Magistrate Cleared of DWI

BY WESLEY YOUNG
SALISBURY POST

No one disputes that Rowan County Magistrate Michael Kelly smashed his car into six other parked cars on Sept. 30, 1998, before driving away.

But this morning, a District Court judge ruled there was not enough evidence to show that Kelly was impaired.

Judge Joseph Buckner found Kelly, of 511 Correll St., East Spencer, innocent of a charge of driving while impaired but guilty of six counts of hit and run. Buckner placed Kelly on supervised probation until he pays restitution to the owners of the six automobiles.

Kelly's supervisor, Chief District Court Judge Anna Mills Wagoner, suspended Kelly after the charges were filed, but Kelly continued to draw his pay as a magistrate. Kelly's term as a magistrate expired on Dec. 31, 1998, and he asked officials not to renew his position.

East Spencer officer G.D. Jones testified this morning that Kelly had an odor of alcohol on his breath when Jones placed Kelly under arrest. Kelly stopped his car in a driveway after circling through the streets of East Spencer, with the right front wheel of his car scraping the pavement all the way and smoke billowing from the back of his car.

Bail bondsman Phillip Bradshaw testified that he called in the report of Kelly's erratic driving and followed Kelly's car until the magistrate stopped. Bradshaw said that when Kelly got out of his car, the magistrate was excited and talking about how his son was in trouble.

But under repeated cross examination, Bradshaw said he never considered that Kelly had been drinking. Bradshaw said that Kelly was coherent, that he smelled no odor on his breath and didn't appear to stagger or to have lost his physical coordination.

That night, Kelly refused to take a Breathalyzer test, but the arresting officer testified that he was polite and made no combative remarks when refusing to take the test.

This morning, Kelly did not take the stand, and there was no testimony about the sort of threat against Kelly's son. Kelly's attorney, Mike Grace, told the Post after the verdict that Kelly had received a telephone call in which someone threatened to kill his son.

"Like any parent, he immediately responded, looking for his son," Grace said.

Prosecutor Wayne Pickett argued in his closing remarks that because Kelly's own actions that night - striking so many cars in a row and continuing to drive with a broken right front wheel - was enough evidence to prove that he was impaired.

But defense attorney Grace pointed to testimony about a conversation that night between Officer Jones and bail bondsman Bradshaw. Bradshaw testified that while he and the officer were standing near Kelly's car, "I said, 'I don't smell alcohol on him, do you?'|"

According to Bradshaw, Jones responded: "Very, very faint."

Grace also pointed out that Jones changed his testimony. At first, Jones testified that while Kelly had bloodshot eyes, he did not stagger. But the officer later described having to "walk him to the car because he was swaying back and forth."

All the owners of the damaged cars sat in a row on the left side of the courtroom during Kelly's trial. The only one who testified, Roy Fogner, said he and other members of the choir at Messiah Lutheran Church were practicing when they heard a loud crash.

Fogner testified that he went outside and saw that a car - apparently Kelly's - had struck the rear of a car belonging to a Mrs. Basinger. He said he watched as the offending car backed and then ran into the next parked car, backed up again and ran into the third parked car and so on - hitting Fogner's car last.

"Each time, there was a stop and start," he testified. "When he went off, the sparks were flying off the rim of the tire."

Bradshaw, the bondsman, testified that as he was going west on Bringle Ferry Road, a car passed him in the other direction scraping its rim on the road and shooting off sparks. Bradshaw called the police dispatcher and asked if they had heard of any hit and runs.

The dispatcher asked Bradshaw to follow the car and try to get a license number. But Bradshaw testified that there was too much smoke to see the license.

Bradshaw followed the car for six miles as it took a circular route through East Spencer.

Jones cited Kelly near the corner of Boundary and East Henderson streets.

Bradshaw and Officer Jones arrived about the same time.

"He talked about something that had transpired between him and his son," Bradshaw testified. "He was trying to catch up to someone who was after his son."

Officer Jones testified that Kelly was erratic and jumpy and made the comment, "They are going to kill my son."

According to Jones, Kelly wanted authorities to just hurry up and complete their investigation.

In his closing arguments, prosecutor Pickett said it was inconsistent for Kelly, a magistrate, not to summon authorities to help him if his son was in danger. Kelly knew the system, Pickett argued, and knew that he should ask the officers for help for his son. But Pickett argued that Kelly never did that.