in the Court of Appeals 22 August 2016.
by Defendant from judgment entered 24 September 2015 by Judge
Alan Z. Thornburg in Buncombe County No. 14 CRS 090003
Attorney General Joshua H. Stein, by Assistant Attorney
General Ashleigh P. Dunston, for the State.
P. Lattimore for Defendant-Appellant.
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
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 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.
and Procedural History
State's evidence at trial tended to show the following:
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
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 drink that day; she
responded affirmatively. Trooper Coffey then asked Defendant
to step out of her vehicle to undergo several standardized
field sobriety tests.
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."
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 Coffey administered the Intoxilyzer
breath test at 7:18 p.m. The results of this breath test
indicated a blood alcohol concentration of .06.
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
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.
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 test results because the State had
not presented testimony "regarding his administration of
the test or how these methods were applied[.]"
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.
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
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.
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.
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 require Trooper Coffey to establish the
reliability of the HGN test prior to admitting the testimony.
Standard of Review
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).