State v. Flores-Contreras

1

STATE OF NORTH CAROLINA v. HERNAN FLORES-CONTRERAS, Defendant

No. COA22-189

Court of Appeals of North Carolina

March 7, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 20 September 2022.

Appeal by defendant from judgment entered on or about 20 August 2021 by Judge William W. Bland in Superior Court, New Hanover County, No. 16 CRS 60436

Attorney General Joshua H. Stein, by Assistant Attorney General John W. Congleton, for the State.

Leslie Rawls for defendant-appellant.

OPINION

STROUD, CHIEF JUDGE.

Defendant Hernan Flores-Contreras appeals from a judgment for felony hit and run with serious injury or death and misdemeanor death by vehicle entered following a jury trial. Because Defendant failed to timely object to expert testimony on the same grounds he now argues on appeal, he did not preserve the issue for appellate review. Because Defendant also failed to argue plain error in his brief, we do not review the issue on that ground. Even if we undertook a plain error review, we would find no plain error because of the overwhelming evidence against Defendant on the same issue about which the expert witness testified.

I. Background

The State's evidence at trial tended to show on the morning of 30 December 2016 Defendant was driving in his van to work on a straight, flat stretch of road in Wilmington with clear weather and visibility. While driving on this stretch of road, Defendant fell asleep, veered "off the road[,]" and hit a man who was walking alongside the road. Not realizing he had hit a person, Defendant drove his van back home. When paramedics arrived at the scene, the man Defendant had hit was already dead.

One of the first police officers on the scene called for the Wilmington Police Department's traffic unit, and Officer Dwayne Ouellette and Detective Kevin Getman responded. After finding out the man who had been hit was dead, Officer Ouellette "started looking for any type of evidence" he could find. Officer Ouellette saw: "tire tracks that had went off the road[;]"clothing fibers from the victim's clothes located in the driveway of a business from when his body "came in contact with the ground[;]"and tread marks in the dew on the grass. Taking into account all those pieces of evidence, Officer Ouellette "could see a definitive [straight] line between where" the car that left the tire tracks started and where the victim's body lay. Officer Ouellette then used paint to preserve the straight line he saw because the tire tread in the dew, which did not extend to the underlying grass, "wouldn't last long." As Officer Ouellette investigated the scene, Detective Getman assisted, using his training and expertise in crash and accident reconstruction.

After finishing the investigation at the scene, Officer Ouellette and Detective Getman notified the victim's girlfriend of his death. While Officer Ouellette and Detective Getman made that notification, another officer called to tell them he found relevant video footage from a business near the incident site. The video footage depicted the victim "walking down the side of the street" and then, two-and-a-half to three minutes later, a vehicle "matching the description of" Defendant's van.

Contemporaneously with the police investigation, Defendant undertook several actions. After driving his van home, Defendant took his other car to go to work. On his way to work after switching vehicles, Defendant "saw a body on the ground" in the same area he had hit something that morning. Upon seeing the body, Defendant "was nervous and felt scared," so he called his pastor to ask for advice. Defendant's pastor told Defendant to go home and the pastor would find an attorney, but Defendant decided to go back to work until the pastor found an attorney because he was "just going to be worried" at home. Then, Defendant's attorney contacted the traffic unit to set up an interview because Defendant "felt bad for what happened."

After arranging for a traffic unit officer to be a Spanish-language interpreter at the request of Defendant's attorney, Officer Ouellette interviewed Defendant and recorded the interview on his body camera. During the interview, Defendant explained he had been driving to work, fallen asleep, hit something, and woke up to see he was "off the road." Defendant also recounted how he went home after the incident, switched vehicles, saw a body by the side of the road while driving back to work, and then received advice from his pastor. During the interview, Officer Ouellette also asked Defendant about the vehicle he was driving at the time of the incident and received a description of and location for the van, which he then obtained permission to "search" and "[i]nspect[.]"

Officer Ouellette gave the information about Defendant's van and where it could be found to Detective Getman, and Detective Getman went to Defendant's house to find the van. Detective Getman found the van "in the driveway, and it had damage consistent with having an accident" with a pedestrian.

On or about 9 September 2019, Defendant was indicted on charges of: misdemeanor death by motor vehicle; felony hit and run with injury, namely death; and failure to maintain lane control. On 3 August 2021, the State filed a "Notice of Expert Testimony" indicating it would offer Detective Getman as an expert in "crash reconstruction" at trial.

The trial began on 16 August 2021. At the start of trial, the State decided to not proceed on the failure to maintain lane control charge. At trial, the State called the victim's girlfriend, a paramedic, Officer Ouellette, and Detective Getman to testify about the incident and resulting investigation as discussed above. The State also had a pathologist testify about his findings from the victim's autopsy.

As part of his testimony, Detective Getman was qualified as an expert witness "in the field of accident or crash reconstruction and investigation." After a voir dire of Detective Getman's expert testimony, Defendant's attorney argued Detective Getman's testimony was too speculative to be relevant and therefore the testimony was inadmissible. Defendant's attorney specifically challenged the asserted "speculative" and therefore "irrelevant" nature of Detective Getman's opinion that the victim was off the road when he was hit. After highlighting Defendant had not "timely filed" a "proper suppression motion[,]" the State argued it had presented enough "tangible" evidence to withstand Defendant's challenge. Also noting Defendant never filed a suppression motion, the trial court denied any motion, "if there[] [was] a motion," with respect to Detective Getman's testimony, but it added Defendant could "argue the strength of the evidence" and noted Defendant was planning to have his own expert testify. The court then took a brief recess.

After the recess but before the jury came back into the courtroom, Defendant's attorney "object[ed] to the presentation of Detective Getman's testimony[.]" The trial court told Defendant's attorney he could make that objection "on the record when we get going," but Defendant did not raise the objection again. Specifically, Detective Getman testified in his expert opinion the victim "was struck somewhere within" the business's driveway where clothing fibers were found, "which would be off the roadway[,]" but Defendant's attorney did not object to that testimony.

At trial, Defendant also presented evidence. Specifically, Defendant's pastor testified Defendant had a reputation as a "man of his word" and testified about his interactions with Defendant the day of the incident. Defendant's own accident reconstruction expert testified he could not determine where the impact between Defendant's van and the victim happened, specifically whether it was on or off the road. Further, an attorney who was driving on the same stretch of road as the incident occurred along testified that about ten to twenty minutes before the incident he passed a person "significantly in the roadway[,]" and he had to take "significant evasive action" to avoid hitting the person. Finally, Defendant testified, in pertinent part, when he woke up after falling asleep while driving to work he was "going forward on [his] lane, on the road" and "did not notice" ever going off the road.

The jury ultimately found Defendant guilty of both misdemeanor death by motor vehicle and felonious hit and run with death. On or about 20 August 2021, the trial court entered judgment on both convictions and sentenced Defendant to 12 to 24 months in prison, with all but 6 months suspended, and 36 months of supervised probation. Defendant gave oral notice of appeal in open court.

II. Analysis

In his sole argument on appeal, Defendant contends the "trial court erred by overruling [his] objection to expert opinion testimony from Detective Getman, because the testimony did not satisfy the requirements of the Rules of Evidence[,]" specifically Rule 702, "and Daubert v. Merrell Dow Pharmaceuticals[,]" 509 U.S. 579, 125 L.Ed.2d 469 (1993). Specifically, Defendant argues the trial court erred by allowing Detective Getman to "testify that in his expert opinion" the victim "was struck off the road." Defendant also argues he "was harmed" by the admission of this "improper expert testimony."

Rule of Evidence 702(a) allows expert opinion testimony if three requirements are met: (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...