Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/26/2021
E.g., 09/26/2021
State v. Godwin, 369 N.C. 604 (June 9, 2017)

Reversing the Court of Appeals, the court held that Evidence Rule 702(a1) does not require the trial court to explicitly recognize a law enforcement officer as an expert witness pursuant to Rule 702(a) before he can testify to the results of a HGN test. Rather, the court noted, prior case law establishes that an implicit finding will suffice. Reviewing the record before it, the court found that here, by overruling the defendant’s objection to the witness’s testimony, the trial court implicitly found that the officer was qualified to testify as an expert. The court noted however that its ability to review the trial court’s decision “would have benefited from the inclusion of additional facts supporting its determination” that the officer was qualified to testify as an expert.

An anonymous person contacted law enforcement to report that a small green vehicle with license plate RCW-042 was in a specific area, had run several vehicles off the road, had struck a vehicle, and was attempting to leave the scene. Deputies went to the area and immediately stopped a vehicle matching the description given by the caller. The defendant was driving the vehicle. She was unsteady on her feet and appeared to be severely impaired. A trooper arrived and administered SFSTs, which the trooper terminated because the defendant could not complete them safely. A subsequent blood test revealed multiple drugs in the defendant’s system. The defendant was charged with impaired driving, was convicted in district court and in superior court, and appealed.

The defendant argued that the superior court judge erred by allowing a drug recognition expert (DRE) who was not involved in the stop to testify that in her opinion, based on her conversation with the trooper and her review of his report, the defendant was impaired by a central nervous system depressant and a narcotic analgesic. The reviewing court found no error, noting that N.C. R. Evid. 702(a1)(2) allows DREs to offer opinions regarding impairment.

In this DWI case the trial court did not abuse its discretion by admitting an officer’s expert testimony that the defendant was under the influence of a central nervous system depressant. On appeal the defendant argued that the State failed to lay a sufficient foundation under Rule 702 to establish the reliability of the Drug Recognition Examination to determine that alprazolam was the substance that impaired the defendant’s mental or physical faculties. The defendant also argued that the officer’s testimony did not show that the 12-step DRE protocol was a reliable method of determining impairment. The court rejected these arguments, noting that pursuant to Rule 702(a1)(2), the General Assembly has indicated its desire that Drug Recognition Evidence, like that given in the present case, be admitted and that this type of evidence already has been determined to be reliable and based on sufficient facts and data. Accordingly, the trial court properly admitted the testimony. 

The trial court did not err by admitting an officer’s testimony about the results of a horizontal gaze nystagmus (HGN) test. At trial, the North Carolina Highway Patrol Trooper who responded to a call regarding a vehicle accident was tendered as an expert in HGN testing. The defendant objected to the Trooper being qualified as an expert. After a voir dire the trial court overruled the defendant’s objection and the Trooper was permitted to testify. On appeal, the defendant argued that the witness failed to provide the trial court with the necessary foundation to establish the reliability of the HGN test. Citing Godwin and Younts (holding that Evidence Rule 702(a1) obviates the State’s need to prove that the HGN testing method is sufficiently reliable), the court determined that such a finding “is simply unnecessary.” 

Following its decision in State v. Babich, ___ N.C. App. ___, 797 S.E.2d 359 (2017), in this DWI case the court held that the State’s expert testimony regarding retrograde extrapolation was inadmissible under Daubert and Rule 702. The expert used the defendant’s .06 BAC 1 hour and 35 minutes after the traffic stop to determine that the defendant had a BAC of .08 at the time of the stop. To reach this conclusion the expert assumed that the defendant was in a post-absorptive state at the time of the stop, meaning that alcohol was in the process of being eliminated from his bloodstream and that his BAC was in decline. The expert admitted that while there were no facts to support this assumption, it was required so that he could complete his retrograde extrapolation analysis. The State conceded error under Babich and argued only that the error was not prejudicial. The court found otherwise and reversed and remanded for a new trial.

The trial court did not err by allowing a state trooper to testify about the results of a chemical analysis of the defendant’s breath. On appeal, the defendant argued that the State failed to provide an adequate foundation for this testimony. Specifically, the court found that the requirements of G.S. 20-139.1 were satisfied. Here, the trooper testified: that he was certified by the Department of Human Resources to perform chemical breath analysis using the ECIR2 machine; that the defendant’s breath analysis was conducted on the ECIR2 machine; that he set up the ECIR2 machine in preparation for the defendant’s test according to the procedures established by the Department; about those specific procedures and that he followed the procedures in this instance; and that the machine worked properly and produced a result for defendant’s breath test. The court noted:

Although the trooper did not explicitly state that he had a Department issued permit to conduct chemical analysis on the day he conducted defendant’s breath test, which is certainly best practice, we hold the trooper’s testimony that he was certified to conduct chemical analysis by the Department and that he performed the chemical analysis according to the Department’s procedures was adequate in this case to lay the necessary foundation for the admission of chemical analysis results.

The trial court did not commit plain error by allowing a trooper to testify at trial about the HGN test he administered on the defendant during the stop where the State never formally tendered the trooper as an expert under Rule 702. The court noted that during the pendency of the appeal the state Supreme Court decided State v. Godwin, ___ N.C. ___, ___ 800 S.E.2d 47, 48 (2017) (Evidence Rule 702(a1) does not require a law enforcement officer to be recognized explicitly as an expert witness pursuant to Rule 702 before the officer may testify to the results of a HGN test), which controls this case. As in Godwin, the defendant was not arguing that the officer was unqualified to testify as an expert, but only that he had to be formally tendered as such. Under Godwin “it was simply unnecessary for the State to make a formal tender of the trooper as an expert on HGN testing.”

In this DWI case to which the amended version of Evidence Rule 702 applied, the court held that 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) of the rule. Evidence Rule 702(a1) obviates the State’s need to prove that the HGN testing method is sufficiently reliable.

In this DWI case, the trial court erred by admitting retrograde extrapolation testimony by the State’s expert witness. That expert used the defendant’s 0.07 blood alcohol concentration 1 hour and 45 minutes after the traffic stop to extrapolate that the defendant had a blood alcohol concentration of 0.08 to 0.10 at the time of the stop. To reach this conclusion, the expert assumed that the defendant was in a post-absorptive state at the time of the stop, meaning that alcohol was no longer entering the defendant’s bloodstream and thus her blood alcohol level was declining. The expert conceded that there were no facts to support this assumption. The expert made this assumption not because it was based on any facts in the case, but because her retrograde extrapolation calculations could not be done unless the defendant was in a post-absorptive state. The expert’s testimony was inadmissible under the Daubert standard that applies to Evidence Rule 702. The court added: “Although retrograde extrapolation testimony often will satisfy the Daubert test, in this case the testimony failed Daubert’s ‘fit’ test because the expert’s otherwise reliable analysis was not properly tied to the facts of this particular case.” It explained:

[W]hen an expert witness offers a retrograde extrapolation opinion based on an assumption that the defendant is in a post-absorptive or post-peak state, that assumption must be based on at least some underlying facts to support that assumption. This might come from the defendant’s own statements during the initial stop, from the arresting officer’s observations, from other witnesses, or from circumstantial evidence that offers a plausible timeline for the defendant’s consumption of alcohol.

         When there are at least some facts that can support the expert’s assumption that the defendant is post-peak or post-absorptive, the issue then becomes one of weight and credibility, which is the proper subject for cross-examination or competing expert witness testimony. But where, as here, the expert concedes that her opinion is based entirely on a speculative assumption about the defendant—one not based on any actual facts—that testimony does not satisfy the Daubert “fit” test because the expert’s otherwise reliable analysis is not properly tied to the facts of the case.

The court went on to find that in light of the strength of the State’s evidence that the defendant was appreciably impaired, the error was not prejudicial.

In this DWI case, the trial court erred by denying the defendant’s motion to exclude an officer’s Horizontal Gaze Nystagmus (“HGN”) testimony and allowing the officer to testify about the results of the HGN test without qualifying him as an expert under Rule 702. Citing State v. Godwin, ___ N.C. App. ___, 786 S.E.2d 34, 37 (2016), review allowed, ___ N.C. ___, 795 S.E.2d 209 (Sept. 22, 2016), the court held that it was error to allow the officer to testify without being qualified as an expert. The court went on to conclude that the error did not have a probable impact on the jury’s verdict under the plain error standard.

Following its opinion in Godwin, above, the court held, in this DWI case, that the trial court erred by admitting lay opinion testimony on the results of an HGN test and that a new trial was required.

(1) In this DWI case, the trial court did not abuse its discretion by allowing the State’s witness, a field technician in the Forensic Test of Alcohol Branch of the NC DHHS, who demonstrated specialized knowledge, experience, and training in blood alcohol physiology, pharmacology, and related research on retrograde extrapolation to be qualified and testify as an expert under amended Rule 702. (2) The trial court erred by allowing a law enforcement officer to testify as to the defendant’s blood alcohol level; however, based on the other evidence in the case the error did not rise to the level of plain error. The court noted that Rule 702(a1) provides:

A witness, qualified under subsection (a) … 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.

At trial, the officer’s testimony violated Rule 702(a1) on the issue of the defendant’s specific alcohol concentration level as it related to the results of the HGN Test.

(1) The trial court did not abuse its discretion by qualifying the State’s witness as an expert in the fields of forensic blood alcohol physiology and pharmacology, breath and blood alcohol testing, and the effects of drugs on human performance and behavior. The witness was the head of the Forensic Test for Alcohol branch of the N.C. Department of Health and Human Services, oversaw the training of law enforcement officers on the operation of alcohol breath test instruments and of drug recognition experts. His specialty is in "scientific issues related to breath testing and blood testing for drugs and alcohol." He has a B.A. and master's in biology and is certified as a chemical analyst. He attended courses on the effects of alcohol on the human body and various methods for determining alcohol concentrations and the effects of drugs on human psychomotor performance. He has published several works and has previously been qualified as an expert in forensic blood alcohol physiology and pharmacology, breath and blood alcohol testing, and the effects of drugs on human performance and behavior over 230 times in North Carolina. Despite his lack of a formal degree or certification in physiology and pharmacology, his extensive practical experience qualifies him to testify as an expert. (2) The trial court did not abuse its discretion by admitting the State’s expert’s testimony regarding the relative amount of cocaine in the defendant's system at the time of the collision and the effects of cocaine on an individual's ability to drive. The defendant argued that the testimony was based upon unreliable methods. Based on cocaine’s half-life and a report showing unmetabolized cocaine in the defendant’s system, the expert determined that the defendant had recently used cocaine and that the concentration of cocaine in his system would have been higher at the time of the crash. On cross-examination, he testified that there was no way to determine the quantity of cocaine in the defendant's system. He further testified as to the effects of cocaine on driving ability, noting a correlation between "high-risk driving, speeding, [and] sometimes fleeing . . . when cocaine is present." He based this testimony on a study which "looked at crashes and behaviors and found [an] association or correlation between the presence of cocaine and high-risk driving." He testified that it was possible for cocaine to be detected in a person's system even after the person was no longer impaired by the drug. The expert’s testimony that the level of cocaine in the defendant's system would have been higher at the time of the collision and his testimony as to the general effects of cocaine on a person's ability to drive was supported by reliable methods. Notably, the defendant's expert corroborated this testimony both as to the half-life of cocaine and the existence of studies showing a correlation between the effects of cocaine and "high-risk" driving.

The trial judge did not commit plain error by allowing a witness accepted as an expert forensic toxicologist to testify about the effects of cocaine on the body. The defendant had argued that this testimony was outside of the witness’s area of expertise. The court concluded that “[a]s a trained expert in forensic toxicology with degrees in biology and chemistry, the witness in this case was plainly in a better position to have an opinion on the physiological effects of cocaine than the jury.”

(1) In an impaired driving case, the trial court did not abuse its discretion by allowing the State’s witness to testify as an expert in pharmacology and physiology. Based on his knowledge, skill, experience, training, and education, the witness was better informed than the jury about the subject of alcohol as it relates to human physiology and pharmacology. (2) The court rejected the defendant’s argument that the trial court erred by allowing the expert to give opinion testimony regarding the defendant’s post-driving consumption of alcohol on grounds that such testimony was an opinion about the truthfulness of the defendant’s statement that he consumed wine after returning home. The court concluded that because the expert’s testimony was not opinion testimony concerning credibility, the trial court did not err by allowing the expert to testify as to how the defendant’s calculated blood alcohol content would have been altered by the defendant’s stated post-driving consumption; the expert’s statements assisted the jury in determining whether the defendant’s blood alcohol content at the time of the accident was in excess of the legal limit. (3) The trial court did not abuse its discretion by admitting the expert’s opinion testimony regarding retrograde extrapolation in a case where the defendant asserted that he consumed alcohol after driving. The defendant’s assertions of post-driving alcohol consumption went to the weight of the expert’s testimony, not its admissibility.

State v. Davis, 208 N.C. App. 26 (Nov. 16, 2010)

The trial court committed reversible error by allowing the State’s expert to use “odor analysis” as a baseline for his opinion as to the defendant’s blood-alcohol level (BAC) at the time of the accident, formed using retrograde extrapolation. When the defendant reported to the police department more than ten hours after the accident, she was met by an officer. Although the officer did not perform any tests on the defendant, he detected an odor of alcohol on her breath. The expert based his retrograde extrapolation analysis on the officer’s report of smelling alcohol on the defendant’s breath. He testified that based on “look[ing] at some papers, some texts, where the concentration of alcohol that is detectable by the human nose has been measured[,]” the lowest BAC that is detectable by odor alone is 0.02. He used this baseline for his retrograde extrapolation and opined that at the time of the accident, the defendant had a BAC of 0.18. The court noted that because odor analysis is a novel scientific theory, an unestablished technique, or a compelling new perspective on otherwise settled theories or techniques, it must be accompanied by sufficient indices of reliability. Although the expert testified that “there are published values for the concentrations of alcohol that humans . . . can detect with their nose,” he did not specify which texts provided this information, nor were those texts presented at trial. Furthermore, there was no evidence that the expert performed any independent verification of an odor analysis or that he had ever submitted his methodology for peer review. Thus, the court concluded, the method of proof lacked the required indices of reliability. The court also noted that while G.S. 20-139.1 sets out a thorough set of procedures governing chemical analyses of breath, blood, and urine, the odor analysis lacked any of the rigorous standards applied under that provision. It concluded that the expert’s retrograde extrapolation was not supported by a reliable method of proof, that the odor analysis was so unreliable that the trial court's decision was manifestly unsupported by reason, and that the trial court abused its discretion in admitting this testimony.

In a DWI/homicide case, the trial court erred by allowing a state’s witness to testify about ingredients and effect of Narcan. Although the state proffered the testimony as lay opinion, it was actually expert testimony. When the state called the witness, it elicited extensive testimony regarding his training and experience and the witness testified that Narcan contains no alcohol and has no effect on blood-alcohol content. Because the witness offered expert testimony and because the state did not notify the defendant during discovery that it intended to offer this expert witness, the trial court erred by allowing him to testify as such. However, the error was not prejudicial.

Rule 702(a1) obviates the state’s need to prove that the horizontal gaze nystagmus testing method is sufficiently reliable.

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