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STATE OF NORTH CAROLINA v. RICHARD LIONEL COOK
Filed: 3 July 2007
1. Appeal and Error--preservation of issues--failure to argue
There was no error in either the verdicts returned, judgment entered, or sentences
imposed for defendant's convictions for assault with a deadly weapon inflicting serious injury
because defendant failed to contest the validity of his assault convictions.
2. Discovery--blood alcohol concentration-_retrograde extrapolation
opinion_disclosure of basis
A second-degree murder case is remanded to the trial court for a determination of whether
its denial of defendant's motion to continue was harmless beyond a reasonable doubt because the
record and transcripts are silent on whether defendant possessed knowledge of or if the State
disclosed all the information in its possession and used by the State's witness in making his
calculations regarding defendant's blood alcohol concentration.
Judge WYNN dissenting.
Appeal by defendant from judgments entered 22 February 2006 by
Judge J.B. Allen, Jr., in Alamance County Superior Court. Heard in
the Court of Appeals 22 May 2007.
Attorney General Roy Cooper, by Special Counsel Isaac T.
Avery, III, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Constance Widenhouse, for defendant-appellant.
Richard Lionel Cook (defendant) appeals from judgment
entered after a jury found him to be guilty of one count of second-degree murder and two counts of assault with a deadly weapon
inflicting serious injury. We find no error in part and remand in
part with instructions.
Gene Mullis (Mullis) has known defendant since 1994 and
hired him to work temporarily at Triad Coatings, a distributor of
retail and wholesale paint products. On the evening of 28 October
2004, defendant and Mullis made arrangements for friends and
customers to come to the shop and play cards. At approximately
5:00 p.m., defendant left the shop, went to the ABC store, and
returned with a bottle of vodka.
By the end of the card game, it was apparent to Mullis that
defendant had been drinking, but he did not know the volume of
alcohol defendant consumed that evening. After the card game
ended, Mullis planned to drive defendant to a Days Inn hotel where
he resided. Mullis offered to drive because defendant had been
drinking and had a terrible sense of directions.
As Mullis secured the store for the night, defendant walked
out of the back door. Another individual present at the store said
he heard a car start. Mullis walked outside, saw defendant sitting
in a car, and waved his arms, but defendant drove away.
Lieutenant Robert Wilborne of the Alamance County Sheriff's
Department (Lieutenant Wilborne) was patrolling Interstate 40/85on the evening of 28 October 2004. At approximately 11:34 p.m.
Lieutenant Wilborne stopped a 1989 Chevrolet Beretta with three
occupants between exits 141 and 143 for failing to display an
illuminated license tag light. Lieutenant Wilborne issued the
driver, Adan Guerrero Rosales (Adan), a citation for failure to
possess a valid driver's license. No occupant inside the vehicle
possessed a valid driver's license. Lieutenant Wilborne instructed
Adan to drive to the next exit and call someone who possessed a
valid license to drive. The occupants requested they be permitted
to remain on the shoulder of the interstate and to call someone to
come get them. Lieutenant Wilborne consented and left the scene.
Adan testified he was stopped and cited for driving without a
license on 28 October 2004. After receiving the citation, Adan sat
in his car with his brother, Sergio Guerrero Rosales (Sergio),
and Anibal Amaya Guevara (Guevara). Sergio sat behind the front
passenger seat and Guevara sat behind the driver's seat. Adan was
talking on his cell phone when his car was struck by defendant's
vehicle. The force of the impact knocked Adan unconscious. Sergio
suffered a fractured bone in his back and had ground up blood in
his stomach. Guevara was killed in the collision. The accident
occurred at approximately 12:05 a.m.
Alamance County paramedics Kyle Buckner (Buckner) and Mike
Childers (Childers) responded to the scene. Childers smelledalcohol inside defendant's car and he asked if defendant had been
drinking. Defendant responded he had two beers. Buckner also
spoke with defendant as he was being transported in the ambulance.
He testified defendant's breath smelled of alcohol and defendant
dozed off while being transported in the ambulance.
After arrival at UNC Hospitals in Chapel Hill, defendant was
diagnosed with a lacerated spleen and fractured ribs. Defendant
was administered morphine in the ambulance by the paramedics, and
two subsequent doses of morphine at the hospital between the time
he arrived and 3:00 a.m. A blood sample was drawn from defendant
at the hospital at 1:38 a.m. and analyzed at 1:50 a.m. The test
results showed defendant's blood alcohol concentration to be .059.
Defendant's blood also tested positive for amphetamines,
marijuana and opiates. The treating physician testified that the
presence of opiates certainly can be explained by [the morphine],
but no medicines would account for the amphetamine or marijuana.
Defendant admitted at the hospital that he had been in rehab many
times. State Trooper Clint Carroll (Trooper Carroll)
investigated the accident and obtained a blood sample drawn from
defendant at 3:00 a.m., which showed defendant's blood alcohol
concentration level at that time to be .03.
Defendant was indicted for second-degree murder, felony death
by motor vehicle, two counts of assault with deadly weaponinflicting serious injury, reckless driving, and driving while
impaired on 24 January 2006. The State did not proceed on the
charges of felony death by motor vehicle, reckless driving, and
driving while impaired.
A. State's Evidence
The State presented evidence from several witnesses to the
accident. Truck driver John Talbot (Talbot) was driving on
Interstate 40 through Alamance County on the evening of 28 October
2004. Around the 143 or 144 mile marker, Talbot observed a white
car right on [his] back bumper. Talbot moved onto the right
shoulder and the car moved onto the right shoulder as well. Talbot
testified the white car drove quickly around his truck and was
drifting. Talbot estimated the white car was traveling between
seventy-five to eighty miles per hour. Talbot radioed the truck
driver ahead of him to watch out because the driver of the white
car was either asleep or drunk. After the white car passed
Talbot's truck, he observed it swerve to the left, which caused a
tango truck to swerve to avoid being hit. A few seconds later,
Talbot saw the white car upside down in the middle of the
Andrew Brady (Brady) was also driving on Interstate 40/85 on
the evening of 28 October 2004. He testified that he saw a white
car coming toward [him] from the left, far lanes [sic] and crossover in front of [him], drift onto the shoulder of the road,
jerk some, and collide with another vehicle. Brady testified
that the car shot up in the air and flipped several times before
coming to rest on its hood.
Timothy Mitchell (Mitchell) lives in a house facing
Interstate 40/85. On the evening of 28 October 2004 Mitchell
observed a police car stop a purple car. The police car left and
the purple car remained parked on the shoulder of the highway.
Mitchell heard a crash and observed a white car flip in the air.
Paul Glover (Glover), an employee of the North Carolina
Department of Health and Human Services, qualified as an expert
witness on blood analysis and the effects of alcohol and drugs on
human performance over defendant's objections. Glover testified
defendant's alcohol elimination rate was .0147, based solely on the
two snapshot tests of defendant's blood at 1:38 a.m. and 3:00
a.m. respectively, and over defendant's continuing objections.
Based upon the results of the 1:38 a.m. hospital and 3:00 a.m. SBI
blood alcohol analyses, Glover opined that at the time of the
collision, 12:05 a.m., defendant's blood alcohol concentration
would have been .07, less than the .08 presumptive level of
impairment. N.C. Gen. Stat. § 20-138.1(a)(2) (2005).
Glover further testified the combined presence of alcohol,
amphetamines, and marijuana would have a synergistic effect, andpresence of all three substances in a person's blood would cause a
more impairing effect on a person than any one of the substances
alone. The trial court instructed the jury to find defendant
guilty of second-degree murder if they found the State had proved
beyond a reasonable doubt that, inter alia, defendant was driving
while impaired at the time of the collision and Guevara's death.
The jury found defendant guilty of second-degree murder,
assault with deadly weapon inflicting serious injury on Adan, and
assault with deadly weapon inflicting serious injury on Sergio.
Defendant was sentenced in the presumptive range to a minimum of
176 and a maximum of 221 months imprisonment for the second-degree
murder conviction and consecutive terms of a minimum of 27 months
and a maximum of 42 months imprisonment for each assault with a
deadly weapon inflicting serious injury conviction. Defendant
Defendant argues the trial court erred in: (1) denying
defendant's motion to continue; (2) precluding ex mero motu
defendant's cross examination regarding Mullis's personal knowledge
of the side effects of the chemicals to which defendant was exposed
at work on 28 October 2004; (3) allowing the State to refresh the
recollection of Talbot and Buckner; and (4) admitting Trooper
Carroll's opinion testimony that defendant was impaired at the timethe collision occurred.
III. Assault With A Deadly Weapon Inflicting Serious Injury
 We note initially defendant's argued assignments of error
do not challenge either of his convictions for assault with a
deadly weapon inflicting serious injury. All four issues before us
argue whether evidence and testimony that defendant was appreciably
impaired at the time of the collision were properly admitted or
denied. As defendant does not contest the validity of his assault
convictions, we hold there is no error in either the verdicts
returned, judgments entered, or sentences imposed for defendant's
convictions for assault with a deadly weapon inflicting serious
IV. Motion to Continue
 Defendant argues the trial court erred in denying his
motion to continue.
A. Standard of Review
Although a motion for a continuance is
ordinarily addressed to the discretion of the
trial judge and is reviewable only upon a
showing of an abuse of discretion, when the
motion is based on a constitutional right the
ruling of the trial judge is reviewable [de
novo] on appeal as a question of law.
State v. Maher, 305 N.C. 544, 547, 290 S.E.2d 694, 696 (1982).
Defendant's argument is based on his constitutional right to due
process and is reviewable de novo as a question of law. Id.
The denial of a motion to continue, even when the motion
raises a constitutional issue, is grounds for a new trial only upon
a showing by the defendant that the denial was erroneous and also
that his case was prejudiced as a result of the error. State v.
Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). If the
error amounts to a violation of defendant's constitutional rights,
it is prejudicial unless the State shows the error was harmless
beyond a reasonable doubt. State v. Barlowe, 157 N.C. App. 249,
253, 578 S.E.2d 660, 662-63, disc. rev. denied, 357 N.C. 462, 586
S.E.2d 100 (2003).
B. Retrograde Extrapolation
The State notified defendant's counsel on 15 February 2006
that it intended to call Glover to testify as an expert witness and
provided defendant with Glover's curriculum vitae. On Friday
afternoon, 17 February 2006, the State provided defendant with a
one-page report prepared by Glover entitled Retrograde
Extrapolation of Alcohol Concentrations, dated 13 January 2006.
This report purportedly consisted of calculations Glover had used
to base his opinion of defendant's blood alcohol concentration at
the time of the accident. The report opined defendant's blood
alcohol concentration at the time of the collision was .08, based
upon defendant's assumed blood alcohol elimination rate of .0172.
Defense counsel filed a written motion to continue on Fridayafternoon, after receipt of Glover's report. Defendant's motion to
continue was heard prior to trial on Monday, 20 February 2006.
Defense counsel restated the allegations contained in his motion
and explained, that despite his extensive trial experience, he was
unfamiliar with this type of testimony and unable to retain an
expert over the weekend to review Glover's retrograde extrapolation
report and to possibly testify for the defense. The trial court
reserved ruling until such time Glover's testimony was proffered,
and the trial proceeded. When Glover was called as a State's
witness, the trial court held a voir dire hearing and, over
defendant's continuing objections, permitted Glover to testify.
Expert opinion of the rate at which a body eliminates alcohol
has been admitted, either without defendant's specific objection or
subject to a proper relevancy foundation, as tending to show a
driver's blood alcohol concentration at the time of an accident,
after a blood sample was obtained from the driver subsequent to the
accident. State v. Catoe, 78 N.C. App. 167, 169-70, 336 S.E.2d
691, 692 (1985) (defendant failed to specifically object to the
retrograde extrapolation opinion at trial; [o]f course, the usual
constraints of relevance continue to apply.), disc. rev. denied,
316 N.C. 380, 344 S.E.2d 1 (1986); State v. Taylor, 165 N.C. App.
750, 756, 600 S.E.2d 483, 488 (2004) (requiring a proper foundation
for Glover's retrograde extrapolation testimony when Glover usedthe average blood alcohol elimination rate). See also State v.
Wood, 174 N.C. App. 790, 793, 622 S.E.2d 120, 122 (2005) (The
State laid no foundation to show the relevancy of [the retrograde
extrapolation] testimony. )
At trial, Glover testified he calculated defendant's blood
alcohol concentration at the time of the accident by determining
the change in defendant's blood alcohol concentration based on the
elapsed time between the two blood samples drawn at 1:38 a.m. and
3:00 a.m. Based upon the difference in these two blood alcohol
concentrations results and the elapsed time, Glover calculated
defendant's alcohol elimination rate to be .0147 per hour. Glover
opined, over defendant's objection, that based upon defendant's
alcohol elimination rate, defendant's blood alcohol level at the
time of the accident was .07.
C. Duty to Disclose
The record shows defendant filed two discovery motions, one on
19 January 2005 and the other on 23 March 2005. These motions
specifically sought, inter alia: (1) [a]ll memoranda, documents,
and reports of all law enforcement officers connected with [the
case] . . . and (2) [r]esults of all reports of any scientific
tests or experiments or studies made in connection with the . . .
case and all copies of such reports.
N.C. Gen. Stat. § 15A-903 provides: (a) Upon motion of the defendant, the court
must order the state to:
. . . .
(2) Give notice to the defendant of any expert
witnesses that the State reasonably expects to
call as a witness at trial. Each such witness
shall prepare, and the State shall furnish to
the defendant, a report of the results of any
examinations or tests conducted by the expert.
The State shall also furnish to the defendant
the expert's curriculum vitae, the expert's
opinion, and the underlying basis for that
opinion. The State shall give the notice and
furnish the materials required by this
subsection within a reasonable time prior to
trial, as specified by the court.
N.C. Gen. Stat. § 15A-903(a)(2)(2005) (emphasis supplied). N.C.
Gen. Stat. § 15A-907 (2005) provides that if the State:
discovers prior to or during trial additional
evidence or witnesses, or decides to use
additional evidence or witnesses, and the
evidence or witness is or may be subject to
discovery or inspection under this Article,
the party must promptly notify the attorney
for the other party of the existence of the
additional evidence or witnesses.
N.C. Gen. Stat. § 15A-907 (2005) (emphasis supplied).
In State v. Branch, our Supreme Court stated:
The constitutional guarantees of due process,
assistance of counsel and confrontation of
witnesses unquestionably include the right of
a defendant to have a reasonable time to
investigate and prepare his case. No precise
time limits are fixed, however, and what
constitutes a reasonable length of time for
the preparation of a defense must be
determined upon the facts of each case.
306 N.C. at 104-05, 291 S.E.2d at 656. In State v. Castrejon, this
Last minute or day of trial production to
the defendant of discoverable materials the
State intends to use at trial is an unfair
surprise and may raise constitutional and
statutory violations. We do not condone either
non-production or a sandbag delivery of
relevant discoverable materials and documents
by the State. See State v. Payne, 327 N.C.
194, 202, 394 S.E.2d 158, 162 (1990) ([T]he
purpose of discovery under our statutes is to
protect the defendant from unfair surprise by
the introduction of evidence he cannot
anticipate.), cert. denied, 498 U.S. 1092,
111 S. Ct. 977, 112 L. Ed. 2d 1062 (1991).
179 N.C. App. 685, 695, 635 S.E.2d 520, 526-27 (2006) disc. rev.
denied, 361 N.C. 222, 642 S.E.2d 709 (2007).
Under our standard of review, defendant must show that the
denial was erroneous and also that his case was prejudiced as a
result of the error. Branch, 306 N.C. at 104, 291 S.E.2d at 656.
In State v. Fuller, the defendant appealed from her conviction for
driving while impaired and argued the trial court erred in denying
her motion to prevent the State's expert witness from testifying.
176 N.C. App. 104, 107, 626 S.E.2d 655, 657 (2006). Defendant
asserted the State did not promptly notify her of its intention
to call the expert within a reasonable time in order to allow her
to procure a rebuttal witness. Id; N.C. Gen. Stat. §§ 15A-907,903(a)(2) (2005). In Fuller, the State served notice on defendant
the morning of the defendant's trial, that it would be calling an
expert witness to opine to defendant's probable blood alcohol
content at the time she was driving, by using an average retrograde
extrapolation rate. 176 N.C. App. at 107, 626 S.E.2d at 657. We
held the trial court did not err in admitting an opinion of the
defendant's probable blood alcohol content at the time she was
driving in light of defendant's clear understanding of the
importance of [the] evidence to the State's case against her and
its longstanding acceptance in the courts of this state. Id. at
108, 626 S.E.2d at 658.
Here, defendant was indicted on 14 February 2005. One of the
charges listed in the indictments is driving while impaired.
Defendant went to trial over a year later, on 20 February 2006.
Defendant's trial counsel acknowledged that he had defendant's
medical records from the hospital, which showed a blood test being
drawn and that defendant had a blood alcohol concentration of .059
at 1:38 a.m.
Nothing in the record or transcripts shows that either
defendant or defense counsel was aware a second sample was drawn or
that the results of that sample showed defendant's blood alcohol
level was .03 at 3:00 a.m. The 3:00 a.m. blood sample was
apparently taken from defendant by hospital personnel andtransferred directly to Trooper Carroll. Nothing in the record
shows the blood draw or that defendant's .03 blood alcohol
concentration was recorded in his medical records or provided to
defendant or his attorney prior to trial.
Glover used the difference between the results of the 1:38
a.m. and 3:00 a.m. blood draws to opine that defendant's specific
blood alcohol elimination rate was .0147 per hour rather than the
average human blood alcohol elimination rate of .0165 per hour that
Glover testified to in State v. Taylor. 165 N.C. App. at 752, 600
S.E.2d at 486 (The alcohol elimination rate used by Glover in this
calculation was an average rate of .0165.).
Under Fuller, defendant could be reasonably expected to
anticipate the State might produce retrograde extrapolation
evidence tending to show defendant's blood alcohol concentration at
the time of the crash. 176 N.C. App. at 108, 626 S.E.2d at 658.
However, without a showing defendant knew of the second blood
sample or that its results showed his blood alcohol concentration
was .03 at 3:00 a.m., defendant could not reasonably foresee the
State would, based on the difference between the two samples, use
his specific blood alcohol elimination rate of .0147 rather than
the average rate of .0165, or review the second test and obtain
rebuttal testimony in his client's defense.
Furthermore, Glover's report, provided to defendant on theFriday afternoon before trial the following Monday, shows
defendant's blood alcohol elimination rate as .0172. Glover
testified at trial that defendant's blood alcohol elimination rate
was .0147. The alcohol elimination rate used in the calculations
causes the estimation of defendant's blood alcohol level, at any
given time, to vary widely.
Whether the trial court committed constitutional or statutory
error in denying a defendant's motion to continue is determined on
a case-by-case basis. State v. Barlowe, 157 N.C. App. 249, 253,
578 S.E.2d 660, 663 (2003) (citing Avery v. Alabama, 308 U.S. 444,
84 L. Ed. 377 (1940)).
The record and transcripts before us are silent on whether the
defendant possessed knowledge of or if the State disclosed all the
information in its possession and used by Glover in making his
calculations, as it was constitutionally and statutorily required.
On this record, we are unable to determine whether defendant was
prejudiced by the State's delivery of Glover's retrograde
extrapolation report dated 13 January 2006 to defendant on the
Friday afternoon, 17 February 2006, prior to defendant's trial the
following Monday morning, and whether the trial court's denial of
defendant's motion to continue was harmless beyond a reasonable
doubt. Fuller, 176 N.C. App. at 107, 626 S.E.2d at 657. We remand this case to the trial court for a hearing and
determination of: (1) whether defendant or defense counsel, prior
to 17 February 2006, had knowledge that an additional blood sample
was taken from defendant at 3:00 a.m. which showed defendant's
blood alcohol concentration to be .03 at that time; (2) when, prior
to 17 February 2006, defendant or defense counsel became aware a
second blood sample was taken at 3:00 a.m. that showed defendant's
blood alcohol concentration to be .03; (3) the dates the State
provided the defendant's blood test results to Glover and procured
Glover as an expert witness to testify in this trial; (4) when
Glover calculated and prepared and when the State received
possession of Glover's retrograde extrapolation report; (5) whether
Glover was listed as an expert witness in the pre-trial order or
any other witness list required to be disclosed by the State to
defendant pursuant to N.C. Gen. Stat. § 15A-903(a)(2); (6) the date
defense counsel received possession of any pre-trial order or other
State's witness list; (7) whether the delivery of Glover's report
to defendant's trial counsel at 2:00 p.m. on the Friday prior to
trial the following Monday morning occurred within a reasonable
time prior to trial pursuant to N.C. Gen. Stat. § 15A-903(a)(2)
and whether the State otherwise complied with N.C. Gen. Stat. §
15A-903(a)(2), the other provisions of N.C. Gen. Stat. § 15A-903,
the provisions of N.C. Gen Stat. § 15A-907, i.e., if the Statepromptly notif[ied] the attorney for the other party of the
existence of the additional evidence or witnesses; and (8) whether
the State acted in conformity with the constitutional provisions
set forth in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215
(1963) and State v. Smith, 337 N.C. 658, 662, 447 S.E.2d 376, 377-
78 (1994). Upon remand, the trial court shall hold a hearing,
receive evidence, and make findings of fact and conclusions of law
regarding each of these factors.
Defendant failed to assign error to his two assault with a
deadly weapon inflicting serious injury convictions. We find no
error in these convictions.
All of defendant's remaining assignments of error challenge
the admission or exclusion of evidence relating to his conviction
for second degree murder. These remaining assignments of error are
preserved until after the trial court's hearing and entry of order
This case is remanded to the trial court for further
proceedings consistent with this opinion.
No error in part and remanded in part with instructions.
Judge CALABRIA concurs.
Judge WYNN dissents in a separate opinion.
WYNN, Judge, dissenting.
I respectfully dissent, observing a well-established rule of
Where a panel of the Court of Appeals has
decided the same issue, albeit in a different
case, a subsequent panel of the same court is
bound by that precedent, unless it has been
overturned by a higher court. . . . While we
recognize that a panel of the Court of Appeals
may disagree with, or even find error in, an
opinion by a prior panel and may duly note its
disagreement or point out that error in its
opinion, the panel is bound by that prior
decision until it is overturned by a higher
State v. Jones
, 358 N.C. 473, 487, 598 S.E.2d 125, 133-34 (2004)
(internal quotation and citation omitted).
In State v. Fuller
, this Court held that the trial court did
not abuse its discretion by denying the defendant's motion to
prevent the State from presenting extrapolation evidence from the
same expert witness at issue in the instant case. 176 N.C. App.
104, 107-08, 626 S.E.2d 655, 657-58 (2006). The defendant in
, as here, argued that she had insufficient time to procure
a rebuttal witness. We noted defendant's clear understanding of
the importance of this evidence to the State's case against her and
its longstanding acceptance in the courts of this state. Id.
108, 626 S.E.2d at 658. Indeed, such evidence has been offered in
North Carolina since 1985. State v. Catoe
, 78 N.C. App. 167, 169-
70, 336 S.E.2d 691, 693 (1985), disc. review denied
, 316 N.C. 380,344 S.E.2d 1 (1986); see also State v. Taylor
, 165 N.C. App. 750,
752-58, 600 S.E.2d 483, 486-89 (2004); State v. Davis
, 142 N.C.
App. 81, 89-90, 542 S.E.2d 236, 241, disc. review denied
, 353 N.C.
386, 547 S.E.2d 818 (2001).
Here, although the record may not contain definitive evidence
as to whether Defendant had notice of the results of the three a.m.
blood test, neither is there any suggestion - by either the State
or Defendant himself, in his arguments to this Court - that the
trial court had incomplete information as to Defendant's notice and
degree of knowledge. In light of the facts at issue in this case,
Defendant unquestionably had notice that the State would offer
evidence as to his alleged impairment and blood alcohol content.
The longstanding acceptance of extrapolation evidence likewise
should have put Defendant on notice that the State would use his
blood tests to estimate his blood alcohol content at the time of
the crash. The sole surprise was the name of the expert, which
should not have precluded Defendant from preparing a rebuttal.
(See footnote 1)
I see no meaningful distinction between the facts in the
instant case and those of Fuller
. As such, our decision should be
controlled by our prior precedent. Jones
, 358 N.C. at 487, 598
S.E.2d at 133-34. I would therefore affirm the trial court's
denial of the motion to continue, as well as reach the merits of
Defendant's other arguments.
I note, too, that even assuming arguendo that it was an
abuse of discretion for the trial court to deny the motion to
continue, such error was not prejudicial to Defendant. The
expert testimony at trial was actually more beneficial to
Defendant, as the expert stated that his blood alcohol content
would have been 0.07 (and below the legal limit), rather than the
0.08 stated in his report. Moreover, the State had other
evidence against Defendant, including testimony as to his earlier
blood tests, paramedic testimony that the car smelled of alcohol,
and witness testimony that he was driving erratically immediatelyprior to the accident, that would have supported the jury's
verdicts; the issue of impairment did not need to be proven as an
element of any of the crimes of which he was convicted.
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