State v. Quaale , 182 Wash. 2d 191 ( 2014 )

Madsen, C.J.

¶1 The arresting trooper in this DUI (driving under the influence) trial testified that he had “no doubt” that the defendant was impaired based solely on a horizontal gaze nystagmus (HGN) test. We hold that the testimony was an improper opinion on guilt and affirm the Court of Appeals.

FACTS

¶2 Washington State Patrol Trooper Chris Stone saw a truck, driven by Ryan Quaale, speed by in a 25-mile-per-hour zone on a residential street. Trooper Stone’s radar captured Quaale’s speed at 56 miles per hour. Trooper Stone activated the lights on his patrol car and attempted to pull the truck over. In response, Quaale turned off his truck’s headlights and accelerated.

¶3 Trooper Stone pursued. Quaale lost control and overshot a corner, skidding into a homeowner’s yard before he regained control and sped away for several more blocks. After Trooper Stone activated his siren, Quaale pulled the truck over and stopped. Quaale exited his truck but did not attempt to flee on foot. As a part of standard pursuit protocol, Trooper Stone ordered Quaale to the ground and handcuffed him. As he approached Quaale, Trooper Stone smelled a strong odor of “intoxicants” on Quaale’s breath. Partial Verbatim Report of Proceedings (RP) at 12.

¶4 Trooper Stone then performed the HGN test on Quaale. The HGN test is a routinely used field sobriety test in which the administrator tells the subject to follow a pen or fingertip with his or her eyes as the administrator moves the stimulus from side to side. After consuming alcohol, a person will have difficulty smoothly following the stimulus; the person’s eyes will jerk or bounce as they move from side to side. Trooper Stone testified that in his opinion, the HGN test is very important to determining impairment because unlike the walk the line test, which a person can practice, the HGN test measures an involuntary reflex. Id. at 27. Trooper Stone did not perform any other sobriety tests on Quaale in the field.

¶5 During the HGN test, Trooper Stone observed Quaale’s eyes bounce and have difficulty tracking the stimulus. Trooper Stone placed Quaale under arrest for DUI, reckless driving, and attempting to elude a police vehicle. At the station, Trooper Stone informed Quaale of the implied consent warnings for a breath test. Quaale refused to take the test.

¶6 Quaale was charged with attempting to elude a police vehicle and with felony DUI. The DUI was charged as a felony because Quaale had been previously convicted of vehicular homicide while under the influence. RCW 46.61.502(6)(b)(i).

¶7 Quaale was tried twice. At the first trial, the jury convicted him of attempting to elude but could not agree on a verdict for the DUI charge. During a second trial on the DUI charge, the State concluded its direct examination of Trooper Stone with the following questions:

Q. In this case, based on the HGN test alone, did you form an opinion based on your training and experience as to whether or not Mr. Quaale’s ability to operate a motor vehicle was impaired?

[Defendant’s objection that the question goes to the ultimate issue is overruled.]

Q. ... Did you form an opinion?

A. Absolutely. There was no doubt he was impaired.

RP at 33.

¶8 In closing, the State argued that the odor of intoxicants and Quaale’s erratic driving supported its theory of driving while impaired by alcohol, but the State primarily relied on the HGN test. Indeed, during its rebuttal, in response to the defense explanation for the odor of intoxicants, the State said, “The horizontal gaze nystagmus is not caused by alcohol that he may have spilled on his clothes; it is what is inside your body. The eyes in this case are more than the window to the soul; they are the window to his intoxication level.” Clerk’s Papers (CP) at 153-54.

¶9 The State also remarked on Quaale’s revoked license during closing in violation of the court’s ruling. The jury found Quaale guilty of DUI.

¶10 On appeal, Quaale argued that the trooper’s testimony amounted to an improper opinion on guilt. He also argued that the prosecutor committed misconduct when she commented on his revoked license and that the trial court improperly denied a motion to dismiss under CrR 8.3(b), alleging “governmental misconduct whe[re] there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.” The Court of Appeals reversed Quaale’s DUI conviction, holding that the trooper’s opinion testimony violated Quaale’s “constitutional right to have a fact critical to his guilt determined by the jury.” State v. Quaale, 177 Wn. App. 603, 617-18, 312 P.3d 726 (2013). The Court of Appeals ordered a new trial and did not reach the other issues that Quaale raised, including the prosecutor’s misconduct. Id. at 619. The State filed a petition for review regarding the opinion testimony issue, which we granted.¹ State v. Quaale, 179 Wn.2d 1022, 320 P.3d 719 (2014).

DISCUSSION

¶11 We review decisions to admit evidence using an abuse of discretion standard. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001) (plurality opinion). The trial court is given considerable discretion to determine if evidence is admissible. Id. “Where reasonable persons could take differing views regarding the propriety of the trial court’s actions, the trial court has not abused its discretion.” Id. However, the trial court has abused its discretion on an evidentiary ruling if it is contrary to law. State v. Neal, 144 Wn.2d 600, 609, 30 P.2d 1255 (2001). “An abuse of discretion exists ‘[w]hen a trial court’s exercise of its discretion is manifestly unreasonable or based on untenable grounds or reasons.’ ” Id. (alteration in original) (quoting State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997)).

¶12 At trial, defense counsel objected to a question posed by the prosecutor — whether the testifying trooper formed an opinion about Mr. Quaale’s impairment based on the HGN test alone — because the question went to the ultimate issue. The state correctly points out that under Washington’s rules of evidence, opinion testimony is not objectionable merely because it embraces an ultimate issue that the jury must decide. ER 704 states, “Testimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”

¶13 An opinion that embraces an ultimate issue, however, must be “otherwise admissible.” Id. When opinion testimony that embraces an ultimate issue is inadmissible in a criminal trial, the testimony may constitute an impermissible opinion on guilt. City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993). Here, the trooper’s opinion based solely on the HGN test was inadmissible under our decision in State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000).

¶14 In Baity, we considered whether a drug recognition protocol employed by police officers to detect behavior associated with certain drugs constituted novel scientific evidence generally accepted in the scientific community, satisfying the Frye test for admissibility of expert testimony. Id. at 3; Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923). Police officers trained to use this protocol are often referred to as drug recognition experts (DREs). DREs use a 12-step procedure to classify behavioral patterns associated with seven categories of drugs. Baity, 140 Wn.2d at 6. Officers employ the HGN test as 1 of the 12 steps. Id. at 6-7.

¶15 We analyzed whether the HGN test satisfied Frye when used for drug detection, and we held that it did. We agreed that the underlying scientific basis of the test — an intoxicated person will exhibit nystagmus² — was undisputed. Id. at 12. We also noted that officers perform the test in the same way whether the officer tests for alcohol or drug impairment and that the officer also looks for the same result: involuntary jerking in the driver’s eyes. Id. at 13. Thus, our analysis of the HGN test in the DUI drug detection context, as discussed in Baity, applies equally to the DUI alcohol detection context in this case.

¶16 Although we held testimony on the HGN test admissible as evidence that a person was intoxicated on drugs, we placed limits on that testimony because the HGN test merely shows physical signs consistent with ingestion of intoxicants. Id. at 13-14,17-18. We said that an officer may not testify in a manner that casts an “aura of scientific certainty to the testimony.” Id. at 17. The officer also cannot predict the specific level of drugs present in a suspect. Id. We further instructed that a DRE officer, properly qualified, could express an opinion that a suspect’s behavior and physical attributes are consistent or inconsistent with those behaviors and physical signs associated with certain categories of drugs. Id. at 17-18.

¶17 Here, the trooper’s testimony violated the limitations set out in Baity. The trooper testified that he had “no doubt” the defendant was impaired based on the HGN test alone. This testimony was improper for two reasons. First, the trooper cast his testimony in a way that gave it an aura of scientific certainty. By testifying that he had “no doubt,” the trooper implied that the HGN test may reveal that someone is intoxicated and “impaired” on alcohol when the test simply shows physical signs consistent with alcohol consumption. Although an officer may testify that the test revealed signs consistent with alcohol consumption, the officer here cast his conclusion in absolute terms and improperly gave the appearance that the HGN test may produce scientifically certain results.

¶18 Second, the trooper testified to a specific level of intoxication when he testified that the defendant was “impaired.” The State argues that the trooper’s testimony falls within our holding in Baity because the trooper did not testify to a specific blood alcohol level; he simply said the defendant was “impaired.” But the conclusion that the defendant was impaired rests on the premise that the defendant consumed a sufficient level of intoxicants to be impaired. Even though the testimony did not include a numerical blood alcohol level, the testimony implicitly includes a specific level of intoxication: that the alcohol consumed impaired the defendant, which is the legal standard for guilt. The HGN test alone cannot reveal specific levels of intoxication, and, consequently, the trooper’s testimony violated Baity.

¶19 Under Baity, the trooper’s opinion was inadmissible and the trial court should have excluded the testimony. We must now determine if the inadmissible testimony on the ultimate issue of Quaale’s impairment while driving amounted to an improper opinion on guilt.

¶20 Opinions on guilt are improper whether made directly or by inference. State v. Montgomery, 163 Wn.2d 577, 594, 183 P.3d 267 (2008). Impermissible opinion testimony regarding the defendant’s guilt may be reversible error because such evidence violates the defendant’s constitutional right to a jury trial, which includes the independent determination of the facts by the jury. State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007). Before opinion testimony is offered, the trial court must determine admissibility of the testimony. Montgomery, 163 Wn.2d at 591. In making this determination, the court will consider the circumstances of the case, including the following factors: (1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact. Id. Some areas, however, are clearly inappropriate for opinion testimony in criminal trials, including personal opinions, particularly expressions of personal belief, as to the defendant’s guilt, the intent of the accused, or the veracity of witnesses. Id.

¶21 The case before us presents an improper opinion on guilt by inference because the trooper’s opinion went to the core issue and the only disputed element: whether Quaale drove while under the influence of alcohol. See id. at 594. Quaale was charged with felony DUI under RCW 46.61-.502. The statute indicates, in relevant part, that “[a] person is guilty of driving while under the influence of intoxicating liquor ... if the person drives a vehicle within this state ... [w]hile the person is under the influence of or affected by intoxicating liquor.” RCW 46.61.502(l)(c). Whether Quaale was affected by intoxicating liquor was the only issue in dispute. The jury was instructed as follows: “A person is under the influence of or affected by the use of intoxicating liquor if the person’s ability to drive a motor vehicle is lessened in any appreciable degree.” CP at 92 (Instruction 5).

¶22 The trooper’s testimony that Quaale was “impaired” parroted the legal standard contained in the jury instruction definition for “under the influence.” The word “impair” means to “diminish in quantity, value, excellence, or strength.” Webster’s Third New International Dictionary 1131 (2002). Thus, the trooper concluded that alcohol diminished Quaale to such an appreciable degree that the HGN test could detect Quaale’s impairment. Because the trooper’s inadmissible testimony went to the ultimate factual issue — the core issue of Quaale’s impairment to drive — the testimony amounted to an improper opinion on guilt.

¶23 The State argues that this case is analogous to Heatley. In Heatley, Division One of the Court of Appeals held that an officer’s testimony constituted a permissible opinion that embraced an ultimate issue. 70 Wn. App. at 579-80. The officer testified that the defendant was “ ‘obviously intoxicated and affected by the alcoholic drink [such] that ... he could not drive a motor vehicle in a safe manner.’ ” Id. at 576. We find Heatley distinguishable.

¶24 The court noted in Heatley that “Evenson’s opinion was based solely on his experience and his observation of Heatley’s physical appearance and performance on the field sobriety tests.” Id. at 579-80. The officer observed that Heatley’s eyes were bloodshot and watery, his face was flushed, his balance was unsteady, and he had a “ ‘strong odor’ ” of alcohol on his breath. Id. at 576. The officer performed a series of field sobriety tests, including asking Heatley to recite the alphabet, count backwards, walk heel to toe, and touch his nose. Id. The officer testified that he arrived at his conclusion “ ‘[biased on [Heatley’s] physical appearance and my observations of that and based on all the tests I gave him as a whole.’ ” Id.

¶25 Here, the testimony in question is distinguishable from that in Heatley because Trooper Stone’s opinion was based solely on the HGN test, which is expert testimony subject to our decision in Baity. As has been explained, the HGN test can indicate the presence of alcohol in a suspect but it cannot establish impairment. In contrast, the officer in Heatley based his testimony on observations of the defendant, such as the defendant’s unsteady balance, the defendant’s bloodshot eyes, and the odor of alcohol on the defendant’s breath. A lay witness may express an opinion on another person’s intoxication when the witness had the opportunity to observe the affected person. Id. at 580. Unlike the officer in Heatley, Trooper Stone based his opinion on expert and not lay testimony, and in doing so, he gave impermissible opinion testimony that constituted an improper opinion on guilt.

¶26 This improper opinion on guilt violated Mr. Quaale’s constitutional right to have a fact critical to his guilt determined by the jury. Constitutional error is harmless only if the State establishes beyond a reasonable doubt that any reasonable jury would have reached the same result absent the error. State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002). As the Court of Appeals noted, the officer testified and the State argued that the HGN test alone established that Quaale’s ability to drive a motor vehicle was impaired. Quaale, 177 Wn. App. at 618. That assertion, improperly admitted, was offered by an officer in a manner that “cast an aura of scientific certainty,” significantly increasing the weight the jury likely attached to it. In light of the fact that there were no other tests administered, such as field sobriety tests or a breath test, this improper evidence renders the officer’s “absolute certainty” more significant. As the Court of Appeals noted, the jury in the first trial convicted Quaale on the eluding charge but deadlocked on the DUI count, suggesting that the only other evidence, poor driving, was attributed to the fact that Quaale was trying to elude the officer. Id. Under these circumstances, the error in admitting the testimony was not harmless beyond a reasonable doubt. We therefore reverse the judgment and sentence and remand the case for a new trial.

CONCLUSION

¶27 We hold that Trooper Stone’s testimony that he had “no doubt” the defendant was impaired was an improper opinion on the defendant’s guilt and therefore inadmissible. Trooper Stone based his opinion solely on a HGN test, which can indicate physical signs consistent with alcohol consumption. The test, however, cannot establish impairment by itself, and testimony to the contrary violates the limitations imposed by our decision in Baity. We therefore affirm the Court of Appeals, reverse the judgment and sentence, and remand the case for a new trial.

C. Johnson, Wiggins, Gordon McCloud, and Yu, JJ., concur.

1 The State’s petition for review also raised the argument that the defendant did not properly preserve the right to appeal the admission of the opinion testimony because he failed to object to the testimony of the witness at the time of trial. This argument was not raised in the Court of Appeals. We decline to review this argument pursuant to RAP 13.7(b), which grants the court discretionary scope of review.

2 “Nystagmus is the involuntary oscillation of the eyeballs, which results from the body’s attempt to maintain orientation and balance. HGN is the inability of the eyes to maintain visual fixation as they turn from side to side or move from center focus to the point of maximum deviation at the side.” Baity, 140 Wn.2d at 7 n.3.