State v. Lukoskie ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-399
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 10 CRS 209039
JEREME LUKOSKIE,
Defendant.
Appeal by defendant from judgment entered 21 September 2012
by Judge Linwood O. Foust in Mecklenburg County Superior Court.
Heard in the Court of Appeals 26 September 2013.
Roy Cooper, Attorney General, by Kathryne E. Hathcock,
Assistant Attorney General, for the State.
Arnold & Smith, PLLC, by J. Bradley Smith and Laura M.
Cobb, for defendant-appellant.
DAVIS, Judge.
Jereme D. Lukoskie (“Defendant”) appeals from a judgment
convicting him of driving while impaired (“DWI”). On appeal, he
contends that the trial court erroneously (1) denied his pre-
trial motion to suppress all evidence obtained while he was
stopped at a checkpoint; and (2) refused to allow him the
opportunity to make an offer of proof at trial. After careful
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review, we affirm the trial court’s denial of Defendant’s motion
to suppress and hold that the trial court did not commit
prejudicial error in limiting his ability to make an offer of
proof.
Factual Background
The State presented evidence at trial tending to establish
the following facts: On 26 February 2010, the Charlotte-
Mecklenburg Police Department (“CMPD”) established an impaired
driving checkpoint at the 6000 block of Brookshire Boulevard
supervised by Sergeant David Sloan (“Sergeant Sloan”). Officer
Matthew Pressley (“Officer Pressley”) manned the outbound lanes
of Brookshire Boulevard where he observed Defendant enter the
checkpoint driving a Volkswagen Passat sedan. Officer Pressley
approached the vehicle and engaged in conversation with
Defendant, informing Defendant that he was at a DWI checkpoint.
Officer Pressley asked Defendant “how much, if anything, he had
to drink.” Defendant responded that he had consumed “a few
drinks two hours earlier.”
Officer Pressley then directed Defendant to exit the
vehicle and perform a series of field sobriety tests. Defendant
failed to perform any of the tests to Officer Pressley’s
satisfaction. Based on Defendant’s slurred speech, red and
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glassy eyes, the odor of alcohol on his breath, and Defendant’s
poor performance on the field sobriety tests, Officer Pressley
formed the opinion that Defendant was appreciably impaired by
the consumption of alcohol.
Defendant was placed under arrest for impaired driving and
taken to a nearby blood alcohol testing mobile unit for a breath
test. Defendant registered a .16 blood alcohol concentration
level. Defendant was then charged with driving while impaired
in violation of N.C. Gen. Stat. § 20-138.1.
On 13 July 2010, a trial was held in Mecklenburg County
District Court. Defendant was convicted of DWI and placed on
unsupervised probation for one year. Defendant appealed to
superior court.
On 6 October 2010, Defendant filed a motion to suppress all
evidence resulting from the checkpoint, arguing that the
checkpoint failed to meet constitutional standards. The motion
was denied.
A jury trial was held beginning on 19 September 2012. The
jury found Defendant guilty of DWI. The trial court sentenced
Defendant to 30 days imprisonment but suspended the sentence and
placed him on unsupervised probation for 12 months. Defendant
gave timely notice of appeal.
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Analysis
I. Denial of Motion To Suppress
The bulk of Defendant’s appeal arises from his argument
that the trial court erred in denying his motion to suppress.
We conclude that his argument lacks merit.
Our review of a trial court's ruling on a motion to
suppress is “strictly limited to determining whether the trial
judge's underlying findings of fact are supported by competent
evidence, in which event they are conclusively binding on
appeal, and whether those factual findings in turn support the
judge's ultimate conclusions of law.” State v. Cooke, 306 N.C.
132, 134, 291 S.E.2d 618, 619 (1982). Additionally, any
findings of fact that are not specifically challenged by a party
are “deemed to be supported by competent evidence and are
binding on appeal.” State v. Roberson, 163 N.C. App. 129, 132,
592 S.E.2d 733, 735–36 (2004). “The conclusions of law made
from the findings of fact are reviewable de novo.” State v.
Brown, 199 N.C. App. 253, 256, 681 S.E.2d 460, 463 (2009).
A. Sufficiency of Findings of Fact
The trial court made the following pertinent findings
pursuant to Defendant’s pre-trial motion to suppress evidence
arising from the DWI checkpoint:
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1. From 11:00 pm Friday February 27th 2010
to 3:00 am Saturday February 28th, 2010 the
Charlotte-Mecklenburg Police Department
operated a DWI Checking Station on
Brookshire Blvd., a public street in the
area.
2. The Checking Station was operated in
accordance with a written plan (State's
Exhibit #1) drafted by Sergeant David Sloan
pursuant to, and in accordance with N.C.G.S.
20-16A. Sergeant Sloan briefed the officers
working the checkpoint that night as to how
to conduct the Checking Station in
accordance with the plan.
3. The plan provided for the location and
time of the checkpoint. Sergeant Sloan has
been supervising DWI checking stations for
several years. He has been working major
traffic units for two decades. Sergeant
Sloan personally had made several DWI
arrests in the area near Brookshire Blvd.
Sergeant Sloan testified that the location
of the checkpoint location was chosen based
on traffic fatalities, prior DWI arrest
within the area, and the presence of several
bars in the area.
4. The purpose of the checkpoint was to
deter driving while impaired and related
accidents through DWI detection and arrest.
The area chosen is used twice a year by CMPD
for checkpoint operations, either on Freedom
Dr. or Brookshire Blvd. The checkpoints have
yielded prior DWI arrest[s].
5. The strategic plan set forth the
appropriate notifications to the public
including signs and markers and patrol cars
with lights activated notifying the public
of the checkpoint.
6. The plan provided for each car to be
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stopped and for officers to ask for a
driver's license and to check their
registration and to engage in conversation.
If there were no issues with the license and
no evidence of alcohol or drug consumption
was present, motorists would be free to
leave. Such a stop took 10-30 seconds. If
alcohol was detected, the drivers were asked
to step out of their vehicles and perform
field sobriety tests.
7. Sergeant Sloan briefed all
participating law enforcement officers of
the specific instructions to which each
officer was to adhere fifteen minutes before
the checkpoint began. Sergeant Sloan was the
only officer allowed to deviate from the
plan. The plan did not cause a back up in
traffic. Sergeant Sloan never had to deviate
from the plan.
8. The Checking Station was administered
in accordance with the plan.
9. The defendant was stopped at the
Checking Station.
10. The defendant admitted several reports
of arrest in the area of the checkpoint that
did not indicate a large number of DWI
arrest[s]; however, the [sic] Sergeant Sloan
testified that the reports do not
necessarily show the number of DWI arrest[s]
in the area.
11. The reports were based on calls for
service and incidents in the area;
therefore, a DWI arrest may not be listed in
the reports produced by the defense.
12. Area where the checkpoint was set up is
a high traffic area. The purpose of the
checkpoint was to detect DWI individuals and
the checkpoint was not set up as a means for
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stopping the public for some other purpose.
Based on its findings of fact, the trial court made the
following conclusion of law:
1. The Court concludes that, the Checking
Station was operated in accordance with the
United States and North Carolina
Constitutions and North Carolina law, and
does not violate the 4th Amendment.
With regard to the trial court’s findings of fact,
Defendant only challenges findings 2, 3, 4, 10, 11, and 12.
Thus, findings 1 and 5-9 are binding on appeal. Roberson, 163
N.C. App. at 132, 592 S.E.2d at 735-36.
Findings 2-4 address (1) the degree to which the checkpoint
was operated in accordance with a written plan; (2) the
rationale for the checkpoint location; and (3) the checkpoint’s
purpose. Defendant argues that these findings are not supported
by competent evidence in that the checkpoint “lacked a lawful
primary programmatic purpose.”
We believe that findings 2-4 are supported by the testimony
of both Officer Pressley and Sergeant Sloan, which adequately
explained the purpose of the checkpoint and the manner in which
it was implemented. Sergeant Sloan testified that the
checkpoint occurred because “we have [had] numerous DWI arrests
and fatalities that have occurred on Brookshire Boulevard.” The
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written plan for the checkpoint — State’s Exhibit No. 1 — also
stated that it was a “sobriety checking station” and that its
purpose was to check for impaired driving. Sergeant Sloan
testified that “approximately 15 minutes prior to the check-in
station beginning we had a briefing . . . [to] make sure every
officer is briefed on the plan and . . . [to] make sure they
follow the procedures set forth in the plan.” Therefore, we
conclude that findings of fact 2-4 are supported by competent
evidence.
Defendant next challenges findings 10 and 11, both of which
address reports Defendant introduced into evidence outlining the
number of accidents previously occurring in the vicinity of the
checkpoint area and the relatively few DWI-related incidents
listed therein.
At the suppression hearing, Sergeant Sloan testified that
the report offered by the Defendant would not specifically
reflect DWI-related offenses unless the call reporting the
incident referred to it as being DWI-related: “The call for
service comes in as a crash, the officer gets out, investigates
it, and makes a DWI arrest based on that wreck, but it won't be
generated as a DWI offense. It's generated as an accident.”
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Thus, Sergeant Sloan’s testimony served as competent evidence to
support findings 10 and 11.
Finally, Defendant asserts that finding 12 - which states,
in pertinent part, “that the purpose of the checkpoint was to
detect DWI individuals and the checkpoint was not set up as a
means for stopping the public for some other purpose” - was not
supported by competent evidence. He contends that the State
bore the burden of demonstrating that the checkpoint was
“undertaken for a lawful primary programmatic purpose” and the
State failed to meet its burden by relying solely on the
testimony of Officer Pressley and Sergeant Sloan.
At trial, the State offered as an exhibit the DWI
checkpoint plan. Sergeant Sloan testified that this plan, which
was followed by every officer participating in the checkpoint,
clearly states that the programmatic purpose of the checking
station was to check for sobriety. The plan expressly provides
that “the sobriety checkpoint . . . will apprehend impaired
drivers” and also contains a number of factors that were
considered by the CMPD in determining whether the checking
station would be successful. Those factors included: (1) the
number of accidents in the area involving impaired drivers; (2)
the number of bars and drinking establishments in the area; (3)
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the number of DWI arrests made in the area; (4) the number of
DWI arrests made on Friday nights; and (5) the number of DWI
arrests made during these specific hours of the night. This
Court has held that the State is permitted to establish the
purpose of a checkpoint through the testimony of a participating
officer. State v. Burroughs, 185 N.C. App. 496, 499-500, 648
S.E.2d 561, 565-66 (2007) (“Our Court has previously held that
where there is no evidence in the record to contradict the
State's proffered purpose for a checkpoint, a trial court may
rely on the testifying police officer's assertion of a
legitimate primary purpose.”) Based on the testimony of
Sergeant Sloan and Officer Pressley and the checkpoint plan
itself, we conclude that the State presented competent evidence
to support the trial court’s finding that the sole purpose of
the checkpoint was to detect persons who are driving while
impaired.
B. Constitutionality of Checkpoint
Having established that findings of fact 2, 3, 4, 10, 11,
and 12 were supported by competent evidence, we next determine
whether the trial court’s findings of fact support its
conclusion of law that the checkpoint was operated within
constitutional boundaries. The United States Supreme Court has
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held that an impaired driving checkpoint is constitutional if
vehicles are stopped according to a neutral, articulable
standard. Michigan Dept. of State Police v. Sitz, 496 U.S. 444,
110 L.Ed.2d 412 (1990). N.C. Gen. Stat. § 20-16.3A governs the
establishment, organization, and management of impaired driving
checkpoints in North Carolina and sets forth the bases for
stopping vehicles at such checkpoints.
A law-enforcement agency may conduct
checking stations to determine compliance
with the provisions of this Chapter. If the
agency is conducting a checking station for
the purposes of determining compliance with
this Chapter, it must:
. . .
(2) Designate in advance the pattern both
for stopping vehicles and for requesting
drivers that are stopped to produce drivers
license, registration, or insurance
information.
(2a) Operate under a written policy that
provides guidelines for the pattern, which
need not be in writing. The policy may be
either the agency's own policy, or if the
agency does not have a written policy, it
may be the policy of another law enforcement
agency, and may include contingency
provisions for altering either pattern if
actual traffic conditions are different from
those anticipated, but no individual officer
may be given discretion as to which vehicle
is stopped or, of the vehicles stopped,
which driver is requested to produce drivers
license, registration, or insurance
information. If officers of a law
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enforcement agency are operating under
another agency's policy, it must be stated
in writing.
(3) Advise the public that an authorized
checking station is being operated by
having, at a minimum, one law enforcement
vehicle with its blue light in operation
during the conducting of the checking
station.
N.C. Gen. Stat. § 20-16.3A (2011).
“[P]olice officers effectuate a seizure when they stop a
vehicle at a checkpoint. As with all seizures, checkpoints
conform with the Fourth Amendment only if they are reasonable.”
State v. Jarett, 203 N.C. App. 675, 677, 692 S.E.2d 420, 423
(2010) (internal citations and quotation marks omitted).
When considering a challenge to a
checkpoint, the reviewing court must
undertake a two-part inquiry to determine
whether the checkpoint meets constitutional
requirements. First, the court must
determine the primary programmatic purpose
of the checkpoint . . . . Second, if a court
finds that police had a legitimate primary
programmatic purpose for conducting a
checkpoint . . . [the court] must judge its
reasonableness, hence, its
constitutionality, on the basis of the
individual circumstances.
Id. (internal citations and quotation marks omitted).
1. Primary Programmatic Purpose
Defendant argues the trial court erred by “finding a
legitimate programmatic purpose for the checkpoint where the
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only evidence regarding this purpose consisted of two police
officers’ uncorroborated memories of incidents occurring in the
area,” instead of “reports, data, or empirical information.”
We reject Defendant’s argument on this issue because, as
discussed above, competent evidence supported the trial court’s
finding that the checkpoint was conducted for the legitimate
purpose of apprehending impaired drivers. See Burroughs, 185
N.C. App. at 498-503, 648 S.E.2d at 562-66 (holding that where
defendant failed to offer evidence that stated purpose of
vehicle checkpoint was façade for separate, unconstitutional
purpose, trial court erred in excluding evidence obtained during
checkpoint).
In reviewing the constitutionality of a checkpoint, the
trial court is required, as an initial matter, to “‘examine the
available evidence to determine the purpose of the checkpoint
program.’” State v. Gabriel, 192 N.C. App. 517, 521, 665 S.E.2d
581, 585 (2008) (quoting State v. Rose, 170 N.C. App. 284, 289,
612 S.E.2d 336, 339, appeal dismissed and disc. review denied,
359 N.C. 641, 617 S.E.2d 656 (2005)).
Our Court has previously held that where
there is no evidence in the record to
contradict the State's proffered purpose for
a checkpoint, a trial court may rely on the
testifying police officer's assertion of a
legitimate primary purpose. However, where
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there is evidence in the record that could
support a finding of either a lawful or
unlawful purpose, a trial court cannot rely
solely on an officer's bare statements as to
a checkpoint's purpose. In such cases, the
trial court may not simply accept the
State's invocation of a proper purpose, but
instead must carr[y] out a close review of
the scheme at issue. This type of searching
inquiry is necessary to ensure that an
illegal multi-purpose checkpoint [is not]
made legal by the simple device of assigning
the primary purpose to one objective instead
of the other[.]
State v. Veazey, 191 N.C. App. 181, 187, 662 S.E.2d 683, 687-88
(2008) (internal citations and quotation marks omitted).
“[W]hen a trooper's testimony varies concerning the primary
purpose of the checkpoint, the trial court is required to make
findings regarding the actual primary purpose of the checkpoint
and . . . to reach a conclusion regarding whether this purpose
was lawful.” Gabriel, 192 N.C. App. at 521, 665 S.E.2d at 585(internal citation and quotation marks omitted).
Here, as shown above, Officer Pressley’s and Sergeant
Sloan’s testimony regarding the actual primary purpose of the
checkpoint were consistent. Both officers testified that the
checkpoint’s primary purpose was for DWI detection. Their
testimony was further corroborated by the actual DWI checkpoint
plan — drafted pursuant to N.C. Gen. Stat. § 20-16.3A — which
clearly states that the checkpoint was a “sobriety checking
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station.” Because there is no evidence in the record to
contradict the State’s proffered purpose for the checking
station, we are satisfied that sufficient evidence existed to
demonstrate a legitimate programmatic purpose for the
checkpoint. See Veazey, 191 N.C. App. at 187, 662 S.E.2d at 687(“[W]here there is no evidence in the record to contradict the
State's proffered purpose for a checkpoint, a trial court may
rely on the testifying police officer's assertion of a
legitimate primary purpose.”).
While Defendant attempts to rely on State v. Rose, 170 N.C.
App. 284, 612 S.E.2d 336 (2005), in support of his contention
that the checkpoint lacked a valid programmatic purpose, his
reliance is misplaced. In Rose, the trial court simply
accepted, without comment, the field officers' label of the
checkpoint as a license and registration checkpoint. This Court
held that a trial court could not avoid the task of determining
the primary programmatic purpose of a checkpoint simply by
finding that a checkpoint had at least one lawful purpose.
Rose, 170 N.C. App. at 290, 612 S.E.2d at 340. We further
concluded that the trial court had failed to make necessary
findings as to whether the checkpoint was appropriately tailored
to meet a primary programmatic purpose. Id. at 293, 612 S.E.2d
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at 341. For these reasons, we reversed the defendant’s
convictions and remanded for further findings of fact addressing
whether the primary programmatic purpose was constitutionally
permissible. Id. at 293, 612 S.E.2d at 337.
Defendant argues that Rose is analogous to the present case
in that Sergeant Sloan did not take any reports, data, or
empirical information into account when creating the plan for
the checkpoint. Defendant claims that this case is, therefore,
no different than Rose, in which there was no evidence of
purpose offered other than that of the “individual officers
acting at the scene.” Id. at 290, 612 S.E.2d at 340.
However, in Rose, the court was faced with the issue of
“spontaneous” checkpoints that were not prescribed by any
written plan or at the direction of any authority other than the
officers that decided to conduct the stop. Id. at 294, 612
S.E.2d at 342. Here, conversely, the checkpoint at issue was
not spontaneous and was instead governed by a written plan
drafted by Sergeant Sloan pursuant to N.C. Gen. Stat. § 20-
16.3A. Both Sergeant Sloan and Officer Pressley testified that
the primary purpose of the checkpoint was to check for impaired
drivers and that the location was chosen because of traffic
fatalities and prior DWI arrests within the area as well as the
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existence of surrounding bars. Furthermore, nothing in N.C.
Gen. Stat. § 20-16.3A requires officers to rely on empirical
data in deciding where to establish a checkpoint.
2. Reasonableness of Checkpoint
Defendant also contends that the trial court made
insufficient findings regarding the reasonableness of the
checkpoint. Once a trial court determines that the primary
programmatic purpose of a checkpoint is proper, it must then
apply the three-prong inquiry set forth by the United States
Supreme Court in Brown v. Texas, 443 U.S. 47, 61 L.Ed.2d 357(1979), in order to determine whether the checkpoint is
reasonable. Jarrett, 203 N.C. App. at 679, 692 S.E.2d at 424-
25. “Under Brown, the trial court must consider [1] the gravity
of the public concerns served by the seizure[;][2] the degree to
which the seizure advances the public interest[;] and [3] the
severity of the interference with individual liberty.” Id. at
679, 692 S.E.2d at 425 (internal citations and quotation marks
omitted).
The first factor under Brown “analyzes the importance of
the purpose of the checkpoint. This factor is addressed by
first identifying the primary programmatic purpose . . . and
then assessing the importance of the particular stop to the
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public.” Rose, 170 N.C. App. at 294, 612 S.E.2d at 342(internal citation omitted).
Both the United States Supreme Court and the Supreme Court
of North Carolina have determined that the desire to eliminate
impaired driving is a matter of substantial public concern.
Sitz, 496 U.S. at 455, 110 L.Ed.2d at 423 (“No one can seriously
dispute the magnitude of the drunken driving problem or the
States’ interest in eradicating it.”); see State v. Foreman, 351
N.C. 627, 633, 527 S.E.2d 921, 924-25 (2000) (“Our state’s
interest in combating intoxicated drivers outweighs the minimal
intrusion that an investigatory stop may impose upon a motorist
under these circumstances.”).
Under the second prong of Brown, the trial court must
determine “whether ‘[t]he police appropriately tailored their
checkpoint stops’ to fit their primary purpose.” Veazey, 191
N.C. App. at 191, 662 S.E.2d at 690 (quoting Illinois v.
Lidster, 540 U.S. 419, 427, 157 L.Ed.2d 843, 852 (2004)).
Our Court has previously identified a number
of non-exclusive factors that courts should
consider when determining whether a
checkpoint is appropriately tailored,
including: whether police spontaneously
decided to set up the checkpoint on a whim;
whether police offered any reason why a
particular road or stretch of road was
chosen for the checkpoint; whether the
checkpoint had a predetermined starting or
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ending time; and whether police offered any
reason why that particular time span was
selected.
Jarrett, 203 N.C. App. at 680, 692 S.E.2d at 425.
Here, the checkpoint was not set up on a whim. Officer
Sloan testified at the suppression hearing that the checkpoint
plan was developed a week prior to the date on which the
checkpoint occurred.
Sergeant Sloan also testified to the reason why the 6000
block of Brookshire Boulevard was chosen. He stated that this
checkpoint is chosen “at least twice a year at the same location
due to the high number of DWI arrests and wrecks out at that
location.” Sergeant Sloan also testified that each time a
checkpoint has been established on Brookshire Boulevard, “we’ve
netted more than double-digit DWI arrests.”
Another key factor under the second prong of Brown is
ascertaining whether or not the checkpoint had a predetermined
starting or ending time and whether any reason is offered about
why that particular time span was selected. Here, the checking
station plan had a predetermined starting time of 11:00 p.m. on
26 February 2010 and an ending time of 3:00 a.m. on 27 February
2010. Furthermore, Officer Pressley testified that this time
span was chosen
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[du]e to high incidents of DWIs in and
around that area of Brookshire, in
particular on Friday nights . . . [t]he
large number of drinking establishments in
and around that area . . . [and] [t]he fact
that that roadway is a major thoroughfare
from downtown traffic and all the drinking
establishments that are there.
The third prong of Brown requires this Court to consider
the severity of the interference with individual liberty
resulting from the checkpoint. We have articulated a number of
factors that are relevant in making this consideration,
including
the checkpoint’s potential interference with
legitimate traffic; whether police took
steps to put drivers on notice of an
approaching checkpoint; whether the location
of the checkpoint was selected by a
supervising official, rather than by
officers in the field; whether police
stopped every vehicle that passed through
the checkpoint, or stopped vehicles pursuant
to a set pattern; whether drivers could see
visible signs of the officers' authority;
whether police operated the checkpoint
pursuant to any oral or written guidelines;
whether the officers were subject to any
form of supervision; and whether the
officers received permission from their
supervising officer to conduct the
checkpoint[.]
Jarrett, 203 N.C. App. at 681, 692 S.E.2d. at 425-26 (citation
omitted). While all of these factors are relevant, a trial
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court does not need to explicitly address each one of them in
its findings. Id.
Here, Sergeant Sloan devised the checkpoint plan, which
provided the written guidelines that were followed at the
checkpoint, and personally supervised the checkpoint. The plan
stated that “CMPD finds that the stopping of every vehicle,
tempered with the contingency of allowing vehicles through . . .
only if traffic is congested by the checkpoint to an unforeseen
and unreasonable level, is an acceptable and reasonable number
of vehicles to stop.” The plan also limited the officers to
asking for the driver’s license of each driver and looking for
signs of impairment.
The trial court’s finding of fact 5 recognized that the
plan provided for appropriate notifications to the public,
including “signs and markers” and “patrol cars with their lights
activated.” Officer Pressley testified that the checkpoint was
marked by “large 4 foot x 4 foot orange neon [signs stating] DWI
check-in station ahead” and that there was “at least one car in
the roadway in each direction with blue lights activated and all
of the officers in the roadway [were] wearing their traffic
vests.” Moreover, because every vehicle was to be stopped, the
plan provided that “[i]f traffic conditions create a[n] . . .
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unreasonable delay to the convenience of the motoring public,
the supervising officer may temporarily allow vehicles through
without being stopped.”
The trial court’s findings — along with the competent
evidence supporting these findings — establish that any
interference with the individual liberty of citizens affected by
the checkpoint was no greater than necessary to achieve the
important objectives at issue. Therefore, the third prong of
the Brown test was likewise satisfied.
We conclude that the trial court’s findings of fact support
its legal conclusion that the checkpoint comported with
constitutional standards. Therefore, the trial court properly
denied Defendant’s motion to suppress.
II. Refusal To Allow Offer of Proof
Defendant also argues that the trial court erred in
refusing to allow him to make an offer of proof at trial.
Defendant sought to impeach the credibility of Officer Pressley
by questioning him about the basis for establishing the
checkpoint at this particular location on Brookshire Boulevard.
The trial court stated that it would “not allow Defendant to
supplement [his] motion to suppress,” but the court did agree to
allow Defendant to question Officer Pressley on this subject for
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the purpose of challenging his credibility. Defendant’s counsel
proceeded with this line of questioning. However, after counsel
was able to elicit several responses from Officer Pressley, the
trial court refused to allow any further questions on this
issue.
Q. Your testimony is that you know of a
large amount of drinking establishments in
this area. Can you name one of them –
THE COURT: I'm going to stop you again.
There
has been no testimony in this trial about
the number of drinking establishments. How
does that go to his credibility? Tell the
Court that.
MR. SMITH: Your Honor, he testified -- I
asked
him the question why was the location
picked. He said because of the number of
drinking
establishments in this location, the number
of
driving while impaired incidents and driving
while impaired fatalities. That's exactly
his testimony on the record. That was all in
front of the jury.
THE COURT: Sustained. I'm not going to allow
it. You can make the objection for the
record, and you can take it up with the
court of appeals. I'm not going to allow it
to be proffered. That's the Court's ruling.
MR. SMITH: It can be proffered, according to
the rules, for the purposes of appellate
review, though.
THE COURT: The Court has ruled.
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MR. SMITH: I understand that, Your Honor.
The
jury is not in the box right now.
THE COURT: That is correct.
MR. SMITH: The Court can't prevent –
THE COURT: I'm not going to let you go
through
a whole line of testimony that the Court has
already said it is not going to be
proffered, so you can address that issue on
appeal.
MR. SMITH: Your Honor, for the record, the
Court is not allowing me to proffer this for
appellate –
THE COURT: That is correct.
MR. SMITH: All right. Note my objection to
that, Your Honor.
THE COURT: Noted for the record. Bring the
jury in.
In State v. Chapman, 294 N.C. 407, 241 S.E.2d 667 (1978),
our Supreme Court held that the failure of the trial court to
allow counsel to make an offer of proof was a “regrettable
judicial mistake.” Id. at 415, 241 S.E.2d at 672. However,
“where the witness has already answered the question
sufficiently to demonstrate the immateriality of the inquiry,
the judge's refusal to allow the preservation of the answer will
not be held prejudicial error.” Id.-25-
Here, Defendant argues that the trial court’s refusal to
allow him to proffer evidence regarding Officer Pressley’s
personal knowledge of drinking establishments in the vicinity of
the checkpoint constituted prejudicial error. However,
Defendant had already pursued a similar line of questioning
during his motion to suppress.
Assuming, without deciding, that the trial court’s refusal
to allow Defendant to make an offer of proof constituted error,
we hold that the error was harmless. Defendant has failed to
show why the evidence he elicited on this issue during the
suppression hearing — which was made part of the record at that
time — was insufficient to preserve this issue for appellate
review. See State v. Mackey, 352 N.C. 650, 660-61, 535 S.E.2d
555, 560-61 (2000) (while trial court erred in denying party
opportunity to make offer of proof, trial court's dialogue with
defense counsel was sufficient to establish substance of
proposed testimony such that error was harmless).
We likewise conclude that no prejudicial error occurred as
a result of the trial court’s limitation of defense counsel’s
ability to impeach Officer Pressley’s credibility regarding the
basis for establishing the checkpoint in this area. Even
assuming arguendo that the trial court erred in not allowing
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defense counsel to more fully pursue the line of questioning he
desired on this issue, we are satisfied that any such error was
harmless.
In order to show prejudicial error arising from the trial
court’s exclusion of evidence, the burden is on the defendant to
establish that a reasonable possibility exists that a different
result would have been reached but for the error. N.C. Gen.
Stat. § 15A-1443(a) (2011). Here, in light of the evidence
regarding Defendant’s slurred speech and red and glassy eyes,
the odor of alcohol on his breath, his poor performance on the
field sobriety tests, and his .16 blood alcohol concentration
level, it is highly unlikely that the jury would have reached a
different verdict had the trial court allowed more extensive
cross-examination on this issue. Accordingly, Defendant has
failed to show prejudicial error.
Conclusion
For the reasons stated above, we affirm the trial court’s
denial of Defendant’s motion to suppress and hold that Defendant
received a fair trial free from prejudicial error.
AFFIRMED IN PART; NO ERROR IN PART.
Judges HUNTER, JR. and ERVIN concur.
Report per Rule 30(e).
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