State v. Brown

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1265
NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

STATE OF NORTH CAROLINA

v. Cabarrus County
No. 11 CRS 053301
TODD EASTMAN BROWN

Appeal by defendant from judgment entered 10 January 2013

by Judge Tanya T. Wallace in Cabarrus County Superior Court.

Heard in the Court of Appeals 24 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Carrie D. Randa and Assistant Attorney General Christopher
W. Brooks, for the State.

Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr.,
for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Todd Eastman Brown (“Defendant”) appeals from an impaired

driving judgment following convictions for driving while

impaired and no operator’s license. Defendant contends that the

trial court erred in denying his pretrial motion to suppress the

results of an alcohol breath test because his wife was not

allowed to observe the test’s administration. Defendant further
 -2-
contends that the trial court erred in denying one of

Defendant’s requested jury instructions and in excluding

testimony by Defendant’s expert witness. For the following

reasons, we disagree and find no error.

I. Factual & Procedural History

On 25 June 2011, at approximately 4:00 a.m., Officer Denan

Sabanija (“Officer Sabanija”) of the Concord Police Department

executed a traffic stop of Defendant’s vehicle after discovering

that Defendant was driving with an expired license plate tag.

When Officer Sabanija approached the vehicle, he noticed a

strong odor of alcohol on Defendant’s breath and that Defendant

appeared to have glassy eyes. Officer Sabanija asked Defendant

if he had been drinking, and Defendant conceded that he had a

few drinks earlier in the night. Thereafter, Officer Sabanija

asked Defendant to step out of the vehicle and administered a

field sobriety test. Officer Sabanija indicated that Defendant

was barefooted, unsteady on his feet, and that Defendant

registered multiple clues of impairment on the field sobriety

test.

Based on these facts, Officer Sabanija arrested Defendant

for driving while impaired, driving with expired registration
 -3-
tags, and driving with no operator’s license.1 Upon arrest,

Defendant was taken to the Cabarrus County jail.

Defendant arrived at the jail at approximately 4:30 a.m.

He was processed and turned over to Officer Brian Pizzino

(“Officer Pizzino”), who was asked to administer an alcohol

breath test on Defendant. Before beginning the testing

procedure, Defendant called his wife and left a voicemail

indicating that she needed to come to the jail to observe the

test being performed. However, Defendant did not tell Officer

Pizzino that he wanted his wife present for the testing

procedure. Both Officer Pizzino and Officer Sabanija indicated

that they had no knowledge of Defendant’s desire to have his

wife present for testing. Thereafter, Officer Pizzino read

Defendant his rights regarding the testing procedure, which

Defendant waived by a signed writing. Officer Pizzino then

administered the alcohol breath test, yielding results of 0.15%

at 5:07 a.m. and 0.14% at 5:09 a.m.

Meanwhile, at approximately 4:40 a.m., Defendant’s wife

listened to the voicemail from Defendant requesting her to come

to the police station. By her estimation, it took approximately

1
Defendant was arrested on the charge of no operator’s license
because Defendant had an existing restriction on his license
rendering it invalid if Defendant drives with a blood alcohol
concentration greater than 0.04%.
 -4-
10 minutes for her to get to the police station after she

listened to the voicemail. When Defendant’s wife arrived at the

police station, she attempted to see her husband but was denied

access by the magistrate. Neither Officer Pizzino nor Officer

Sabanija knew Defendant’s wife was present at the station.

Based on the results of the alcohol breath test, as well as

other evidence collected by police, Defendant was charged with

one count of driving while impaired, one count of driving with

expired registration tags, and one count of having no operator’s

license. After Defendant pled guilty in district court,

Defendant appealed to superior court for a trial de novo. On 25

July 2012, Defendant filed a motion to suppress the results of

the alcohol breath test, arguing that his statutory right under

N.C. Gen. Stat. § 20-16.2(a)(6) (2013) to have a witness view

the testing procedure was violated when police refused to allow

his wife into the testing room. Following a hearing, the trial

court entered an order on 20 November 2012 denying Defendant’s

motion to suppress, concluding that Defendant had waived his

statutory right to have a witness present for the testing

procedure.
 -5-
Thereafter, Defendant was tried and convicted of driving

while impaired and having no operator’s license.2 On 10 January

2013, the trial court entered an impaired driving judgment

sentencing Defendant to 12 months active imprisonment. The

sentence was suspended for thirty-six months of supervised

probation conditioned on, inter alia, Defendant serving an

active sentence of seven days in the local jail. Defendant

filed a timely notice of appeal.

II. Jurisdiction

Defendant’s appeal from the superior court’s final judgment

lies of right to this Court pursuant to N.C. Gen. Stat. §§ 7A-

27(b), 15A-1444(a) (2013). See also N.C. Gen. Stat. § 15A-

979(b) (2013) (“An order finally denying a motion to suppress

evidence may be reviewed upon an appeal from a judgment of

conviction, including a judgment entered upon a plea of

guilty.”).

III. Analysis

Defendant’s appeal presents three questions for this

Court’s review: (1) whether the trial court erred in denying

Defendant’s pretrial motion to suppress; (2) whether the trial

court erred in denying one of Defendant’s requested jury

2
The charge of driving with expired registration tags was
dismissed for a lack of evidence presented by the State.
 -6-
instructions; and (3) whether the trial court erred in excluding

testimony by Defendant’s expert witness. We address each in

turn.

A. Motion to Suppress

Defendant’s first argument on appeal is that the trial

court erred in denying his motion to suppress the results of the

alcohol breath test administered by Officer Pizzino because

Defendant’s wife was denied the opportunity to witness the

testing procedure. Specifically, Defendant contends that by

denying his wife access to the testing room, his statutory right

under N.C. Gen. Stat. § 20-16.2(a)(6) to have a witness view the

testing procedure was violated notwithstanding the fact that

Defendant executed a signed waiver before the testing procedure

relinquishing such right. We disagree.

Our review of a trial court’s denial of a motion to

suppress is “strictly limited to determining whether the trial

judge’s underlying findings of fact are supported by competent

evidence, in which event they are conclusively binding on

appeal, and whether those factual findings in turn support the

judge’s ultimate conclusions of law.” State v. Cooke, 306 N.C.

132, 134, 291 S.E.2d 618, 619 (1982). “Conclusions of law are

reviewed de novo and are subject to full review.” State v.
 -7-
Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). “Under a

de novo review, the court considers the matter anew and freely

substitutes its own judgment for that of the lower tribunal.”

State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294

(2008) (quotation marks and citation omitted).

Pertinent here, the trial court made the following findings

of fact:

1. On 25 June 2011 at approximately 4:30
o’clock A.M. Officer Brian Pizzino of the
Concord Police Department was on duty in the
Cabarrus County Sheriff’s office
administering an alcohol breath test to
another defendant, not the defendant herein,
using the EC/IR IR II intoximeter
machine. . . . Officer Sabanija, also a
member of the Concord Police Department, had
stopped the defendant, Todd Eastman Brown,
at approximately 4:00 o’clock A.M. on that
same day upon suspicion of driving while
impaired and had brought the defendant to
the intoximeter room at the Cabarrus County
Sheriff’s office. Officer Sabanija was not
qualified to administer tests using the
intoximeter machine, and so he requested
Officer Pizzino to administer the test to
the defendant.

2. Officer Pizzino informed the defendant of
his rights using the form issued by the
North Carolina Department of Health and
Human Services entitled “Rights of Person
Requested to Submit to a Chemical Analysis
to Determine Alcohol Concentration or
Presence of and [sic] Impairing Substance
Under N.C.G.S. 20-16.2(a).” The rights
listed on the form are incorporated herein
by reference. After being informed of such
 -8-
rights, the defendant signed the form and
waived his rights to call an attorney or
another witness.

3. The defendant never stated to either
Officer Pizzino or Officer Sabanija that he
wanted an attorney or anyone else to witness
the intoximeter test. The defendant never
told either of these officers that his wife
and son were present in the waiting area
nearby.

4. The defendant knowingly and voluntarily
waived his right to have an attorney or
another person witness the administration of
the intoximeter test on 25 June 2011.

Based on the foregoing findings of fact, the trial court

concluded that Defendant “knowingly and voluntarily waived his

rights under N.C. Gen. Stat. § 20-16.2(a), that his motion to

suppress should be denied[,] and that the intoximeter test

results are admissible in evidence.”

On appeal, Defendant challenges the trial court’s finding

that Defendant waived his statutory right to have a witness view

the testing procedure. However, Defendant’s brief does not

dispute that Defendant actually signed a form waiving his

rights. Rather, Defendant challenges whether the signed form

has the legal effect of waiving his statutory rights given the

fact that he had called his wife to observe the testing

procedure prior to signing the document and the fact that his

wife was later denied access to the testing room. Defendant
 -9-
does not challenge the trial court’s other factual findings, so

we consider these unchallenged findings binding on appeal.

State v. Pickard, 178 N.C. App. 330, 334, 631 S.E.2d 203, 206

(2006).

Thus, in reviewing Defendant’s appeal, we presume the trial

court’s underlying findings of fact to be correct, but treat the

trial court’s determination regarding the ultimate question of

waiver as a conclusion of law that is reviewed de novo on

appeal. See In re R.A.H., 182 N.C. App. 52, 60, 641 S.E.2d 404,

409 (2007) (“[I]f [a] finding of fact is essentially a

conclusion of law . . . it will be treated as a conclusion of

law which is reviewable on appeal.” (alterations in original)

(quotation marks and citations omitted)). Accordingly, our

review is limited to whether the trial court’s findings of fact

support the conclusion that Defendant waived his rights under

the statute.

Pursuant to N.C. Gen. Stat. § 20-16.2(a), before any type

of chemical analysis, including an alcohol breath test, is

administered to a person charged with an implied-consent

offense, the person charged must be informed orally and in

writing that, inter alia, he or she may “select a witness to

view the testing procedures remaining after the witness
 -10-
arrives,” provided the testing is not delayed for such purposes

longer than 30 minutes. This statutory right may be waived by

the person being tested. State v. Myers, 118 N.C. App. 452,

454, 455 S.E.2d 492, 493 (1995). However, absent a waiver,

“denial of this right requires suppression of the results of the

breathalyzer test.” Id. Importantly, the burden is on the

person arrested for driving while impaired to assert at an early

stage an intention to exercise his or her statutory right to

have a witness view the testing procedure. McDaniel v. Div. of

Motor Vehicles, 96 N.C. App. 495, 497, 386 S.E.2d, 73, 75

(1989).

Here, Defendant contends that the trial court’s conclusion

that he waived his right under the statute is error and that his

statutory rights were violated when his wife was denied access

to the testing room. Defendant’s argument is without merit.

The trial court found as fact that Defendant was informed of his

statutory rights prior to the testing procedure, that Defendant

signed a form waiving his rights, that Defendant never stated to

the police that he wanted a witness, and that Defendant never

informed police that his wife was present at the station.

Notwithstanding these findings, Defendant cites State v.

Hatley, 190 N.C. App. 639, 661 S.E.2d 43 (2008), to support the
 -11-
argument that his statutory rights were violated. In Hatley, we

reversed the trial court’s order denying the defendant’s motion

to suppress, holding that the defendant’s statutory right to

have a witness view the testing procedure was violated when the

police were aware that the defendant called a witness to observe

the test, but denied the witness access to the testing room

because the witness failed to specifically identify that she was

there to witness the defendant’s test.3 Id. at 643–44, 661

S.E.2d at 45–46. In reaching our holding, we stated that “[w]e

find no authority for the proposition that a potential witness

to an intoxilyzer test must state unequivocally and specifically

that he or she has been called to view the test before the

witness is permitted to observe the test.” Id. at 644, 661

S.E.2d at 46.

Here, Defendant seeks to analogize Hatley because his

witness, Defendant’s wife, was also denied access to the testing

room. However, in Hatley, the defendant did not waive her

rights through a signed writing and specifically indicated to

police that she had contacted a witness who was en route to the

3
The witness in Hatley told the desk officer at the police
station that she was there for the defendant and that the
defendant was at the station because of “a DUI.” Hatley, 190
N.C. App. at 644, 661 S.E.2d at 46. The witness failed to
specify to the desk officer that she was there to observe an
alcohol breath test. Id. at 643, 661 S.E.2d at 45.
 -12-
police station. Id. at 643, 661 S.E.2d at 45. Neither is the

case here. Defendant explicitly waived his rights in writing

and did not tell Officer Pizzino or Officer Sabanija about his

wife coming to the police station to witness the testing. Thus,

Hatley is inapposite. Defendant was informed of his statutory

rights under N.C. Gen. Stat. § 20-16.2(a) and given the

opportunity to request that his wife be allowed to view the

testing procedure. Instead, Defendant explicitly waived his

right to have his wife present in a signed writing.

Accordingly, Defendant’s first argument is overruled.

B. Jury Instruction

Defendant’s second argument on appeal is that the trial

court erred in denying a jury instruction requested by Defendant

explaining that the results of a chemical analysis are

sufficient, but not conclusive, evidence of impairment.

Specifically, Defendant sought an instruction that stated:

A chemical analysis of defendant’s breath
obtained from an EC/IR-II which shows an
alcohol concentration of 0.08 or more grams
of alcohol per 210 liters of breath is
deemed sufficient to prove defendant’s
alcohol concentration. However, such
chemical analysis does not compel you to so
find beyond a reasonable doubt. You are
still at liberty to consider the credibility
and/or weight to give such chemical analysis
when considering whether defendant’s guilt
has been proven beyond a reasonable doubt.
 -13-

The instruction actually provided to the jury was:

The results of a chemical analysis are
deemed sufficient evidence to prove a
person's alcohol concentration. You may
find the defendant’s alcohol concentration
to be a .08 or more based upon the result,
but you are not compelled to do so.

This Court has recently defined the law with respect to

Defendant’s argument as follows:

When a defendant requests a special jury
instruction, the trial court is not required
to give the requested instruction in the
exact language of the request. However,
when the request is correct in law and
supported by the evidence in the case, the
court must give the instruction in
substance. Thus, in order for a defendant
to establish error, [he or] she must show
that the requested instructions were not
given in substance and that substantial
evidence supported the omitted instructions.
The defendant also bears the burden of
showing that the jury was misled or
misinformed by the instructions given.

State v. Beck, ___ N.C. App. ___, ___, 756 S.E.2d 80, 82 (2014)

(internal quotation marks, citations, and brackets omitted). We

believe Beck, which also concerned a driving while impaired

conviction, is dispositive of this issue.

In Beck, the defendant also requested a special instruction

informing the jury that chemical analysis test results are

sufficient, but not conclusive, evidence of impairment and that
 -14-
the jury is allowed to consider the weight to be accorded to

such results. Id. at ___, 756 S.E.2d at 82. The jury

instruction actually used by the trial court in Beck was a

reproduction of Pattern Jury Instruction 270.20A. Id. Beck

held that it was not error for the trial court to refuse the

specific language of the defendant’s requested instruction

because the pattern jury instruction properly “informed the

jury, in substance, that it was not compelled to return a guilty

verdict based simply on the chemical analysis results.” Id. at

___, 756 S.E.2d at 83.

Here, the jury instruction provided by the trial court was

also a reproduction of Pattern Jury Instruction 270.20A, except

for an additional sentence instructing the jury concerning the

chemical test result as follows: “You may find the Defendant’s

alcohol concentration to be 0.08 or more based upon the result,

but you are not compelled to do so.” Thus, as evinced by the

addition of the foregoing sentence, the jury instruction

provided in this case was closer to Defendant’s requested

instruction than the instruction provided in Beck. Even though

the trial court did not present Defendant’s proposed instruction

verbatim, it did present Defendant’s instruction in substance

because it informed the jury of the proper weight and
 -15-
credibility to give chemical analysis test results.

Accordingly, Defendant’s second argument is overruled.

C. Expert Testimony

Finally, Defendant argues that the trial court erred in

excluding expert testimony regarding the effect of gastro-

esophageal reflux disease (“GERD”4) on alcohol breath test

results.5 We disagree.

It is well-established that trial courts
must decide preliminary questions concerning
the qualifications of experts to testify or
the admissibility of expert testimony. When
making such determinations, trial courts are
not bound by the rules of evidence. In this
capacity, trial courts are afforded wide
latitude of discretion when making a
determination about the admissibility of
expert testimony. Given such latitude, it
follows that a trial court’s ruling on the
qualifications of an expert or the
admissibility of an expert’s opinion will
not be reversed on appeal absent a showing
of abuse of discretion.

Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d

674, 686 (2004) (citations and quotation marks 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).

4
GERD is known colloquially as “acid reflux disease.”
5
Defendant testified at trial that he suffered from GERD.
 -16-
Here, Defendant sought to admit the testimony of Mr. Julian

Douglas Scott (“Mr. Scott”), expert in the application and use

of evidentiary breath testing devices, who opined during a voir

dire examination that Defendant’s GERD could possibly cause “a

false high breath test reading in this case.” Mr. Scott

acknowledged that little research has been done in this area and

that results go no further than saying that it is possible that

GERD could influence test results. After considering Mr.

Scott’s testimony, the trial court excluded the evidence under

N.C. R. Evid. 702(a), stating that “there’s not enough testing

to even determine whether [the effects of GERD on evidentiary

breath testing is] a field of expertise or not” and that Mr.

Scott’s opinion would be “more confusing than assisting with

testimony in front of the jury.”

Pursuant to the version of N.C. R. Evid. 702(a) in effect6

when Defendant was cited for driving while impaired:

If 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,

6
Rule 702(a) was amended in 2011 and applies to actions arising
on or after 1 October 2011. See 2011 N.C. Sess. Law ch. 283, §
1.3; see also State v. Gamez, ___ N.C. ___, ___, 745 S.E.2d 876,
878–79 (2013). Defendant was cited on 25 June 2011 and thus the
old version of the rule applies.
 -17-
experience, training, or education, may
testify thereto in the form of an opinion.

In interpreting Rule 702(a), our Supreme Court has stated that

there is a “three-step inquiry for evaluating 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). As noted above, the trial court grounded its ruling

on the first inquiry, concluding, in effect, that Mr. Scott’s

opinion would not be sufficiently reliable to be considered an

appropriate area for expert testimony.

Under the first inquiry, in order to determine whether an

expert’s area of testimony is considered sufficiently reliable,

“[i]nitially, the trial court should look to precedent for

guidance in determining whether the theoretical or technical

methodology underlying an expert’s opinion is reliable.” Id. at

459, 597 S.E.2d at 687.

Where, however, the trial court is without
precedential guidance or faced with novel
scientific theories, unestablished
techniques, or compelling new perspectives
on otherwise settled theories or techniques,
a different approach is required. Here, the
trial court should generally focus on the
 -18-
following nonexclusive “indices of
reliability” to determine whether the
expert’s proffered scientific or technical
method of proof is sufficiently reliable:
“the expert’s use of established techniques,
the expert’s professional background in the
field, the use of visual aids before the
jury so that the jury is not asked ‘to
sacrifice its independence by accepting
[the] scientific hypotheses on faith,’ and
independent research conducted by the
expert.”

Id. at 460, 597 S.E.2d at 687 (quoting State v. Bullard, 312

N.C. 129, 150–51, 322 S.E.2d 370, 382 (1984)).

Here, given the lack of precedent on this issue, the trial

court looked to other indices of reliability in determining the

admissibility of Mr. Scott’s opinion. Specifically, the

transcript reveals that the trial court considered the quantity

and quality of research backing Mr. Scott’s opinion and the

number of prior occasions that Mr. Scott had been qualified as

an expert on the subject. Of the few studies Mr. Scott cited,

all had very small sample sizes that Mr. Scott admitted were

“not a very statistically relevant sample.” Furthermore, Mr.

Scott acknowledged that none of the studies tending to support

his opinion provide probabilities concerning the likelihood of

GERD affecting alcohol breath test results. The only thing that

the studies could say, in Mr. Scott’s opinion, was that “it is

possible” that GERD has an effect on the test results.
 -19-
Moreover, Mr. Scott testified that he had only served as an

expert in this capacity on one prior occasion. Accordingly,

based on the information before the trial court, we cannot say

that the trial court’s decision to exclude Mr. Scott’s opinion

was manifestly unsupported by reason or so arbitrary that it

could not have been the result of a reasoned decision. The trial

court acted within its discretion in deciding that Mr. Scott’s

opinion as to the “possible” effects of GERD on alcohol breath

testing was unreliable and would tend to confuse the issues.

Defendant’s third argument on appeal is overruled.

IV. Conclusion

For the foregoing reasons, we find no error in the court

below.

NO ERROR.

Judges STROUD and DILLON concur.

Report per Rule 30(e)