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STATE of North Carolina, v. Melvin Leroy FOWLER, Defendant.
Melvin Leroy Fowler (“Defendant”) appeals following a jury verdict finding him guilty of driving while impaired (“DWI”). On appeal, Defendant contends the trial court erred by: (1) instructing the jury on a theory of impaired driving unsupported by the evidence, thus violating Defendant's constitutional right to a unanimous jury verdict; and (2) allowing Officer Monroe to testify as an expert witness about the horizontal gaze nystagmus (“HGN”) test. For the following reasons, we find no reversible error.
I. Factual and Procedural Background
On 19 June 2014, Officer R. P. Monroe of the Raleigh Police Department (“RPD”) stopped Defendant and arrested him for DWI. On 24 February 2015, Wake County District Court Judge James R. Fullwood found Defendant guilty of DWI. Defendant appealed to superior court for a jury trial, pursuant to N.C. Gen. Stat. § 15A-1431 (2017).
On 1 March 2016, the trial court called Defendant's case for trial. The State called Officer Monroe. On Thursday, 19 July 2014, Officer Monroe worked the night shift for the RPD. Aware the Wake County Sheriff's Office set up a checkpoint on Gorman Street, Officer Monroe visited the checkpoint to see if he could assist.
Officer Monroe rode down Avent Ferry Road on his motorcycle. When he was less than a half a mile from Gorman Street, he came to a point where Crest Road T-intersects with Avent Ferry Road. Officer Monroe saw Defendant's truck on Crest Road. Defendant pulled out in front of Officer Monroe's motorcycle. Officer Monroe “lock[ed] the bike up”1 , “ma[d]e an evasive maneuver”, and “dip[ped]” into the right lane to avoid hitting Defendant's truck. Officer Monroe's motorcycle and Defendant's truck came within “maybe two or three feet” of each other. Officer Monroe activated his blue lights and stopped Defendant for unsafe movement. Defendant stopped his truck at a stop sign at the intersection of Avent Ferry Road and Champion Court.
Officer Monroe introduced himself and explained he stopped Defendant because Defendant almost ran into his motorcycle. Officer Monroe saw Defendant's red, glassy eyes. He smelled a “medium” odor of alcohol on Defendant's breath. Defendant spoke with slurred speech. Officer Monroe asked Defendant why he pulled out in front of his motorcycle. Defendant remarked Officer Monroe had enough room and he “was catching [Officer Monroe's] curiosity.”
Officer Monroe asked Defendant if he drank any alcohol that night. Defendant responded “one to two” servings of Jägermeister, and he was only driving a short distance. Officer Monroe asked Defendant to get out of his truck to participate in a series of field sobriety tests. Defendant agreed.
Officer Monroe conducted three field sobriety tests: HGN, walk-and-turn, and one-leg stand. Officer Monroe testified as to his training for the HGN test. Officer Monroe trained for the HGN test at the Raleigh Police Academy. In August 2007, Officer Monroe earned his certification to perform the test. In June 2010, Officer Monroe took a “more advanced class[,]” Advanced Roadside Impaired Driving Enforcement. Officer Monroe also attended “[n]umerous ․ refreshers and training ․” The State moved to tender Officer Monroe as an expert “in the administration and interpretation of the horizontal gaze nystagmus test.” Defendant objected and conducted voir dire, asking Officer Monroe if he had any medical training. Following voir dire, Defendant objected on the basis Officer Monroe did not have “any medical training dealing with the eyes.” The court overruled Defendant's objection because Officer Monroe was “not being offered as a medical expert.”
Officer Monroe conducted the HGN test. Officer Monroe turned Defendant away from traffic, so passing headlights did not affect Defendant's eyes. He directed Defendant to stand facing him, with his feet together and hands to the side. Officer Monroe elevated Defendant's head slightly and held his finger in front of Defendant. He informed Defendant he was going to move his finger from left to right and instructed Defendant to follow his finger with Defendant's eyes. Defendant stated he understood the instructions, and Officer Monroe started the test. During the test, Defendant displayed a lack of “smooth pursuit” in both eyes, which Officer Monroe considered “two clues.” Defendant ultimately displayed six out of six possible clues, three in each eye. Based on this test and the odor of alcohol, Officer Monroe concluded Defendant “had an impairing amount of alcohol in his system.”
Officer Monroe also conducted two “divided attention” tests. The first test is the walk-and-turn. Officer Monroe instructed Defendant to place his left foot in front, with both hands to his sides, and move his right foot heel-to-toe. Officer Monroe told Defendant to stay in the heel-to-toe position while he gave Defendant further instructions. Officer Monroe next instructed Defendant to take nine heel-to-toe steps while keeping his hands at his sides, and counting out loud.
Defendant failed to follow instructions. Defendant swayed and stepped out of the starting stance. Officer Monroe instructed Defendant to return to the starting stance. Defendant then started the test too soon, stepped out of position, and lost his balance. Officer Monroe again instructed Defendant to stand in the starting position, but Defendant stepped out. The third time Officer Monroe instructed Defendant to get back in starting position, Defendant told Officer Monroe he could not do the test. Defendant then told Officer Monroe he was not going to do the test without his kneepads. Officer Monroe concluded the test.
Officer Monroe asked Defendant if he was willing to do the one-leg stand test. Defendant agreed. Officer Monroe instructed Defendant to keep his feet together, put his hands to his side, and stay in that position. Defendant was then to lift one foot with his toes pointed to the ground, and keep his foot parallel with the ground. While looking at his foot, Defendant would count to three. Next, Defendant should put his foot down and repeat the lift, as he continued counting from where he left off.
Defendant swayed when Officer Monroe started the test. Defendant also failed to follow the instructions. Defendant “barely got his foot off the ground” and failed to look down at his toes. When Officer Monroe instructed Defendant to lift his foot six inches off the ground, Defendant told Officer Monroe he did not know how much six inches was. Officer Monroe offered to demonstrate the test again. Defendant said he no longer wanted to do the test.
Officer Monroe told Defendant he would like to take a preliminary sample of Defendant's breath. He explained this test was not admissible in court, but rather just a test for positive or negative of alcohol. Defendant refused.
Officer Monroe arrested Defendant for DWI. After booking Defendant, Officer Monroe brought Defendant into the DWI testing room. He presented Defendant with a form for implied consent. Officer Monroe read Defendant his rights. Defendant signed the form, acknowledging he understood his rights. Defendant then placed a call. Officer Monroe did not know if Defendant called someone to observe the administration of tests.
Thirty minutes later, Officer Monroe administered the Intoxilyzer test. Officer Monroe instructed Defendant on how to correctly blow into the breathalyzer. However, Defendant stopped blowing air into the instrument before Officer Monroe told him to stop. The instrument “shut[ ] down” and displayed “insufficient sample.” Officer Monroe again instructed Defendant on how to correctly blow into the instrument. Defendant said he had cancer, which prevented him from properly blowing into the instrument. Defendant then told Officer Monroe he was not going to blow into the instrument. Officer Monroe explained to Defendant his breathing was sufficient, but Defendant prematurely stopped blowing. Officer Monroe told Defendant if Defendant did not blow into the instrument, he was “going to refuse him.” “Refusing” constitutes pressing the refusal button on the instrument, which indicates Defendant's “willful refusal not to provide a breath sample on the instrument for the purposes of a DWI investigation.”
The State rested, and Defendant moved to dismiss the case. The trial court denied Defendant's motion to dismiss. Defendant did not present any evidence. Defendant renewed his motion to dismiss, and the trial court denied Defendant's motion.
When discussing jury instructions, the State requested “the .08 instruction.” Defendant objected to the .08 instruction, because “there was no evidence to [any] sort of an actual number of any blood alcohol level ․” The trial court decided it would use the .08 instruction and reasoned:
Well, if you argue they haven't shown .08 I'm going to give that instruction or they haven't shown his blood alcohol content I will give that instruction because you can't have it both ways. You can't -- you can't object to the instruction and argue that they haven't shown his [blood alcohol content] because there [is] more than one way to prove the offense.
The jury found Defendant guilty of DWI. Defendant admitted to the existence of two driving while impaired convictions. Defendant also admitted to the aggravating fact of driving while license revoked due to a DWI conviction. The trial court sentenced Defendant as an Aggravated Level One offender and sentenced him to 24 months imprisonment. Defendant gave timely oral notice of appeal.
II. Standard of Review
Challenges to the trial court's “decisions regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009) (citations omitted). In a de novo review, this 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)(internal quotation marks and citation omitted).
“It is well settled that de novo review is ordinarily appropriate in cases where constitutional rights are implicated.” Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (citations omitted). If an error is preserved for review, but does not arise under the Constitution of the United States, we review for prejudicial error. N.C. Gen. Stat. § 15A-1443(a) (2017). If the error arises under the Constitution, we must find the error harmless beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1443(b) (2017).
Lastly, we typically review the trial court's ruling on expert testimony under Rule 702 for abuse of discretion. State v. McGrady, 368 N.C. 880, 893, 787 S.E.2d 1, 11 (2016) (citation omitted). “ ‘[A] trial court may be reversed for abuse of discretion only upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision.’ ” Id. at 893, 787 S.E.2d at 11 (quoting State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986)). However, “[w]here the [defendant] contends the trial court's decision is based on an incorrect reading and interpretation of the rule governing admissibility of expert testimony, the standard of review on appeal is de novo.” State v. Torrence, 247 N.C. App. 232, 234, 786 S.E.2d 40, 41 (2016) (quotation marks and citations omitted).
We review Defendant's contentions in two parts: (A) jury instructions for impaired driving under N.C. Gen. Stat. § 20-138.1 (a)(2); and (B) Officer Monroe's expert testimony about the HGN test.
A. Jury Instructions for Impaired Driving
On appeal, Defendant contends the trial court erred by instructing the jury on driving while impaired under N.C. Gen. Stat. § 20-138.1 (a)(2), which violated Defendant's constitutional right to an unanimous jury verdict. We address Defendant's contentions about the jury instructions together and find no reversible error.
N.C. Gen. Stat. § 20-138.1(a) states:
A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed a sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or
(3) With any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.
N.C. Gen. Stat. § 138.1(a).
“Both the North Carolina Constitution and the North Carolina General Statutes protect the right of the accused to be convicted only by a unanimous jury in open court.” State v. Walters, 368 N.C. 749, 752-53, 782 S.E.2d 505, 507 (2016) (citing N.C. Const. art. I, § 24; N.C. Gen. Stat. § 15A-1237(b)). “But it does not follow from these constitutional and statutory guarantees that every disjunctive jury instruction violates one or both of those guarantees.” Id. at 753, 782 S.E.2d at 507.
As explained by our Supreme Court:
a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense.
[I]f the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.
Id. at 753, 782 S.E.2d at 507-08 (internal quotation marks, citations, and emphases omitted).
Typically, disjunctive jury instructions for impaired driving are permissible. State v. Oliver, 343 N.C. 202, 215, 470 S.E.2d 16, 24 (1996). When a disjunctive jury instruction is permitted, the State must still present evidence to support both theories. State v. Johnson, 183 N.C. App. 576, 582, 646 S.E.2d 123, 127 (2007).
Here, the State specifically requested the .08 instruction “just so [counsel could] use it in [his] argument.” Defendant objected because “there was no evidence to sort of an actual number of any blood alcohol level ․” The trial court overruled Defendant's objection and instructed the jury, inter alia, as follows:
The defendant has been charged with impaired driving. For you to find the defendant guilty of this offense the state must prove three things beyond a reasonable doubt:
First, that the defendant was driving a vehicle.
Second, that the defendant was driving that vehicle upon a highway or street within the state.
And third, that the defendant was driving that vehicle, (1) that the defendant was under the influence of an impairing substance. Alcohol is an impairing substance. The defendant is under the influence of an impairing substance when the defendant has consumed a sufficient quantity of that impairing substance to cause the defendant to lose the normal control of the defendant's bodily or mental faculties or both to such an extent that there is an appreciable impairment of either or both of these faculties, or (2) that the defendant had consumed sufficient alcohol that at any relevant time after driving the defendant had an alcohol concentration of 0.08 or more grams of alcohol per 210 liters of breath. A relevant time is any time after driving that the driver still has in the driver's body alcohol consumed before or during driving. If the evidence tends to show that a chemical test known as an Intoxilyzer was offered to the defendant by a law enforcement officer and that the defendant refused to take the test or that the defendant refused to perform a field sobriety test at the request of an officer, you may consider this evidence together with all other evidence in determining whether the defendant was under the influence of an impairing substance at the time that the defendant drove a motor vehicle.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant drove a vehicle on a highway or street in the state and that when doing so the defendant was under the influence of an impairing substance or that the defendant had consumed sufficient alcohol that at any relevant time after driving the defendant had an alcohol concentration of 0.08 or more grams of alcohol per 210 liters of the breath, it would be your duty to return a verdict of guilty. If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.
Defendant argues the trial court erred in instructing the jury under N.C. Gen. Stat. § 20-138.1 (a)(2), and such error is reversible error. The State concedes the trial court erred in its jury instructions. However, the State contends any error does not amount to reversible error and Defendant is not entitled to a new trial.
We agree with both Defendant and State and hold the trial court erred in instructing the jury under both N.C. Gen. Stat. § 20-138.1(a)(1) and (a)(2). Although disjunctive jury instructions are generally permissible for impaired driving, in this case, the State presented no evidence supporting the section 20-138.1(a)(2) instruction. Compare Oliver, 343 N.C. at 215, 470 S.E.2d at 24, with Johnson, 183 N.C. App. at 582, 646 S.E.2d at 127. Defendant did not properly participate in the Intoxilyzer test, and the State introduced no evidence of blood alcohol tests. As such, the trial court improperly instructed the jury on alternate theories, one of which the evidence did not support.
Next, we must determine whether this error requires us to vacate Defendant's conviction and grant him a new trial. The North Carolina Supreme Court addressed the issue of reviewing unsupported jury instructions for prejudicial error in State v. Malachi, ––– N.C. ––––, 821 S.E.2d 407 (2018). In Malachi, the Supreme Court acknowledged case law which “consistently grant[ed] appellate relief in the event that a trial judge allows the jury to convict a defendant on the basis of a legal theory that lacks sufficient evidentiary support without explicitly engaging in any sort of prejudice inquiry.” Id. at ––––, ––– S.E.2d at ––––, slip op. at *21-*22. See also State v. Jefferies, 243 N.C. App. 455, 464-65, 776 S.E.2d 872, 880 (2015); Johnson, 183 N.C. App. at 585, 646 S.E.2d at 128; State v. Hughes, 114 N.C. App. 742, 746, 443 S.E.2d 76, 79 (1994); State v. O'Rourke, 114 N.C. App. 435, 442, 442 S.E.2d 137, 140 (1994) (citation omitted); State v. Petersilie, 334 N.C. 169, 193, 432 S.E.2d 832, 846 (1993) (citations omitted); State v. Lynch, 327 N.C. 210, 219, 393 S.E.2d 811, 816 (1990) (holding such error entitled defendant to a new trial); State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987) (citation omitted). See also State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995) (citation omitted) (“Where jury instructions are given without supporting evidence, a new trial is required.”). The Supreme Court, however, highlighted none of the decisions “explicitly hold[ ] that a prejudice inquiry would be inappropriate in such instances, and a number of them contain language that suggest that such a prejudice analysis should be conducted.” Malachi, ––– N.C. at ––––, ––– S.E.2d at ––––, slip op. at *22 (footnote and citations omitted).
In reviewing what amounts to prejudicial error, the Supreme Court stated “this Court has generally refrained from finding prejudicial error per se even in the face of serious evidentiary and instructional errors.” Id. at ––––, ––– S.E.2d at ––––, slip op. at *26. Accordingly, the Supreme Court held Malachi's challenge to the unsupported jury instruction was “subject to traditional harmless error analysis.” Id. at ––––, ––– S.E.2d at ––––, slip op. at *29. The Supreme Court further stated:
As a general proposition, a defendant seeking to obtain appellate relief on the basis of an error to which he or she lodged an appropriate contemporaneous objection at trial must establish that “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” N.C.G.S. § 15A-1443(a) (2017). However, the history of this Court's decisions in cases involving the submission of similar erroneous instructions and our consistent insistence that jury verdicts concerning a defendant's guilt or innocence have an adequate evidentiary foundation persuade us that instructional errors like the one at issue in this case are exceedingly serious and merit close scrutiny to ensure that there is no “reasonable possibility” that the jury convicted the defendant on the basis of such an unsupported legal theory. However, in the event that the State presents exceedingly strong evidence of defendant's guilt on the basis of a theory that has sufficient support and the State's evidence is neither in dispute nor subject to serious credibility-related questions, it is unlikely that a reasonable jury would elect to convict the defendant on the basis of an unsupported legal theory.
Id. at ––––, ––– S.E.2d at ––––, slip op. at *31-*32 (footnotes omitted).
While there is evidence Defendant was not impaired—Defendant complained of knee pain and told Officer Monroe he needed his knee pads to complete the sobriety tests—we conclude Defendant did not meet his burden of proving there is a reasonable possibility in that absence of the erroneous instruction, the jury would have acquitted Defendant. Additionally, we conclude the State met its burden of proving the error was harmless beyond a reasonable doubt.
B. Expert Testimony
Defendant next argues the trial court erred by allowing Officer Monroe to testify as an expert in “the administration and interpretation” of the HGN test. Specifically, Defendant contends the court failed to apply the revised version of Rule 702 in reviewing Officer Monroe's qualifications and Officer Monroe's testimony does not establish the reliability needed for Rule 702.
Rule 702 of the North Carolina Rules of Evidence governs expert testimony. In 2006, the General Assembly amended the rule and added subsection (a1), which specifically addresses expert witnesses for HGN tests and states:
(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. R. Evid. 702 (a1) (2007). Our Court held the amendment “obviat[ed] the need for the State to prove that the HGN testing method is sufficiently reliable.” State v. Smart, 195 N.C. App. 752, 756, 674 S.E.2d 684, 686 (2009).
In 2011, the General Assembly amended subsection (a) of Rule 702, adopting the federal standard for expert witness testimony from Daubert. 2011 N.C. Sess. Laws ch. 283 § 1.3; McGrady, 368 N.C. at 884, 787 S.E.2d at 5 (holding the 2011 amendment adopted the federal standard for expert witnesses). Subsection (a) now states:
(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. R. Evid. 702 (a) (2017).
Our Supreme Court recently addressed how courts should read subsection (a) and (a1) together, following our State's adoption of Daubert. State v. Godwin, 369 N.C. 604, 800 S.E.2d 47 (2017). In Godwin, the Supreme Court stated “with the 2006 amendment to Rule 702, our General Assembly clearly signaled that the results of the HGN are sufficiently reliable to be admitted into the courts of this State.” Id. at 613, 800 S.E.2d at 53 (citations omitted). However, the Supreme Court did not decide whether Smart’s holding survived the 2011 amendment to subsection (a). Our Court addressed this issue in State v. Younts, ––– N.C. App. ––––, 803 S.E.2d 641 (2017). We reviewed how the Supreme Court “construed subsections (a) and (a1) [of Rule 702] together and reasoned that the General Assembly sought to ‘allow testimony from an individual who has successfully completed training in HGN and meets the criteria set forth in Rule 702(a) ․’ ” Id. at ––––, 803 S.E.2d at 646 (quoting Godwin, 369 N.C. at 609, 800 S.E.2d at 50) (ellipses in original). This Court stated “it appears that the ruling of Smart has survived the General Assembly's 2011 amendment designating our State a Daubert State.” Id. at ––––, 803 S.E.2d at 648.
Most recently, in State v. Barker, ––– N.C. App. ––––, 809 S.E.2d 171 (2017), defendant argued the testifying officer “failed to provide the trial court with the necessary foundation to establish the reliability of the HGN test.” Id. at ––––, 809 S.E.2d at 175. Our Court disagreed, stating “[u]nder McGrady and subsequent cases, such a finding is simply unnecessary.” Id. at ––––, 809 S.E.2d at 175. “Because Rule 702 established that HGN tests are sufficiently reliable to be admitted in our courts,” we concluded the trial court did not abuse its discretion in admitting testimony about the results of the HGN test. Id. at ––––, 809 S.E.2d at 175.
Defendant contends this argument is preserved for appellate review because he objected at trial. During Officer Monroe's testimony, the State questioned Officer Monroe about whether the HGN test is a “reliable indicator as to whether or not someone is impaired off of alcohol ․” Defendant objected. The State withdrew its question and motioned to tender Officer Monroe as an expert “in the administration and interpretation of the horizontal gaze nystagmus test.” Defendant objected and argued Officer Monroe could not be offered as an expert “in this field since he does not have any medical training dealing with the eyes.”
Assuming these objections are sufficient to preserve Defendant's appellate arguments for review, we find no error. Officer Monroe testified he became certified to perform the HGN test in August 2007. Officer Monroe also testified about additional training—attending refresher courses and completing an advanced course. He performed the HGN test during “[a] hundred stops.” Accordingly, we conclude there is sufficient evidence to support the trial court's determination Officer Monroe was qualified to testify as an expert. Furthermore, following Godwin, Younts, and Barker, we conclude the trial court did not err in admitting Officer Monroe's testimony about HGN testing, as the trial court need not establish the reliability of the HGN test.
For the foregoing reasons, we find no reversible error.
NO REVERSIBLE ERROR.
Report per Rule 30(e).
1. Officer Monroe explained to “lock the brakes up” means to employ the antilock brake on the motorcycle.
HUNTER, JR., Robert N., Judge.
Judges BERGER and HAMPSON concur.
Response sent, thank you
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Docket No: No. COA16-947-2
Decided: February 05, 2019
Court: Court of Appeals of North Carolina.
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