State v. Venessa Sarkisian-Kennedy ( 2020 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2020 VT 6
No. 2018-368
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Windham Unit,
Criminal Division
Venessa Sarkisian-Kennedy September Term, 2019
Michael R. Kainen, J.
David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Joshua O’Hara, Appellate Defender, Montpelier, for
Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Skoglund, J. (Ret.),
Specially Assigned
¶ 1. EATON, J. Following a jury trial, defendant Venessa Sarkisian-Kennedy was
convicted of operating a vehicle under the influence of alcohol, second offense (DUI-2), and
criminal refusal of an evidentiary breath test (refusal). She seeks reversal of these convictions on
appeal, arguing that the trial court erred in: (1) admitting—subject to what she contends was an
ineffective limiting instruction—the results of a horizontal gaze nystagmus (HGN) test offered by
the State absent scientific, foundational testimony from an expert witness; and (2) allowing the
State to present evidence of her refusal to consent to a preliminary breath test (PBT) on the theory
that it was relevant to consciousness of guilt. We reverse and remand the refusal conviction and
affirm the DUI-2 conviction.
¶ 2. Prompted by concerns that defendant was driving with a suspended license, a
Wilmington police officer made contact with her on the night of January 26, 2018. During this
encounter, officers developed a further suspicion that defendant had been driving under the
influence of alcohol. In connection with the ensuing DUI investigation, defendant participated in
field-sobriety tests, including an HGN test. However, upon request, she declined to provide police
with either preliminary or evidentiary samples of her breath. She was subsequently charged with
DUI-2, refusal, and operating a vehicle under license suspension for DUI (OLS-DUI). Prior to
trial, defendant pleaded guilty to OLS-DUI and admitted the existence of her prior DUI conviction,
an essential element of DUI-2. She also filed two motions in limine, seeking to preclude the State
from offering evidence of the HGN test results and her refusal to take the PBT. Before describing
the grounds for defendant’s motions, some background on the HGN and PBT tests and the legal
framework governing their administration is helpful.
¶ 3. The HGN is a field-sobriety test in which officers look for involuntary jerking of
the eyes—known as nystagmus—as a subject tracks an object across his or her field of vision. See
State v. Wilt, 2014 VT 114, ¶ 9 n.2, 198 Vt. 1, 109 A.3d 439; State v. Blouin, 168 Vt. 119, 120
n.1, 716 A.2d 826, 827 n.1 (1998). An “overabundance” of eye twitching suggests possible
intoxication. Blouin, 168 Vt. at 120 n.1, 716 A.2d 826, 827 n.1. While Vermont’s DUI statute “is
silent with respect to physical sobriety tests such as the HGN,” see id. at 122, 716 A.2d at 828, our
case law provides that, as with other physical sobriety exercises, an officer may request an HGN
test where he or she can “point to specific articulable facts which, taken together with rational
inferences from these facts, reasonably warrants the intrusion.” State v. Gray, 150 Vt. 184, 191,
552 A.2d 1190, 1194 (1988).
¶ 4. In contrast, the administration of both preliminary and evidentiary blood tests is
governed by statute. See 23 V.S.A. §§ 1202(a)(3), 1203(f). The PBT is “an investigatory tool
used by officers in the field to ascertain whether probable cause exists to believe that an individual
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has been driving under the influence of alcohol.” State v. Schapp, 2019 VT 27, ¶ 11, __ Vt. __,
212 A.3d 1226 (quotation omitted). An officer may request a PBT if he or she “has reason to
believe that a person may be” or has been driving under the influence. 23 V.S.A. § 1203(f). “The
results of this preliminary screening test may be used for the purpose of deciding whether an arrest
should be made and whether to request an evidentiary test and shall not be used in any court
proceeding except on those issues.” Id. But an evidentiary breath test, “as its name implies, ‘is
one that is intended to be introduced as evidence.’ ” Schapp, 2019 VT 27, ¶ 12 (quoting 23 V.S.A.
§ 1200(3)). Because an evidentiary breath test may be used as substantive evidence of guilt, an
officer may only request one when he or she “has reasonable grounds to believe” that a person was
driving under the influence. Id.; 23 V.S.A. § 1202(a)(3). “Reasonable grounds” are “akin to
probable cause.” State v. Perley, 2015 VT 102, ¶ 18, 200 Vt. 84, 129 A.3d 93.
¶ 5. In her motion in limine, defendant argued that HGN tests are scientific in nature
and, as such, subject to the admissibility standards set forth in Vermont Rule of Evidence 702.
Absent testimony from a witness qualified as a scientific expert, she contended, the State could
not admit evidence pertaining to the HGN test. The State responded that an administering officer’s
testimony regarding HGN results is admissible, without more, with respect to a refusal charge—
specifically, the jury’s determination of whether the officer had reasonable grounds to request an
evidentiary breath sample. 23 V.S.A. § 1202(a)(3). It urged the court to conclude that HGN
evidence is categorically admissible for this purpose on the basis of decisions rendered by appellate
courts in other jurisdictions, a procedure outlined by this Court in State v. Kinney, 171 Vt. 239,
249-250, 762 A.2d 833, 842-43 (2000).
¶ 6. In ruling on the motion, the court did consider decisions from other jurisdictions.
It also cited the HGN-related testimony of a police officer taken in a separate case apparently then
pending before the same judge, as well as a “series of studies”—the provenance of which is unclear
on this record, as the court did not hold an evidentiary hearing on the motion—evaluating the HGN
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test’s known rate of error. On this basis, the court concluded that the HGN test satisfied two of
Rule 702’s three prongs: it was “based on sufficient facts and data” and “the product of reliable
techniques and methods.” See V.R.E. 702. However, the court went on to hold that, absent the
testimony of “someone like” the officer who testified in the other case before the court, it could
not be assured that those techniques and methods had been applied reliably to the facts of the case
at bar. On this basis, the court concluded that the officer could testify only that he was trained to
carry out “an exercise which observes eye movements,” he administered this test to defendant in
accordance with his training, and what he subsequently observed “can be associated with
impairment.” The court further indicated that it would issue a limiting instruction explaining that,
while the jury could use the HGN evidence to evaluate the reasonableness of the officer’s request
for the evidentiary breath test, jurors could not consider it with regard to the underlying issue of
defendant’s impairment.
¶ 7. Defendant renewed this motion prior to the commencement of trial, arguing that
the limited scope of the testimony allowed under the court’s ruling was still an admission of the
test absent an appropriate scientific foundation. She further indicated her belief that the HGN test
result was a “crucial piece of evidence” in the State’s DUI-2 case, and, as a result, a limiting
instruction would not cure the prejudice resulting from its admission in the absence of expert
testimony. The court declined to reconsider its ruling, but expanded on its prior reference to the
HGN testimony it heard in the other case, where “the 702 issue was pretty heavily litigated,” noting
that the officer who testified “is not just your regular road cop, but . . . has been all over the country
taking medical trainings and understands quite a bit.” The court clarified that the other decision
had yet to issue but would “probably” conclude that HGN evidence was admissible based on that
officer’s testimony and the court’s consideration of appellate decisions from other jurisdictions.
Reiterating that, in the absence of expert testimony, the evidence was inadmissible with respect to
the DUI-2 charge, the court continued to hold that it was admissible with respect to the
4
reasonableness of the officer’s request for an evidentiary breath test so long as it was not
“impugned with any type of scientific gloss.”
¶ 8. At this time, the court also ruled on defendant’s pending motion to exclude
evidence regarding her refusal to provide a preliminary breath sample. Defendant argued that the
language of 23 V.S.A. § 1203(f) precludes the admission of a driver’s refusal to submit to a PBT—
not just the numerical result of a PBT—as substantive evidence. The court, rejecting this
argument, held that testimony regarding defendant’s refusal to perform the PBT was evidence of
consciousness of guilt, and therefore relevant and admissible.
¶ 9. During the trial, the following evidence was presented through the testimony of
defendant and three police officers. Officer Corey Briggs was on patrol in Wilmington on the
evening of January 26, 2018, when he recognized a passing vehicle as belonging to—and being
driven by—defendant, who he knew. Because he believed defendant’s license was suspended,
Officer Briggs began to follow her vehicle. He observed no erratic operation during this time;
rather, defendant proceeded to signal appropriately, turn into a municipal lot, and park her car.
¶ 10. Officer Briggs followed, making contact with defendant to address his concerns
that defendant was driving while under suspension. Defendant initially denied knowledge of her
license suspension, indicating that she had received no paperwork to this effect, but subsequently
conceded that her license was likely suspended. Although he did not testify that he detected an
odor of alcohol during this exchange, Officer Briggs was suffering from a cold at the time and
could not smell anything.
¶ 11. During the stop, Officer Briggs’s colleague, Officer Patrick Brewer, arrived on
scene as backup, heralding a marked change in defendant’s demeanor. Defendant was agitated,
combative, and belligerent toward Officer Brewer; at trial, she acknowledged that she was upset
with him following an earlier professional encounter. After other efforts to de-escalate defendant
were met with no success, Officer Brewer placed her in handcuffs. Upon being thus detained,
5
defendant turned to face Officer Brewer and began to curse at him. At this proximity, he could
smell the odor of intoxicants on her breath, leading him to develop suspicion that she had been
driving under the influence.
¶ 12. Officer Brewer, after considering defendant’s contentious attitude toward him and
Officer Briggs’s impaired olfactory abilities, sought the assistance of Officer Samuel Morris of the
nearby Dover Police Department to administer field-sobriety exercises at the Wilmington station.
Although this ended Officer Brewer’s direct involvement in the investigation, defendant’s
demeanor remained combative and slightly argumentative.
¶ 13. Officer Morris has substantial training and experience in DUI processing. Upon
initially sitting between twenty-four and thirty inches from defendant, Officer Morris smelled the
odor of alcohol. At the start of the field-sobriety tests, standing less than eighteen inches away
from defendant, he continued to smell alcohol. When he advised defendant of his observations,
she “exhaled very aggressively” in his face, resulting in a “very, very strong” odor of alcohol. She
attributed the smell to having “bad teeth” and having recently consumed fruit. In Officer Morris’s
training and experience, neither factor cited by defendant would cause a person’s breath to smell
of alcohol. However, defendant denied having consumed alcohol in the last several days.
¶ 14. Officer Morris administered the HGN test, along with the walk-and-turn and one-
leg stand, both of which are physical sobriety exercises. With regard to the HGN—and consistent
with the court’s order—Officer Morris testified on direct examination only that he administered,
in accordance with his training and experience, a field-sobriety test which involved looking at
defendant’s eyes, and that what he observed can be associated with alcohol impairment. The court
immediately admonished the jury:
With respect to the movement he saw in the eyes, you are to look at
that only with respect to the reasonableness of his request for an
evidentiary test. You are not to take it with respect to impairment.
Okay? So, there are two parts of the case. And you can only look
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at it with respect to the reasonableness of the request, not with
respect to impairment.
During cross-examination, defendant’s attorney asked Officer Morris whether he was aware of
other causes for the “eye movement” he testified about on direct examination. In response, Officer
Morris agreed that there “are many, many causes for nystagmus . . . . and that’s one of the reasons
we go by the totality of the circumstances.” He explained that, for this reason, officers are taught
to inquire about naturally occurring conditions which could cause nystagmus and to check for
resting nystagmus and pupil size before administering an HGN test. Officer Morris could not
recall whether he inquired of defendant regarding any such conditions, but explained that he
checked for resting nystagmus and equal pupil size at the start of the exercise. When asked to
define nystagmus, Officer Morris explained that “nystagmus is . . . on the most basic level, a
jerking of the eye.” He noted that some individuals have “resting nystagmus,” while others
experience nystagmus as a result of reading for a long time, drug use, or head injury. Explaining
that he was “not the expert of the eyeball,” Officer Morris acknowledged that there are many
different types and causes of nystagmus.
¶ 15. Officer Briggs—who observed the tests as Officer Morris administered them—saw
defendant sway slightly as she stood to take the HGN, which he took as a sign of impairment.
However, he explained that he was not in a position to observe the results of the HGN test Officer
Morris administered. He did notice that defendant’s eyes were bloodshot and watery, though he
acknowledged this may have been caused by defendant crying.
¶ 16. Officer Morris evaluated defendant’s performance on the walk-and-turn and one-
leg stand exercises, both of which, he explained, are intended to evaluate a subject’s mental
functioning in relation to his or her physical ability. Officer Briggs noticed defendant both step
off the position where Officer Morris directed her to stand and sway as she stood. When instructed
to count out loud, defendant skipped the number twelve. Officer Morris felt that defendant’s
7
overall performance on the tests was “slow and deliberate,” indicating impairment; in his
experience, subjects normally complete these exercises more quickly.
¶ 17. After considering the results of the field-sobriety tests in connection with the
totality of the circumstances, it was Officer Morris’s opinion that defendant was moderately to
severely impaired. “A very large portion” or “the majority” of his opinion was based on the HGN
results, although he also considered other indicia of impairment and noted one “clue” on the walk-
and-turn. Based on his own, more limited, observations, Officer Briggs believed defendant was
slightly to moderately impaired.
¶ 18. At this point, Officer Morris requested that defendant provide a preliminary sample
of her breath. She responded that she would prefer not to, based on concerns about accuracy,
instead indicating her preference for a blood test. A blood test was not available at the police
station. Officer Morris took defendant’s response as a refusal.
¶ 19. Defendant was subsequently processed for DUI. When Officer Briggs asked
defendant whether she would take an evidentiary breath test, defendant responded by holding up
her middle finger toward him. Defendant agreed, based on this response, that she declined to take
the evidentiary breath test.
¶ 20. At the close of the evidence, defendant requested that the court reiterate, in its
instructions to the jury, the limiting instruction given with respect to the HGN test. The court
declined to give an additional limiting instruction but held that the parties could comment on the
HGN in closing arguments only with respect to the refusal count. In its closing remarks, the State
noted that defendant’s refusal to take an evidentiary breath test was “another piece of evidence
you can consider in determining beyond a reasonable doubt that defendant was operating under
the influence of intoxicating liquor.” Although the State’s attorney commented separately on
defendant’s PBT refusal, he noted it was “just a preliminary test, and the result would not have
been admissible.”
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I. Admission of HGN Test Result
¶ 21. Defendant argues that, absent expert testimony, the trial court’s ruling admitting
limited evidence regarding the HGN test violated Vermont Rule of Evidence 702. She further
contends that, in relying on testimony offered in a separate case, the trial court violated Vermont
Rule of Evidence 605, which prohibits a judge from acting as a witness in a trial over which he or
she presides. The State responds that HGN test results are admissible without expert testimony
where they are offered only to show the reasonableness of an officer’s belief that a defendant was
driving under the influence. It urges us to conclude that defendant was not prejudiced by the trial
court’s reliance on testimony from another proceeding, arguing that the court used that testimony
to rule in defendant’s favor.
¶ 22. “Our standard of review on evidentiary rulings is deferential.” State v. Herring,
2010 VT 106, ¶ 4, 189 Vt. 211, 19 A.3d 81. We will reverse a trial court’s decision to admit
evidence only if the appellant can show that the court withheld or abused its discretion. State v.
Gemler, 2004 VT 3, ¶¶ 11, 13, 176 Vt. 257, 844 A.2d 757. “Absent such a showing, we will not
disturb a reasonable discretionary ruling of the trial court, even if another court might have reached
a different conclusion.” Herring, 2010 VT 106, ¶ 4 (quotation omitted).
¶ 23. Under the Vermont Rules of Evidence, where
scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion
or otherwise, if (1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.
V.R.E. 702. Trial courts therefore bear the responsibility of acting as “gatekeepers who screen
expert testimony[,] ensuring that it is reliable.” USGen New Eng., Inc. v. Town of Rockingham,
2004 VT 90, ¶ 19, 177 Vt. 193, 862 A.2d 269. Because Rule 702, in its original form and as
9
amended, is substantively identical to Federal Rule of Evidence 702, Vermont courts apply the
analytical framework outlined by the United States Supreme Court in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993). See State v. Streich, 163 Vt. 331, 342-43, 658 A.2d 38, 46-47
(1995); Reporter’s Notes—2004 Amendments, V.R.E. 702.
¶ 24. Under Daubert, “reliability is assured if the evidence is supported by ‘scientific
knowledge.’ ” USGen New Eng., Inc., 2004 VT 90, ¶ 16 (quoting Daubert, 509 U.S. at 589-90).
“Scientific knowledge” is comprised of inferences or assertions derived through the scientific
method. Id. The following nonexhaustive list of factors identified in Daubert assists courts in
determining whether expert testimony is sufficiently supported by scientific knowledge:
(1) whether the scientific technique or methodology involved can be
tested; (2) whether the technique or methodology has been subjected
to peer review and publication; (3) the known or potential rate of
error particular to the technique or methodology; and (4) whether
the technique or methodology has been generally accepted in the
scientific community.
Id. (citing Daubert, 509 U.S. at 593-94).
¶ 25. Although only an expert witness “may testify on the basis of facts or data other than
those directly perceived by him,” lay witnesses, too, may offer testimony in the form of an opinion
or inference, provided it is “(a) rationally based on the perception of the witness, (b) helpful to a
clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not
based on scientific, technical or other specialized knowledge within the scope of Rule 702.”
V.R.E. 701; see also Reporter’s Notes, V.R.E. 701—2004 Amendment (observing that Rule 701
“puts counsel on notice that a witness must be qualified under Rule 702 if the opinion of the witness
goes beyond common experience and should be based upon specialized knowledge”). This Court
has long recognized that, “[w]here alcohol is involved . . . a lay person, on the basis of his personal
observations, is competent to give his opinion as to the sobriety of an individual, because it takes
10
no special scientific knowledge or training to recognize intoxication.” State v. Rifkin, 140 Vt.
472, 476, 438 A.2d 1122, 1124 (1981) (citation omitted).
¶ 26. The difference between expert and lay testimony is key to understanding the
distinct schools of thought that have developed across jurisdictions on the foundational
prerequisites to admission of HGN evidence.1 See Hulse v. State, Dep’t of Justice, Motor Vehicle
Div., 1998 MT 108, ¶ 64, 961 P.2d 75 (recognizing that “throughout other jurisdictions, three
different lines of cases concerning the admissibility of HGN test results have evolved”). Some
courts conclude that the HGN test is analogous to other standardized field-sobriety tests in that it
is nonscientific in nature, and, as a result, foundational expert testimony is unnecessary. Id.; see
also, e.g., State v. Murphy, 451 N.W.2d 154, 157-158 (Iowa 1990) (concluding that testimony of
properly trained police officer was sufficient to admit HGN evidence, despite exam’s
“pretentiously scientific name,” because “[t]he ease with which the test may be administered and
evaluated obviates the need for a more scientific interpretation”); State v. Sullivan, 426 S.E.2d
766, 769 (S.C. 1993) (holding “that evidence resulting from HGN tests, as from other field sobriety
tests, is admissible when the HGN test was used to elicit objective manifestations of soberness or
insobriety”). Others hold that the HGN test is scientific in nature, but foundational expert
testimony is unnecessary in every case because the reliability of the test has been established.
Hulse, 1998 MT 108, ¶ 64; see, e.g., State v. Garrett, 811 P.2d 488, 490 (Idaho 1991) (looking to
decisions from other jurisdictions to support conclusion that HGN evidence is reliable “[b]ecause
the reliability of a test based on scientifically tested phenomenon should not vary from jurisdiction
to jurisdiction”). As the Supreme Court of North Dakota has observed, “[i]n effect, based upon
1
Notably, however, there exists broad consensus that the purpose for which such evidence
may be admitted is circumscribed. See State v. Ito, 978 P.2d 191, 198-99 (Haw. Ct. App. 1999)
(collecting cases holding that “HGN test results may be admitted as evidence of probable cause to
arrest a person for DUI, although not to prove intoxication or that a defendant’s [blood-alcohol
content] exceeded a particular percentage”).
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the conclusions of other courts in other cases, these courts have held the HGN test scientifically
reliable as a matter of law.” City of Fargo v. McLaughlin, 512 N.W.2d 700, 705 (N.D. 1994)
(collecting cases). Finally, a third line of cases “require HGN test results to be scientifically
validated in each individual case, or at least recognized as scientifically valid once by an appellate
court within the jurisdiction.” Id. at 706 (quotation omitted); see, e.g., State v. Dahood, 814 A.2d
159, 168 (N.H. 2002) (concluding that HGN test satisfies Daubert and noting, “under the doctrine
of stare decisis, our decision today will be binding and, as a result, courts will not be required to
establish the scientific reliability of the HGN test . . . in future cases”).
¶ 27. In determining where we fall on this spectrum, we first conclude that the
physiological underpinnings of the observations underlying the HGN exam fall well outside the
ken of the layperson. We agree with the Supreme Court of Tennessee, which explained that the
HGN test “differ[s] fundamentally” from other field-sobriety exercises “because the witness must
necessarily explain the underlying scientific basis of the test in order for the testimony to be
meaningful to a jury.” State v. Murphy, 953 S.W.2d 200, 202 (Tenn. 1997). Physical field-
sobriety exercises,
in marked contrast, carry no such requirement. For example, if a
police officer testifies that the defendant was unable to walk in a
straight line or stand on one foot or count backwards, a jury needs
no further explanation of why such testimony is relevant to or
probative on the issue of the defendant’s condition. A juror can rely
upon his or her personal experience or otherwise[-]obtained
knowledge of the effects of alcohol upon one’s motor and mental
skills to evaluate and weigh the officer’s testimony. However, if a
police officer testifies that the defendant exhibited nystagmus, that
testimony has no significance to the average juror without an
additional explanation of the scientific correlation between alcohol
consumption and nystagmus. In effect, the juror must rely upon the
specialized knowledge of the testifying witness and likely has no
independent knowledge with which to evaluate the witness’s
testimony.
Id. at 202-03; see also Commonwealth v. Sands, 675 N.E.2d 370, 373 (Mass. 1997) (observing
that while “[a] lay juror understands that intoxication leads to diminished balance, coordination,
12
and mental acuity from common experience and knowledge,” testimony of result of HGN test
relies on “an underlying assumption” regarding relationship between nystagmus and intoxication
which is outside jurors’ experience). Although we continue to hold that “it takes no special
scientific knowledge or training to recognize intoxication,” horizontal gaze nystagmus is not
among the personal observations—like forgetting a number while counting or swaying while
standing—that may support a lay opinion on that topic. Rifkin, 140 Vt. at 476, 438 A.2d at 1124.
Where, as here, “a physical process is obscure, abstruse[,] or so far outside common experience
that lay jurors can only speculate about it[,] expert testimony is required to explain the process.”
S. Burlington Sch. Dist. v. Calcagni-Frazier-Zajchowski Architects, Inc., 138 Vt. 33, 46, 410 A.2d
1359, 1365 (1980).
¶ 28. Having decided that the HGN test is scientific in nature, we must now determine
whether the reliability of the test is established or whether expert testimony is required to lay a
scientific foundation for its results in every case. We begin by observing that HGN evidence has
never been recognized as scientifically valid by this Court. See, e.g., State v. Alzaga, 2019 VT 75,
¶¶ 13-16, __ Vt. __, __ A.3d __ (declining to reach this question). However, we have determined
that, under certain circumstances, where the admissibility of a “category of evidence . . . in
particular types of cases that are recurring” is at issue, “both the trial court and this Court can fully
evaluate the reliability and relevance of the evidence generally based on the decisions of other
appellate courts.” Kinney, 171 Vt. at 249, 762 A.2d at 841. But we may affirmatively rely upon
such decisions only to the extent their evaluation of the issue is “complete and persuasive.” Id. at
249, 762 A.2d at 841-42 (observing that “[w]e are not suggesting that the new standard for
admissibility has somehow become general acceptance among appellate courts”). We have
cautioned that “trial courts must take great care when relying on other court decisions to ensure
that they do not abdicate their responsibility as evidentiary gatekeepers.” State v. Forty, 2009 VT
118, ¶ 38, 187 Vt. 79, 989 A.2d 509. On appeal, this Court must apply the same rigor to its
13
analysis. See Kinney, 171 Vt. at 249, 762 A.2d at 841-42 (“Irrespective of the decisions of other
courts, the responsibility for determining the admissibility of evidence in Vermont courts remains
with our trial judges, and on appeal with this Court.”).
¶ 29. We do not find the analysis of other appellate courts on this issue sufficiently
“complete and persuasive” to support a conclusion about the reliability of HGN evidence. See id.
Rather, our review convinces us that the reliability of the HGN test is not a settled proposition,
either across jurisdictions or among the scientific community. People v. Leahy, 882 P.2d 321,
334-35 (Cal. 1994) (in bank) (declining to take judicial notice of decisions and studies concluding
that HGN evidence meets the “general acceptance” standard because “the conclusions of those
decisions and studies are by no means unchallenged, for there appears to exist substantial opposing
authority”); State v. Witte, 836 P.2d 1110, 1121 (Kan. 1992) (“The reliability of the HGN test is
not currently a settled proposition in the scientific community.”). Because here, as in Forty, there
is a “split of authority,” an adequate evidentiary record is necessary to make an informed decision
regarding the admissibility of HGN evidence in Vermont. Forty, 2009 VT 118, ¶ 39. Therefore,
we join those jurisdictions which hold that HGN evidence is inadmissible absent expert testimony.2
¶ 30. We find no merit in the State’s argument that the scientific validity of the HGN test
is not at issue where it is admitted to demonstrate the reasonableness of an officer’s belief that a
defendant was driving under the influence. Satisfaction of the gatekeeper function “requires a
binary choice” from the trial court—admit or exclude. USGen New Eng., Inc., 2004 VT 90, ¶ 26
(quotation omitted). The court’s ruling here, admitting the evidence but attempting to divest it of
its scientific character, did not meet that requirement and was an abuse of discretion. The fact that
2
Nothing in our decision today precludes this Court from determining, in a future case
and based on an adequate evidentiary record, that the scientific validity of aspects of the HGN test
is established as a matter of law and need not be supported by expert testimony. Until such time,
HGN evidence is inadmissible absent expert testimony sufficient to satisfy the court’s evidentiary
gatekeeper function.
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a showing of “reasonableness” is not so heavy a burden as the standard of proof required to convict
a defendant of DUI beyond a reasonable doubt does not relieve the State, as the proponent of the
evidence, from its burden under Rule 702.
¶ 31. We cannot conclude that this error was harmless. See V.R.Cr.P. 52 (defining
“[h]armless [e]rror” as one “which does not affect substantial rights”). An error is harmless only
where the reviewing court can find, “beyond a reasonable doubt[,] that the jury would have
returned a guilty verdict regardless of the error.” State v. Oscarson, 2004 VT 4, ¶ 30, 176 Vt. 176,
845 A.2d 337. “When the alleged error is admission of evidence, it is not harmless if there is a
reasonable possibility that the evidence complained of might have contributed to the conviction.”
Alzaga, 2019 VT 75, ¶ 14 (quotation omitted).
¶ 32. Here, Officer Morris testified that the HGN evidence formed the “majority” of the
basis for his opinion that defendant was impaired. Officer Morris relayed this conclusion to Officer
Briggs, who relied on it in determining that it was reasonable to request an evidentiary breath test.
Indeed, in closing, the State highlighted “the eye test, which goes to the officers’ collective
reasonable grounds for believing that defendant had been operating under the influence.” We find
more than a “reasonable possibility” that the HGN evidence may have contributed to defendant’s
refusal conviction. Alzaga, 2019 VT 75, ¶ 14. For this reason, the refusal conviction is reversed.
Because we so conclude, we do not reach defendant’s argument that the trial court violated Rule
605.3
3
Although we decline to rule on this issue, we do not condone the trial court’s decision to
rely on disputed evidence in a separate, undecided case then pending before it. While, as discussed
supra, ¶ 28, there are circumstances in which a trial court may assess the reliability of a category
of evidence on the basis of appellate decisions from other jurisdictions, there exists no
circumstance in which a trial court may assess the reliability of a category of evidence on the basis
of disputed evidence aliunde.
15
II. Limiting Instruction
¶ 33. Defendant argues that the court’s admonishment that the jury was to consider the
HGN evidence only with respect to the refusal conviction was ineffective for two reasons: because
the evidence bore directly on the ultimate issue in the DUI-2 charge, and because the court did not
tell the jury why it could not consider the HGN evidence with respect to the DUI-2 count.
Although we acknowledge that there exists some evidence jurors cannot cast from their minds,
even with the aid of a flawlessly crafted limiting instruction, we find the circumstances present
here insufficient to justify departure from the important presumption that juries follow courts’
instructions.
¶ 34. The State argues that defendant failed to preserve the two specific challenges to the
limiting instruction she raises on appeal, and, as a result, these claims are subject only to plain-
error review. Although “[c]ontentions not raised or fairly presented to the trial court are not
preserved for appeal,” see Lanphere v. Beede, 141 Vt. 126, 129, 446 A.2d 340, 341 (1982), “where
a litigant’s argument is clear enough for the trial court to evaluate it and for an opponent to respond
to it, the claim is adequately preserved.” State v. Mumley, 2009 VT 48, ¶ 18, 186 Vt. 52, 978 A.2d
6.
¶ 35. Here, prior to trial, defense counsel argued:
[e]ven though the court intends to issue a limiting instruction, that
will not cure the error here. And it’s a significant piece of evidence
in this case, I mean it’s—it is a crucial piece of evidence, I think.
And it will not be cured by the issuing of a limiting instruction, Your
Honor.
Defendant now contends that the limiting instruction was inadequate because the evidence at issue
bore directly on her guilt with respect to the DUI-2 charge, and because the court did not explain
why the distinction was being made. Defendant’s objection certainly preserved her concerns about
the strength of the evidence in question. As to the second portion of defendant’s appellate
argument, “such an exacting request is not required” below. State v. Groce, 2014 VT 122, ¶ 18,
16
198 Vt. 74, 111 A.3d 1273 (holding that objection was preserved for review where, although
defendant objected to testimony at trial, he did not request limiting instruction). Therefore,
defendant preserved her arguments regarding the limiting instruction.
¶ 36. In the absence of evidence to the contrary, we must assume that juries follow
limiting instructions as issued by trial courts. State v. Amidon, 2018 VT 99, ¶ 23, __ Vt. __, 198
A.3d 27. As United States Supreme Court has recognized, “[i]t is not unreasonable to conclude
that in many . . . cases the jury can and will follow the trial judge’s instructions to disregard such
information.” Bruton v. United States, 391 U.S. 123, 135 (1968). This “crucial assumption” is
fundamental to our jury trial system; indeed, “[w]ere this not so, it would be pointless for a trial
court to instruct a jury, and even more pointless for an appellate court to reverse a criminal
conviction because the jury was improperly instructed.” Parker v. Randolph, 442 U.S. 62, 73
(1979), abrogated on other grounds by Cruz v. New York, 481 U.S. 186 (1987). Therefore, we
abandon the presumption only where presented with “an overwhelming probability that the jury
will be unable to follow the court’s instructions, and a strong likelihood that the effect of the
evidence would be devastating to the defendant.” Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)
(quotations and citations omitted); see also Bruton, 391 U.S. at 135-36 (recognizing “some
contexts in which the risk that the jury will not, or cannot follow instructions is so great, and the
consequences of failure so vital to the defendant, that the practical and human limitations of the
jury system cannot be ignored”). Bruton found that circumstance based “on the fact that a
confession that incriminates an accomplice is so ‘inevitably suspect’ and ‘devastating’ that the
ordinarily sound assumption that a jury will be able to follow faithfully its instructions could not
be applied.” Lee v. Illinois, 476 U.S. 530, 542 (1986) (quoting Bruton, 391 U.S. at 136). This,
however, is not such a context.
¶ 37. The admonition at issue here bore the hallmarks of an effective limiting instruction.
It was clear and straightforward: defendant faced two charges, and the court instructed the jury
17
that it could consider the HGN evidence with respect to one charge, but not the other. See, e.g.,
State v. Smith, 2010 VT 15, ¶ 10, 187 Vt. 600, 992 A.2d 310 (mem.) (recognizing that instruction
must provide “clear and specific direction to the jury”). It was also prompt and decisive, following
immediately on the heels of the admission of the HGN evidence and repeated for emphasis. See,
e.g., State v. Webster, 2017 VT 98, ¶ 28, 206 Vt. 178, 179 A.3d 149 (noting, with respect to
curative instructions, that a “strongly worded and prompt admonition is preferred,” although “the
circumstances of each case must govern its merits” (quotations and brackets omitted)).
¶ 38. Defendant also argues that the instruction was substantively ineffective because it
did not explain why the jury should consider the HGN results with respect to the refusal count but
not the DUI-2 count. Both defendant and the dissent, post, ¶ 64, compare this case to State v.
Smith, in which we found “patently inadequate” a curative instruction which “was so vague as to
be pointless.” 2010 VT 15, ¶ 10. However, the problem with the instruction in Smith was that the
vague admonition, given several minutes after the objectional statement, failed to direct the jury
to the appropriate statements, which were “multiple” and “not actually the witness’s last remarks.”
Id. Further, “[a]ny residual value” in the limiting instruction was “undermined” when the court
subsequently informed the jury that it had removed all inadmissible statements and afterward
played a third recorded reference to the same prior misconduct, resulting in an implication that this
later reference was “unobjectionable.” Id. ¶ 11. The instruction here unquestionably directed the
jury to the correct piece of evidence and made clear that it could lawfully be considered only with
respect to the refusal count. 4
4
The dissent argues that the instructions to disregard the HGN testimony with respect to
the DUI count but consider it with respect to the reasonableness of Officer Morris’s conclusion
that defendant was impaired were “fundamentally at odds,” because “if the testimony makes
Officer Morris’s conclusion that defendant was impaired more reasonable, why wouldn’t it make
the jury’s conclusion to the same effect more reasonable?” Post, ¶ 63. But Vermont courts
routinely rely on juries to draw just such fine distinctions where instructed to do so. For example,
it is well-established that, in the context of a domestic abuse prosecution, evidence of the
“defendant’s history of abusing the victim” is admissible to place the behavior at issue in
18
¶ 39. Defendant cites a New Jersey case for the proposition that evidence bearing
“directly on the ultimate issue before the jury may be less suitable to curative or limiting
instructions than evidence that is indirect and that requires additional logical linkages.” State v.
Herbert, 201 A.3d 691, 700 (N.J. Super. Ct. App. Div. 2019) (citing Richardson v. Marsh, 481
U.S. 200, 208 (1987)); see also Richardson, 481 U.S. at 208 (holding that “specific testimony is . . .
more vivid than inferential incrimination, and hence more difficult to thrust out of mind” in
response to limiting instruction). However, the New Jersey court ultimately concluded that the
curative instruction at issue was ineffective “in large part because the judge’s instructions missed
the mark,” noting that, “[i]t is one thing to assume jury compliance with a well-crafted curative or
limiting instruction. It is quite another to assume compliance with an instruction that fails to
clearly and sharply address the prejudicial aspect of the inadmissible evidence.” Id. at 701. This
holding is inapposite here, where the limiting instruction in question suffers no such deficiency.
For the same reason, we discern little persuasive value in the cited proposition that instructions
“can be more effective” when they explain themselves, as “ ‘[b]ecause I said so’ is likely to be
even less effective from a judge to a jury than it is from a parent to an eight-year-old.” Id. at 700.
¶ 40. Finally, we observe that the dissent’s belief that the requirements necessary to
abandon the presumption are met here is “shaped in large part,” post, ¶ 52, by their contention that
the State’s case for intoxication was “thin,” and, as a result, “the chance that the improperly
admitted testimony would tip the balance is especially high,” post, ¶ 57. The dissent maintains
situational context for the jury, even though the jury is forbidden to consider it with respect to the
defendant’s propensity to abuse the victim. State v. Sanders, 168 Vt. 60, 62-63, 716 A.2d 11, 13
(1998) (holding that evidence defendant abused victim on prior occasions was admissible as
tending to prove “that defendant meant to threaten and intimidate . . . when he raised the knife and
said ‘someone is going to die’ ”). We trust that juries will use such evidence only as instructed
despite the fact that “[a]n especially severe possibility of prejudice exists when the crime to be
introduced . . . is similar to or the same as the crime for which the defendant is accused.” State v.
Gardner, 139 Vt. 456, 460-61, 433 A.2d 249, 251 (1981).
19
that the only evidence of intoxication which was not “equivocal at best” was testimony that two
officers smelled alcohol on defendant’s breath, and posits that this testimony “supports an
inference that [defendant] had consumed alcohol but does not itself establish impairment.” Post,
¶ 57. For the four reasons that follow, and as set forth in greater detail infra, ¶¶ 46-47, we cannot
agree with the dissent’s view of the strength of the State’s case.
¶ 41. First, this was not a DUI case in which the defendant admitted to having consumed
alcohol during the operative period, but did not concede impairment. Rather, defendant insisted
throughout the police encounter and at trial on her sobriety, taking the stand to testify that, on the
night in question, she was “newly sober . . . after a long stint of pretty heavy alcoholism.” She
attributed the odor of alcohol emanating from her person to “bad teeth” and having recently
consumed fruit. In Officer Morris’s substantial training and experience—which, as the dissent
details, post, ¶ 59, was amply set forth to the jury—this was not a credible explanation. Second,
Officer Morris’s opinion of defendant’s impairment was not the only one offered to the jury.
Rather, Officer Briggs testified that he believed, based only on his personal observations—and
separate from the opinion he held based on the officers’ collective knowledge—that defendant was
impaired. Notably, Officer Briggs also explicitly testified that he was not in a position to observe
the results of the eye test. Therefore, the jury could also consider that—absent any ability to smell,
and untainted by any consideration of the HGN test results—Officer Briggs believed defendant
was impaired. Third, as to defendant’s behavior, which the State argued was indicative of
impairment, we cannot agree with the dissent that “the jury could infer from the evidence that
defendant interacted appropriately throughout the evening with the other officers,” and that
defendant’s behavior was “escalated” only toward Officer Brewer. Post, ¶ 57. After Officer
Brewer’s involvement in the encounter ended, defendant directed a profane gesture, which we
have previously characterized as one of “arrant disdain,” see Webster, 2017 VT 98, ¶ 4, at Officer
Morris in response to his request for an evidentiary sample of her breath. We respectfully suggest
20
that this behavior—which defendant herself testified to—stands at odds with an inference of
appropriate interaction. Finally, because the State played a video of defendant’s interactions with
Officers Brewer and Briggs in the municipal parking lot and explained it was “offered to
demonstrate [her] impairment or lack thereof,” we also disagree that the State had to establish
impairment “based solely on the officers’ observations of defendant.” Post, ¶ 58.
¶ 42. Intoxication was the only contested element of the DUI-2 charge, and the State
needed to prove only that defendant had lost, in some appreciable measure, control of her mental
and physical faculties. State v. Carmody, 140 Vt. 631, 638, 442 A.2d 1292, 1295 (1982) (“To
support a claim of ‘under the influence’ requires observable behavior indicating a loss of full
control over the faculties of mind and body . . . . With this a witnessed fact, the measure of that
loss is not material, and the violation of that portion of the statute is sufficiently established.”).
The evidence the State offered on this narrow point was neither as equivocal nor as dependent on
Officer Morris’s opinion as the dissent contends. For this reason, we cannot agree that there is a
“strong likelihood” that the evidence subject to the limiting instruction would be “devastating” to
defendant, and do not abandon the presumption. See Greer, 483 U.S. at 766 n.8 (quotation
omitted).
¶ 43. Having no cause to depart from the presumption that the jury followed the trial
court’s limiting instruction, we hold that the court’s error in admitting the HGN evidence was
harmless as to the DUI-2 charge because we must assume that the jury followed the court’s limiting
instruction.
III. Admission of PBT
¶ 44. Finally, we turn to the question of whether the court erred in admitting the PBT
refusal as probative of defendant’s consciousness of guilt to DUI. Section 1203(f) of Title 23
prohibits use of “[t]he results” of a PBT in any court proceeding except “for the purpose of
deciding whether an arrest should be made and whether to request an evidentiary test.” Defendant
21
contends that the word “results,” as used in the statute, encompasses a driver’s refusal to take a
PBT, and, therefore, the court’s admission of this evidence violated § 1203(f). She also argues
that, before admitting the PBT-refusal evidence as relevant to consciousness of guilt, the court was
required to perform a more rigorous analysis to determine whether a chain of interlocking
inferences supported the conclusion that the refusal was probative of consciousness of guilt. See
State v. Scales, 2017 VT 6, ¶ 8, 204 Vt. 137, 164 A.3d 652. Lastly, she contends that she had a
constitutional right to refuse the PBT, and that admitting evidence of the refusal penalized her
exercise of that right and was unfairly prejudicial. We conclude that we need not determine
whether evidence of defendant’s refusal should have been excluded under any of these theories
because, assuming arguendo that the PBT-refusal evidence was admitted in error, the error was
harmless beyond a reasonable doubt. Oscarson, 2004 VT 4, ¶ 30.
¶ 45. Here, again, we consider whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction. Alzaga, 2019 VT 75, ¶ 14. In making
this determination, we consider “the importance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent of the cross-examination
otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Oscarson,
2004 VT 4, ¶ 32 (quotation omitted). Apart from the prejudicial effect of the offending evidence,
the most important factor is the strength of the prosecution’s case absent the offending evidence.
Smith, 2010 VT 15, ¶ 12.
¶ 46. The only element of the DUI-2 charge that defendant contested at trial was
intoxication. Under 23 V.S.A. § 1201(a)(2), to prove intoxication, “the State need only prove that
defendant had lost full control over the faculties of mind and body due to the effect of intoxicating
liquor; the measure of that loss is immaterial.” Gray, 150 Vt. at 193; 552 A.2d at 1196. Absent
testimony regarding the PBT refusal and HGN test result, the State offered ample evidence upon
22
which the jury could conclude that defendant had lost full control over her faculties of mind and
body due to the effect of intoxicating liquor. Both officers who were able to smell on the night of
defendant’s arrest detected the odor of alcohol coming from her breath; when defendant exhaled
directly at Officer Morris, that odor was “very, very strong.” When confronted with this
information, defendant offered an explanation which Officer Morris found incredible. Defendant’s
eyes were bloodshot and watery, although the weight of this evidence was diminished by testimony
that she had been crying. Defendant displayed belligerent, confrontational behavior, as described
by the officers and depicted in media played for the jury. Defendant swayed as she stood during
the administration of field sobriety tests, and, during the walk-and-turn, she stepped off the spot
where she was directed to stand. She skipped a number when instructed to count out loud.
Defendant’s performance on the tests was “slow and deliberate.” Based on his substantial training
and experience, Officer Morris testified that this, too, was an indicator of impairment. Finally,
when asked to provide an evidentiary sample of her breath, defendant refused to do so, instead
directing a crude hand gesture toward the officer.
¶ 47. We turn first to the two most important factors, the strength of the State’s case
absent the offending evidence and the prejudicial effect of the evidence complained of. See Smith,
2010 VT 15, ¶ 12. On the basis of the evidence set forth above, the State had a strong case that
defendant had, in some measure, lost full control over her faculties of mind and body. See Gray,
150 Vt. at 193; 552 A.2d at 1196. Nor was the evidence of the PBT refusal particularly prejudicial.
While it was not exactly “cumulative” to testimony regarding the evidentiary test refusal, the two
pieces of evidence are very similar in implication. See Oscarson, 2004 VT 4, ¶ 32. We can
reasonably conclude that the jury’s consideration of defendant’s refusal of the evidentiary test—
and her vehement expression of that refusal—largely eclipsed any impact of the PBT refusal.
¶ 48. Further, in its closing argument, the State highlighted the fact that the jury could
consider defendant’s refusal to take an evidentiary breath test as evidence on the DUI-2 count,
23
while minimizing the PBT as “just a preliminary test,” the result of which would not have been
admissible in evidence. The court then specifically instructed the jury that defendant’s refusal to
provide an evidentiary test could be used to determine whether the State met its burden of proving
that defendant was driving under the influence. In addition, the State’s theory that defendant’s
refusal to take the PBT was motivated by consciousness of guilt was not the only one before the
jury. See Oscarson, 2004 VT 4, ¶ 32 (noting that we consider the presence of evidence
contradicting the objectional evidence in harmless-error analysis). Rather, defendant herself
testified that she refused the PBT because she preferred a blood test based on concerns about the
PBT’s accuracy.
¶ 49. For these reasons, we conclude that admission of the PBT refusal evidence was
harmless beyond a reasonable doubt.
Reversed and remanded as to refusal, affirmed as to DUI-2.
FOR THE COURT:
Associate Justice
¶ 50. ROBINSON, J., concurring in part, dissenting in part. I join in the majority’s
thoughtful analysis of the state of our law concerning the admissibility of horizontal gaze
nystagmus (HGN) evidence without expert testimony to establish the link between observed eye
movements and an inference of impairment, and accordingly concur in the majority’s reversal of
defendant’s conviction for refusing to submit to an evidentiary breath test. However, I cannot join
the majority’s conclusion that the court’s instruction to the jury to ignore the offending testimony
was sufficient to avoid impermissibly compromising defendant’s fundamental rights. For that
reason, I would reverse defendant’s conviction for driving under the influence notwithstanding the
24
trial court’s cautionary instruction, and accordingly dissent from the majority’s affirmance of the
DUI-2 conviction.
¶ 51. As the majority acknowledges, “[w]e normally presume that a jury will follow an
instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an
overwhelming probability that the jury will be unable to follow the court’s instructions, and a
strong likelihood that the effect of the evidence would be devastating to the defendant.” Greer v.
Miller, 483 U.S. 756, 766, n.8 (1987) (quotations and citation omitted). See ante, ¶ 36. For several
reasons, I believe that in this case there is such an overwhelming probability that the jury did
consider the improperly admitted evidence, notwithstanding the court’s instruction to the jury.
First, the State’s case here was thin, making the marginal impact of the HGN testimony more
potentially impactful. Second, the inadmissible testimony provided critical evidence of
impairment that was central to the State’s case, and served as the foundation for testimony by
Officer Morris that was cloaked with an unsubstantiated veneer of scientific validity. Third, in
contrast to the typical case in which a trial court instructs a jury to altogether ignore testimony it
should not have heard, in this case the court affirmatively authorized the jury to consider the
evidence for a related purpose, suggesting that the evidence was, in fact, probative with respect to
the likelihood of defendant’s intoxication. Finally, I do not believe the court’s instruction to the
jury to ignore the HGN testimony for purposes of the DUI charge was sufficient to inform the jury
that it should not consider Officer Morrison’s opinion that defendant was impaired in considering
the DUI charge. I elaborate on each consideration below.
¶ 52. First, my view is shaped in large part by the fact that this was a close case. The
State presented sufficient evidence that defendant was driving under the influence to support a
conviction on that charge, but a conviction was by no means a foregone conclusion. In connection
with its harmless-error analysis addressing the trial court’s admission of the PBT refusal evidence,
the majority has accurately identified evidence the jury could properly consider to support its
25
determination that defendant was under the influence: two officers smelled alcohol on her breath,
she was belligerent at times, she stepped off the spot where she was directed to stand during a
walk-and-turn test, she skipped the number twelve when counting seconds out loud, and she was
“slow and deliberate” in performing the field sobriety tests. See ante, ¶ 46.
¶ 53. But there was a great deal of evidence that could have led the jury to conclude that
the State did not meet its burden of proving impairment beyond a reasonable doubt. Officer Briggs
drove behind defendant for about a mile before she made a left turn into the municipal parking lot,
where she parked. She did not speed or weave over the center line or fog line, and properly used
her blinker when turning left; Officer Briggs saw no evidence of impaired driving. Officer Brewer
watched defendant for about thirty seconds as she drove past the police station. He likewise did
not observe any signs of impaired driving.
¶ 54. Officer Briggs made contact with defendant at the municipal parking lot. Before
Officer Brewer arrived, defendant was cordial with Officer Briggs; in fact, she remained cordial
with him even after Officer Brewer arrived and she began arguing with him. Defendant got out of
her car shortly after Officer Briggs made contact with her, and talked with him for a couple of
minutes before Officer Brewer arrived. Based on his interactions with her and observations to this
point, Officer Briggs did not believe that defendant was under the influence, and did not think it
was necessary to ask defendant to perform field sobriety exercises. In fact, even as he transported
her to the station to process her citation for driving with a suspended license—after he observed
her arguing with Officer Brewer—and even after he completed the citation for driving with a
suspended license, Officer Briggs did not think she was under the influence of alcohol. At the
police station, defendant accepted a citation for the suspended license. She was crying, but was
cordial and polite.
¶ 55. Although defendant was belligerent at the municipal lot, Officer Briggs and Officer
Brewer both testified that defendant became belligerent only with Officer Brewer. Officer Briggs
26
described defendant as “agitated” by Officer Brewer’s presence. Defendant testified that as soon
as he arrived, Officer Brewer, “directly and kind of hostilely” asked her how much she had been
drinking—a question that caused her to feel accused. She explained that she was upset with Officer
Brewer as a result of a prior encounter, and that he was very hostile with her. She said that when
people are aggressive with her, or she dislikes them or is angry with them, she behaves the way
she acted with Officer Brewer. Officer Brewer himself testified that he thought defendant was
upset by his presence based on a prior encounter he had with her. Only after defendant began to
argue with Officer Brewer and he responded by placing her in handcuffs did he assert that he
smelled alcohol on her breath. Even so, Officer Brewer conceded that based upon the limited time
he spent with defendant, he was not able to develop an opinion as to the extent of her impairment,
if any.
¶ 56. At the police station, after Officer Briggs issued her a citation for driving with a
suspended license, Officer Morris arrived and asked defendant to perform field sobriety exercises.
He testified that he smelled alcohol on her breath. Of the potential clues the officer was looking
for on the walk-and-turn exercise, he observed only one: defendant swayed while he was giving
her instructions about the exercise. Officer Morris acknowledged that defendant did not start
before she was instructed to, properly touched heel to toe as instructed, did not improperly use her
arms for balance, took the correct number of steps, and completed the exercise. The only clue
suggesting intoxication in connection with this exercise was defendant’s swaying during the
instructions. Similarly, on the one-leg stand, Officer Morris acknowledged that he did not observe
any clues of intoxication. In particular, she did not sway while balancing, was able to balance on
one leg, did not use her arms to balance, did not hop, and did not put her foot down during the
thirty-second period while she stood and counted. (Officer Morris did note one “indicator”—as
opposed to “clue”—during this test: in counting one-one-thousand, two-one-thousand, etc.,
defendant skipped from eleven to thirteen.) Officer Morris testified that defendant was upset and
27
crying when he encountered her in the processing room and that she told him she was experiencing
some anxiety at the time.
¶ 57. I detail the above evidence because I take issue with the majority’s characterization
of the State’s case as strong. See ante, ¶ 47. The two officers who actually saw defendant driving
observed no signs of impairment in the way she drove. Other than testimony that two officers
smelled alcohol on her breath—testimony that supports an inference that she had consumed
alcohol but does not itself establish impairment—the evidence relied upon by the State is equivocal
at best. The State makes much of her behavior, but the jury could infer from the evidence that
defendant interacted appropriately throughout the evening with the other officers, and that Officer
Brewer’s provocative conduct escalated defendant’s anger for reasons having nothing to do with
her being intoxicated. Evidence that she had bloodshot eyes has minimal value in the face of
testimony by multiple witnesses that she was crying during the extended encounter. And
defendant’s performance on the physical field sobriety exercises, while not perfect, was also fully
consistent with sobriety. In the face of such a thin case, the chance that the improperly admitted
testimony would tip the balance is especially high.
¶ 58. Second, the evidence was not peripheral to the central issue in the case; rather it
went to the heart of the State’s case. And the limiting instruction did not fully address the impact
of the evidence. The issue in this case was whether defendant was impaired by alcohol. We have
no evidence of defendant’s blood alcohol level, and no evidence that her driving actually
demonstrated impairment. In order to secure a conviction, the State had to establish beyond a
reasonable doubt, based solely on the officers’ observations of defendant, that she was impaired.
As noted above, the admissible evidence concerning impairment was mixed. A jury could easily
have concluded that the State failed to meet its burden, especially if it concluded that defendant’s
agitated behavior was a reflection of her personality and the circumstances, and not necessarily a
sign of intoxication. In this context, the HGN testimony that the jury was invited to hear and
28
accept bolstered the State’s case by directly supporting an inference—and the testifying officer’s
purportedly expert opinion—that defendant was impaired.
¶ 59. The context of the testimony matters. The trial court permitted the State to
essentially establish that Officer Morris, who testified about his HGN observations, was an expert
in interpreting field sobriety exercises, and in evaluating the impact of alcohol on the body. Officer
Morris testified extensively about his qualifications. He testified that on two different occasions,
in 2005 and again in 2013, he went through a forty-hour training program on DUI enforcement
and DUI processing, including administration of standard field-sobriety exams. In addition, he
took a two-day, sixteen-hour course called Advanced Roadside Impaired Driving Enforcement,
reinforcing his training concerning standard field-sobriety testing and also teaching him what to
look for in administering the field sobriety exercises with respect to drugs. He testified that after
a two-week, eighty-hour intensive course, and another week in Arizona for evaluations using a
dozen real subjects, he was certified as a drug recognition expert. He explained that this course
included studying the physical effects of different categories of drugs, including alcohol, on the
body, and interpreting the use of these different drugs in the context of an evaluation. In order to
be certified, he had to and did achieve a certain level of proficiency. Officer Morris testified that
all of this study centered around the standard field sobriety tests and the effects of drugs and
alcohol.
¶ 60. Officer Morris then testified extensively about the structure and purpose of the
“standard field sobriety test,” and his administration of the exercises here. He testified that the
first field sobriety exam he conducted with defendant involved “looking at her eyes.” He said he
administered this exam consistent with his training and experience at the academy and in the
advanced class and affirmed that what he observed “can . . . be associated with impairment by
29
alcohol.”5 After reviewing the other field sobriety exercises that he administered—the walk-and-
turn and the one-leg-stand tests—he testified to administering some other unidentified exams.
Based on all of this evidence, Officer Morris reached a conclusion that defendant was “impaired
moderately to severely.” The court did not at that point instruct the jury not to consider Officer
Morris’s opinion that defendant was impaired in connection with the DUI charge, even though that
opinion rested predominantly on HGN testimony that the jury was instructed not to consider for
that purpose.
¶ 61. In response to cross examination, Officer Morris elaborated on his training in
evaluating the significance of eye movements in detecting alcohol impairment, and reiterated his
assertion that he observed that defendant had eye movements that can be associated with alcohol
impairment. When asked whether he based his conclusion that defendant was impaired almost
entirely on the eye test he administered, Officer Morris said “we can go with the word ‘majority.’ ”
¶ 62. In sum, the jury was permitted to hear testimony suggesting that Officer Morris had
extensive training evaluating eye movements in the HGN test to determine whether a suspect is
impaired, and was permitted to hear him opine—based predominantly on his observations in
administering the HGN test—that defendant was impaired.6 Impairment was the only contested
issue in connection with the DUI charge; although the determination of impairment was for the
jury to make, testimony of a purported expert in assessing the same evidence available to the jury
that the evidence showed that defendant was impaired was potentially devastating to defendant’s
case—notwithstanding the court’s instruction that the jury should not consider the HGN testimony
5
At this juncture, the court instructed the jury that with respect to the movement Officer
Morris saw in defendant’s eyes, “you are to look at that only with respect to the reasonableness of
his request for an evidentiary test. You are not to take it with respect to impairment.”
6
The State amplified this testimony in its closing, emphasizing that Officer Morris, as a
highly trained drug recognition expert, had concluded that defendant’s level of impairment was
moderate to severe.
30
itself for the purposes of the DUI charge. Significantly, the court never instructed the jury that it
should not only disregard the HGN evidence for purposes of the DUI charge but should also
disregard Officer Morris’s opinion testimony—which rested primarily on that evidence—in
connection with that charge. In this context, the inadmissible testimony provided the State with
the critical evidence to establish that defendant was impaired and served as the foundation for the
purportedly expert opinion testimony the jury heard on the ultimate question in connection with
the DUI charge.
¶ 63. Third, and a corollary to the above considerations, the court’s instruction in this
case sent the jury irreconcilable mixed messages. This is not a case in which the court instructed
the jury to disregard testimony that it should not have heard. See, e.g., State v. Messier, 2005 VT
98, ¶¶ 18-21, 178 Vt. 412, 885 A.2d 1193 (holding that trial court did not abuse its discretion in
denying mistrial where, following each of two different inadmissible statements, trial court
immediately gave curative instructions directing jury to disregard statements). Nor is it a case in
which the court admitted evidence for a limited purpose but cautioned the jury not to consider the
evidence for a functionally different and improper purpose. See, e.g., State v. Amidon, 2018 VT
99, ¶¶ 22-23, __ Vt. __, 198 A.3d 27 (affirming where court admitted evidence of defendant’s
incarceration and release to help explain why victim suddenly became frightened of defendant, but
instructed jury that they should not consider fact of incarceration as evidence of defendant’s
character or that he committed offense for which he was on trial); State v. Kelley, 2016 VT 58,
¶ 40, 202 Vt. 174, 148 A.3d 191 (noting that court properly used curative instruction to alleviate
risk that jury would consider evidence of out of court statements used to impeach witness’s trial
testimony for truth of those statements). Here, the court expressly allowed the State to use the
HGN testimony to support Officer Morris’s conclusion that defendant was impaired, but then
asked the jury not to consider the testimony in determining whether defendant was impaired. From
the jury’s perspective, especially without further explanation, those two instructions were
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fundamentally at odds: if the testimony makes Officer Morris’s conclusion that defendant was
impaired more reasonable, why wouldn’t it make the jury’s conclusion to the same effect more
reasonable? There is a fundamental tension in the instructions the court gave the jury. As the
Court holds today, the HGN testimony was not admissible in connection with either charge. The
fact that the trial court suggested that it was admissible in connection with one charge but not the
other sent irreconcilable mixed messages to the jury as to the reliability and probative value of the
testimony.
¶ 64. Even if a jury could be expected to follow an instruction allowing it to consider the
HGN testimony for purposes of assessing the reasonableness of Officer Morris’s conclusion that
defendant was impaired in the context of the refusal charge, but not for the purposes of making its
own determination as to whether defendant was impaired in the context of the DUI charge, I am
not convinced that the instruction was sufficiently clear to accomplish this. Before Officer Morris
testified about his observations of defendant’s eyes when administering the HGN assessment, the
court advised the jury:
With respect to the movement he saw in the eyes, you are to look at
that only with respect to the reasonableness of his request for an
evidentiary test. You are not to take it with respect to impairment.
Okay? So there are two parts of the case. And you can only look at
it with respect to the reasonableness of the request, not with respect
to impairment.
The court did not issue any further instructions, and allowed Officer Morris to offer an opinion on
the ultimate question of impairment. Even assuming that the jury understood at the time of the
court’s instruction that the court meant it could consider the evidence in the context of the refusal
charge, but not in the context of the DUI charge—a link the court did not make in its instruction—
it is not at all clear whether the court’s instruction concerning “the movement he saw in the eyes”
extended to the opinion offered by Officer Morris based primarily on that movement. Given the
lack of clarity on this point, and the very real likelihood that the jury, believing itself to be adhering
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to the court’s instruction, declined to draw its own direct inferences from the HGN testimony but
nonetheless relied on Officer Morris’s opinion, I do not believe the curative instruction here
accomplished its objective. See State v. Smith, 2010 VT 15, ¶ 10, 187 Vt. 600, 992 A.2d 310
(holding that curative instruction did not cure improper admission of prejudicial evidence where
instruction provided no clear and specific direction to jury).
¶ 65. For these reasons, I conclude that the court’s limiting instruction in this case was
not sufficient to protect defendant from the prejudicial impact of the inadmissible testimony
concerning the HGN test. I would reverse the DUI conviction.7
¶ 66. I am hereby authorized to state that Justice Skoglund joins this concurrence and
dissent.
Associate Justice
7
Because I would reverse the DUI conviction on this basis, I do not address the majority’s
contention that any error in admitting the PBT refusal evidence was harmless. I do not join in the
majority’s analysis on this point.
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