State v. Barker

257 N.C.App. 173

809 S.E.2d 171

STATE of North Carolina

v.Christopher David BARKER

No. COA17-97

Court of Appeals of North Carolina.

Filed: December 19, 2017

Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J. Uicker, for the State.

Richard J. Costanza, Southern Pines, for Defendant.

McGEE, Chief Judge.

Christopher David Barker ("Defendant") appeals from judgments entered after a jury found him guilty of driving while impaired ("DWI"). Defendant argues that the trial court erred by admitting testimony about the results of a horizontal gaze nystagmus test ("HGN") because the testifying officer did not establish the evidentiary foundation required for expert testimony. We disagree and find no error.

I. Background

Defendant was convicted of driving while impaired in Brunswick County District Court ("the district court") on 10 December 2015. Upon appeal, Defendant's case was then tried before a jury in Brunswick County Superior Court ("the superior court") on 22 August 2016. The State's sole witness at trial was Trooper David Inman of the North Carolina Highway Patrol ("Trooper Inman"). Trooper Inman testified he responded to a call on 7 February 2015 regarding a vehicle accident near Leland, North Carolina. When Trooper Inman arrived at the scene of the accident, approximately thirty to forty-five minutes after receiving the call, he saw that a single vehicle had become stuck in a small wooded area after having driven through a T-shaped intersection. Defendant was at the scene and admitted that he had been driving the vehicle, but claimed he did not see the stop sign at the intersection because he was distracted by his cell phone.

Trooper Inman noted that Defendant seemed unsteady, sleepy, and "thick-tongued." He also testified there was a moderate odor of alcohol coming from Defendant's breath. Trooper Inman asked Defendant if he had been drinking. Defendant admitted that he had consumed a twenty-two ounce beer and a few sips of another. Trooper Inman asked Defendant to blow into an Alco-Sensor, which Defendant did, and the Alco-Sensor indicated Defendant had, in fact, consumed alcohol. As a result, Trooper Inman asked Defendant to perform a variety of standardized field sobriety tests ("SFSTs"). The SFSTs included the walk-and-turn test ("WAT"), the one-leg-stand test ("OLS"), and the HGN test. After Defendant completed all the tests, Trooper Inman testified he was of the opinion that Defendant's mental and physical capacities were impaired by alcohol. He then arrested Defendant for DWI.

Trooper Inman described the HGN testing procedures he had used and the State tendered him as an expert in HGN testing. Trooper Inman testified the HGN test involves "ask[ing] someone to follow a stimulus with just their eyes," while the administering officer looks for nystagmus, which is "a twitching of the eye." These eye twitches occur when a person has consumed alcohol, and at different angles depending on the level of intoxication. Trooper Inman testified that the administering officer is looking for whether the nystagmus had "onset prior to 45 degrees." Before beginning the test, the officer must observe the eye while the subject is looking forward in order to determine whether the subject has a natural, resting nystagmus. Trooper Inman explained that:

[I]f whenever you're watching the tip of my finger, if I see your eyes shaking, then it's occurring naturally. So there's no sense in me taking—doing the test at all, because if it's occurring naturally, I can't tell if there is anything in your system that's causing that to happen.

Trooper Inman testified that a resting nystagmus occurs in "less than 1 percent of the population" and "can occur when someone has some type of head injury." He then testified that Defendant did not have a resting nystagmus, that Defendant's eyes were unable to smoothly follow the object, and that his nystagmus had onset prior to forty-five degrees in both eyes.

Defendant objected to Trooper Inman being qualified as an expert and moved for a voir dire of the witness. Trooper Inman then testified that, as part of his basic law enforcement training, he received twenty-four hours of training on standard field sobriety testing; that he later participated in a sixteen-hour training course called Advanced Roadside Impaired Driving Enforcement ("ARIDE"); and that he received two-hour refresher courses on a yearly basis as part of his in-service training. The ARIDE training course included reading medical studies regarding the SFSTs, including HGN testing. The trial court overruled Defendant's objection and Trooper Inman was permitted to testify as an expert. After Trooper Inman was accepted as an expert, Defendant did not object to or move to strike any of Trooper Inman's testimony regarding the HGN testing.

Trooper Inman further discussed the method of administering the SFSTs, including HGN. He testified that Defendant displayed six out of six indicators of impairment during the HGN test. Trooper Inman testified that, based on the results of the various SFSTs, it was his opinion that Defendant had "consumed a sufficient amount of impairing substance so as to appreciably impair his mental and physical faculties." During cross-examination, Trooper Inman testified that if someone displayed four out of six indicators, there was an eighty-eight percent probability that they would have a blood alcohol concentration of .08 or above. At the conclusion of all the evidence, the trial court instructed the jury on the appreciable impairment theory under N.C. Gen. Stat. § 20-138.1(a) and the jury found Defendant guilty of driving while impaired.

II. Analysis

Defendant argues that the trial court erred in admitting Trooper Inman's testimony regarding the HGN test results. Specifically, Defendant argues that the trial court failed to comply with its gatekeeping function under Rule 702 of the North Carolina Rules of Evidence by failing to establish the reliability of the HGN test.

A. Appellate Jurisdiction

As a threshold matter, we must address whether Defendant's appeal is properly before us. In order for this Court to have jurisdiction to hear this appeal, the appellant has the responsibility of establishing the jurisdiction of the superior court in the appellate record. State v. Phillips , 149 N.C. App. 310, 313-314, 560 S.E.2d 852, 855 (2002). Defendant originally filed the record on appeal in this case on 23 January 2017. The copy of the district court's judgment provided in the appellate record did not reflect that Defendant had given an oral notice of appeal. A party may appeal from a judgment of the district court only by giving oral notice of appeal at trial or filing a written notice of appeal within fourteen days after entry of the judgment. N.C. Gen. Stat. § 15A-1431 (2015) ; N.C. R. App. P. 4(a).

Appellant subsequently filed a petition for a writ of certiorari on 21 March 2017, which contained a certified copy of the district court's minutes taken during the trial, a certified copy of the back of the district court file containing a notation acknowledging Defendant's notice of appeal, as well as an affidavit from Defendant's trial attorney. These documents tended to show that Defendant gave oral notice of appeal in the district court following the entry of the judgment and that the absence of the notation on the district court's judgment was a clerical error. This Court has discretion to allow the amendment of the appellate record under N.C. R. App. 9(b)(5). We believe that the documents provided are sufficient to show that Defendant gave oral notice of appeal to the superior court under N.C. R. App. 9(a)(3)(h). We therefore allow Defendant's writ of certiorari to review the merits of the appeal.

B. Standard of Review

A trial court's ruling regarding the admissibility of expert testimony "will not be reversed on appeal absent a showing of abuse of discretion." State v. McGrady , 368 N.C. 880, 893, 787 S.E.2d 1, 11 (2016) (citing Howerton v. Arai Helmet, Ltd. , 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) ). A trial court may only be reversed for abuse of discretion "upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision." Id. (citing State v. Riddick , 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986) ).

C. Rule 702 Requirements

Our Supreme Court clarified the effects of the 2011 amendments to N.C. Gen. Stat. § 8C-1, Rule 702 (2011) in McGrady, 368 N.C. 880, 787 S.E.2d 1. The Court noted the General Assembly amended Rule 702(a) to mirror the language of the federal rule of evidence to read:

(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.

(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.G.S. § 8C-1, Rule 702.

McGrady stated that the amended language signaled the General Assembly's intent to incorporate the federal standards for the admission of expert witness testimony. McGrady , 368 N.C. at 888, 787 S.E.2d at 8. The federal standard for the admission of expert witness testimony has been articulated in a line of cases beginning with Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786...