Episode 22: Upchurch, Venable, and Moore

[00:00:05.870] [SPEAKER_01] By statute, a witness may give expert testimony on whether a person was under the influence of an impairing substance if the witness holds a current certification as a drug recognition expert. The Court of Appeals recently held that the trial court erred by admitting the testimony of a drug recognition expert when his evaluation of the defendant was not conducted in accordance with DHHS protocols. We'll be discussing that case state v. Moore today. I'm Joseph Hyde with the University of North Carolina School of Government. And I'm Jonathan Holbrook with the North Carolina Conference of DAs. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina. John, before we get to that drug recognition expert case, there was another case from the Court of Appeals involving a motion to sever a co-defendant's trial. Tell us about State v. Upchurch.
[00:01:01.860] [SPEAKER_00] Joe, State v. Upchurch is a case we got on July 2nd from the Court of Appeals. This was a case out of Chatham County. It all began back on July 16th of 2017 at 1.48 p.m. when a 911 call came in. reporting an infant who was non-responsive and leading to EMS and police to respond. The defendant in the case, Jocelyn Upchurch, and her co-defendant, who was ultimately charged as well, Ricky Adams, were both indicted on one count of first-degree murder and one count of intentional child abuse inflicting serious bodily injury, all of that arising out of the death of this one-year-old child named DeAndre. And you're exactly right. The defendant, Upchurch, in the case moved to sever multiple times. The state's motion to join was granted in October of 2019. The defendant moves to sever back in June of 2021. The court continued what was originally set for a trial date due to COVID, but it gets reset and the defendant is renewing this motion at a number of different times. renewed it in May of 2022, moves to sever again in September of 2022. Before the final arguments in the trial that ultimately happened, defendant is moving to sever again. And then after closing arguments are given and the jury is charged, moving to sever again and moving for a mistrial, all of that is denied. And ultimately the jury convicted the defendant, Upchurch, of first degree murder based on the felony murder rule and the intentional child abuse inflicting serious bodily injury, acquitted Adams of both charges. And then that's the appeal that's before the court. So in addressing the issues that are raised on appeal, the court first gives this sort of extensive factual background and goes through in some detail the testimony from multiple witnesses. I'm not going to go through all of them individually, but essentially there is this phone call, this 911 call that comes in at 1.48 p.m., asking for assistance. And, you know, the first responders who get to the scene, EMS and then police are called. The opinion explains it is immediately obvious to these first responders that the infant DeAndre is dead, has no pulse, is cold to the touch. The joints, wrists and elbows have seized up. You know, rigor mortis is beginning to set in. And there's some testimony about the behavior of both the defendant as well as Adams. And they talk about how the defendant is not crying and is described as just not really being very emotional. Adams is just sitting over on the couch watching television while these first responders are there. And witnesses describe Adams as apparently being more interested in what's happening on the television than what's going on in the room. Again, there's a summary from multiple different witnesses, but they all describe essentially the defendant's testimony as saying, you know, that she had put the child to bed earlier that evening, had checked on him a couple times, had tried to go in to give him a bottle to see if he wanted it. He didn't seem to want to. And then finally goes in shortly before this 911 call happens and just finds that the child is there unresponsive and, you know, cold to the touch and everything in the bed. There are some bits of testimony that also came out that were particularly damning in the case. For example, the biological father of the child, Darius Cotton, testifies. And in part of that, he explains how about six weeks before DeAndre's death, defendant had posted on her Facebook page, if this son of mine headbutts me in my breasts one more time, I'm going to throw him into the wall. What in the world is wrong with him? And there's also testimony from one of the detectives talking about how the defendant's story of the events leading up to DeAndre's death had changed in different interviews that happened with law enforcement. And then it's finally just in that last interview that for the first time sort of changes a little bit to say that it was actually The co-defendant, Adams, was the one who put DeAndre to bed that night. But, you know, ultimately, again, there's evidence that clearly, you know, these are the two people who are in the home. And one of them caused these extensive injuries that are explained in Dr. Venuti's testimony, the associate attorney. chief medical examiner who testified as an expert in forensic pathology. I will not review those disturbing details to a great extent, but basically that Dr. Venuti opined that the child's cause of death was blunt force trauma to the chest and abdomen, and that the manner of death was homicide. The doctor equated the amount of force needed to cause deliver laceration to the injuries that we would typically see in a motor vehicle crash where there's a large impact stopping at a high rate of speed and analogized it to when a heavy and large older generation television would fall on top of a child. So, you know, these are extensive internal injuries that were the cause of death. So, as I said, this case goes to trial. Their motions to sever are repeatedly denied. Adams is acquitted, but this defendant, Upchurch, is convicted. And that's the first issue we're dealing with on appeal, is whether that motion to sever should have been granted. And the Court of Appeals agrees that, no, this is not a circumstance where it was error for these cases to be joined for trial. There is a standard that they would look at. North Carolina has a policy of favoring joint trials when that would promote judicial efficiency, and as long as it's going to be fair. They say that North Carolina has a strong policy of favoring consolidated trials of defendants accused of collective criminal behavior. However, we're not going to do that when the defenses are so antagonistic that it would not be possible for the two of them to get a fair trial together. But they point out as well that the existence of antagonistic defenses will not, standing alone, warrant a severance. So in the court's words, the test is whether the conflict in the defendant's respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial. And Joe, you and I were talking about this, I think, prior to coming in here today, that we've had other cases where they sort of explain it colloquially as saying that If what we're doing is basically putting these two defendants in the courtroom together and saying, you guys just prove each other's guilt and the prosecutor is going to sit back and watch, that would be an improper joinder. But that is not what we've got in this case where there's just the evidence being presented by the state. And there were things, there were some conflicting evidence. For example, there is some cross-examination being done by these two different defense attorneys. that they point to on appeal as examples of the conflict, like the defendant eliciting testimony that when one of the witnesses first arrived on the scene, how Adams didn't appear to be engaged in any life-saving activities, or that the defendant wasn't crying or screaming and appeared calm. So yes, there is some evidence coming out on cross-examination that is a little bit of finger-pointing, but it's not like these are so antagonistic, mutually exclusive defenses that it could not fairly be joined for trial.
[00:07:30.002] [SPEAKER_01] There's also this argument the defendant said that trying the two defendants together required the trial court to exclude certain evidence to protect the other defendant's constitutional rights. The Court of Appeals didn't find that particularly persuasive either.
[00:07:40.557] [SPEAKER_00] They did not. So the defendant had wanted to elicit some evidence that the co-defendant Adams at one point had showed Cotton, you know, the father of the child, this .45 caliber handgun shortly before DeAndre's funeral and both Adams and the state are objecting to that it's you know and as the state explained in its objection it did not elicit any of that because in the prosecutor's words with the context it did not appear to be relevant to any particular material facts so I mean yes the court did keep it out. on the other defendants and the state's objection. But the defendant has no argument for like why that would have been relevant or admissible, even if they had been tried separately. You know, it just didn't have any bearing on that. And then, Joe, along the same lines, the defense here is making an argument about, you know, that the judge wasn't exercising discretion. The trial judge was not exercising discretion in declining to sever because that judge felt like there was no choice and had to abide by the earlier judge's ruling denying the motion to sever. But the Court of Appeals here looks through the transcript, and it's clear that the trial judge is making the same determination, that it simply isn't warranted or necessary. That is an interesting issue. But really, Joe, there were three or four of these evidence issues that sort of caught my eye and I thought were worth discussing. The first of those is that the defendant in this case is arguing that statements that were made to the police, from police interviews, that the defendant should have been able to offer her statements into evidence, even though she was not testifying at trial. That is incorrect. You know, we've got cases going back to, I don't know, State v. Manis from 1988, I think is a good one. Several others cite back to that. But I think it's a good reminder for prosecutors. If the defendant is not testifying and wants to offer this prior statement, that is not a prior statement for corroboration, and it is not an admission of a party opponent. You know, it's just hearsay the defense wants to offer. And the Court of Appeals here said that the trial court was absolutely correct, that the defendant failed to show how those statements would have been admissible. potentially could have come in as corroboration or something if the defendant had testified, but she did not. So I think that's a good reminder and an issue that I know people see at the trial level a lot.
[00:09:41.727] [SPEAKER_01] Just to break that down, Jonathan, if I understand right, a defendant seeking to elicit defendant's own statement doesn't come in as an admission of a party opponent because that statute specifically provides that admissions of a party opponent come in if offered by the other party. Is that
[00:09:56.375] [SPEAKER_00] right? Exactly. Exactly. So, you know, if I want to offer something into evidence that was part of this interview the defendant gave, well, then, of course, I can do that. I mean, right. The defendant is my opponent. But I think there's just you know, it's I think the law is clear, but I know it's an issue that comes up again and again at the trial level where the defense wants to make an argument that they should be able to offer that for some other purpose. And I think this is a good and recent reminder that that's just not going to be the case. The second of these evidence issues that I thought was interesting was, it was dealing with character evidence, but it's this concept of opening the door. That the defense attorney in the case, during the state's direct examination of Cotton, I'm sorry, on cross-examination, the defendant was asking Cotton whether the defendant had been a good woman to you when they were together?" And Cotton responded, I guess, yes. And the defendant then asked, and had she been a good woman to you? In other words, you told the police she was, and was she? And Cotton says, yes. Well then on a redirect examination, the state digs into that a little bit by saying, so then what happened in your relationship to cause you to end the relationship, understanding all that had gone before? And then Cotton gets into this information about how, well, because she told me that she had slept with someone else while she was pregnant with DeAndre in the home. You know, anyway, the defense now on appeal is arguing that that was impermissible character evidence. And the court of appeals disagrees because the defendant opened the door to the state getting into that sort of, you know, ugly mess about how the relationship ended. Probably just would have been irrelevant and prejudicial otherwise. But when the defense opens the door, then the defense can follow up on it. And that, Joe, caught my eye because, you know, opening the door to this other evidence is something we talk about a lot. But again, examples are sometimes a little bit in short supply. To
[00:11:34.443] [SPEAKER_01] kind of encapsulate that, right, the opening the door concept is implicated here because the defendant asked a question and the witness gave an answer to that. And then the state was permitted to kind of probe that answer to get a little more information out. Is that a fair character?
[00:11:46.942] [SPEAKER_00] Yeah, exactly. They quote some case law and say, opening the door is the principle where one party introduces evidence of a particular fact and the opposing party may introduce evidence to explain or rebut it, even though the rebuttal evidence would be incompetent or irrelevant if offered initially. And so I think that kudos to the prosecutors for realizing that there's this thing that we couldn't get into on direct, but if they're going to sort of give this, I don't know, somewhat false impression about the nature of the relationship, then they've opened the door for us to come back and correct that and answer it. And then finally, there was an issue dealing with hearsay that when Cotton, as I said, Cotton, the father, testified, the state corroborated that by offering this earlier interview that he had given to the police. And the defendant now on appeal is challenging some of those statements being properly admitted. I just think it's interesting the court explains that the video and the live testimony of the witness Cotton were almost perfectly consistent with each other as to a lot of these details. But then also they say the portions of the objected to video that were not almost perfectly consistent with the live testimony still tended to add weight or credibility. And so that I think is our sort of our third good or interesting reminder from the case is that corroboration does not necessarily have to mean a perfect word for word dead on match. It can still be corroborating if it's generally consistent and adds weight or credibility. So in this case, Upchurch's convictions are affirmed by the court.
[00:13:12.952] [SPEAKER_01] Second case we've got on for today is Date v. Venable. This is a case out of Wake County, arose from a car accident where the defendant's wife was killed. On August 2nd, 2021, defendant was driving his red Kia Rio in Raleigh with his wife in the passenger seat. Around 7.30 p.m., defendant drove off Old Wake Forest Road, crashing into a tree and killing his wife, who was a passenger in the car. Defendant exited the vehicle. Witnesses noticed that he had poor balance, slurred speech, he was disoriented. They also noticed an odor of alcohol about the defendant's person. Inside the vehicle, police found five empty airplane bottles of brandy. Defendant admitted to EMS that he drank a few beers. He admitted to police that he had consumed liquor. Defendant was transported to the hospital where two blood samples were collected. At 8.37 p.m., defendant had a blood alcohol content of 0.883 grams of alcohol per 100 milliliters of blood. And then at 10.43 p.m., so about two hours later, defendant had a blood alcohol content of 0.05 grams. The defendant was indicted for felony death by vehicle and driving while impaired. The matter came on for trial by jury in August of 2023. At trial, Richard Wagoner, a forensic chemist, testified based on retrograde extrapolation analysis that at the time of the crash, which was again around 7.30 p.m., defendant's blood alcohol content was 0.1078 grams of alcohol per 100 milliliters of blood. During the charge conference, defendant requested a civil pattern jury instruction on intervening negligence, and the trial court agreed to give part, but not all of that instruction to the jury. Defendant was convicted of felony death by vehicle, impaired driving, and then the defendant appealed. Before the court of appeals, defendant raised essentially three claims, one with regard to the motion to dismiss based on the sufficiency of the evidence, He also argued error in the admission of the retrograde extrapolation conclusions of Dr. Wagner. And then finally, he argued that the trial court plainly erred by not giving the entirety of that civil pattern jury instruction that he requested. With regard to the motion to dismiss, defendant argued in particular that the evidence was insufficient to support the officer's opinion that the defendant was appreciably impaired. The Court of Appeals recognized that for impaired driving, the state must prove that the defendant drove on a public vehicular area while, one, appreciably impaired, or two, after having consumed sufficient alcohol that he had a blood alcohol content of 0.08 at any relevant time after driving. An officer's opinion that a defendant is appreciably impaired is competent evidence when it's based on personal observation of the odor of alcohol, faulty driving, or other evidence of impairment. It was that other evidence of impairment that the Court of Appeals picked up on here. It said in this case, Officer Daniel Egan observed the collision scene, He observed the roadway marks. He observed the defendant's vehicle. He found five empty bottles in the car. He spoke with the defendant at the hospital. So even though the officer had not observed the defendant driving, because the officer had observed these various circumstances, in addition to that, the defendant admitted to the officer that he had been drinking, the Court of Appeals concluded that Officer Egan's observations were sufficient to support his opinion that the defendant was appreciably impaired. And then even further beyond that, the Court of Appeals noticed that other evidence supported a finding of appreciable impairment. At the scene, defendant had poor balance, he had slurred speech, he smelled of alcohol, he appeared disoriented. And then even on top of that, beyond the evidence of appreciable impairment, the state presented competent evidence of the defendant's blood alcohol content at the time of the crash. Ultimately, the Court of Appeals concluded that there was sufficient evidence to support the defendant's conviction for impaired driving based on both appreciable impairment and blood alcohol content. The more interesting issue here had to do with the argument that the trial court aired by admitting the expert testimony of retrograde extrapolation. As you mentioned in the last episode, evidence rule 702 permits an expert witness to testify in the form of an opinion if the testimony is based on sufficient facts or data, the testimony is the product of reliable principles and methods, and three, the witness has applied the principles and methods reliably to the facts of this case. Court of Appeals posited that when an expert witness offers retrograde extrapolation opinion based on the assumption that the defendant is in a post-absorptive or post-peak state, that assumption must be based on some underlying facts, citing back to a Court of Appeals case called Babich. Those additional facts could include the defendant's statement, the officer's observation, or other circumstantial evidence. But ultimately, the weight and credibility of the expert testimony is for the jury to decide.
[00:17:51.339] [SPEAKER_00] You know, Joe, I'm certainly no expert at retrograde extrapolation, and some of these DWI prosecutors will laugh at my attempt to summarize that. But, you know, just for those who may not be familiar with what we're talking about, I mean, essentially we're doing the math. You know, that if we have a way to say that the defendant has entered into this post-absorptive state, then we can take the reading that we have at a certain time and calculate back, you know, that we can say if we know that it's dropping at this known rate, then we can go back an hour or two hours or four hours or whatever it is and figure out what that blood alcohol content would have been at the earlier time that it would be relevant to the driving. But, you know, as they're sort of summarizing here, we can only do that if we know that we're at the point where we have begun the declining side of the curve. And they're
[00:18:36.430] [SPEAKER_01] to be facts to support that assumption. I think the point is here that the expert is permitted to give that opinion so long as that opinion is supported by facts that the defendant is in this post-absorptive or post-peak state. Here, the Court of Appeals found that there were sufficient facts to support that assumption and that the expert, Dr. Wagner, not only had facts to support that assumption, but explained to the jury what those facts were. That included the two blood draws that were taken at the hospital at 8.37 p.m. and at 10.43 p.m., the defendant's own statements that he'd been drinking, and the evidence at the crime scene. So distinguishing that case Babich from the Court of Appeals from a few years ago, the Court of Appeals here found that the expert's assumption that the defendant was in this post-absorptive state was supported by sufficient facts, and that meant that the trial court did not err by admitting the opinion testimony. And then the Court of Appeals kind of covered itself by saying, further, even if it was error for the trial court to admit this testimony, defendant failed to show a reasonable probability of a different result given the other evidence of his impairment, kind of pointing back at its analysis of why the trial court did not err by denying his motion to dismiss. And then finally, there was that issue about the civil pattern jury instruction. The defendant argued the trial court plainly erred by failing to give the entire jury instruction on intervening negligence. The Court of Appeals recognized that the elements of felony death by vehicle are one, that the defendant unintentionally causes the death of another, two, while impaired driving, and three, that the impairment was the proximate cause of death. It said intervening negligence is found when the negligence of another breaks the causal chain of the defendant's negligence. Here, the Court of Appeals said the trial court properly instructed on proximate cause, and it included a portion of that civil instruction when it told the jury that a continuous sequence of causation may be interrupted by the negligence of another person. This is relevant because the defendant claimed that the crash was due not to his impairment, but because his wife, the victim, had grabbed his face while he was driving, causing him to veer off the road and slam into a tree. The Court of Appeals concluded that the trial court's instruction sufficiently incorporated the necessary principles and in any event failed to show prejudice to establish plain error. There was finally one last issue. The defendant argued he received ineffective assistance of counsel based on those issues that the Court of Appeals had already rejected. The Court of Appeals noted that defendant failed to show that the trial court erred by admitting the evidence or in its jury instructions. He therefore failed to show that counsel was deficient in failing to object. And the Court of Appeals ultimately found no error in the defendant's conviction.
[00:21:05.133] [SPEAKER_00] Then the last case we had on for today is State v. Moore. This is a case from July 16th of 2025 coming out of Forsyth County. This happened back on April 28th of 2020. The defendant was driving on North Liberty Street over in Winston-Salem. It's four lanes, two going in each direction. There's a turn lane in between. The defendant is driving a Jeep and is towing this flatbed trailer, a homemade flatbed trailer with a three-wheel motorcycle on the back. And the defendant was observed speeding at an estimated 60 to 70 miles an hour on this 35 mile an hour street, is also observed or determined to be driving erratically, crossing into lanes on either side of his own. Unfortunately, the defendant's Jeep veers over into the oncoming lane, headed directly at a Honda Pilot, A woman named Lisa Hathaway is driving that. There's a front seat passenger named Holly Hinson. The defendant's Jeep crashes directly into the Honda Pilot, and Holly Hinson unfortunately dies at the scene from these multiple blunt force injuries. Of course, law enforcement responds. The defendant was reported to be groggy, was so groggy that the physician could not complete a full review because he wasn't fully with it, although he does then sort of improve over the next few hours. which the defendant's behavior then consistent with the use of impairing substances. His urine is ultimately tested. The defendant's urine is positive for amphetamines, benzodiazepines, and opiates. He is arrested on charges of felony death by vehicle, improper towing, driving while impaired, failure to maintain lane control, reckless driving to endanger, and a lane violation, is then later indicted for felony death by motor vehicle, and then that indictment is amended to include a second-degree murder, and the defendant ultimately goes to trial on all of those charges. The jury did find the defendant guilty on both counts of felony death by motor vehicle and second-degree murder, and that is what he is appealing. The opinion reviews testimony from multiple witnesses. The testimony of at least seven different witnesses is laid out. They talk about the doctor who testified to the results of the defendant's medical evaluation, as I indicated earlier, indicating that the defendant was almost certainly on some sort of substance like opioids. They also have testimony from officers about administering the HGN test, about accident reconstruction. the forensic chemist who analyzes some of the drugs that are found in the vehicle, forensic toxicologists talking about the blood test results. But the main issue that's being raised on appeal has to do with one particular witness, and that is Sergeant Stringer from the Forsyth County Sheriff's Office, who testified as a drug recognition expert. But that witness's testimony was based on a review of the records in the case and hearing the testimony and the evidence that was presented at trial, not through an actual interaction with the defendant at the time of the incident, which would be consistent with the DRE protocol. And so that is the main issue that the Court of Appeals is wrestling with in this case, is how do we interpret and how do we apply our current version of Rule 702 dealing with expert testimony and particularly that prong under 702 that talks about HGN and DRE expert witness testimony. And what we're struggling with is sort of the what exactly are the requirements comparing what we now have under with the three requirements for any expert testimony with what we have under which appears to be this sort of statutory presumption that the expert testimony will be admissible. And the court notes that this appears to be a case of first impression for them. So the defendant here is arguing that even if expert testimony is admissible under that 702 , like HGN or DRE, that the defendant would say the trial court is still required to qualify the expert based on the three regular requirements under 702 , notwithstanding the modifications that we've had made to Rule 702 since 2017. And so that's what they are struggling with. To clarify what we're talking about, Under Rule 702 , the basic part under , that's the one that says, yes, we can admit this expert testimony if it would be helpful to the jury. But with these three conditions, essentially adopting that Daubert standard, we have to show that, one, the testimony is based upon sufficient facts or data. Two, the testimony is the product of reliable principles and methods. And three, the witness has applied the principles and methods reliably to the facts of this case. But then the court has to square that with what we have under 702 , under the little sub two. That's the part where it says, notwithstanding any other provision of law, A witness may give expert testimony solely on the issue of impairment, not on the issue of a specific alcohol concentration level, relating to the following, and then two is where it says whether a person was under the influence of one or more impairing substances and the category of such impairing substance or substances if the witness holds a current certification as a drug recognition expert issued by the State Department of Health and Human Services.
[00:26:08.696] [SPEAKER_01] To break that down, there's at least a plausible basis for the state's argument here that so long as the witness is a certified drug recognition expert, he's permitted to testify that
[00:26:18.226] [SPEAKER_00] the defendant was impaired, right? Exactly. That, I think, is what the state is arguing here, you know, as they summarize their position, is they're basically saying, the state argues that by including especially that language, Joe, in the A-1, notwithstanding any other provision of law. And so the state's argument is, look, it's written right here into Rule 702 A-1 Sub 2, that if this person holds this proper DRE certification from DHHS, then there you go, right? I mean, they're allowed to give the expert testimony and that should be all that we need to do or all that we need to know. And the defense is disagreeing and saying, look, that is sort of allowing a specific category of expert testimony, but you can't get away from what the basic requirements would be under the regular 702 that you would still have to show that the testimony is based on sufficient facts, products of reliable principles, and applied reliably to the facts of this case. And so that's what the Court of Appeals has to settle on. And where they ultimately land is saying that, in their view, that the case law we've had addressing this Rule 702 and these issues makes it pretty clear to them that the General Assembly has essentially recognized that HGN and DRE expert testimony are based on sufficient facts or data and that they have been deemed sufficiently reliable. In their words, eliminating the need for continued review of the basic principles and methods under 702A1 and 2. In other words, in their view, by baking it into the rules by statute, our General Assembly is essentially saying, We are satisfied that HGN and DRE testimony meets 702A little one and little two. It is based on sufficient facts or data. It is the product of reliable principles and methods. However, in the court's view, even with a DRE testimony under this number two, it would still be up to the state to establish that we have satisfied that the witness has applied the principles and the methods reliably to the facts of this case. You know, that they said, if we didn't have that limitation at least, it would just sort of throw the door open to any sort of testimony at all, which they just can't believe is consistent with the intent of the General Assembly.
[00:28:37.220] [SPEAKER_01] Just to break this
[00:28:37.921] [SPEAKER_00] down, right? Your recipe is good. That doesn't mean your cook made it correctly. Exactly, exactly. I mean, if you have the certification, we're sort of accepting that the protocols are valid, that the testimony is an appropriate subject for expert testimony. But we still need to know that it was applied correctly or applied appropriately to the facts of this particular case. And here in this case, they're saying it was not. because those DRE protocols are supposed to be administered live and in person to the subject who you are evaluating, ideally right there at the scene or sometime shortly after. And the witness here acknowledged in the testimony that there really isn't any sort of protocol that would allow you to do it after the fact, ad hoc, just sort of looking at videos and listening to the in-court testimony, that that would not really be consistent with how he was trained to do that. So they say here, where this Deputy Stringer based his opinion only on the evidence and testimony from the trial and from the records, that was error under the 702A3, notwithstanding 702A1 So, I mean, there's kind of a lot of numbers to keep track of, but I think you see sort of the basic idea that we're looking here. But even given that error, the defendant bears the burden of proving prejudice and was unable to do that in this case. There was other overwhelming evidence of the defendant's impairment and guilt that would support the verdict, and so they ultimately conclude that it was non-prejudicial error. But I think this is a very helpful case for prosecutors to sort of address or settle a nagging question that we've been dealing with about what exactly does 702 have to say about 702 with those basic Daubert requirements? And I think this is a good answer for us saying that by having it baked into the statute, it's kind of a gimme on part one and part two, that we are accepting that these are valid scientific principles and we just need to show that they were reliably applied in the case. Now, Joe, let me pause here and say one thing. It seems like the Court of Appeals conclusion is almost inevitable when they cite back to the testimony from the witness for something along the lines of saying, no, this is not anything I was ever actually trained to do. And so then they're reaching this conclusion that he did not reliably apply his training and principles to the facts of the case. I mean, I will tell you, I talked with another DRE about this who was a little bit surprised by this case because he was saying, you know, we do have protocols and procedures for doing this kind of what he called an after action assessment where we might do something like this. Just look at what we do have and maybe not render an opinion that this person was guilty. for sure impaired on this particular substance, but might be able to give some more limited opinion along the lines of these symptoms or these behaviors are at least consistent with impairment of this particular type of substance. So I don't have the full transcript in front of me. I don't know exactly what the witness's testimony was in this case, but That would just be a point I might offer for prosecutors about this case is number one is we want to make sure we get the right testimony from the witness on direct examination. If this is something that's within their protocols, if this is an example of reliably applying the principles, then we want to make sure that that's clear. Or if this case stands for the broad holding that it seems like maybe it does about if it's not following the 12 steps, then it's not DRE testimony under this particular subdivision, then we might also think about... Well, could it just be regular expert opinion under 702A? I mean, you know, that I do still have this training, that I've applied it in this way that makes sense. It satisfies the one, two, three requirements. So I could just give you this other opinion, like I said, that these behaviors are consistent with it. So, you know, again, I don't have the full transcript. I don't know exactly what the testimony was, but those might be two things we want to consider or look at going forward. We'll just have to see how the case law shakes out on that. There is one other issue that gets raised, that the defendant's driving record was admitted, showing that he had some prior traffic matters on his record. And the defendant is contending that that was error by admitting it under 404B. But the court cites State v. Locklear, where we've previously held that prior convictions for driving while impaired were relevant to the charge of murder for establishing malice. Basically, that the prior conviction should have alerted the defendant to the hazard of driving while impaired, And so they find that the court here weighed the considerations of similarity and temporal proximity and appropriately admitted that. That's a pretty well established point of law. But I think a really interesting case for tangling with this interplay between 702 and 702 . And I think hopefully some useful information for prosecutors to argue in their next case.
[00:33:11.479] [SPEAKER_01] Absolutely. Well, that's all the time we have for today. In this episode, we discuss State V. Upchurch, finding no error in the denial of the defendant's motion to sever her trial from that of her co-defendant. State V. Venable, finding no error in the trial court's admission of an expert witness's retrograde extrapolation of the defendant's blood alcohol content. And State V. Moore, holding the trial court aired, albeit not prejudicially, by admitting the testimony of a drug recognition expert. Turning States is a collaboration between the University of North Carolina School of Government and the North Carolina Conference of District Attorneys. We are coming to you from the recording studio at the School of Government in beautiful Chapel Hill. Special thanks to our producer, Paul Bonner, and to Gustav Holtz for our music. If you liked what you heard today, if you have questions, comments, concerns, if there's a topic you'd like for us to cover in a later episode, please contact us. My name is Joseph Hyde, and I can be reached at jhyde at sog.unc.edu. That's jhyde at sog.unc.edu.
[00:34:13.030] [SPEAKER_00] And I'm Jonathan Holbrook. I can be reached at jonathan.p.holbrook at nccourts.org. That's j-o-n-a-t-h-a-n.org. Thank you,
[00:34:29.289] [SPEAKER_01] John. That would be the showing for the state.
[00:34:32.414] [SPEAKER_00] Thanks, Joe. Sounds good. Hope it helps.
[00:34:49.177] [UNKNOWN] Thank you. Thank you.