Criminal Practice – DWI – Preservation of Constitutional Issues – Sixth Amendment – Expert Witness – Right to Confrontation – Rule of Evidence 404(b) – Rule of Evidence 403 – Evidence of Malice

Because defendant’s pretrial motion did not raise any constitutional challenges and because she failed to preserve her Fourth Amendment challenge for appellate review by entering a timely objection at trial, we declined to review it now. We held the trial court did not violate defendant’s Sixth Amendment confrontation right by admitting a blood analysis report where the testifying expert witness participated in the lab work and was available for cross-examination. We further held the court did not err in its Rule 404(b) and Rule 403 rulings denying defendant’s objection to evidence of prior acts that demonstrated malice.

Defendant received a fair trial free from prejudicial error.

Defendant was driving very slowly or was stopped in the right lane of Highway 74 when the driver of a tractor trailer swerved to avoid her vehicle, causing the tractor trailer to crash into a tree and explode, killing the driver in the ensuing fire. A jury found defendant guilty of second-degree murder based upon driving while impaired and reckless driving. On appeal, defendant argued that her Fourth and Sixth Amendment rights were violated and that the State introduced evidence of malice in violation of Rule of Evidence 403.

First, because defendant did not object at trial to admission of her blood test results on the basis of a purported Fourth Amendment violation, she waived the argument.

Defendant next argued the court erred in admitting the laboratory report prepared and signed by Curtis Reinbold, a forensic scientist at the N.C. state crime lab in Raleigh, because he did not testify in violation of her Sixth Amendment right to confront witnesses against her. Specifically, defendant argued that because Reinbold did not testify, it was impossible for her to cross-examine him on subjects such as chain of custody of the blood sample and the reliability of his methods and results. Here, this case is not one in which the expert witness testifying in court did not personally participate in the testing. Megan Keeler, a forensic scientist at the N.C. state crime lab and also the State’s expert witness, testified regarding State’s Exhibit 25 that she “look[ed] at the raw data that was generated from the initial analysis by a coworker, and . . . review[ed] it like [she] would if [she] were the original viewer.” As an expert with personal knowledge of the processes involved and personal participation in the testing, she was the witness whom defendant had a right to cross-examine, and she was indeed subject to cross-examination at trial. Therefore, defendant’s constitutional right to confrontation was not violated. Defendant argued Reinbold’s absence at trial leaves the lab report without adequate foundation because she could not cross-examine him regarding the blood sample’s chain of custody. However, she neither attempted to cross-examine Keeler on this issue, nor objected for insufficient foundation based on a lack of chain of custody testimony. Therefore, the court did not err in admitting State’s Exhibit 25 into evidence.

Finally, defendant argued the court erred in admitting evidence under Rule 404(b) of other crimes, wrongs, or acts, all involving suspected or actual charges of driving while under the influence, because such evidence failed the Rule 403 balancing test. It is hard to imagine evidence more probative of the required showing of malice for second-degree murder which is defendant’s deliberate disregard for human life as evidenced by her repeated instances of driving while impaired. Accordingly, the court’s findings supported its conclusions as to its Rule 404(b) ruling.

Finally, the court did not abuse its discretion in its Rule 403 ruling. None of the prior incidents related to any particularly shocking or emotional facts that would have inflamed the jurors to return a guilty verdict against defendant based on passion; rather, they were regular traffic incidents and DWI investigations. Accordingly, the trial court did not abuse its discretion in denying defendant’s motion based on Rule 403.

No error.

State v. Taylor (Lawyers’ Weekly No. 011-081-24, 19 pp.) (April Wood, J.) Appealed from Columbus County Superior Court (James G. Bell, J.) Attorney General Joshua H. Stein, by Assistant Attorney General John W. Congleton, for the State; Tharrington Smith, L.L.P., by Douglas E. Kingsbery and Lacy A. Hanson, for Defendant. North Carolina Court of Appeals