State v. Younts , 254 N.C. App. 581 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-213
Filed: 18 July 2017
Buncombe County, No. 14 CRS 090003
STATE OF NORTH CAROLINA
v.
JENNIFER LEIGH YOUNTS, Defendant.
Appeal by Defendant from judgment entered 24 September 2015 by Judge Alan
Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals
22 August 2016.
Attorney General Joshua H. Stein, by Assistant Attorney General Ashleigh P.
Dunston, for the State.
Joseph P. Lattimore for Defendant-Appellant.
INMAN, Judge.
Under Rule 702 of the North Carolina Rules of Evidence, a trial court does not
err when it admits expert testimony regarding the results of a Horizontal Gaze
Nystagmus (“HGN”) test without first determining that HGN testing is a product of
reliable principles and methods as required by subsection (a)(2).
Jennifer Leigh Younts (“Defendant”) appeals from a judgement entered
following a jury trial in which she was found guilty of driving while impaired.
Defendant argues that the trial court erred by admitting testimony about the results
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of an HGN test, because the testifying officer did not lay the evidentiary foundation
required for expert testimony. Defendant also argues that the trial court erred by
not intervening ex mero motu when the prosecutor, in closing argument, speculated
as to what Defendant’s blood alcohol concentration would have been an hour before
she was tested. After careful consideration, we hold: (1) that the trial court did not
err by admitting HGN evidence without first making a determination as to its
reliability and (2) that the trial court did not err in failing to intervene in the
prosecutor’s closing argument.
Factual and Procedural History
The State’s evidence at trial tended to show the following:
On 21 October 2014 at around 6:20 p.m., Myron R. Coffey, of the North
Carolina Highway Patrol (“Trooper Coffey”) clocked Defendant traveling in a black
car at seventy-six miles per hour in a fifty-five mile per hour zone on Interstate
Highway 240 near Asheville. Trooper Coffey activated his blue lights and pulled
behind Defendant’s vehicle. Defendant pulled off to the side of the road onto an exit
ramp approximately four-tenths of a mile down the highway.
As Trooper Coffey approached Defendant’s vehicle, he noticed “a strong odor of
alcohol coming out of the vehicle.” Trooper Coffey also noticed Defendant had “red
glassy eyes and slurred speech.” He asked Defendant if she had had anything to
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drink that day; she responded affirmatively. Trooper Coffey then asked Defendant
to step out of her vehicle to undergo several standardized field sobriety tests.
The first test Trooper Coffey administered was an HGN test. Based on
Defendant’s results from the HGN test, Trooper Coffey did not “feel like [Defendant’s]
impairment was anything other than alcohol[,]” and did not administer a Vertical
Gaze Nystagmus test. Next, Trooper Coffey had Defendant perform the “walk and
turn test.” Trooper Coffey noted that Defendant could not keep her balance, could
not walk a straight line, missed the heel to toe steps, used her arms incorrectly, did
not take the proper number of steps, and could not keep her foot planted on the turn.
Defendant then performed the “one-leg stand” test. She was unable to balance on one
foot, switched feet mid-test, and almost fell over. Trooper Coffey was “looking for a
total of four clues, and [Defendant] showed all four clues on [the one-leg stand] test.”
Trooper Coffey administered one final test, a portable breath test, which was
positive for the presence of alcohol. Trooper Coffey sought to repeat the portable
breath test to ensure accuracy, but Defendant refused to cooperate. Trooper Coffey
concluded that Defendant was impaired and placed her under arrest. At the
Buncombe County Detention Facility, at approximately 6:42 p.m., Defendant
consented to take the Intoxilyzer breath test. Defendant invoked her right to have a
witness present; however, no witness appeared within thirty minutes, and Trooper
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Coffey administered the Intoxilyzer breath test at 7:18 p.m. The results of this breath
test indicated a blood alcohol concentration of .06.
Following the Intoxilyzer test, Defendant was charged with driving while
impaired. Following a trial in Buncombe County District Court on 18 August 2015,
Defendant was convicted of driving while impaired and immediately filed a notice of
appeal to superior court.
Pending trial de novo in superior court, Defendant filed a motion in limine to
exclude, inter alia, expert testimony regarding the results of the HGN test.
Defendant requested a voir dire hearing of Trooper Coffey to determine the
admissibility of his HGN testimony. Following the impaneling of the jury but outside
the jury’s presence, the trial court allowed the voir dire of Trooper Coffey.
In the voir dire hearing, Trooper Coffey testified about his qualifications to
administer the standardized field sobriety tests, including the HGN test. He stated
he received 40 hours of training, and continued refresher courses every two years.
Trooper Coffey explained the HGN test, how it is administered, and what he looks for
throughout the test. He admitted he had not independently researched HGN testing
and that he did not know the rate of error. He acknowledged that causes other than
alcohol impairment can affect the results of an HGN test. The trial court initially
allowed Defendant’s motion to exclude Trooper Coffey’s testimony about the HGN
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test results because the State had not presented testimony “regarding his
administration of the test or how these methods were applied[.]”
The State requested a reexamination of Trooper Coffey in the voir dire hearing
to lay the proper foundation. Following the additional testimony, the trial court
denied Defendant’s motion to exclude the HGN evidence, finding:
[B]ased upon this trooper’s observations, his proper
training, experience, and education, skill, knowledge, and
the fact that he was properly qualified, he has been
certified in administering the horizontal gaze nystagmus
test; and he administered—he has testified as to how he
administered the test, and he administered the test
according to his training in this particular instance and
recorded those test results accurately and has testified to
all of these . . . pursuant to 702(a) that this scientific,
technical, or specialized knowledge will assist the trier of
fact in understanding the evidence or determine the facts
in issue in this case, the issue of impairment, exclusively
the issue of impairment; and the witness is qualified as an
expert by knowledge, skill, experience, training, or
education and may testify thereto in the form of an opinion
and being qualified under 702(a) of this chapter and the
proper foundation having been laid as indicated by the
Court.
Before the jury, in addition to testifying about his experience and training in
administering HGN tests, Trooper Coffey testified about his qualifications and
experience in administering other field sobriety tests, as well as the events
surrounding Defendant’s arrest.
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The trial court instructed the jury that Defendant could be found guilty of
impaired driving based either upon having an appreciable impairment or having a
blood alcohol concentration equal to or greater than a statutory measure:
The Defendant is under the influence of an impairing
substance when the Defendant has taken or 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 the Defendant had consumed sufficient
alcohol that at any relevant time after the driving, the
Defendant had an alcohol concentration of .08 or more
grams of alcohol per 210 liters of breath.
The jury returned a verdict finding Defendant guilty of driving while impaired.
The trial court sentenced Defendant as a Level V offender to sixty days of
imprisonment to be suspended conditioned upon the successful completion of twelve
months of supervised probation, twenty-four hours of community service, alcohol
abstinence while on probation, and payment of fines and costs. Defendant gave oral
notice of appeal in open court.
Analysis
I. HGN Testing
Defendant argues that the trial court misinterpreted Rule 702(a) of the North
Carolina Rules of Evidence, its subsequent amendments, and the recent case
precedent in denying Defendant’s motion to exclude Trooper Coffey’s testimony about
the HGN test results. Specifically, Defendant asserts that the trial court failed to
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require Trooper Coffey to establish the reliability of the HGN test prior to admitting
the testimony. We disagree.
A. Standard of Review
Because Defendant raises this issue within the framework of statutory
construction, we review the issue de novo. Cornett v. Watauga Surgical Group, P.A.,
194 N.C. App. 490, 493, 669 S.E.2d 805, 807 (2008) (“Where the plaintiff 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.”) (citations omitted). “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) (internal quotation marks
and citations omitted).
B. Rule 702 Requirements
At the heart of this case is whether the recently amended Rule 702(a)1 requires
the State to lay a proper foundation regarding the reliability of an HGN test before
an officer or other qualified expert is allowed to testify about the results of the
particular test; we hold it does not.
The North Carolina Supreme Court first addressed the admissibility of HGN
evidence in State v. Helms, and held that HGN testing “represents specialized
1 Rule 702(a) was amended effective 1 October 2011. Because Defendant was charged with an
offense occurring on 21 October 2014, the amended Rule applies to this case.
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knowledge that must be presented to the jury by a qualified expert.” 348 N.C. 578,
581, 504 S.E.2d 293, 295 (1998). At the time, the North Carolina Rules of Evidence—
Rule 702—dictated that “new scientific methods of proof [were] admissible at trial if
the method [was] sufficiently reliable.” Id. (quoting State v. Pennington, 327 N.C. 89,
98, 393 S.E.2d 847, 852 (1990)) (internal quotation marks omitted). In reference to
this standard, the Supreme Court stated that “[i]n general, when no specific
precedent exists, scientifically accepted reliability justifies admission of the
testimony of qualified witnesses, and such reliability may be found either by judicial
notice or from the testimony of scientists who are expert in the subject matter, or by
a combination of the two.” State v. Bullard, 312 N.C. 129, 148, 322 S.E.2d 370, 381
(1984) (citation omitted). Ultimately, the Court in Helms held that the trial court
erred in admitting an officer’s testimony regarding the results of an HGN test because
there was no indication in the record of evidence admitted, or inquiry conducted,
regarding the reliability of HGN testing. Helms, 348 N.C. at 582, 504 S.E.2d at 295.
Since Helms, Rule 702 has undergone several amendments relevant to our
analysis today. In 2006, the General Assembly added subsection (a1) to Rule 702.
2006 N.C. Sess. Laws ch. 253, § 6. Rule 702(a1) provides in pertinent part:
(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:
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(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) (2007). At the time the amendment took effect,
subsection (a) provided:
(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.
N.C. Gen. Stat. § 8C-1, Rule 702(a) (2007). Based on this standard for qualifying an
expert, our Court interpreted the Rule 702(a1) amendment to have the effect of
“obviating 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, however, the General Assembly altered the requirements of Rule
702(a) for the qualification of an expert 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. 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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(3) The witness has applied the principles and
methods reliably to the facts of the case.
2011 N.C. Sess. Laws ch. 283, § 1.3 (emphasis added). In State v. McGrady, 368 N.C.
880, 884, 787 S.E.2d 1, 5 (2016), the Supreme Court confirmed that this most recent
amendment of Rule 702 adopted the federal standard for expert witness testimony
articulated in the Daubert line of cases.2 “These three prongs [under Rule 702(a)]
together constitute the reliability inquiry discussed in Daubert, Joiner, and Kumho.
The primary focus of the inquiry is on the reliability of the witness’s principles and
methodology, not on the conclusions that they generate.” McGrady, 368 N.C. at 890,
2 The North Carolina Supreme Court recognized in McGrady that Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 125 L. Ed. 2d 469 (1993), and its progeny
[a]rticulated five factors from a nonexhaustive list that can have a
bearing on reliability: (1) “whether a theory or technique . . . can be
(and has been) tested”; (2) “whether the theory or technique has been
subjected to peer review and publication”; (3) the theory or technique’s
“known or potential rate of error”; (4) “the existence and maintenance
of standards controlling the technique’s operation”; and (5) whether the
theory or technique has achieved “general acceptance” in its field.
Daubert, 509 U.S. at 593-94, [125 L.E.2d at 482-83]. When a trial
court considers testimony based on “technical or other specialized
knowledge,” N.C. R. Evid. 702(a), it should likewise focus on the
reliability of that testimony, Kumho [Tire Co., Ltd. v. Carmichael], 526
U.S. [137,] 147-49, [143 L. Ed. 2d 238, 249-51 (1999)]. The trial court
should consider the factors articulated in Daubert when “they are
reasonable measures of the reliability of expert testimony.” Id. at 152,
[143 L.Ed.2d at 252]. Those factors are part of a “flexible” inquiry,
Daubert, 509 U.S. at 594, [143 L.Ed.2d at 483-84], so they do not form
“a definitive checklist or test,” id. at 593, [143 L.Ed.2d at 482]. And
the trial court is free to consider other factors that may help assess
reliability given “the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.” Kumho, 526 U.S. at 150,
[143 L. Ed. 2d 251-52].
McGrady, 368 N.C. at 890-91, 787 S.E.2d at 9-10.
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787 S.E.2d at 9 (internal quotation marks and citations omitted). “The precise nature
of the reliability inquiry will vary from case to case depending on the nature of the
proposed testimony. In each case the trial court has discretion in determining how
to address the three prongs of the reliability test.” Id. (citation omitted).
The issue before us is whether Smart’s conclusion that Rule 702(a1) obviated
the need to prove HGN testing’s reliability is still good law following our State’s
adoption of the federal reliability test under Daubert. This issue has been recognized
in previous cases, but has not been squarely resolved. State v. Godwin, __ N.C. App.
__, __, 786 S.E.2d 34, 38 (2016), aff’d in part and rev’d in part by, __ N.C. __, __ S.E.2d
__ (2017) (“While some may even question whether Smart survives the amendment
to Rule 702(a), that issue is not the one presently before us.”).
In its recent decision in Godwin, the Supreme Court construed subsections (a)
and (a1) 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 __, __ S.E.2d at __ (internal quotation
marks and citations omitted). Although the trial court in Godwin made no finding
on the record that the testifying officer qualified as an expert, the Supreme Court
held that “the trial court implicitly found that [an officer] was qualified to give expert
testimony [on the results of an HGN test,]” id. at __, __ S.E.2d at __, because the
record contained “sufficient evidence upon which the trial court could have based an
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explicit finding that the witness was an expert,” id. at __, __ S.E.2d at __. This
evidence was in the form of the officer’s testimony about his “knowledge, skill,
experience, training, [and] education[,]” and the trial court’s establishment that “[the
officer’s] testimony met the three-pronged test of reliability pursuant to the amended
rule . . . .” Id. at __, __ S.E.2d at __. The Supreme Court further reasoned that
[t]he trial court conducted its own voir dire of [the officer],
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 [National
Highway Traffic Safety Administration], and that those
standards were derived from the results of a specific
scientific study. Additionally, the trial court’s voir dire
confirmed that the principles and methods utilized in the
HGN test were found to be reliable indicators of
impairment, and that [the officer] applied those principles
and methods to [the] defendant in this case.
Id. at __, __ S.E.2d at __. The Supreme Court relied on the above inquiry to
distinguish Godwin from the Court’s ruling in Helms:
[A]lthough 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.
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. . . . 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 [the officer] was qualified as an expert.
Id. at __, __ S.E.2d at __ (emphasis added).
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Here, much like in Helms, defense counsel objected to the HGN evidence at
trial because the State failed to present evidence of—and the trial court conducted no
inquiry into—the reliability of the HGN test. The only testimony relating to the
reliability of the HGN test was presented on cross-examination:
DEFENSE COUNSEL: Are you published in HGN?
OFFICER: What do you mean published?
DEFENSE COUNSEL: Have you published any kind of
research or studies or anything like that? Are you familiar
with any?
OFFICER: I haven’t done any independent search.
DEFENSE COUNSEL: Have you – are you familiar with
any publications that have been subjected to peer review?
OFFICER: No.
DEFENSE COUNSEL: You mentioned – what causes
HGN?
OFFICER: There’s certain types of nystagmus. But the
type I’m looking for is horizontal gaze nystagmus. And
basically the only thing that will cause that is the
impairment of alcohol.
...
OFFICER: [Reading from the NHTSA training manual]
Although this type of nystagmus is most accurate for
determining alcohol impairment, its presence may also be
– I’m sorry, its presence may also indicate use of certain
other drugs.
DEFENSE COUNSEL: So alcohol is not the only thing
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that causes horizontal gaze nystagmus; correct?
OFFICER: Correct.
...
STATE’s COUNSEL: And based on your observations of
the Defendant, what is the significance of the six out of six
clues?
OFFICER: There was a few studies done, I believe in the
1980’s that stated that if you show six out of six clues, that
your impairment of alcohol is above a .08. the percentage –
actually, if you’re showing four out of six, you’re an 08. Six
out of six clues, your concentration could be higher.
...
DEFENSE COUNSEL: What’s the potential rate of error
for HGN test?
OFFICER: Like I said, I’m not sure what the rate of error
would be.
DEFENSE COUNSEL: Have you actually read like the
studies you’re talking about in the 80’s?
OFFICER: When I received the training, they went over
the studies, but I don’t have the exact percentages. I don’t
have that written down.
DEFENSE COUNSEL: I know that they went over this.
I’ve actually done it myself, the NITSA [sic] training, and
they refer to the studies as well; but have you read them,
yourself, or did you just do the NISTA [sic] training?
OFFICER: I have read them during the training.
DEFENSE COUNSEL: What are the names of the
studies?
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OFFICER: I’m sorry?
DEFENSE COUNSEL: What are the names of those
studies?
OFFICER: I’m not sure.
This evidence standing alone is insufficient to establish, in accordance with the
statutory criteria, the HGN test as a reliable indicator of impairment.
Furthermore, a close examination of the trial court’s decision demonstrates
that, while the trial court made determinations as to the whether the testimony was
“based upon sufficient facts or data[,]” N.C. Gen. Stat. § 8C-1, Rule 702(a)(1), and
whether Trooper Coffey “applied the principles and methods reliably to the facts of
the case[,]” N.C. Gen. Stat. § 8C-1, Rule 702(a)(3), it did not take judicial notice of—
or hear evidence on—the reliability of the HGN test. Rather, the record reflects that
trial court did not consider whether Trooper Coffey’s testimony met the second prong
of the reliability test—i.e. whether the “testimony is the product of reliable principles
and methods[,]” N.C. Gen. Stat. § 8C-1, Rule 702(a)(2).
Although defense counsel emphasized the lack of testimony regarding the
reliability of the HGN test, the trial court initially allowed Defendant’s motion to
exclude the testimony for a different reason, noting that “I don’t think there’s been
any testimony at this time regarding [Trooper Coffey’s] administration of the test or
how these methods were applied[.]” Following additional testimony discussing
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Opinion of the Court
Trooper Coffey’s application of the principles and methods to the administration of
the HGN test conducted on Defendant and arguments of counsel, the trial court found
that
[Trooper Coffey] is qualified as an expert by knowledge,
skill, experience, training, or education and may testify
thereto in the form of an opinion and being qualified under
702(a) of this chapter and the proper foundation having
been laid as indicated by the Court.
The additional testimony did not, however, address the reliability of the HGN test,
and a strict reading of Rule 702, without more, would suggest that the trial court
erred by allowing Trooper Coffey’s testimony without taking judicial notice of—or
conducting an inquiry into—the reliability of the HGN test. However, we reach a
different decision on this issue in light of Godwin.
The Supreme Court ultimately concluded in Godwin that “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.”
Godwin, __ N.C. at __, __ S.E.2d at __. This holding is similar to this Court’s holding
in Smart that the 2006 amendment to Rule 702 “obviat[ed] the need for the State to
prove that the HGN testing method is sufficiently reliable.” Smart, 195 N.C. App. at
756, 674 S.E.2d at 686. Accordingly, it appears that the ruling of Smart has survived
the General Assembly’s 2011 amendment designating our State a Daubert State.
Because the Godwin decision applied the most recent amendments to Rule 702 and
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is consistent with previous decisions eliminating the need to prove HGN testimony
“[a]s the product of reliable principles and methods[,]” N.C. Gen. Stat. § 8C-1, Rule
702(a)(2), we are compelled to hold that the trial court did not err by admitting
Trooper Coffey’s testimony without first making such a determination.
II. Speculation in Closing Argument
Defendant next argues that the trial court erred by not intervening ex mero
motu when the prosecutor speculated in the State’s closing argument about what
Defendant’s breathalyzer test result would have been an hour before she was actually
tested. In light of ample evidence and argument by the State that Defendant was
guilty based upon a theory of appreciable impairment, independent of her blood
alcohol concentration, we disagree.
“The standard of review for alleged errors in closing arguments ‘depends on
whether there was a timely objection made or overruled, or whether no objection was
made and defendant contends that the trial court should have intervened ex mero
motu.’ ” State v. Chappelle, 193 N.C. App. 313, 325, 667 S.E.2d 327, 334 (2008)
(quoting State v. Walters, 357 N.C. 68, 101, 588 S.E.2d 344, 364 (2003)). “Where no
objection was made, this Court reviews the remarks for gross impropriety.” Id. at
325, 667 S.E.2d at 334 (citations omitted).
In determining whether there was a gross impropriety, the remarks must be
such that “they rendered the trial and conviction fundamentally unfair.” State v.
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Allen, 360 N.C. 297, 306-07, 626 S.E.2d 271, 280 (2006). “[T]his Court considers the
context in which the remarks were made, as well as their brevity relative to the
closing argument as a whole[.]” State v. Taylor, 362 N.C. 514, 536, 669 S.E.2d 239,
259 (2008) (internal quotation marks and citations omitted).
In closing argument, the prosecutor stated: “The Defendant blew a .06 one hour
after driving. Blew a .06. What was she an hour before that? If you had that giant
instrument in the trunk of his car, what would it have been[] an hour before that?”
Defendant contends this statement amounted to grossly improper speculation in
violation of N.C. Gen. Stat. § 15A-1230(a). Our review of the record reveals that,
when viewed in context, the prosecutor’s statement does not constitute a “gross
impropriety.” The prosecutor urged the jury to disregard Defendant’s blood alcohol
concentration, and instead focus on Defendant’s failure to successfully complete
Trooper Coffey’s standardized field sobriety tests. The prosecutor emphasized to
jurors that they could find Defendant guilty without regard to her blood alcohol
concentration. Accordingly, we hold that the prosecutor’s statements were not so
grossly improper that the trial court erred by failing to intervene ex mero motu.
Conclusion
Under the newly amended Rule 702(a), a trial court need not inquire about the
reliability of HGN evidence before admitting an officer or other qualified expert to
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testify about the results of a particular HGN test. Additionally, the trial court did
not err by failing to intervene ex mero motu in the prosecutor’s closing argument.
NO ERROR.
Judges BRYANT and STROUD concur.
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