No, Justice Ervin didn’t use the words hot mess. But anyone who slogs their way through the tortured procedural swamp that led to State v. Miller, __ N.C. __ (March 18, 2016), is bound to agree that the procedures adopted in 2006 for appeals in DWI cases have created a nearly impenetrable bog for the parties involved. I’m going to do my best here to succinctly explain what happened in Miller. Then I’ll share an idea for freeing litigants and judges from the procedural muck in which they are currently mired.
Facts. The defendant in Miller was pulled over by a Charlotte-Mecklenburg police officer on October 26, 2012, after he avoided a checkpoint. He was charged with driving while impaired and driving after consuming alcohol while under 21.
Procedural history (CliffsNotes version). Miller moved in district court to suppress all evidence resulting from the traffic stop. He contended that the officer did not have reasonable, articulable suspicion to stop his car. The district court judge agreed. She filed a preliminary determination granting the motion to suppress. (District court judges aren’t allowed to just rule on motions to suppress in implied consent cases like they would in any other case. Instead, they must “preliminarily indicate” how they intend to rule and, if the State appeals, wait for instructions from the superior court as to whether to grant or deny the motion.)
The State appealed from the district court’s preliminary indication in Miller. One of two things can happen when the State appeals. The superior court can act as an appellate court and determine whether the district court’s conclusions of law are supported by its findings of fact. If the State disputes the findings of fact, however, the superior court determines the matter de novo.
In Miller, the State requested a de novo hearing. The defendant moved to dismiss the appeal on the basis that the State had made a generalized, catch-all objection to the district court’s findings of fact, which did not entitle it to a de novo hearing. The superior court denied the State’s request for a de novo hearing on the bases that (1) the State failed to identify the specific findings of fact or conclusions of law to which it objected, (2) the district court did not abuse its discretion, and (3) the district court’s findings and conclusions required that its decision be affirmed. The superior court remanded the case for entry of a suppression order by the district court.
The superior court’s ruling is noteworthy. No one is quite certain about what entitles the State to a de novo hearing. Defendants complain that the State should not be entitled to a de novo hearing when it fails to offer evidence in district court of the fact it wishes had been found. Instead, defendants say, the State can only dispute facts based on the evidence that was before the district court. For its part, the State argues that nothing in G.S. 20-38.7 defines what constitutes a dispute over the findings of fact. Moreover, to apply the limitation advocated for by defendants, one must know what facts were presented in district court, a court for which there is no record. The superior court in Miller sided with the defendant on this issue.
Here’s where things get complicated. The district court entered a final order granting the defendant’s motion to suppress. If she had stopped there, that likely would have been the end of the matter. The State has no statutory appeal of right from a district court’s ruling on a motion to suppress, though it may petition the superior court for certiorari review. If the State in Miller had no additional evidence of the defendant’s guilt beyond the evidence that was suppressed, it was required to dismiss the charges. See Rule 3.8 of the North Carolina Rules of Professional Conduct (requiring that a prosecutor “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause”).
The district court judge herself, however, ordered that the charges in Miller be dismissed. That order triggered the State’s right to appeal pursuant to G.S. 15A-1432(a)(1).
I’ve got to rule on this again? The State took the matter right back up to the superior court. On June 2, 2014, the same superior court judge who had considered the district court judge’s preliminary order affirmed the district court’s final order. The State then appealed to the court of appeals.
What happened at the court of appeals? The State argued that the superior court erred in denying its request for a de novo hearing on the motion to suppress. The defendant disagreed and also argued that the State’s written notice of appeal was defective as it failed to properly designate the order it sought to challenge (the superior court’s order denying de novo review) and cited the incorrect statute for appellate review.
The court of appeals filed a unanimous, unpublished opinion on May 19, 2015, dismissing the State’s appeal on the basis that the record on appeal did not include a copy of the superior court judge’s June 2, 2014 order. (It turns out there was a good reason for the omission. The superior court judge ruled from the bench and did not enter a written order.)
The State asked the court of appeals to reconsider its ruling since the grounds upon which it rested had not been raised or argued by either party and was inconsistent with case law. The court of appeals denied the State’s request.
A funny thing happened on the way to the supreme court. The state supreme court granted the State’s petition for discretionary review. This time around, the parties argued about whether the court of appeals erred by dismissing the State’s appeal on the basis that the superior court did not enter a written order. Then, two weeks before oral argument, the state supreme court and the parties learned that the court of appeals had replaced its initial opinion. Rather than dismissing the appeal on the basis that the record did not contain a copy of the written order, the superseding opinion denied the State’s appeal on the basis that the record does not indicate the superior court’s order was “entered.”
Supreme court’s holding. The state supreme court determined that the June 2, 2014 order from which the State appealed was, in fact, “entered.” Thus, the State had a right to appeal under G.S. 15A-1432(e). The supreme court explained that a trial court has entered a judgment or order in a criminal case when it announces a ruling in open court and the courtroom clerk makes a notation of its ruling in the minutes kept for that session. After the superior court announced its decision in Miller on June 2, 2014, the courtroom clerk typed “Court affirms appeal. State appeals court ruling” in the minutes. The supreme court thus vacated the court of appeals opinion in Miller and remanded the case for consideration of the remaining issues.
A more straightforward path. Three and a half years after Brent Miller was charged with misdemeanor impaired driving, we have no resolution of his case, notwithstanding the involvement of state courts at every level. Surely there is a more efficient way to proceed.
The legislature enacted G.S. 20-38.6 and G.S. 20-38.7 in 2006 to allow the State to appeal from district court rulings on motions to suppress in implied consent cases, which, if granted, resolve the case in favor of the defendant by barring the introduction of the State’s evidence. But the procedure they created is cumbersome. It requires a significant amount of appealing and remanding and sometimes requires superior court judges to consider an identical legal issue two or more times in a single case. The same objective could be accomplished by simply affording the State the right to appeal from a district court ruling on a motion to suppress in an implied consent case. The district court could rule, and if the State wished, it could appeal the ruling to superior court. So long as the requirement that such motions be made pre-trial remained in place, double jeopardy would not bar the State from challenging on appeal a district court’s order suppressing evidence. Any further appeal of right from the superior court’s ruling, should the General Assembly wish to grant one, could then allow the parties to proceed directly to the court of appeals.