Shortly after I published last week’s post on State v. Babich, an astute reader asked about the court’s harmless error analysis. How, he inquired, could the improper admission of expert testimony that the defendant had an alcohol concentration of 0.08 be harmless error? Did the jury’s verdict indicate that it found the defendant guilty only under the “under the influence” prong of impairment rather than under the “alcohol concentration of 0.08 or more” prong? To answer these questions, I had to dig into the record on appeal and provide a bit of background on the requirement for jury unanimity in DWI cases. I thought others might be interested in my response.
Tag Archives: jury instructions
I am working on a new edition of the self-defense book I wrote in 1996. As in the story of Rip Van Winkle, a lot has changed in twenty years. Most notably, the General Assembly adopted new statutes in 2011 on self-defense and related defenses. This blog post addresses one of those provisions, in G.S. 14-51.4, which disqualifies a person from relying on self-defense while committing, attempting to commit, or escaping from the commission of a felony. North Carolina appellate courts have not yet considered the meaning of this provision. Cf. State v. Rawlings, ___ N.C. App. ___, 762 S.E.2d 909 (2014) (felony disqualification did not apply to case in which defendant’s offense predated enactment of provision, and court expressed no opinion on proper construction of provision). Continue reading →
Whether there was probable cause to arrest the driver is a hotly litigated issue in cases involving impaired driving. Unfortunately, there aren’t all that many appellate opinions addressing the hard calls in this area. Instead, many resemble State v. Tappe, 139 N.C. App. 33, 38 (2000), which found probable cause based on “defendant’s vehicle crossing the center line, defendant’s glassy, watery eyes, and the strong odor of alcohol on defendant’s breath.” It is difficult to imagine a court ruling otherwise. A few years ago, the court of appeals decided a tougher issue in Steinkrause v. Tatum, 201 N.C. App. 289 (2009), aff’d, 364 N.C. 419 (2010) (per curiam), concluding that the “fact and severity” of the defendant’s one-car accident coupled with a law enforcement officer’s observation that she smelled of alcohol provided probable cause to believe she was driving while impaired. This past year, the court issued two significant published opinions on probable cause for impaired driving—State v. Overocker, __ N.C. App. __, 762 S.E.2d 921 (Sept. 16, 2014), and State v. Townsend, __ N.C. App. __, 762 S.E.2d 898 (Sept. 16, 2014),—as well as opinions in State v. Veal, __ N.C. App. __, 760 S.E.2d 43 (July 1, 2014), and State v. Wainwright, __ N.C. App. __, 770 S.E.2d 99 (2015), better defining the threshold for reasonable suspicion of DWI.
To prove that a person drove a vehicle while under the influence of an impairing substance in violation of G.S. 20-138.1(a)(3), the State must establish that the defendant was impaired by
- [a]lcohol ,
- a controlled substance under Chapter 90 of the General Statutes,
- some other drug or psychoactive substance capable of impairing a person’s physical or mental faculties, or
- a combination of these substances.
G.S. 20-4.01(14a) (defining impairing substance).
When a defendant is tried before a jury on such charges, who determines whether the defendant was so impaired? Obviously it is the jury. Right?
Pattern Jury Instructions. Readers may be surprised to learn that the pattern jury instructions direct the judge in such a case to tell the jury: “(Name substance involved) is an impairing substance.” North Carolina Pattern Instructions—Criminal 270.00. The judge then goes on to state that the defendant “is under the influence of an impairing substance when the defendant has taken (or consumed) a sufficient quantity of that substance to cause the defendant to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of those faculties.” Id.
Is an instruction from the judge that a particular substance is an impairing substance proper? Or does it improperly permit the judge to resolve a material fact, namely whether the specific substance the defendant is alleged to have taken or consumed is an impairing substance? The answer probably depends on the substance. For example, a judge’s instruction to the jury that “alcohol” or “a controlled substance under Chapter 90” is an impairing substance would not invade the province of the jury. That sort of instruction simply defines the term “impairing substance.” Likewise, an instruction that “a drug or psychoactive substance capable of impairing a person’s physical or mental faculties is an impairing substance,” is not objectionable.
Furthermore, there would appear to be no problem with a judge instructing the jury that any of the specific substances listed in Chapter 90 is an impairing substance. Thus, the judge could properly inform the jury that a substance such as cocaine, alprazolam (Xanax), or zolpidem (Ambien) is an impairing substance. See G.S. 90-90(1)c.; 90-92(a)(1)a.; 90-92(a)(1)ww.
In some drugged driving cases, however, the substance that a defendant is alleged to have consumed is not a controlled substance under Chapter 90. The State may contend, for example, that a defendant is impaired from inhalants or from prescription medication that is not a scheduled controlled substance. In this circumstance, it seems to me that it would be improper for the judge to instruct the jury that the specified drug (such as, for example, sertraline (Zoloft)) is a controlled substance.
Deadly Weapon Analogy. There is at least one other circumstance in which our state appellate courts have permitted judges to instruct the jury as to its determination on a material fact. In State v. Torain, 316 N.C. 111 (1986), the state supreme court determined that the trial court did not err in instructing the jury in a first-degree rape trial that “a utility knife is a dangerous or deadly weapon.” Id. at 116. The court relied on earlier opinions stating that when “the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly, . . . is one of law, and the Court must take the responsibility of so declaring.” Id. at 119 (internal citations omitted). Even were this reasoning to be applied in the drugged driving context, however, it likely would authorize no more than instructing the jury that a specific substance scheduled under Chapter 90 is an impairing substance. Those substances are per se impairing in much the same way that certain weapons are per se deadly. The judge still must leave to the jury the determination of whether other types of “drugs or psychoactive substances” are impairing substances. Cf. Jessica Smith, North Carolina Crimes 120-121 (7th ed. 2012) (distinguishing circumstances involving weapons that “are deadly by their very nature” from those in which the jury must be permitted to decide whether the weapon is deadly).
What if the State fails to identify the impairing substance? In some circumstances, the State is unable to definitively identify the substance by which a defendant allegedly was impaired. This is not fatal to its case, however, as there is no requirement that the State prove the specific impairing substance consumed. See State v. Lindley, 286 N.C. 255 (1974) (state established prima facie case based in part on patrol officer’s testimony that the defendant was under the influence of “some drug”); State v. Cousins, No. COA01-796, 152 N.C. App. 478 (2002) (unpublished) (evidence of defendant’s poor performance on field sobriety tests, his refusal to submit to a blood test, and his admission to taking Lortab, a painkiller, were sufficient to show that he was impaired and that his impairment was caused by an impairing substance; the State was not required to produce expert testimony on the impairing effects of Lortab and whether defendant’s condition was consistent with someone who had taken Lortab). When this occurs, the court should instruct the jury on the definition of “impairing substance,” but should refrain from identifying any particular substance for which the State has failed to establish a prima facie case.
Forget all your legal training. Pretend you are a juror in a DWI case.
Facts. The following facts were established at trial:
The defendant was stopped at a checkpoint. The officer smelled alcohol and defendant admitted that he had consumed two glasses of wine earlier in the evening.
No field sobriety tests were administered, and the defendant was arrested. He blew into the breath testing machine, which registered a result of .08.
The officer asked the defendant to blow a second time. The defendant appeared to blow, but the result did not register. The officer believed that the defendant intentionally refused to provide a second sample and terminated testing.
The defendant testified that he did not refuse testing, but was unable, due to asthma, to blow sufficiently hard a second time to register a result.
The officer testifies on cross-examination that he occasionally has seen breath test results vary, with the second test being lower than the first.
The defendant’s attorney argued that the result of defendant’s second test, had he been able to provide a sufficient breath sample, easily could have been a .06 or lower. He insists that the State has failed to prove that the defendant was driving while impaired.
Jury Instructions. The judge tells the jury that, to find the defendant guilty of impaired driving, the State must prove three things beyond a reasonable doubt:
First, that the defendant was driving a vehicle;
Second, that the defendant was driving that vehicle upon a street within the State;
And, third, that at the time the defendant was driving that vehicle the defendant had consumed sufficient alcohol that at any relevant time after the driving the defendant had an alcohol concentration of 0.08 or more grams of alcohol per 210 liters of breath.
The judge further advises: “The results of a chemical analysis are deemed sufficient evidence to prove a person’s alcohol concentration.”
She tells you that if you find these three elements beyond a reasonable doubt, it is your duty to return a verdict of guilty. She says that if you have a reasonable doubt about any of these factors, your duty is to return a verdict of not guilty.
Deliberations. The jury begins to discuss the case. You harbor some doubt, in light of the evidence, about whether the defendant’s alcohol concentration was a .08. But you aren’t sure whether that issue is before you. On the one hand, the judge has told you that the .08 result “shall be deemed sufficient evidence to prove a person’s alcohol concentration.” But she also has said that if you have a reasonable doubt, your duty is to return a verdict of not guilty. Your fellow jurors disagree about how to reconcile these statements.
Now use your legal training to help out your confused-juror-self.
Shall be deemed. The court of appeals in State v. Narron, 193 N.C. App. 76 (2008), held that the provision of G.S. 20-138.1(a)(2) stating that “[t]he results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration,” does not establish an unconstitutional presumption. Indeed, the court explained that the provision does not establish a presumption at all. Instead, it “simply states the standard for prima facie evidence of a defendant’s alcohol concentration.” Narron, 193 N.C. App. at 83. “In other words,” the Narron court explained, “the statute simply authorizes the jury to find that the report is what it purports to be—the results of a chemical analysis showing the defendant’s alcohol concentration.” Id. at 84.
Did the judge err? Given that the “shall be deemed sufficient evidence” language merely establishes the standard for prima facie proof, did the judge err by restating the provision to the jury in her instructions? The language appears in the pattern jury instructions for impaired driving, see North Carolina Pattern Jury Instructions for Criminal Cases, Vol. III, N.C.P.I.—Criminal 270.00 (June 2011), and the trial court in Narron gave such an instruction. The court of appeals in Narron stated that while “there was no need for the trial court to call to the jury’s attention that the chemical analysis was the basis of the trial court’s determination that the State had presented prima facie proof of the element” since, “[i]f a case is submitted to the jury, then by definition, the court has determined that the State presented ‘sufficient evidence to prove’ each of the elements of the offense.” Id. at 85. However, Narron found no prejudice to the defendant in the court’s statement to the jury and concluded that the instructions adequately informed the jury of the law.
The court of appeals relied upon Narron in determining that giving such an instruction was not error in State v. Langley, 731 S.E.2d 862 (N.C. App. September 18, 2012) (unpublished op.). And, in State v. Fulton, 731 S.E.2d 274 (N.C. App. August 21, 2012) (unpublished op.), the court rejected the defendant’s contention that he was entitled to a special instruction explaining the that the results do not create a legal presumption and that a jury is not compelled to return a verdict of guilty where a chemical analysis generates a result of .08 or greater.
How should the judge instruct the jury? Even if it is not legal error to give the pattern instruction, is that the best way to instruct jurors in a per se impaired driving case? Tell us how you think jurors ought to be instructed.
Update: I knew it. One reader emailed me to say that our appellate courts have approved truncated jury instructions for at least thirty years, and referred me to State v. Gainey, 355 N.C. 72 (2002), which collects some cases and states that the court “has discouraged needless repetition” during jury instructions.
Original Post: One of the aspects of my job that’s both a blessing and a curse is that I get to — and have to — read every published criminal law opinion by our appellate courts. The state supreme court released a new batch of opinions a few days ago, and I sat down with them yesterday. Today, I want to focus on State v. Garcell, and in a day or two, I’ll have something to say about State v. Miller.
Garcell was a capital case. Although the defendant raised a large number of issues, most of them were pretty thin. (Bob Farb’s summary of the case was distributed via his listserv, to which you can subscribe here.) I want to focus on one tidbit from the case, and in particular, on its application outside the capital context.
During the penalty phase, the defendant requested, and the trial judge agreed, to submit three statutory mitigating circumstances and twenty-four non-statutory mitigating circumstances. The judge instructed the jury as to each statutory mitigating circumstance individually, and then provided a single instruction about how the jury was to consider the non-statutory mitigating circumstances before simply reading a list of them. On appeal, the defendant argued that the judge’s failure to provide a complete individual instruction as to each of the non-statutory circumstances meant that those circumstances were presented in a way that made the seem less worthy of consideration than the statutory mitigating circumstances, in violation of State v. Johnson, 298 N.C. 47 (1979) (stating that both statutory and non-statutory mitigating circumstances should be on an “equal footing before the jury”). Our supreme court disagreed, finding that the trial judge’s method of instruction was a “practical” one that “spared the jury the possibly mind-numbing, trance-inducing experience of hearing the same individualized instruction repeated twenty-four times.”
This reasoning seems to apply equally to, for example, fraud cases where there are 100 counts of obtaining property by false pretenses. In such cases, judges and lawyers sometimes wonder whether the judge has to repeat the entire pattern jury instruction 100 times, or whether the judge can give the entire instruction once, and then, for each subsequent count, provide a truncated instruction that incorporates by reference the complete instruction and highlights any appropriate differences, such as the name of the victim and the time that the offense took place. I’ve always opined that such a streamlined procedure was permitted, but I never had a case to support my opinion. Now I do. (Inevitably, one of you will leave a comment with the case I should have found, but never did.)
The court’s resolution of this issue seems eminently sensible — a triumph of substance over form, and a sweet victory for the sanity of jurors. Anyone disagree?