State v. Cloer

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.

NO. COA13-1423
NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County
No. 10 CRS 237504
AMY MOORE CLOER

Appeal by defendant from judgment entered 24 May 2013 by

Judge Richard L. Doughton in Mecklenburg County Superior Court.

Heard in the Court of Appeals 24 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Joseph L. Hyde, for the State.

Arnold & Smith, PLLC, by Laura M. Cobb, for defendant-
appellant.

HUNTER, JR., Robert N., Judge.

Amy Moore Cloer (“Defendant”) appeals from a judgment for

Driving While Impaired (“DWI”). Defendant argues that

Magistrate Peters violated her constitutional rights and her

statutory rights under N.C. Gen. Stat. §§ 15A-501, 15A-511, and

15A-954 (2013) during her initial appearance at the Mecklenburg

County Jail. Specifically, Defendant contends: (1) that
 -2-
Magistrate Peters violated N.C. Gen. Stat. § 15A-511 when she

did not inform Defendant of her pretrial rights; (2) that

Magistrate Peters did not provide any written findings for

setting a secured bond in violation of N.C. Gen. Stat. § 15A-534

(2013) and the Twenty-Sixth Judicial District’s Bail Policy; and

(3) that Defendant’s lengthy pre-trial confinement prevented her

from meeting with friends and family members who could have

observed her condition during her pretrial confinement. Thus,

Defendant contends that the magistrate’s errors were prejudicial

to her case, warranting a dismissal of the DWI judgment. After

review, we find no prejudicial error.

I. Facts & Procedural History

On 4 August 2010, at 11:30 p.m., Officer Jeffery Baucom

(“Officer Baucom”) of the Charlotte-Mecklenburg Police

Department received a dispatch call to respond to a traffic

accident at the intersection of 7th Street and North Tryon

Street in Mecklenburg County. At the time Officer Baucom

received the call, he was less than twenty-five yards from the

scene of the accident. Officer Baucom also heard the accident

when it occurred and he responded on foot. Once Officer Baucom

arrived at the scene, he called for emergency personnel

assistance and started his investigation of the accident scene.
 -3-
During his investigation, Officer Baucom spoke with Defendant,

the driver of one of the vehicles involved in the accident.

While speaking with Defendant, Officer Baucom detected a

moderate smell of alcohol coming from Defendant and noticed

Defendant’s red, glassy eyes. Upon further inquiry, Defendant

told Officer Baucom that she had been drinking earlier that day.

After Officer Baucom and the other responding officers

secured the accident site, Officer Baucom conducted field

sobriety tests on Defendant. Officer Baucom administered the

horizontal gaze nystagmus test, the one-leg stand test, and the

walk-and-turn test. During each test, Defendant exhibited signs

of impairment and Officer Baucom determined that she was

impaired by alcohol. Officer Baucom placed Defendant under

arrest for DWI and transported her to the Mecklenburg County

Intake Center. Before her processing took place, Defendant was

allowed to keep her credit card in order to post her bond.

At 12:56 a.m., Officer Baucom advised Defendant of her

rights before administering an intoxilyzer test. Pursuant to

N.C. Gen. Stat. § 20-16.2 (2013), Officer Baucom advised

Defendant of her right to call an attorney and her right to call

a witness to view the intoxilyzer test. Defendant signed an

intoxilyzer rights form and waived her statutory rights.
 -4-
Officer Baucom administered two intoxilyzer tests of Defendant,

and the results of the two tests revealed that Defendant’s blood

alcohol level was 0.10.

Thereafter, Officer Baucom read Defendant her Miranda

rights. Defendant signed the Miranda rights form indicating

that she understood her rights at 1:23 a.m. After signing the

form, Defendant agreed to answer questions about the accident.

During questioning, Defendant stated that she started drinking

at 1:00 p.m. and that she consumed five beers and one or two

alcoholic beverages. When asked if she was under the influence

of an alcoholic beverage, Defendant responded, “I guess so.”

At 1:31 a.m., intake officers moved Defendant to a waiting

area where telephones were available to her. After a thirty-

minute wait, Magistrate Peters set Defendant’s conditions for

release. The conditions for release allowed Defendant to secure

release in one of two ways: she could post a $500 secured bond

or she could obtain custody release to a sober licensed adult.

After the conditions for release were set, Magistrate

Peters read Defendant the provisions of an Implied Consent

Offense Notice form pursuant to N.C. Gen. Stat. § 20-38.4

(2013). The form required Magistrate Peters to inform Defendant

of her rights to have witnesses observe her condition in jail,
 -5-
to have an additional chemical test administered, and to list

people that she wished to contact. Defendant provided names and

numbers of three persons that she wanted to contact, but the

record does not show that Defendant contacted any of these

persons. Magistrate Peters and Defendant both signed the

Implied Consent form at 2:33 a.m.

After she signed the form, Defendant waited in jail

reception for thirty-minutes before re-entering the magistrate’s

chambers. During her wait, Defendant once again had access to

telephones. At 3:03 a.m., Defendant met with Magistrate Peters

a second time, but it is unclear from the record what transpired

during this short encounter. After her second appearance,

Defendant entered jail reception at 3:16 a.m.

At 4:44 a.m., Defendant received a receipt for using the

Touch Pay machine to pay her bond. Though the receipt read 3:44

a.m., Deputy James Ingram (“Deputy Ingram”), keeper of records

for the Mecklenburg County Jail, testified at trial that the

receipt was based on Central Time because the machine was owned

and operated by a company based in Texas. The jail’s finance

department received the secured bond amount of $500 at 5:31 a.m.

At 6:42 a.m., jail staff notified Defendant that she met

the conditions of her release. Due to the jail’s shift change
 -6-
at 6:40 a.m., Defendant did not arrive to the release post until

7:17 a.m. Officers released Defendant from custody at 7:22 a.m.

Although it is unclear at what time Defendant’s custody started

at the Mecklenburg County Jail, Defendant was in pretrial

confinement for a timespan between six hours and thirty-minutes

to eight hours.

On 17 February 2011, the Mecklenburg County District Court

found Defendant guilty of DWI. After appealing to Mecklenburg

County Superior Court, Defendant filed a motion to dismiss the

DWI charge, alleging that Magistrate Peters violated her initial

appearance rights. During her motion hearing on 23 May 2013,

Defendant testified that she was told to remain seated and quiet

while waiting to speak with Magistrate Peters. Defendant stated

that during her appearance, Magistrate Peters informed Defendant

of her DWI charge and required Defendant to post a $500 bond.

She also testified that after speaking with Magistrate Peters,

she was moved to a smaller room with access to telephones.

Defendant stated that she was nervous and that she felt like she

needed to stay seated and quiet because officers took an

individual away from the holding area after that person raised

concerns about the telephones not working properly. Defendant

testified that she tried to use the telephones but she was
 -7-
unable to hear who she called. Deputy Ingram testified that DWI

offenders are allowed to use telephones in the waiting area

before and after their initial appearance. Based on the

foregoing evidence, the superior court denied Defendant’s motion

to dismiss.

Defendant’s trial began on 23 May 2013 in Mecklenburg

County Superior Court. At trial, Defendant testified that she

tried to use the telephones in the jail reception area but she

was unable to contact anyone because the phones were not working

properly. Defendant also testified that she attempted to use

her credit card to pay her bond around 3:00 a.m., but the

machine was temporarily shutdown. Defendant further testified

that she knew about bail bondsmen, but she did not attempt to

contact a bondsman in order to secure her release. After trial,

the jury reached a unanimous verdict, finding Defendant guilty

of DWI. Judge Doughton sentenced Defendant to thirty days in

jail but suspended the sentence, placing Defendant on supervised

probation for twelve months. Defendant filed timely written

notice of appeal on 28 May 2013.

II. Jurisdiction & Standard of Review
 -8-
As Defendant appeals from the final judgment of a superior

court, an appeal lies of right to this Court pursuant to N.C.

Gen. Stat. § 7A-27(b) (2013).

On appeal from a trial court’s denial of a motion to

dismiss:

the standard of review is whether there is
competent evidence to support the findings
and the conclusions. 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. Lewis, 147 N.C. App. 274, 277, 555 S.E.2d 348, 351

(2001) (internal quotation marks and citations omitted). “If

the findings of the trial court are supported by competent

evidence, they are binding on the appellate courts.” State v.

Bright, 301 N.C. 243, 254, 271 S.E.2d 368, 375 (1980). “Our

task is not to re-weigh the evidence before the trial court but

to uphold the trial court’s findings so long as they are

supported by competent evidence, even if there also exists

evidence to the contrary.” State v. Daniel, 208 N.C. App. 364,

369, 702 S.E.2d 306, 309 (2010).

III. Analysis

A. Defendant’s Right to Communicate with Counsel and Witnesses
 -9-
Defendant argues the trial court erred by denying her

motion to dismiss because the magistrate failed to inform

Defendant of her rights to communicate with counsel and friends

pursuant to N.C. Gen. Stat. § 15A-511(b). We disagree.

N.C. Gen. Stat. § 15A-511(b) provides: “The magistrate must

inform the defendant of: (1) The charges against him; (2) His

right to communicate with counsel and friends; and (3) The

general circumstances under which he may secure release under

the provisions of Article 26, Bail.”

In its order denying Defendant’s motion to dismiss, the

trial court made the finding that “the defendant signed the

Implied Consent Offense Notice and was notified of her charges

and her rights to obtain her own chemical test and to have

witnesses present at the jail.” Provisions 4 and 5 of the

Implied Consent Offense Notice state:

4. The [magistrate] informed the defendant
in writing of the established procedure to
have others appear at the jail to observe
the defendant’s condition or to administer
an additional chemical analysis.

5. The [magistrate] required the defendant
to list all persons the defendant wishes to
contact and telephone numbers on a copy of
this form.
 -10-
Defendant signed the form, indicating that she understood those

rights. Defendant also listed three persons that she wanted to

contact on the Implied Consent form.

In State v. Haas, 131 N.C. App. 113, 505 S.E.2d 311 (1998),

the defendant argued that he was prejudiced because the issuing

magistrate did not inform him of his right to contact family

members and friends. Id. at 115, 505 S.E.2d at 312. At trial,

the defendant testified that the magistrate informed him of his

access to a telephone, and that he signed a form certifying his

opportunity to contact witnesses. Id. at 116, 505 S.E.2d at

313. This Court held that the trial court’s finding — that the

magistrate did not commit an error — provided indirect evidence

that the magistrate informed the defendant of his right to

communicate with counsel and friends. Id.

Here, as in Haas, Defendant signed a form notifying her of

her right to contact witnesses. Based on Defendant’s entries of

persons to contact and her signature on the Implied Consent

form, Defendant had knowledge of her right to contact witnesses.

For the foregoing reasons, the Implied Consent form put

Defendant on notice of her pretrial rights to communicate with

counsel and friends.

B. Pre-trial Release Procedures
 -11-
Defendant argues that the trial court erred when it denied

her motion to dismiss because the magistrate failed to make

written findings and failed to follow the statutory pre-trial

release procedures. We agree that the magistrate failed to

follow the statutory procedures, but we do not find that the

errors constitute irreparable prejudice.

A person charged with a noncapital offense, “must have

conditions of pretrial release determined, in accordance with

G.S. 15A-534.” N.C. Gen. Stat. § 15A-533(b) (2013). According

to N.C. Gen. Stat. § 15A-534, a magistrate must impose one of

five conditions:

(1) Release the defendant on his written
promise to appear.

(2) Release the defendant upon his execution
of an unsecured appearance bond in an amount
specified by the judicial official.

(3) Place the defendant in the custody of a
designated person or organization agreeing
to supervise him.

(4) Require the execution of an appearance
bond in a specified amount secured by a cash
deposit . . . by a mortgage . . . or by at
least one solvent surety.

(5) House arrest with electronic monitoring.

The magistrate must release the defendant under conditions (1),

(2), or (3) “unless he determines that such release will not
 -12-
reasonably assure the appearance of the defendant as required;

will pose a danger of injury to any person; or is likely to

result in destruction of evidence, subornation of perjury, or

intimidation of potential witnesses.” N.C. Gen. Stat. § 15A-

534(b). When a magistrate determines which condition must be

imposed, he must follow the procedure outlined in N.C. Gen.

Stat. § 15A-534(c). The magistrate:

must, on the basis of available information,
take into account the nature and
circumstances of the offense charged; the
weight of the evidence against the
defendant; the defendant's family ties,
employment, financial resources, character,
and mental condition; whether the defendant
is intoxicated to such a degree that he
would be endangered by being released
without supervision; the length of his
residence in the community; his record of
convictions; his history of flight to avoid
prosecution or failure to appear at court
proceedings; and any other evidence relevant
to the issue of pretrial release.

N.C. Gen. Stat. § 15A-534(c) (2013).

If the magistrate determines that a defendant poses a

danger to the public, then he must impose condition (4) or (5).

N.C. Gen. Stat. § 15A-534(d2)(1). If the magistrate imposes

condition (4) or (5), the magistrate “must record the reasons

for so doing in writing to the extent provided in the policies

or requirements issued by the senior resident superior court
 -13-
judge pursuant to G.S. 15A-535(a).” N.C. Gen. Stat. § 15A-

534(b) (emphasis added).

N.C. Gen. Stat. § 15A-535(a) regulates the setting of bail

policies for each judicial district. The bail policy in

Mecklenburg County requires magistrates to place a letter code

justifying the requirement of a secured bond. Defendant’s

condition of release order does not contain any letter code

justification for imposing the secured bond in violation of the

bail policy.

In the present case, the magistrate set two conditions for

Defendant’s release: (1) custody release to a sober licensed

adult or (2) a secured bond in the amount of $500. Since

Magistrate Peters imposed a secured bond, she had to determine

that Defendant was a flight risk, that Defendant would destroy

evidence, or that Defendant posed a danger to the public. See

N.C. Gen. Stat. § 15A-534(b). There is no evidence in the

record that the magistrate made such a determination. Since the

magistrate failed to record the reason for setting Defendant’s

bond in writing, the magistrate violated N.C. Gen. Stat. § 15A-

534 and Mecklenburg County’s bail policy.
 -14-
Defendant argues that the magistrate’s statutory violations

caused irreparable prejudice and she requests dismissal of the

DWI charge and judgment. We disagree.

“Before a motion to dismiss should be granted . . . it must

appear that the statutory violation caused irreparable prejudice

to the preparation of defendant’s case.” State v. Rasmussen,

158 N.C. App. 544, 549–50, 582 S.E.2d 44, 50 (2003) (internal

quotation marks and citations omitted). “[P]rejudice will not

be assumed to accompany a violation of defendant’s statutory

rights, but rather, defendant must make a showing that he was

prejudiced in order to gain relief.” State v. Knoll, 322 N.C.

535, 545, 369 S.E.2d 558, 564 (1988).

In State v. Gilbert, 85 N.C. App. 594, 355 S.E.2d 261

(1987), the magistrate informed the defendant of his right to an

independent chemical test, but the defendant chose not to seek a

second test. Id. at 597, 355 S.E.2d at 263. Moreover, the

defendant’s brother visited the defendant shortly after his

intoxilyzer test. Id. at 597, 355 S.E.2d at 264. The Wake

County Superior Court dismissed the DWI charge against the

defendant because the defendant alleged that the magistrate’s

failure to inform him of his rights warranted a dismissal of the

charge. Id. at 594–95, 355 S.E.2d at 262. The State appealed
 -15-
and this Court held that the defendant failed to show prejudice

because the defendant knew of his right to obtain an independent

chemical test and “there [was] nothing in the record to show

that defendant requested, or was denied, access to anyone.” Id.

at 597, 355 S.E.2d at 264.

In State v. Labinski, 188 N.C. App. 120, 654 S.E.2d 740

(2008), the defendant alleged that the magistrate denied her

access to family and friends during a critical time of her

pretrial confinement. Id. at 125, 654 S.E.2d at 745. The

defendant was informed of her right to have witnesses present at

her intoxilyzer test, but she did not request a witness even

though four of her friends were present at the jail. Id. at

128, 654 S.E.2d at 745. Additionally, the defendant saw that

her friends were present at the jail, but the defendant did not

ask to speak with them. Id. The defendant also had access to

telephones and she made phone calls while waiting for her

release. Id. This Court found that the magistrate violated the

defendant’s rights because there was no evidence that she would

be a danger to the public if she were released subject to

conditions other than a secured bond. Id. at 127, 654 S.E.2d at

744–45. However, we held that the magistrate’s error did not

rise to the level of irreparable prejudice because the defendant
 -16-
had access to witnesses but she chose not to exercise that

right. Id. at 128, 654 S.E.2d at 745.

Similar to Gilbert, in this case, Magistrate Peters

notified Defendant of her right to have an additional

intoxilyzer test performed. Defendant signed the implied

consent form, indicating her knowledge of her rights, but there

is no evidence that Defendant sought to have another test

administered.

Similar to Labinski, Defendant had access to telephones

before and after she met with the magistrate, and she had the

opportunity to contact witnesses. Labinski, 188 N.C. App. at

122, 654 S.E.2d at 743. Even though there was evidence that the

phones were not working properly, there is no evidence that the

Mecklenburg County Jail staff or Magistrate Peters prevented her

from calling anyone and no evidence that the Jail staff caused

the phones to work improperly.

Accordingly, Defendant was not irreparably prejudiced in

the preparation of her defense. The observations of witnesses

at the jail would not be likely to outweigh the evidence at

trial in favor of conviction. Defendant admitted to Officer

Baucom that she had started drinking around 1:00 p.m. that day

and Defendant failed Officer Baucom’s field sobriety tests that
 -17-
he administered at the accident scene. When Officer Baucom

asked Defendant if she was under the influence of alcohol,

Defendant stated, “I guess so.” Intoxilyzer tests revealed her

blood alcohol concentration to be 0.10, which is above the legal

limit. N.C. Gen. Stat. § 20-138.1(a)(2) (2013). This evidence

is sufficient to show Defendant’s impairment and to support a

conviction for DWI. Thus, Defendant was not irreparably

prejudiced by the magistrate’s statutory violations and the

inability to contact witnesses to observe her condition in jail.

IV. Conclusion

For the foregoing reasons, the judgment of the trial court

is

AFFIRMED.

Judge STROUD concurs in a separate opinion.

Judge DILLON concurs.

Report per Rule 30(e).
 NO. COA13-1423

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County
No. 10CRS237504
AMY CLOER,
Defendant.

STROUD, Judge, concurring.

While I agree with the majority’s decision, I write

separately to further clarify why I find the case law cited by

the majority distinguishable from the present case, although the

result remains the same. The majority relies heavily on State

v. Labinski, in which the magistrate “violated defendant’s

statutory right to pretrial release” when he set a secured bond

without evidence to support such a determination, 188 N.C. App.

120, 126-27, 654 S.E.2d 740, 744-45, disc. review denied, 362

N.C. 367, 661 S.E.2d 889 (2008), just as the magistrate here

did. Yet in Labinski, this Court determined that the defendant

was not denied of her opportunity to exercise her pre-trial

rights, and thus there was no prejudice resulting from the

magistrate’s error. Id. at 128, 654 S.E.2d at 745 (The

“defendant was informed of her right to have a witness present

for the intoxilyzer test but did not request a witness, even
 -2-
though four of her friends were in fact present at the PCDC at

the proper time and could have witnessed the test. Defendant’s

four friends were present at the PCDC by the time defendant left

the intoxilyzer room and they remained until her release.

Defendant was able to see her friends and they could see her,

but she did not ask to speak to them or that they be permitted

to come to her. Defendant also had full access to a telephone

and in fact made several phone calls from the PCDC.”) I do not

agree that defendant here was afforded the same opportunity as

in Labinski. Contrast id. In Labinski, as a practical matter,

the defendant lost her opportunity only due to her own failure

to ask for her friends who were actually present. See id.

Here, defendant lost her opportunity to contact someone, but the

loss of opportunity was not from her own inaction, but

apparently from the functioning of the jail phone.

Regarding defendant’s attempt to make phone calls, the

majority notes “there was evidence that the phones were not

working properly, [but] there is no evidence that the

Mecklenburg County Jail staff or Magistrate Peters prevented her

from calling anyone and no evidence that the Jail staff caused

the phones to work improperly.” Although this statement may be

correct, if the phones were not working, for whatever reason,
 -3-
then defendant was denied the opportunity to make phone calls.1

When an arrestee is given the right to use a jail phone to call

for help, that phone should operate in a reasonable and normal

manner and give the arrestee a realistic opportunity to speak

with the person they are attempting to contact. Furthermore,

unlike the Labinski case, and perhaps due to the non-working

phones, defendant here did not have anyone present who could

observe her. Contrast id. The defendant in Labinski actually

saw that her friends were at the jail but chose not to speak to

them or ask that they come to her despite the fact that she had

been informed of her rights. Id.

However, I do concur that the magistrate’s violation of

North Carolina General Statute § 15A–534 is not what caused

defendant to lose her opportunity to exercise her rights. This

case can be contrasted with State v. Knoll, wherein three

similar cases were consolidated. 322 N.C. 535, 369 S.E.2d 558

(1988). In the three Knoll cases, the magistrates themselves

1
Actually, defendant’s evidence indicated that the phone which
defendant used at the jail was set up in such a manner that if
an arrestee makes a call to another person’s cell phone, the
arrestee will not be able to hear the person who answered on the
cell phone; in other words, an arrestee would be able to call
only a person who has a landline phone, despite the fact than
many people have now ceased to use landline phones. If
defendant’s claims as to the inability to call a cell phone
number from the jail is correct, this technological issue should
be corrected.
 -4-
actually denied the defendants the opportunity to exercise their

rights: (1) The magistrate denied Mr. Knoll’s father the right

to come pick up his son, the defendant, for approximately six

hours. Id. at 537-38, 369 S.E.2d at 560. (2) The magistrate

would not allow two people present to take the defendant, Mr.

Warren, nor would he allow them to post the defendant’s bond

which resulted in the defendant being in custody approximately

eight to nine hours longer than necessary. Id. at 539-40, 369

S.E.2d at 561-62. (3) The magistrate would not allow the

defendant, Mr. Hicks, to post his own bond, despite the fact

that Mr. Hicks could have then taken a taxi home to his wife and

been with her within approximately 30 minutes. Id. at 541-42,

369 S.E.2d at 562.

Our Supreme Court stated:

Each defendant’s confinement in jail
indeed came during the crucial period in
which he could have gathered evidence in his
behalf by having friends and family observe
him and form opinions as to his condition
following arrest. This opportunity to gather
evidence and to prepare a case in his own
defense was lost to each defendant as a
direct result of a lack of information
during processing as to numerous important
rights and because of the commitment to
jail. The lost opportunities, in all three
cases, to secure independent proof of
sobriety, and the lost chance, in one of the
cases, to secure a second test for blood
alcohol content constitute prejudice to the
 -5-
defendants in these cases.

322 N.C. at 547-48, 369 S.E.2d at 565 (emphasis
added).

Here, unlike in Knoll, see id. at 537-42, 369 S.E.2d at

560-62, it was not the magistrate’s violation that caused

defendant to lose her rights as she was permitted to make her

phone calls, but the loss of opportunity was caused by whatever

entity was responsible for the phones, if the phones were

unlikely to permit defendant to be able contact anyone.

However, defendant has not made any argument as to a violation

of her rights by any law enforcement agency. Any prejudice in

defendant’s case was not the result of the magistrate’s errors,

and this is the only issue she raises on appeal, so I too must

find no error.