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State v. Taylor8/17/2004
f error] is not properly before this Court," the remaining discussion in the opinion is obiter dicta and is not binding as precedent at bar. 78 N.C. App. at 168, 336 S.E.2d at 692.
The trial court admitted, over defendant's specific objection, Glover's testimony that "defendant's" elimination rate was 0.0165 and also that "defendant" had a 0.08 at the time of the accident. Glover relied on "an average extrapolation rate," pure hearsay, instead of defendant's actual elimination rate to reach his conclusions. Glover failed to establish any connection or common attributes to correlate the average extrapolation rate to defendant's actual rate to establish relevancy.
Recently, our Supreme Court clarified the test for admissibility of expert testimony:
The most recent North Carolina case from this Court to comprehensively address the admissibility of expert testimony under Rule 702 is State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995), which set forth a three-step inquiry for evaluating the admissibility of expert testimony: (1) Is the expert's proffered method of proof sufficiently reliable as an area for expert testimony? Id. at 527-29, 461 S.E.2d at 639-40. (2) Is the witness testifying at trial qualified as an expert in that area of testimony? Id. at 529, 461 S.E.2d at 640. (3) Is the expert's testimony relevant? Id. at 529, 461 S.E.2d at 641.
Howerton v. Arai Helmet, Ltd., __ N.C. __, __, __ S.E.2d __, __ (June 25, 2004) (No. 383PA03) (emphasis supplied). Defendant argues Glover laid no foundation for his testimony because he failed to show any relevance in using the average rate data as it applied to defendant. I agree. The use of average elimination data, instead of defendant's actual elimination rate, is hearsay, irrelevant, and inadmissible under our Supreme Court's holdings in Goode and Howerton.
Our Supreme Court has rejected average data as evidence to show how a specific action may have occurred or how an individual may have reacted or responded in an "actual set of circumstances." Hughes v. Vestal, 264 N.C. 500, 505, 142 S.E.2d 361, 365 (1965). In Hughes, our Supreme Court addressed the admission into evidence of a chart showing average stopping distances. The Court rejected the use of these charts at trial and held:
A formula, in which so many components are variables and in which there is only one constant (rate of speed), cannot by projection of a positive result (distance), based on speculative averages, be of sufficient accuracy and relevancy to rise of its own force to the dignity of evidence in an actual set of circumstances. This and its hearsay character have led to its rejection as evidence in a large majority of the jurisdictions where the question has been directly raised.
Id. The Court stated, "The factors involved in stopping automobiles are so many and varied that a fixed formula is of slight, if any, value in a given case." Id. The Court reiterated that numerous variables affect the outcome in specific situations, including the vehicle's weight, condition of tire tread, force of brakes, and types of roadways. Id.
Similarly, Glover admitted that numerous variables exist to determine an individual's alcohol elimination rate, including, among other things, a person's: (1) gender; (2) height; (3) weight; (4) age; (5) elapsed time since eating; (6) "recent consumption" of alcohol; (7) type of alcohol consumed; and (8) "a person's experience with alcohol." Glover testified that an individual's elimination rate "could be different within a given individual on different days." Glover further testified that "the ideal way [to know defendant's elimination rate] would be to get multiple samples at the time of the event, th
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