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Dickerson v. District of Columbia

Court of Appeals of The District of Columbia

April 19, 2018

Arthur Lee Dickerson, Appellant,
v.
District of Columbia, Appellee.

          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).

          Thomas W. Ullrich was on the brief appellant.

          Karl 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.

          Before McLeese, Associate Judge, and Washington [*] and Nebeker, [**] Senior Judges.

          Washington, Senior Judge.

         Following a bench trial, appellant Arthur Lee Dickerson was found guilty of Driving Under the Influence of Alcohol or a Drug ("DUI").[1] 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.

         I.

         On 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.

         Officer 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.

         Following 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.

         Prior 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.

         Following 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."

         Following 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 ...


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