State v. Bartlett
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NO. COA13-471 NORTH CAROLINA COURT OF APPEALS Filed: 17 December 2013 STATE OF NORTH CAROLINA v. Durham County No. 11 CRS 052430 RANDY BENJAMIN BARTLETT Appeal by the State from order entered 22 February 2013 by Judge Orlando F. Hudson, Jr. in Durham County Superior Court. Heard in the Court of Appeals 24 September 2013. Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for Defendant. DILLON, Judge. The State appeals from the trial court s order granting Defendant s motion to suppress, contending the Honorable Orlando Hudson did not have the authority to sign the order entered on 13 February 2013, because the hearing was before the Honorable Abraham Jones on 18 December 2012. Because Judge Jones ruling from the bench on 18 December 2012 was sufficient, in this case, to enter the trial court s order allowing Defendant s motion to suppress, we conclude the State s argument is without merit. -2The evidence of record tends to show the following: On 25 March 2011 at approximately 1:00 A.M., Officer Howard Henry of the Durham County Police Department saw Randy Benjamin Bartlett ( Defendant ) believed he allegedly was racing speeding or on I-40. attempting to Officer race a Henry Corvette. Officer Henry estimated that Defendant was driving 80 mph in a 65 mph zone. Officer Henry pulled Defendant and, upon approaching the driver s side of the vehicle, detected a strong odor of alcohol. Defendant s passenger in the vehicle. wife, Ms. Jamie Jones, was a When Officer Henry asked Defendant if he had been drinking, Defendant replied that he had had two beers. After performing a series of field sobriety tests, Officer Henry arrested Defendant for speeding and driving while impaired. On 17 February 2012, Defendant filed a motion to suppress the evidence gathered after his arrest based on the lack of probable cause to arrest Defendant. A probable cause hearing was held before Judge Jones on 18 December 2012. Officer Henry, Ms. Jones, and Mr. Julian Douglas Scott ( Mr. Scott ) testified at the hearing. Officer Henry testified that he executed a series of field sobriety tests to determine that probable cause existed to -3arrest Defendant on the basis of driving while impaired. First, Officer Henry performed the Horizontal Gaze Nystagmus ( HGN ) field sobriety test, and he stated that [t]he first part of the HGN is to check his pupils to make sure that they re of normal size, which his were. Defendant s sustained eyes lacked nystagmus at Officer Henry stated, however, smooth a pursuit, maximum and deviation Defendant in both that had eyes. Defendant did not exhibit the onset of nystagmus prior to 45 degrees[.] Officer Henry also executed the walk and turn field sobriety test, which Officer Henry admitted, he was able to do it. In the next portion of the field sobriety test, Defendant was asked to take nine steps, heal to toe, on an imaginary line, then turn around and take nine additional steps on the same imaginary line. line once. Defendant stepped off the imaginary Defendant was also asked to perform the one-leg stand field sobriety test, which entailed rais[ing] the foot . . . six inches from the ground, keeping the foot parallel to the ground and the leg straight, and then keeping his hands down to his side[,] while he was to count one thousand one, one thousand two, and to keep counting until [Officer Henry told] him to stop. Defendant passed this test. Lastly, Defendant was asked to do a preliminary breath test, which Officer Henry -4performed twice, and which gave a positive result both times, indicating that Defendant had some alcohol in his system. Mr. Scott was qualified as an expert1 at the hearing in this matter and testified for Defendant that, on the undisputed evidence presented concerning this particular stop, he would not have been comfortable making the arrest. At the end of the hearing, Judge Jones stated, I may be wrong, but I think the guy substantially passed the test. . . . So on the basis of that, I ll grant the motion. You draw up the order, get it to me. Subsequently, Judge Hudson signed an order drafted by the parties, making findings of fact and conclusions of law based on the evidence presented at the hearing before Judge Jones, and granting Defendant s motion to suppress. From this written order, the State appeals. I: Authority of Superior Court Judges In the State s sole argument on appeal, it contends Judge Hudson had no authority to sign the order prepared for Judge 1 Mr. Scott had formerly been employed as a police officer and had taken the standardized field sobriety testing student course and the detection and standardized field sobriety testing instructor training course. He had also completed his certification requirements and become the first drug recognition expert in North Carolina. He then founded the State s drug recognition expert training program and coordinated the program for three years. -5Jones, based upon evidence presented at a hearing before Judge Jones. We find it unnecessary to reach this question. N.C. Gen. Stat. § 15A-977(f) (2011), requires that [t]he judge must set forth in the record his findings of facts and conclusions of law. 977(f), unless has (1) been the Id. However, N.C. Gen. Stat. § 15A- interpreted trial court as mandating provides its a written rationale order from the bench, and (2) there are no material conflicts in the evidence at the suppression hearing. State v. Williams, 195 N.C. App. 554, 555, 673 S.E.2d 394, 395 (2009) (citation omitted). If these two criteria are met, the necessary findings of fact are implied from the denial of the motion to suppress. Id. [A] material conflict in the evidence exists when evidence presented by one party controverts evidence presented by an opposing party such that the outcome of the matter to be decided is likely to be affected. State v. Morgan, __ N.C. App. __, __, 741 S.E.2d 422, 425 (2013). In this case, there was no material conflict evidence presented at the suppression hearing. was the only witness who supplied in the Officer Henry testimony Defendant s performance in the field sobriety tests. concerning Compare, Morgan, __ N.C. App. at __, 741 S.E.2d at 426 (stating that the -6defendant and the detective s recitations of the facts were contradictory, and concluding that there was a material conflict in the evidence, when the defendant stated, but the detective denied, that the detective indicated he could help defendant get probation if the defendant signed a waiver, and when the defendant also stated that he was highly under the influence of the controlled substances but the detective opined that the defendant did not appear to be under the influence of any impairing-type substance ); State v. Williams, __ N.C. App. __, __, 715 S.E.2d 553, 558 (2011) (holding that, under the circumstances, even though the defendant s testimony conflicted with the detective s testimony, the conflict was not material, because the conflict was not such that the outcome of the matter to be decided [was] likely to be affected ). In the regarding concerning present whether case, the Defendant s there evidence were presented performance during differing by the opinions Officer field Henry sobriety tests supported Officer Henry s decision that there was probable cause to believe that Defendant was appreciably impaired. However, the actual evidence concerning Defendant s performance in the field sobriety tests was undisputed. For this reason because the evidence in this case was not materially conflicting -7and because Judge Jones supplied the rationale for his ruling from the bench we conclude that the order granting Defendant s motion to suppress was effectively entered on 18 December 2012 in open court. Therefore, Judge Hudson s 22 February 2013 written order, containing findings of facts and conclusions of law based on the evidence hearing, was unnecessary. received at the 18 December 2012 State v. Oates, 366 N.C. 264, 268, 732 S.E.2d 571, 574 (2012) (stating that [w]hile a written determination best does not is require the that practice, these nevertheless findings and the conclusions statute be in writing ) (citing State v. Horner, 310 N.C. 274, 279, 311 S.E.2d 281, 285 (1984)). AFFIRMED. Judge McGEE and Judge McCULLOUGH concur.
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