STATE OF NORTH CAROLINA
v. Wayne County
No. 03CRS057194
ELMER BERKLEY
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
Thomas E. Fulghum for defendant-appellant.
ELMORE, Judge.
Defendant Elmer Berkley was charged with driving while
impaired (DWI). He was initially tried and convicted of the
offense in district court. Defendant then appealed to the superior
court, and this matter was tried de novo on 11 May 2004 before
Judge Jerry Braswell and a duly empaneled jury.
The State's evidence tended to show that on the afternoon of
6 August 2003, Trooper Michael Conley of the North Carolina State
Highway Patrol observed defendant traveling southbound on U.S. 117,
outside of Mount Olive, North Carolina. Defendant was operating a
moped, which was proceeding next to the fog line and traveling
about 20 m.p.h. The trooper noted, “The defendant was wobblingreal bad on the moped and kind of jerking the wheel, like as if he
was about to wreck, maybe [as] if he was impaired or had a medical
condition. That's what brought my attention to the moped.”
Trooper Conley thereafter activated his blue lights, but defendant
failed to respond. The trooper also turned on his siren for five
seconds, but defendant still refused to pull over.
When defendant stopped for the red light at the intersection
of U.S. 117 and N.C. 55, Trooper Conley did also. The trooper then
got out of his vehicle and approached defendant. The trooper
tapped defendant on the shoulder, whereupon defendant turned and
asked, “where the G-- D--- Food Lion was?” Trooper Conley informed
defendant that he was in Mount Olive and that Food Lion was across
the road. During this exchange, Trooper Conley noticed a strong
odor of alcohol about defendant's person. The trooper also noted
that defendant's eyes were bloodshot and that his speech was
slurred and mumbled. Trooper Conley asked defendant to get off of
the moped and step back to his patrol car. Defendant complied, but
was rather unsteady on his feet as he walked back to the trooper's
patrol car. After speaking briefly with defendant, Trooper Conley
placed defendant under arrest for DWI and transported him to the
Intoxilyzer room at the Wayne County Jail.
Once they arrived at the Intoxilyzer room, Trooper Conley
asked defendant to perform some field sobriety tests. However,
when defendant “almost fell over” when trying to perform the
finger-to-nose test, the trooper decided to stop the test for fear
defendant would injure himself. Defendant subsequently refusedTrooper Conley's offer to take the Intoxilyzer test. Defendant
also refused to answer any questions on the A.I.R. form. Based
upon his interaction with defendant, the trooper formed the opinion
that defendant had consumed a sufficient quantity of an impairing
substance to cause an appreciable impairment of his mental and
physical faculties. On cross-examination, Trooper Conley denied
ever beating defendant.
Defendant testified during his case-in-chief that he drank
about four beers on the night before he was arrested by Trooper
Conley for DWI. Defendant explained that he had stayed up late
that night and got little sleep, which accounted for his bloodshot
eyes on the date of his arrest. Defendant stated that he did not
shower before leaving for groceries at about 2:30 or 3:00 p.m. on
his moped. Defendant further stated that it was his habit to drive
his moped on the right side of the fog line to leave a clear path
for cars. Defendant denied ever seeing Trooper Conley before the
trooper tapped him on his shoulder. Defendant insisted that it was
impossible that the trooper activated his lights and siren because
he would have noticed them. Defendant also denied asking the
trooper where the Food Lion was located, but explained that he
probably told the trooper that he was on his way to Food Lion when
asked where he was going.
Defendant admitted to refusing to perform any tests, and
stated that he asked for an attorney before he would talk.
Defendant testified that he refused the Intoxilyzer test because he
“thought [he] was being set up.” Defendant insisted that he neverattempted the finger-to-nose test. Defendant testified that after
he refused to take the Intoxilyzer test, Trooper Conley handcuffed
him for the first time. After taking him to the booking counter,
defendant alleged that the trooper punched him and beat him about
his body with his fists and baton. In fact, defendant testified
that two jailers assisted Trooper Conley by throwing him to the
floor. Defendant asserted that when Trooper Conley got tired of
beating him, the trooper told him that he had better answer his
questions. Defendant testified that he then answered the questions
as best he could and placed an “X” on the signature line to show
that threats and force had been used on him to get him to sign the
form. Defendant did not seek medical assistance for his injuries,
and did not report the incident to any officials except a certain
magistrate after defendant's release from jail.
Defendant explained that after he told the magistrate about
the beating, the magistrate told defendant that he would check into
the allegations and get back to defendant. Defendant stated,
however, that he never heard from the magistrate. Defendant stated
that his sister Eloise Carlton was present when he told the
magistrate about Trooper Conley beating him.
Defendant sought to admit the testimony of his sister, but the
State objected and those objections were sustained by the court.
Defendant made an offer of proof, that Carlton heard defendant tell
the magistrate that he had been beaten by Trooper Conley.
The jury found defendant guilty as charged. The trial court
entered judgment on the jury's verdict, sentencing defendant to a term of 12 months imprisonment. Defendant again appeals.
On appeal, defendant argues that the trial court erred in
excluding testimony of his sister regarding statements he made to
the magistrate about Trooper Conley beating him. Defendant
contends that the testimony was admissible as a prior consistent
statement. We disagree.
“Relevant evidence” has been defined as “evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence.” N.C. Gen. Stat. § 8C-1,
Rule 401 (2003). It is well settled that “[e]vidence which is not
relevant is not admissible.” N.C. Gen. Stat. § 8C-1, Rule 402
(2003). The trial court's rulings on relevancy are given great
deference on appeal. State v. Wallace, 104 N.C. App. 498, 502, 410
S.E.2d 226, 228 (1991) (“[E]ven though a trial court's rulings on
relevancy technically are not discretionary and therefore are not
reviewed under the abuse of discretion standard applicable to Rule
403, such rulings are given great deference on appeal.”).
In the case sub judice, defendant was charged with DWI, and
therefore, the issue is whether there was sufficient evidence to
show that defendant was driving while impaired. The testimony of
defendant's sister that she heard him report an alleged beating by
Trooper Conley to the magistrate, as earlier detailed by defendant
during his testimony, would not have made the existence of
defendant's impairment any less or more probable. Hence, the
testimony was not relevant. Moreover, in light of the overwhelmingevidence of defendant's guilt, we conclude that even if the trial
court erred in excluding the testimony of defendant's sister, said
error was harmless. See State v. Collins, 345 N.C. 170, 173-174,
478 S.E.2d 191, 194 (1996) (stating that even assuming that the
trial court had erred in excluding defendant's character evidence
as not being “pertinent,” i.e. relevant, “exclusion of the evidence
could not have affected the outcome of this case in light of the
overwhelming evidence of defendant's guilt”; and therefore “any
possible error would have been harmless”). Accordingly, the trial
court did not err in excluding the testimony of defendant's sister.
Having so concluded, we hold that defendant received a fair
trial, free from prejudicial error.
No error.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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