State v. Lukoskie

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.

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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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