State v. Godwin ( 2017 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 167PA16
Filed 9 June 2017
STATE OF NORTH CAROLINA
v.
WILLIAM EDWARD GODWIN III
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 786 S.E.2d 34 (2016), finding prejudicial
error in a judgment entered on 15 November 2013 by Judge Gary M. Gavenus in
Superior Court, Mecklenburg County, and ordering that defendant receive a new
trial. On 22 September 2016, the Supreme Court allowed defendant’s conditional
petition for discretionary review as to an additional issue. Heard in the Supreme
Court on 22 March 2017.
Joshua H. Stein, Attorney General, by Kristin J. Uicker, Assistant Attorney
General, for the State-appellant/appellee.
Rudolf Widenhouse, by M. Gordon Widenhouse, Jr., for defendant-
appellant/appellee.
JACKSON, Justice.
In this appeal we consider whether North Carolina Rule of Evidence 702(a1)
requires a law enforcement officer to be recognized explicitly as an expert witness
pursuant to Rule 702(a) before he may testify to the results of a Horizontal Gaze
Nystagmus (HGN) test. Because we conclude that such explicit recognition is not
STATE V. GODWIN
Opinion of the Court
required and that the trial court implicitly recognized the law enforcement officer in
this case as an expert prior to allowing him to testify as to the issue of defendant’s
impairment, we reverse that portion of the decision of the Court of Appeals that is
inconsistent with this determination. Because we also conclude that the trial court
did not err in denying defendant’s request for a special jury instruction to explain
that results of a chemical breath test are not conclusive evidence of impairment, we
affirm that part of the decision of the Court of Appeals holding there was no error in
the trial court’s decision to deny defendant’s request for special jury instructions.
The State’s evidence at trial tended to show the following: On the evening of
18 January 2011, Officer Daniel R. Kennerly of the Charlotte-Mecklenburg Police
Department initiated a traffic stop of a vehicle once he confirmed by radar that the
vehicle was travelling fourteen miles per hour faster than the posted speed limit. The
driver of the vehicle, defendant William Edwin Godwin III, subsequently pulled over
and stopped his vehicle on the side of the road. After approaching defendant, who
was still seated in his vehicle, Officer Kennerly detected an odor of alcohol and
observed that defendant’s eyes were red and glassy. Officer Kennerly asked
defendant from where he had driven and whether he had been drinking. Defendant
responded that he was coming from a restaurant and had consumed three beers that
evening.
Based on his observations, training, and experience, Officer Kennerly then
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Opinion of the Court
requested that defendant exit the vehicle in order to perform three standardized field
sobriety tests: the HGN, the walk-and-turn, and the one-leg stand. Officer Kennerly
administered the HGN test to defendant twice in order to ascertain whether his eyes
“jerked” during the test, which is an indication of impairment. After observing four
out of six possible indicators of impairment during the HGN test, Officer Kennerly
determined that defendant might be impaired and proceeded with the remaining two
field sobriety tests.
Officer Kennerly observed two out of four possible indicators of impairment
during the one-leg stand test and six out of eight possible indicators during the walk-
and-turn test. At the conclusion of the three field sobriety tests, Officer Kennerly
placed defendant under arrest for driving while impaired, transported him to the
police station, and administered a breathalyzer test to defendant. Defendant’s blood
alcohol concentration (BAC) measured at 0.08 grams of alcohol per 210 liters of air.
Defendant was charged with driving while subject to an impairing substance. After
being convicted in district court, defendant appealed his conviction. Defendant was
then tried during the 12 November 2013 criminal session of the Superior Court,
Mecklenburg County.
When Officer Kennerly testified at trial regarding his administration of the
HGN test, defendant objected, arguing that pursuant to the 2011 amendment to
North Carolina Rule of Evidence 702(a), the State should not be permitted to present
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Opinion of the Court
testimony regarding the HGN test without qualifying the testifying officer as an
expert. In response, the State argued that Officer Kennerly did not need to be found
explicitly to be an expert because he was merely testifying to the administration of
the field sobriety tests and his resulting observations. The State also argued that
Officer Kennerly had completed the requisite training to administer field sobriety
tests; therefore, he was qualified to testify regarding the subject. At the conclusion
of its own voir dire of the officer and a voir dire by both attorneys, the trial court
concluded that Officer Kennerly could testify based upon his training and experience,
regarding his administration of the three field sobriety tests as well as his
observations of defendant during the tests. Officer Kennerly then testified that he
had received training as to how to administer the HGN test and how to identify
indicators of impairment based upon the test. He also testified that, after
administering the three field sobriety tests to defendant, he concluded from his
training, experience, and observations that defendant’s “mental and physical
faculties were appreciably impaired.”
At the close of the evidence, defendant proposed two relatively similar jury
instructions concerning the results of the breathalyzer test and how the jury should
analyze those results. The proposed instructions suggested to the jury that it was
not compelled to find defendant’s BAC to be 0.08 or more based upon the result of the
chemical analysis. In response, the State argued that such an instruction would
merely draw attention to the 0.08 BAC and confuse the jury. The State also asserted
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Opinion of the Court
that it would be sufficient for the trial court to instruct the jury that it was the sole
judge of the weight of the evidence and the credibility of the witnesses. After
consideration of the applicable case law and the arguments of counsel, the trial court
refused to give defendant’s requested jury instructions and gave the pattern jury
instructions on credibility and impaired driving.
On 15 November 2013, the jury convicted defendant of driving while impaired.
Defendant appealed his conviction to the Court of Appeals, arguing, inter alia, that
the trial court failed to comply with the standards of Rule 702 in allowing Officer
Kennerly’s testimony without requiring the State to tender the officer as an expert
witness. Defendant also argued that Rule 702(a1) obligated the trial court to find
explicitly that Officer Kennerly was qualified to present expert testimony as an
expert pursuant to Rule 702(a) before allowing him to testify about the HGN test
results. Defendant further maintained that the trial court erred in rejecting his
proposed jury instructions. Defendant contended that the proposed instructions were
necessary to inform the jury that, although the breathalyzer results were sufficient
to support a finding of driving while impaired, they did not compel a finding that
defendant was guilty of impaired driving beyond a reasonable doubt.
In response, the State argued before the Court of Appeals that the trial court
properly limited Officer Kennerly’s testimony to the administration of the field
sobriety tests and his observations of defendant during those tests. The State further
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Opinion of the Court
contended that if defendant believed that Officer Kennerly was not qualified to
testify, it was defendant’s responsibility to refute the officer’s training and
experience. Noting that defendant tendered two experts to counter Officer Kennerly’s
evidence at trial, the State highlighted that the jury still determined that defendant
was guilty. Regarding the trial court’s refusal to deliver defendant’s proposed jury
instructions, the State argued that the requested instructions were given in
substance, and that the jury was not misled or misinformed in receiving the pattern
instructions.
Concluding that Rule 702(a1) requires that a witness explicitly be found to be
an expert before testifying to the results of an HGN test, the Court of Appeals
determined that the trial court erred in failing to recognize Officer Kennerly as an
expert pursuant to Rule 702(a). See State v. Godwin, ___ N.C. App. ___, ___, 786
S.E.2d 34, 37-38 (2016). In reaching its decision, the Court of Appeals relied on State
v. Helms, in which this Court held that the HGN test “represents specialized
knowledge that must be presented to the jury by a qualified expert.” Id. at ___, 786
S.E.2d at 36 (emphasis omitted) (quoting State v. Helms, 348 N.C. 578, 581, 504
S.E.2d 293, 295 (1998)). The Court of Appeals also highlighted potentially conflicting
evidence regarding defendant’s performance on the other field sobriety tests and
concluded that such evidence created “a reasonable possibility” that, “had the HGN
test results not been admitted, a different result would have been reached at trial.”
Id. at ___, 786 S.E.2d at 39. Based upon its holding on this issue, the Court of Appeals
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Opinion of the Court
awarded defendant a new trial. Id. at ___, 786 S.E.2d at 40. As to the jury
instructions, the Court of Appeals rejected defendant’s argument, noting that the
pattern jury instructions given by the trial court “informed the jury, in substance,
that it was not compelled to return a guilty verdict based simply on the chemical
analysis results.” Id. at ___, 786 S.E.2d at 39 (quoting State v. Beck, 233 N.C. App.
168, 171-72, 756 S.E.2d 80, 83, disc. rev. denied, 367 N.C. 508, 759 S.E.2d 94 (2014)).
On appeal to this Court, the State argues that the trial court implicitly found
that the witness was qualified as an expert. Therefore, the State contends that the
Court of Appeals erred by holding that the expert testimony was erroneously
admitted. We agree. On conditional appeal, defendant argues that the Court of
Appeals erred in affirming the trial court’s refusal to give his requested jury
instructions. Defendant contends that without his proposed instructions, the jury
would feel compelled to find he was impaired. We disagree. We now address these
two issues in turn.
According to Rule 702(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.
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Opinion of the Court
(3) The witness has applied the principles and
methods reliably to the facts of the case.
N.C.G.S. § 8C-1, Rule 702(a) (2015). The three numbered requirements for admission
of expert testimony were added to Rule 702(a) by amendment in 2011 to incorporate
the standard from the line of United States Supreme Court cases beginning with
Daubert v. Merrell Dow Pharmaceuticals, Inc. See State v. McGrady, 368 N.C. 880,
884, 888, 787 S.E.2d 1, 5, 7-8 (2016). Also relevant to the subject matter of this case,
Rule 702(a1) provides, in relevant part:
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 administrated by a
person who has successfully completed training
in HGN.
N.C.G.S. § 8C-1, Rule 702(a1) (2015). Reading these subsections together, it is
evident that the General Assembly envisioned the precise scenario we address today
and made clear provision to allow testimony from an individual “who has successfully
completed training in HGN” and meets the criteria set forth in Rule 702(a), as Officer
Kennerly has done. Id. § 8C-1, Rule 702(a1)(1).
In assessing how a witness may be qualified as an expert, we have held that
when the record contains sufficient evidence upon which the trial court could have
based an explicit finding that the witness was an expert, an appellate court may
conclude that the trial court found the witness to be an expert. Apex Tire & Rubber
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Opinion of the Court
Co. v. Merritt Tire Co., 270 N.C. 50, 53, 153 S.E.2d 737, 739 (1967). In Apex Tire the
trial court explicitly denied counsel’s motion to declare a witness was an expert. Id.
at 54, 153 S.E.2d at 740. The trial court then permitted the witness to testify in
detail, as well as offer an opinion in the case. Id. at 54, 153 S.E.2d at 740. We
concluded that, notwithstanding the trial court’s denial of the motion to recognize
explicitly the witness as an expert, the record contained evidence on which the trial
court could have based a finding that the witness was an expert. Id. at 54, 153 S.E.2d
at 740. Accordingly, we inferred from its actions that the trial court made an implicit
finding that the witness was an expert. Id. at 53-54, 153 S.E.2d at 739-40.
Since our decision in Apex Tire, we have reiterated the concept of implicit
recognition of expert witnesses in several opinions. We have held:
In the absence of a request by the appellant for a
finding by the trial court as to the qualification of a witness
as an expert, it is not essential that the record show an
express finding on this matter, the finding, one way or the
other, being deemed implicit in the ruling admitting or
rejecting the opinion testimony of the witness.
State v. Perry, 275 N.C. 565, 572, 169 S.E.2d 839, 844 (1969) (citations omitted).
Similarly, we have held that a trial judge implicitly recognized a witness as an expert
by overruling defense counsel’s objection to the witness’s qualifications. State v.
Bullard, 312 N.C. 129, 143-44, 322 S.E.2d 370, 378 (1984) (citing Perry, 275 N.C. 565,
169 S.E.2d 839). In addition, we have determined that when a defendant interposed
only general objections to trial testimony and never requested a finding by the trial
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Opinion of the Court
court as to the witnesses’ qualifications as experts, the recognition that the witnesses
were qualified to testify as experts was “implicit in the trial court’s ruling admitting
the opinion testimony.” State v. Aguallo, 322 N.C. 818, 821, 370 S.E.2d 676, 677
(1988) (citing State v. Phifer, 290 N.C. 203, 213-14, 225 S.E.2d 786, 793 (1976), cert.
denied, 429 U.S. 1123 (1977)). More recently, we ruled that a “trial court’s overruling
of defense counsel’s objection to the opinion testimony constituted an implicit finding
that the witness was an expert.” State v. Wise, 326 N.C. 421, 430, 390 S.E.2d 142,
148 (citing Bullard, 312 N.C. 129, 322 S.E.2d 370), cert. denied, 498 U.S. 853 (1990).
Although we decided the aforementioned cases prior to the amendment to Rule
702, the 2011 amendment did not categorically overrule all North Carolina judicial
precedents interpreting that rule. See McGrady, 368 N.C. at 888, 787 S.E.2d at 8
(“Our previous cases are still good law if they do not conflict with the Daubert
standard.”). Relevant to the issue in this case, the 2011 amendment did not change
the basic structure for a trial court’s exercise of its gatekeeping function over expert
testimony. See id. at 892, 787 S.E.2d at 10. Moreover, our precedents continue to
dictate that a trial court’s ruling on the admissibility of expert testimony “will not be
reversed on appeal absent a showing of abuse of discretion.” See id. at 893, 787 S.E.2d
at 11 (quoting Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686
(2004), superseded by statute, Act of June 17, 2011, ch. 283, sec. 1.3, 2011 N.C. Sess.
Laws 1048, 1049 (codified at N.C.G.S. § 8C-1, Rule 702(a)(1)-(3)), as stated in
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Opinion of the Court
McGrady, 368 N.C. at 888, 787 S.E.2d at 8). Here we can detect no such abuse of
discretion by the trial court.
During both the pretrial hearing and the trial in this case, Officer Kennerly
was “qualified as an expert by knowledge, skill, experience, training, or education.”
N.C.G.S. § 8C-1, Rule 702(a). Officer Kennerly testified that he had completed
training on how to administer the HGN test and other standardized field sobriety
tests that he administered to defendant. During direct examination, Officer Kennerly
explained that he attended a thirty-four hour course in standardized field sobriety
testing and DWI detection in 2006. Officer Kennerly’s certificate of completion for
this course was admitted into evidence. He also testified that he attended an eight
hour refresher course in 2009. Both courses were approved by the National Highway
Traffic Safety Administration (NHTSA). Prior to the date he administered the HGN
test to defendant, Officer Kennerly had conducted approximately three
hundred impaired driving offense investigations.
The trial court also established that Officer Kennerly’s testimony met the
three-pronged test of reliability pursuant to the amended rule. The trial court
conducted its own voir dire of Officer Kennerly, which elicited testimony that the
HGN test he administered to defendant on the day in question was given in
accordance with the standards set by the NHTSA, and that those standards were
derived from the results of a specific scientific study. Additionally, the trial court’s
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Opinion of the Court
voir dire confirmed that the principles and methods utilized in the HGN test were
found to be reliable indicators of impairment, and that Officer Kennerly applied those
principles and methods to defendant in this case.
Defendant objected to Officer Kennerly’s testimony on the grounds that he was
neither formally tendered as an expert witness by the State nor recognized as such
by the trial court. Yet we note that defendant did not object to any of Officer
Kennerly’s actual qualifications, even clarifying his general objection by stating, “I’m
not saying Officer Kennerly could not be qualified, but I think the State’s going to
have to go through that.” Defendant eventually narrowed his objection by
acknowledging that if the State were to limit the officer’s testimony to his
observations and the indications of impairment, then defendant had “less problem
with it.” The trial court then overruled defendant’s objection; however, as the
colloquy between the trial court and the defense attorney indicates, Officer Kennerly
only was permitted to offer testimony regarding his observations of defendant’s
impairment as he administered the HGN test and was not permitted to comment on
the HGN test’s reliability. These distinctions are critical.
TRIAL 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?
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Opinion of the Court
DEFENSE COUNSEL: I’d ask the Court to note my
exception. Is the Court disqualifying him as an expert on
the HGN?
TRIAL COURT: I’m not -- he doesn’t have to be
qualified as an expert. I’m not going to make that
requirement. I’m just going to let him testify based on his
training and experience, what -- how the HGN should be
administered and what the indicators are and what
indicators he observed.
In overruling defendant’s objection, the trial court implicitly found that Officer
Kennerly was qualified to testify as an expert, and as such, in accordance with the
guidance in Rule 702(a1), Officer Kennerly could “give expert testimony solely on the
issue of impairment and not on the issue of specific alcohol concentration level.”
N.C.G.S. § 8C-1, Rule 702(a1).
Although the Court of Appeals relied on our prior decision in Helms to reach
its conclusion that the expert testimony was erroneously admitted, several important
facts render Helms distinguishable from the present case. At issue in Helms was the
reliability of the HGN test, not the observed impairment of the individual being
subjected to the HGN test. Helms, 348 N.C. at 582, 504 S.E.2d at 295. Furthermore,
although the officer in Helms testified that he had taken a forty hour training course
in the use of the HGN test, the State presented no evidence regarding—and the court
conducted no inquiry into—the reliability of the HGN test. Id. at 582, 504 S.E.2d at
295. We also noted in Helms that nothing in the record of the case indicated that the
trial court took judicial notice of the reliability of the HGN test. Id. at 582, 504 S.E.2d
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Opinion of the Court
at 295. Accordingly, we concluded that because no sufficient scientifically reliable
evidence existed as precedent to show the correlation between intoxication and
nystagmus, “it [was] improper to permit a lay person to testify as to the meaning of
HGN test results.” Id. at 582, 504 S.E.2d at 295. Additionally, the trial court
permitted the law enforcement officer to testify as a lay person regarding the meaning
of HGN test results, and there was no evidence in the record to support a finding that
the trial court had implicitly found the officer to be an expert. Id. at 582, 504 S.E.2d
at 295. This scenario plainly contrasts with the present case in which the trial court
made a finding of reliability of the HGN test and an implicit finding that Officer
Kennerly was qualified as an expert. Furthermore, with the 2006 amendment to Rule
702, our General Assembly clearly signaled that the results of the HGN test are
sufficiently reliable to be admitted into the courts of this State. See The Motor Vehicle
Driver Protection Act of 2006, ch. 253, sec. 6, 2005 N.C. Sess. Laws (Reg. Sess. 2006)
1178, 1183 (codified at N.C.G.S. § 8C-1, Rule 702(a1) (Supp. 2006)). Based on these
distinguishing factors, our decision in Helms is not dispositive of the present case.
Notwithstanding our decision in this case, the better practice would have been
for the trial court to refrain from stating, “[Officer Kennerly] doesn’t have to be
qualified as an expert. I’m not going to make that requirement.” Furthermore, in
light of the aforementioned findings regarding Officer Kennerly’s knowledge, skill,
experience, and training, the appellate division’s ability to review the trial court’s
oral order would have benefited from the inclusion of additional facts supporting its
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Opinion of the Court
determination that Officer Kennerly was qualified to testify as an expert regarding
his observations of defendant’s performance during the HGN test.
Next, we turn to the issue of defendant’s proposed jury instructions. When a
defendant requests a special jury instruction that is correct in law and supported by
the evidence, the court must give the instruction in substance. State v. Monk, 291
N.C. 37, 54, 229 S.E.2d 163, 174 (1976) (citation omitted). Yet, “[e]ven if a defendant
is entitled to requested instructions, the court is not required to give them verbatim.
It is sufficient if they are given in substance.” State v. Howard, 274 N.C. 186, 199,
162 S.E.2d 495, 504 (1968) (citation omitted). If “[t]he instructions given by the trial
court adequately convey[ ] the substance of defendant’s proper request[,] no further
instructions [are] necessary.” State v. Green, 305 N.C. 463, 477, 290 S.E.2d 625, 633
(1982) (citation omitted).
Here one of defendant’s two proposed instructions stated:
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 weight to give such chemical
analysis when considering whether defendant’s guilt has
been proven beyond a reasonable doubt.
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Opinion of the Court
Though worded slightly differently, the second proposed instruction also suggested to
the jury that it was not compelled to find defendant’s alcohol concentration to be 0.08
or more based on the result of the chemical analysis.1
Defendant asserted at trial that without either of the requested instructions,
the jury would be required to presume that the reading of 0.08 was conclusive proof
of impairment. Defendant argued that the purpose of his proposed instructions was
to ensure that the jury realized it could consider the evidence presented by defendant
of his lack of impairment, notwithstanding the evidence provided by the chemical
analysis. Following the pattern jury instruction on impaired driving, the trial court
explained to the jury that impairment could be proved by an alcohol concentration of
0.08 or more, and that this chemical analysis was “deemed sufficient evidence to
prove a person’s alcohol concentration.” The trial court also explained to the jurors
that they were “the sole judges of the credibility of each witness and the weight to be
given to the testimony of each witness,” and that if they decided that certain evidence
was believable, they “must then determine the importance of that evidence in light of
1 In its entirety the second proposed instruction stated:
The results of the chemical analysis of the Defendant’s breath
do not create a presumption that the Defendant had, at a
relevant time after driving, an alcohol concentration of 0.08 or
more grams of alcohol per 210 liters of breath. You may find the
Defendant’s alcohol concentration to be 0.08 or more. You may
find the Defendant’s alcohol concentration to be 0.08 or more
based upon the result, but you are not compelled to do so.
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all other believable evidence in the case.” These statements signaled to the jury that
it was free to analyze and weigh the effect of the breathalyzer evidence along with all
the evidence presented during the trial. Therefore, we hold that the standard jury
instruction on credibility was sufficient in this case and that the trial court
adequately conveyed the substance of defendant’s requested instructions to the jury.
Accordingly, we affirm the holding of the Court of Appeals that the jury instructions
were proper.
For the reasons stated above, we also hold that the trial court implicitly found
that Officer Kennerly was qualified to give expert testimony, and therefore did not
abuse its discretion by allowing Officer Kennerly to testify as an expert regarding
defendant’s impairment. The trial court overruled defendant’s objection to Officer
Kennerly’s testimony, determined that his testimony was relevant and reliable, and
ascertained that he was qualified to testify as an expert. Consequently, we conclude
that the Court of Appeals erroneously determined that the trial court did not find
Officer Kennerly to be an expert pursuant to Rule 702(a).
Accordingly, as explained above, we hold that the trial court made no error in
the trial of defendant’s case. Therefore, we reverse the decision of the Court of
Appeals awarding defendant a new trial and instruct that court to reinstate the trial
court’s judgment.
AFFIRMED IN PART; REVERSED IN PART.
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