State v. Ezzell

• Decision Date: 04 May 2021
• Docket Number: No. COA20-50,COA20-50
• Citation: 858 S.E.2d 375
• Parties: STATE of North Carolina v. Ronald Keith EZZELL
• Court: North Carolina Court of Appeals

858 S.E.2d 375

STATE of North Carolina

v.Ronald Keith EZZELL

No. COA20-50

Court of Appeals of North Carolina.

Filed May 4, 2021

Attorney General Joshua H. Stein, by Assistant Attorney General Yvonne B. Ricci, for the State-Appellee.

Anne Bleyman, for the Defendant-Appellant.

COLLINS, Judge.

¶ 1 Defendant Ronald Keith Ezzell appeals from judgment entered upon a jury verdict of guilty of driving while impaired. Defendant argues that his conviction must be vacated because the trial court erred by denying his motions to suppress his arrest and evidence gained as a result of his arrest. Defendant contends that his warrantless arrest was not supported by probable cause and that the trial court was required to apply the rules of evidence to testimony given during the hearing on Defendant's motions to suppress. We discern no error.

I. Factual Background and Procedural History

¶ 2 On 28 December 2009, Trooper Brian Theis of the North Carolina State Highway Patrol cited Defendant for driving while impaired, displaying an expired registration plate, driving while license revoked, and driving with an open container. On 12 October 2010, the district court found Defendant guilty of all charges; on that date Defendant appealed to superior court for a trial de novo.

¶ 3 Prior to trial in superior court, the driving while license revoked and driving with an open container charges were dismissed. On 18 July 2016, Defendant filed pretrial motions to suppress his arrest, any evidence gained as a result of his arrest, and any testimony by Theis concerning the administration of and interpretation of the Horizontal Gaze Nystagmus ("HGN") test. The trial court heard Defendant's motions and entered an order denying them that same day. In the order, the trial court made the following findings of fact:

1. On December 28, 2009 at about 4:00 pm, Brian Theis, a then nine year veteran with the North Carolina Highway Patrol, was on duty and traveling East on Highway 74 (a public street or highway) in Cleveland County in his patrol car. He noticed a motor vehicle traveling in the same direction in front of him with an expired license plate. As a result he stopped the motor vehicle. Upon approaching the driver's side of the vehicle, the Trooper found the defendant as the driver of the motor vehicle seated in the driver's seat. The Trooper requested the driver's license and vehicle registration from the defendant. In talking to the defendant the Trooper then noted a strong odor of alcohol coming from the defendant's breath and person. Upon noting the smell the Trooper asked the defendant if he had consumed alcohol to which the defendant deceptively denied any such consumption. The Trooper then requested the defendant to submit to an alcosensor screening test. The defendant submitted to the test and provided two breath samples approximately five minutes apart. The alcosensor gave positive readings on each test for the presence of alcohol and the difference between the two results was not greater than .02. The Trooper then requested the defendant to exit his vehicle to which the defendant complied. The alcosensor used by the Trooper was in proper working order and properly calibrated at the time.

2. Trooper Brian Theis began Highway Patrol School on July 29, 2000. While in this training he received instruction in field sobriety investigations which included training in the administration of the horizontal gaze and nystagmus test (HGN) for the detection of impairment and the interpretation of the results from the test. During this training Brian Theis participated in controlled alcohol consumption testing of individuals before and after their consumption of alcohol, including performance by him on them of the HGN test. At the time he was being trained and supervised by other individuals trained and experienced in the administration and interpretation of the results of HGN testing. Subsequent to Highway Patrol School, Trooper Theis spent several months in the field with an experienced Trooper for further training which included investigations of driving while impaired cases and the performance of various field sobriety tests including the HGN test. Trooper Theis also has received annual refresher training on field sobriety testing including HGN testing. During Trooper Theis’ career as a Trooper with the North Carolina Highway Patrol beginning in 2000 he has conducted approximately 400 driving while impaired investigations and administered 100 to 150 HGN tests. In 2011 Trooper Theis successfully completed the ARIDE training which included training in the administration and interpretation of HGN testing.

3. HGN testing is an accepted test for the determination of impairment and is specifically referenced and, with certain qualifications, approved as evidence by the Legislature in Rule 702 of the Rules of Evidence. The premise of the testing is the detection of noticeable involuntary nystagmus

or jerking of the eyes at certain points in the movement of eyes which is an indicator of impairment. The test requires an individual suspected of impairment to follow with their eyes a stimulus being moved approximately 12 inches in front of their face. The stimulus is initially moved from left to right and followed by the eyes of the individual being tested without the individual moving their head. First the officer is looking to see that the eyes move together with equal tracking of the stimulus. If so the officer then proceeds with the remaining portions of the test. Second the officer is looking for smooth pursuit by the eyes of the stimulus. Nonsmooth pursuit or jerking of the eyes as they move with the stimulus is an indication of impairment and is observed as to each eye. Third the officer checks for distinct and sustained nystagmus when the individual's eyes are at maximum deviation. As the stimulus is held far to the left and then to the right, each eye is observed for the distinct and sustained nystagmus which if present is an indication of impairment. Fourth the officer moves the stimulus from center to a 45 degree angle with each eye. The onset of nystagmus prior to reaching the 45 degree angle is an indication of impairment. Thus there are three clues for impairment as to each eye or six in total. HGN testing has been found to be sufficiently reliable to be admissible in the trial of driving while impaired in other appellate cases to which this Court takes judicial notice.

4. Trooper Theis performed the HGN test on the defendant with the cooperation and consent of the defendant and the testing was performed consistent with the appropriate methods of testing and experience of the Trooper. The HGN test was performed on the defendant while the defendant was seated in the patrol car, however, there is no indication that HGN testing could not be performed in such a manner nor that it would affect its reliability. The HGN testing of the defendant revealed all six indications of impairment. The Trooper has also found the HGN testing to be reliable in the detection of impairment in other driving while impaired investigations conducted by him.

5. Also prior to arrest the defendant referred to the Trooper as [ma'am] on several occasions and he had a stuttered speech. Based on the Trooper's observations and extensive experience he formed an opinion that the defendant had consumed a sufficient quantity of an impairing substance so as to appreciably impair the mental and physical faculties of the defendant and placed the defendant under arrest for driving while impaired. There were no other indications of impairment prior to defendant's arrest, however, no other field tests were performed as a result of the danger that would be posed by the high traffic area.

¶ 4 Based on these findings of fact, the trial court made the following conclusions of law:

[T]he Trooper had reasonable and articulable grounds of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious person in the belief that the defendant was guilty of the offense of driving while impaired and thereby he had probable cause to arrest the defendant for driving while impaired. As a result the defendant's Constitutional and statutory rights were not violated and the motion[s] to suppress should be denied.

Defendant also contends that the testimony in regard to the HGN testing by the Trooper is inadmissible referring to Rule 702 of the Rules of Evidence. However, Rule 1101 of the Rules of Evidence provides that the Rules of Evidence are inapplicable to probable cause hearings. Therefore, Rule 702 is not applicable for determining admissibility for the consideration of probable cause, and such evidentiary determination should be left to the trial judge. While the Court allowed the [Trooper] to testify as an expert qualified in the field of the administration of HGN testing and the interpretation of the results for the detection of impairment, such labeling is somewhat meaningless for the determination of probable cause in light of the inapplicability of the Rules of Evidence to this proceeding. The Court in a probable cause hearing is required to look at the totality of the circumstances for the determination of probable cause. Assuming arguendo, however, that the requirements of Rule 702 are applicable from a Constitutional or statutory standpoint, the Court concludes for the purpose of the determination of probable cause that Trooper Theis had sufficient knowledge, skill, experience, training, and education to testify as such an expert and that this scientific and specialized knowledge assisted the Court in understanding the evidence and determining the facts in issue.

¶ 5 The case came on for trial in superior court on 11 June 2019. At trial, the expired registration charge was dismissed at the close of the State's evidence. The trial court overruled Defendant's objections to the evidence flowing from the arrest and Theis’ HGN testimony when Defendant renewed them at trial. The...