State v. Lindsey, 249 N.C. App. 516

Background

On 21 Feb 2014 Officer Timothy Sykes stopped Eric Lamar Lindsey after determining the vehicle’s tag was expired; Lindsey parked in a McDonald’s handicap space and was the sole occupant.
Upon contact Lindsey produced an ID, admitted his license was suspended for DWI, and the officer detected a moderate odor of alcohol and red, glassy eyes.
Officer Sykes administered HGN testing (5 of 6 indicators of impairment) and Lindsey failed to provide adequate breath samples on a portable alco-sensor after multiple attempts; Lindsey told the officer he had three beers earlier (about nine hours before).
Officer Sykes arrested Lindsey for DWI; at the station Lindsey refused a breath test. Lindsey later stipulated to prior DWI convictions and pled guilty to DWLR; the jury convicted him of DWI (habitual) and the trial court imposed consecutive sentences.
Pretrial, Lindsey moved to suppress; the trial court denied the motion. At trial Lindsey played the patrol-car video during cross-examination; the court later held that playing the video constituted putting on evidence and denied Lindsey the final closing argument.

Issues

Issue	State's Argument	Lindsey's Argument	Held
Whether the trial court erred in denying the motion to suppress (probable cause to arrest for DWI)	Probable cause existed based on odor of alcohol, red/glassy eyes, HGN results, failed alco-sensor and admissions about drinking	Totality of facts insufficient for probable cause — no poor driving, no accident, cooperative, steady on feet, and HGN reliability questioned (flashing lights)	Affirmed: findings (odor, HGN 5/6, failed breath samples, admission) supported probable cause under totality of circumstances
Whether the trial court erred in denying motions to dismiss (insufficiency of evidence of impairment)	Evidence (driving, odor, red/glassy eyes, HGN indicators, failed breath tests, admission) sufficed to permit reasonable inference of appreciable impairment	Evidence was weaker than in other DWI convictions (no erratic driving, no open container, long delay after drinking); thus insufficient to convict	Affirmed: viewed in State’s favor, circumstantial evidence was sufficient to let jury find appreciable impairment
Whether playing the patrol-car video during cross-examination constituted introducing evidence and therefore deprived Lindsey of the right to the final closing argument	The video introduced new substantive evidence (exculpatory statements, flashing lights) and went beyond illustrating witness testimony; thus it was evidence and triggered Rule 10	The video merely illustrated Officer Sykes’ testimony and did not constitute substantive evidence	Affirmed: court properly found the video amounted to putting on evidence and correctly denied Lindsey the final closing argument

Key Cases Cited

State v. Cooke, 306 N.C. 132 (procedural standards for appellate review of suppression findings)
State v. Streeter, 283 N.C. 203 (probable cause standard and reasonable belief test)
Beck v. Ohio, 379 U.S. 89 (definition of probable cause quoted)
Illinois v. Gates, 462 U.S. 213 (probable cause as totality of the circumstances)
Maryland v. Pringle, 540 U.S. 366 (probable-cause standard and its imprecision)
State v. Teate, 180 N.C. App. 601 (application of totality test in DWI context)
State v. Phillips, 127 N.C. App. 391 (standard for proving appreciable impairment under § 20-138.1)
State v. Hennis, 184 N.C. App. 536 (when cross-examination materials constitute introduction of evidence under Rule 10)
State v. Shuler, 135 N.C. App. 449 (introducing evidence on cross-examination: ‘‘offer’’ or new irrelevant matter test)
State v. Hall, 57 N.C. App. 561 (test whether an object is offered as substantive evidence or only to illustrate witness testimony)