IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-97
Filed: 19 December 2017
Brunswick County, No. 15 CRS 50635
STATE OF NORTH CAROLINA
v.
CHRISTOPHER DAVID BARKER
Appeal by Defendant from judgment entered 24 August 2016 by Judge Ola M.
Lewis in Superior Court, Brunswick County. Heard in the Court of Appeals 21
August 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Kristin J.
Uicker, for the State.
Richard J. Costanza for Defendant.
McGEE, Chief Judge.
Christopher David Barker (“Defendant”) appeals from judgments entered after
a jury found him guilty of driving while impaired (“DWI”). Defendant argues that
the trial court erred by admitting testimony about the results of a horizontal gaze
nystagmus test (“HGN”) because the testifying officer did not establish the
evidentiary foundation required for expert testimony. We disagree and find no error.
I. Background
Defendant was convicted of driving while impaired in Brunswick County
District Court (“the district court”) on 10 December 2015. Upon appeal, Defendant’s
STATE V. BARKER
Opinion of the Court
case was then tried before a jury in Brunswick County Superior Court (“the superior
court”) on 22 August 2016. The State’s sole witness at trial was Trooper David Inman
of the North Carolina Highway Patrol (“Trooper Inman”). Trooper Inman testified he
responded to a call on 7 February 2015 regarding a vehicle accident near Leland,
North Carolina. When Trooper Inman arrived at the scene of the accident,
approximately thirty to forty-five minutes after receiving the call, he saw that a single
vehicle had become stuck in a small wooded area after having driven through a T-
shaped intersection. Defendant was at the scene and admitted that he had been
driving the vehicle, but claimed he did not see the stop sign at the intersection
because he was distracted by his cell phone.
Trooper Inman noted that Defendant seemed unsteady, sleepy, and “thick-
tongued.” He also testified there was a moderate odor of alcohol coming from
Defendant’s breath. Trooper Inman asked Defendant if he had been drinking.
Defendant admitted that he had consumed a twenty-two ounce beer and a few sips of
another. Trooper Inman asked Defendant to blow into an Alco-Sensor, which
Defendant did, and the Alco-Sensor indicated Defendant had, in fact, consumed
alcohol. As a result, Trooper Inman asked Defendant to perform a variety of
standardized field sobriety tests (“SFSTs”). The SFSTs included the walk-and-turn
test (“WAT”), the one-leg-stand test (“OLS”), and the HGN test. After Defendant
completed all the tests, Trooper Inman testified he was of the opinion that
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Opinion of the Court
Defendant’s mental and physical capacities were impaired by alcohol. He then
arrested Defendant for DWI.
Trooper Inman described the HGN testing procedures he had used and the
State tendered him as an expert in HGN testing. Trooper Inman testified the HGN
test involves “ask[ing] someone to follow a stimulus with just their eyes,” while the
administering officer looks for nystagmus, which is “a twitching of the eye.” These
eye twitches occur when a person has consumed alcohol, and at different angles
depending on the level of intoxication. Trooper Inman testified that the
administering officer is looking for whether the nystagmus had “onset prior to 45
degrees.” Before beginning the test, the officer must observe the eye while the subject
is looking forward in order to determine whether the subject has a natural, resting
nystagmus. Trooper Inman explained that:
[I]f whenever you're watching the tip of my finger, if I see
your eyes shaking, then it's occurring naturally. So there's
no sense in me taking -- doing the test at all, because if it's
occurring naturally, I can't tell if there is anything in your
system that's causing that to happen.
Trooper Inman testified that a resting nystagmus occurs in “less than 1 percent
of the population” and “can occur when someone has some type of head injury.” He
then testified that Defendant did not have a resting nystagmus, that Defendant’s eyes
were unable to smoothly follow the object, and that his nystagmus had onset prior to
forty-five degrees in both eyes.
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Opinion of the Court
Defendant objected to Trooper Inman being qualified as an expert and moved
for a voir dire of the witness. Trooper Inman then testified that, as part of his basic
law enforcement training, he received twenty-four hours of training on standard field
sobriety testing; that he later participated in a sixteen-hour training course called
Advanced Roadside Impaired Driving Enforcement (“ARIDE”); and that he received
two-hour refresher courses on a yearly basis as part of his in-service training. The
ARIDE training course included reading medical studies regarding the SFSTs,
including HGN testing. The trial court overruled Defendant’s objection and Trooper
Inman was permitted to testify as an expert. After Trooper Inman was accepted as
an expert, Defendant did not object to or move to strike any of Trooper Inman’s
testimony regarding the HGN testing.
Trooper Inman further discussed the method of administering the SFSTs,
including HGN. He testified that Defendant displayed six out of six indicators of
impairment during the HGN test. Trooper Inman testified that, based on the results
of the various SFSTs, it was his opinion that Defendant had “consumed a sufficient
amount of impairing substance so as to appreciably impair his mental and physical
faculties.” During cross-examination, Trooper Inman testified that if someone
displayed four out of six indicators, there was an eighty-eight percent probability that
they would have a blood alcohol concentration of .08 or above. At the conclusion of
all the evidence, the trial court instructed the jury on the appreciable impairment
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STATE V. BARKER
Opinion of the Court
theory under N.C. Gen. Stat. § 20-138.1(a) and the jury found Defendant guilty of
driving while impaired.
II. Analysis
Defendant argues that the trial court erred in admitting Trooper Inman’s
testimony regarding the HGN test results. Specifically, Defendant argues that the
trial court failed to comply with its gatekeeping function under Rule 702 of the North
Carolina Rules of Evidence by failing to establish the reliability of the HGN test.
A. Appellate Jurisdiction
As a threshold matter, we must address whether Defendant’s appeal is
properly before us. In order for this Court to have jurisdiction to hear this appeal,
the appellant has the responsibility of establishing the jurisdiction of the superior
court in the appellate record. State v. Phillips, 149 N.C. App. 310, 313-314,
560
S.E.2d 852, 855 (2002). Defendant originally filed the record on appeal in this case
on 23 January 2017. The copy of the district court’s judgment provided in the
appellate record did not reflect that Defendant had given an oral notice of appeal. A
party may appeal from a judgment of the district court only by giving oral notice of
appeal at trial or filing a written notice of appeal within fourteen days after entry of
the judgment. N.C. Gen. Stat. § 15A-1431 (2015); N.C. R. App. P. 4(a).
Appellant subsequently filed a petition for a writ of certiorari on 21 March
2017, which contained a certified copy of the district court’s minutes taken during the
trial, a certified copy of the back of the district court file containing a notation
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Opinion of the Court
acknowledging Defendant’s notice of appeal, as well as an affidavit from Defendant’s
trial attorney. These documents tended to show that Defendant gave oral notice of
appeal in the district court following the entry of the judgment and that the absence
of the notation on the district court’s judgment was a clerical error. This Court has
discretion to allow the amendment of the appellate record under N.C. R. App. 9(b)(5).
We believe that the documents provided are sufficient to show that Defendant gave
oral notice of appeal to the superior court under N.C. R. App. 9(a)(3)(h). We therefore
allow Defendant’s writ of certiorari to review the merits of the appeal.
B. Standard of Review
A trial court’s ruling regarding the admissibility of expert testimony “will not
be reversed on appeal absent a showing of abuse of discretion.” State v. McGrady,
368 N.C. 880, 893,
787 S.E.2d 1, 11 (2016) (citing Howerton v. Arai Helmet, Ltd.,
358
N.C. 440, 458,
597 S.E. 2d 674, 686 (2004)). A trial court may only be reversed for
abuse of discretion “upon a showing that its ruling was manifestly unsupported by
reason and could not have been the result of a reasoned decision.”
Id. (citing State v.
Riddick,
315 N.C. 749, 756,
340 S.E.2d 55, 59 (1986)).
C. Rule 702 Requirements
Our Supreme Court clarified the effects of the 2011 amendments to N.C. Gen.
Stat. § 8C-1, Rule 702 (2011) in McGrady. 368 N.C. 880,
787 S.E.2d 1. The Court
noted the General Assembly amended Rule 702(a) to mirror the language of the
federal rule of evidence to read:
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(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, 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.
(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.G.S. § 8C-1, Rule 702.
McGrady stated that the amended language signaled the General Assembly’s
intent to incorporate the federal standards for the admission of expert witness
testimony. McGrady, 368 N.C. at 888,
787 S.E.2d at 8. The federal standard for the
admission of expert witness testimony has been articulated in a line of cases
beginning with Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579,
125 L.
Ed. 2d 469 (1993). Our Supreme Court confirmed in McGrady that North Carolina
is now a Daubert state; however, the Court was careful to note that “[o]ur previous
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Opinion of the Court
cases are still good law if they do not conflict with the Daubert standard.” McGrady,
368 N.C. at 888,
787 S.E.2d at 8.
Under Daubert, a trial court is required to make an inquiry into the reliability
of the expert testimony. Daubert, 509 U.S. at 590,
125 L. Ed. 2d at 469. 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,
787 S.E.2d at
9. The Court in McGrady set out the five Daubert factors including:
(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.
McGrady, 368 N.C. at 890–91, 787 S.E.2d at 9 (citing Daubert, 509 U.S. at 593–94,
125 L. Ed. 2d at 469) (internal citations omitted). Decisions by North Carolina courts
following Daubert have added additional reliability factors, including consideration
of “the expert's use of established techniques, the expert's professional background in
the field, the use of visual aids before the jury so that the jury is not asked ‘to sacrifice
its independence by accepting [the] scientific hypotheses on faith,’ and independent
research conducted by the expert.” Howerton,
358 N.C. at 460,
597 S.E.2d at 687
(citing State v. Pennington,
327 N.C. 89, 98,
393 S.E.2d 847, 852 (1990)). The inquiry
is flexible, and “Daubert’s list of specific factors neither necessarily nor exclusively
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STATE V. BARKER
Opinion of the Court
applies to all experts or in every case.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 141,
143 L. Ed. 2d 143, 143 (1999).
Defendant argues that Trooper Inman failed to provide the trial court with the
necessary foundation to establish the reliability of the HGN test. Under McGrady
and subsequent cases, such a finding is simply unnecessary. Recently, in State v.
Godwin, our Supreme Court stated 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. ____, ____,
800 S.E.2d 47, 53 (2017). See also State v. Younts, ____ N.C. App. ____, ____,
803
S.E.2d 641 (2017). Additionally, where such a reliability inquiry is required, the test
is much less rigid than Defendant would ask this Court to require. In McGrady, our
Supreme Court was clear that “[the factors articulated in Daubert] are part of a
‘flexible’ inquiry, so they do not form ‘a definitive checklist or test[.]’” McGrady,
368
N.C. at 890-891,
787 S.E.2d at 9-10. The trial court may consider other factors that
assist the court in assessing reliability given “the nature of the issue, the expert's
particular expertise, and the subject of his testimony.”
Id. (citing Kumho,
526 U.S.
at 150,
143 L. Ed. 2d at 238) (internal citations omitted). Because Rule 702
established that HGN tests are sufficiently reliable to be admitted in our courts, the
trial court in the present case did not abuse its discretion in admitting the results of
the HGN test.
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Opinion of the Court
Defendant relies heavily on the decision in State v. Helms, 348 N.C. 578,
504
S.E.2d 293 (1998), which, critically, was decided prior to the General Assembly’s
amendments to Rule 702 in 2006 and 2011, as well as the decision in McGrady. In
Helms, our Supreme Court decided 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.”
Helms at 581, 504 S.E.2d at 295. However, our Supreme Court found in Godwin that
reading subsections (a) and (a1) of Rule 702 together, “it is evident that the General
Assembly envisioned the precise scenario we address today and made clear provision
to allow testimony from an individual ‘who has successfully completed training in
HGN’ and meets the criteria set forth in Rule 702(a).” Godwin, ____ N.C. App. at
____, 800 S.E.2d at 50. See also State v. Shore, ____ N.C. App. ____, ____,
804 S.E. 2d
606 (2017) (“experience alone or experience combined with knowledge and training is
sufficient to establish a proper foundation for reliable expert testimony[.]”). The trial
court in Godwin never determined that the officer was an expert witness in HGN
testing, yet our Supreme Court held “when the record contains sufficient evidence
upon which the trial court could have based an explicit finding that the witness was
an expert, an appellate court may conclude that the trial court found the witness to
be an expert.” Godwin, ____ N.C. App. at ____, 800 S.E.2d at 48, 50-51 (“such explicit
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recognition is not required[.]”). In the present case, the court determined that
Trooper Inman was an expert in HGN testing.
McGrady clearly states that the inquiry still involves a “three-step framework-
namely, evaluating qualifications, relevance, and reliability” and “expert testimony
must satisfy each to be admissible.” McGrady, 368 N.C. at 889-892,
787 S.E.2d at 8-
10. The trial court’s important role includes examining the qualifications of a witness
tendered as an expert, the basis for the witness’s opinions, and the extent of the
witness’s testimony. See, e.g. State v. Holloman,
2017 WL 4365111 (2017)
(determining that because the highway patrolman did not specifically mention any
training in HGN testing, there was insufficient evidence on the record to support
finding that a highway patrolman was an expert in HGN testing, despite the findings
in Godwin). The depth of the inquiry is limited only in the context of HGN testing,
where the General Assembly has clearly signaled that the requirements be applied
leniently. In the present case, there was sufficient evidence to support the trial
court’s determination that Trooper Inman was qualified to testify as an expert as to
the reliability of the HGN test.
III. Conclusion
We find no error in Defendant’s trial for driving while impaired.
NO ERROR.
Judge BERGER concurs.
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Opinion of the Court
Judge DIETZ concurs with separate opinion.
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No. COA17-97 – State v. Barker
DIETZ, Judge, concurring.
I concur in the majority’s judgment in this case. Barker argues that the State
failed to establish the reliability of HGN testing at trial, as required by Rule 702(a)
and McGrady. While this appeal was pending, our Supreme Court decided State v.
Godwin and held that, through Rule 702(a1), “our General Assembly clearly signaled
that the results of the HGN test are sufficiently reliable to be admitted into the courts
of this State.” __ N.C. __, __, 800 S.E.2d 47, 53 (2017). In other words, Godwin held
that the legislature has deemed HGN testing to be reliable as a matter of law, and
therefore trial courts need not assess that reliability factor before admitting expert
testimony on the issue.
I acknowledge, as Barker observes in his brief, that courts in other jurisdictions
have questioned the reliability of HGN testing under standards similar to our Rule
702(a). But it is axiomatic that this Court must follow precedent from our Supreme
Court. Thus, we have no choice but to reject Barker’s argument. If Barker seeks to
challenge the Godwin holding, he must do so in the Supreme Court.
