State v. Taylor

• Decision Date: 17 August 2004
• Docket Number: No. COA03-334.,COA03-334.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Darryl Robin TAYLOR.

600 S.E.2d 483

165 NC App. 750

STATE of North Carolina v. Darryl Robin TAYLOR.

No. COA03-334.

Court of Appeals of North Carolina.

August 17, 2004.

Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III and Assistant Attorney General Patricia A. Duffy, for the State.

Jarvis John Edgerton, IV, Raleigh, for defendant-appellant.

McGEE, Judge.

Darryl Robin Taylor (defendant) was indicted on 24 September 2001 by the Forsyth County grand jury for habitual impaired driving in violation of N.C. Gen.Stat. § 20-138.5. Defendant stipulated pre-trial to his three prior convictions of driving while impaired. Defendant was convicted of driving while impaired on 11 September 2002. The trial court found defendant to have a prior record level IV and sentenced defendant to a minimum term of twenty-two months and a maximum term of twenty-seven months in prison. Defendant appeals.

The State's evidence at trial tended to show that Preston Browder (Browder) was traveling north on Highway 66 in Rural Hall, North Carolina, in his 1984 GMC truck on 15 March 2001 at approximately 1:00 p.m. As Browder was driving, he saw a van driven by defendant coming towards him. The van was traveling south but was entirely in Browder's northbound lane. Browder testified that defendant "was slumped over like he was asleep." In an effort to avoid being hit by defendant's van, Browder "made a quick right." However, defendant's van hit Browder's truck on the driver's side and "turned [Browder] around in a private driveway." Browder testified that after the collision, defendant walked over to Browder's truck and apologized to Browder. Defendant came "within five feet" of Browder but not close enough for Browder to determine whether defendant had been drinking.

Trooper M.W. Davis (Trooper Davis) of the N.C. State Highway Patrol testified that he responded to the accident around 1:10 p.m. and observed defendant's van facing south but located in the northbound lane. Browder's vehicle was facing west in a driveway on the shoulder of the northbound lane. Trooper Davis approached defendant's van and asked defendant for his driver's license and registration. Trooper Davis testified that defendant responded by "look[ing] at [him] with a blank face and then [defendant] started fumbling through some papers." Trooper Davis noticed a "strong odor of alcohol" and "had to assist [defendant]" in getting to the patrol car. Defendant filled out a voluntary statement and Trooper Davis "barely [could] make [the statement] out" due to defendant's failure to write on the appropriate lines. When asked the reason for the collision, defendant stated that he had fallen asleep.

After defendant's statement was completed, Trooper Davis administered two Alcosensor tests and had defendant perform a "walk-and-turn" test and a "sway test." Defendant was "swaying off the line" with the walking test and was "swaying side to side" with the sway test. Trooper Davis arrested defendant for driving while impaired and took him to the "Forsyth County Breathalyzer room" in the county jail. Upon arrival, Trooper Davis searched defendant and found ten empty packages of Guaifenesin tablets, which defendant stated helped him with his breathing problems. Before administering a breathalyzer test, Trooper Davis administered two additional performance tests. At 3:18 p.m., defendant submitted to the first breathalyzer test, which showed an alcohol concentration of 0.05.

Paul Glover (Glover), a research scientist and training specialist with the forensic tests for alcohol branch of the North Carolina Department of Health and Human Services, testified as an expert in breath and blood alcohol testing, blood alcohol physiology and pharmacology, and the effect of drugs on human performance and behavior. Glover testified that he performed a retrograde extrapolation and determined that defendant's alcohol concentration at the time of the collision was 0.08. Glover further testified about the combined effect of alcohol and Guaifenesin. Defendant presented no evidence.

We first note that defendant has failed to present an argument in support of assignments of error numbers one, two, four, five, six, seven, eight, nine, and eleven and they are deemed abandoned pursuant to N.C.R.App. P. 28(b)(6).

Defendant argues in assignment of error number three that the trial court erred in allowing Glover's testimony that defendant's blood alcohol content at the time of the crash was 0.08, based on an average alcohol elimination rate of 0.0165. Glover utilized a retrograde extrapolation method to determine defendant's alcohol concentration at the time of the accident. The alcohol elimination rate used by Glover in this calculation was an average rate of 0.0165. Defendant argues that because the elimination rate was based on an average, rather than defendant's specific rate, the conclusion of defendant's alcohol content level at the time of the collision was "without foundation, speculative, and mislead[ing][to] the jury[.]" For the reasons stated below, we find this argument to be without merit.

Defendant contends that the average rate used by Glover "applied a rate of elimination derived from the average rate found in a sample of `drinking drivers' during roadside tests." Defendant argues that the rate of elimination used for defendant was actually derived by presuming that defendant "falls in [a] class of people labeled `drinking drivers[.]'" However, we note that defendant's assertion is incorrect. Rather, Glover testified that he used a "conservative rate" that is "less than what has been reported in drinking drivers." Further, Glover specifically agreed that the average rate he used is lower than the rates from published studies concerning alcohol abusers and persons who drink and drive.

We note at the outset that "[i]t is well-established that trial courts must decide preliminary questions concerning . . . 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. Gen.Stat. § 8C-1, Rule 104(a) (2003)). "[T]rial courts are afforded `wide latitude of discretion when making a determination about the admissibility of expert testimony.'" Howerton, 358 N.C. at 458, 597 S.E.2d at 686 (quoting State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984)). 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." Howerton, 358 N.C. at 458, 597 S.E.2d at 686.

Howerton sets forth the applicable three-step inquiry from State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995) concerning the admissibility of expert testimony: "(1) Is the expert's proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert's testimony relevant?" Howerton, 358 N.C. at 458, 597 S.E.2d at 686 (internal citations omitted).

Regarding the first step, "when specific precedent justifies recognition of an established scientific theory or technique advanced by an expert, the trial court should favor its admissibility, provided the other requirements of admissibility are likewise satisfied." Id. at 459, 597 S.E.2d at 687. Our Court has "accepted the reliability of extrapolation evidence since 1985." State v. Davis, 142 N.C.App. 81, 90, 542 S.E.2d 236, 241, disc. review denied, 353 N.C. 386, 547 S.E.2d 818 (2001). However, defendant indicates that he "is not challenging the reliability of blood extrapolation science or the general admissibility of such evidence." Rather, defendant challenges Glover's testimony on the ground that it lacked sufficient foundation since the alcohol elimination rate used by Glover when extrapolating was an average rate rather than defendant's actual elimination rate.

Defendant cites a 19 November 2002 unpublished opinion by this Court, State v. Swain (COA02-6), 2002 WL 31555413, in acknowledging that "the science of blood alcohol extrapolation can yield specific conclusions about a defendant if two tests are done to measure that person's particular rate of elimination." In Swain, the defendant's blood alcohol level was tested at two separate points after a car accident. Based on these values, an expert used the extrapolation method to determine the defendant's blood alcohol level at the time of the accident. The implication in Swain is that the expert determined the defendant's actual rate of elimination by testing him at two separate intervals. In contrast, defendant in the case before us was only tested once after the accident. Based on this level and an average elimination rate, Glover testified to defendant's blood alcohol level at the time of the accident.

Our Court addressed the very issue of whether an average elimination rate can be used for an extrapolation calculation in State v. Catoe, 78 N.C.App. 167, 336 S.E.2d 691 (1985), disc. review denied, 316 N.C. 380, 344 S.E.2d 1 (1986). In Catoe, the defendant argued that the trial court erred in allowing the expert witness to testify that the average person displays a certain rate of decline in blood alcohol content in the hours after the last consumption of alcohol, and that based on that average rate of decline (i.e., elimination rate), the expert witness determined what the defendant's blood alcohol content would have been at the time of the accident. Catoe, 78 N.C.App. at 168, 336 S.E.2d at 692. The specific average elimination rate which was used is not indicated in Catoe. However, this Court found that the trial court did not err in admitting the expert's testimony despite the use of an average elimination rate. Id. at 168-69, 336 S.E.2d at 692-93.

Our Court reasoned in Catoe that the expert testified that he had done experiments to determine the average rate of blood alcohol elimination and had arrived at an average rate "which matched...