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North Carolina v. Leroux4/5/1990
tion. Officer Williams testified that from his observations of defendant both before and after defendant was ultimately forced to surrender, defendant appeared to be very much in control of his mental and physical faculties and that he never observed any indication of faulty steps or staggering. The officer who performed the gunpowder residue test on defendant at the emergency room of the hospital testified that defendant
was "very cooperative," with no odor of alcohol about him. Officer Sanders testified that he interviewed defendant before his surgery and that defendant was "clear and lucid," even "correcting me on a couple of statements and questions I had asked him." A woman working at one of the bars defendant visited late in the evening before returning home testified that defendant did not in any way appear to be intoxicated to her. While the doctor who performed surgery on defendant testified that he smelled alcohol on the defendant and tested his blood alcohol level at .166, he also stated that defendant was in control of his faculties, that he was alert, intelligently discussed the upcoming surgery, and signed a consent form to undergo anesthesia. Evidence that the condition of intoxication exists, without more, does not mandate its consideration as a mitigating factor. State v. Bush, 78 N.C. App. 686, 338 S.E.2d 590 (1986). We find no error in this assignment.
We conclude that defendant received a fair trial free of prejudicial error.
No error.
Disposition
No error.
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