State v. HelmsState v. Helms
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Defendant appeals judgment entered upon conviction for driving while impaired in violation of
The State’s evidence adduced at trial tended to show the following: Officer E.P. Bradley (Bradley) was stopped at an intersection in Monroe, North Carolina, at approximately 4:00 a.m. on 30 December 1995 when defendant drove past. Bradley noticed the tail lights of defendant’s automobile were not operating and, while following the vehicle, observed it weave from the left side of its lane of travel to the right, striking the curb with the right front tire. Bradley activated his blue light, and defendant’s automobile made a wide right turn onto a side street, veering into the opposite lane before coming to a stop.
Bradley approached the vehicle and noticed a strong odor of alcohol as defendant rolled down the driver’s side window. Bradley requested that defendant produce his driver’s license, and the latter indicated “he didn’t have any license.” Bradley noted defendant’s speech was “mumbled” and asked him to exit his vehicle. As defendant did so, he was unsteady on his feet. Bradley further observed defendant’s eyes were bloodshot, his shirt tail was hanging out, and his clothes were soiled. As defendant sat in the patrol car, Bradley noted a strong odor of alcohol emanating from defendant.
Bradley thereafter administered a HGN test. Nystagmus is a physiological condition that involves
an involuntary rapid movement of the eyeball, which may be horizontal, vertical or rotary. An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words jerking orbouncing) is known as horizontal gaze nystag-mus, or HGN.
People v. Leahy, 882 P.2d 321, 323 (Cal. 1994) (citations omitted). The test typically has three components, see Commonwealth v. Sands, 675 N.E.2d 370, 372 (Mass. 1997), each of which was contained in the test administered by Bradley to defendant. Bradley directed defendant to focus upon a pen held twelve to fifteen inches from defendant’s face as Bradley slowly moved the pen out of defendant’s field of vision towards the latter’s ear. Bradley sought to observe 1) whether the onset of nystagmus was less than forty five degrees; 2) whether nystagmus, when defendant’s eyes were moved as far as possible to one extreme, was moderate or distinct; and 3) whether defendant’s eyes were able to move smoothly from side to side as they tracked the pen. See State v. Breeson, 554 N.E.2d 1330, 1333 (Ohio 1990) (setting out components of HGN test). Bradley testified that twitching of defendant’s eyes during administration of the test would be associated with alcohol intoxication. On redirect examination, Bradley stated he had completed a forty hour training class dealing with the HGN test.
Based upon the results of the HGN test, as well as his observations concerning defendant’s operation of his vehicle and the odor of alcohol on defendant’s breath, Bradley formed the opinion that defendant had consumed a sufficient quantity of alcohol so as to have impaired his mental and physical faculties. Bradley thereupon placed defendant under arrest and transported him to the county jail, where defendant refused administration of an intoxilyzer test.
In a holding cell at the jail and at Bradley’s direction, defendant attempted another sobriety measuring test known as the one-legged stand. Defendant was asked to keep his hands at his side while lifting his foot approximately six inches from the floor and counting to thirty. Bradley testified defendant dropped his foot three times and “stopped the test” at the count of fifteen. Further, defendant was unable to keep his hands lowered and swayed from side to side.
Defendant was also directed to perform the walk-and-turn test, in which he was to stand with his hands by his side and walk heel-to-toe down a line, turn, and then return to the starting point in the same fashion. Defendant failed to touch his heels to his toes and swayed, using his hands to maintain his balance.
Defendant presented no evidence at trial.
Following a jury verdict of guilty, defendant was sentenced to a term of two years imprisonment based upon the presence of aggravating factors. Defendant appeals.
The sole argument presented by Defendant is that Bradley’s testimony concerning the HGN test was inadmissible. Defendant contends the HGN test is a scientific test and thus admissible only following a proper foundation pursuant to.
The State responds that Bradley’s testimony merely described his first-hand observation of defendant’s conduct and was therefore admissible under
Without doubt, common experience teaches that alcohol affects one’s balance, coordination, speech, and ability to recollect.
See Schultz v. State,
664 A.2d 60, 65 (Md. Ct. Spec. App. 1995). When an officer describes a suspect’s behavior in regard to these categories, such testimony is within the understanding of the ordinary juror.
See State v. Anderson,
85 N.C. App. 104, 108, 354 S.E.2d 264, 266,
rev’d on other grounds,
322 N.C. 22, 366 S.E.2d 459 (1988) (citation omitted) (“expert testimony usually admitted to explain to juries what they otherwise would not understand”). Some jurisdictions have determined the HGN test to be similar to other field tests which measure behavior commonly associated with intoxication and therefore to require no additional foundation for admission
The majority of courts, however, have concluded the HGN test is a scientific test requiring a proper foundation to be admissible. See, e.g., State v. Superior Court In and For Cochise County, 718 P.2d 171 (Ariz. 1986); People v. Leahy, 882 P.2d 321 (Cal. 1994); State v. Meador, 674 So.2d 826 (Fla. Dist. Ct. App.), review denied, 686 So.2d 580 (Fla. 1996); Commonwealth v. Sands, 675 N.E.2d 370 (Mass. 1997); Schultz v. State, 664 A.2d 60 (Md. Ct. Spec. App. 1995); People v. Erickson, 156 A.D.2d 760 (N.Y. App. Div. 1989), appeal denied, 555 N.E.2d 623 (N.Y. 1990); City of Fargo v. McLaughlin, 512 N.W.2d 700 (N.D. 1994); Commonwealth v. Miller, 532 A.2d 1186 (Pa. Super. Ct. 1987); Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App.), cert. denied, 513 U.S. 931, 130 L. Ed. 2d 284 (1994); State v. Cissne, 865 P.2d 564 (Wash. Ct. App.), review denied, 877 P.2d 1288 (1994).
We agree with the majority view that the HGN test does not measure behavior a lay person would commonly associate with intoxication. Rather,
it is based upon a scientific principle that the extent and manner in which one’s eye quivers can be a reliable measure of the amount of alcohol one has consumed.
Schutz,
664 A.2d at 65. The test therefore represents specialized knowledge that must be presented to the jury by a qualified expert pursuant to
The United States Supreme Court, interpreting the Federal Rules of Evidence, has stated there is a presumption inherent in Rule 702 that “the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.” Daubert v. Merrell Dow, 509 U.S. 579, 592, 125 L. Ed. 2d 469, 482 (1993). Under this state’s rules of evidence, “[a] new scientific method of proof is admissible at trial [only] if the method is sufficiently reliable,” Pennington, 327 N.C. at 98, 393 S.E.2d at 852, i.e., if “the reasoning or methodology underlying the [method] is sufficiently valid,” State v. Goode, 341 N.C. 513, 527, 461 S.E.2d 631, 639 (1995). See also Daubert, 509 U.S. at 590, 125 L. Ed. 2d at 481 n.9 (defining “reliability” in a legal context — “eviden- tiary reliability” is “based upon scientific validity”‘). The court’s “gatekeeping” function in this regard is made necessary by the heightened credence juries tend to give evidence perceived as scientific. State v. O’Key, 899 P.2d 663, 672 (Or. 1995) (court must insure persuasive appeal of scientific evidence is legitimate). If reliable, the reasoning or methodology must then be determined to be “properly applicable] to the facts in issue.” Goode at 527, 461 S.E.2d at 639.
No decision of our appellate courts has addressed the admissibility of HGN evidence. In such circumstance, the trial court may determine reliability “either by judicial notice or from the testimony of scientists who are expert in the subject matter, or by a combination of the two.” State v. Bullard, 312 N.C. 129, 148, 322 S.E.2d 370, 381 (1984) (quoting earlier edition of 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 113, at 361 (4th ed. 1993)).
It is well established that
[a] court may take judicial notice of a fact within a field of any particular science which is so notoriously true as not to be the subject of reasonable dispute or is capable of demonstration by resort to readily accessible sources of indisputable accuracy.
Ingold v. Light Co.,
11 N.C. App. 253, 256, 181 S.E.2d 173, 174 (1971). In the case
sub judice,
the record contains no indication the trial court purported to take judicial notice of the reliability of the HGN test.
See
Prior to concluding, we note judicial notice may be taken at the appellate court level.
See
Notwithstanding improper admission of the HGN test results, the remaining testimony offered at trial as summarized above overwhelmingly established defendant’s guilt of the crime of driving while impaired. Accordingly, receipt of the evidence constituted harmless error, and defendant’s conviction stands undisturbed.
See
No error.
Judges GREENE and WALKER concur.