              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-685

                                  Filed: 5 May 2020

Onslow County, No. 17CRS056939

STATE OF NORTH CAROLINA

             v.

BRADLEY W. BURGESS


      Appeal by defendant from judgment entered on or about 13 February 2019 by

Judge Charles H. Henry in Superior Court, Onslow County. Heard in the Court of

Appeals 4 February 2020.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Thomas
      J. Campbell, for the State.

      James R. Parish for defendant-appellant.


      STROUD, Judge.


      Defendant appeals a judgment convicting him of three drug-related charges.

Although the witness who participated in a controlled buy was impaired by controlled

substances during his testimony, the trial court conducted a proper investigation of

his impairment, informed counsel, and gave counsel full opportunity to request

remedial actions. The trial court did not abuse its discretion in determining a mistrial

was not necessary to ensure a fair trial for defendant and that the witness was

competent to testify, despite his impairment, where the witness was capable of
                                 STATE V. BURGESS

                                 Opinion of the Court



expressing himself concerning the matter at issue and other evidence corroborated

the veracity of his statements. We conclude there was no error.

                                    I.     Background

      The State’s evidence tended to show that on 18 April 2017, the Onslow County

Sheriff’s Department set up a controlled buy between Mr. Asay and defendant in

which defendant ultimately sold Mr. Asay a controlled substance, methamphetamine.

Defendant was tried by a jury. During the State’s case in chief, Detective Michael

Noel testified as to the controlled buy. The actual controlled buy took place in a

vehicle and Detective Noel testified to the circumstances of the buy, including

searching Mr. Asay before he went to the vehicle for the buy and giving him money

with which to purchase drugs. Detective Noel further testified he never lost sight of

Mr. Asay, and when he returned from defendant he had controlled substances with

him though he did not have them when he walked over to the vehicle.

      Mr. Asay also testified about the drug purchase from defendant, but after Mr.

Asay had given his testimony, the trial court raised a concern that he appeared to be

under the influence of a controlled substance or alcohol. On the trial court’s order,

Mr. Asay was drug-tested by his probation officer and was positive for use of

amphetamines and methamphetamine.              Defendant moved for a mistrial and

thereafter to disqualify Mr. Asay as a witness under Rule of Evidence 601(b) and




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strike his testimony because he was an incompetent witness, but the trial court

denied both motions.

      The jury ultimately convicted defendant of delivering methamphetamine;

possession of drug paraphernalia; and possession with intent to sell and deliver

methamphetamine. The trial court entered judgment. Defendant appeals.

                                II.   Mr. Asay’s Testimony

      Defendant makes two arguments on appeal. Both arguments are based upon

Mr. Asay’s competency to testify while impaired.

A.    Rule of Evidence 601(b)

      Defendant argues the trial court should have allowed his motion to exclude

and strike Mr. Asay’s testimony based on Rule of Evidence 601(b) because Mr. Asay

was an incompetent witness, and thus he could not receive a fair trial.        “The

competency of a witness is a matter which rests in the sound discretion of the trial

judge. Absent a showing that the ruling as to competency could not have been the

result of a reasoned decision, the ruling must stand on appeal.” State v. Ford, 136

N.C. App. 634, 639, 525 S.E.2d 218, 221-22 (2000) (citations and quotation marks

omitted).

      The competency of a witness to testify is governed by North Carolina General

Statute § 8C-1, Rule 601, which provides in pertinent part:

             (a)   General rule.--Every person is competent to be a
             witness except as otherwise provided in these rules.


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              (b)   Disqualification of witness in general.--A person is
              disqualified to testify as a witness when the court
              determines that the person is (1) incapable of expressing
              himself or herself concerning the matter as to be
              understood, either directly or through interpretation by
              one who can understand him or her, or (2) incapable of
              understanding the duty of a witness to tell the truth.

N.C. Gen. Stat. § 8C-1, Rule 601 (2019).

      This Court has previously noted that drug use alone will not make a witness

incompetent to testify. See State v. Edwards, 37 N.C. App. 47, 49, 245 S.E.2d 527,

528 (1978). If the witness is able to express himself well enough to be understood and

and is able to understand the obligation to testify truthfully, impairment by drugs

does not render him incompetent, although he may be impeached with evidence of his

impairment:

              [D]rug use does not per se render a witness incompetent
              to testify. Generally, evidence that the witness was using
              drugs, either when testifying or when the events to which
              he testified occurred, is properly admitted only for
              purposes of impeachment and only to the extent that such
              drug use may affect the ability of the witness to accurately
              observe or describe details of the events which he has seen.

Id. Here, defendant has not demonstrated that Mr. Asay was incapable of expressing

himself or incapable of understanding his duties to tell the truth. See N.C. Gen. Stat.

§ 8C-1, Rule 601(b). In addition, the other evidence, including the testimony of

Detective Noel and a videotape, entirely corroborated Mr. Asay’s testimony against

defendant. Although Mr. Asay’s testimony with other evidence does not directly show


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Mr. Asay’s competence as a witness, it does indicate that he was able to recall dates

and events in a manner consistent with the other evidence.

      Defendant further argues it was error for the trial court not to conduct a voir

dire of Mr. Asay to assess his competency to testify. However, defendant had the

opportunity to request a voir dire and did not. After Mr. Asay began his testimony,

the trial court sua sponte raised its concern regarding his potential impairment, had

him tested, and brought his impairment to the attention of the parties. Out of the

presence of the jury, the trial court discussed the matter with counsel and sought

their suggestions in how to proceed.       The State noted it would call Mr. Asay’s

probation officer to testify regarding the drug testing so this information would be in

evidence. The trial court also noted that the State should not question the probation

officer regarding who initiated the drug testing because “maybe the jury may consider

that as my questioning credibility[,]” but the trial court did allow defendant’s counsel

to question the probation officer on this subject in front of the jury. Thus, defendant’s

counsel elicited the probation officer’s testimony that the trial judge had called for

the testing of Mr. Asay. Defendant’s counsel did not object to the measures the trial

court discussed with counsel to address Mr. Asay’s impairment, and again, did not

request voir dire of Mr. Asay. Instead, defendant opted to move for mistrial and for

disqualification of Mr. Asay as a witness.




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       When defendant made his motions, the trial court already had ample

opportunity to observe Mr. Asay during his testimony, and those observations raised

the trial court’s suspicions of impairment. Defendant does not explain how having

Mr. Asay questioned further on voir dire would reveal any additional information

which may have required a different procedure.                    In denying the motion for

disqualification, the trial court noted,

               I heard the testimony. And I could understand -- what he
               was saying and the transcript will reflect that the Court
               Reporter probably could understand also what he was
               saying.[1] There are parts that he -- I thought he was
               slurring his words and required questions be repeated.
               The Court was unaware whether this was the result of
               extensive drug use and he was suffering from some sort of
               damage that had been done to his language skills and
               mental faculties or not. But I think he was able to discuss
               the events of April 18, 2017, and was generally
               understandable by the jurors. The motion under Rule 601
               -- or the motions raised by the Defense under 601 are
               denied.

       Our Supreme Court has noted that the trial court’s observations of the witness

put the trial court in the best position to assess the competency of a witness:

                       In addition, the trial court’s determination that a
               witness is competent to testify is with good reason within
               the discretion of that court, which has the opportunity
               itself to observe the comportment of the witness. And
               where the effect of drug use is concerned, in particular, the
               question is more properly one of the witness’s credibility,
               not his competence. As such, it is in the jury’s province to
               weigh his evidence, not in the court’s to bar it.

1 The trial court was correct. The transcript does not reflect any problems with transcription of the
testimony.

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State v. Fields, 315 N.C. 191, 204, 337 S.E.2d 518, 526 (1985).

      Defendant has not demonstrated any abuse of discretion by the trial court.

Instead, the trial court initiated the investigation of Mr. Asay’s impairment, advised

counsel, solicited their arguments and suggestions on how to proceed, and gave a

well-reasoned explanation of its rulings. Evidence of Mr. Asay’s impairment was

presented to the jury, and thus the jury was free to determine whether they found

Mr. Asay’s testimony credible. See id. Accordingly, this argument is overruled.

B.    Motion for Mistrial

      Defendant also contends the trial court should have allowed his motion for a

mistrial as “the single most important witness for the State testified while he was

drug impaired.” “[A] mistrial is a drastic remedy, warranted only for such serious

improprieties as would make it impossible to attain a fair and impartial verdict. Our

standard of review when examining a trial court’s denial of a motion for mistrial is

abuse of discretion.” State v. Jones, 241 N.C. App. 132, 138, 772 S.E.2d 470, 475

(2015) (citation, quotation marks, ellipses, and brackets omitted).

      Here, defendant has not alleged that Mr. Adam’s testimony was incoherent or

difficult to understand. Rather, defendant contends, without citing legal authority,

that because Mr. Asay was under the influence of drugs when he testified, his

testimony tainted his entire trial. In addition, the other evidence, including the

testimony of Detective Noel and the videotape, corroborated Mr. Asay’s testimony.


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As discussed above, the trial court found Mr. Asay was competent to testify and the

jury was informed about his impairment during his testimony, and thus could

consider his credibility and the weight to give to his testimony. As Mr. Asay was

competent to testify and the jury was informed of his impairment, we see no basis for

defendant’s claim it was “impossible to attain a fair and impartial verdict[,]” id., and

therefore we do not conclude that the trial court abused its discretion. This argument

is overruled.

                                      III.     Conclusion

      Therefore, we conclude there was no error.

      NO ERROR.

      Judges BERGER and COLLINS concur.




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