State v. Turbyfill

• Decision Date: 01 September 2015
• Docket Number: No. COA14–1003.,COA14–1003.
• Citation: 776 S.E.2d 249,243 N.C.App. 183
• Parties: STATE of North Carolina v. Christopher Adam TURBYFILL.
• Court: North Carolina Court of Appeals

243 N.C.App. 183

776 S.E.2d 249

STATE of North Carolina

v.Christopher Adam TURBYFILL.

No. COA14–1003.

Court of Appeals of North Carolina.

Sept. 1, 2015.

Attorney General, Roy Cooper, by Assistant Attorney General, Matthew L. Boyatt, for the State.

Mark Hayes, Greensboro, for defendant-appellant.

BRYANT, Judge.

The trial court did not abuse its discretion by allowing a witness who demonstrated specialized knowledge, experience, and training in blood alcohol physiology, pharmacology, and related research on retrograde extrapolation to be qualified and testify as an expert. Defendant cannot show plain error where, despite improper blood alcohol level testimony, there was sufficient independent competent evidence of defendant's impairment to support the jury verdict.

At about 10:15pm on 21 December 2011, Officers Jonathan Collins and Lucas Lovelace of the Asheville Police Department responded to a single vehicle accident on a public road where they found twenty year-old defendant Christopher Turbyfill near his Ford F–150 truck which had rolled over on its side. Officer Lovelace approached defendant who was beside his truck crying and appeared to be upset, saying he was going to lose his job. As he spoke with defendant, Officer Lovelace noticed that defendant slurred his words, that his eyes were blood shot, that he was unsteady on his feet and had an odor of alcohol on his breath. Defendant admitted he had been drinking alcohol—a twenty-four ounce Smirnoff, and had taken prescription drugs Xanax and Hydrocodone earlier that day. After defendant was checked by medics and determined not to be injured, Officer Lovelace administered standard field sobriety tests. Those tests included: horizontal gaze nystagmus [HGN]; walk-and-turn; and one-legged stand.

At trial, Officer Lovelace was qualified by the trial court as an expert in administration of the HGN test. He testified without objection, that he observed six of six clues of intoxication as to defendant, and that "[m]ost of the time four clues would show a BAC [blood alcohol concentration] of point one." Further, Officer Lovelace elaborated that "[t]he onset of nystagmus prior to forty-five degrees, anything prior to forty-five degrees is a point one or greater BAC." Officer Lovelace also observed six of eight clues of intoxication as defendant took the walk-and-turn test, and one indicator of intoxication during the one-legged stand test. Based on defendant's performance on the tests and other signs of impairment Officer Lovelace formed the "opinion that the defendant had consumed a sufficient quantity of impairing substance that his mental and physical faculties were appreciably impaired." Defendant was placed under arrest and asked to perform a breathalyzer test on which he registered a BAC of .07 less than two hours after the accident.

Anthony Burnette, a field technician in the Forensic Test of Alcohol Branch of the North Carolina Department of Health and Human Services was tendered as an expert witness. Following extensive voir dire, the trial court qualified Burnette as an expert in blood alcohol physiology, pharmacology, and related research on retrograde extrapolation. Burnette testified that he used retrograde extrapolation to determine defendant's BAC at the time of the vehicle crash. Burnette stated that, using an alcohol elimination rate of .0165 per hour, in the 1.83 hours between the time defendant crashed his truck and the time he took the breathalyzer test, defendant's body had eliminated .030 grams of alcohol. Accordingly, it was Burnette's opinion that defendant's BAC at the time of the accident was .10.

Defendant was convicted by a jury of Driving after Consuming Alcohol under twenty-one years and Driving While Impaired. Defendant was sentenced as a Level 5 DWI offender and given a term of 45 days suspended, placed on probation for 24 months and ordered to serve eleven days active confinement. From this judgment defendant appeals.

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On appeal, defendant argues that the trial court erred by (I) allowing Anthony Burnette to testify as an expert witness and (II) committed plain error by allowing Officer Lovelace to testify as to defendant's blood alcohol level.

I

Defendant argues that Burnette failed to demonstrate sufficient knowledge of scientific and mathematical principles to qualify as an expert in blood alcohol physiology, pharmacology, and related research on retrograde extrapolation, and as a result the trial court abused its discretion in allowing his expert opinion testimony. We disagree.

"We review a trial court's ruling regarding the admission of expert testimony for abuse of discretion." Pope v. Bridge Broom, Inc., –––N.C.App. ––––, ––––, 770 S.E.2d 702, 707 (2015) (citation omitted). "Abuse of discretion results where the Court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision."

State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted). Accordingly, "the trial judge is afforded wide latitude of discretion when making a determination about the admissibility of expert testimony." State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984).

Rule 702 of the North Carolina General Statutes governs testimony by experts and states, in pertinent part,

[i]f 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.

N.C. Gen.Stat. § 8C–1, Rule 702(a) (2013).

Rule 702 was amended effective 1 October 2011. See 2011 N.C. Sess. Laws 283 § 1.3. While our Supreme Court has not yet addressed the amendment to Rule 702, our Court of Appeals has done so and recently noted that "[o]ur Rule 702 was amended to mirror the Federal Rule 702, which itself ‘ "was amended to conform to the standard outlined in Daubert [v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ]." ’ " Pope v. Bridge Broom, Inc., ––– N.C.App. ––––, ––––, 770 S.E.2d 702, 707 (2015) (citing State v. McGrady, ––– N.C.App. ––––, ––––, 753 S.E.2d 361, 365 (quoting Committee Counsel Bill Patterson, 2011–2012 General Assembly, House Bill 542: Tort Reform for Citizens and Business 2–3 n. 3 (8 June 2011)), disc. review allowed, 367 N.C. 505, 758 S.E.2d 864 (2014) ).

Defendant asserts that the amendment to Rule 702 "has increased the scrutiny that judges must impose on purported experts." Defendant challenges the reliability of Burnette's testimony and urges this Court to determine that Burnette did not meet the requirements for qualification as an expert under the more rigorous standard of Daubert . Defendant would have us find that Burnette was not qualified to testify as an expert and give opinion testimony on retrograde extrapolation. We disagree with defendant's assertions. While reasonable minds might agree that the gatekeeper function of the trial court in determining whether to allow expert testimony is perhaps now more clearly defined, it appears that the application of the principles in amended Rule 702, consistent with Daubert , would not significantly change the trial court's analysis.¹

Federal courts traditionally grant "a great deal of discretion" to the trial court in determining the admissibility of expert testimony under Daubert. McGrady, ––– N.C.App. at ––––, 753 S.E.2d at 369. "Daubert clearly contemplates the vesting of significant discretion in the [trial] court with regard to the decision to admit expert scientific testimony." Id. (quoting Maryland Cas. Co. v. Therm–O–Disc, Inc., 137 F.3d 780 (4th Cir.1998) ). Therefore, to sustain a successful challenge to a trial court's ruling allowing expert testimony, a defendant must show that the trial court's ruling was so arbitrary, so lacking in reason as to constitute an abuse of its discretion. See Hennis, 323 N.C. at 285, 372 S.E.2d at 527.

Consistent with the application of Federal Rule 702 in federal courts, under North Carolina's amended Rule 702, trial courts must conduct a three-part inquiry concerning the admissibility of expert testimony:

Parsing the language of the Rule, it is evident that a proposed expert's opinion is admissible, at the discretion of the trial court, if the opinion satisfies three requirements. First, the witness must be qualified by "knowledge, skill, experience, training, or education." Fed.R.Evid. 702. Second, the testimony must be relevant, meaning that it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Id. Third, the testimony must be reliable. Id.

Pope, ––– N.C.App. at ––––, 770 S.E.2d at 708.

Rule 702 guides the trial court by providing general standards to assess reliability: whether the testimony is based upon "sufficient facts or data," whether the testimony is the "product of reliable principles and methods," and whether the expert "has applied the principles and methods reliably to the facts of the case." Fed.R.Evid. 702. In addition, Daubert provides a nonexclusive checklist for trial courts to consult in evaluating the reliability of expert testimony. The test of reliability is "flexible," and the Daubert factors do not constitute a "definitive checklist or test," but may be tailored to the facts of a particular case. Kumho [Tire Co. v. Carmichael ], 526 U.S. 137, 150, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238, 251 (1999).

Id. at ––––, 770 S.E.2d at 708.

In the instant case defendant does not challenge the science of retrograde extrapolation. In his brief to this court defendant readily acknowledges "[i]t is undisputed that,...