State of Maine v. Raymond N. Rourke III , 2017 Me. LEXIS 12 ( 2017 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 10 Docket: Sag-16-48
Argued: November 8, 2016
Decided: January 17, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
RAYMOND N. ROURKE III
HJELM, J.
[¶1] Raymond N. Rourke III appeals from a judgment of conviction for
operating under the influence with one prior conviction (Class D), 29-A M.R.S.
§ 2411(1-A)(B)(1) (2016), entered in the trial court (Sagadahoc County,
Horton, J.) after a jury trial. Rourke argues that the court abused its discretion
by excluding expert testimony that certain chemicals, if present in Rourke’s
system, could have resulted in a falsely elevated breath-alcohol test.1 We
affirm the judgment.
1 We are unpersuaded by Rourke’s additional argument, to the extent that it is preserved, that
overlapping testimony from two law enforcement officers about field sobriety tests administered to
Rourke was unfairly prejudicial or needlessly cumulative and therefore subject to exclusion
pursuant to M.R. Evid. 403. We do not address that contention further.
2
I. BACKGROUND
[¶2] Viewing the evidence in the light most favorable to the State, the
jury could rationally have found the following facts beyond a reasonable
doubt. See State v. Fay, 2015 ME 160, ¶ 2, 130 A.3d 364.
[¶3] On August 2, 2014, around 2:00 a.m., Lieutenant Frederick M.
Dunn of the Topsham Police Department stopped a vehicle for speeding.
Dunn smelled the odor of alcohol coming from the car and observed that the
driver, Raymond N. Rourke III, had bloodshot eyes. Rourke acknowledged
that he had been drinking wine earlier that evening. After a second officer
arrived, Dunn administered three field sobriety tests, including the horizontal
gaze nystagmus (HGN) test. At Dunn’s request, the second officer repeated
the HGN test. Rourke showed signs of impairment during the field sobriety
tests, and Dunn arrested him for operating under the influence.
[¶4] After transporting Rourke to the police station, Dunn, who is
certified to operate breath-alcohol testing equipment, obtained a breath
sample from Rourke using an Intoxilyzer 8000 instrument. A display on the
Intoxilyzer indicated “radio frequency interference,” and the instrument shut
down. Dunn restarted the Intoxilyzer, and Rourke provided two more breath
samples. This time, the Intoxilyzer did not produce an error message, but
3
rather reported a final result of 0.11 grams of alcohol per 210 liters of breath.2
While chatting with Dunn at the police station, Rourke mentioned that he was
a mechanic and had been working at his place of employment that evening
before the traffic stop.
[¶5] In early September 2014, Rourke was charged by complaint with
one count of operating under the influence with one prior conviction
(Class D), 29-A M.R.S. § 2411(1-A)(B)(1).3 He pleaded not guilty to the charge.
A jury trial was held over two days in January 2016, where the parties
presented evidence consistent with the facts described above.
[¶6] During the trial, Rourke sought to present expert testimony from
Patrick Demers, who has training and experience in pharmacy and forensic
chemistry. In a report that Rourke had provided to the State before trial, see
M.R.U. Crim. P. 16A(b)(2), Demers asserted that “for several hours prior” to
Rourke’s arrest, Rourke had been working with automotive chemicals
containing hydrocarbons, ketones, and toluene, which, when inhaled, can
“result in a falsely elevated reading on [an] Intoxilyzer.” The State filed a
pretrial motion to exclude Demers’s testimony pursuant to M.R. Evid. 403,
2 A person is guilty of OUI if he or she operates a motor vehicle “[w]hile having an alcohol level
of 0.08 grams or more of alcohol per . . . 210 liters of breath.” 29-A M.R.S. § 2411(1-A)(A)(2)
(2016).
3 At trial, the parties stipulated that Rourke had one prior OUI conviction within the past ten
years.
4
arguing that Demers had no basis to testify as to whether hydrocarbons or
similar chemicals were present in Rourke’s body when he took the breath test.
[¶7] At trial, after conducting a voir dire examination of Demers outside
of the jury’s presence, see M.R. Evid. 705(b), the court granted the State’s
motion to exclude Demers’s testimony about the possible effect of interferent
chemicals on Rourke’s breath-alcohol test. As the basis for that decision, the
court found, among other things, that although Demers had conducted
laboratory experiments that demonstrated a correlation between exposure to
hydrocarbon chemicals and a positive breath-test result, the experiments
involved an Intoxilyzer model that predated the one used in this case. The
court also determined that there was only “generalized evidence” about the
nature and extent of Rourke’s exposure to interferent chemicals, such that a
jury could not reasonably determine “the level of [chemicals] in [Rourke’s]
. . . breath or the rate at which he might have been emitting” them when the
Intoxilyzer test was administered. The court concluded, based on those
findings, that the probative value of Demers’s proffered opinion testimony
was “drastically outweighed by [its] lack of reliability . . . and the potential to
confuse the jury.”4
4 Later in the trial, without objection, Rourke presented testimony from Demers on other topics,
including the mechanics and limitations of the Intoxilyzer instrument.
5
[¶8] The jury ultimately returned a guilty verdict, and the court
sentenced Rourke to a jail term of ninety days, with all but seven days
suspended, followed by one year of probation; a $700 fine; and a three-year
license suspension. See 29-A M.R.S. § 2411(5)(B) (2016). Rourke timely
appealed. See M.R. App. P. 2(b)(2)(A); 15 M.R.S. § 2115 (2016).
II. DISCUSSION
[¶9] Rourke argues that the court abused its discretion by excluding
Demers’s expert opinion that certain chemicals, if present in Rourke’s system,
could have compromised the reliability of his breath-alcohol test result.
[¶10] Although the court stated that it was excluding Demers’s
testimony pursuant to Rule 403, which was the primary basis for the State’s
motion in limine and argument during voir dire, the court’s reasoning also
implicates M.R. Evid. 702. That Rule provides, “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 such testimony will help the trier of fact
to understand the evidence or to determine a fact in issue.” Id. We review a
ruling on the admissibility of expert testimony for an abuse of discretion.
See State v. Diana, 2014 ME 45, ¶ 35, 89 A.3d 132; State v. Ericson,
2011 ME 28, ¶ 12, 13 A.3d 777.
6
[¶11] For evidence to be admissible pursuant to Rule 702, a court must
find that it “is relevant in accordance with M.R. Evid. 401, and . . . will assist
the trier of fact in understanding the evidence or determining a fact in issue.”
Ericson, 2011 ME 28, ¶ 11, 13 A.3d 777 (quotation marks omitted). Before
engaging in this inquiry, however, a court must make a preliminary finding
that the testimony is reliable. See id. Indicia of reliability include “whether
any studies tendered in support of the testimony are based on facts similar to
those at issue; . . . whether the hypothesis of the testimony has been subject to
peer review; . . . [and] whether an expert’s conclusion has been tailored to the
facts of the case.” Id. ¶ 12 (quotation marks omitted). Expert testimony that
is not reliable has “no probative value,” id. ¶ 14, and cannot “satisfy the
evidentiary requirements of relevance and helpfulness, and of avoidance of
prejudice to [the opposing party] or confusion of the fact-finder,” State v.
Boutilier, 426 A.2d 876, 879 (Me. 1981) (citing M.R. Evid. 402, 403, 702).
[¶12] For the following two reasons, we conclude that given the
particular factual circumstances in this case, the court acted within the
bounds of its discretion by excluding Demers’s testimony about the effect of
interferent chemicals on breath-testing equipment and test results produced
by that equipment.
7
[¶13] First, the “studies tendered in support” of Demers’s opinion were
not “based on facts similar to those at issue” here. Ericson, 2011 ME 28, ¶ 12,
13 A.3d 777. Demers testified during voir dire that his conclusion about the
effect of hydrocarbon chemicals on breath-testing equipment was largely
based on laboratory experiments he had conducted at least twenty-five years
earlier, where subjects produced positive breath-alcohol test results after
inhaling paint thinner. As the court found, however, Demers’s experiments
did not involve the Intoxilyzer 8000, which was the device used in this case.5
The court reasonably determined that it could not assume that the
Intoxilyzer 8000 reacted to hydrocarbons in the same way as the model used
in Demers’s experiments.
[¶14] Further, although not expressly cited by the court in making its
ruling, the court was presented with additional evidence—beyond the
differences in testing equipment—that supported its basic reasoning that
Demers’s analysis was not based on facts and circumstances similar to those
at issue here. For example, Demers’s experiments involved the intentional
inhalation of paint thinner in a laboratory, rather than ambient exposure to
5 Demers testified during voir dire that his experiments were based on the Intoxilyzer 4011 and
5000 models. In testimony presented after the court made its ruling on the State’s motion in limine,
Demers acknowledged that he does not own, is not certified in, and has never even operated an
Intoxilyzer 8000.
8
chemicals in an industrial environment. Although Demers asserted that there
is literature that supports his hypothesis that there is a correlation between
industrial exposure to hydrocarbons and a positive breath-alcohol test, he was
unable to identify the nature of the literature or whether it had been subject
to peer review.6
[¶15] These material differences between the studies that formed the
basis for Demers’s opinion and the facts of this case, combined with the
absence of meaningful evidence regarding the reliability of the authority he
relied on, are factors that by themselves support the court’s discretionary
decision to exclude Demers’s expert testimony. See Ericson, 2011 ME 28, ¶ 12,
13 A.3d 777.
[¶16] Second, Rourke’s offer of proof was not sufficient to demonstrate
the relevance of Demers’s opinion to the facts at issue in the case, because the
proffer did not did not include a description of the degree to which Rourke
was exposed to hydrocarbon chemicals. Demers offered an opinion that if
6 As further support for his hypothesis about the effect of ambient exposure to hydrocarbon
chemicals, Demers referred anecdotally to an incident where a worker produced a positive
breath-alcohol test after cleaning up a paint solvent spill at a sewer treatment plant. Demers
acknowledged, however, that in that incident officials merely “surmised that it was hydrocarbon
material that [a]ffected the breath-testing device.” (Emphasis added.) Accordingly, although the
incident involved circumstances that may have been similar to those in this case, the evidence was
ultimately too speculative to serve as a reliable basis for Demers’s expert opinion, and this
anecdotal evidence did not render the court’s order erroneous. Cf. State v. Tellier, 526 A.2d 941,
944 (Me. 1987) (stating that expert testimony was properly excluded when the testimony “was so
. . . speculative that its relevance and probative value was virtually nil.”).
9
hydrocarbons or similar chemicals were in Rourke’s system, Demers “would
expect to see a contribution to a blood[-]alcohol test result.” Because
Demers’s opinion was framed as a hypothetical, it could be relevant only if it
were supported by evidence that demonstrated the fact or extent of Rourke’s
exposure to hydrocarbons—in other words, evidence that linked Demers’s
hypothetical opinion to Rourke. See State v. Hatt, 2002 ME 166, ¶ 9, 810 A.2d
415 (stating that expert testimony was properly excluded when the
proponent’s offer of proof was insufficient to demonstrate the testimony’s
relevance); State v. Collin, 441 A.2d 693, 695-96 (Me. 1982) (stating that
expert testimony was properly excluded when there was no evidence in the
record, or any offer of proof, linking the testimony to the defendant).
[¶17] Although, here, the court was presented with Dunn’s testimony
that Rourke had been working as a mechanic on the evening before the traffic
stop, there was neither testimony nor a proper offer of proof describing
Rourke’s workspace or the types of chemicals he regularly used, if any.7 As
the court correctly determined, the record contains—at best—only
“generalized evidence” that Rourke worked in an environment where
7 For example, during voir dire, Rourke’s attorney asserted that he had photographs depicting
“the scene of the shop” where Rourke worked. Because the proffer did not demonstrate a
foundational basis necessary for the admission of the photographs, however, his assertion does not
constitute a proper offer of proof. See State v. Williams, 462 A.2d 491, 492 (Me. 1983) (“An offer of
proof must not only detail the proposed [evidence] but must also support the admissibility of that
[evidence].”).
10
hydrocarbons could have been present. In the absence of an adequate offer of
proof linking Demers’s opinion with Rourke, the court was entitled to
conclude that the opinion was not relevant and would not assist the jury
either in its evaluation of Rourke’s breath-alcohol test results or in its
determination of whether he was impaired. See Hatt, 2002 ME 166, ¶ 9,
810 A.2d 415; Collin, 441 A.2d at 695-96. The court therefore did not abuse
its discretion by excluding Demers’s expert opinion based on its separate
determination that there was only “generalized evidence” about the extent of
Rourke’s exposure to chemicals that could have affected his breath test.
[¶18] In sum, the court did not abuse its discretion by excluding
Demers’s testimony about the effect of hydrocarbons on the breath-alcohol
test results because there was not a sufficient factual foundation to link
Demers’s testimony with the facts of this case, as shown by evidence of
Demers’s lack of familiarity with the Intoxilyzer 8000 instrument, the
difference between the circumstances of Demers’s experiments and the
circumstances at issue here, and the absence of a sufficient offer of proof
regarding Rourke’s alleged exposure to hydrocarbons.8
8 Further, contrary to Rourke’s argument, the exclusion of Demers’s expert opinion pursuant to
the Maine Rules of Evidence did not infringe on Rourke’s Sixth Amendment right to compulsory
process under the circumstances in this case. See State v. Cross, 1999 ME 95, ¶ 7, 732 A.2d 278 (“[A]
[d]efendant’s Sixth Amendment right to compulsory process does not provide him with ‘an
11
The entry is:
Judgment affirmed.
Christopher Ledwick, Esq. (orally), Brunswick, for appellant Raymond N.
Rourke III
Jonathan R. Liberman, Dep. Dist. Atty. (orally), District Attorney’s Office, Bath,
for appellee State of Maine
Sagadahoc County Unified Criminal Docket docket number CR-2014-746
FOR CLERK REFERENCE ONLY
unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.’” (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)).