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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA12-126 NORTH CAROLINA COURT OF APPEALS Filed: 21 August 2012 STATE OF NORTH CAROLINA v. WARREN PERRY BARKER Gaston County No. 11 CRS 54610

Appeal by defendant from judgment entered 17 August 2011 by Judge Mark E. Powell in Gaston County Superior Court. the Court of Appeals 6 August 2012. Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. Robert W. Ewing, for defendant-appellant. MARTIN, Chief Judge. Defendant, Warren Perry Barker, was charged with one count of driving while impaired ("DWI"). Defendant was convicted in Before the start Heard in

district court and appealed to superior court.

of trial on 17 August 2011, the superior court noted that a motion for a forensic evaluation had been filed during the

district court trial and a psychological evaluation of defendant was on record concluding that defendant was competent. Due to

-2uncertainty over whether a competency hearing had been

conducted, the superior court held its own competency hearing during which defendant stated that he: (1) was in court because he had appealed the case and he was not drinking on the day in question; (2) he understood that he was in a courtroom; and (3) he was ready for the State's evidence. The court found:

It appears from speaking with [defendant] he understands what's going on, he understands the procedure concerning defense counsel and concerning the prosecution, concerning law enforcement. I find he's competent to proceed. At trial, Officer Josh McSwain of the Cherryville Police Department testified that on 28 March 2011 at 9:11 p.m. he was on patrol when he pulled defendant over for running a red light. Officer McSwain stated that he arrested defendant for suspicion of DWI, expired registration, expired inspection, and running a red light. Officer Kasey L. Cornwell testified that he

administered an Intoximeter EC/IR II test to defendant which measured his blood alcohol level as .12. Defendant "rookie" testified Officer on his own behalf was stating when that he a

officer,

Dolittle,

present

was

pulled over on 28 March 2011.

Defendant stated that Officer According

McSwain was training Officer Dolittle that evening.

to defendant's testimony, the traffic light was yellow when he

-3passed through the intersection and he had not consumed any alcohol "other than a little bit of wine" with lunch.

Defendant also admitted to pleading guilty to a separate driving while impaired charge on 16 August 2011, the day before trial. During cross-examination, the following exchange took place: Q. (By [prosecutor]) Sir, weren't you convicted of driving while impaired yesterday? A. Yesterday. MS. ANDERSON: Objection. THE COURT: Overruled. THE WITNESS: Yesterday. You're -- what date are you -- yesterday. Q. (By [prosecutor]) August 16th. A. Yes, okay. Q. Was that a yes, you were convicted of DWI yesterday? A. Yeah, yeah, the first time, yeah. Q. Is it possible regarding Dolittle matter, that you're DWIs mixed up? MS. ANDERSON: Objection. THE COURT: Overruled. Q. (By [prosecutor]) Let me ask you

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