713 S.E.2d 793
No. COA10-1330North Carolina Court of Appeals
Filed 7 June 2011 This case not for publication
Transylvania County No. 08 CRS 52668.
Appeal by Defendant from judgment entered 1 July 2010 by Judge Mark E. Powell in Transylvania County Superior Court. Heard in the Court of Appeals 2 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General William P. Hart, Jr., for the State.
Mercedes O. Chut for Defendant.
BEASLEY, Judge.
Herman Everette Greer (Defendant) appeals from the judgment entered after a jury found him guilty of impaired driving. Defendant
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argues that the trial court committed plain error by allowing a police officer to testify, without proper foundation, that Defendant failed a horizontal gaze Nystagmus test. We find no prejudicial error.
On 5 December 2008, Brevard Police Department Officer Bradley Reese received a call from dispatch about a possible hit-and-run accident. When Officer Reese investigated, he was directed to a truck that matched the description of the vehicle involved in the accident. Officer Reese began to follow the truck and noticed that the tag light was not working. Officer Reese activated his blue light and stopped the truck.
Defendant was the driver of the truck, and Pamela Walker-Frazer was a passenger. When Officer Reese approached the driver’s side of Defendant’s truck, Defendant had difficulty finding his driver’s license and Officer Reese could smell the strong odor of alcohol emanating from his person. In Officer Reese’s opinion, both Defendant and Ms. Walker-Frazer appeared to be intoxicated. Officer Reese had Defendant get out of the truck to perform three field sobriety tests, the “walk and turn, one-leg stand, and Nystagmus” tests.
Officer Reese testified that Defendant failed the one-leg stand test because his body swayed, even as he attempted to use his arms to maintain his balance. Defendant also could not hold his foot in the air for a sufficient period of time to pass the test. Defendant failed the walk and turn test because he started walking before
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Officer Reese began the test, took more steps than he was instructed, could not walk in a straight line, failed to walk “heel to toe” for several steps, and almost fell over when he attempted to turn.
Defendant also failed the horizontal gaze Nystagmus test. Officer Reese testified that the Nystagmus test is administered “because alcohol typically affects the eyes and you can see that by a jerking within the eyes.” As of December 2008, Officer Reese had been trained by the Department of Health and Human Services to administer the test, and he had administered the test during numerous prior impaired driving investigations. When Officer Reese administered the test to Defendant, he observed that Defendant “showed lack of smooth pursuit on both the right and left eye.” The results of the test indicated to Officer Reese that Defendant was intoxicated.
At that point, Officer Reese arrested Defendant and took him to the Transylvania County Detention Center to perform an intoxilyzer test. Defendant signed a waiver and agreed to submit to the test, but then refused to provide a breath sample when Officer Reese was ready to administer the test. After waiting an additional thirty minutes for the machine to reset, Defendant eventually submitted to the test and registered a reading of .13 grams of alcohol per 210 liters of breath sample.
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Defendant represented himself and made a pretrial motion “to suppress all evidence” because he believed that Officer Reese lacked probable cause or a reasonable suspicion to justify the traffic stop. The trial court denied the motion. At trial, Defendant testified that he did not believe that the intoxilyzer reading was accurate. Defendant also claimed that he could not complete the other field tests because he had suffered a broken hip, broken leg, and broken pelvis in 1962 and his old injuries prevented him from performing the tests. Defendant further testified that the area where Officer Reese administered the sobriety tests was not level or well-lit. Ms. Walker-Frazer also testified for Defendant.
The jury found Defendant guilty of impaired driving. The trial court entered a judgment imposing a term of 60 days in jail, suspended the sentence, and placed Defendant on 12 months of supervised probation. Defendant entered notice of appeal.
In his sole argument on appeal, Defendant contends that the trial court committed plain error by allowing Officer Reese to testify about the horizontal gaze Nystagmus test without first providing sufficient foundation. We disagree.
Defendant acknowledges that he did not object to Officer Reese’s testimony about the Nystagmus test, and that we must review the admission of the testimony for plain error. See N.C.R. App. P. 10(a)(4) (allowing “plain error” review on appeal in criminal cases
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where defendant fails to raise an objection at trial). Plain error is “`fundamental error, something 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) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)).
Under plain error analysis, a defendant is entitled to reversal “only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.” State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002). Our appellate courts, therefore, “reverse for plain error only in the most exceptional cases[.]” State v. Locklear, 363 N.C. 438, 449, 681 S.E.2d 293, 303 (2009) (citing State v. Garcell, 363 N.C. 10, 35-36, 678 S.E.2d 618, 634 (2009) (quoting State v. Raines, 362 N.C. 1, 16, 653 S.E.2d 126, 136 (2007))).
Here, setting aside the question of whether Officer Reese’s testimony describing the Nystagmus test and results was admissible, we hold that defendant cannot demonstrate that admission of the testimony amounted to plain error. In addition to the disputed testimony, Officer Reese also testified that Defendant smelled strongly of alcohol, had difficulty finding his driver’s license, performed poorly on the one-leg stand and walk-and-turn field sobriety tests, and registered an intoxilyzer reading of .13, even after the delay caused by his initial refusal to comply with the
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test. In light of this overwhelming evidence of Defendant’s impairment, we hold that he cannot demonstrate that the admission of the Nystagmus test testimony amounted to prejudicial error.
No prejudicial error.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).
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