Dickerson v. Dist. of Columbia
| Decision Date | 19 April 2018 |
| Docket Number | Nos. 15–CT–187 & 17–CT–54,s. 15–CT–187 & 17–CT–54 |
| Parties | Arthur Lee DICKERSON, Appellant, v. DISTRICT OF COLUMBIA, Appellee. |
| Court | D.C. Court of Appeals |
Thomas W. Ullrich was on the brief appellant.
Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, Rosalyn Calbert Groce, Deputy Solicitor General, and John D. Martorana, Assistant Attorney General.
Before McLeese, Associate Judge, and Washington* and Nebeker,** Senior Judges.
Following a bench trial, appellant Arthur Lee Dickerson was found guilty of Driving Under the Influence of Alcohol or a Drug ("DUI").1 On appeal, appellant contends the trial court abused its discretion in preventing his toxicologist from testifying as an expert in field sobriety tests and giving an expert opinion as to the adverse effect appellant's purported pinched nerve
may have had on his performance of two balance field sobriety tests. He further challenges the trial court's failure to hold a hearing prior to denying his motion for a new trial under D.C. Code § 23–110 (2012 Repl.), that alleged ineffective assistance by his trial counsel for failing to secure and present the testimony of his treating physician. Finding no error, we affirm his conviction.
On March 15, 2014, around 3:21 a.m., Officer Seth Carll of the United States Capitol Police observed appellant's vehicle driving waveringly, prompting Officer Carll to follow appellant. While following, he witnessed appellant's white Lexus cross over and straddle the dividing white lane hash marks, make an abrupt stop at a red light inside the crosswalk, travel slowly through a yellow light, and cross over the solid yellow line into oncoming traffic. After Officer Carll activated his emergency lights, appellant traveled for another half-block, scraping his passenger side tires against the curb as he pulled over.
Officer Carll approached the driver side door and saw that appellant's eyes were bloodshot and watery. When asked how much he had to drink, appellant initially told Officer Carll that he had only one drink, but later said he had three drinks between 6:00 and 9:00 p.m. Officer Carll testified he could "smell a strong odor of alcohol coming from [appellant's] breath and person." When asked for his driver's license and registration, appellant produced his license from his wallet but overlooked his registration, which was visible to Officer Carll in appellant's wallet. Finally, Officer Carll asked appellant what time he believed it was, and appellant responded that it was around midnight rather than the actual time of 3:20 a.m.
Following his initial encounter, Officer Carll attempted to have appellant perform three field sobriety tests: the horizontal gaze nystagmus
("HGN"), the walk-and-turn, and the one-leg stand tests. Officer Carll administered the HGN test first. He identified "six clues" from appellant's test, where, "[b]ased on [his] training manuals, four or more clues indicates that there's a 77 percent likelihood that the defendant's blood alcohol content is a .10 or above." For both the walk-and-turn test and the one-leg stand test, appellant had difficulty following the directions provided to him and failed to complete the tests as required.
Prior to the administration of these tests, appellant informed Officer Carll "he had a pinched nerve
in his back and that he was taking Xanax, Gabapentin, and Ambien." Officer Carll acknowledged on cross-examination that the National Highway Traffic Safety Administration ("NHTSA") Manual states that a person with a back injury may have difficulty performing the two balance tests appellant was asked to perform.
Following the field sobriety tests, Officer Carll believed appellant was under the influence of alcohol, given the "totality of the circumstances," and placed appellant under arrest. Appellant was transported to Capitol Police headquarters, where he reportedly became uncooperative. Officer Christopher Leonard attempted to administer an intoxilyzer test, a breathing test that detects the presence of alcohol. Appellant failed to complete the test after seven attempts. Officer Leonard then informed appellant that if he could not "provide a breath sample, he ha[d] the option of providing urine." Appellant "wasn't able to provide a urine sample either" and Officer Leonard explained "at that point, it became a refusal." Officer Leonard also testified that while he was administering the intoxilyzer test, he noticed "a strong odor of alcohol" and that, in his opinion, appellant was "under the influence of alcohol."
Following the submission of the government's case, appellant sought to elicit the testimony of Richard McGarry. He attempted to qualify McGarry as an expert in toxicology, pharmacology, and field sobriety tests. The trial court, however, declined to accept McGarry as an expert in the administration and interpretation of field sobriety tests as he had "no specific training in the performance of the field sobriety tests," but permitted him to testify as an expert in toxicology and pharmacology. The court also declined to allow McGarry to give an opinion that appellant's pinched nerve
affected his performance of the two balance field sobriety tests.
At the end of a three-day trial, the trial court found appellant guilty of DUI. The court found that the government met its burden, based on the totality of the circumstances, that appellant was under the influence of either alcohol or prescription medication. The court credited Officer Carll's testimony that appellant made multiple driving violations, had a strong odor of alcohol emanating from him, had bloodshot and watery eyes, made inconsistent claims of alcohol consumption, had difficulty producing his registration, and was uncertain as to the time of day. The court also credited Officer Carll's opinion that appellant was under the influence, as well as Officer Leonard's corroboration of that opinion. Finally, the court found that the police station video corroborated the officers' testimony that appellant was combative, talkative, and argumentative at the station, and that appellant refused to sign papers.
The trial court sentenced appellant to 180 days of incarceration, but suspended execution of the sentence, placing him instead on twelve months of supervised probation. He timely filed his direct appeal. While his direct appeal was pending, appellant filed a § 23–110 motion alleging ineffective assistance of trial counsel. The basis of appellant's ineffective assistance claim was the failure of his trial counsel to present the testimony of his treating physician, Dr. Vijay Shri Kannan. The trial court denied the § 23–110 motion without a hearing. This appeal followed and we consolidated the two appeals.
We review a trial court's admission or exclusion of expert testimony for abuse of discretion and only disturb the lower court's ruling when it is "manifestly erroneous." Benn v. United States , 978 A.2d 1257, 1273 (D.C. 2009). We have cautioned, however, that "the defense should be free to introduce appropriate expert testimony" and "should not be put at a disadvantage in the use of scientific evidence comparable to that permitted to the government." Id. at 1269–70. Still, we "defer to the trial court's exclusion of expert testimony when it is based on a reasoned and reasonable exercise of discretion." Girardot v. United States , 92 A.3d 1107, 1109 (D.C. 2014) (quoting Benn , 978 A.2d at 1276 ) (brackets omitted). Though the trial court's ruling is discretionary, the trial court must "take no shortcuts" and "exercise its discretion with reference to all the necessary criteria." Id. (quoting Ibn–Tamas v. United States , 407 A.2d 626, 635 (D.C. 1979) ) (emphasis in original). "Thus, the court's determination must be case-specific[and] based on the proffered expert testimony ...."2 Id. (internal quotation marks omitted). "While a witness may be qualified to testify as an expert on the basis of his experience in a particular field, a trial judge is not obliged to qualify a proffered expert when there are articulable reasons to doubt his competency." Johnson v. District of Columbia , 728 A.2d 70, 74 (D.C. 1999) (quoting Glorious Food, Inc. v. Georgetown Prospect Place Assocs. , 648 A.2d 946, 948 (D.C. 1994) ).
Appellant first argues the trial court erroneously found McGarry was not qualified to testify as an expert in the area of field sobriety tests. More specifically, appellant contends the trial court erred in finding that McGarry did not possess sufficient skills, knowledge, or experience in field sobriety tests to aid the triers of fact in their search for truth. See Motorola Inc. v. Murray , 147 A.3d 751, 756 (D.C. 2016) (en banc). Had McGarry been qualified, appellant contends, he would have disputed and discredited Officer Carll's administration of the field sobriety tests.
"Whether a witness possesses the requisite qualifications to express an opinion on a particular subject is within the trial court's discretion," Jung v. George Washington Univ. , 875 A.2d 95, 105 (D.C. 2005) (quoting Otis Elevator Co. v. Tuerr , 616 A.2d 1254, 1256 (D.C. 1992) ), "and its ruling thereon will not be reversed unless manifestly erroneous," Austin v. United States , 64 A.3d 413, 426 (D.C. 2013) (internal quotation marks omitted). Applying this deferential standard, we discern no manifest error in the trial court's conclusion that McGarry lacked the necessary skills, knowledge, and experience to testify as an expert in the administration and interpretation of field sobriety tests.
The trial court recognized that McGarry had some experience administering the HGN test through various continuing legal education programs he hosted in the 1980's and 90's. However, he testified that he had never demonstrated the HGN test "under supervision of anyone formally trained" in administering the...
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