State v. PerryÂ
254 N.C. App. 202
| N.C. Ct. App. | 2017Background
- On May 10, 2014, Deputy Stokes observed Justin Lee Perry driving recklessly at 50–70 mph in a 30 mph zone, using the center turn lane, running a red light and stop sign, crashing, and fleeing on foot.
- Perry was found passed out under plywood, sweating, with labored breathing and a strong odor of alcohol; he made unprompted statements he had been poisoned and had “drank a whole lot.”
- At the hospital, Stokes read Perry his rights and directed a nurse to draw blood without a warrant; the State later notified defense of intent to introduce BAC evidence showing .15.
- Defense did not file a pretrial suppression motion; at trial counsel objected to the blood evidence based on a statutory (N.C. Gen. Stat. § 20-16.2) noncompliance theory, not a Fourth Amendment warrant/ exigency theory.
- Perry was convicted of felony fleeing to elude, resisting a public officer, and driving while impaired; he appealed only the DWI conviction arguing suppression error and ineffective assistance of counsel (IAC).
- The Court of Appeals affirmed in part, found no IAC regarding failure to litigate the Fourth Amendment suppression claim (no prejudice), and dismissed without prejudice the Harbison-type IAC claim (counsel’s alleged admission of guilt) for resolution via a motion for appropriate relief.
Issues
| Issue | Perry’s Argument | State’s Argument | Held |
|---|---|---|---|
| Trial court erred by denying suppression of warrantless blood draw | Warrantless blood draw violated Fourth Amendment (no warrant, exigency insufficient) | Perry’s trial objection was statutory (§ 20-16.2) noncompliance, not a Fourth Amendment challenge; appellate Fourth Amendment claim not preserved | Waived on appeal; court declines to address the constitutional merits |
| IAC for failure to argue constitutional suppression at trial | Counsel was ineffective for not arguing warrant/ Fourth Amendment suppression; result likely different without BAC (.15) evidence | Even if counsel erred, overwhelming non-BAC evidence of impairment meant no reasonable probability of different result | No relief — Perry failed to show prejudice required under Strickland/Kimmelman |
| IAC for counsel conceding DWI in closing without consent (Harbison claim) | Counsel effectively admitted Perry’s guilt during closing without his consent, depriving Perry of jury decision | Record shows counsel’s statement but does not establish whether Perry consented; cannot resolve on direct appeal | Dismissed without prejudice; claim must be litigated in a motion for appropriate relief (insufficient record on consent) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- Kimmelman v. Morrison, 477 U.S. 365 (prejudice rule when counsel fails to litigate Fourth Amendment claim)
- Braswell v. State, 312 N.C. 553 (North Carolina adopts Strickland standard)
- Harbison v. State, 315 N.C. 175 (counsel may not admit client’s guilt without client’s consent)
- Matthews v. State, 358 N.C. 102 (defendant must know counsel will concede guilt to constitute consent)
- Cullen v. Pinholster, 563 U.S. 170 (reasonable probability requires substantial, not merely conceivable, likelihood of different result)
- State v. Taylor, 165 N.C. App. 750 (DWI can be proven by impairment evidence independent of BAC)