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State v. Snyder4/4/1996
ORR, Justice.
Defendant is appealing from his sixth conviction in the last ten years for impaired driving offenses. On 19 November 1993, defendant pled guilty to the offense of habitual impaired driving and was convicted by a jury of the offenses of driving while impaired (DWI) and being a habitual felon. The evidence presented at trial tended to show that on 11 May 1993, Officer Long of the Greensboro Police Department responded to a call describing a disturbance involving an individual, the defendant, with a knife at the Lost Dimensions Nightclub ("the Club"). When Long arrived at the Club, the Club manager told Long that the man causing the disturbance was driving a beige station wagon in the Club's parking lot. After locating and stopping the vehicle being driven by defendant, Long approached the vehicle and asked defendant to exit it. Long noticed that defendant needed to hold on to the vehicle to maintain his balance, that he smelled very strongly of alcohol, and that his speech was slurred. Long asked defendant to perform several field sobriety tests, which defendant failed. Long arrested the defendant for DWI.
Defendant was taken to the police department where Officer Cuthbertson administered further sobriety and physical tests to determine the extent of his impairment. After refusing to submit to a Breathalyzer test, defendant was taken to the magistrate's office. Based on their observations of defendant on 11 May 1993, Long and Cuthbertson formed the opinion that defendant had consumed sufficient alcohol to be "appreciably impaired." Subsequently, on 7 June 1993, defendant was indicted in two separate indictments for driving while impaired ("DWI") and habitual impaired driving ("the DWI indictment") and for being a habitual felon.
On 18 November 1993, after a mistrial was declared due to the illness of a juror, the case was tried before a second jury. During this new trial, the State presented the following evidence regarding the Club's parking lot on which defendant was observed driving: The Club is located on a service road at 510 Farragut Street off Randleman Road near Interstate 40. The Club parking lot opens up onto Farragut Street. Officer Long testified that the Club sits on a small hill with a Budget Motel next door. There is a top-level asphalt parking lot for the Club that wraps around the back. He further testified as follows:
The parking lot winds around the back, and then, there's a spot right behind the back [of the Club] by a dumpster that has enough room if you wanted to try and drive through there. Then, the parking lot wraps around and leads to the back, and this is the hotel . There's two separate buildings for the hotel, which are separated by an area. The parking lot winds around, and there's parking spots for the rooms there, and you can drive up . . . .
Mark Pulliam, general manager, testified that the Club is a private club and that the Club's policy restricts the use of the Club to members and their guests and only during the Club's open business hours; it is not open to the public. He further testified that Club members may not park in the lot overnight without special permission from Club management and that the Club does not permit patrons of the motel to use the Club's parking lot. On cross-examination, Pulliam testified that the Club enforces this policy by not permitting use of the Club's parking lot by nonmembers, by not permitting any loitering by the public, and by not allowing Club members to use the lot when they are not in the Club. On redirect examination, Pulliam testified that there is no membership card required to get into the parking lot. Finally, on recross examination, when asked by defense counsel w
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