State v. GodwinÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-766
Filed: 19 April 2016
Mecklenburg County, No. 11 CRS 202887
STATE OF NORTH CAROLINA
v.
WILLIAM EDWARD GODWIN, III, Defendant.
Appeal by defendant from judgment entered 15 November 2013 by Judge Gary
M. Gavenus in Mecklenburg County Superior Court. Heard in the Court of Appeals
27 January 2016.
Attorney General Roy Cooper, by Assistant Attorney General Teresa L.
Townsend, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for defendant.
ELMORE, Judge.
William Edward Godwin, III (defendant), appeals his conviction for driving
while impaired following a jury trial in superior court. The question for decision is
whether Rule 702(a1) of the North Carolina Rules of Evidence requires a witness to
be qualified as an expert before he may testify to the issue of impairment related to
HGN test results. We hold that it does.
I. Background
STATE V. GODWIN
Opinion of the Court
The State’s evidence at trial tended to show the following: On 18 January 2011,
at approximately 10:14 p.m., Daniel Kennerly, an officer with the Charlotte
Mecklenburg Police Department, observed defendant driving fourteen miles per hour
over the posted speed limit and executed a traffic stop. When he approached the
vehicle, Officer Kennerly noticed that defendant’s eyes were red and glassy, and he
detected a strong odor of alcohol coming from defendant’s breath. Officer Kennerly
asked defendant where he was coming from and how much alcohol, if any, he had
consumed that evening. In response, defendant stated that he had just left a
restaurant where he had consumed three beers. Officer Kennerly then asked
defendant to step out of his vehicle and began an investigation for impaired driving.
As part of his investigation, Officer Kennerly administered three field sobriety
tests: the Horizontal Gaze Nystagmus (HGN) test, the walk-and-turn, and the one-
leg stand. He observed four out of six possible indicators of impairment during the
HGN test, six out of eight possible indicators during the walk-and-turn, and two out
of four possible indicators during the one-leg stand. At that time, Officer Kennerly
placed defendant under arrest for driving while impaired and transported him to the
Mecklenburg County Sheriff’s Office’s Intoximeter site to perform a EC/IR II breath
test. The results of the Intoximeter showed that defendant’s blood-alcohol
concentration was .08.
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STATE V. GODWIN
Opinion of the Court
On 20 December 2011, defendant was convicted in Mecklenburg County
District Court of driving while impaired. He appealed to superior court, and the
matter came to trial at the 12 November 2013 Criminal Session of the Superior Court
for Mecklenburg County. At trial, defendant objected to Officer Kennerly’s HGN
testimony, arguing that the officer had to be qualified as an expert under Rule 702 of
the North Carolina Rules of Evidence before such testimony could be admitted. Over
defendant’s objections, the trial court allowed Officer Kennerly to testify, based on
his training and experience, as to his administration of the HGN test, the indicators
of impairment, and his opinion regarding defendant’s impairment based on the
indicators which he observed. At the conclusion of the trial, the jury found defendant
guilty of driving while impaired. Defendant gave notice of appeal in open court.
II. Discussion
Defendant first argues that the trial court erred in admitting Officer
Kennerly’s testimony regarding the HGN test results. Specifically, defendant
maintains that Rule 702(a1) requires a party offering testimony about the results of
an HGN test to do so through a properly qualified witness who has been accepted as
an expert by the trial court. Defendant contends, therefore, that in overruling his
objection and allowing Officer Kennerly to offer such testimony as a lay witness, the
trial court acted under a misapprehension of the law.
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STATE V. GODWIN
Opinion of the Court
“Issues of statutory construction are questions of law, reviewed de novo on
appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010) (citing
Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 264, 664 S.E.2d 569, 575 (2008)).
“ ‘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) (quoting In re Greens of Pine Glen, Ltd. P’ship,
356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
The North Carolina Supreme Court first addressed the admissibility of HGN
evidence in State v. Helms, 348 N.C. 578, 580, 504 S.E.2d 293, 294 (1998). On
discretionary review, the Court agreed with our conclusion that “the HGN test does
not measure behavior a lay person would commonly associate with intoxication, but
rather represents specialized knowledge that must be presented to the jury by a
qualified expert.” Id. at 581, 504 S.E.2d at 295 (emphasis added); see also State v.
Helms, 127 N.C. App. 375, 379, 490 S.E.2d 565, 568 (1997) (“[The HGN test] is based
upon a scientific principle that the extent and manner in which one’s eye quivers can
be a reliable measure of the amount of alcohol one has consumed.” (citation omitted)),
rev’d on other grounds, 348 N.C. 578, 504 S.E.2d 293. This meant that under the
prior version of Rule 702, the State had to show, inter alia, that the methodology
underlying the test was “sufficiently reliable,” State v. Pennington, 327 N.C. 89, 98,
393 S.E.2d 847, 852 (1990) (citations omitted), and that it “can be properly applied to
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STATE V. GODWIN
Opinion of the Court
the facts in issue,” State v. Goode, 341 N.C. 513, 527, 461 S.E.2d 631, 639 (1995)
(citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469
(1993)). Where no evidence was admitted, and no inquiry conducted, as to the
reliability of HGN testing, the Court held that it was error to admit an officer’s
testimony regarding the results of the HGN test administered on the defendant.
Helms, 348 N.C. at 582, 504 S.E.2d at 295.
After Helms was decided, the North Carolina General Assembly passed House
Bill 1048, which added subsection (a1) to Rule 702. 2006 Sess. Laws ch. 253, § 6.
Rule 702(a1) provides, in pertinent part, as follows:
(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. Gen. Stat. § 8C-1, Rule 702(a1) (2015). The first sentence of this subsection
contemplates that testimonial evidence concerning HGN test results be offered by an
expert witness. Although the prior version of Rule 702(a) was still in effect when
subsection (a1) was added, the bases on which a witness may be qualified as an expert
are the same under the current version. Rule 702(a), as amended, provides as follows:
(a) If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence or to
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STATE V. GODWIN
Opinion of the Court
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. Gen. Stat. § 8C-1, Rule 702(a) (2015) (emphasis added); cf. N.C. Gen. Stat. § 8C-
1, Rule 702(a) (2009) (“[A] witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion.”).
In accordance with Helms, therefore, Rule 702(a1) requires that before a
witness can testify as to the results of an HGN test, he must be “qualified as an expert
by knowledge, skill, experience, training, or education.” See Helms, 348 N.C. at 580–
81, 504 S.E.2d at 294–95. If the witness is so qualified and “proper foundation” is
established, the witness may “give expert testimony” as to the HGN test results,
subject to the additional limitations in subsection (a1). N.C. Gen. Stat. § 8C-1, Rule
702(a1) (emphasis added). Namely, the expert witness may testify “solely on the issue
of impairment and not on the issue of specific alcohol concentration,” and the HGN
test must have been “administered by a person who has successfully completed
training in HGN.” Id. (emphasis added).
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STATE V. GODWIN
Opinion of the Court
In the case sub judice, although Officer Kennerly completed a training course
in DWI detection and standardized field sobriety tests, there was never a formal offer
by the State to tender him as an expert witness. In fact, after conducting its own voir
dire, the trial court rejected defendant’s contention that Officer Kennerly must be
qualified as an expert before testifying as to the results of the HGN test:
THE 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?
MR. POWERS: I’d ask the Court to note my exception. Is
the Court disqualifying him as an expert on the HGN?
THE COURT: I’m not—he doesn’t have to be qualified as
an expert. I’m not going to make that requirement.
Thereafter, over defendant’s objection, Officer Kennerly testified that he “observed
four out of six” possible clues during the HGN test, which “indicates a probability that
the person could be impaired as a result of the consumption of alcohol.” Furthermore,
based on his interactions with defendant and defendant’s performance on all of the
field sobriety tests, including the HGN test, Officer Kennerly opined that defendant’s
“mental and physical faculties were appreciably impaired as a result of the
consumption of some impairing substance, that substance in this case being alcohol.”
Our application of Rule 702(a1) to the facts of this case leads us to conclude that the
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STATE V. GODWIN
Opinion of the Court
trial court erred in allowing a witness who had not been qualified as an expert under
Rule 702(a) to testify as to the issue of impairment based on the HGN test results.
The State, relying on our decision in State v. Smart, 195 N.C. App. 752, 674
S.E.2d 684 (2009), disc. review denied, 363 N.C. 810, 692 S.E.2d 874 (2010),
nevertheless argues for an interpretation of Rule 702(a1) that would not require an
arresting officer who administered the HGN test to be qualified as an expert before
testifying as to the HGN test results and the issue of impairment related thereto.
Unlike this case, however, the arresting officer in Smart was qualified as an expert
under Rule 702 before she testified as to her administration of the test. Id. at 755–
56, 674 S.E.2d at 685–86. And although the defendant’s argument, as it was initially
phrased, attacked the officer’s qualifications as an expert witness, the defendant’s
actual challenge went toward the testimony itself: “[The defendant] in fact specifies
that his argument pertains to whether the officer’s ‘method of proof’—that is, the
nystagmus testing—is sufficiently reliable as a basis for expert testimony.” Id. at
755, 674 S.E.2d at 685; see also Goode, 341 N.C. at 529, 461 S.E.2d at 640 (“Once the
trial court has determined that the method of proof is sufficiently reliable as an area
for expert testimony, the next level of inquiry is whether the witness . . . is qualified
as an expert to apply this method to the specific facts of the case.” (citing N.C. Gen.
Stat. § 8C-1, Rule 702 (1992)). Addressing this argument, we explained that, at least
under the prior version of Rule 702(a), before admitting expert opinion testimony the
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STATE V. GODWIN
Opinion of the Court
trial court had to make “a preliminary assessment of whether the reasoning or
methodology underlying the testimony is sufficiently valid.” Id. at 756, 674 S.E.2d at
686 (quoting Goode, 341 N.C. at 527, 461 S.E.2d at 639); see also N.C. Gen. Stat. § 8C-
1, Rule 104(a) (2015) (“Preliminary questions concerning the qualification of a person
to be a witness . . . or the admissibility of evidence shall be determined by the court,
subject to the provisions of subdivision (b).”). At that time, we interpreted subsection
(a1) “as obviating the need for the State to prove that the HGN testing method is
sufficiently reliable.” Id. Our holding in Smart went no further, and it has no
application here. While some may even question whether Smart survives the
amendment to Rule 702(a), that issue is not the one presently before us.
Having concluded that the trial court erred in admitting Officer Kennerly’s
testimony, we must now determine whether the error was prejudicial so as to warrant
a new trial. “In order to establish prejudicial error in the erroneous admission of the
HGN evidence, defendant must show only that had the error in question not been
committed, a reasonable possibility exists that a different result would have been
reached at trial.” Helms, 348 N.C. at 583, 504 S.E.2d at 296 (citing N.C. Gen. Stat. §
15A-1443(a) (1997)).
The remaining evidence presented at trial shows the following: (1) Officer
Kennerly stopped defendant for speeding; (2) when Officer Kennerly initiated the
stop, defendant activated his turn signal, pulled onto the next side street, and came
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STATE V. GODWIN
Opinion of the Court
to a stop at roadside in a safe location; (3) defendant was not weaving, and he made
no sharp or sudden turns to avoid the traffic stop; (4) two experts testified that they
would have expected to see some indicators of impairment which defendant did not
exhibit while operating the vehicle; (5) defendant had no problem retrieving his
license or registration; (6) defendant did not tilt his head away from Officer Kennerly
or otherwise try to avoid contact with him; (7) Officer Kennerly noticed that
defendant’s eyes were red and glassy, and he smelled a “strong odor of an alcoholic
beverage coming from his breath”; (8) one expert testified that “the odor of alcohol is
simply an indicator of presence of alcohol” and that there is “no basis for an opinion
that correlates the strength of an odor to . . . blood alcohol concentration in the body”;
(9) defendant told Officer Kennerly that he had just left a restaurant where he had
consumed three beers that evening; (10) when asked to step out of the vehicle,
defendant removed his seatbelt without difficulty, he did not use the doorframe or
the vehicle for support while exiting, and he did not stagger or sway once he was out
of the vehicle; (11) Officer Kennerly observed six out of eight possible clues during
the walk-and-turn test, and two out of four possible clues on the one-leg stand test;
(12) defendant repeatedly told Officer Kennerly that he had to use the restroom, and
two experts agreed that defendant’s need to urinate could have adversely affected his
performance on the tests; (13) one of the experts, who reviewed the video from Officer
Kennerly’s dash camera, testified that Officer Kennerly should not have counted
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STATE V. GODWIN
Opinion of the Court
three of the six clues he observed during the walk-and-turn test; that the steep grade
of the road where defendant performed the one-leg stand could have adversely
affected defendant’s performance on the test; and that the presence of traffic on the
narrow road where the tests were administered, along with the cold weather that
evening, could also have affected defendant’s performance on the tests; (14) Helen
Godwin, defendant’s mother, testified that when she saw defendant at the police
station, his eyes were not red or glassy, he did not smell of alcohol, his speech was
normal, and she did not believe he was impaired; (15) after being placed under arrest
and transported to the Intoximeter site, defendant registered a .08 on the
Intoximeter. Based on the foregoing, particularly the conflicting evidence regarding
defendant’s performance on the other field sobriety tests, we conclude a reasonable
possibility exists that, had the HGN test results not been admitted, a different result
would have been reached at trial.
B. Jury Instructions
Defendant also contends that trial court erred in denying his request for the
following jury instruction concerning the results of the Intoximeter:
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 to give such chemical
analysis when considering whether the defendant’s guilt
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STATE V. GODWIN
Opinion of the Court
has been proven beyond a reasonable doubt.
According to defendant, the requested instruction was necessary to inform the jury
that the Intoximeter results were sufficient to support a finding of impaired driving
but did not compel such a finding beyond a reasonable doubt. By charging the jury
using Pattern Jury Instruction 270.20A, defendant claims the trial court impressed
upon the jury that it could not consider evidence which showed that defendant was
not impaired.
“When a defendant requests a special jury instruction, ‘the trial court is not
required to give [the] requested instruction in the exact language of the request.
However, when the request is correct in law and supported by the evidence in the
case, the court must give the instruction in substance.’ ” State v. Beck, 233 N.C. App.
168, 171, 756 S.E.2d 80, 82 (alteration in original) (quoting State v. Monk, 291 N.C.
37, 54, 229 S.E.2d 163, 174 (1976)), writ of supersedeas denied, disc. review denied,
367 N.C. 508, 759 S.E.2d 94 (2014). To establish error, therefore, the defendant “must
show that the requested instructions were not given in substance and that
substantial evidence supported the omitted instructions.” State v. Garvick, 98 N.C.
App. 556, 568, 392 S.E.2d 115, 122 (citing State v. White, 77 N.C. App. 45, 52, 334
S.E.2d 786, 792, cert. denied, 315 N.C. 189, 337 S.E.2d 864 (1985)), aff’d per curiam,
327 N.C. 627, 398 S.E.2d 330 (1990). “The defendant also bears the burden of showing
that the jury was misled or misinformed by the instructions given.” Beck, 233 N.C.
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STATE V. GODWIN
Opinion of the Court
App. at 171, 756 S.E.2d at 82 (citing State v. Blizzard, 169 N.C. App. 285, 297, 610
S.E.2d 245, 253 (2005)).
As defendant acknowledges in his brief, we have previously rejected his
argument concerning Pattern Jury Instruction 270.20A. In Beck, we concluded that
the trial court’s use of the pattern jury instruction
[270.20A] informed the jury that in order to return a
verdict of guilty, it must be convinced beyond a reasonable
doubt that Defendant’s alcohol concentration was .08 or
more. This instruction informed the jury, in substance,
that it was not compelled to return a guilty verdict based
simply on the chemical analysis results showing a .10
alcohol concentration.
Beck, 233 N.C. App. at 171–72, 756 S.E.2d at 83. The trial court also “informed the
jury that it possessed the authority to determine the weight of any evidence offered
to show that Defendant was—or was not—impaired.” Id. at 172, 756 S.E.2d at 83
(citations omitted). Despite defendant’s attempt to distinguish Beck from the case
sub judice, we are unable to do so. Accordingly, we reject defendant’s second
argument. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)
(“Where a panel of the Court of Appeals has decided the same issue, albeit in a
different case, a subsequent panel of the same court is bound by that precedent,
unless it has been overturned by a higher court.”).
III. Conclusion
Although the trial court’s jury instructions were proper, we conclude that the
trial court erred in admitting Officer Kennerly’s testimony regarding the HGN test
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STATE V. GODWIN
Opinion of the Court
results and the issue of defendant’s impairment related thereto, without requiring
him to be qualified as an expert under Rule 702(a). Based on the remaining evidence
presented at trial, we further conclude a reasonable possibility exists that, had the
error not occurred, the jury would have reached a different result. Defendant is
entitled to a new trial.
NEW TRIAL.
Judges STROUD and DIETZ concur.
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