There seem to be fewer and fewer reported decisions about criminal discovery in North Carolina. A recent North Carolina Supreme Court decision finding a discovery violation by the prosecution, State v. Davis (Apr. 15, 2016), made me wonder why. This post reviews the evolution of North Carolina’s criminal discovery laws, which has brought relative calm to this area of law, along with the decision in Davis, which deals with a recurring issue about disclosure of expert opinion. Continue reading
Tag Archives: davis
On Tuesday, the Eleventh Circuit ruled, en banc, that law enforcement may obtain historical cell site location information without a search warrant, using a court order based on less than probable cause. There’s a controversy over what legal standard should govern law enforcement access to location information, and the Eleventh Circuit’s ruling is likely to be influential in the debate. This post explains the issue and puts the new decision in context. Continue reading →
The rules of thumb about expert testimony in child sexual abuse cases are (1) that an expert can’t testify that a child was, in fact, abused absent physical evidence, and (2) that an expert can testify to common characteristics or “profiles” of sexual abuse victims. A recent court of appeals case holds that even if the State doesn’t give notice of an expert’s opinion regarding victims’ characteristics, the expert has the leeway to discuss his or her own experiences with survivors of sexual abuse. Continue reading →
A couple of weeks ago, the court of appeals decided State v. Davis, __ N.C. App. __ (2012). For prosecutors, defense lawyers, and judges handling sex crime cases, it’s a significant opinion concerning Rule 404(b).
The defendant in Davis was charged with indecent liberties and first-degree sexual offenses based primarily on his young son’s reports that the defendant had anal and oral sex with him. Medical examinations of the child found nothing abnormal, but the defendant’s sperm were found in one pair of the child’s underwear.
The case went to trial, and the child testified about his father’s actions. The defendant also testified, denying the charges and asserting that the child’s mother had encouraged the child to fabricate the allegations as a way of gaining leverage in the couple’s divorce and custody battle. The state cross-examined the defendant about a composition book in which he wrote short stories and other material. The book included an entry in the form of a letter to a woman the defendant had known; the letter, which was admitted into evidence, described the defendant forcing the woman to have anal intercourse with him. The defendant was convicted of sexually assaulting his son.
He appealed, arguing, inter alia, that the cross-examination regarding the letter should have been excluded under Rule 404(b). The state contended that the letter was not fictional, but rather described an assault that had actually occurred, and that it was admissible under Rule 404(b) to show a common plan or scheme to obtain sexual gratification through forcible anal sex. The court of appeals disagreed, ruling that forcible anal sex with an adult woman is far removed from anal sex with a young boy by constructive force, and noting the lack of any other similarity between the incidents, such as a similar location, setting, or method of approaching the victims. In short, the court held that in order to establish a common scheme or plan under Rule 404(b), the evidence in question must be similar to the charged offense, and the mere fact that both the charged offense and the conduct described in the letter involved nonconsensual anal sex was not enough to establish similarity. The court also found fault with another aspect of the state’s cross-examination of the defendant, which I won’t get into here, and ruled that the combined effect of the two errors was prejudicial and required a new trial.
As support for its conclusion that the common thread of forcible anal sex was insufficient to show substantial similarity, the court cited State v. Dunston, 161 N.C. App. 468 (2003) (“We conclude that the fact defendant engaged in and liked consensual anal sex with an adult, whom he married, is not by itself sufficiently similar to engaging in anal sex with an underage victim beyond the characteristics inherent to both, i.e., they both involve anal sex, to be admissible under Rule 404(b).”). The court’s conclusion finds at least some support in out-of-state cases like State v. Williams, 874 P.2d 12 (N.M. 1994) (the defendant’s enjoyment of anal sex was not so distinctive as to constitute a “signature” for purposes of Rule 404(b)). It seems to me that the extent to which the involvement of anal sex in both the charged offenses and the letter tends to show that the two incidents are substantially similar depends in part on the prevalence of anal sex. For example, I don’t think anyone would contend that two sexual assaults could be deemed substantially similar based solely on the fact that both involved vaginal intercourse, because that’s a very common sexual practice. On the other hand, if two incidents both involved truly unusual sexual activity — fill in your own example — the extremely atypical sexual conduct might alone tend to show similarity. Wikipedia cites data from the CDC suggesting that 40% of men and 35% of women between 25 and 44 have engaged in anal sex. That’s a fairly high percentage, though of course, most of that sexual activity is presumably consensual, while in Davis, both the charged conduct and the conduct described in the letter were nonconsensual, though involving somewhat different types of force.
Finally, note that Davis does not hold that the common thread of anal sex is irrelevant under Rule 404(b). It can help show similarity, as it did in State v. Barkley, 144 N.C.App. 514 (2001) (sufficient similarity where “[b]oth victims were young black females accosted in Charlotte in the early morning hours. In both cases, the victims were grabbed from behind by the mouth and the assailant held a sharp object to their throats while directing them to a dark secluded area. In addition defendant disrobed both victims and forced them to have vaginal and anal sex.”). Under Davis, though, it is not sufficient by itself.
Virtually all courts interpreted Belton v. New York, 453 U.S. 454 (1981), to authorize a law enforcement officer to search the passenger compartment of a motor vehicle incident to the arrest of any recent occupant of the vehicle. Then the Supreme Court decided Arizona v. Gant, 556 U.S. __ (2009), discussed here, among other places. In Gant, the Court dramatically curtailed the Belton rule, holding that an officer may not search the passenger compartment of a motor vehicle incident to the arrest of a recent occupant unless the arrestee is unsecured and could reach into the vehicle to access weapons or destroy evidence or there is reason to believe that evidence of the crime of arrest may be found in the vehicle.
This shift in the law meant that, in a number of cases across the country, officers conducted vehicle searches under Belton, found incriminating evidence, and charged defendants accordingly, only to see Gant come down while the cases were pending. The exultant defendants argued that Gant applied retroactively to pending cases, while officers bemoaned the possible exclusion of evidence that they had seized in compliance with established law.
Last week, in Davis v. United States, the Supreme Court addressed this set of cases and held that “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” In essence, the Court reasoned, officers acting under established precedent are doing nothing wrong. Since the point of the exclusionary rule is to deter police misconduct, and in this type of case there is no police misconduct to deter, there is no reason to suppress any evidence obtained by the officers: “Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield meaningful deterrence, and culpable enough to be worth the price paid by the justice system [due to the exclusion of relevant evidence].” Thus, the Court concluded, although Gant does apply retroactively to cases pending when it was decided, rendering many police searches of vehicles unconstitutional, the exclusionary rule should not be applied to those searches because the searches were conducted in good faith reliance on (seemingly) settled law. Justice Alito wrote the opinion, joined by six other Justices.
The dissent – by Justice Breyer, joined by Justice Ginsburg – argued that declining to apply the exclusionary rule to this category of cases effectively undermines the retroactivity of Gant: if the exclusionary remedy isn’t available retroactively, the dissenters reasoned, it is meaningless to say that the rule itself is retroactive. The dissenters also contended that whether there is “binding appellate precedent” on an issue is often debatable, making the majority’s rule unworkable. Finally, they argued that focusing on officers’ culpability risks destroying the exclusionary rule altogether, because “[i]n many, perhaps most [contested Fourth Amendment cases] the police . . . will have acted in objective good faith.”
A few questions about Davis. First, will North Carolina’s appellate courts follow Davis, or will they reject this good faith exception as they rejected the Leon good faith exception for reliance on a faulty warrant in State v. Carter, 322 N.C. 709 (1988)? I can imagine arguments both ways.
Second, if the state had argued for a good faith exception in Gant, would the Court have denied relief to the defendant in that case? I don’t know how firmly established the Arizona courts’ interpretation of Belton was, but it seems possible, at least, that the defendant in Gant could have won the Fourth Amendment battle but lost the exclusionary rule war.
Third, might the reasoning of Davis extend to at least some cases not governed by binding precedent? Consider a case in which an officer confronts a Fourth Amendment gray area and makes a reasonable choice, but one that a court later rules was wrong. Might the state argue that because the officer didn’t do anything culpable, the exclusionary rule should not apply? Justice Sotomayor’s concurrence notes that this issue was not before the Court in Davis but seems to suggest that she would not extend the good faith exception to the exclusionary rule to such a case. Notably, no other Justice joined her concurrence.
Finally, and more broadly, are we watching the slow evolution of the exclusionary rule from being the presumptive remedy for most Fourth Amendment violations towards being a remedy principally for intentional misconduct by officers? The majority asserts that the exclusionary rule’s “sole purpose . . . is to deter future Fourth Amendment violations,” and that “the deterrence benefits of exclusion vary with the culpability of the law enforcement conduct at issue.” If that’s so, it’s easy to imagine future limitations of the exclusionary rule along the lines envisioned by the dissent. Whether that’s a good thing or a bad thing, of course, will depend on your point of view.
The Court of Appeals decided State v. Davis, 208 N.C. App. 26 (2010), last week, granting the defendant a new trial on second-degree murder, impaired driving and other charges arising from a fatal hit-and-run committed by the defendant after she had been drinking. While several aspects of the court’s opinion are noteworthy, this post focuses on the court’s determination that expert testimony as to the defendant’s blood alcohol concentration at the time of the crash was improper and prejudicial, where that testimony was founded solely on the fact that an officer who talked to the defendant more than ten hours after the accident smelled alcohol on her breath.
A tragic sequence of events recounted in the court’s opinion resulted in several individuals standing over the double yellow line on a narrow bridge at 9:30 p.m. in Gaston County on August 7, 2008. The defendant drove upon the scene shortly after leaving a bar where she had been drinking. She struck four of the people with her car, seriously injuring three of them and killing the fourth. The defendant fled the scene, later admitting that she knew she had hit something, but that she did not stop because her license was revoked.
Defendant learned after the accident that the police wanted to speak to her. She appeared at the Belmont police department at 8 a.m. next morning, where she met with Sergeant Spry. Spry testified that defendant’s clothes were in disarray and that he could smell alcohol on her breath. Defendant told Spry she had spent the night with a friend and had drunk vodka after the accident. Spry did not administer a blood or breath test to determine the defendant’s alcohol concentration that morning. Four days later, he asked the defendant to submit to a blood test, and she did so. The results were negative for drugs or alcohol.
Defendant was indicted for second degree murder, two counts of assault with a deadly weapon inflicting serious injury, driving while impaired, two counts of felony hit and run, reckless driving, and driving while license revoked.
At trial, the state called Paul Glover, head of the Forensic Tests for Alcohol branch of the State’s Department of Health and Human Services, as an expert witness. Glover testified that using retrograde extrapolation he was able to determine the defendant’s alcohol concentration at the time of the accident based on the fact that Spry smelled alcohol on the defendant’s breath the day after the accident. Retrograde extrapolation is a methodology used to estimate a person’s alcohol concentration at some earlier point in time based upon a later reported alcohol concentration. The calculation of a person’s earlier alcohol concentration is based upon the time that elapsed between the specified earlier event (such as a vehicle crash) and the time of the chemical analysis and the average rate of elimination of alcohol from a person’s blood. North Carolina’s appellate courts have, on numerous occasions, recognized retrograde extrapolation as a reliable method of proving a person’s alcohol concentration. See, e.g., State v. Davis, 142 N.C. App. 81 (2001); State v. Catoe, 78 N.C. App. 167 (1985).
Astute readers, you already doubtless have noted the disconnect between the description of retrograde extrapolation provided above and the testimony provided in Davis. Retrograde extrapolation is based on a later reported alcohol concentration; yet, there was no reported alcohol concentration for the defendant in Davis.
So what alcohol concentration did Glover use as a starting point? He began with a 0.02 at 8:14 a.m. on August 8, 2008, reasoning that Spry’s detection of alcohol on defendant’s breath that morning meant that alcohol was still in her system. Glover explained that “‘look[ing] at some papers, some texts, where the concentration of alcohol that is detectable by the human nose has been measured[,]” the lowest alcohol concentration that is detectable by odor alone is 0.02. (Slip. op. at 7-8.) Glover further testified that the literature he relied upon suggested a range of possible alcohol concentration levels but that since he did not know the concentration, he used the lowest level detectable. He further assumed that the defendant had not consumed any alcohol after the accident (even though she told Spry she had), concluding that her blood alcohol concentration at the time of the crash was 0.18.
Recognizing its acceptance of Glover’s expertise in retrograde extrapolation in past cases, see State v. Corriher, 184 N.C. App. 168 (2007) (permissible for Glover to testify that a blood sample exposed to heat over 12 days might register a lower blood alcohol concentration than it would have at the time it was drawn), the court distinguished his analysis in Davis as involving a novel scientific theory. If reported opinions are the guide, the court’s characterization of the theory as novel hits the mark. My research failed to reveal any case relying on such an extrapolation. Indeed, an appellate court in Wisconsin, where driving with a blood alcohol concentration of 0.02 or more is a criminal violation if the person has three prior convictions for driving while impaired, has indicated that odor, standing alone, is insufficient even to establish probable cause for such an offense. See State v. Gantner, 2009 WL 260963 (Wis. App. Feb. 5, 2009) (unpublished op.). Because odor-extrapolation is a new theory, the court held that it had to be accompanied by sufficient indices of reliability to be admissible—a hurdle that the State failed to clear.
The court noted that Glover did not identify the literature he relied upon. And unlike the testimony in Corriher regarding a study Glover performed on alcohol concentrations in refrigerated and unrefrigerated blood samples, the results of which were “published to the scientific community in newsletters presented at scientific conferences,” there was no evidence in Davis that Glover had independently verified the odor analysis about which he testified or that his methodology was peer reviewed. Moreover, the court characterized Glover’s odor analysis as lacking any of the “rigorous standards” applied to chemical analyses of breath, blood and urine under G.S. 20-139.1. The court noted that “[t]here was no testimony showing how Sergeant Spry’s alcohol-detecting abilities were even remotely comparable to those of a trained operator using well-maintained and certified equipment pursuant to a DHHS-issued permit.” (Slip op. at 12.)
Thus, the court concluded that Glover’s retrograde extrapolation was not supported by a reliable method of proof and that the odor analysis was so unreliable that the trial court’ s decision to admit it was an abuse of discretion.
Because the trial court’s instructions to the jury regarding impaired driving and second-degree murder required the jury to determine whether the defendant had an alcohol concentration of 0.08 or more at any relevant time after the driving, and Glover’s testimony was the only testimony as to the defendant’s alcohol concentration, its admission prejudiced the defendant, requiring a new trial on the second-degree murder and impaired driving charges.
It seems to me that the State could have attempted to prove the defendant’s alcohol concentration another less controversial way. Two bartenders testified that between 5 p.m. and 9:20 p. m. on the evening of the accident, they served defendant four beers and two liquor drinks containing Wild Turkey 101, and that defendant did not drink at least half of one of the beers. Given the court’s previous endorsement of expert testimony related to alcohol absorption and elimination rates, it seems a safe bet that a toxicologist or other medical expert could properly have testified to a range of blood alcohol concentrations likely to result from such consumption given the defendant’s weight and gender. I don’t know what the defendant weighed, and I’m not an expert in alcohol absorption. Perhaps the range would not have reached 0.08, though, of course, a 0.08 is not required to demonstrate impairment. (I’ll note that even given my lack of expertise, it strikes me as highly unlikely that consumption of this amount over this length of time would result in an alcohol concentration of 0.18.)
But no such expert was produced, and neither bartender said defendant was impaired. So, in addition to granting the defendant a new trial on the second-degree murder and impaired driving charges, the court granted the defendant a new trial on the charges of reckless driving and assault with a deadly weapon inflicting serious injury, charges that required the jury to determine whether the defendant was impaired. The court reasoned that the State failed to prove impairment by any method other than Glover’s testimony as to the defendant’s alcohol concentration. The fact of the collision combined with the defendant’s drinking was insufficient to show that the defendant was driving while impaired as the people she struck were across the center line in her lane of travel and there was no other evidence of faulty driving.
The Davis court’s analysis of the admissibility of the defendant’s four prior impaired driving convictions also is noteworthy, but I’ll save that discussion for another post on another day.
I blogged here about the court of appeals’ opinion in State v. Davis, ___ N.C. App. ___ (2010), a case in which the defendant was convicted of several offenses and sentenced to more than 35 years imprisonment for driving while impaired and crashing his truck into another truck, killing two people and seriously injuring a third. The state supreme court granted discretionary review and released its opinion in State v. Davis, 364 N.C. 297 (2010) on Friday, vacating judgments against the defendant for felony death by vehicle and felony serious injury by vehicle on the basis that the court was not authorized to punish the defendant for those offenses because he was sentenced for the more serious offenses of second-degree murder and assault with a deadly weapon inflicting serious injury (AWDWISI) for the same conduct and consequences.
The supreme court’s analysis is straightforward. First, the court held that the court of appeals erred in refusing to review the issue of whether the trial court lacked statutory authority to sentence the defendant for felony death by vehicle and felony serious injury by vehicle. While constitutional arguments, such as the defendant’s argument that the multiple punishments constituted double jeopardy, must be raised at trial or are deemed waived, the court explained that a defendant may appeal from prejudicial statutory violations, regardless of whether he or she objected at trial.
On the substantive issue of statutory interpretation, the court found dispositive and clear G.S. 20-141.4(b), which provides: “Unless the conduct is covered under some other provision of law providing greater punishment, the following classifications apply to the offenses set forth in this section.” Felony death by vehicle and felony serious injury by vehicle are codified in G.S. 20-141.4 as Class E and Class F felonies, respectively. The plain language of the statute provides that the classifications and corresponding ranges of punishment authorized for these offenses apply only when the conduct is not punished by a higher class offense. So, when a defendant such as Davis is punished for the more serious offenses of second-degree murder (a Class B2 felony) and AWDWISI (a Class E felony) for the same conduct for which he is convicted of felony death by vehicle and felony serious injury by vehicle, he may not be punished for the latter offenses.
Davis also was convicted at trial of impaired driving, a lesser included offense of the G.S. 20-141.4 offenses for which he was convicted. The trial court arrested judgment for the impaired driving conviction. Upon vacating the judgments for felony death by vehicle and felony serious injury by vehicle, the supreme court reinstated the impaired driving conviction and remanded for resentencing.
Along with the published cases released by the N.C. Court of Appeals on August 3, 2010, was an unpublished case of note. In State v. Davis, __ N.C. App. __ (Aug. 3, 2010), the court ordered a new trial after finding that the trial judge erred by admitting into evidence an autopsy report prepared by a non-testifying pathologist.
In Davis, the defendant was charged with killing the victim by setting him on fire. An autopsy of the victim’s body was performed by Dr. Garner, of the Medical Examiner’s Office in Chapel Hill. Garner did not testify at trial. Instead, over the defendant’s objection, the State introduced the autopsy report through the testimony of Dr. Gulledge, an expert in forensic pathology with the Mecklenburg County Medical Examiner’s Office. On appeal, the defendant argued that his constitutional rights were violated when the trial court admitted into evidence Garner’s testimonial statements without the defendant having been afforded a prior opportunity to cross-examine Garner. Citing State v. Locklear, 363 N.C. 438 (2009), the court of appeals agreed. In Locklear, the North Carolina Supreme Court held that a Crawford violation occurred when the trial court admitted opinion testimony of non-testifying experts regarding a victim’s cause of death and identity. The testimony was admitted through the Chief Medical Examiner, who read the non-testifying experts’ reports into evidence, rather than testifying to an independent opinion. Since Locklear, the court of appeals has issued a number of related opinions, some of which created confusion about the viability of the Crawford exception that had been understood to apply when a forensic report is admitted as a basis of a testifying expert’s opinion (for a summary of those cases, see my post here).
The Davis court framed the issue as requiring a determination of whether Gulledge “was merely reporting the results of another expert or instead testifying as to his own expert conclusion reached after a technical review of the [report’s] underlying data.” It noted that Gulledge reviewed the investigation and autopsy reports “for clarity,” “for accuracy,” and “to determine whether the findings [made] sense in the light of the investigation.” The court noted that “[c]onspicuously absent” from the review was any “independent testing” to confirm Garner’s conclusions. Furthermore, most of Gulledge’s testimony involved reading Garner’s report and translating it into layman’s terms. For example, Gulledge identified the medical procedures mentioned in the report as having been done on the victim and read portions of the report, including its Pathological Diagnosis. Gulledge testified that the report concluded that cause of death was “Complications of burns” and that the report did not provide a lot of detail about how that conclusion was reached other than the presence of bronchial pneumonia and diffuse alveolar damage, and the fact that the spleen and the kidney were infarcted. After explaining that infarction “happens in burn patients,” Gulledge testified that it was a “fair statement” that “but for the burn injuries . . . [the victim] would not have died.” When the defense asked Gulledge whether it was possible to determine if the death was accidental or a homicide, he responded: “The only way that I would have to determine what [Garner’s] opinion of the manner of death was is that on the report . . . she has checked the box marked homicide[.]” Gulledge further stated, “I don’t know where she received the information [relied on to reach this conclusion]. I don’t know why she formed that opinion.”
Based on the transcript, the court found itself “compelled to hold” that Gulledge did not offer an independent expert opinion based on a review of Garner’s report “but was instead, like the witness in Locklear, merely reporting the results of Dr. Garner’s analysis.” It concluded that because Gulledge’s review “involved no retesting and instead relied on the accuracy of [Garner’s] unconfirmed observations,” it was insufficient to establish that Gulledge was testifying to his own expert opinion. The court recognized, in a footnote, that certain types of forensic analysis, such as that done during an autopsy, “are inherently difficult to reproduce.” It concluded, however, that the “burden on the State of producing the actual analyst is preferable to the denial of Defendant’s constitutional rights, which would occur if our courts permitted an inference of the accuracy of the tests and observations performed during an autopsy.”
One reading of Davis is that it involved a simple application of Locklear: Because Gulledge did not testify to an independent opinion based information collected by Garner, the basis of the expert’s opinion exception did not apply. Such a reading preserves the basis of the expert’s opinion exception. However, the opinion can be read to mean that the relevant analysis—here an autopsy—must be reproduced and the testifying expert must do “retesting.” Under this view, the basis of the expert’s opinion exception is rejected; in order for forensic testing to be admissible, the testifying expert must reproduce the analysis and do testing. If this is so, some questions that come to mind include:
- What does “retesting” mean in the context of an autopsy? Does it mean something different than reproducing the autopsy?
- What if the victim’s body had been cremated or severely decomposed thus making it impossible—not merely “difficult”—to reproduce the autopsy?
- What if it would have been impossible to reproduce the autopsy and if Garner had died so that it would have been impossible to produce him at trial? Such a scenario is not inconceivable. In a homicide case, years can pass before the matter comes on for trial. If cause of death is essential to the State’s case and the exception does not apply even when it would be impossible to reproduce the autopsy or produce the original analyst, the crime could not be prosecuted.
- What if it would have been impossible to reproduce the autopsy or produce Garner in court but that Garner had taken photographs, slides, video, etc. during the autopsy and Gulledge had based his opinion on those items? Would Garner’s observations have been sufficiently confirmed to serve as the basis of Gulledge’s opinion?
As I previously noted in a blog post here, the N.C. Supreme Court has issued temporary stays in two of the court of appeals’ substitute analyst cases. If the court grants review in those cases, some of these questions may be answered