Submitted January 13, 2017
Appeals from the Superior Court of the District of Columbia
(CTF-4444-14) (Hon. Ann O'Regan Keary, Trial Judge) (Hon.
Jennifer M. Anderson, Post-Trial Judge).
W. Ullrich was on the brief appellant.
A. Racine, Attorney General for the District of Columbia,
Todd S. Kim, Solicitor General at the time the brief was
filed, Rosalyn Calbert Groce, Deputy Solicitor General, and
John D. Martorana, Assistant Attorney General.
McLeese, Associate Judge, and Washington [*] and Nebeker, [**] Senior Judges.
Washington, Senior Judge.
a bench trial, appellant Arthur Lee Dickerson was found
guilty of Driving Under the Influence of Alcohol or a Drug
("DUI"). On appeal, appellant contends the trial
court abused its discretion in preventing his toxicologist
from testifying as an expert in field sobriety tests and
giving an expert opinion as to the adverse effect
appellant's purported pinched nerve may have had on his
performance of two balance field sobriety tests. He further
challenges the trial court's failure to hold a hearing
prior to denying his motion for a new trial under D.C. Code
§ 23-110 (2012 Repl), that alleged ineffective
assistance by his trial counsel for failing to secure and
present the testimony of his treating physician. Finding no
error, we affirm his conviction.
March 15, 2014, around 3:21 a.m., Officer Seth Carll of the
United States Capitol Police observed appellant's vehicle
driving waveringly, prompting Officer Carll to follow
appellant. While following, he witnessed appellant's
white Lexus cross over and straddle the dividing white lane
hash marks, make an abrupt stop at a red light inside the
crosswalk, travel slowly through a yellow light, and cross
over the solid yellow line into oncoming traffic. After
Officer Carll activated his emergency lights, appellant
traveled for another half-block, scraping his passenger side
tires against the curb as he pulled over.
Carll approached the driver side door and saw that
appellant's eyes were bloodshot and watery. When asked
how much he had to drink, appellant initially told Officer
Carll that he had only one drink, but later said he had three
drinks between 6:00 and 9:00 p.m. Officer Carll testified he
could "smell a strong odor of alcohol coming from
[appellant's] breath and person." When asked for his
driver's license and registration, appellant produced his
license from his wallet but overlooked his registration,
which was visible to Officer Carll in appellant's wallet.
Finally, Officer Carll asked appellant what time he believed
it was, and appellant responded that it was around midnight
rather than the actual time of 3:20 a.m.
his initial encounter, Officer Carll attempted to have
appellant perform three field sobriety tests: the horizontal
gaze nystagmus ("HGN"), the walk-and-turn, and the
one-leg stand tests. Officer Carll administered the HGN test
first. He identified "six clues" from
appellant's test, where, "[b]ased on [his] training
manuals, four or more clues indicates that there's a 77
percent likelihood that the defendant's blood alcohol
content is a .10 or above." For both the walk- and-turn
test and the one-leg stand test, appellant had difficulty
following the directions provided to him and failed to
complete the tests as required.
to the administration of these tests, appellant informed
Officer Carll "he had a pinched nerve in his back and
that he was taking Xanax, Gabapentin, and Ambien."
Officer Carll acknowledged on cross-examination that the
National Highway Traffic Safety Administration
("NHTSA") Manual states that a person with a back
injury may have difficulty performing the two balance tests
appellant was asked to perform.
the field sobriety tests, Officer Carll believed appellant
was under the influence of alcohol, given the "totality
of the circumstances, " and placed appellant under
arrest. Appellant was transported to Capitol Police
headquarters, where he reportedly became uncooperative.
Officer Christopher Leonard attempted to administer an
intoxilyzer test, a breathing test that detects the presence
of alcohol. Appellant failed to complete the test after seven
attempts. Officer Leonard then informed appellant that if he
could not "provide a breath sample, he ha[d] the option
of providing urine." Appellant "wasn't able to
provide a urine sample either" and Officer Leonard
explained "at that point, it became a refusal."
Officer Leonard also testified that while he was
administering the intoxilyzer test, he noticed "a strong
odor of alcohol" and that, in his opinion, appellant was
"under the influence of alcohol."
the submission of the government's case, appellant sought
to elicit the testimony of Richard McGarry. He attempted to
qualify McGarry as an expert in toxicology, pharmacology, and
field sobriety tests. The trial court, however, declined to
accept McGarry as an expert in the administration and
interpretation of field sobriety tests as he had "no
specific training in the performance of the field sobriety
tests, " but permitted him to testify as an expert in
toxicology and pharmacology. The court also declined to ...