State v. Killian , 250 N.C. App. 443 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-268
Filed: 15 November 2016
Buncombe County, No. 14 CRS 52004
STATE OF NORTH CAROLINA
v.
JAMES HOWARD KILLIAN
Appeal by Defendant from judgment entered 8 July 2015 by Judge Alan Z.
Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 6
September 2016.
Attorney General Roy Cooper, by Assistant Attorney General Yvonne B. Ricci,
for the State.
Jeffrey William Gillette for Defendant.
STEPHENS, Judge.
Defendant appeals from the judgment entered upon his conviction of driving
while impaired. Defendant contends that the trial court committed plain error in
admitting testimony from the law enforcement officer who arrested him regarding
the officer’s interpretation of the results of a specific roadside sobriety test. Although
we agree with Defendant that the challenged testimony was admitted in error, we
conclude that, in light of the overwhelming unchallenged evidence of Defendant’s
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Opinion of the Court
impairment, he was not prejudiced by admission of the challenged testimony.
Accordingly, Defendant is not entitled to a new trial.
Factual and Procedural Background
The evidence at trial tended to show the following: This case arises from an
early-morning encounter on 29 June 2014 between Defendant James Howard Killian
and Corporal Jonathan Ray of the Weaverville Police Department. As Ray was
completing an unrelated traffic stop, Killian approached him, complaining that his
moped had been “run off the road” by a law enforcement vehicle. Ray immediately
detected a strong odor of alcohol emanating from Killian and asked Killian whether
he had been drinking and whether he would submit to an Alco-Sensor breath test.
Killian agreed to the breath test. The test registered positive for the presence of
alcohol. Killian acknowledged having consumed two beers, and Ray asked him to
submit to standard field sobriety testing. Killian agreed.
The next test Ray administered was the Horizontal Gaze Nystagmus (“HGN”)
test. During this test, Ray observed the movement of Killian’s eyes for involuntary
jerking that may be caused by consumption of alcohol and/or drugs. Ray testified
that Killian exhibited signs of possible impairment. Ray next asked Killian to
complete the “walk and turn” test, which Killian was unable to complete successfully.
Killian declined to attempt the one-leg-stand test, citing pain and swelling in his
knee. Ray then asked Killian to repeat the Alco-Sensor breath test, which again gave
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Opinion of the Court
a positive result. On the basis of Ray’s observation of Killlian’s slurred speech and
glassy, red eyes, the odor of alcohol emanating from Killian, the two positive breath
test results, the HGN test results indicating impairment, and Killian’s failure to
successfully complete the walk and turn test, in conjunction with his admission to
consuming alcohol earlier, Ray determined that he had probable cause to arrest
Killian for impaired driving. The entire encounter was recorded by Ray’s dashboard
camera and was played for the jury at trial.
As Ray took Killian into custody, Killian requested medical attention for his
injured knee. Ray called emergency medical services to examine Killian’s knee, after
which Ray transported Killian to a local hospital for X rays of the knee. At the
hospital, Ray read Killian his rights regarding submission of a blood sample to test
for alcohol or other impairment. Killian signed a form acknowledging his
understanding of his legal rights and submitted a blood sample. When tested, that
sample indicated a blood alcohol content (“BAC”) of 0.10 milligrams of alcohol per 100
milliliters, a level indicating legal impairment.1 Once Killian was released from the
hospital into Ray’s custody, Killian was transported to the Buncombe County
Detention Facility.
Killian was cited for driving while impaired and failure to comply with a
driver’s license restriction. On 11 June 2015, Killian was found guilty in Buncombe
1A BAC result of 0.08 or above is one way to establish that a defendant has committed the offense of
impaired driving. See N.C. Gen. Stat. § 20-138.1(a)(2) (2015).
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Opinion of the Court
County District Court of driving while impaired. On the following day, Killian filed
his notice of appeal to superior court. On 2 July 2015, Killian filed several motions
in the trial court, including a motion to exclude Ray’s testimony about field sobriety
tests he administered, on the basis that Ray was not qualified as an expert in the
interpretation of the results of such tests. Those motions were denied by the superior
court, and Killian’s case came on for trial at the 6 July 2015 criminal session of
Buncombe County Superior Court, the Honorable Alan Z. Thornburg, Judge
presiding. At trial, Killian did not object to Ray’s testimony about his administration
of the HGN test and Killian’s results. The jury returned a guilty verdict, and the trial
court imposed a sentence of 24 months in prison, suspended the sentence, and ordered
24 months of supervised probation. From the judgment imposed upon his conviction,
Killian gave notice of appeal in open court.
Discussion
In his sole argument on appeal, Killian contends that the trial court plainly
erred in denying his motion to exclude Ray’s HGN testimony and in allowing Ray to
testify about the results of the HGN test without qualifying Ray as an expert
pursuant to North Carolina Rule of Evidence 702(a). While we agree that admission
of the HGN testimony was error, we conclude that the error did not have a probable
impact on the jury’s verdict.
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As Killian acknowledges, because he did not object to the admission of the
testimony at trial that he now challenges on appeal, he is entitled only to plain error
review.
In criminal cases, an issue that was not preserved by
objection noted at trial and that is not deemed preserved
by rule or law without any such action nevertheless may be
made the basis of an issue presented on appeal when the
judicial action questioned is specifically and distinctly
contended to amount to plain error.
N.C.R. App. P. 10(a)(4). Our State’s appellate courts may “review unpreserved issues
for plain error when they involve either (1) errors in the judge’s instructions to the
jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580,
584, 467 S.E.2d 28, 31 (1996) (citations omitted). Plain error arises when the error is
“so basic, so prejudicial, so lacking in its elements that justice cannot have been done
. . . .” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citations and
internal quotation marks omitted). “Under the plain error rule, [a] defendant must
convince this Court not only that there was error, but that absent the error, the jury
probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440,
426 S.E.2d 692, 697 (1993) (citation omitted; emphasis added).
Admission of Ray’s testimony about the results of Killian’s HGN test was
clearly erroneous. North Carolina Rule of Evidence
702(a1) requires that, before a witness can testify as to the
results of an HGN test, he must be qualified as an expert
by knowledge, skill, experience, training, or education. If
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the witness is so qualified and proper foundation is
established, the witness may give expert testimony as to
the HGN test results, subject to the additional limitations
in subsection (a1). Namely, the expert witness may testify
solely on the issue of impairment and not on the issue of
specific alcohol concentration, and the HGN test must have
been administered by a person who has successfully
completed training in HGN.
State v. Godwin, __ N.C. App. __, __, 786 S.E.2d 34, 37 (2016) (citations and internal
quotation marks omitted), disc. review allowed, __ N.C. __, __ S.E.2d __ (2016),
available at 2016 WL 5344499. Here, it is undisputed that Ray was not tendered as
an expert in HGN interpretation and, accordingly, his testimony was not received as
an expert in that field. This was error. See id. at __, 786 S.E.2d at 37.
Regarding prejudice, Killian argues that, but for the HGN testimony, the jury
“likely” or “very likely” would have acquitted him of driving while impaired and, in
support of this contention, Killian asserts that the remaining evidence against him
was similar to that in Godwin, where we granted the defendant a new trial. While
the additional, non-HGN evidence in Godwin bears some resemblance to that against
Killian, the defendant in Godwin objected to the admission of the HGN testimony
during his trial, thus preserving his right of appellate review on that issue. Id. at __,
786 S.E.2d at 36. Accordingly, in order to receive a new trial, the defendant in
Godwin only had to establish that there was a reasonable possibility that the HGN
testimony altered the jury’s verdict. See State v. Helms, 348 N.C. 578, 583, 504 S.E.2d
293, 296 (1998) (“In order to establish prejudicial error in the erroneous admission of
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. . . HGN evidence, [a] defendant must show only that had the error in question not
been committed, a reasonable possibility exists that a different result would have
been reached at trial.”) (citation omitted). In contrast,
[t]he plain error rule applies only in truly exceptional
cases. Before deciding that an error by the trial court
amounts to plain error, the appellate court must be
convinced that absent the error the jury probably would
have reached a different verdict. In other words, the
appellate court must determine that the error in question
tilted the scales and caused the jury to reach its verdict
convicting the defendant. Therefore, the test for plain
error places a much heavier burden upon the defendant
than that imposed . . . upon defendants who have preserved
their rights by timely objection. This is so in part at least
because the defendant could have prevented any error by
making a timely objection.
State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (citations and internal
quotation marks omitted; emphasis added). See also State v. Pate, 187 N.C. App. 442,
448-49, 653 S.E.2d 212, 217 (2007) (“A reasonable possibility of a different result at
trial is a much lower standard than that a different result probably would have been
reached at trial, which is what this Court must find for there to be plain error.”)
(citations and internal quotation marks omitted; emphasis added).
In light of the “much lower standard” of prejudice applied in Godwin, see id.,
Killian’s contentions that the non-HGN evidence of his impairment was similar to
the evidence in that case are inapposite. We have found no precedential case
addressing plain error in the admission of HGN testimony. But see State v. Jackson,
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237 N.C. App. 183, 767 S.E.2d 149 (2014) (unpublished), available at 2014 WL
5587011 (finding no error in admission of HGN evidence and discussing the
overwhelming non-HGN evidence of the defendant’s impairment—several traffic
infractions, the odor of alcohol and marijuana, bloodshot and glassy eyes, admission
by the defendant of having consumed two beers and smoked marijuana earlier in the
day, and a blood alcohol level reading of 0.16 on an Intoxilyzer test—before noting in
dicta that, even had the admission of the evidence been error, the Court would not
have concluded the error likely altered the jury’s verdict).
Here, even without the HGN testimony, the jury had before it the following
evidence of Killian’s impairment: Ray’s observations of Killian’s slurred speech,
glassy, red eyes, and strong odor of alcohol; two positive breath test results; Killian’s
failure to successfully complete the walk and turn test and inability to attempt the
one-leg stand; Killian’s admission to having consumed two beers; the blood alcohol
test results indicating legal impairment with a BAC of 0.10; and a recording from
Ray’s dashboard camera of his entire roadside encounter with Killian. In light of this
significant evidence of impairment, we are not persuaded that, had Ray’s testimony
about the HGN test results not been admitted, the jury probably would have reached
a different result. In our view, Killian’s is not the “truly exceptional case[]. . . . [where]
the error in question tilted the scales and caused the jury to reach its verdict
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convicting the defendant.” See Walker, 316 N.C. at 39, 340 S.E.2d at 83 (citations
and internal quotation marks omitted). Accordingly, he is not entitled to a new trial.
NO PREJUDICIAL ERROR.
Judges BYRANT and DILLON concur.
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