Great new case on the State using HGN testimony. This case requires that the officer be qualified as an expert under Daubert.
Court of Appeals of North Carolina.
STATE of North
Carolina v. William Edward GODWIN, III, Defendant.
No. COA15–766.
Decided:
April 19, 2016
Attorney General Roy Cooper, by Assistant Attorney General
Teresa L. Townsend, for the State. Rudolf Widenhouse & Fialko, by M. Gordon
Widenhouse Jr., for defendant.
Appeal by defendant from judgment entered 15 November 2013 by Judge Gary M.
Gavenus in Mecklenburg County Superior Court. Heard in the Court of Appeals 27
January 2016. Mecklenburg
County, No. 11 CRS
202887.
William Edward Godwin, III (defendant), appeals his conviction for driving
while impaired following a jury trial in superior court. The question for
decision is whether Rule 702(a1) of the North Carolina Rules of Evidence
requires a witness to be qualified as an expert before he may testify to the
issue of impairment related to HGN test results. We hold that it does.
I. Background
The State's evidence at trial tended to show the following: On 18 January
2011, at approximately 10:14 p.m., Daniel Kennerly, an officer with the
Charlotte Mecklenburg Police Department, observed defendant driving fourteen
miles per hour over the posted speed limit and executed a traffic stop. When he
approached the vehicle, Officer Kennerly noticed that defendant's eyes were red
and glassy, and he detected a strong odor of alcohol coming from defendant's
breath. Officer Kennerly asked defendant where he was coming from and how much
alcohol, if any, he had consumed that evening. In response, defendant stated
that he had just left a restaurant where he had consumed three beers. Officer
Kennerly then asked defendant to step out of his vehicle and began an
investigation for impaired driving.
As part of his investigation, Officer Kennerly administered three field
sobriety tests: the Horizontal Gaze Nystagmus (HGN) test, the walk-and-turn,
and the one-leg stand. He observed four out of six possible indicators of
impairment during the HGN test, six out of eight possible indicators during the
walk-and-turn, and two out of four possible indicators during the one-leg
stand. At that time, Officer Kennerly placed defendant under arrest for driving
while impaired and transported him to the Mecklenburg County Sheriff's Office's
Intoximeter site to perform a EC/IR II breath test. The results of the
Intoximeter showed that defendant's blood-alcohol concentration was .08.
On 20 December 2011, defendant was convicted in Mecklenburg County District
Court of driving while impaired. He appealed to superior court, and the matter
came to trial at the 12 November 2013 Criminal Session of the Superior Court
for Mecklenburg County. At trial, defendant objected to
Officer Kennerly's HGN testimony, arguing that the officer had to be qualified
as an expert under Rule 702 of the North Carolina Rules of Evidence before such
testimony could be admitted. Over defendant's objections, the trial court
allowed Officer Kennerly to testify, based on his training and experience, as
to his administration of the HGN test, the indicators of impairment, and his
opinion regarding defendant's impairment based on the indicators which he
observed. At the conclusion of the trial, the jury found defendant guilty of
driving while impaired. Defendant gave notice of appeal in open court.
II. Discussion
Defendant first argues that the trial court erred in admitting Officer
Kennerly's testimony regarding the HGN test results. Specifically, defendant
maintains that Rule 702(a1) requires a party offering testimony about the
results of an HGN test to do so through a properly qualified witness who has
been accepted as an expert by the trial court. Defendant contends, therefore,
that in overruling his objection and allowing Officer Kennerly to offer such
testimony as a lay witness, the trial court acted under a misapprehension of
the law.
“Issues of statutory construction are questions of law, reviewed de novo on
appeal.” McKoy v. McKoy, 202 N.C.App. 509, 511, 689 S.E.2d 590, 592 (2010) (citing
Moody v. Sears Roebuck & Co., 191 N.C.App. 256, 264, 664 S.E.2d 569, 575
(2008)). “ ‘Under a de novo review, the court considers the matter anew and
freely substitutes its own judgment’ for that of the lower tribunal.” State v.
Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (quoting In re
Greens of Pine Glen, Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319
(2003)).
The North Carolina Supreme Court first addressed the admissibility of HGN
evidence in State v. Helms, 348 N.C. 578, 580, 504 S.E.2d 293, 294 (1998). On
discretionary review, the Court agreed with our conclusion that “the HGN test
does not measure behavior a lay person would commonly associate with
intoxication, but rather represents specialized knowledge that must be presented
to the jury by a qualified expert.” Id.
at 581, 504 S.E.2d at 295 (emphasis added); see also State v. Helms, 127
N.C.App. 375, 379, 490 S.E.2d 565, 568 (1997) (“[The HGN test] is based upon a
scientific principle that the extent and manner in which one's eye quivers can
be a reliable measure of the amount of alcohol one has consumed.” (citation
omitted)), rev'd on other grounds, 348 N.C. 578, 504 S.E.2d 293. This meant
that under the prior version of Rule 702, the State had to show, inter alia,
that the methodology underlying the test was “sufficiently reliable,” State v.
Pennington, 327 N.C. 89, 98, 393 S.E.2d 847, 852 (1990) (citations omitted),
and that it “can be properly applied to the facts in issue,” State v. Goode,
341 N.C. 513, 527, 461 S.E.2d 631, 639 (1995) (citing Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993)). Where no evidence
was admitted, and no inquiry conducted, as to the reliability of HGN testing,
the Court held that it was error to admit an officer's testimony regarding the
results of the HGN test administered on the defendant. Helms, 348 N.C. at 582,
504 S.E.2d at 295.
After Helms was decided, the North Carolina General Assembly passed House
Bill 1048, which added subsection (a1) to Rule 702. 2006 Sess. Laws ch. 253, §
6. Rule 702(a1) provides, in pertinent part, as follows:
(a1) A witness, qualified under subsection (a) of this section and with
proper foundation, may give expert testimony solely on the issue of impairment
and not on the issue of specific alcohol concentration level relating to the
following:
(1) The results of a Horizontal Gaze Nystagmus (HGN) Test when the test is
administered by a person who has successfully completed training in HGN.
N.C. Gen.Stat. § 8C–1, Rule 702(a1) (2015). The first sentence of this
subsection contemplates that testimonial evidence concerning HGN test results
be offered by an expert witness. Although the prior version of Rule 702(a) was
still in effect when subsection (a1) was added, the bases on which a witness
may be qualified as an expert are the same under the current version. Rule
702(a), as amended, provides as follows:
(a) If scientific, technical or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion, or otherwise, if all
of the following apply:
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and methods.
(3) The witness has applied the principles and methods reliably to the facts
of the case.
N.C. Gen.Stat. § 8C–1, Rule 702(a) (2015) (emphasis added); cf. N.C.
Gen.Stat. § 8C–1, Rule 702(a) (2009) (“[A] witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion.”).
In accordance with Helms, therefore, Rule 702(a1) requires that before a
witness can testify as to the results of an HGN test, he must be “qualified as
an expert by knowledge, skill, experience, training, or education.” See Helms,
348 N.C. at 580–81, 504 S.E.2d at 294–95. If the witness is so qualified and
“proper foundation” is established, the witness may “give expert testimony ” as
to the HGN test results, subject to the additional limitations in subsection
(a1). N.C. Gen.Stat. § 8C–1, Rule 702(a1) (emphasis added). Namely, the expert
witness may testify “solely on the issue of impairment and not on the issue of
specific alcohol concentration,” and the HGN test must have been “administered
by a person who has successfully completed training in HGN.” Id. (emphasis added).
In the case sub judice, although Officer Kennerly completed a training
course in DWI detection and standardized field sobriety tests, there was never
a formal offer by the State to tender him as an expert witness. In fact, after
conducting its own voir dire, the trial court rejected defendant's contention
that Officer Kennerly must be qualified as an expert before testifying as to
the results of the HGN test:
THE COURT: I will allow this officer to testify that he administered the HGN
test, the walk-and-turn test, and the one-legged test. He will be allowed to
testify as to the indicators of impairment he observed of this defendant in
giving these tests. Anything else?
MR. POWERS: I'd ask the Court to note my exception. Is the Court
disqualifying him as an expert on the HGN?
THE COURT: I'm not—he doesn't have to be qualified as an expert. I'm not
going to make that requirement.
Thereafter, over defendant's objection, Officer Kennerly testified that he
“observed four out of six” possible clues during the HGN test, which “indicates
a probability that the person could be impaired as a result of the consumption
of alcohol.” Furthermore, based on his interactions with defendant and
defendant's performance on all of the field sobriety tests, including the HGN
test, Officer Kennerly opined that defendant's “mental and physical faculties
were appreciably impaired as a result of the consumption of some impairing
substance, that substance in this case being alcohol.” Our application of Rule
702(a1) to the facts of this case leads us to conclude that the trial court
erred in allowing a witness who had not been qualified as an expert under Rule
702(a) to testify as to the issue of impairment based on the HGN test results.
The State, relying on our decision in State v. Smart, 195 N.C.App. 752, 674
S.E.2d 684 (2009), disc. review denied, 363 N.C. 810, 692 S.E.2d 874 (2010),
nevertheless argues for an interpretation of Rule 702(a1) that would not
require an arresting officer who administered the HGN test to be qualified as
an expert before testifying as to the HGN test results and the issue of
impairment related thereto. Unlike this case, however, the arresting officer in
Smart was qualified as an expert under Rule 702 before she testified as to her
administration of the test. Id . at 755–56, 674 S.E.2d at 685–86. And although
the defendant's argument, as it was initially phrased, attacked the officer's
qualifications as an expert witness, the defendant's actual challenge went
toward the testimony itself: “[The defendant] in fact specifies that his
argument pertains to whether the officer's ‘method of proof’—that is, the
nystagmus testing—is sufficiently reliable as a basis for expert testimony.”
Id. at 755, 674 S.E .2d at 685; see also Goode, 341 N.C. at 529, 461 S.E.2d at
640 (“Once the trial court has determined that the method of proof is sufficiently
reliable as an area for expert testimony, the next level of inquiry is whether
the witness
․
is qualified as an expert to apply this method to the specific facts of the
case.” (citing N.C. Gen.Stat. § 8C–1, Rule 702 (1992)). Addressing this argument,
we explained that, at least under the prior version of Rule 702(a), before
admitting expert opinion testimony the trial court had to make “a preliminary
assessment of whether the reasoning or methodology underlying the testimony is
sufficiently valid.” Id.
at 756, 674 S.E.2d at 686 (quoting Goode, 341 N .C. at 527, 461 S.E.2d at 639);
see also N.C. Gen.Stat. § 8–C1, Rule 104(a) (2015) (“Preliminary questions concerning
the qualification of a person to be a witness
․ or the admissibility of evidence shall
be determined by the court, subject to the provisions of subdivision (b).”). At
that time, we interpreted subsection (a1) “as obviating the need for the State
to prove that the HGN testing method is sufficiently reliable.” Id. Our holding in Smart
went no further, and it has no application here. While some may even question
whether Smart survives the amendment to Rule 702(a), that issue is not the one
presently before us.
Having concluded that the trial court erred in admitting Officer Kennerly's
testimony, we must now determine whether the error was prejudicial so as to
warrant a new trial. “In order to establish prejudicial error in the erroneous
admission of the HGN evidence, defendant must show only that had the error in
question not been committed, a reasonable possibility exists that a different
result would have been reached at trial.” Helms, 348 N.C. at 583, 504 S.E.2d at
296 (citing N.C. Gen.Stat. § 15A–1443(a) (1997)).
The remaining evidence presented at trial shows the following: (1) Officer
Kennerly stopped defendant for speeding; (2) when Officer Kennerly initiated
the stop, defendant activated his turn signal, pulled onto the next side
street, and came to a stop at roadside in a safe location; (3) defendant was
not weaving, and he made no sharp or sudden turns to avoid the traffic stop;
(4) two experts testified that they would have expected to see some indicators
of impairment which defendant did not exhibit while operating the vehicle; (5)
defendant had no problem retrieving his license or registration; (6) defendant
did not tilt his head away from Officer Kennerly or otherwise try to avoid
contact with him; (7) Officer Kennerly noticed that defendant's eyes were red
and glassy, and he smelled a “strong odor of an alcoholic beverage coming from
his breath”; (8) one expert testified that “the odor of alcohol is simply an
indicator of presence of alcohol” and that there is “no basis for an opinion
that correlates the strength of an odor to
․ blood alcohol concentration in the
body”; (9) defendant told Officer Kennerly that he had just left a restaurant
where he had consumed three beers that evening; (10) when asked to step out of
the vehicle, defendant removed his seatbelt without difficulty, he did not use
the doorframe or the vehicle for support while exiting, and he did not stagger
or sway once he was out of the vehicle; (11) Officer Kennerly observed six out
of eight possible clues during the walk-and-turn test, and two out of four
possible clues on the one-leg stand test; (12) defendant repeatedly told
Officer Kennerly that he had to use the restroom, and two experts agreed that
defendant's need to urinate could have adversely affected his performance on
the tests; (13) one of the experts, who reviewed the video from Officer
Kennerly's dash camera, testified that Officer Kennerly should not have counted
three of the six clues he observed during the walk-and-turn test; that the
steep grade of the road where defendant performed the one-leg stand could have
adversely affected defendant's performance on the test; and that the presence
of traffic on the narrow road where the tests were administered, along with the
cold weather that evening, could also have affected defendant's performance on
the tests; (14) Helen Godwin, defendant's mother, testified that when she saw
defendant at the police station, his eyes were not red or glassy, he did not
smell of alcohol, his speech was normal, and she did not believe he was
impaired; (15) after being placed under arrest and transported to the
Intoximeter site, defendant registered a .08 on the Intoximeter. Based on the
foregoing, particularly the conflicting evidence regarding defendant's
performance on the other field sobriety tests, we conclude a reasonable
possibility exists that, had the HGN test results not been admitted, a
different result would have been reached at trial.
B. Jury Instructions
Defendant also contends that trial court erred in denying his request for
the following jury instruction concerning the results of the Intoximeter:
A chemical analysis of defendant's breath obtained from an EC/IR–II, which
shows an alcohol concentration of 0.08 or more grams of alcohol per 210 liters
of breath, is deemed sufficient to prove defendant's alcohol concentration.
However, such chemical analysis does not compel you to so find beyond a
reasonable doubt. You are still at liberty to consider the credibility and/or
to give such chemical analysis when considering whether the defendant's guilt
has been proven beyond a reasonable doubt.
According to defendant, the requested instruction was necessary to inform
the jury that the Intoximeter results were sufficient to support a finding of
impaired driving but did not compel such a finding beyond a reasonable doubt.
By charging the jury using Pattern Jury Instruction 270. 20A, defendant claims
the trial court impressed upon the jury that it could not consider evidence
which showed that defendant was not impaired.
“When a defendant requests a special jury instruction, ‘the trial court is
not required to give [the] requested instruction in the exact language of the
request. However, when the request is correct in law and supported by the
evidence in the case, the court must give the instruction in substance.’ “
State v. Beck, 233 N .C.App. 168, 171, 756 S.E.2d 80, 82 (alteration in
original) (quoting State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976)),
writ of supersedeas denied, disc. review denied, 367 N.C. 508, 759 S.E.2d 94
(2014). To establish error, therefore, the defendant “must show that the
requested instructions were not given in substance and that substantial
evidence supported the omitted instructions.” State v. Garvick, 98 N.C.App.
556, 568, 392 S.E.2d 115, 122 (citing State v. White, 77 N.C.App. 45, 52, 334
S.E.2d 786, 792, cert. denied, 315 N.C. 189, 337 S.E.2d 864 (1985)), aff'd per
curiam, 327 N.C. 627, 398 S.E.2d 330 (1990). “The defendant also bears the
burden of showing that the jury was misled or misinformed by the instructions
given.” Beck, 233 N.C.App. at 171, 756 S.E.2d at 82 (citing State v. Blizzard,
169 N.C.App. 285, 297, 610 S.E.2d 245, 253 (2005)).
As defendant acknowledges in his brief, we have previously rejected his
argument concerning Pattern Jury Instruction 270. 20A. In Beck, we concluded
that
the trial court's use of the pattern jury instruction [270. 20A] informed
the jury that in order to return a verdict of guilty, it must be convinced
beyond a reasonable doubt that Defendant's alcohol concentration was .08 or
more. This instruction informed the jury, in substance, that it was not compelled
to return a guilty verdict based simply on the chemical analysis results
showing a .10 alcohol concentration.
Beck, 233 N.C.App. at 171–72, 756 S.E.2d at 83. The trial court also
“informed the jury that it possessed the authority to determine the weight of
any evidence offered to show that Defendant was—or was not—impaired.” Id. at 172, 756 S.E.2d
at 83 (citations omitted). Despite defendant's attempt to distinguish Beck from
the case sub judice, we are unable to do so. Accordingly, we reject defendant's
second argument. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37
(1989) (“Where a panel of the Court of Appeals has decided the same issue,
albeit in a different case, a subsequent panel of the same court is bound by
that precedent, unless it has been overturned by a higher court.”).
III. Conclusion
Although the trial court's jury instructions were proper, we conclude that
the trial court erred in admitting Officer Kennerly's testimony regarding the
HGN test results and the issue of defendant's impairment related thereto,
without requiring him to be qualified as an expert under Rule 702(a). Based on
the remaining evidence presented at trial, we further conclude a reasonable
possibility exists that, had the error not occurred, the jury would have
reached a different result. Defendant is entitled to a new trial.
NEW TRIAL.
ELMORE, Judge.
Judges STROUD and DIETZ concur.
- See more at:
http://caselaw.findlaw.com/nc-court-of-appeals/1732340.html#sthash.VkhJN9V7.dpuf
Court of Appeals of North Carolina.
STATE of North Carolina v. William Edward GODWIN, III, Defendant.
No. COA15–766.
Decided: April 19, 2016
Attorney General Roy Cooper, by Assistant Attorney General Teresa L.
Townsend, for the State. Rudolf Widenhouse & Fialko, by M. Gordon
Widenhouse Jr., for defendant.
Appeal by defendant from judgment entered 15 November 2013 by Judge
Gary M. Gavenus in Mecklenburg County Superior Court. Heard in the
Court of Appeals 27 January 2016. Mecklenburg County, No. 11 CRS 202887.
William
Edward Godwin, III (defendant), appeals his conviction for driving
while impaired following a jury trial in superior court. The question
for decision is whether Rule 702(a1) of the North Carolina Rules of
Evidence requires a witness to be qualified as an expert before he may
testify to the issue of impairment related to HGN test results. We hold
that it does.
I. Background
The State's evidence at trial
tended to show the following: On 18 January 2011, at approximately 10:14
p.m., Daniel Kennerly, an officer with the Charlotte Mecklenburg Police
Department, observed defendant driving fourteen miles per hour over the
posted speed limit and executed a traffic stop. When he approached the
vehicle, Officer Kennerly noticed that defendant's eyes were red and
glassy, and he detected a strong odor of alcohol coming from defendant's
breath. Officer Kennerly asked defendant where he was coming from and
how much alcohol, if any, he had consumed that evening. In response,
defendant stated that he had just left a restaurant where he had
consumed three beers. Officer Kennerly then asked defendant to step out
of his vehicle and began an investigation for impaired driving.
As
part of his investigation, Officer Kennerly administered three field
sobriety tests: the Horizontal Gaze Nystagmus (HGN) test, the
walk-and-turn, and the one-leg stand. He observed four out of six
possible indicators of impairment during the HGN test, six out of eight
possible indicators during the walk-and-turn, and two out of four
possible indicators during the one-leg stand. At that time, Officer
Kennerly placed defendant under arrest for driving while impaired and
transported him to the Mecklenburg County Sheriff's Office's Intoximeter
site to perform a EC/IR II breath test. The results of the Intoximeter
showed that defendant's blood-alcohol concentration was .08.
On 20
December 2011, defendant was convicted in Mecklenburg County District
Court of driving while impaired. He appealed to superior court, and the
matter came to trial at the 12 November 2013 Criminal Session of the
Superior Court for Mecklenburg County. At trial, defendant objected to
Officer Kennerly's HGN testimony, arguing that the officer had to be
qualified as an expert under Rule 702 of the North Carolina Rules of
Evidence before such testimony could be admitted. Over defendant's
objections, the trial court allowed Officer Kennerly to testify, based
on his training and experience, as to his administration of the HGN
test, the indicators of impairment, and his opinion regarding
defendant's impairment based on the indicators which he observed. At the
conclusion of the trial, the jury found defendant guilty of driving
while impaired. Defendant gave notice of appeal in open court.
II. Discussion
Defendant
first argues that the trial court erred in admitting Officer Kennerly's
testimony regarding the HGN test results. Specifically, defendant
maintains that Rule 702(a1) requires a party offering testimony about
the results of an HGN test to do so through a properly qualified witness
who has been accepted as an expert by the trial court. Defendant
contends, therefore, that in overruling his objection and allowing
Officer Kennerly to offer such testimony as a lay witness, the trial
court acted under a misapprehension of the law.
“Issues of
statutory construction are questions of law, reviewed de novo on
appeal.” McKoy v. McKoy, 202 N.C.App. 509, 511, 689 S.E.2d 590, 592
(2010) (citing Moody v. Sears Roebuck & Co., 191 N.C.App. 256, 264,
664 S.E.2d 569, 575 (2008)). “ ‘Under a de novo review, the court
considers the matter anew and freely substitutes its own judgment’ for
that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33,
669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd.
P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
The North
Carolina Supreme Court first addressed the admissibility of HGN evidence
in State v. Helms, 348 N.C. 578, 580, 504 S.E.2d 293, 294 (1998). On
discretionary review, the Court agreed with our conclusion that “the HGN
test does not measure behavior a lay person would commonly associate
with intoxication, but rather represents specialized knowledge that must
be presented to the jury by a qualified expert.” Id. at 581, 504 S.E.2d
at 295 (emphasis added); see also State v. Helms, 127 N.C.App. 375,
379, 490 S.E.2d 565, 568 (1997) (“[The HGN test] is based upon a
scientific principle that the extent and manner in which one's eye
quivers can be a reliable measure of the amount of alcohol one has
consumed.” (citation omitted)), rev'd on other grounds, 348 N.C. 578,
504 S.E.2d 293. This meant that under the prior version of Rule 702, the
State had to show, inter alia, that the methodology underlying the test
was “sufficiently reliable,” State v. Pennington, 327 N.C. 89, 98, 393
S.E.2d 847, 852 (1990) (citations omitted), and that it “can be properly
applied to the facts in issue,” State v. Goode, 341 N.C. 513, 527, 461
S.E.2d 631, 639 (1995) (citing Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993)). Where no evidence was
admitted, and no inquiry conducted, as to the reliability of HGN
testing, the Court held that it was error to admit an officer's
testimony regarding the results of the HGN test administered on the
defendant. Helms, 348 N.C. at 582, 504 S.E.2d at 295.
After Helms
was decided, the North Carolina General Assembly passed House Bill 1048,
which added subsection (a1) to Rule 702. 2006 Sess. Laws ch. 253, § 6.
Rule 702(a1) provides, in pertinent part, as follows:
(a1) A
witness, qualified under subsection (a) of this section and with proper
foundation, may give expert testimony solely on the issue of impairment
and not on the issue of specific alcohol concentration level relating to
the following:
(1) The results of a Horizontal Gaze Nystagmus
(HGN) Test when the test is administered by a person who has
successfully completed training in HGN.
N.C. Gen.Stat. § 8C–1,
Rule 702(a1) (2015). The first sentence of this subsection contemplates
that testimonial evidence concerning HGN test results be offered by an
expert witness. Although the prior version of Rule 702(a) was still in
effect when subsection (a1) was added, the bases on which a witness may
be qualified as an expert are the same under the current version. Rule
702(a), as amended, provides as follows:
(a) If scientific,
technical or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion, or otherwise,
if all of the following apply:
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and methods.
(3) The witness has applied the principles and methods reliably to the facts of the case.
N.C.
Gen.Stat. § 8C–1, Rule 702(a) (2015) (emphasis added); cf. N.C.
Gen.Stat. § 8C–1, Rule 702(a) (2009) (“[A] witness qualified as an
expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion.”).
In accordance with
Helms, therefore, Rule 702(a1) requires that before a witness can
testify as to the results of an HGN test, he must be “qualified as an
expert by knowledge, skill, experience, training, or education.” See
Helms, 348 N.C. at 580–81, 504 S.E.2d at 294–95. If the witness is so
qualified and “proper foundation” is established, the witness may “give
expert testimony ” as to the HGN test results, subject to the additional
limitations in subsection (a1). N.C. Gen.Stat. § 8C–1, Rule 702(a1)
(emphasis added). Namely, the expert witness may testify “solely on the
issue of impairment and not on the issue of specific alcohol
concentration,” and the HGN test must have been “administered by a
person who has successfully completed training in HGN.” Id. (emphasis
added).
In the case sub judice, although Officer Kennerly
completed a training course in DWI detection and standardized field
sobriety tests, there was never a formal offer by the State to tender
him as an expert witness. In fact, after conducting its own voir dire,
the trial court rejected defendant's contention that Officer Kennerly
must be qualified as an expert before testifying as to the results of
the HGN test:
THE COURT: I will allow this officer to testify that
he administered the HGN test, the walk-and-turn test, and the
one-legged test. He will be allowed to testify as to the indicators of
impairment he observed of this defendant in giving these tests. Anything
else?
MR. POWERS: I'd ask the Court to note my exception. Is the Court disqualifying him as an expert on the HGN?
THE COURT: I'm not—he doesn't have to be qualified as an expert. I'm not going to make that requirement.
Thereafter,
over defendant's objection, Officer Kennerly testified that he
“observed four out of six” possible clues during the HGN test, which
“indicates a probability that the person could be impaired as a result
of the consumption of alcohol.” Furthermore, based on his interactions
with defendant and defendant's performance on all of the field sobriety
tests, including the HGN test, Officer Kennerly opined that defendant's
“mental and physical faculties were appreciably impaired as a result of
the consumption of some impairing substance, that substance in this case
being alcohol.” Our application of Rule 702(a1) to the facts of this
case leads us to conclude that the trial court erred in allowing a
witness who had not been qualified as an expert under Rule 702(a) to
testify as to the issue of impairment based on the HGN test results.
The
State, relying on our decision in State v. Smart, 195 N.C.App. 752, 674
S.E.2d 684 (2009), disc. review denied, 363 N.C. 810, 692 S.E.2d 874
(2010), nevertheless argues for an interpretation of Rule 702(a1) that
would not require an arresting officer who administered the HGN test to
be qualified as an expert before testifying as to the HGN test results
and the issue of impairment related thereto. Unlike this case, however,
the arresting officer in Smart was qualified as an expert under Rule 702
before she testified as to her administration of the test. Id . at
755–56, 674 S.E.2d at 685–86. And although the defendant's argument, as
it was initially phrased, attacked the officer's qualifications as an
expert witness, the defendant's actual challenge went toward the
testimony itself: “[The defendant] in fact specifies that his argument
pertains to whether the officer's ‘method of proof’—that is, the
nystagmus testing—is sufficiently reliable as a basis for expert
testimony.” Id. at 755, 674 S.E .2d at 685; see also Goode, 341 N.C. at
529, 461 S.E.2d at 640 (“Once the trial court has determined that the
method of proof is sufficiently reliable as an area for expert
testimony, the next level of inquiry is whether the witness ․ is
qualified as an expert to apply this method to the specific facts of the
case.” (citing N.C. Gen.Stat. § 8C–1, Rule 702 (1992)). Addressing this
argument, we explained that, at least under the prior version of Rule
702(a), before admitting expert opinion testimony the trial court had to
make “a preliminary assessment of whether the reasoning or methodology
underlying the testimony is sufficiently valid.” Id. at 756, 674 S.E.2d
at 686 (quoting Goode, 341 N .C. at 527, 461 S.E.2d at 639); see also
N.C. Gen.Stat. § 8–C1, Rule 104(a) (2015) (“Preliminary questions
concerning the qualification of a person to be a witness ․ or the
admissibility of evidence shall be determined by the court, subject to
the provisions of subdivision (b).”). At that time, we interpreted
subsection (a1) “as obviating the need for the State to prove that the
HGN testing method is sufficiently reliable.” Id. Our holding in Smart
went no further, and it has no application here. While some may even
question whether Smart survives the amendment to Rule 702(a), that issue
is not the one presently before us.
Having concluded that the
trial court erred in admitting Officer Kennerly's testimony, we must now
determine whether the error was prejudicial so as to warrant a new
trial. “In order to establish prejudicial error in the erroneous
admission of the HGN evidence, defendant must show only that had the
error in question not been committed, a reasonable possibility exists
that a different result would have been reached at trial.” Helms, 348
N.C. at 583, 504 S.E.2d at 296 (citing N.C. Gen.Stat. § 15A–1443(a)
(1997)).
The remaining evidence presented at trial shows the
following: (1) Officer Kennerly stopped defendant for speeding; (2) when
Officer Kennerly initiated the stop, defendant activated his turn
signal, pulled onto the next side street, and came to a stop at roadside
in a safe location; (3) defendant was not weaving, and he made no sharp
or sudden turns to avoid the traffic stop; (4) two experts testified
that they would have expected to see some indicators of impairment which
defendant did not exhibit while operating the vehicle; (5) defendant
had no problem retrieving his license or registration; (6) defendant did
not tilt his head away from Officer Kennerly or otherwise try to avoid
contact with him; (7) Officer Kennerly noticed that defendant's eyes
were red and glassy, and he smelled a “strong odor of an alcoholic
beverage coming from his breath”; (8) one expert testified that “the
odor of alcohol is simply an indicator of presence of alcohol” and that
there is “no basis for an opinion that correlates the strength of an
odor to ․ blood alcohol concentration in the body”; (9) defendant told
Officer Kennerly that he had just left a restaurant where he had
consumed three beers that evening; (10) when asked to step out of the
vehicle, defendant removed his seatbelt without difficulty, he did not
use the doorframe or the vehicle for support while exiting, and he did
not stagger or sway once he was out of the vehicle; (11) Officer
Kennerly observed six out of eight possible clues during the
walk-and-turn test, and two out of four possible clues on the one-leg
stand test; (12) defendant repeatedly told Officer Kennerly that he had
to use the restroom, and two experts agreed that defendant's need to
urinate could have adversely affected his performance on the tests; (13)
one of the experts, who reviewed the video from Officer Kennerly's dash
camera, testified that Officer Kennerly should not have counted three
of the six clues he observed during the walk-and-turn test; that the
steep grade of the road where defendant performed the one-leg stand
could have adversely affected defendant's performance on the test; and
that the presence of traffic on the narrow road where the tests were
administered, along with the cold weather that evening, could also have
affected defendant's performance on the tests; (14) Helen Godwin,
defendant's mother, testified that when she saw defendant at the police
station, his eyes were not red or glassy, he did not smell of alcohol,
his speech was normal, and she did not believe he was impaired; (15)
after being placed under arrest and transported to the Intoximeter site,
defendant registered a .08 on the Intoximeter. Based on the foregoing,
particularly the conflicting evidence regarding defendant's performance
on the other field sobriety tests, we conclude a reasonable possibility
exists that, had the HGN test results not been admitted, a different
result would have been reached at trial.
B. Jury Instructions
Defendant
also contends that trial court erred in denying his request for the
following jury instruction concerning the results of the Intoximeter:
A
chemical analysis of defendant's breath obtained from an EC/IR–II,
which shows an alcohol concentration of 0.08 or more grams of alcohol
per 210 liters of breath, is deemed sufficient to prove defendant's
alcohol concentration. However, such chemical analysis does not compel
you to so find beyond a reasonable doubt. You are still at liberty to
consider the credibility and/or to give such chemical analysis when
considering whether the defendant's guilt has been proven beyond a
reasonable doubt.
According to defendant, the requested
instruction was necessary to inform the jury that the Intoximeter
results were sufficient to support a finding of impaired driving but did
not compel such a finding beyond a reasonable doubt. By charging the
jury using Pattern Jury Instruction 270. 20A, defendant claims the trial
court impressed upon the jury that it could not consider evidence which
showed that defendant was not impaired.
“When a defendant
requests a special jury instruction, ‘the trial court is not required to
give [the] requested instruction in the exact language of the request.
However, when the request is correct in law and supported by the
evidence in the case, the court must give the instruction in substance.’
“ State v. Beck, 233 N .C.App. 168, 171, 756 S.E.2d 80, 82 (alteration
in original) (quoting State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163,
174 (1976)), writ of supersedeas denied, disc. review denied, 367 N.C.
508, 759 S.E.2d 94 (2014). To establish error, therefore, the defendant
“must show that the requested instructions were not given in substance
and that substantial evidence supported the omitted instructions.” State
v. Garvick, 98 N.C.App. 556, 568, 392 S.E.2d 115, 122 (citing State v.
White, 77 N.C.App. 45, 52, 334 S.E.2d 786, 792, cert. denied, 315 N.C.
189, 337 S.E.2d 864 (1985)), aff'd per curiam, 327 N.C. 627, 398 S.E.2d
330 (1990). “The defendant also bears the burden of showing that the
jury was misled or misinformed by the instructions given.” Beck, 233
N.C.App. at 171, 756 S.E.2d at 82 (citing State v. Blizzard, 169
N.C.App. 285, 297, 610 S.E.2d 245, 253 (2005)).
As defendant
acknowledges in his brief, we have previously rejected his argument
concerning Pattern Jury Instruction 270. 20A. In Beck, we concluded that
the
trial court's use of the pattern jury instruction [270. 20A] informed
the jury that in order to return a verdict of guilty, it must be
convinced beyond a reasonable doubt that Defendant's alcohol
concentration was .08 or more. This instruction informed the jury, in
substance, that it was not compelled to return a guilty verdict based
simply on the chemical analysis results showing a .10 alcohol
concentration.
Beck, 233 N.C.App. at 171–72, 756 S.E.2d at 83. The
trial court also “informed the jury that it possessed the authority to
determine the weight of any evidence offered to show that Defendant
was—or was not—impaired.” Id. at 172, 756 S.E.2d at 83 (citations
omitted). Despite defendant's attempt to distinguish Beck from the case
sub judice, we are unable to do so. Accordingly, we reject defendant's
second argument. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d
30, 37 (1989) (“Where a panel of the Court of Appeals has decided the
same issue, albeit in a different case, a subsequent panel of the same
court is bound by that precedent, unless it has been overturned by a
higher court.”).
III. Conclusion
Although the trial court's
jury instructions were proper, we conclude that the trial court erred in
admitting Officer Kennerly's testimony regarding the HGN test results
and the issue of defendant's impairment related thereto, without
requiring him to be qualified as an expert under Rule 702(a). Based on
the remaining evidence presented at trial, we further conclude a
reasonable possibility exists that, had the error not occurred, the jury
would have reached a different result. Defendant is entitled to a new
trial.
NEW TRIAL.
ELMORE, Judge.
Judges STROUD and DIETZ concur.
- See more at: http://caselaw.findlaw.com/nc-court-of-appeals/1732340.html#sthash.VkhJN9V7.dpuf
Court of Appeals of North Carolina.
STATE of North Carolina v. William Edward GODWIN, III, Defendant.
No. COA15–766.
Decided: April 19, 2016
Attorney General Roy Cooper, by Assistant Attorney General Teresa L.
Townsend, for the State. Rudolf Widenhouse & Fialko, by M. Gordon
Widenhouse Jr., for defendant.
Appeal by defendant from judgment entered 15 November 2013 by Judge
Gary M. Gavenus in Mecklenburg County Superior Court. Heard in the
Court of Appeals 27 January 2016. Mecklenburg County, No. 11 CRS 202887.
William
Edward Godwin, III (defendant), appeals his conviction for driving
while impaired following a jury trial in superior court. The question
for decision is whether Rule 702(a1) of the North Carolina Rules of
Evidence requires a witness to be qualified as an expert before he may
testify to the issue of impairment related to HGN test results. We hold
that it does.
I. Background
The State's evidence at trial
tended to show the following: On 18 January 2011, at approximately 10:14
p.m., Daniel Kennerly, an officer with the Charlotte Mecklenburg Police
Department, observed defendant driving fourteen miles per hour over the
posted speed limit and executed a traffic stop. When he approached the
vehicle, Officer Kennerly noticed that defendant's eyes were red and
glassy, and he detected a strong odor of alcohol coming from defendant's
breath. Officer Kennerly asked defendant where he was coming from and
how much alcohol, if any, he had consumed that evening. In response,
defendant stated that he had just left a restaurant where he had
consumed three beers. Officer Kennerly then asked defendant to step out
of his vehicle and began an investigation for impaired driving.
As
part of his investigation, Officer Kennerly administered three field
sobriety tests: the Horizontal Gaze Nystagmus (HGN) test, the
walk-and-turn, and the one-leg stand. He observed four out of six
possible indicators of impairment during the HGN test, six out of eight
possible indicators during the walk-and-turn, and two out of four
possible indicators during the one-leg stand. At that time, Officer
Kennerly placed defendant under arrest for driving while impaired and
transported him to the Mecklenburg County Sheriff's Office's Intoximeter
site to perform a EC/IR II breath test. The results of the Intoximeter
showed that defendant's blood-alcohol concentration was .08.
On 20
December 2011, defendant was convicted in Mecklenburg County District
Court of driving while impaired. He appealed to superior court, and the
matter came to trial at the 12 November 2013 Criminal Session of the
Superior Court for Mecklenburg County. At trial, defendant objected to
Officer Kennerly's HGN testimony, arguing that the officer had to be
qualified as an expert under Rule 702 of the North Carolina Rules of
Evidence before such testimony could be admitted. Over defendant's
objections, the trial court allowed Officer Kennerly to testify, based
on his training and experience, as to his administration of the HGN
test, the indicators of impairment, and his opinion regarding
defendant's impairment based on the indicators which he observed. At the
conclusion of the trial, the jury found defendant guilty of driving
while impaired. Defendant gave notice of appeal in open court.
II. Discussion
Defendant
first argues that the trial court erred in admitting Officer Kennerly's
testimony regarding the HGN test results. Specifically, defendant
maintains that Rule 702(a1) requires a party offering testimony about
the results of an HGN test to do so through a properly qualified witness
who has been accepted as an expert by the trial court. Defendant
contends, therefore, that in overruling his objection and allowing
Officer Kennerly to offer such testimony as a lay witness, the trial
court acted under a misapprehension of the law.
“Issues of
statutory construction are questions of law, reviewed de novo on
appeal.” McKoy v. McKoy, 202 N.C.App. 509, 511, 689 S.E.2d 590, 592
(2010) (citing Moody v. Sears Roebuck & Co., 191 N.C.App. 256, 264,
664 S.E.2d 569, 575 (2008)). “ ‘Under a de novo review, the court
considers the matter anew and freely substitutes its own judgment’ for
that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33,
669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd.
P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
The North
Carolina Supreme Court first addressed the admissibility of HGN evidence
in State v. Helms, 348 N.C. 578, 580, 504 S.E.2d 293, 294 (1998). On
discretionary review, the Court agreed with our conclusion that “the HGN
test does not measure behavior a lay person would commonly associate
with intoxication, but rather represents specialized knowledge that must
be presented to the jury by a qualified expert.” Id. at 581, 504 S.E.2d
at 295 (emphasis added); see also State v. Helms, 127 N.C.App. 375,
379, 490 S.E.2d 565, 568 (1997) (“[The HGN test] is based upon a
scientific principle that the extent and manner in which one's eye
quivers can be a reliable measure of the amount of alcohol one has
consumed.” (citation omitted)), rev'd on other grounds, 348 N.C. 578,
504 S.E.2d 293. This meant that under the prior version of Rule 702, the
State had to show, inter alia, that the methodology underlying the test
was “sufficiently reliable,” State v. Pennington, 327 N.C. 89, 98, 393
S.E.2d 847, 852 (1990) (citations omitted), and that it “can be properly
applied to the facts in issue,” State v. Goode, 341 N.C. 513, 527, 461
S.E.2d 631, 639 (1995) (citing Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993)). Where no evidence was
admitted, and no inquiry conducted, as to the reliability of HGN
testing, the Court held that it was error to admit an officer's
testimony regarding the results of the HGN test administered on the
defendant. Helms, 348 N.C. at 582, 504 S.E.2d at 295.
After Helms
was decided, the North Carolina General Assembly passed House Bill 1048,
which added subsection (a1) to Rule 702. 2006 Sess. Laws ch. 253, § 6.
Rule 702(a1) provides, in pertinent part, as follows:
(a1) A
witness, qualified under subsection (a) of this section and with proper
foundation, may give expert testimony solely on the issue of impairment
and not on the issue of specific alcohol concentration level relating to
the following:
(1) The results of a Horizontal Gaze Nystagmus
(HGN) Test when the test is administered by a person who has
successfully completed training in HGN.
N.C. Gen.Stat. § 8C–1,
Rule 702(a1) (2015). The first sentence of this subsection contemplates
that testimonial evidence concerning HGN test results be offered by an
expert witness. Although the prior version of Rule 702(a) was still in
effect when subsection (a1) was added, the bases on which a witness may
be qualified as an expert are the same under the current version. Rule
702(a), as amended, provides as follows:
(a) If scientific,
technical or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion, or otherwise,
if all of the following apply:
(1) The testimony is based upon sufficient facts or data.
(2) The testimony is the product of reliable principles and methods.
(3) The witness has applied the principles and methods reliably to the facts of the case.
N.C.
Gen.Stat. § 8C–1, Rule 702(a) (2015) (emphasis added); cf. N.C.
Gen.Stat. § 8C–1, Rule 702(a) (2009) (“[A] witness qualified as an
expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion.”).
In accordance with
Helms, therefore, Rule 702(a1) requires that before a witness can
testify as to the results of an HGN test, he must be “qualified as an
expert by knowledge, skill, experience, training, or education.” See
Helms, 348 N.C. at 580–81, 504 S.E.2d at 294–95. If the witness is so
qualified and “proper foundation” is established, the witness may “give
expert testimony ” as to the HGN test results, subject to the additional
limitations in subsection (a1). N.C. Gen.Stat. § 8C–1, Rule 702(a1)
(emphasis added). Namely, the expert witness may testify “solely on the
issue of impairment and not on the issue of specific alcohol
concentration,” and the HGN test must have been “administered by a
person who has successfully completed training in HGN.” Id. (emphasis
added).
In the case sub judice, although Officer Kennerly
completed a training course in DWI detection and standardized field
sobriety tests, there was never a formal offer by the State to tender
him as an expert witness. In fact, after conducting its own voir dire,
the trial court rejected defendant's contention that Officer Kennerly
must be qualified as an expert before testifying as to the results of
the HGN test:
THE COURT: I will allow this officer to testify that
he administered the HGN test, the walk-and-turn test, and the
one-legged test. He will be allowed to testify as to the indicators of
impairment he observed of this defendant in giving these tests. Anything
else?
MR. POWERS: I'd ask the Court to note my exception. Is the Court disqualifying him as an expert on the HGN?
THE COURT: I'm not—he doesn't have to be qualified as an expert. I'm not going to make that requirement.
Thereafter,
over defendant's objection, Officer Kennerly testified that he
“observed four out of six” possible clues during the HGN test, which
“indicates a probability that the person could be impaired as a result
of the consumption of alcohol.” Furthermore, based on his interactions
with defendant and defendant's performance on all of the field sobriety
tests, including the HGN test, Officer Kennerly opined that defendant's
“mental and physical faculties were appreciably impaired as a result of
the consumption of some impairing substance, that substance in this case
being alcohol.” Our application of Rule 702(a1) to the facts of this
case leads us to conclude that the trial court erred in allowing a
witness who had not been qualified as an expert under Rule 702(a) to
testify as to the issue of impairment based on the HGN test results.
The
State, relying on our decision in State v. Smart, 195 N.C.App. 752, 674
S.E.2d 684 (2009), disc. review denied, 363 N.C. 810, 692 S.E.2d 874
(2010), nevertheless argues for an interpretation of Rule 702(a1) that
would not require an arresting officer who administered the HGN test to
be qualified as an expert before testifying as to the HGN test results
and the issue of impairment related thereto. Unlike this case, however,
the arresting officer in Smart was qualified as an expert under Rule 702
before she testified as to her administration of the test. Id . at
755–56, 674 S.E.2d at 685–86. And although the defendant's argument, as
it was initially phrased, attacked the officer's qualifications as an
expert witness, the defendant's actual challenge went toward the
testimony itself: “[The defendant] in fact specifies that his argument
pertains to whether the officer's ‘method of proof’—that is, the
nystagmus testing—is sufficiently reliable as a basis for expert
testimony.” Id. at 755, 674 S.E .2d at 685; see also Goode, 341 N.C. at
529, 461 S.E.2d at 640 (“Once the trial court has determined that the
method of proof is sufficiently reliable as an area for expert
testimony, the next level of inquiry is whether the witness ․ is
qualified as an expert to apply this method to the specific facts of the
case.” (citing N.C. Gen.Stat. § 8C–1, Rule 702 (1992)). Addressing this
argument, we explained that, at least under the prior version of Rule
702(a), before admitting expert opinion testimony the trial court had to
make “a preliminary assessment of whether the reasoning or methodology
underlying the testimony is sufficiently valid.” Id. at 756, 674 S.E.2d
at 686 (quoting Goode, 341 N .C. at 527, 461 S.E.2d at 639); see also
N.C. Gen.Stat. § 8–C1, Rule 104(a) (2015) (“Preliminary questions
concerning the qualification of a person to be a witness ․ or the
admissibility of evidence shall be determined by the court, subject to
the provisions of subdivision (b).”). At that time, we interpreted
subsection (a1) “as obviating the need for the State to prove that the
HGN testing method is sufficiently reliable.” Id. Our holding in Smart
went no further, and it has no application here. While some may even
question whether Smart survives the amendment to Rule 702(a), that issue
is not the one presently before us.
Having concluded that the
trial court erred in admitting Officer Kennerly's testimony, we must now
determine whether the error was prejudicial so as to warrant a new
trial. “In order to establish prejudicial error in the erroneous
admission of the HGN evidence, defendant must show only that had the
error in question not been committed, a reasonable possibility exists
that a different result would have been reached at trial.” Helms, 348
N.C. at 583, 504 S.E.2d at 296 (citing N.C. Gen.Stat. § 15A–1443(a)
(1997)).
The remaining evidence presented at trial shows the
following: (1) Officer Kennerly stopped defendant for speeding; (2) when
Officer Kennerly initiated the stop, defendant activated his turn
signal, pulled onto the next side street, and came to a stop at roadside
in a safe location; (3) defendant was not weaving, and he made no sharp
or sudden turns to avoid the traffic stop; (4) two experts testified
that they would have expected to see some indicators of impairment which
defendant did not exhibit while operating the vehicle; (5) defendant
had no problem retrieving his license or registration; (6) defendant did
not tilt his head away from Officer Kennerly or otherwise try to avoid
contact with him; (7) Officer Kennerly noticed that defendant's eyes
were red and glassy, and he smelled a “strong odor of an alcoholic
beverage coming from his breath”; (8) one expert testified that “the
odor of alcohol is simply an indicator of presence of alcohol” and that
there is “no basis for an opinion that correlates the strength of an
odor to ․ blood alcohol concentration in the body”; (9) defendant told
Officer Kennerly that he had just left a restaurant where he had
consumed three beers that evening; (10) when asked to step out of the
vehicle, defendant removed his seatbelt without difficulty, he did not
use the doorframe or the vehicle for support while exiting, and he did
not stagger or sway once he was out of the vehicle; (11) Officer
Kennerly observed six out of eight possible clues during the
walk-and-turn test, and two out of four possible clues on the one-leg
stand test; (12) defendant repeatedly told Officer Kennerly that he had
to use the restroom, and two experts agreed that defendant's need to
urinate could have adversely affected his performance on the tests; (13)
one of the experts, who reviewed the video from Officer Kennerly's dash
camera, testified that Officer Kennerly should not have counted three
of the six clues he observed during the walk-and-turn test; that the
steep grade of the road where defendant performed the one-leg stand
could have adversely affected defendant's performance on the test; and
that the presence of traffic on the narrow road where the tests were
administered, along with the cold weather that evening, could also have
affected defendant's performance on the tests; (14) Helen Godwin,
defendant's mother, testified that when she saw defendant at the police
station, his eyes were not red or glassy, he did not smell of alcohol,
his speech was normal, and she did not believe he was impaired; (15)
after being placed under arrest and transported to the Intoximeter site,
defendant registered a .08 on the Intoximeter. Based on the foregoing,
particularly the conflicting evidence regarding defendant's performance
on the other field sobriety tests, we conclude a reasonable possibility
exists that, had the HGN test results not been admitted, a different
result would have been reached at trial.
B. Jury Instructions
Defendant
also contends that trial court erred in denying his request for the
following jury instruction concerning the results of the Intoximeter:
A
chemical analysis of defendant's breath obtained from an EC/IR–II,
which shows an alcohol concentration of 0.08 or more grams of alcohol
per 210 liters of breath, is deemed sufficient to prove defendant's
alcohol concentration. However, such chemical analysis does not compel
you to so find beyond a reasonable doubt. You are still at liberty to
consider the credibility and/or to give such chemical analysis when
considering whether the defendant's guilt has been proven beyond a
reasonable doubt.
According to defendant, the requested
instruction was necessary to inform the jury that the Intoximeter
results were sufficient to support a finding of impaired driving but did
not compel such a finding beyond a reasonable doubt. By charging the
jury using Pattern Jury Instruction 270. 20A, defendant claims the trial
court impressed upon the jury that it could not consider evidence which
showed that defendant was not impaired.
“When a defendant
requests a special jury instruction, ‘the trial court is not required to
give [the] requested instruction in the exact language of the request.
However, when the request is correct in law and supported by the
evidence in the case, the court must give the instruction in substance.’
“ State v. Beck, 233 N .C.App. 168, 171, 756 S.E.2d 80, 82 (alteration
in original) (quoting State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163,
174 (1976)), writ of supersedeas denied, disc. review denied, 367 N.C.
508, 759 S.E.2d 94 (2014). To establish error, therefore, the defendant
“must show that the requested instructions were not given in substance
and that substantial evidence supported the omitted instructions.” State
v. Garvick, 98 N.C.App. 556, 568, 392 S.E.2d 115, 122 (citing State v.
White, 77 N.C.App. 45, 52, 334 S.E.2d 786, 792, cert. denied, 315 N.C.
189, 337 S.E.2d 864 (1985)), aff'd per curiam, 327 N.C. 627, 398 S.E.2d
330 (1990). “The defendant also bears the burden of showing that the
jury was misled or misinformed by the instructions given.” Beck, 233
N.C.App. at 171, 756 S.E.2d at 82 (citing State v. Blizzard, 169
N.C.App. 285, 297, 610 S.E.2d 245, 253 (2005)).
As defendant
acknowledges in his brief, we have previously rejected his argument
concerning Pattern Jury Instruction 270. 20A. In Beck, we concluded that
the
trial court's use of the pattern jury instruction [270. 20A] informed
the jury that in order to return a verdict of guilty, it must be
convinced beyond a reasonable doubt that Defendant's alcohol
concentration was .08 or more. This instruction informed the jury, in
substance, that it was not compelled to return a guilty verdict based
simply on the chemical analysis results showing a .10 alcohol
concentration.
Beck, 233 N.C.App. at 171–72, 756 S.E.2d at 83. The
trial court also “informed the jury that it possessed the authority to
determine the weight of any evidence offered to show that Defendant
was—or was not—impaired.” Id. at 172, 756 S.E.2d at 83 (citations
omitted). Despite defendant's attempt to distinguish Beck from the case
sub judice, we are unable to do so. Accordingly, we reject defendant's
second argument. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d
30, 37 (1989) (“Where a panel of the Court of Appeals has decided the
same issue, albeit in a different case, a subsequent panel of the same
court is bound by that precedent, unless it has been overturned by a
higher court.”).
III. Conclusion
Although the trial court's
jury instructions were proper, we conclude that the trial court erred in
admitting Officer Kennerly's testimony regarding the HGN test results
and the issue of defendant's impairment related thereto, without
requiring him to be qualified as an expert under Rule 702(a). Based on
the remaining evidence presented at trial, we further conclude a
reasonable possibility exists that, had the error not occurred, the jury
would have reached a different result. Defendant is entitled to a new
trial.
NEW TRIAL.
ELMORE, Judge.
Judges STROUD and DIETZ concur.
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