15 and 3:20 a.m., Officer Cerdan arrived on the scene and was asked to evaluate Defendant, whom he recognized from a previous arrest for driving while impaired. Because Defendant was seated in the back the of a police vehicle, Officer Cerdan asked him to exit the vehicle and walk over to a gas station to conduct standardized field sobriety tests and question him about the collision. Officer Cerdan noticed Defendant had "red, bloodshot, watery eyes" and he smelled a strong odor of alcohol on Defendant's breath. Defendant initially denied drinking any alcohol, but later in the conversation admitted to drinking one glass of wine at 9 p.m. and taking DayQuil and Nyquil earlier in the day. Officer Cerdan conducted the following field sobriety tests: horizontal gaze nystagmus, the walk and turn, the one-leg stand, and the Romberg balance. At approximately 4:00 a.m., Officer Cerdan formed an opinion that Defendant's mental and physical faculties were noticeably impaired by alcohol and arrested Defendant for driving while impaired and failure to comply with a .04 blood alcohol concentration restriction on his drivers license.
Officer Cerdan transported Defendant to Carolinas Medical Center-Mercy Hospital for a blood draw and a medical evaluation. Officer Cerdan read Defendant a rights form verbatim, in which the officer informs driving while impaired suspects "of the right to refuse, the right to get their own independent test, what penalties will ensue if they refuse or they're over the legal limit, and also the right to call an attorney or a witness." Officer Cerdan and Defendant both signed the form and Defendant was given a copy. Defendant did not request to call a witness or an attorney and Officer Cerdan testified that there was a phone available in the room. At 4:55 a.m., a nurse drew Defendant's blood.
Officer Cerdan transported Defendant to the Mecklenburg County Law Enforcement Center ("LEC") to be interviewed by Detective Sammis, lead detective in the investigation of Ms. Siu's death and Khai's injuries resulting from the collision. Detective Sammis arrived at the LEC at approximately 5:52 a.m. The officers escorted Defendant to an interview room where his handcuffs were removed and he was shackled to the floor. At 6:15 a.m., Detective Sammis advised Defendant of his Miranda rights and conducted an interview which lasted approximately one hour, ending around 7:15 a.m. Following the interview, Detective Sammis formally charged Defendant with second degree murder and felony serious injury by vehicle. After Detective Sammis completed Defendant's arrest paperwork, Officer Cerdan transported Defendant to the Mecklenburg County Jail at approximately 9:35 a.m. and handed him over to the detention staff.
Prior to seeing the magistrate, Defendant made a phone call and indicated to the person with whom he spoke that he did not want that person to come to the jail at that point because he did not know the conditions of his bond. At 11:10 a.m., Defendant went before the magistrate who advised Defendant of the conditions of his bond. Defendant was charged with second degree murder, felony serious injury by vehicle, driving while impaired, and operating a motor vehicle in violation of a license restriction. The magistrate set secured bonds on three of the charges, but set "no bond" on the charge of second degree murder, which the State concedes was error.
Prior to trial, Defendant filed a motion to dismiss alleging that he was "denied his statutory and constitutional rights to adequate pre-trial release and has been deprived of his opportunity to be with friends and family, his right to obtain additional chemical analysis, if he so desired, and his right to have an opportunity to obtain evidence on his behalf from friends and family, who would have had an opportunity to observe him and to form opinions as to his condition at a reasonable time after his arrest."
Defendant's case was called for trial on 2 September 2014 during the Criminal Session of Mecklenburg County Superior Court. Outside the presence of the jury, the trial court conducted a hearing on Defendant's motion to dismiss and orally denied it. The trial court entered a written order denying the motion to dismiss during the trial, on 10 September 2014.
On 16 September 2014, the jury convicted Defendant of all charges, and he was sentenced to an active sentence of 175 to 219 months for the second degree murder conviction, 5 days for the operation of a vehicle in violation of a license restriction conviction, and a consecutive sentence of 33 to 49 months for the conviction of felony serious injury by vehicle. Defendant timely appealed.
Analysis
Defendant contends the delay in bringing him before a judicial officer irreparably prejudiced his constitutional rights.
Defendant refers to a nine-hour delay between the collision at 2:37 a.m. and Defendant's appearance before the magistrate at 11:10 a.m. However, pursuant to the relevant statutes, the pertinent time span is from Defendant's arrest at approximately 4:00 a.m. to his appearance before a magistrate, which was approximately seven hours. See N.C. Gen. Stat. § 15A-501
The North Carolina Constitution provides: "In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation and to confront the accusers and witnesses with other testimony, and to have counsel for defense[.]" N.C. con. art. I, § 23. N.C. Gen. Stat. § 15A-511(a)(1) (2013) provides: "A law-enforcement officer making an arrest . . . must take the arrested person without unnecessary delay before a magistrate as provided in G.S. 15A-501." N.C. Gen. Stat. § 15A-501 requires that a person arrested in this State must, without unnecessary delay, be taken before a judicial officer and be informed of his right to communicate with counsel, family, and friends. N.C. Gen. Stat. § 15A-501(2), (5) (2013). Our Supreme Court has held that "[u]nquestionably, the failure of law enforcement personnel in complying with the provisions of [N.C. Gen. Stat. § 15A-511 and N.C. Gen. Stat. § 15A-501] can result in the violation of a person's constitutional rights." State v. Reynolds, 298 N.C. 380, 398, 259 S.E.2d 843, 854 (1979).
N.C. Gen. Stat. § 15A-954(a) (2013) provides, in pertinent part:
The court on motion of the defendant must dismiss the charges stated in a criminal pleading if it determines that . . . .[t]he defendant's constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution.
Defendant contends that he was not, without unnecessary delay, taken before a magistrate as required by N.C. Gen. Stat. § 15A-501(2) or advised of his right to communicate with friends as required by N.C. Gen. Stat. § 15A-501(5). He asserts that these violations irreparably prejudiced his ability to prepare his defense, so that the only appropriate remedy is to dismiss the charges.
Defendant argues that the proper analysis for this case is that employed in State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971), and not that in State v. Knoll, 322 N.C. 535, 369 S.E.2d 558 (1988). In Hill, our Supreme Court ordered dismissal of impaired driving charges against the defendant because he had been denied his constitutional and statutory rights to communicate with counsel and friends at a time when the denial deprived him of any opportunity to confront the State's witnesses with other testimony. 277 N.C. at 554, 178 S.E.2d at 466. The Court concluded that "[u]nder these circumstances, to say that the denial was not prejudicial is to assume that which is incapable of proof." Id.
In Knoll, our Supreme Court ordered the dismissal of charges against defendants who demonstrated not only that their statutory rights had been violated by the denial of pretrial release, but who also demonstrated that they had been prejudiced by the violations. 322 N.C. at 545, 369 S.E.2d at 564. The Knoll Court held that a defendant charged with a per se violation of the impaired driving statute must demonstrate prejudice resulting from a substantial statutory violation. Id.
Because we hold that the trial court's order omits appropriate findings and conclusions regarding unnecessary delay, we do not reach the issue of whether Defendant was prejudiced as a result of the alleged violation. Accordingly, we need not discuss whether the appropriate analysis is under Knoll or Hill.
In the order denying Defendant's motion to dismiss the charges, the trial court made the following findings:
1. Defendant was involved in an auto collision at the intersection of Sugar Creek Rd. and The Plaza on 11/28/11 at approximately 2:37 am.
2. Defendant drove a 2000 Chevrolet Tahoe. His vehicle collided with a car driven by the decedent.
3. Charlotte Mecklenburg Police arrived on the scene of the collision. Sgt. David Sloan, supervisor of the Major Crash unit contacted Officer Jonathan Cerdan, a member of the major crash unit to come to the Scene. Other detectives and officers were present on the scene controlling traffic, interviewing witnesses and otherwise conducting investigation of the collision.
4. Officer Cerdan arrived between 3:15 and 3:20 am. After being briefed by Sgt. Sloan, Cerdan was told to evaluate the Defendant's condition. Cerdan was acquainted with Defendant, having arrested him for DWI approximately one year earlier.
5. Defendant was seated in the back seat of a patrol car with the door partially opened. Cerdan had him exit the vehicle and walk to a BP service station where he administered four field sobriety tests: horizontal gaze nystagmus, walk and turn, one legged stand and Romburg balancing test. The officer also administered an alco-sensor test. The administration of these tests were videotaped on the officer's motor vehicle video camera.
6. Officer Cerdan formed the opinion that Defendant was under the influence of an impairing substance. He placed him under arrest for driving while impaired and violating a .04 driver's license restriction.
7. Officer Cerdan informed Sgt. Sloan of his findings and drove Defendant to CMC-Mercy hospital to have his blood drawn. Upon arrival at the hospital around 4:33 am, Officer Cerdan advised the Defendant of his rights. Defendant signed the rights form and did not ask to have a witness or an attorney present. A telephone was available to Defendant in the hospital room. His blood was drawn at 4:55 am. Defendant was examined by a physician and cleared.
8. Two vials of blood were drawn from Defendant. One vial was tested by a chemical analyst and the second was preserved for further testing if needed. Defendant has not requested that the second vial of blood be tested.
9. He was then taken to the Law Enforcement Center where they waited for the lead Detective Sammis to arrive and interview Defendant.
10. Detective Sammis began the interview with Defendant at 6:15 am by reading the Miranda rights form. Defendant initialed each right indicating that he understood, signed the waiver of rights form and agreed to make a statement without the presence of a lawyer. The interview concluded after an hour. Defendant was then charged with second degree murder and felony serious injury by vehicle.
11. Detective Sammis prepared the arrest affidavit, checked Defendant's criminal history and driving history. Officer Cerdan then transported Defendant to the Mecklenburg County jail for processing at 9:35 am. He was brought before a magistrate at approximately 11:11 am. Prior to seeing the magistrate, Defendant made a phone call to a friend. He did not ask the friend to come to the jail until after he knew the conditions of his release.
12. The magistrate set bond on each of the Defendant's charges except the second degree murder charge. The magistrate may have misconstrued the Bond policy of "no recommendation" on a second degree murder charge, as "no bond". The State concedes and the Court finds that the failure to set bond on the murder charge was a violation of NCGS Sec. 15A-533(b).The trial court made a conclusion of law "that while the Magistrate violated the Defendant's right to pre-trial release, the Defendant has failed to establish that he suffered irreparable prejudice as a result of the Magistrate's failure."
13. The Defendant had a first appearance hearing via video conference on November 29, 2011. Bond was set at $350,000 secured on the second degree murder case. He was represented by counsel at that hearing.
14. Defendant was released on bond several days after his arrest.
The trial court's order denying Defendant's motion to dismiss included numerous findings of fact regarding the delay between Defendant's arrest and his appearance before a magistrate and regarding Defendant's access to friends and family during that time period. However, the trial court addressed only the illegal bond conditions in its conclusions of law. The trial court made no findings or conclusions regarding whether the seven-hour delay between Defendant's arrest and subsequent appearance before the magistrate was unnecessary or prejudiced Defendant. Nor did the trial court make findings or conclusions regarding whether Defendant's rights under N.C. Gen. Stat. § 15A-501(5) were violated.
A. Delayed Appearance Before Magistrate
In several decisions reviewing a trial court's determination of whether a delay between arrest and appearance before a judicial official was unnecessary, this Court has applied the substantial evidence standard, even if the trial court characterized its ruling on the issue as a conclusion rather than as a finding of fact. See State v. Sings, 35 N.C. App. 1, 6, 240 S.E.2d 471, 474 (1978) ("This evidence clearly supports the finding of fact that the delay in taking defendant before a magistrate was necessary."); see also State v. Daniel, 208 N.C. App. 364, 371, 702 S.E.2d 306, 310-11 (2010) ("[T]he trial court's conclusion that no substantial violation of defendant's rights occurred is supported by the evidence before it.") (emphasis in original). In other cases, however, this Court has described its ruling on appeal as a conclusion of law. See, e.g., State v. Bullin, 150 N.C. App. 631, 641, 564 S.E.2d 576, 584 (2002) ("We conclude that a two-hour delay at defendant's residence, during which officers asked defendant no questions, was not an 'unnecessary delay' in violation of section 15A-501"); see also State v. Caudill, 227 N.C. App. 119, 123, 742 S.E.2d 268, 270 (2013) (affirming the trial court's conclusion that "[t]he time spent by officers . . . interviewing defendant before taking him before a magistrate did not constitute such unnecessary delay as to substantially violate defendant's statutory right under NCGS 15A-501(2) to be taken before a magistrate without unnecessary delay following his arrest"). Given the factually specific nature of the analysis in this case and most questions regarding criminal procedure, we believe the determination is an issue of fact for the trial court to determine in the first instance.
B. Delayed Advisement of Rights
The issue of whether the failure to advise a defendant of his rights to communicate with family and friends without unnecessary delay as provided in § 15A-501(5) has been characterized as an issue of fact. See State v. Townsend, ___ N.C. App. ___, ___, 762 S.E.2d 898, 903 (2014) ("In its findings of fact and conclusions of law, the trial court noted that defendant had the opportunity to contact counsel and friends to observe him."). Defendant contends that because he was not advised precisely of his rights to communicate with family and friends who could have assisted him in gathering evidence to defend against the charges, he was essentially denied the right to such communication. "When a defendant alleges he has been denied his right to communicate with counsel, family, and friends, the trial court must conduct a hearing on defendant's motion to dismiss and make findings and conclusions." State v. Lewis, 147 N.C. App. 274, 277, 555 S.E.2d 348, 351 (2001). "If there is a conflict between the state's evidence and defendant's evidence on material facts, it is the duty of the trial court to resolve the conflict and such resolution will not be disturbed on appeal." State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982). Accordingly, Defendant's contention that he was not timely advised of his rights to communicate with family and friends should be decided by the trial court.
Based on the trial court's findings and conclusions, as well as the record showing the defendant's "several opportunities to call counsel and friends to observe him and help him obtain an independent chemical analysis," this Court in Townsend held that the defendant had not been denied any rights and had failed to demonstrate prejudice. ___ N.C. App. at ___, 762 S.E.2d at 903-04. We do not decide whether Defendant's appeal here is defeated by the record and findings notwithstanding the absence of further findings and conclusions regarding this issue, because we must in any event remand for findings and conclusions regarding whether Defendant's appearance before the magistrate was unnecessarily delayed. --------
C. Remand
Resolving Defendant's appeal on its merits would require this Court to decide issues brought before the trial court but not addressed in the trial court's order, whether through inadvertence or a misapprehension of the issues to be decided. "[I]t is the trial court that is entrusted with the duty to hear testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then based upon those findings, render a legal decision, in the first instance, as to whether or not a constitutional violation of some kind has occurred." State v. Salinas, 366 N.C. 119, 124, 729 S.E.2d 63, 67 (2012) (internal quotation marks and citations omitted).
It is tempting to speculate that the trial court considered Defendant's argument that he was entitled to dismissal based upon violations that occurred before he appeared before the magistrate; however, "speculation is not sufficient to affirm the trial court's order." New Hanover Child Support Enf't v. Rains, 193 N.C. App. 208, 210, 666 S.E.2d 800, 802 (2008). Our Supreme Court has explained:
Our decision to remand this case for further evidentiary findings is not the result of an obeisance to mere technicality. Effective appellate review of an order entered by a trial court sitting without a jury is largely dependent upon the specificity by which the order's rationale is articulated. Evidence must support findings; findings must support conclusions; conclusions must support the judgment. Each step of the progression must be taken by the trial judge, in logical sequence; each link in the chain of reasoning must appear in the order itself. Where there is a gap, it cannot be determined on appeal whether the trial court correctly exercised its function to find the facts and apply the law thereto.Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980). In order for this Court to conduct meaningful appellate review, the trial court must make appropriate findings of fact and conclusions of law.
Conclusion
For the aforementioned reasons, we vacate the trial court's order denying Defendant's motion to dismiss and remand the matter for further findings and conclusions consistent with this opinion.
VACATED AND REMANDED.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).