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[T] State v. Odom6/3/2003
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
This appeal arises out of defendant's conviction of driving while impaired ("DWI"). Defendant contends that (1) the trial court erred in failing to grant his motions to dismiss for insufficient evidence; (2) the trial court erred in failing to grant a mistrial on the court's own motion; and (3) trial counsel provided ineffective assistance of counsel by not seeking a mistrial. Since the State presented substantial evidence of each element of the offense of DWI, we hold the trial court properly denied the motions to dismiss. With respect to the assignments of error regarding a mistrial, we conclude that the trial court did not abuse its discretion in failing to declare a mistrial whendefendant's counsel for strategic reasons did not wish a mistrial. These strategic reasons also preclude defendant's claim of ineffective assistance of counsel.
Facts
At approximately 11:20 p.m. on 5 December 2000, Officer Richard Wells of the Charlotte-Mecklenburg Police Department was on patrol when he noticed a Ford Explorer traveling in the oncoming lane of travel on Montreat Avenue. Officer Wells heard yelling coming from the Explorer and directed towards a woman walking down the street in the same direction as the Explorer. Officer Wells followed the Explorer for approximately 20 or 30 feet until he saw the Explorer "jerk , quickly, to the right, off the road, into a yard." He then saw defendant "jump out of his vehicle; and, walk, quickly, towards the female, walking down the road, yelling at her." Officer Wells radioed for backup.
Officer Wells got out of his patrol car and approached defendant and the woman to intervene in their argument. Officer Wells asked defendant to get back in his vehicle and defendant complied. Defendant claimed that the woman had taken his cellular phone, but the woman had no cellular phone.
At this point, Officer Curtis Driggers of the Charlotte- Mecklenburg Police Department arrived. Officer Driggers approached defendant and noticed a strong odor of alcohol coming from defendant's direction when defendant spoke to him. He asked defendant for his driver's license and requested that he turn off his car and exit the vehicle. When defendant got out of the car,he took two or three side steps although the road was smooth and he was wearing sneakers. Officer Driggers noticed that defendant's eyes appeared to be red, bloodshot, and glassy.
Officer Driggers then asked defendant to perform several field sobriety tests. He first asked defendant to recite his ABC's, but defendant became confused after the letter "G." Officer Driggers then asked defendant to perform the sway test: defendant was required to stand as still as possible, tilt his head back, and close his eyes for 30 seconds. Defendant was unable to maintain his balance and instead was "bobbing around." When asked to stand on one leg, defendant attempted to perform the test, but swayed back and forth, raised his arms twice, put his foot down three times, and then stopped the test early. Officer Driggers repeatedly asked defendant to perform a walk-and-turn test, but defendant refused. Officer Driggers then placed defendant under arrest for DWI.
Officer Wells transported defendant to the intake center. During the drive, defendant was yelling and had slurred speech. Once they arrived at the intake c
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