State v. Daniel Hamrick, Op. No. 27886 (South Carolina Supreme Court, filed May 15, 2019) Just Because A Law Enforcement Officer Says He’s a Qualified Expert Doesn’t Make It So.

This is a very important opinion, and not just for this particular matter, but for the State’s attempted use of law enforcement “experts” going forward. The Supreme Court has taken the opportunity to clarify the conditions under which a law enforcement officer may be allowed to testify as an expert under SCRE, Rule 702.  Simply put, trial courts are charged with ensuring that officers have expertise in the areas in which they intend to testify, and it is not sufficient to merely characterize them as “lay witnesses” when they do not.

This was a trial for felony DUI with great bodily injury. The critical issue in the case was whether the driver’s vehicle (the defendant) was actually in the line of traffic or whether he was in a construction zone where he should not have been, and where the accident occurred. The law enforcement officer who testified on behalf of the state purported to be able to tell from his analysis of the scene that the defendant was in the construction zone. Important to this discussion is the fact that the law enforcement officer did not actually arrive at the scene until approximately an hour after the accident occurred. Trial counsel repeatedly objected to the state’s attempt to have the police officer offer his opinions as to the point of impact.

The Supreme Court ultimately concluded that the trial court erred in permitting the law enforcement officer to testify as to matters properly in the purview of an accident reconstructionist.  Due to this error, it granted a new trial.

To prove someone guilty of felony driving under the influence, the state must prove a defendant is actually under the influence of alcohol and that he committed “any act forbidden by law or neglect[ed] any duty imposed by law in the driving of the motor vehicle, which… proximately caused great bodily injury… to another person.” S.C. Code Ann. §56-5-2945(A). The state sought to meet this requirement by proving that the defendant was speeding, he failed to keep a proper lookout, and that he struck the victim outside the designated lane of travel. As the Court notes, the state put significant emphasis on proving that the defendant was located outside the designated lane of travel.  Ultimately the trial court judge allowed the officer to testify to his conclusions, finding that he was offering a “lay” opinion. The Supreme Court found that the court incorrectly characterized the officer’s testimony as a “lay” opinion. Under SCRE, Rule 701, lay opinion is “limited to those opinions… rationally based on the perception of the witness.”  Since the officer arrived on the scene nearly an hour after the accident, he clearly did not perceive the location of the impact. In addition, Rule 701 provides lay opinion is not admissible unless the witness is not testifying as an expert. As the Court notes, the state attempted repeatedly to have this witness treated as an expert witness.

Additionally, the trial court failed to make findings that the state established its witness’s foundation, as required by Rule 702. When the defendant objected that the law-enforcement officer did not possess the necessary qualifications to be deemed an expert, the trial court conducted off-the-record discussions. Without putting any findings of the record, the trial court allowed the State to ask the law enforcement officer questions to elicit his opinion regarding the point of impact. The trial court’s failure to make any findings on the record was error.  The Court conducted its own review of the officer’s qualifications as presented in the trial testimny and found that he was not sufficiently qualified to offer an expert opinion. The court ultimately concluded that because the officer gave opinion testimony on the subject of accident reconstruction and the State failed to lay the necessary foundation for his testimony, the trial court erred in allowing this testimony into evidence.

The court had no trouble concluding that this error was not harmless since this was such a central issue in the case.

In dicta, the court also addressed the trial court’s exclusion of a videotape created by a defense expert.  The trial court judge did not allow the videotape to be admitted because he perceived it as an attempt to “re-create the incident.” The Supreme Court found the trial court conducted an erroneous analysis of the admissibility of the video. The proper analysis is for the judge to ask the threshold question of whether the evidence is relevant. SeeRule 402, SCRE. The Court found that the video was clearly relevant because the video tended to prove that the defendant could not have struck the victim in the construction zone as the state had claimed. The Court disagreed with the trial court’s characterization of the video as a re-creation or demonstration of how the accident happened. Instead, the court found it was substantive evidence– not demonstrative—and was offered to prove the defendant could not have struck the victim inside the construction zone. The Court found that as substantive, relevant evidence, the trial court did not have the discretion to exclude the video. Additionally, if the trial court believed that the video risked misleading the jury, it was required to conduct an on-the-record Rule 403 analysis. SeeRule 43, SCRE (“all the relevant, evidence may be excluded if it’s probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . .”).  State v. Spears, 403 S.C. 247, 254, 742 S.E.2d 878, 881 (Ct. App. 2013) (holding “the trial court erred by failing to conduct an on the record rule 403 balancing test”).

In all, this is an important case for practitioners. Although the South Carolina Supreme Court did not fault defense counsel for failing to get on the record rulings from the trial court judge on the foundation issue, in my opinion they could have. It is always important for trial counsel to make sure that the appellate record is well preserved for review. But the Court here clearly put the onus on the trial court judge to make sure that he complied with the rules requiring that his findings be on the record.