City Of Seattle v. Jeffrey Levesque

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CITY OF SEATTLE, )
) No. 78304-1-I
Appellant, )
) DIVISION ONE
v. )
)
JEFFREY LEVESQUE, ) PUBLISHED OPINION
)
Respondent. ) FILED: March 16, 2020
__________________________________________________________________________________)
SMITH, J. — This case arises from Jeffrey Levesque’s appeal of his
conviction for driving under the influence (DUI). During trial in Seattle Municipal
Court, Officer Calvin Hinson testified that when he arrested Levesque, Levesque
showed signs and symptoms consistent with having consumed a central nervous
system (CNS) stimulant and was “definitely impaired.” Following his conviction,
Levesque appealed to the superior court, which reversed. The city of Seattle
(City) appeals the superior court’s decision.
We conclude that because Officer Hinson was not a drug recognition
expert (DRE) and lacked otherwise sufficient training and experience, he was not
qualified to opine that Levesque showed signs and symptoms consistent with
having consumed a particular category of drug. Furthermore, because his
opinion that Levesque was “definitely impaired” constituted an impermissible
opinion of Levesque’s guilt, the trial court’s admission of that testimony violated
Levesque’s constitutional right to have the jury determine an ultimate issue.
Finally, because Levesque presented an alternative theory for his behavior, the
No. 78304-1 -1/2
City did not establish beyond a reasonable doubt that any reasonable jury would
have convicted Levesque. Therefore, we affirm the superior court’s reversal of
Levesque’s conviction.
FACTS
On April 29, 2015, the Seattle Police Department dispatched Officers
Calvin Hinson and Sarah Coe to the scene of an automobile accident involving
two vehicles. Levesque had failed to stop his vehicle prior to hitting the vehicle in
front of him. The accident caused moderate to severe damage, and Levesque’s
vehicle could not be driven.
Officer Hinson placed Levesque under arrest for DUI. Officer Hinson later
testified that he found probable cause to make the arrest based on
the manifest driving[,] which [included] the accident while not being
able to remember how the accident was caused[; t]he signs and
symptoms of possible impairment of under a stimulant which
included the perspiring while standing outside of the vehicle on the
West Seattle Bridge while it was chilly outside and windy; the
inability to recollect the events; and just the overall scene; and the
conversation that we had . . and his mannerisms and his actions.
.
Although Officer Hinson had received training in field sobriety tests (FST5), he
did not perform any FSTs at the scene because of Levesque’s symptoms, the
absence of any alcohol smell, and the location of the accident and corresponding
impracticability of FSTs. Officer Hinson did not perform a horizontal gaze
nystagmus (HGN) test for signs of impairment. Officer Hinson, who is not DRE
certified, testified that he attempted to contact a DRE by radio, but no DRE was
2
No. 78304-1-1/3
available.1
After arresting Levesque, Officer Hinson transported Levesque to
Harborview Medical Center, where he had his blood drawn. The drug analysis
results showed that Levesque’s blood contained 0.14 milligrams per liter (mg/L)
of amphetamine and 0.55 mg/L of methamphetamine. The City charged
Levesque with DUI.
Before trial, Levesque moved in limine to, among other things, (1) limit
officer testimony to personal observations and (2) exclude any testifying officer’s
opinion on ultimate issues. The trial court granted the first motion. The trial court
also granted the second motion but ruled that an officer could state “in his
opinion, based upon the totality of the circumstances, that [Levesque] was
impaired.” The trial court also granted Levesque’s additional motion to exclude
officers as experts but declared that an officer—testifying as a lay witness—could
“certainly testify to what he [or she] objectively observed during the investigation.”
At trial, the City played clips of the dashboard videotape from the incident.
Additionally, Officer Hinson testified that he approached Levesque at the scene
and asked him what happened. Levesque responded that he remembered
driving but that “nothing really happened” and that he could not remember the
accident. Because Levesque did not have his driver’s license, Officer Hinson
asked Levesque for his address or the last four digits of his social security
1 DRE certification involves in-field experience and a series of tests and
training. State v. Baity, 140 Wash. 2d 1, 4-5, 991 P.2d 1151(2000). DRE officers
learn to identify whether an individual is under the influence of alcohol or a
particular category of drug and whether or not the individual is impaired. Baity,
140 Wash. 2d at 4.
3
No. 78304-1 -114
number to verify his identity. Levesque had difficulty responding and answered
inappropriately by stating his birth date many times.
Officer Hinson testified that “through [his] training [and] experience”
Levesque showed “signs as possibly being impaired by a stimulant.” When
asked to opine as to whether Levesque “was impaired by drugs,” Officer Hinson
testified that his “[o]pinion was that [Levesque] was definitely impaired at the time
of the accident.” Officer Coe testified that Levesque was “very shaky. . . [and]
also very sweaty” and that “[s]weating is indicative of an upper involved in the
system.” Levesque objected to Officer Hinson’s testimony—but not Officer
Coe’s—and requested a mistrial outside the presence of the jury following a
lunch recess. The court overruled Levesque’s objections.
The City also presented testimony from Captain Tracy Franks of the
Seattle Fire Department and forensic scientist Andrew Gingras. Captain Franks
testified that at the scene of the accident, she determined that Levesque’s heart
rate and blood pressure were slightly elevated but that Levesque’s “pupils were
mid, equal, and reactive to light.” However, Captain Franks also testified that the
conversation she had with Levesque “was erratic, [and] he didn’t make sense.”
Captain Franks’ report from the scene of the accident stated that Levesque
“show[ed] behavior consistent with recreational drug use: Short attention span,
having to ask questions multiple times, unable to open door without assistance,
patient denies being in an accident.”
Gingras testified regarding how methamphetamine can impact someone’s
driving abilities and that “while using methamphetamine . . . , driving tends to be
4
No. 78304-1 -1/5
a little faster, so speeding is usually seen, and then excessive lane travel.”
Gingras also testified regarding the “typical therapeutic range” for
methamphetamine levels in the blood and how an individual would react to
methamphetamine consumption if prescribed it. Gingras testified, however, that
whether a specific level of methamphetamine in the blood impairs an individual’s
ability to drive “depends on that individual” and agreed that “blood tests . . . [are]
insufficient to establish whether someone is impaired or not.”
Levesque’s defense theory was that he was prescribed medication for
injuries which explain his behavior. In support of this defense, Levesque
presented testimony from his physician, Dr. Katherine Mayer, about treatment
and prescriptions that she provided for Levesque prior to the accident, her
diagnoses, and Levesque’s symptoms.
The jury convicted Levesque of driving while under the influence.
Levesque appealed his conviction to the superior court, which reversed based on
the admission of Officer Hinson and Officer Coe’s testimonies. The superior
court determined that “[b]ecause neither testifying officer was a qualified [DRE]
and the required 12-step DRE protocol was not performed, the foundation for this
testimony was insufficient pursuant to State v. Baity, 140 Wash. 2d 1[, 991 P.2d
1151] (2000).” The court also held that the errors were preserved for appeal
through “litigat[ion] in pretrial motions and midtrial,” and that the trial court’s error
admitting the testimony “was not harmless.” The City appealed, and we granted
discretionary review.
5
No. 78304-1-1/6
ANALYSIS
The City contends that Officer Hinson’s and Officer Coo’s testimonies
were admissible, and thus, the superior court erred by reversing Levesque’s
conviction. We disagree. Specifically, reversal was proper based on the
erroneous admission of Officer Hinson’s testimony.
Preservation of Issues for Ar~eal
As an initial matter, the City claims that Levesque failed to preserve his
challenges to the testimony from Officer Hinson and Officer Coo. We conclude
that Levesque failed to preserve his challenge to Officer Coo’s testimony but did
preserve his challenge to Officer Hinson’s testimony.
“The appellate court may refuse to review any claim of error which was not
raised in the trial court.” RAP 2.5(a). Under ER 103(a)(1), when an error is
raised based on admitting evidence, the adverse party must make “a timely
objection or motion to strike . . . , [and] stat[e] the specific ground of objection, if
the specific ground was not apparent from the context.” The purpose of these
requirements is to ‘“encourage[] parties to make timely objections[ and] give[]
the trial judge an opportunity to address an issue before it becomes an error on
appeal.” Wilcox v. Basehore, 187 Wash. 2d 772, 788, 389 P.3d 531 (2017)
(quoting State v. Kalebaugh, 183 Wash. 2d 578, 583, 355 P.3d 253 (2015)).
Here, Levesque’s objections to Officer Hinson’s testimony were both
timely and specific. The objections were timely because—contrary to the City’s
6
No. 78304-1 -117
contention that Levesque simply “bet on the verdict”2—Levesque objected at one
of the earliest opportunities outside of the jury, i.e. at the next recess. And the
objections were specific because Levesque provided the trial court with the
grounds for his objection. Levesque asserted that (1) “Officer Hinson did not
make the adequate foundation to testify to Mr. Levesque being impaired by a
drug, when he did not conduct any DRE examination [and a] DRE wasn’t called,”
(2) Officer Hinson’s testimony violated the trial court’s ruling in limine by stating
that Levesque was impaired or under the influence, and (3) the testimony went to
the ultimate issue in the case.
The City contends that Levesque’s objections were neither timely nor
specific enough and that the only issue preserved for appeal is the trial court’s
denial of Levesque’s request for a mistrial. This contention is unpersuasive for
two reasons. First, the purpose of the objection requirements is to ensure that
the trial court is able to rule on the issue and provide a curative instruction.
Wilcox, 187 Wash. 2d at 788. Here, Levesque’s objections—though not
contemporaneous—do not undercut this purpose. The trial court was able to and
did decide the issues presented in this appeal and did so independently of the
motion for a mistrial. Specifically, the court determined that Officer Hinson did
not state a legal conclusion that Levesque was under the influence, that the
foundation was appropriately laid for Officer Hinson’s testimony, and that his
2SeeStatev. Burns, 193 Wash. 2d 190, 209, 438 P.3d 1183 (2019)
(“Applying ER 103 and requiring a defendant to object at trial ‘protects the
integrity of judicial proceedings by denying a defendant the opportunity to sit on
his rights, bet on the verdict, and then, if the verdict is adverse, gain a retrial by
asserting his rights for the first time on appeal.” (quoting State v. O’Cain, 169
Wash. App. 228, 243, 279 P.3d 926 (2012))).
7
No. 78304-1 -1/8
testimony did not go to the ultimate issue of Levesque’s guilt. Furthermore, the
court had adequate time to provide a curative instruction to the jury. Thus, the
record reflects that Levesque’s objections were sufficiently specific and timely to
give the trial court opportunity to correct any error.
Second, the cases on which the City relies in support are distinguishable.
In each case, the objecting party either provided no basis for the objection or
failed to object entirely. See City of Seattle v. Carnell, 79 Wash. App. 400, 402,
902 P.2d 186 (1995) (holding that the statement “lack of a ‘sufficient foundation”
without “indicat[ion of] what specific foundational requirement was lacking” is
insufficient to preserve error for appeal); State v. Sullivan, 69 Wash. App. 167, 169,
173, 847 P.2d 953 (1993) (holding that because the defendant failed to object to
the testimony and did not cite the testimony’s admission in later motions, the
error was not preserved for review on appeal); State v. Casteneda-Perez, 61 Wn.
App. 354, 363, 810 P.2d 74 (1991) (holding that “calls for comment on the
evidence” lacks specificity and is insufficient to preserve error for appeal); State
v. Hubbard, 37 Wash. App. 137, 145, 679 P.2d 391 (1984) (holding that an
objection based on a lack of foundation “with no particularity as to the nature of
the deficiency” is insufficient to preserve error for appeal), rev’d on other
grounds, 103 Wash. 2d 570, 693 P.2d 718 (1985). But here, as discussed,
Levesque timely provided the trial court with the specific grounds for his
objections to Officer Hinson’s testimony. Levesque thus preserved his challenge
to Officer Hinson’s testimony.
Levesque failed, however, to preserve his challenge to Officer Coe’s
8
No. 78304-1 -119
testimony because he made no objection at all. Levesque claims that his
challenge was preserved because Officer Coe’s testimony violated the ruling in
limine to limit officer testimony to personal observations. Specifically, Levesque
contends that the violation is alone adequate to preserve our review of Officer
Coe’s testimony. But he is incorrect: “A party is obligated to renew an objection
to evidence that is the subject of a motion in limine in order to preserve the error
for review.” City of Bellevue v. Kravik, 69 Wash. App. 735, 742, 850 P.2d 559
(1993). Levesque also contends that his challenge was preserved because the
City failed to list Officer Coe as an expert witness. But Levesque cites no
authority for the proposition that he can preserve his challenge based solely on
the City’s exclusion of Officer Coe from its expert witness list. Therefore, we are
not persuaded. See DeHeer v. Seattle Post-Intelliqencer, 60 Wash. 2d 122, 126,
372 P.2d 193 (1962) (“Where no authorities are cited in support of a proposition,
the court is not required to search out authorities, but may assume that counsel,
after diligent search, has found none.”).
Admissibility of Officer Hinson’s Testimony
The City claims that the superior court erred by concluding that Officer
Hinson’s testimony regarding Levesque’s impairment by stimulants was
inadmissible. Because Officer Hinson’s testimony lacked sufficient foundation
and because the testimony was an impermissible opinion of guilt, we disagree.
We review admission of opinion testimony for abuse of discretion. State v.
Ortiz, 119 Wash. 2d 294, 308, 831 P.2d 1060 (1992). And opinion testimony must
be deemed admissible by the trial court before it is offered. State v.
9
No. 78304-1 -1/10
Montciomerv, 163 Wash. 2d 577, 591, 183 P.3d 267 (2008). Opinion testimony may
be admissible under ER 701 as lay testimony or ER 702 as expert testimony.
However, ‘[w]hen opinion testimony that embraces an ultimate issue is
inadmissible in a criminal trial, the testimony may constitute an impermissible
opinion on guilt.” State v. Quaale, 182 Wash. 2d 191, 197, 340 P.3d 213 (2014)
(citing City of Seattle v. Heatley, 70 Wash. App. 573, 579, 854 P.2d 658 (1993)).
“Impermissible opinion testimony regarding the defendant’s guilt may be
reversible error.” Quaale, 182 Wash. 2d at 199.
Here, the opinion testimony at issue consists of Officer Hinson’s
statements that Levesque showed signs and symptoms of being impaired by a
specific category of drug, i.e., a CNS stimulant, and that Levesque was “definitely
impaired” at the time of the accident:
[Officer Hinson:] I could see that he was perspiring. I misspoke on
the in-car video. He did not have dilated pupils, he had constricted
pupils which means very, very small. And, as I said, through my
training experience that I recognize as a sign[] as possibly being
impaired by a stimulant.
[Officer Hinson:] The signs and symptoms of possible impairment
of under a stimulant which included the perspiring while standing
outside of the vehicle on the West Seattle Bridge while it was chilly
outside and windy; the inability to recollect the events; and just the
overall scene; and the conversation that we had between him and
his mannerisms and his actions.
[Prosecution]: Based on your training and experience, and all of
the observations and interactions you had with Mr. Levesque on
this day, did you form an opinion as to whether he was impaired by
drugs?
10
No. 78304-1-Ill 1
[Officer Hinson]: Yes.
[Prosecution]: What is it?
[Officer Hinson]: Opinion was that he was definitely impaired at the
time of the accident.
(Emphasis added.) As further discussed below, Officer Hinson’s opinion
testimony was not admissible under ER 701 or ER 702 because Officer Hinson
was not qualified to opine as to whether Levesque was affected by a specific
category of drugs. Furthermore, Officer Hinson’s testimony that Levesque was
“definitely impaired” constituted an impermissible opinion of guilt. Therefore, the
trial court erred by admitting Officer Hinson’s testimony.
Officer Hinson’s Testimony was Not Admissible as an Expert Opinion
An expert witness may testify in the form of opinion or otherwise “[i]f
scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, [and the] witness
qualifie[s] as an expert by knowledge, skill, experience, training, or education.”
ER 702. “Before allowing an expert to render an opinion, the trial court must find
that there is an adequate foundation so that an opinion is not mere speculation,
conjecture, or misleading.” Johnston-Forbes v. Matsunacia, 181 Wash. 2d 346, 357,
333 P.3d 388 (2014). “[E]xpert opinion evidence is usually not admissible under
ER 702 unless it is based on an explanatory theory generally accepted in the
scientific community.” State v. Sanders, 66 Wash. App. 380, 385, 832 P.2d 1326
(1992). However, “where expert testimony does not concern sophisticated or
technical matters, it need not meet the rigors of a scientific theory.” Sanders, 66
Wash. App. at 385-86. To this end, the Washington Supreme Court has
11
No. 78304-1-1/12
“repeatedly held that ‘an expert may be qualified by experience alone.”
Johnston-Forbes, 181 Wash. 2d at 355 (quoting In re Marriage of Katare, 175
Wash. 2d 23, 38, 283 P.2d 546 (2012)).
We conclude that the City failed to establish that Officer Hinson was
qualified under ER 702 to opine as an expert. Our Supreme Court’s decision in
Baity is instructive in this regard. Baity involved two consolidated DUI cases
where DRE officers testified to the defendants’ impairment after performing the
DRE 12-step protocol. 140 Wash. 2d at 6-8. The then-novel DRE protocol is used
by law enforcement officers to discern whether an individual is under the
influence of one of seven categories of drugs: “(1) [CNS] depressants, (2)
inhalants, (3) phencyclidine (PCP), (4) cannabis, (5) CNS stimulants, (6)
hallucinogens, and (7) narcotic analgesics.” Baity, 140 Wash. 2d at 5. The 12-step
DRE protocol involves:
“(1) breath (or blood) alcohol concentration; (2) interview of the
arresting officer; (3) preliminary examination; (4) eye examinations;
(5) divided attention tests; (6) vital signs examination; (7) darkroom
examination of pupil size; (8) examination of muscle tone; (9)
examination of injection sites; (10) statements, interrogation; (11)
opinion; (12) toxicology analysis.”
Baity, 140 Wash. 2d at 6. The court addressed whether the DRE protocol satisfied
the standard for novel scientific procedures set forth in Frye v. United States, 54
U.S. App. D.C. 46, 293 F. 1013 (1923).~ Baity, 140 Wash. 2d at 13.
The Baity court concluded that the DRE protocol satisfied the Frye
standard. 140 Wash. 2d at 17. In doing so, the court observed that a DRE must
~ The Frye standard has been adopted in Washington as the standard for
determining the admissibility of an expert opinion that is based on a novel
scientific theory. State v. Copeland, 130 Wash. 2d 244, 255, 922 P.2d 1304 (1996).
12
No. 78304-1-1/13
complete significant training and education before becoming certified, including a
16-hour “preschool” providing an overview of DRE protocol and “instruction on
the seven drug categories and basic drug terminology.” Baity, 140 Wash. 2d at 4-5.
A DRE officer must complete an additional 56 hours of DRE education, which
“consists of 30 modules of instruction, including an overview of the development
and validation of the drug evaluation process, and sessions on each drug
category.” Baity, 140 Wash. 2d at 5. The program also requires practical field
training, and an “officer must pass a written examination before beginning the
next phase of training.” Baity, 140 Wash. 2d at 5. Finally, the officer must
successfully complete 12 examinations, and in those examinations, be able to
“identify an individual under the influence of at least three of the seven drug
categories.” Baity, 140 Wash. 2d at 5. The officer must “obtain a minimum 75
percent toxicological corroboration rate” and pass a written test as well as skills
demonstration tests. Baity, 140 Wash. 2d at 5.
Our Supreme Court held that a “DRE officer, properly qualified, may
express an opinion that a suspect’s behavior and physical attributes are or are
not consistent with the behavioral and physical signs associated with certain
categories of drugs.” Baity, 140 Wash. 2d at 17-18. The court stated, however, that
“an officer may not testify in a fashion that casts an aura of scientific certainty”
and that the DRE protocol does not allow an officer to opine as to “the specific
level of drugs present in a suspect.” Baity, 140 Wash. 2d at 17. Additionally, the
court held that a DRE must still qualify as an expert under ER 702 and present a
proper foundation, i.e., “a description of the DRE’s training, education, and
13
No. 78304-1-1/14
experience in administering the test, together with a showing that the test was
properly administered.” Baity, 140 Wash. 2d at 18. The court remanded for the trial
court to determine whether the DRE properly qualified as an expert. Baity, 140
Wash. 2d at 18.
Although Baity was decided in the context of determining whether the
DRE protocol satisfied the Frye standard, it follows from Baity that absent other
sufficient foundation testimony, an officer is not qualified to opine that a
defendant’s behavior is or is not consistent with that associated with a specific
category of drug unless the officer is a DRE.
Here, it is undisputed that Officer Hinson is not a DRE. Furthermore, he
lacked otherwise sufficient qualification to express an opinion that Levesque’s
behavior was consistent with having ingested a specific category of drug.
Specifically, Officer Hinson completed only basic training and a 40-hour DUI
course. And, at the time of Levesque’s arrest, he had completed only 13 DUI
investigations, nine of which involved drug related impairment, and most of which
involved assisting a lead officer. These experiences may provide a basis for
testimony that a person shows signs and symptoms consistent with drug or
alcohol consumption generally or what specific symptoms were observed; they
do not, however, provide a basis for opining that a person is affected by a
particular category of drug or that the effect rises to the level of impairment. In
short, and while not every expert presenting an opinion on the issue must be
14
No. 78304-1-1/15
DRE certified,4 Officer Hinson’s lack of DRE certification and minimal police
experience are not sufficient to qualify him to give such an opinion. Thus, Officer
Hinson’s opinion testimony was not admissible as expert opinion testimony.
The City relies on State v. McPherson for the proposition that an officer
may testify about a specialized or scientific matter based on experience and
training alone. 111 Wash. App. 747, 46 P.3d 284 (2002). In McPherson, Detective
Terry Boehmler testified as an expert on meth labs based on police training and
experience alone. 111 Wash. App. at 761-62. Division Three concluded the
testimony was admissible expert testimony. McPherson, 111 Wash. App. at 762.
However, the McPherson court highlighted “that methamphetamine cooking is
relatively easy and is done by numerous persons without a higher education.”
111 Wash. App. at 762. By contrast, discerning which particular class of drug an
individual’s behavior is consistent with is a sophisticated and technical matter.
See Baity, 140 Wash. 2d at 4-5. Such testimony requires an adequate foundation
for expert opinion testimony, which did not exist here. More importantly,
Detective Boehmler (1) had investigated 40 to 60 meth labs in the previous six to
seven months, (2) had completed DEA training and recertification, and
(3) “conducted meth lab training for two local police departments.” McPherson,
111 Wash. App. at 752, 762. Thus, whereas Detective Boehmler’s training
~ For example, “pharmacologists, optometrists, and forensic specialists”
may be qualified to testify as to what specific drug impairment looks like or if, in
their opinion, behavior was consistent with consumption of a particular category
of drug. See Baity, 140 Wash. 2d at 17; see ~so State v. Pirtle, 127 Wash. 2d 628,
639-40, 904 P.2d 245 (1995) (A neuropharmacologist and clinical psychologists
were allowed to testify as to the effect of drug abuse on the defendant’s mental
processes.).
15
No. 78304-1 -1116
provided a sufficient foundation for expert testimony, Officer Hinson’s did not.
Finally, the City’s reliance on nonbinding case law from outside of this
jurisdiction is equally misplaced, and we do not address those cases. ~ State
v. Rambo, 250 Or. App. 186, 187-88, 279 P.3d 361 (2012) (holding that a DRE
expert who completed 11 of the 12 DRE steps could testify that the defendant
was under the influence of a narcotic analgesic); State v. Burrow, 142 Idaho 328,
329-30, 127 P.3d 231 (2005) (holding that in an aggravated assault case, an
officer could testify that the defendant showed symptoms consistent with
methamphetamine or other stimulant use); United States v. Sweeney, 688 F.2d
1131, 1145 (7th Cir. 1982) (holding that an experienced methamphetamine user
could testify that a substance was methamphetamine “based upon his prior use
and knowledge of” it); United States v. Habibi, 783 F.3d 1, 5(1st Cir. 2015)
(holding that a Federal Bureau of Investigation special agent could testify that he
investigated a case where “an individual touched . . . a[n] object with a bare
hand, but when tested, no detectable DNA was found”) (second alteration in
original); Blair v. City of Evansville, 361 F. Supp. 2d 846, 850 (S.D. Ind. 2005)
(allowing a security officer’s testimony on security plans for a vice-presidential
visit). These cases are both nonbinding and distinguishable.
Officer Hinson’s Testimony was Not Admissible as a Lay Opinion
Having concluded that Officer Hinson’s testimony was not admissible as
an expert opinion, we next address whether it was admissible as a lay opinion.
We conclude that it was not.
A lay opinion is admissible only if it is “rationally based on the perception
16
No. 78304-1-1117
of the witness” and “not based on scientific, technical, or other specialized
knowledge within the scope of rule 702.” ER 701(a), (c). Put another way, lay
testimony must be based on “knowledge . . . from which a reasonable lay person
could rationally infer the subject matter of the offered opinion.” State v. Kunze,
97 Wash. App. 832, 850, 988 P.2d 977 (1999).
As demonstrated by Baity and the very existence of the DRE protocol and
program, specialized knowledge or experience is required to discern the
particular category of drug by which an individual is affected absent other
specialized experience or knowledge of drug impairment. And a reasonable lay
person with general experience does not have knowledge from which to
rationally infer that an individual is impaired by a specific category of drug. Thus,
Officer Hinson’s testimony was not admissible as a lay opinion.
The City disagrees and relies on Heatley for the proposition that Officer
Hinson’s testimony was an admissible expert or lay opinion. In Heatley, Officer
Patricia Manning observed Robert Heatley speeding and straddling the center
line with his vehicle. Heatley, 70 Wash. App. at 575. When Officer Manning pulled
Heatley over, she smelled liquor and noticed that Heatley’s speech was slurred
and that he had difficulty balancing. Heatley, 70 Wash. App. at 575-76. Officer
Manning called the Driving While Impaired (DWI) unit, and Officer Mark Evenson
of the DWI unit had Heatley perform a series of FSTs: reciting the complete
alphabet, counting backward from 59, balancing, and walking a straight line.
Heatley, 70 Wash. App. at 576.
At trial, Officer Evenson testified that he had tested over 1,500 drivers for
17
No. 78304-1 -1/18
impairment while driving. Heatley, 70 Wash. App. at 576.~ He then opined:
‘Based on. his physical appearance and my observations
. .
and based on all the tests I gave him as a whole, I determined
that Mr. Heatley was obviously intoxicated and affected by the
alcoholic drink. . [And] he could not drive a motor vehicle in a
. .
safe manner.”
Heatley, 70 Wash. App. at 576. Heatley was convicted. Heatley, 70 Wash. App. at
577. On appeal, we held that Officer Evenson’s testimony regarding Heatley’s
alcohol intoxication was admissible as lay opinion testimony based on his
experience and observations. Heatley, 70 Wash. App. at 579-80. And because a
lay witness may testify to a defendant’s intoxication by alcohol, we also
concluded Officer Evenson’s testimony would have been admissible as expert
testimony had he been qualified as an expert. Heatley, 70 Wash. App. at 580 (“[I]f a
lay witness may express an opinion regarding the sobriety of another, there is no
logic to limiting the admissibility of an opinion on intoxication when the witness is
specially trained to recognize characteristics of intoxicated persons.”).
But here, unlike in Heatley, Officer Hinson did not conduct any FSTs or
other impairment tests. Instead, Officer Hinson relied solely on his general
observations. More importantly, although intoxication by alcohol is a proper
subject for lay—and thus expert—testimony, signs and symptoms of impairment
by a specific category of drug is not. Indeed, as the court said in Baity, a DRE
must base its opinion on the totality of the DRE 12-step evaluation “not on one
element of the test,” and “[w]hen in doubt, the DRE must find the driver is not
under the influence.” 140 Wash. 2d at 6. It follows that Officer Hinson—who was
~ Heatley was decided before the widespread use of DRE protocol and our
Supreme Court’s decision in Baity.
18
No. 78304-1-1/19
not a DRE and therefore could not and did not perform any step of the DRE
protocol—should not have been permitted to testify that Levesque was affected
by CNS stimulants. In short, such testimony does concern a sophisticated and
technical matter, and without DRE certification or other sufficient foundation for
the specialized testimony, Officer Hinson’s opinion as to the drug by which
Levesque was affected is speculation. For these reasons, Heatley and other
cases involving alcohol intoxication do not control here. See, ~ State v.
Lewellyn, 78 Wash. App. 788, 794, 895 P.2d 418 (1995) (holding that ‘[ut is well
settled in Washington that a lay witness may express an opinion regarding the
level of intoxication of another”), aff’d State v. Smith, 130 Wash. 2d 215, 922 P.2d
811 (1996). Therefore, the City’s argument fails.
The City also relies on Montgomery for the proposition that Officer
Hinson’s testimony was the proper subject of a lay opinion. In Montgomery, the
court cited Heatley for the proposition that “[a] lay person’s observation of
intoxication is an example of permissible lay opinion.” 163 Wash. 2d at 591. But, as
discussed, Heatley pertained to alcohol intoxication. As discussed, this principle
does not extend to the testimony at hand because unlike the effects of a class of
drugs, “[t]he effects of alcohol ‘are commonly known and all persons can be
presumed to draw reasonable inferences therefrom’.” Heatley, 70 Wash. App. at
580 (quoting State v. Smissaert, 41 Wash. App. 813, 815, 706 P.2d 647 (1985)). A
lay witness does not need an individual’s BAC to discern that the individual is
stumbling, smells of alcohol, and therefore is intoxicated. But there are not
ordinary or obvious cues by which a lay witness can determine that an individual
19
No. 78304-1 -1/20
is impaired by a particular class of drugs. Likewise, while the DRE protocol
includes observation as a step, there are no observations, or ordinary or obvious
cues, that, alone, can tell the officer the specific drug an individual ingested or if
they are impaired. Thus, an officer can describe that an individual was shaky or
sweaty, or had dilated or constricted pupils, but an officer may not comment on
the drug class by which an individual is affected based solely on those
observations. Therefore, the principle cited in Montgomery is distinguishable and
does not control.
The City’s reliance on cases where officers identified substances or
offered perspectives on crime scenes is similarly misplaced. ~ State v.
Hernandez, 85 Wash. App. 672, 678, 935 P.2d 623 (1997) (officer opinion that
substance was cocaine): State v. Russell, 125 Wash. 2d 24, 71, 73, 882 P.2d 747
(1994) (detective opinion on typicality of murder crime scenes): State v. Halstien,
122 Wash. 2d 109, 128, 857 P.2d 270 (1993) (officer opinion that substance was
semen); State v. Ferguson, 100 Wash. 2d 131, 141, 667 P.2d 68 (1983) (lay witness
opinion that substance was semen); Kunze, 97 Wash. App. at 857-58 (law
enforcement officers’ opinions on murder crime scene). None of these cases
involved the type of testimony at issue here. And as discussed, this type of
testimony requires specialized knowledge or experience for an expert opinion.
Therefore, we are unpersuaded.
In sum, a witness must have the specialized or technical knowledge, skill,
training, or education, or sufficient experience required under ER 702 to opine
that an individual is affected by a particular class of drug. Thus, we hold that
20
No. 78304-1-1/21
because Officer Hinson was not DRE certified, did not complete any of the DRE
steps, and lacked otherwise sufficient experience or training, the trial court
abused its discretion by admitting Officer Hinson’s opinion that Levesque’s
behavior was consistent with having taken a specific category of drugs, i.e., CNS
stimulants.
Impermissible Opinion of Guilt
Because we conclude that Officer Hinson’s testimony was otherwise
inadmissible, we next review whether the testimony was an impermissible
opinion on the ultimate issue of Levesque’s guilt. The City contends that the
testimony did not constitute an impermissible opinion of guilt. We disagree.
Under ER 704, “opinion testimony is not objectionable merely because it
embraces an ultimate issue that the jury must decide.” Quaale, 182 Wash. 2d at
197. However, in general, “no witness may offer testimony in the form of an
opinion regarding the guilt or veracity of the defendant; such testimony is unfairly
prejudicial to the defendant ‘because it invad[es] the exclusive province of the
[jury].” State v. Demerv, 144 Wash. 2d 753, 759, 30 P.3d 1278 (2001) (alterations
in original) (internal quotation marks omitted) (quoting Heatley, 70 Wash. App. at
577). “When opinion testimony that embraces an ultimate issue is inadmissible
in a criminal trial, the testimony may constitute an impermissible opinion on guilt.”
Quaale, 182 Wash. 2d at 197. We consider the circumstances surrounding the
case to determine whether the testimony was an impermissible opinion of guilt,
“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,
21
No. 78304-1 -1/22
and (5) the other evidence before the trier of fact.” Montciomery, 163 Wash. 2d at
591 (internal quotation marks omitted) (quoting Demerv, 144 Wash. 2d at 759). But
some testimony is “clearly inappropriate for opinion testimony in criminal trials,
including . . . expressions of personal belief[ } as to the defendant’s guilt.”
Quaale, 182 Wash. 2d at 200. The trial court’s admission of such testimony may
result in a constitutional error and support reversal. Quaale, 182 Wash. 2d at 201-
02.
In Quaale, State Patrol Trooper Chris Stone pulled Ryan Quaale over after
Quaale attempted to elude him. 182 Wash. 2d at 194. Trooper Stone smelled
alcohol, performed an HGN test on Quaale, and observed that Quaale’s eyes
bounced and had difficulty tracking stimulus. 182 Wash. 2d at 194. The State
charged Quaale with a DUI, and at trial, Trooper Stone testified that “‘[t]here was
no doubt that [Quaalej was impaired” by alcohol. Quaale, 182 Wash. 2d at 195.
The court concluded that Trooper Stone’s testimony constituted an impermissible
opinion of guilt because Trooper Stone testified as to the defendant’s specific
level of intoxication by referring to him as “impaired”:
The trooper’s testimony that Quaale was “impaired” parroted
the legal standard contained in the juiy instruction definition for
“under the influence.” The word “impair” means to “diminish in
quantity, value, excellence, or strength.” Thus, the trooper
concluded that alcohol diminished Quaale to such an appreciable
degree that the HGN test could detect Quaale’s impairment.
Quaale, 182 Wash. 2d at 200 (emphasis added) (citation omitted). The court
reasoned that “the conclusion that the defendant was impaired rests on the
premise that the defendant consumed a sufficient level of intoxicants to be
impaired” and that “the alcohol consumed impaired the defendant, which is the
22
No. 78304-1 -1/23
legal standard for guilt.” Quaale, 182 Wash. 2d at 199.
The court’s decision in Quaale is instructive for two reasons. First, the
testimony by the trooper in Quaale is nearly identical to Officer Hinson’s. In
Quaale, Trooper Stone testified that there was “no doubt that [Quaale] was
impaired” by alcohol. 182 Wash. 2d at 195. Here, Officer Hinson testified that
Levesque was “definitely impaired” by drugs. Second, the relevant jury
instruction in Quaale was substantially identical to the one used here. In Quaale,
the jury was instructed that “[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.” 182 Wash. 2d at 200 (emphasis added).
Here, the instruction stated, “A person is under the influence of or affected by the
use of a drug if the person’s ability to drive a motor vehicle is lessened in any
appreciable degree.” (Emphasis added.)
Quaale controls here. Like in Quaale, the primary issue before the jury
was whether Levesque drove while under the influence of drugs. And like
Trooper Stone, Officer Hinson opined that drugs affected Levesque to such an
appreciable degree that Officer Hinson’s observations alone could determine that
Levesque was impaired. Finally, like in Quaale, Officer Hinson’s testimony
parroted the legal standard of guilt, which is properly decided by the jury. Thus,
Officer Hinson impermissibly opined as to Levesque’s guilt.
The City relies on Heatley for the proposition that Officer Hinson’s
testimony was not an improper opinion on guilt. The City’s reliance is misplaced.
In Heatley, the arresting officer testified that Heatley “was obviously intoxicated
23
No. 78304-1-1/24
and affected by the alcoholic drink. . . [and unable to] drive a motor vehicle in a
safe manner.” 70 Wash. App. at 576. There, the testimony was not an
impermissible opinion on defendant’s guilt because the testimony was admissible
lay opinion based on personal observations and merely supported a conclusion
of Heatley’s guilt. Heatley, 70 Wash. App. at 580. We emphasized that the officer
did not parrot the legal standard. Heatley, 70 Wash. App. at 581. Furthermore, in
Quaale, the court distinguished Heatley because “[u]nlike 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.” 182 Wash. 2d at 201. The same is true here. Thus, Heatley is
distinguishable and not persuasive.
Harmless Error
The City claims that even if the trial court erred by admitting Officer
Hinson’s testimony, the error was harmless, and therefore, the superior court
erred in reversing Levesque’s conviction. We disagree.
Because Officer Hinson’s testimony invaded the province of the jury to
determine Levesque’s guilt and thus violated his constitutional right to a fair trial,
“we apply the constitutional harmless error standard.” State v. Hudson, 150 Wn.
App. 646, 656, 208 P.3d 1236 (2009). In a constitutional harmless error analysis,
we presume prejudice. Hudson, 150 Wash. App. at 656. A “[c]onstitutional 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.” Quaale,
182 Wash. 2d at 202; Nederv. United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144
24
No. 78304-1 -1/25
L. Ed. 2d 35(1999).
For the following reasons, we conclude that the City has not established
that any reasonable jury would have convicted Levesque. First, “[a]n officer’s live
testimony offered during trial, like a prosecutor’s statements made during trial,
may often ‘carr[y] an aura of special reliability and trustworthiness” and is
“especially likely” to influence a jury. Demery, 144 Wash. 2d at 762, 763 (second
alteration in original) (internal quotation marks omitted) (quoting United States v.
Espinosa, 827 F.2d 604, 613 (9th Cir. 1987)). Officer Hinson was the arresting
officer, and he expressed certainty as to his conclusion of Levesque’s impairment
by drugs. Moreover, the City bolstered Officer Hinson’s testimony with evidence
of his experience and training, portraying particular reliability. Additionally,
Officer Hinson testified first, thus framing all other evidence considered by the
jury.
Second, the jury could have reached another rational conclusion.
Specifically, Levesque’s physician, Dr. Mayer, testified that shock can result in
symptoms including “[110w blood pressure, rapid heart rate, fear, [and] sweating.”
Additionally, prior to the accident, Dr. Mayer treated Levesque for neurosyphilis
and injuries resulting from earlier car accidents. She testified that neurosyphilis
can cause “blurry vision.” And Dr. Mayer noticed Levesque did have some word
finding difficulties. She also diagnosed Levesque with postconcussion
syndrome—which can cause memory loss and speech problems—and
prescribed amitriptyline, a medication for postconcussion syndrome.
Amitriptyline can cause grogginess and mental fogging, and can make an
25
No. 78304-1-1/26
individual drowsy. Dr. Mayer also testified that Levesque has a history of
neurosyphilis, which may cause blurry vision and loss of motor functions. In
short, Dr. Mayer’s testimony may have persuaded the jury that there was another
explanation for Levesque’s behavior and that his ability to drive was not lessened
to an appreciable degree by the drugs in his system.6
The additional testimonies of Gingras, Captain Franks, and Officer Coe do
not establish beyond a reasonable doubt that any reasonable jury would have
convicted Levesque. Captain Franks testified that Levesque’s heart rate was up,
he had an altered state of consciousness, and his conversational and motor skills
were impaired. Captain Franks also testified that Levesque “‘show[ed] behavior
consistent with recreational drug use.” But Captain Franks did not claim
Levesque was affected by or, more specifically, impaired by drugs or what
category of drug. Officer Coe testified that Levesque was shaky and sweaty, and
that sweating indicates the potential for stimulant consumption. Gingras testified
regarding the accuracy of the lab report and that the levels of methamphetamine
and amphetamine in Levesque’s system were higher than therapeutic levels.
However, even Gingras could not determine whether the level of
methamphetamine in Levesque’s blood impaired him. Specifically, during closing
arguments, the City noted that Gingras testified that “he can’t say whether
someone was impaired at .55” mg/L of methamphetamine in their system.
The City contends that Officer Hinson’s statements are similar to those
6 Indeed, had the DRE protocol been performed, the DRE may have been
able to rule out other medical conditions. See Baity, 140 Wash. 2d at 6 (“In theory,
the DRE protocol enables the DRE to rule in (or out) many medical conditions,
such as illness or injury, contributing to the impairment.”).
26
No. 78304-1-1/27
admitted in State v. Smith, 67 Wash. App. 838, 841 P.2d 76 (1992). In Smith, the
trial court erroneously admitted without correction statements regarding a
testifying officer’s awards and commendations. 67 Wash. App. at 840, 845. We
concluded that the State used the testimony to “improperly elevate [the officer’s]
character” but that the error was harmless. Smith, 67 Wash. App. at 845. Here,
Officer Hinson made a statement that directly implicated Levesque’s guilt; the
statement did not merely bolster his testimony. Thus, Smith is distinguishable.
For these reasons, the City cannot establish beyond a reasonable doubt
that any reasonable jury would have found Levesque guilty absent Officer
Hinson’s testimony. Therefore, the error was not harmless.
We affirm.
WE CONCUR:
27