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             DISTRICT OF COLUMBIA COURT OF APPEALS

                          Nos. 15-CT-187 & 17-CT-54

                      ARTHUR LEE DICKERSON, APPELLANT,                    04/19/2018

                                       V.

                       DISTRICT OF COLUMBIA, APPELLEE.

                     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)

(Submitted January 13, 2017                              Decided April 19, 2018)

      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.

      *
        Judge Washington was Chief Judge at the time of submission. His status
changed to Senior Judge on March 20, 2017.
      **
          Senior Judge Reid was originally assigned to this case. Following her
retirement on December 12, 2017, Senior Judge Nebeker was assigned to take her
place on the division.
                                         2

      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


      1
          D.C. Code § 50-2206.11 (2012 Repl.).
                                          3

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-
                                          4

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
                                           5

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 allow McGarry to give

an opinion that appellant‟s pinched nerve affected his performance of the two

balance field sobriety tests.



      At the end of a three-day trial, the trial court found appellant guilty of DUI.

The court found that the government met its burden, based on the totality of the

circumstances, that appellant was under the influence of either alcohol or

prescription medication.        The court credited Officer Carll‟s testimony that

appellant made multiple driving violations, had a strong odor of alcohol emanating

from him, had bloodshot and watery eyes, made inconsistent claims of alcohol

consumption, had difficulty producing his registration, and was uncertain as to the
                                             6

time of day. The court also credited Officer Carll‟s opinion that appellant was

under the influence, as well as Officer Leonard‟s corroboration of that opinion.

Finally, the court found that the police station video corroborated the officers‟

testimony that appellant was combative, talkative, and argumentative at the station,

and that appellant refused to sign papers.



      The trial court sentenced appellant to 180 days of incarceration, but

suspended execution of the sentence, placing him instead on twelve months of

supervised probation. He timely filed his direct appeal. While his direct appeal

was pending, appellant filed a § 23-110 motion alleging ineffective assistance of

trial counsel. The basis of appellant‟s ineffective assistance claim was the failure

of his trial counsel to present the testimony of his treating physician, Dr. Vijay Shri

Kannan. The trial court denied the § 23-110 motion without a hearing. This

appeal followed and we consolidated the two appeals.



                                          II.



      We review a trial court‟s admission or exclusion of expert testimony for

abuse of discretion and only disturb the lower court‟s ruling when it is “manifestly

erroneous.” Benn v. United States, 978 A.2d 1257, 1273 (D.C. 2009). We have
                                          7

cautioned, however, that “the defense should be free to introduce appropriate

expert testimony” and “should not be put at a disadvantage in the use of scientific

evidence comparable to that permitted to the government.” Id. at 1269-70. Still,

we “defer to the trial court‟s exclusion of expert testimony when it is based on a

reasoned and reasonable exercise of discretion.” Girardot v. United States, 92

A.3d 1107, 1109 (D.C. 2014) (quoting Benn, 978 A.2d at 1276) (brackets omitted).

Though the trial court‟s ruling is discretionary, the trial court must “take no

shortcuts” and “exercise its discretion with reference to all the necessary criteria.”

Id. (quoting Ibn-Tamas v. United States, 407 A.2d 626, 635 (D.C. 1979))

(emphasis in original). “Thus, the court‟s determination must be case-specific[

and] based on the proffered expert testimony . . . .”2 Id. (internal quotation marks


      2
          Appellant‟s trial preceded our en banc decision in Motorola Inc. v.
Murray, 147 A.3d 751 (D.C. 2016). In Motorola, we adopted the reliability
standard of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 590-95 (1993), thereby replacing the general acceptance test
articulated in Frye v. United States, 293 F. 1013 (D.C. 1923), and Dyas v. United
States, 376 A.2d 827 (D.C. 1977). Id. at 756-57. Rule 702 now requires that:

             A witness who is qualified as an expert by knowledge,
             skill, experience, training, or education may testify in the
             form of an opinion or otherwise if: (a) the expert‟s
             scientific, technical, or other specialized knowledge will
             help the trier of fact to understand the evidence or to
             determine a fact in issue; (b) the testimony is based on
             sufficient facts or data; (c) the testimony is the product of
             reliable principles and methods; and (d) the expert has
             reliably applied the principles and methods to the facts of
                                                                         (continued…)
                                           8

omitted). “While a witness may be qualified to testify as an expert on the basis of

his experience in a particular field, a trial judge is not obliged to qualify a proffered

expert when there are articulable reasons to doubt his competency.” Johnson v.

District of Columbia, 728 A.2d 70, 74 (D.C. 1999) (quoting Glorious Food, Inc. v.

Georgetown Prospect Place Assocs., 648 A.2d 946, 948 (D.C. 1994)).



                               A. Field Sobriety Tests



       Appellant first argues the trial court erroneously found McGarry was not

qualified to testify as an expert in the area of field sobriety tests.             More

specifically, appellant contends the trial court erred in finding that McGarry did not

possess sufficient skills, knowledge, or experience in field sobriety tests to aid the

triers of fact in their search for truth. See Motorola Inc. v. Murray, 147 A.3d 751,

756 (D.C. 2016) (en banc). Had McGarry been qualified, appellant contends, he

would have disputed and discredited Officer Carll‟s administration of the field

sobriety tests.

(…continued)
           the case.

Though the question of whether the Daubert standard applies retroactively to cases
that have already been tried but are not yet final on direct appeal was left open in
Motorola, we need not answer that question in this case. Under either standard,
appellant‟s arguments fail.
                                           9



      “Whether a witness possesses the requisite qualifications to express an

opinion on a particular subject is within the trial court‟s discretion,” Jung v.

George Washington Univ., 875 A.2d 95, 105 (D.C. 2005) (quoting Otis Elevator

Co. v. Tuerr, 616 A.2d 1254, 1256 (D.C. 1992)), “and its ruling thereon will not be

reversed unless manifestly erroneous,” Austin v. United States, 64 A.3d 413, 426

(D.C. 2013) (internal quotation marks omitted).              Applying this deferential

standard, we discern no manifest error in the trial court‟s conclusion that McGarry

lacked the necessary skills, knowledge, and experience to testify as an expert in the

administration and interpretation of field sobriety tests.



      The trial court recognized that McGarry had some experience administering

the HGN test through various continuing legal education programs he hosted in the

1980‟s and 90‟s. However, he testified that he had never demonstrated the HGN

test “under supervision of anyone formally trained” in administering the HGN test,

he was never formally trained or certified in administering HGN tests, nor had he

ever personally witnessed an HGN test administered in a standard law enforcement

scenario. Rather, “[h]e studied the NHTSA manual and decided how to perform

[the HGN tests] and how to interpret them based on that.” While “[t]he relevant

knowledge for eligibility to testify as an expert may be based on experience,” we
                                         10

agree that that experience must be based on more than one‟s own interpretation of

the standard NHTSA manual used in administering HGN tests. Id. We, therefore,

cannot say the trial court abused its discretion in precluding McGarry from

rendering an opinion on the administration and interpretation of the HGN test. Cf.

Karamychev v. District of Columbia, 772 A.2d 806, 811 (D.C. 2001) (no abuse of

discretion in finding police officer qualified to testify as an expert in the

administration and interpretation of HGN tests where officer explained purpose of

HGN test, discussed the one-week training course he received, and “estimated that

since the training course, he had made two to three arrests per week for drinking

and driving”).



      Appellant further asserts that had McGarry been qualified as an expert in

field sobriety tests, he would have been able to testify to the effects of the

prescription medicines appellant was taking on those tests. Appellant, however,

failed to lay any foundation from which the trial court could determine that

McGarry would have been able to opine about whether appellant‟s purported

prescription medications caused the “six clues” seen by Officer Carll during the

administration of appellant‟s HGN test. Implicit in the requirement that an expert

have sufficient skill, knowledge, or experience in a particular field for which he is

giving an opinion is that the “expert must have a reliable basis for his theory
                                        11

steeped in fact or adequate data, as opposed to offering a mere guess or

conjecture.” Russell v. Call/D, LLC, 122 A.3d 860, 867 (D.C. 2015) (quoting

Perkins v. Hansen, 79 A.3d 342, 345 (D.C. 2013)) (brackets omitted).

Accordingly, “[e]xpert testimony may be excluded when the expert is unable to

show a reliable basis for their theory.” Id. (quoting Haidak v. Corso, 841 A.2d

316, 327 (D.C. 2004)).



      The trial court recognized that appellant offered no non-hearsay evidence as

to what prescription medications appellant ingested, the dosage of those

medications, or the last time the medications were taken other than Officer Carll‟s

testimony regarding appellant‟s statements prior to the field sobriety tests.

Appellant did not proffer any blood tests, medical records, or testimony from

which his expert could have shown a reliable basis for believing that appellant‟s

prescription medications, rather than his being under the influence of alcohol or

drugs, caused the nystagmus Officer Carll observed.          Moreover, McGarry

acknowledged that while he could observe nystagmus, he could not “say what

caused the nystagmus.”      Without this evidentiary foundation, we agree that

McGarry could not have opined as to the cause of appellant‟s nystagmus in the
                                           12

HGN test.3



          Moreover, McGarry was permitted to testify as to possible alternative causes

for nystagmus, irrespective of how appellant‟s test was performed. He testified

that Gabapentin and Xanax were alternative sources of HGN, but that he did not

believe appellant took a sufficient quantity of Ambien for it to be a factor.

McGarry also disagreed with the proposition that the presence of nystagmus

necessarily meant that a person was under the influence of alcohol or drugs or that

a person was impaired, explaining that while a drug like Gabapentin may cause

nystagmus, it does not automatically mean that it would impair someone‟s driving

skills.       Bearing in mind the absence of a foundation and McGarry‟s actual

testimony, we are satisfied that the trial court did not abuse its discretion in

limiting McGarry‟s expert testimony.



                                   B. Pinched Nerve



          Appellant next challenges the trial court‟s limitation on his expert‟s

          3
          Officer Carll did not testify that appellant‟s consumption of alcohol or
drugs caused the “six clues” he observed in the HGN test; rather Officer Carll
testified that “[b]ased on my 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.”
                                          13

testimony regarding the effect that appellant‟s lower back pinched nerve had on his

ability to perform the two balance field sobriety tests.        It is undisputed that

McGarry‟s education, training, and experience were in toxicology and

pharmacology, and the court properly qualified him to render an opinion in those

fields.     See Motorola Inc., 147 A.3d at 756.       Although McGarry completed

anatomy, physiology, and pathology courses in the 1960s while obtaining his

bachelor and master degrees, those courses alone do not qualify him as someone

who possesses the skills, training, and experience necessary to diagnose a lower

back pinched nerve and opine as to its effect on one‟s ability to perform balance

field sobriety tests.



          Appellant misplaces reliance on Battle v. Thornton, where we said, “[e]ven

in medical malpractice actions we have held that „a physician need not be a

specialist in the field of which he [or she] speaks in order to testify as an expert.‟”

646 A.2d 315, 322 n.8 (D.C. 1994) (quoting Ornoff v. Kuhn & Kogan Chartered,

549 A.2d 728, 732 (D.C. 1988)) (brackets in original). Appellant concedes that

McGarry was “unqualified to make a diagnosis of a pinched nerve,” but argues

that this fact goes to the weight of his testimony rather than to its admissibility.

Appellant blurs the relaxed requirement, reiterated in Battle, that a physician need

not be a specialist in a particular field, provided the physician “is familiar with the
                                         14

medical procedure at issue,” into a rule that would permit anyone with a basic

anatomy education to render medical opinions. Id. While a physician need not be

a specialist, he or she must still be a qualified physician and have familiarity with

the particular subject matter in order to render an expert medical opinion. Here,

McGarry lacks such qualifications as a physician with familiarity of lower back

injuries. McGarry testified that “[a]s a pharmacist, [he] can describe treatments for

it but [he] can‟t diagnose [a back injury] in a person.”       We have repeatedly

recognized that “a trial judge is not obliged to qualify a proffered expert when

there are articulable reasons to doubt his competency.” Johnson, 728 A.2d at 74

(quoting Glorious Food, Inc., 648 A.2d at 948).          Based on the absence of

qualifications, the trial court did not err in limiting McGarry‟s testimony on this

subject.



                                        III.



      This court reviews a trial court‟s decision to deny a § 23-110 motion without

a hearing for abuse of discretion. Bethea v. United States, 170 A.3d 192, 194

(D.C. 2017). While “the statute creates a presumption that a hearing should be

held” on the merits, Long v. United States, 910 A.2d 298, 308 (D.C. 2006) (quoting

Newman v. United States, 705 A.2d 246, 261 (D.C. 1997)), a hearing is
                                         15

unnecessary if the claims “(1) are palpably incredible; (2) are vague and

conclusory; or (3) even if true, do not entitle the movant to relief.” White v. United

States, 146 A.3d 101, 109 (D.C. 2016) (quoting Hardy v. United States, 988 A.2d

950, 961 (D.C. 2010)). “Under the last of those three categories, „if no genuine

doubt exists about the facts that are material to the motion, the court may conclude

that no evidentiary hearing is necessary.‟” Bellinger v. United States, 127 A.3d

505, 515 (D.C. 2015) (quoting Ginyard v. United States, 816 A.2d 21, 38 (D.C.

2003)). To uphold a trial court‟s denial of a hearing, we “must conclude that under

no circumstances could [appellant] establish facts warranting relief.” Freeman v.

United States, 971 A.2d 188, 201 (D.C. 2009) (quoting Wright v. United States,

608 A.2d 763, 766 (D.C. 1992)) (brackets in original).



      On appeal, appellant argues the trial court abused its discretion by not

holding a hearing on his § 23-110 claims that trial counsel was ineffective for

failing to secure and present the testimony of his treating physician, Dr. Kannan.

He asserts the treating physician would have testified that: (1) appellant has a

number of medical conditions that likely would have affected appellant‟s ability to

perform the field sobriety tests and exit his vehicle without pulling himself out, (2)

appellant‟s vertigo may have caused nystagmus observed by the arresting officer,

and (3) appellant‟s hiatal hernia/GERD provides an alternative reason for his
                                          16

inability to perform the breathalyzer test, other than blatant refusal.



      The trial court resolved each of these issues without a hearing, finding that

even if the proposed testimony were true, it would not entitle appellant to relief.

Because the trial court accepted the content of the affidavit as true, there is no

factual dispute for the trial court to resolve. Accordingly, under circumstances like

those here, where appellant fails to “identify any material factual issue that

require[s] an evidentiary hearing to resolve,” a hearing is unnecessary. Ginyard,

816 A.2d at 38.



      We next consider appellant‟s ineffective assistance of counsel claim. To

succeed on an ineffective assistance of counsel claim, appellant must “show that

his trial counsel‟s representation was deficient, and that [that] deficient

performance prejudiced [appellant‟s] defense.” Bellinger, 127 A.3d at 515. To

establish deficiency, trial counsel must have “made errors so serious that counsel

was not functioning as the „counsel‟ guaranteed the defendant by the Sixth

Amendment.” Thomas v. United States, 50 A.3d 458, 474 (D.C. 2012) (quoting

Zanders v. United States, 678 A.2d 556, 569 (D.C. 1996)). The prejudice prong

calls for a showing that there is “a reasonable probability that, but for counsel‟s

unprofessional errors, the result of the proceeding would have been different.”
                                          17

Long, 910 A.2d at 310 (quoting Strickland v. Washington, 466 U.S. 668, 694

(1984)). As it is not necessary “to address both components of the inquiry if the

defendant makes an insufficient showing on one,” the trial court may properly

deny an ineffectiveness claim if it concludes that appellant‟s showing of either

deficient performance or prejudice is insufficient. Strickland, 466 U.S. at 697.



      We are satisfied appellant cannot demonstrate prejudice. The trial court did

not attach dispositive weight to the field sobriety tests or the officer‟s observations

regarding appellant‟s performance of those tests. Instead, the trial court made

explicitly clear that while there is “some weight to be given to field sobriety tests,”

those tests “are certainly not the only factor upon which [the] court relied[].”

Rather, the trial court described, at length, the other factors upon which it based its

ruling, including the multiple driving violations appellant committed in the short

timeframe Officer Carll was following him, the strong smell of alcohol emanating

from appellant, and appellant‟s bloodshot and watery eyes.



      The trial court also weighed other factors, including the fact that when he

was pulled over, appellant did not know the time of day, appellant had difficulty

producing his registration, and appellant attempted to mislead Officer Carll as to

how much he had to drink, claiming first he had only one drink and later
                                         18

acknowledging he had had three drinks. In addition to Officer Carll‟s testimony,

the trial court credited the testimony of Officer Leonard who described appellant as

combative at the station and smelling of alcohol, thereby corroborating Officer

Carll‟s observations.



       Thus, even if appellant‟s treating physician had testified to his medical

conditions and the effects those conditions could have on the field sobriety tests or

his inability to perform the breathalyzer test, we conclude that under no

circumstances would the treating physician‟s testimony “establish facts warranting

relief.”   Freeman, 971 A.2d at 201; Cf. Bethea, 170 A.3d at 196 (abuse of

discretion where trial court found witness‟s affidavit, even if true, would warrant

no relief, though witness “could have testified that the government‟s sole

eyewitness to the murder could not have seen what she said she saw”). Therefore,

appellant has failed to demonstrate prejudice.



       For the aforementioned reasons, the judgment of the court is hereby



                                Affirmed.
