Opinion
No. COA09-1227
Filed 15 June 2010 This case not for publication
Appeal by Defendant from judgments entered 24 April 2009 by Judge Jay D. Hockenbury in New Hanover County Superior Court. Heard in the Court of Appeals 8 June 2010.
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. Greene Wilson, P.A., by Thomas Reston Wilson, for Defendant.
New Hanover County No. 07 CRS 3733.
I. Procedural History
On 10 March 2007, Defendant Hilary Noel Schwartz was cited for driving while impaired in violation of N.C. Gen. Stat. § 20-138.1 and failing to maintain her lane in violation of N.C. Gen. Stat. § 20-146(d)(1). Defendant was convicted of both charges in district court. Defendant appealed to Superior Court and the case was tried at the 23 April 2009 Criminal Session of New Hanover County Superior Court. The jury returned verdicts of guilty of both charges. The trial court entered judgment upon the jury verdicts, sentencing Defendant to 120 days imprisonment. Defendant's sentence was suspended and Defendant was placed on 12 months supervised probation. Defendant appeals.
II. Factual Background
On 10 March 2007, at approximately 7:45 a.m., Benjamin Hill was driving his car on Market Street in New Hanover County when he pulled behind Defendant's car. He noticed the car was swerving and unable to stay in its lane. Hill testified:
as it progressed, I remember three distinct times [Defendant's] car going off the road and back on it. Wheels going completely past the fog lines off the road. And then it wasn't until her car went completely off the road and we thought she was going to wreck — and it was pulled back on across two lanes of traffic.
Hill called 911, reported the car, and followed the car into a Harris Teeter parking lot. Hill watched as Defendant exited the car and entered the Harris Teeter.
Shortly after Defendant entered the Harris Teeter, Deputy John Scheckler of the New Hanover County Sheriff's Department arrived at the parking lot. Scheckler spoke with Hill, got a description of Defendant from Hill, and entered the Harris Teeter in an attempt to locate Defendant. Based on Hill's description, Scheckler located Defendant in the Harris Teeter. Scheckler approached Defendant, gave her a description of the vehicle that Hill had followed, and asked if it was her car. Defendant responded that it was. Scheckler testified that Defendant's speech was slurred, and while she talked with him, Defendant was "swaying in kind of a rotational manner." Scheckler asked Defendant to exit the building so he could perform field sobriety tests. Defendant agreed, and exited the Harris Teeter with Scheckler. Scheckler testified that he "walked at her elbow because she seemed to be unsteady on her feet." Scheckler then performed field sobriety tests, and formed the opinion that Defendant was under the influence of an impairing substance. Scheckler testified that, because Defendant did not smell of alcohol, he assumed Defendant had taken "some form of medication or a narcotic." Accordingly, Scheckler arrested Defendant.
Incident to her arrest, Scheckler searched the passenger area of Defendant's car. Inside the car, he found an empty, 130 milligram bottle of methadone with Defendant's name on it, dated 10 March 2007. He also found two empty bottles for Clonopin, one dated February 2007, the other dated March 2007, both bearing Defendant's name. Defendant was transported to the New Hanover County Sheriff's Office and read her Miranda rights. Defendant voluntarily waived her rights and answered Scheckler's questions. In response to Scheckler's question, "`Are you taking medications of any kind?'[,]" Defendant admitted that she had taken methadone at 7:40 that morning, Adderall the day before, and Clonopin two days prior.
III. Discussion
Defendant's sole argument on appeal is that the trial court committed plain error in admitting into evidence the empty medicine bottles discovered by Scheckler in Defendant's vehicle. Defendant contends specifically that the evidence was obtained as the result of an unconstitutional search and seizure in violation of her Fourth Amendment rights.
Article 53 of Chapter 15A of the North Carolina General Statutes prescribes that a timely motion to suppress "is the exclusive method of challenging the admissibility of evidence" in district or superior court on constitutional grounds. N.C. Gen. Stat. § 15A-979(d) (2007); see N.C. Gen. Stat. § 15A-974 (2007). "[F]ailure to make the pretrial motion to suppress waives any right to contest the admissibility of the evidence at trial on constitutional grounds." State v. Detter, 298 N.C. 604, 616, 260 S.E.2d 567, 577 (1979).
In this case, Defendant did not make a motion to suppress the admission of the pill bottles in evidence, nor did Defendant object to this evidence when it was offered at trial. Consequently, Defendant waived her right to object to the admissibility of the evidence at trial on constitutional grounds. Moreover, the trial court did not have the opportunity to consider or rule on these issues. In re W.R., 363 N.C. 244, 247, 675 S.E.2d 342, 344 (2009) (citing N.C.R. App. P. 10(b)(1)). Ordinarily an appellate court "will not consider arguments based upon matters not presented to or adjudicated by the trial court." State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600, cert. denied, 540 U.S. 988, 157 L. Ed. 2d 382 (2003); see also N.C. R. App. P. 10(b)(1). However, Defendant has "specifically and distinctly" argued plain error on appeal. N.C. R. App. P. 10(c)(4). "Under the plain error doctrine, errors or defects affecting a fundamental right may be addressed [on appeal] even though they were not previously brought to the attention of the [trial] court." W.R., 363 N.C. at 247, 675 S.E.2d at 344 (citing N.C. R. App. P. 10(c)(4); State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). "[P]lain error review is limited to errors in a trial court's jury instructions or a trial court's rulings on admissibility of evidence." State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). An error will rise to the level of "plain error" if
"it can be said the claimed error is a ` fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or `where [the error] is grave error which amounts to a denial of a fundamental right of the accused,' or the error has `"resulted in a miscarriage of justice or in the denial to appellant of a fair trial"' or where the error is such as to `seriously affect the fairness, integrity or public reputation of judicial proceedings' or where it can be fairly said `the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.'"
State v. Moore, 311 N.C. 442, 445, 319 S.E.2d 150, 152 (1984) (citations omitted).
In this case, even assuming arguendo that the evidence was obtained as the result of an unconstitutional search and seizure, given the overwhelming evidence of Defendant's guilt, we conclude that the admission of the evidence did not amount to plain error.
Hill observed Defendant driving her vehicle on Market Street. Defendant was driving "[s]low, weaving, getting close to going into the left lane and then getting close to going off . . . [t]he white line that sits on the side of the road before you actually go off into a median." Hill testified that Defendant "was going completely over into, past the fog line into the median and then crossing over lanes. So all lines were being crossed." At one point, Defendant drove "completely off the paved road past the line in a grassed area. And then there was an abrupt turn to get back onto the highway. And in doing so, [Defendant] came across the fog line, the checkered line, and into the turn lane."
Deputy Scheckler approached Defendant in the Harris Teeter, gave her a description of the vehicle Hill had observed, and asked Defendant if the vehicle was hers. Defendant responded that it was. Deputy Scheckler observed that Defendant's "speech was slurred. And also that while she was standing there talking to me, that she was swaying in kind of a rotational manner." At Deputy Scheckler's request, Defendant exited the building with him. Scheckler "walked at [Defendant's] elbow because she seemed to be unsteady on her feet." Scheckler had Defendant perform standardized field sobriety tests to determine if Defendant was impaired. Scheckler testified that these tests included "an HGN test, . . . a walk and turn test, and . . . a one leg stand test." Scheckler also looked for "things like slurred speech . . . [or] anything that may be an indicator for intoxication[]."
Scheckler explained that the HGN test is an eye test that is done in four stages and that "[i]f there is an impairment under medication, you can have all indicators. . . ." Scheckler testified that Defendant "had four out of four" indicators of impairment. Defendant was also given the one leg stand test.
Defendant was told to raise one foot and count. The test was for 30 seconds. Defendant started early, swayed, put her arms out for balance, and put her foot down after six seconds. Scheckler then attempted to administer the walk and turn test. Defendant again started early, kept falling to the side, and "had to put her hand on the wall to hold herself up." Scheckler stopped the test at that point because he was "afraid [Defendant] was going to fall and injure herself."
Scheckler then administered some alternative tests "that wouldn't require [Defendant] walking[.]" Scheckler asked Defendant to touch the tip of her finger to the tip of her nose. Defendant "touched her upper lip as opposed to the tip of her nose three times. She touched the tip of her nose three times." Scheckler also attempted to administer a Romberg balance test which "is nothing more than standing with your arms down at your side and your feet together, [and] tilt[ing] your head back with your eyes closed[.]" When the subject estimates that 30 seconds have passed, the subject should look at the officer and say stop. Scheckler testified that "[a] person under central nervous system depressants will take longer to think that 30 seconds is up." Defendant indicated that 30 seconds had passed "at a time of 50 seconds," according to Scheckler's watch.
Based on these indicators, Scheckler believed that Defendant was "appreciably impaired" by a substance and placed her under arrest. Defendant was taken to the New Hanover County Sheriff's Department and administered an Intoxilyzer test to assess the level of alcohol in her system. The test results indicated that no alcohol was present.
After being Mirandized, Defendant indicated to Scheckler that she was taking the following medications: methadone, Clonopin, and Adderall. She indicated that she took "`methadone, once a day, Clonopin 2-milligrams, twice a day, and Adderall 30-milligrams, once a day." She told Scheckler that she had taken methadone at 7:40 a.m. on that day, Adderall the day before, and Clonopin the day before that.
We conclude that, even excluding the evidence of the empty medicine bottles, there was overwhelming evidence from which the jury could have found Defendant guilty of driving while impaired and failing to maintain her lane. Accordingly, as the admission of the challenged evidence was not "so basic, so prejudicial, so lacking in its elements that justice cannot have been done," Moore, 311 N.C. at 445, 319 S.E.2d at 152 (citation and quotation marks omitted), we conclude Defendant received a fair trial, free of prejudicial error.
NO PREJUDICIAL ERROR.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).