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State v. Fowler

Court of Appeals of North Carolina

May 16, 2017


          Heard in the Court of Appeals 8 March 2017.

         Appeal by Defendant from judgment entered 2 March 2016 by Judge A. Graham Shirley in Wake County Superior Court Wake County, No. 14 CRS 214112.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Christopher W. Brooks, for the State.

          Yoder Law PLLC, by Jason Christopher Yoder, for defendant-appellant.

          HUNTER, JR., Robert N., Judge.

         Melvin Leroy Fowler ("Defendant") appeals a jury verdict convicting him of driving while impaired ("DWI"). On appeal, Defendant contends the trial court erred by: (1) instructing the jury on a theory of impaired driving unsupported by the evidence, thus violating Defendant's constitutional right to a unanimous jury verdict; and (2) allowing Officer Monroe to testify as an expert witness regarding the horizontal gaze Nystagmus ("HGN") test. For the following reasons, we grant Defendant a new trial.

         I. Factual and Procedural Background

         On 19 June 2014, Officer R. P. Monroe of the Raleigh Police Department ("RPD") stopped Defendant and arrested him for DWI. On 24 February 2015, Wake County District Court Judge James R. Fullwood found Defendant guilty of DWI. Defendant appealed to superior court for a jury trial, pursuant to N.C. Gen. Stat. § 15A-1431 (2016).

         On 1 March 2016, the trial court called Defendant's case for trial. The evidence at trial tended to show the following.

         The State first called Officer Monroe. On Thursday, 19 July 2014, Officer Monroe worked the night shift for the RPD. Aware the Wake County Sheriff's Office set up a checkpoint on Gorman Street, Officer Monroe visited the checkpoint to see if he could assist.

         Officer Monroe rode down Avent Ferry Road on his motorcycle. When he was less than a half a mile from Gorman Street, he came to a point where Crest Road T-intersects with Avent Ferry Road. Officer Monroe saw Defendant's truck on Crest Road. Defendant pulled out in front of Officer Monroe's motorcycle. Officer Monroe "lock[ed] the bike up"[1], "ma[d]e an evasive maneuver", and "dip[ped]" into the right lane to avoid hitting Defendant's truck. Officer Monroe's motorcycle and Defendant's truck came within "maybe two or three feet" of each other. Officer Monroe activated his blue lights and stopped Defendant for unsafe movement. Defendant stopped his truck at a stop sign at the intersection of Avent Ferry Road and Champion Court.

         Officer Monroe introduced himself and explained he stopped Defendant because Defendant almost ran into his motorcycle. Officer Monroe saw Defendant's red, glassy eyes. He smelled a "medium" odor of alcohol on Defendant's breath. Defendant spoke with slurred speech. Officer Monroe asked Defendant why he pulled out in front of his motorcycle. Defendant remarked Officer Monroe had enough room and he "was catching [Officer Monroe's] curiosity."

         Officer Monroe asked Defendant if he drank any alcohol that night. Defendant responded "one to two" servings of Jägermeister, and he was only driving a short distance. Officer Monroe asked Defendant to get out of his truck to participate in a series of field sobriety tests. Defendant agreed.

         Officer Monroe conducted three field sobriety tests: HGN, walk-and-turn, and one-leg stand. Officer Monroe first conducted the HGN test. Officer Monroe turned Defendant away from traffic, so passing headlights did not affect Defendant's eyes. He directed Defendant to stand facing him, with his feet together and hands to the side. Officer Monroe elevated Defendant's head slightly and held his finger in front of Defendant. He informed Defendant he was going to move his finger from left to right and instructed Defendant to follow his finger with Defendant's eyes. Defendant stated he understood the instructions, and Officer Monroe started the test. During the test, Defendant displayed a lack of "smooth pursuit" in both eyes, which Officer Monroe considered "two clues." Defendant ultimately displayed six out of six possible clues, three in each eye. Based on this test and the odor of alcohol, Officer Monroe concluded Defendant "had an impairing amount of alcohol in his system."

         Officer Monroe also conducted two "divided attention" tests. The first test is the walk-and-turn. Officer Monroe instructed Defendant to place his left foot in front, with both hands to his sides, and move his right foot heel-to-toe. Officer Monroe told Defendant to stay in the heel-to-toe position while he gave Defendant further instructions. Officer Monroe next instructed Defendant to take nine heel-to-toe steps while keeping his hands at his sides, and counting out loud.

         Defendant failed to follow instructions. Defendant swayed and stepped out of the starting stance. Officer Monroe instructed Defendant to return to the starting stance. Defendant then started the test too soon, stepped out of position, and lost his balance. Officer Monroe again instructed Defendant to stand in the starting position, but Defendant stepped out. The third time Officer Monroe instructed Defendant to get back in starting position, Defendant told Officer Monroe he could not do the test. Defendant then told Officer Monroe he was not going to do the test without his kneepads. Officer Monroe concluded the test.

         Officer Monroe asked Defendant if he was willing to do the one-leg stand test. Defendant agreed. Officer Monroe instructed Defendant to keep his feet together, put his hands to his side, and stay in that position. Defendant was then to lift one foot with his toes pointed to the ground, and keep his foot parallel with the ground. While looking at his foot, Defendant would count to three. Next, Defendant should put his foot down and repeat the lift, as he continued counting from where he left off.

         Defendant swayed when Officer Monroe started the test. Defendant also failed to follow the instructions. Defendant "barely got his foot off the ground" and failed to look down at his toes. When Officer Monroe instructed Defendant to lift his foot six inches off the ground, Defendant told Officer Monroe he did not know how much six inches was. Officer Monroe offered to demonstrate the test again. Defendant said he no longer wanted to do the test.

         Officer Monroe told Defendant he would like to take a preliminary sample of Defendant's breath. He explained this test was not admissible in court, but rather just a test for positive or negative of alcohol. Defendant refused.

         Officer Monroe arrested Defendant for DWI. After booking Defendant, Officer Monroe brought Defendant into the DWI testing room. He presented Defendant with a form for implied consent. Officer Monroe read Defendant his rights. Defendant signed the form, acknowledging he understood his rights. Defendant then placed a call. Officer Monroe did not know if Defendant called someone to observe the administration of tests.

         Thirty minutes later, Officer Monroe administered the Intoxilyzer test. Officer Monroe instructed Defendant on how to correctly blow into the breathalyzer. However, Defendant stopped blowing air into the instrument before Officer Monroe told him to stop. The instrument "shut[] down" and displayed "insufficient sample." Officer Monroe again instructed Defendant on how to correctly blow into the instrument. Defendant said he had cancer, which prevented him from properly blowing into the instrument. Defendant then told Officer Monroe he was not going to blow into the instrument. Officer Monroe explained to Defendant his breathing was sufficient, but Defendant prematurely stopped blowing. Officer Monroe told Defendant if Defendant did not blow into the instrument, he was "going to refuse him." "Refusing" constitutes pressing the refusal button on the instrument, which indicates Defendant's "willful refusal not to provide a breath sample on the instrument for the purposes of a DWI investigation."

         The State rested, and Defendant moved to dismiss the case. The trial court denied Defendant's motion to dismiss. Defendant did not present any evidence. Defendant renewed his motion to dismiss, and the trial court denied Defendant's motion.

         When discussing jury instructions, the State requested "the .08 instruction." Defendant objected to the .08 instruction, because "there was no evidence to [any] sort of an actual number of any blood alcohol level . . . ." The trial court decided it would use the .08 instruction and reasoned:

Well, if you argue they haven't shown .08 I'm going to give that instruction or they haven't shown his blood alcohol content I will give that instruction because you can't have it both ways. You can't -- you can't object to the instruction and argue that they haven't shown his [blood alcohol content] because there [is] more than one way to prove the offense.

         The jury found Defendant guilty of driving while impaired. Defendant admitted to the existence of two driving while impaired convictions. Defendant admitted to the aggravating fact of driving while license revoked due to a DWI conviction. The trial court sentenced Defendant as an Aggravated Level One offender and sentenced him to 24 months imprisonment. Defendant gave timely oral notice of appeal.

         II. Standard of Review

         Challenges to the trial court's "decisions regarding jury instructions are reviewed de novo by this Court." State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009) (citations omitted). In a de novo review, this 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 citation omitted).

         "It is well settled that de novo review is ordinarily appropriate in cases where constitutional rights are implicated." Piedmont Triad Reg'l Water Auth. v. Sumner Hills, Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (citations omitted). If an error is preserved for review, but does not arise under the Constitution of the United States, we review for prejudicial error. N.C. Gen. Stat. § 15A-1443(a) (2016).

         Lastly, in regards to Officer Monroe's expert opinion testimony, the trial court's ruling on expert testimony under Rule 702 is typically reviewed for abuse of discretion. State v. McGrady, 368 N.C. 880, __, 787 S.E.2d 1, 11 (2016) (citation omitted). "And 'a trial court may be reversed for abuse of discretion only upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision.'" Id. at __, 787 S.E.2d at 11 (quoting State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986)). However, "[w]here the [defendant] 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." State v. Torrence, __ N.C.App. __, __, 786 S.E.2d 40, 41 (2016) (quotation marks and citations omitted).

         III. Analysis

         We review Defendant's contentions in two parts: (A) jury instructions for impaired driving under N.C. Gen. Stat. § 20-138.1 (a)(2); and (B) Officer Monroe's expert testimony regarding the HGN test.

         A. Jury Instructions ...

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