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
-2- STATE V. BURGESS
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.
-3- STATE V. BURGESS
(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
-4- STATE V. BURGESS
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.
Free access — add to your briefcase to read the full text and ask questions with AI
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
-2- STATE V. BURGESS
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.
-3- STATE V. BURGESS
(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
-4- STATE V. BURGESS
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.
-5- STATE V. BURGESS
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.
-6- STATE V. BURGESS
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.
-7- STATE V. BURGESS
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.
-8-