in the Court of Appeals 26 January 2017.
by defendant from judgments entered 14 April 2016 by Judge
Hugh B. Lewis in Mecklenburg County Superior Court
Mecklenburg County, Nos. 14CRS18572, 218077-78; 15CRS16011.
Attorney General Joshua H. Stein, by Assistant Attorney
General Robert T. Broughton, for the State.
& Cooke, by James R. Parish, for defendant-appellant.
April 14, 2016, Justin Lee Perry ("Defendant") was
convicted by a Mecklenburg County jury of felony fleeing to
elude arrest, resisting a public officer, and driving while
impaired. Defendant was sentenced as an habitual felon for 90
to 120 months in prison. Defendant has only challenged his
driving while impaired conviction on appeal. Specifically, he
asserts that (1) the trial court erred when denying his
motion to suppress the results of a blood alcohol
concentration test; (2) he received ineffective assistance of
counsel when his counsel failed to argue the
constitutionality of the warrantless blood draw performed on
Defendant when counsel was arguing for the suppression of
that evidence; and (3) he also received ineffective
assistance of counsel when his counsel admitted
Defendant's guilt of the driving while impaired charge
during closing arguments.
Defendant has waived appellate review of his first argument
on appeal, we decline to address its merits. For
Defendant's first ineffective assistance of counsel
claim, because he has failed to show that a different outcome
would have been obtained had his counsel made a
constitutional argument in favor of suppressing the
warrantless blood draw, we grant Defendant no relief.
However, for his second ineffective assistance claim, because
the trial record does not provide this Court with sufficient
facts to make a determination as to Defendant's consent
for his counsel to argue his guilt, we must dismiss this part
of his appeal without prejudice. Defendant may take this
matter up again in the trial court by filing a motion for
appropriate relief. Therefore, we find no error in part, and
dismiss without prejudice in part.
10, 2014, Mecklenburg County Sheriff Deputy Robert Stokes
observed a gold Toyota Camry, driven by a man later
identified as Defendant, moving at a high rate of speed on
Atando Avenue in Mecklenburg County. Deputy Stokes estimated
Defendant's vehicle was traveling approximately fifty
miles per hour in a thirty mile per hour zone. As
Defendant's vehicle approached Deputy Stokes, he passed
other vehicles on the road, using the center turning lane.
Deputy Stokes activated his marked patrol vehicle's
lights and siren, and turned to follow Defendant's
Stokes attempted to stop Defendant's vehicle, but he
continued, "squeezing in between the median and [other]
vehicles that were traveling in the same lane [and] . . .
pushing [other cars] off to the side [of the road]."
Deputy Stokes caught up with Defendant's vehicle
"because . . . the traffic was slowing him down."
However, Defendant was able to accelerate and Deputy Stokes
fell behind. Defendant's vehicle continued at speeds
estimated to be between sixty-five and seventy miles per
hour, while the speed limit remained thirty miles per hour.
traveling at this high rate of speed, Defendant drove through
a red light at the intersection of Atando and Statesville
Avenues. Defendant then failed to stop at a stop sign at the
entrance ramp onto Interstate 77, causing a truck to slam on
its brakes to avoid a collision with the subject vehicle.
Defendant's vehicle then nearly hit another vehicle that
was turning left. Defendant then drove over a concrete island
and hit a mound of dirt where it came to a stop.
exited the vehicle and fled on foot. Deputy Stokes shouted
four or five times for Defendant to stop running, a command
Defendant failed to follow. Deputy Stokes continued to pursue
Defendant into a residential neighborhood where he lost sight
of Defendant. Deputy Stokes soon found Defendant lying under
a piece of plywood "face down, " "breathing
heavily, " and "sweating profusely."
Stokes ordered Defendant to get up, but he remained on the
ground. Deputy Stokes handcuffed Defendant and "pulled
him out to an open area[, out from under the plywood] . . .
so he [could] get more oxygen." Defendant was initially
unresponsive, but suddenly "jumped up" and said,
"I'm ready to go. Let's go." Defendant
walked a short distance before passing out again. Defendant
was transported to the emergency room of a local hospital.
hospital, Defendant remained unresponsive. He periodically
drifted in and out of consciousness and would suddenly state
that he had been poisoned and "[didn't] remember
anything, " and that "he drank a whole lot."
Because Deputy Stokes suspected Defendant of driving while
impaired, he read Defendant his rights, filled out "a
rights form, " and directed a nurse to draw
Defendant's blood so that it could be analyzed for its
blood alcohol concentration ("BAC").
State timely provided Defendant with notice of its intent to
introduce the results of its analysis of Defendant's
blood, and its BAC findings, as evidence at trial. Defense
counsel made no pretrial motion to suppress the BAC results.
motions hearing before trial, defense counsel notified the
trial court that he may address certain "bad acts"
regarding Defendant's driving in his opening statement.
Counsel requested that the trial court address "any kind
of acknowledgement or reference by us to wrongdoing [that]
may require for us to protect [Defendant's] rights [so
that counsel could] present the defense . . . we have
strategized." Defense counsel also indicated that these
comments would likely reference Defendant's driving and
implicate Defendant's fleeing to elude charge. The trial
court conducted a colloquy with Defendant addressing these
possible admissions regarding his driving. Defendant
acknowledged that he had previously discussed with counsel
the possible admissions and how those facts related to
Defendant's overall trial strategy. Defendant consented
to these disclosures for the purposes of opening arguments.
Following its colloquy with Defendant, the trial court found
Defendant has heard from his attorney relating to the intent
to discuss his driving behavior in the opening and they have
discussed the dangers and advantages of possibly providing
that information early on. And based on discussion with
counsel, the Defendant has, without undue influence from
anyone else, made the decision to allow his attorney to make
trial, Deputy Stokes testified to the circumstances
surrounding Defendant's blood draw while at the hospital.
Defense counsel objected to the admission of any evidence
gained from the blood draw and moved for its suppression. The
trial court overruled the objection and denied the motion to
suppress. A State Bureau of Investigation ("SBI")
lab analyst testified to the results of the tests of
Defendant's blood sample, and to the SBI lab report
giving Defendant's BAC. This evidence was admitted
was found guilty of felony fleeing to elude, resisting a
public officer, and driving while impaired. Defendant
admitted to attaining habitual felon status. ...