State Carolina v. Green

• Decision Date: 01 March 2011
• Docket Number: No. COA10–84.,COA10–84.
• Citation: 707 S.E.2d 715
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolinav.Barry Lee GREEN.

707 S.E.2d 715

STATE of North Carolina

v.Barry Lee GREEN.

No. COA10–84.

Court of Appeals of North Carolina.

March 1, 2011.

OPINION TEXT STARTS HERE

Appeal by defendant from judgment entered 28 April 2009 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 29 September 2010.

Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State.

George B. Currin, Raleigh, for defendant-appellant.

BRYANT, Judge.

Because the trial court was within its discretion to allow Paul Glover to testify as an expert witness in the area of physiology and pharmacology, and because Glover's testimony was permissible under Rules 702 and 703 of our Rules of Evidence, there was no error in the trial court's rulings.

The record evidence tends to show that, on 14 December 2006, at approximately 8:00 p.m., an SUV entered the intersection of Lynn Road and Glendower Road and narrowly avoided colliding with another vehicle, causing that vehicle to crash into a street sign. The SUV continued on Glendower Road until it was stopped by a witness to the incident. The witness pulled along side the SUV and spoke to the driver through her passenger window. The driver “just slowly turned his head to the left side. His eyes were kind of half shut and glazed looking, and he just said: Huuuuh? ... And he just sat and stared at [the witness], so [she] knew at that time that he wasn't really processing what [the witness] was saying to him.” The SUV soon pulled away.

Senior Officer M.D. Larsen, with the Raleigh Police Department, responded to a 9–1–1 call that came in at 8:06 p.m. At 9:38 p.m., after speaking with both the person whom the SUV almost hit and the witness, Officer Larsen traveled to the address at which the SUV was registered and observed a vehicle matching the SUV's description. Officer Larsen asked to speak to the owner. After a few minutes, defendant came down the stairs. Defendant appeared to be “sluggish, slow.” “I could smell the odor of mouthwash with a moderate to strong odor of alcohol coming through that.” Officer Larsen informed defendant as to why he was there and asked if defendant had had anything to drink. Defendant initially denied having had anything, but soon stated, “Well, maybe I had a glass—one glass of wine.” Ultimately, defendant stated that he had consumed five glasses of wine after arriving home at 7:15. Defendant was taken into custody for impaired driving in violation of N.C. Gen.Stat. § 20–138.1. The witness later identified defendant as the SUV driver. At trial, Officer Larsen gave the following testimony:

Q. Okay. Before you put him under arrest, based on your observations of [defendant], did you form an opinion satisfactory to yourself as to whether or not [defendant] had consumed a sufficient quantity of some impairing substance as to appreciably impair his mental and/or physical faculties?

...

A. It was my opinion that the defendant had consumed a sufficient quantity of an impairing substance so that his mental and physical faculties were both appreciably impaired.

Q. Did you have an opinion as to what the impairing substance was?

A. I believed it to be some type of alcohol.

Officer Larsen transported defendant to the Wake County Detention Center, where, at 11:28 p.m., he was administered two sequential tests to determine blood alcohol concentration (BAC). Defendant's lowest result indicated that his blood alcohol concentration was 0.19 grams of alcohol per 100 milliliters of blood.

A trial was held in Wake County District Court before Judge Anne Salisbury. Judge Salisbury found defendant guilty of impaired driving and, on 4 March 2008, entered judgment against him. Defendant appealed to Wake County Superior Court.

On 22 April 2009, Judge Carl R. Fox commenced a jury trial in Wake County Superior Court. Paul Glover, Branch Head for the Forensic Tests of Alcohol, a branch of the North Carolina Department of Health and Human Services, was allowed to testify as an expert in breath alcohol testing, in the Intoxilyzer 5000, and in blood alcohol physiology, pharmacology and related research. Glover testified that he used defendant's test result for blood alcohol concentration taken at 11:28 p.m., and performed retrograde extrapolation to determine defendant's blood alcohol concentration at approximately 8:00 p.m. Glover testified that, at 8:06 p.m., defendant's blood alcohol concentration would have been 0.24.

At the conclusion of the evidence, the jury found defendant guilty of driving while impaired. In accordance with the jury verdict, Judge Fox sentenced defendant to an active term of 120 days but suspended the sentence and placed defendant on unsupervised probation for 12 months. Defendant was further ordered to obtain a substance abuse assessment, surrender his drivers license, and complete 48 hours of community service. Defendant appeals.

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On appeal, defendant raises the following four questions: Did the trial court err in allowing Paul Glover to give (I) expert testimony in the area of pharmacology and physiology; and (II) opinion testimony on the issue of defendant's post-driving consumption of alcohol and (III) blood alcohol concentration; and did the trial court err in (IV) finding an aggravating factor for sentencing purposes.

I

Defendant argues that the trial court abused its discretion in allowing Paul Glover to give expert testimony in the areas of pharmacology and physiology. We disagree.

“Trial courts are afforded wide latitude of discretion when making a determination about the admissibility of expert testimony. Thus, a trial court's ruling on ... the admissibility of an expert's opinion will not be reversed on appeal absent a showing of abuse of discretion.” State v. Taylor, 165 N.C.App. 750, 753, 600 S.E.2d 483, 486 (2004) (citation, brackets, and internal quotations omitted).

Pursuant to North Carolina General Statutes, section 8C–1, Rule 702, a witness may be qualified “as an expert by knowledge, skill, experience, training, or education....” N.C. Gen.Stat. § 8C–1, Rule 702(a) (2009). “North Carolina case law requires only that the expert be better qualified than the jury as to the subject at hand, with the testimony being ‘helpful’ to the jury.” State v. Davis, 106 N.C.App. 596, 601, 418 S.E.2d 263, 267 (1992) (citing State v. Huang, 99 N.C.App. 658, 663, 394 S.E.2d 279, 282, disc. rev. denied, 327 N.C. 639, 399 S.E.2d 127 (1990)). “It is well-established that trial courts must decide preliminary questions concerning the qualifications of experts to testify or the admissibility of expert testimony.” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citing N.C.G.S. § 8C–1, Rule 104(a) (2003)). In Howerton, our Supreme Court set out a three step inquiry governing the admissibility of expert testimony:

(1) Is the expert's proffered method of proof sufficiently reliable as an area for expert testimony?

[ State v. Goode, 341 N.C. 513, 527–29, 461 S.E.2d 631, 639–40 (1995)]

.(2) Is the witness testifying at trial qualified as an expert in that area of testimony? Id. at 529, 461 S.E.2d at 640.(3) Is the expert's testimony relevant? Id. at 529, 461 S.E.2d at 641.

Howerton, 358 N.C. at 458, 597 S.E.2d at 686. Defendant contests the application of the second prong—whether Glover qualified as an expert in the areas of pharmacology and physiology.

According to his curriculum vitae, Glover was Branch Head for the North Carolina Department of Health and Human Services, Forensic Tests for Alcohol Branch. In this capacity, his duties included providing scientific expertise and in-the-field guidance; testifying as an expert witness in court proceedings; maintaining a laboratory facility for the scientific analysis of aqueous alcoholic simulator solution and impairing substances including alcohol, in both human breath and blood; evaluating the methodology and techniques related to the testing of blood and urine for the presence of alcohol and other impairing substances; and evaluating new breath alcohol testing technology, so as to accomplish the Branch mandate of maintaining the highest standard of testing. Glover has given testimony as an expert more than 220 times in the past 11 years and assisted with over 600 different cases.

Here, Glover was proffered as an expert in breath alcohol testing; in the Intoxilyzer 5000; and in blood alcohol physiology, pharmacology and related research.

Q. Now, Mr. Glover, turning your attention to blood alcohol physiology, pharmacology, and related research. First of all, can you explain to the jury what that is?

A. What this is addressing would be how the body deals with alcohol; that is, when it gets—when they consume it, how it goes from being in their mouth to being in their blood to being in their tissues, to being in their brain, and ultimately showing up on their breath. The physiological process is how it's all transported and dealt with.

The pharmacology aspect of it is what the alcohol does to the human body when it's in it.

Related research would deal with the number of studies that have been done for probably the past 70 years where they've looked at those very things. What happens to the alcohol? What areas does it affect? How does it affect people? What effects do we see at different alcohol concentrations?

Glover testified that he received a B.S. and a master's degree in biology from Florida State University in 1974 and 1978, respectively. He worked as a research scientist responsible for giving in-service training to field staff who train officers on how to operate and maintain breath test instrumentation and for evaluating State Bureau of Investigation agents who seek to become blood alcohol chemical analysts.

Glover's curriculum vitae also included courses he took at the Indiana University, Center for Studies of Law in Action, on “Tests for BAC in Highway Safety Programs: Supervision and Expert Testimony” and “The Effects of Drugs on Human...