Court of Appeals Considers Propriety of Opinion Testimony Based on Crash Scene Investigation

May a law enforcement officer who personally investigates, but does not observe, a vehicle crash testify as to his opinion about who was driving the vehicle? Does the answer depend upon whether the officer is qualified as an expert in accident reconstruction?  The court of appeals considered those questions in State v. Denton, ___ N.C. App. ___ (June 4, 2019), decided yesterday.

Facts. Timothy Denton and his friend Danielle Mitchell were in Denton’s mother’s car on August 1, 2014, when it ran off the road and wrecked. Denton and Mitchell were ejected from the car, and Mitchell died at the scene. Denton was severely injured and was air-lifted to the hospital. The vehicle smelled of alcohol, beer bottle caps were inside the vehicle, and a sealed bottle of beer was found on the ground by Mitchell’s body. Hospital blood tests revealed that Denton had a blood alcohol concentration of .18 and that benzodiazepine and cannabinoid were present in his urine. Circumstantial evidence indicated that Denton, who suffered a severe head injury and could not remember the day of the accident, was driving the car when it crashed. Denton was indicted for felony death by vehicle.

Opinion Testimony. Two law enforcement officers testified for the State at trial.  The first, Trooper Fox, responded to the accident and investigated the scene. He found long strands of brown or dark-colored hair trapped in the passenger side of the vehicle and windshield glass.  Mitchell’s hair was dark brown. Fox also measured the distance from the driver’s seat to the gas pedal and to the steering wheel. Fox, who acknowledged that he was not an expert in accident reconstruction, testified that he believed Denton, who was 5’11” tall was driving at the time of the crash because “‘the seating position was pushed back to a position where I did not feel that Ms. Mitchell [who was 5’2”] would be able to operate that vehicle or reach the pedals.’” Slip op. at 5. Denton objected to Fox’s testimony.

The second officer, Trooper Souther, analyzed the crash and testified as an expert in accident reconstruction. Souther testified that he had three theories about how the crash happened and that the one he deemed the most plausible was the one in which the defendant was the driver. He testified, however, that he could not conclusively state that Denton was driving.

Appeal. Denton argued on appeal that the trial court erred by permitting Trooper Fox to testify to his opinion that Denton was driving the car when it crashed. The court of appeals agreed, concluding that the trial court abused its discretion in allowing this testimony, that the error was not harmless, and that Denton was entitled to a new trial.

What are the rules for opinion testimony by lay witnesses? N.C. Evid. R. 701 provides that a lay witness may testify about opinions or inferences that are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the testimony or the determination of a fact in issue.

A lay witness generally is not permitted to testify as to his or her opinion when the witness is able to relate facts to the jury in a manner that enables the jury to draw its own inferences and conclusions from those facts. Thus, an officer who did not see an accident or the placement of the vehicles at the time of an accident may not express an opinion as to which driver had the right of way at the time vehicles entered an intersection. See Joines v. Moffitt, 226 N.C. App. 61 (2013). An officer likewise may not testify as to his conclusion about the point of impact between two cars based on a post-crash investigation. See State v. Wells, 52 N.C. App. 311 (1981). And an officer should not be permitted to testify to conclusions that the jury can easily draw for itself, such as that injuries to the left side of the body are consistent with a person having been seated on the left side of a wrecked vehicle. Cf. State v. Smith,  __ N.C. App. ___, 803 S.E.2d 703 (2017) (unpublished) (citing State v. McCloud, 310 S.W.3d 851 (Tenn. Crim. App. 2009) as illustrating “the possibility that no particular expertise is required for a witness—or a juror—to find that the driver of a vehicle is more likely to suffer left-side injuries in an accident” but concluding that the defendant failed to establish that as a matter of law, regardless of the previous experience of a witness, lay testimony that in general the person on the left side of a vehicle is likely to have left-side injuries is always inadmissible).

If, however, the witness’s observations put the witness in a position to judge the facts more accurately than those who have not had those opportunities, the witness may properly testify as to opinions drawn from those observations. Thus, a witness who has personally observed a person may testify as to his or her opinion as to whether the person was impaired by alcohol or drugs. See, e.g., State v. Lindley, 286 N.C. 255 (1974) (patrol officer with five years’ experience was properly permitted to testify to his opinion that the defendant was under the influence of some drug when that opinion was based on the conditions he observed and on the defendant’s response to the officer’s questions at the scene). And a witness who has seen a car being driven may properly testify to his or her opinion about the vehicle’s speed. See Insurance Co. v. Chantos, 298 N.C. 246 (1979) (“[A] person of ordinary intelligence and experience is competent to state his opinion as to the speed of a vehicle when he has had a reasonable opportunity to observe the vehicle and judge its speed.”)

The problem with Fox’s testimony. The court determined that Trooper Fox’s testimony exceeded the bounds of permissible opinion testimony from a lay witness. The court reasoned that Fox was in no better position than the jury to consider the evidence indicating that the defendant was the driver, which included evidence that the car was owned by the defendant’s mother, that the defendant was the only person who ever drove the vehicle, the location of Ms. Mitchell’s hair in the passenger area of the car, and the position of the driver’s seat. Fox essentially testified as an accident reconstruction expert, without being qualified as an expert and without having sufficient facts to support an expert opinion. The insufficiency of the facts was revealed by Souther’s testimony.  Souther used his expertise to analyze the same facts and yet was unable to conclude with certainty that the defendant had been driving.

The error was not harmless. The court noted that whether Denton was driving “was the only issue in serious contention at trial.” Slip op. at 13. If he was, the court opined that the remaining evidence, which included evidence of “speeding, reckless driving, alcohol consumption, and defendant’s high blood alcohol level . . . would essentially guarantee a guilty verdict.” Id. Thus, the court concluded that Denton was entitled to a new trial.

What about accident reconstruction testimony? The Denton court stated that a witness must be qualified as an expert to testify about conclusions formed from analyzing the scene of a crash. Such a witness must, of course, be qualified under the general provisions of N.C. Evid. R. 702 and his or her testimony must satisfy the reliability requirements of that rule. One type of expert accident reconstruction testimony is specifically sanctioned by Rule 702(i), which allows an accident reconstruction expert who has performed a reconstruction of a crash, or has reviewed the report of investigation, to give an opinion as to the speed of a vehicle even if the witness did not see the vehicle moving.

Consistency, inconsistency, and consistent inconsistency. The Denton court distinguished State v. Ray, 149 N.C. App. 137 (2002), in which the court found no error in permitting a law enforcement officer to testify that the cuts on the victim’s hand were not consistent with a traffic accident. Ray was different, Denton said, because in Ray a medical expert confirmed the lay witness’s opinion. Denton also is arguably inconsistent with State v. Cash, 234 N.C. App. 116 (2014) (unpublished), in which the court found no error in allowing a law enforcement officer to testify, based on his post-crash investigation, that the defendant’s vehicle had rolled more than once. The Cash court considered the officer’s conclusions to be permissible shorthand statements of fact that described the accident scene he observed rather than a technical opinion on accident reconstruction.

These inconsistencies are not particularly surprising, given the way in which courts often have blurred the lines between lay and expert opinion testimony, particularly when it comes to law enforcement officers testifying based on their experience. See 1 McCormick On Evidence § 11 (7th ed. 2013). While testimony based on specialized knowledge, including that gained from training and experience, is generally classified as expert testimony, courts in North Carolina elsewhere have permitted law enforcement officers to testify as lay witnesses to opinions informed by their investigative training and experience.  See, e.g., United States v. Jones, 218 F. App’x 916, 917 (11th Cir. 2007) (officer properly allowed to testify under Rule 701 that, through his experience, he had learned that the quantity and packaging of narcotics can indicate whether narcotics are intended for distribution and that the marijuana quantity seized in the case at hand indicated that it was intended for distribution); State v. Howard, 215 N.C. App. 318 (2011) (detective properly allowed to give lay opinion testimony that subtotals on a receipt indicated that the credit card was stolen because defendant would not have known how much money was available on the card and would have purchased a few items at a time to be sure the card would clear); State v. Crandell, 208 N.C. App. 227 (2010) (detective’s testimony regarding the calibers of the bullets retrieved from the vehicle was based on his personal experience and observations relating to various calibers of weapons and was admissible under Rule 701).

A knot worth untangling. Denton demonstrates the significance of identifying the types of testimony from law enforcement officers that fall on the expert side of the divide. Not only is a defendant entitled to pre-trial notice of expert witnesses and discovery of their reports and opinions, see G.S. 15A-903(a)(2), but expert testimony must satisfy reliability requirements that do not apply to lay opinions. In Denton, the expert opinion that was subject to more rigorous requirements and review reached less certain conclusions than the one admitted under the looser lay opinion standard. The ready availability of a contrasting opinion on the same subject matter illustrated the potential deficiencies of the lay opinion and thus made all the difference on appeal.


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