{ "id": 11796209, "name": "STATE OF NORTH CAROLINA v. BOBBY NEAL HELMS", "name_abbreviation": "State v. Helms", "decision_date": "1997-09-02", "docket_number": "No. COA96-1060", "first_page": "375", "last_page": "381", "citations": [ { "type": "official", "cite": "127 N.C. App. 375" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "836 P.2d 1110", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1480313 ], "year": 1992, "pin_cites": [ { "page": "1121", "parenthetical": "declining to rule on admissibility of HGN test prior to opportunity of trial court to weigh disputed facts concerning reliability thereof" } ], "opinion_index": 0, "case_paths": [ "/kan/251/0313-01" ] }, { "cite": "181 S.E.2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "174" } ], "opinion_index": 0 }, { "cite": "11 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554339 ], "year": 1971, "pin_cites": [ { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/nc-app/11/0253-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "381", "parenthetical": "quoting earlier edition of 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 113, at 361 (4th ed. 1993)" } ], "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "pin_cites": [ { "page": "148", "parenthetical": "quoting earlier edition of 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 113, at 361 (4th ed. 1993)" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "899 P.2d 663", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 746128 ], "year": 1995, "pin_cites": [ { "page": "672", "parenthetical": "court must insure persuasive appeal of scientific evidence is legitimate" } ], "opinion_index": 0, "case_paths": [ "/or/321/0285-01" ] }, { "cite": "461 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "639" }, { "page": "639" } ], "opinion_index": 0 }, { "cite": "341 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793165 ], "year": 1995, "pin_cites": [ { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0513-01" ] }, { "cite": "509 U.S. 579", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 355769 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "592" }, { "page": "482" }, { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/us/509/0579-01" ] }, { "cite": "877 P.2d 1288", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1994, "opinion_index": 0 }, { "cite": "865 P.2d 564", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "130 L. Ed. 2d 284", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "513 U.S. 931", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1334528, 1331361, 1334340, 1330724, 1335878, 1333287, 1332390, 1332621, 1334766, 1335185, 1332339, 1334710, 1335674 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/513/0931-07", "/us/513/0931-12", "/us/513/0931-08", "/us/513/0931-05", "/us/513/0931-13", "/us/513/0931-10", "/us/513/0931-03", "/us/513/0931-11", "/us/513/0931-04", "/us/513/0931-09", "/us/513/0931-06", "/us/513/0931-01", "/us/513/0931-02" ] }, { "cite": "880 S.W.2d 759", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10019161 ], "opinion_index": 0, "case_paths": [ "/sw2d/880/0759-01" ] }, { "cite": "532 A.2d 1186", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 682722 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/pa-super/367/0359-01" ] }, { "cite": "512 N.W.2d 700", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10599839 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nw2d/512/0700-01" ] }, { "cite": "555 N.E.2d 623", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "156 A.D.2d 760", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3612411 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ad2d/156/0760-01" ] }, { "cite": "686 So.2d 580", "category": "reporters:state_regional", "reporter": "So. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "674 So.2d 826", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7434757 ], "opinion_index": 0, "case_paths": [ "/so2d/674/0826-01" ] }, { "cite": "718 P.2d 171", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1480115 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ariz/149/0269-01" ] }, { "cite": "426 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 826001 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/sc/310/0311-01" ] }, { "cite": "506 N.E.2d 285", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "451 N.W.2d 154", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10593052 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nw2d/451/0154-01" ] }, { "cite": "366 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "322 N.C. 22", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514399 ], "year": 1988, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0022-01" ] }, { "cite": "354 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "266", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169631 ], "year": 1988, "pin_cites": [ { "page": "108", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0104-01" ] }, { "cite": "664 A.2d 60", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 4428783 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "65" }, { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/md-app/106/0145-01" ] }, { "cite": "210 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "210", "parenthetical": "law enforcement officer may present opinion evidence as to defendant's intoxication based upon observation" } ], "opinion_index": 0 }, { "cite": "286 N.C. 255", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565130 ], "year": 1974, "pin_cites": [ { "page": "258", "parenthetical": "law enforcement officer may present opinion evidence as to defendant's intoxication based upon observation" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0255-01" ] }, { "cite": "393 S.E.2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "852" }, { "page": "852" } ], "opinion_index": 0 }, { "cite": "327 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498438 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "98" }, { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0089-01" ] }, { "cite": "554 N.E.2d 1330", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "1333", "parenthetical": "setting out components of HGN test" } ], "opinion_index": 0 }, { "cite": "675 N.E.2d 370", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "372" } ], "opinion_index": 0 }, { "cite": "882 P.2d 321", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "323", "parenthetical": "citations omitted" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 800, "char_count": 13725, "ocr_confidence": 0.777, "pagerank": { "raw": 2.3134560456048433e-07, "percentile": 0.7887218521234249 }, "sha256": "d4d71f1ac178336290df3bb25593684bf825d589f74e38836fc504b2fff38b00", "simhash": "1:5135f04cf4693293", "word_count": 2218 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and WALKER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BOBBY NEAL HELMS" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant appeals judgment entered upon conviction for driving while impaired in violation of N.C.G.S. \u00a7 20-138.1 (1993). He contends the trial court erred by allowing the arresting officer to testify to results of a horizontal gaze nystagmus (HGN) test administered to defendant. While we agree the State failed to lay a proper foundation at trial for admission of the HGN test results, we conclude the error was harmless and uphold defendant\u2019s conviction.\nThe State\u2019s 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\u2019s 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\u2019s automobile made a wide right turn onto a side street, veering into the opposite lane before coming to a stop.\nBradley approached the vehicle and noticed a strong odor of alcohol as defendant rolled down the driver\u2019s side window. Bradley requested that defendant produce his driver\u2019s license, and the latter indicated \u201che didn\u2019t have any license.\u201d Bradley noted defendant\u2019s speech was \u201cmumbled\u201d and asked him to exit his vehicle. As defendant did so, he was unsteady on his feet. Bradley further observed defendant\u2019s 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.\nBradley thereafter administered a HGN test. Nystagmus is a physiological condition that involves\nan 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 or bouncing) is known as horizontal gaze nystag-mus, or HGN.\nPeople 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\u2019s face as Bradley slowly moved the pen out of defendant\u2019s field of vision towards the latter\u2019s ear. Bradley sought to observe 1) whether the onset of nystagmus was less than forty five degrees; 2) whether nystagmus, when defendant\u2019s eyes were moved as far as possible to one extreme, was moderate or distinct; and 3) whether defendant\u2019s 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\u2019s 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.\nBased upon the results of the HGN test, as well as his observations concerning defendant\u2019s operation of his vehicle and the odor of alcohol on defendant\u2019s 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.\nIn a holding cell at the jail and at Bradley\u2019s 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 \u201cstopped the test\u201d at the count of fifteen. Further, defendant was unable to keep his hands lowered and swayed from side to side.\nDefendant 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.\nDefendant presented no evidence at trial.\nFollowing a jury verdict of guilty, defendant was sentenced to a term of two years imprisonment based upon the presence of aggravating factors. Defendant appeals.\nThe sole argument presented by Defendant is that Bradley\u2019s 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.N.C.G.S. \u00a7 8C-1, Rule 702 (1992). See State v. Pennington, 327 N.C. 89, 98, 393 S.E.2d 847, 852 (1990). Because the State failed to lay such a foundation, defendant asserts, the HGN evidence was improperly admitted.\nThe State responds that Bradley\u2019s testimony merely described his first-hand observation of defendant\u2019s conduct and was therefore admissible under N.C.G.S. \u00a7 8C-1, Rule 701. See State v. Lindley, 286 N.C. 255, 258, 210 S.E.2d 207, 210 (1974) (law enforcement officer may present opinion evidence as to defendant\u2019s intoxication based upon observation).\nWithout doubt, common experience teaches that alcohol affects one\u2019s 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\u2019s 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\u2019d on other grounds, 322 N.C. 22, 366 S.E.2d 459 (1988) (citation omitted) (\u201cexpert testimony usually admitted to explain to juries what they otherwise would not understand\u201d). 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 beyond first-hand observation. See, e.g., State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Nagel, 506 N.E.2d 285 (Ohio Ct. App. 1986); State v. Sullivan, 426 S.E.2d 766 (S.C. 1993).\nThe 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).\nWe agree with the majority view that the HGN test does not measure behavior a lay person would commonly associate with intoxication. Rather,\nit is based upon a scientific principle that the extent and manner in which one\u2019s eye quivers can be a reliable measure of the amount of alcohol one has consumed.\nSchutz, 664 A.2d at 65. The test therefore represents specialized knowledge that must be presented to the jury by a qualified expert pursuant to N.C.G.S. \u00a7 8C-1, Rule 702.\nThe United States Supreme Court, interpreting the Federal Rules of Evidence, has stated there is a presumption inherent in Rule 702 that \u201cthe expert\u2019s opinion will have a reliable basis in the knowledge and experience of his discipline.\u201d Daubert v. Merrell Dow, 509 U.S. 579, 592, 125 L. Ed. 2d 469, 482 (1993). Under this state\u2019s rules of evidence, \u201c[a] new scientific method of proof is admissible at trial [only] if the method is sufficiently reliable,\u201d Pennington, 327 N.C. at 98, 393 S.E.2d at 852, i.e., if \u201cthe reasoning or methodology underlying the [method] is sufficiently valid,\u201d 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 \u201creliability\u201d in a legal context \u2014 \u201ceviden-tiary reliability\u201d is \u201cbased upon scientific validity\u201d'). The court\u2019s \u201cgatekeeping\u201d function in this regard is made necessary by the heightened credence juries tend to give evidence perceived as scientific. State v. O\u2019Key, 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 \u201cproperly applicable] to the facts in issue.\u201d Goode at 527, 461 S.E.2d at 639.\nNo decision of our appellate courts has addressed the admissibility of HGN evidence. In such circumstance, the trial court may determine reliability \u201ceither by judicial notice or from the testimony of scientists who are expert in the subject matter, or by a combination of the two.\u201d 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 \u00a7 113, at 361 (4th ed. 1993)).\nIt is well established that\n[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.\nIngold 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 N.C.G.S. \u00a7 8C-1, Rule 201(e) and (g) (party entitled to be heard on request to take judicial notice; in criminal trial, court must instruct jury it may, but is not required to, accept as conclusive any fact judicially noticed). In addition, no evidence was presented at trial nor any inquiry conducted regarding reliability of the HGN test. Therefore, admission into evidence of Bradley\u2019s testimony concerning results of the HGN test administered to defendant was error.\nPrior to concluding, we note judicial notice may be taken at the appellate court level. See N.C.G.S. \u00a7 8C-1, Rule 201(f). However, we decline the State\u2019s invitation to take judicial notice of the \u201cscientific validity,\u201d Daubert at 590, 125 L. Ed. 2d at 481 n.9, of the HGN test on the record before us. See State v. Witte, 836 P.2d 1110, 1121 (Kan. 1992) (declining to rule on admissibility of HGN test prior to opportunity of trial court to weigh disputed facts concerning reliability thereof); see also Charles R. Honts & Susan L. Amato-Henderson, Horizontal Gaze Nystagmus Test: The State of the Science in 1995, 71 North Dakota Law Review 671 (1995) (asserting necessity of expert testimony on HGN test prior to holding test sufficiently reliable to be received into evidence).\nNotwithstanding improper admission of the HGN test results, the remaining testimony offered at trial as summarized above overwhelmingly established defendant\u2019s guilt of the crime of driving while impaired. Accordingly, receipt of the evidence constituted harmless error, and defendant\u2019s conviction stands undisturbed. See N.C.G.S. \u00a7 15A-1443 (1988) (defendant must show that had. error in question not been committed, reasonable possibility exists that different result would have been reached at trial).\nNo error.\nJudges GREENE and WALKER concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Attorney General Michael Easley, by Special Deputy Attorney General Isaac T. Avery, III, for the State.", "Shawna Davis Collins for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BOBBY NEAL HELMS\nNo. COA96-1060\n(Filed 2 September 1997)\n1. Evidence and Witnesses \u00a7 2176 (NCI4th)\u2014 HGN test \u2014 scientific test \u2014 qualified expert\nA horizontal gaze nystagmus (HGN) test represents specialized knowledge that must be presented to the jury by a qualified expert.\n2. Evidence and Witnesses \u00a7 2176 (NCI4th)\u2014 new scientific method of proof \u2014 reliability\u2014applicability\nA new scientific method of proof is admissible at trial only if the method is sufficiently reliable and the reasoning or methodology is applicable to the facts in issue.\n3. Evidence and Witnesses \u00a7 2176 (NCI4th)\u2014 impaired driving \u2014 HGN test \u2014 insufficient foundation \u2014 admission of results \u2014 harmless error\nThe State failed to present a sufficient foundation for the admission in a DWI prosecution of the results of an HGN test administered to defendant where the trial court did not purport to take judicial notice of the reliability of the HGN test, and no evidence was presented at trial and no inquiry was conducted regarding reliability of the HGN test. However, the admission of the arresting officer\u2019s testimony concerning the results of the HGN test was harmless error because the other testimony offered at the trial overwhelmingly established defendant\u2019s guilt of DWI where it showed that the officer observed defendant\u2019s erratic operation of his vehicle; the officer noticed a strong odor of alcohol emanating from defendant; the officer observed that defendant\u2019s speech was \u201cmumbled,\u201d he was unsteady on his feet, his eyes were bloodshot, his shirt tail was hanging out, and his clothes were soiled; and defendant failed other sobriety tests administered to him.\nAppeal by defendant from judgment entered 24 April 1996 by Judge Howard R. Greeson, Jr. in Union County Superior Court. Heard in the Court of Appeals 14 May 1997.\nAttorney General Michael Easley, by Special Deputy Attorney General Isaac T. Avery, III, for the State.\nShawna Davis Collins for defendant-appellant." }, "file_name": "0375-01", "first_page_order": 411, "last_page_order": 417 }