Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Parisi

Supreme Court of North Carolina

August 16, 2019

STATE OF NORTH CAROLINA
v.
JEFFREY ROBERT PARISI

          Heard in the Supreme Court on 4 April 2019.

         Appeal pursuant to N.C. G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 817 S.E.2d 228 ( N.C. Ct. App. 2018), reversing and remanding orders entered on 13 January 2016 by Judge Michael D. Duncan in Superior Court, Wilkes County, and on 11 March 2016 by Judge Robert J. Crumpton in District Court, Wilkes County.

          Joshua H. Stein, Attorney General, by John W. Congleton, Assistant Attorney General, for the State.

          Glenn Gerding, Appellate Defender, by Michele A. Goldman, Assistant Appellate Defender, for defendant-appellant.

          ERVIN, JUSTICE.

         The issue before the Court in this case is whether the trial courts properly determined that a motion to suppress filed by defendant Jeffrey Robert Parisi should be allowed on the grounds that the investigating officer lacked probable cause to place defendant under arrest for driving while impaired. After careful consideration of the record in light of the applicable law, we hold that the trial courts' findings of fact failed to support their legal conclusion that the investigating officer lacked the probable cause needed to place defendant under arrest for impaired driving. As a result, we affirm the Court of Appeals' decision to reverse the trial courts' suppression orders and remand this case to the trial courts for further proceedings.

         At approximately 11:30 p.m. on 1 April 2014, Officer Greg Anderson of the Wilkesboro Police Department was operating a checkpoint on Old 421 Road. At that time, Officer Anderson observed defendant drive up to the checkpoint and heard what he believed to be an argument among the vehicle's occupants. Upon approaching the driver's side window and shining his flashlight into the vehicle, Officer Anderson observed an open box of beer on the passenger's side floorboard. However, Officer Anderson did not observe any open container of alcohol in the vehicle. In addition, Officer Anderson detected an odor of alcohol and noticed that defendant's eyes were glassy and watery. At that point, Officer Anderson asked defendant to pull to the side of the road and step out of the vehicle. After defendant complied with this instruction, Officer Anderson confirmed that a moderate odor of alcohol emanated from defendant's person rather than from the interior of the vehicle. When Officer Anderson asked defendant if he had consumed any alcohol, defendant replied that he had drunk three beers earlier in the evening.

         At that point, Officer Anderson requested that defendant submit to several field sobriety tests. First, Officer Anderson administered the horizontal gaze nystagmus test to defendant. In the course of administering the horizontal gaze nystagmus test, Officer Anderson observed that defendant exhibited six clues indicating impairment. Secondly, Officer Anderson had defendant perform a walk and turn test, during which defendant was required to take nine heel-to-toe steps down a line, turn around, and take nine similar steps in the opposite direction. In performing the walk and turn test, defendant missed the fourth and fifth steps while walking in the first direction and the third and fourth steps while returning. In Officer Anderson's view, these missed steps, taken collectively, constituted an additional clue indicating impairment. Finally, Officer Anderson administered the one leg stand test to defendant. As defendant performed this test, Officer Anderson noticed that he used his arms for balance and swayed, which Officer Anderson treated as tantamount to two clues indicating impairment. At that point, Officer Anderson formed an opinion that defendant had consumed a sufficient amount of alcohol to appreciably impair his mental and physical faculties.

         Subsequently, Officer Anderson issued a citation charging defendant with driving while subject to an impairing substance in violation of N.C. G.S. § 20-138.1. The charge against defendant came on for trial before Judge Robert J. Crumpton at the 17 June 2015 criminal session of the District Court, Wilkes County. Prior to trial, defendant made a motion to suppress the evidence obtained as a result of his arrest on the grounds that Officer Anderson lacked the necessary probable cause to take him into custody. On 23 September 2015, Judge Crumpton entered a Preliminary Order of Dismissal in which he determined that defendant's suppression motion should be granted.[1] On 23 September 2015, the State noted an appeal from Judge Crumpton's preliminary order to the Superior Court, Wilkes County.

         The State's appeal came on for hearing before Judge Michael D. Duncan at the 9 November 2015 criminal session of the Superior Court, Wilkes County. On 13 January 2016, Judge Duncan entered an Order Granting Motion to Suppress and Motion to Dismiss[2] in which he granted defendant's suppression motion and ordered that the charge that had been lodged against defendant be dismissed. On 11 March 2016, Judge Crumpton entered a Final Order Granting Motion to Suppress and Motion to Dismiss in which he granted defendant's motion to suppress the evidence obtained as a result of his arrest and ordered "that the charge against [d]efendant be dismissed." On the same date, the State noted an appeal from Judge Crumpton's final order to the Superior Court, Wilkes County. On 6 April 2016, Judge Duncan entered an Order of Dismissal Affirmation affirming Judge Crumpton's "final order suppressing the arrest of the defendant and dismissing the charge of driving while impaired." The State noted an appeal to the Court of Appeals from Judge Duncan's order affirming Judge Crumpton's final order granting defendant's suppression motion and dismissing the driving while impaired charge that had been lodged against defendant.

         In seeking relief from the orders entered by Judge Crumpton and Judge Duncan before the Court of Appeals, the State argued that the trial courts had erred by finding that Officer Anderson lacked probable cause to arrest defendant for driving while impaired and ordering that the driving while impaired charge that had been lodged against defendant be dismissed. On 7 February 2017, the Court of Appeals filed an opinion dismissing the State's appeal from Judge Crumpton's order granting defendant's suppression motion on the grounds that the State had no right to appeal the final order granting defendant's suppression motion, vacating the trial court orders requiring that the driving while impaired charge that had been lodged against defendant be dismissed, and remanding this case to the Superior Court for further remand to the District Court for further proceedings. State v. Parisi, 796 S.E.2d 524, 529 ( N.C. Ct. App. 2017), disc. review denied, 369 N.C. 751, 799 S.E.2d 873 (2017).

         On 28 July 2017, the State filed a petition requesting the Court of Appeals to issue a writ of certiorari authorizing review of Judge Duncan's Order Granting Motion to Suppress and Motion to Dismiss and Judge Crumpton's Final Order Granting Motion to Suppress and Motion to Dismiss. State v. Parisi, 817 S.E.2d 228, 229 ( N.C. Ct. App. 2018). On 16 August 2017, the Court of Appeals granted the State's certiorari petition. Id., 817 S.E.2d at 229. In seeking relief from the trial courts' orders before the Court of Appeals on this occasion, the State argued that Judge Crumpton and Judge Duncan had erred by granting defendant's suppression motion on the grounds that, in the State's view, Officer Anderson had probable cause to arrest defendant for impaired driving.

         In a divided opinion reversing the trial courts' orders and remanding this case to the trial courts for further proceedings, the Court of Appeals majority determined that the facts at issue in this case resembled those at issue in State v. Townsend, 236 N.C.App. 456, 762 S.E.2d 898 (2014), in which the Court of Appeals had held that an officer had probable cause to arrest a defendant for impaired driving given that the defendant, who had been stopped at a checkpoint, "had bloodshot eyes and a moderate odor of alcohol about his breath," exhibited multiple clues indicating impairment during the performance of three field sobriety tests, and produced positive results on two alco-sensor tests. Parisi, 817 S.E.2d at 230 (citing Townsend, 236 N.C.App. at 465, 762 S.E.2d at 905. Although the Court of Appeals noted that "no alco-sensor test [had been] administered in the instant case, defendant himself volunteered the statement that he had been drinking earlier in the evening." Parisi, 817 S.E.2d at 230. In addition, the Court of Appeals pointed out that, "while the odor of alcohol, standing alone, is not evidence of impairment, the '[f]act that a motorist has been drinking, when considered in connection with . . . other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie to show a violation of [ N.C. ]G.S. [§] 20-138.1.'" Parisi, 817 S.E.2d at 230-31 (quoting Atkins v. Moye, 277 N.C. 179, 185, 176 S.E.2d 789, 794 (1970)). On the other hand, the Court of Appeals was not persuaded by the trial courts' reliance upon the Court of Appeals' own unpublished opinion in State v. Sewell, 239 N.C.App. 132, 768 S.E.2d 650 (2015), given that "it is not binding upon the courts of this State" and is "easily distinguished from the instant case." Id., 817 S.E.2d at 231 (citing Sewell, 239 N.C.App. 132, 768 S.E.2d 650). As a result, the Court of Appeals concluded that "the facts, as supported by the evidence and as found by the district and superior courts, supported a conclusion that Officer Anderson had probable cause to stop and cite defendant for driving while impaired," so that "the trial court erred in granting defendant's motion to suppress the stop." Id., 817 S.E.2d at 231

         In dissenting from the Court of Appeals' decision, Judge Robert N. Hunter, Jr., expressed the belief that the uncontested facts supported the legal conclusion that Officer Anderson lacked the probable cause necessary to support his decision to place defendant under arrest. Id., 817 S.E.2d at 231-32. More specifically, the dissenting judge asserted that the trial courts' findings in this case, while "analogous to some of the findings of fact in Townsend," differed from those findings in certain critical ways. Id., 817 S.E.2d at 231. For example, the dissenting judge pointed out that, in this case, Officer Anderson "did not administer an alco-sensor test" and that the trial courts made no "findings [about] exactly when [d]efendant drank in the night." Id., 817 S.E.2d at 232. In addition, unlike the situation at issue in Townsend, "the trial courts found no facts about Officer Anderson's experience" and merely stated that Officer Anderson "found clues of impairment" rather than making specific findings concerning the number of clues indicating impairment that the officer detected in administering the horizontal gaze nystagmus test. Id., 817 S.E.2d at 232. The dissenting judge further noted that the "trial courts found that [d]efendant did not slur his speech, did not drive unlawfully or 'bad[ly, ]' or appear 'unsteady' on his feet." Id., 817 S.E.2d at 232. As a result, the dissenting judge concluded that the "uncontested findings of fact support the trial court's conclusions that Officer Anderson lacked probable cause to arrest [d]efendant" for driving while impaired. Id., 817 S.E.2d at 232. Defendant noted an appeal to this Court based upon the dissenting judge's opinion.

         In seeking to persuade us to overturn the Court of Appeals' decision, defendant begins by asserting that the Court of Appeals had erroneously "reweighed the evidence" instead of "determining whether the competent, unchallenged factual findings supported the trial courts' legal conclusions." According to defendant, the Court of Appeals' "misapplication of the standard of review" led it to reach a different conclusion than the trial courts despite the fact that "the trial courts' competent factual findings supported their legal conclusions" and even though "there was no identified error of law committed by the trial courts in reaching their conclusions." According to defendant, this Court's decision in State v. Nicholson establishes that "the de novo portion of an appellate court's review of an order granting or denying a motion to suppress relates to the assessment of whether the trial court's factual findings support its legal conclusions and whether the trial court employed the correct legal standard," citing State v. Nicholson, 371 N.C. 284, 288, 813 S.E.2d 840, 843 (2018). Although the Court of Appeals "acknowledged the correct standard of review," defendant contends that it "applied a non-deferential sufficiency test," with this alleged error being reflected in its statement that, "[w]here the State presented sufficient evidence that a law enforcement officer had probable cause to stop defendant, the trial court erred in granting defendant's motion to suppress the stop," citing Parisi, 817 S.E.2d at 299.

         In addition, defendant contends that the Court of Appeals erroneously relied upon Atkins, 277 N.C. at 184, 176 S.E.2d at 793, and State v. Hewitt, 263 N.C. 759, 140 S.E.2d 241 (1965), in addressing the validity of the State's challenge to the trial courts' suppression orders. Although "Atkins and Hewitt assessed whether evidence, viewed in a light most favorable to the proponent, warranted an issue being put to the jury," defendant points out that a trial judge is required "to make credibility determinations and to weigh evidence" in determining whether to grant or deny a suppression motion and that an appellate court is obligated "to address . . . whether the trial court's competent factual findings supported its legal conclusions." The dissenting judge, in defendant's view, correctly applied the applicable standard of review by focusing upon the issue of whether trial courts' findings of fact supported its conclusions. (citing Parisi, 817 S.E.2d at 232).

         Moreover, defendant claims that the Court of Appeals erred by overturning the trial courts' "unchallenged and supported factual determination" concerning whether defendant's performance during the administration of the field sobriety tests indicated impairment. In defendant's view, "[t]he trial courts implicitly found that [defendant's] imperfect but passing performance on the field sobriety tests alone did not indicate impairment," effectively rejecting Officer Anderson's testimony to the contrary. In support of this assertion, defendant relies upon our decision in State v. Bartlett, 368 N.C. 309, 311-12, 776 S.E.2d 672, 673-74 (2015), in which the testimony of the defendant's expert witness directly contradicted the testimony of the arresting officer's testimony that the defendant's performance on a variety of field sobriety tests indicated that the defendant was appreciably impaired. In addressing the validity of the State's challenge to the validity of a suppression order entered by one Superior Court judge following a hearing held before another, this Court stated that

Expert opinion testimony is evidence, and the two expert opinions in this case differed from one another on a fact that is essential to the probable cause determination-defendant's apparent degree of impairment. Thus, a finding of fact, whether written or oral, was required to resolve this conflict.

Id. at 312, 776 S.E.2d at 674. According to defendant, Officer Anderson's testimony that defendant's performance on the field sobriety tests indicated impairment was not binding upon the trial court, which "was charged with deciding the credibility of and weight to be given to [Officer] Anderson's opinion testimony." Defendant asserts that, rather than finding that defendant was appreciably impaired, the trial court concluded that Officer Anderson lacked probable cause and that this determination "implicitly incorporat[es] a factual ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.