State v. FowlerÂ
2017 N.C. App. LEXIS 399
| N.C. Ct. App. | 2017Background
- On June 19, 2014 Officer R.P. Monroe stopped Melvin Leroy Fowler after Fowler pulled his truck into the officer’s path; Monroe observed slurred speech, red/glassy eyes, and an odor of alcohol.
- Monroe administered three field sobriety tests (HGN, walk-and-turn, one-leg stand); Fowler performed poorly or refused portions and cited knee pain.
- At the station Fowler attempted but did not complete an Intoxilyzer breath test and ultimately refused; no numerical BAC or blood test was introduced at trial.
- Fowler was convicted of DWI in district court, appealed for a jury trial, and was tried in superior court; the trial court instructed the jury on both appreciable impairment (§ 20-138.1(a)(1)) and a .08 BAC theory (§ 20-138.1(a)(2)).
- Fowler objected to the .08 instruction at charge conference as unsupported by the evidence; the trial court overruled the objection and gave the disjunctive instruction.
- The Court of Appeals vacated the conviction and granted a new trial because the .08 instruction was unsupported by the evidence and thus the disjunctive instruction violated unanimity (requiring reversal).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Fowler) | Held |
|---|---|---|---|
| Whether it was error to instruct the jury on § 20-138.1(a)(2) (.08 BAC) when no BAC evidence was introduced | The State asked for the .08 instruction to preserve argument and contended the instruction could be used in closing; any error was harmless. | Fowler argued no evidence supported a .08 theory and the instruction created a non-unanimous verdict risk. | Court held the .08 instruction was unsupported by the evidence; giving the disjunctive instruction was reversible error and required a new trial. |
| Whether the erroneous disjunctive instruction can be deemed harmless | State argued error harmless because evidence of appreciable impairment was sufficient. | Fowler argued the ambiguity requires reversal under binding precedent. | Court rejected harmless-error argument and applied precedent requiring a new trial where one disjunctive theory lacked evidentiary support. |
| Admissibility of Officer Monroe’s expert testimony on HGN | State offered Monroe as an expert on HGN administration/interpretation. | Fowler challenged Monroe’s qualification and the admissibility under Rule 702. | Court declined to decide HGN expert issue because jury-instruction error required a new trial; reserved for later proceedings. |
| Standard of review for instructional and expert-evidence rulings | N/A — Court stated de novo review for jury instruction errors and mixed standard for Rule 702 issues. | N/A | Court applied de novo review to instructional error; noted Rule 702 review is typically abuse of discretion but may be de novo when rule interpretation is disputed. |
Key Cases Cited
- State v. Pakulski, 319 N.C. 562 (1987) (if jury instruction presents alternative theories and one is erroneous, ambiguity resolved for defendant and new trial required)
- State v. Petersilie, 334 N.C. 169 (1993) (assume jury may have relied on improper instruction when verdict is ambiguous)
- State v. Oliver, 343 N.C. 202 (1996) (disjunctive instructions for DWI generally permissible when evidence supports both theories)
- State v. Johnson, 183 N.C. App. 576 (2007) (prosecution must present evidence supporting each alternative in a disjunctive instruction)
- State v. Lawrence, 365 N.C. 506 (2012) (plain-error standard applies to unpreserved instructional errors; harmless-error distinctions discussed)
- State v. Boyd, 366 N.C. 548 (2013) (adopts plain-error approach for certain unpreserved instructional errors and directs appellate review consistent with Lawrence)
- State v. Walters, 368 N.C. 749 (2015) (discusses unanimity requirement and when disjunctive instructions are permissible)