ruling officer testimony inadmissible in which officer testified, “Six scores, in my experience, they’ve always been above the legal limit [of] .10. I’ve never had one that scored six below.”
How later courts described this case
- ruling officer testimony inadmissible in which officer testified, “Six scores, in my experience, they’ve always been above the legal limit [of] .10. I’ve never had one that scored six below.”
- erroneous admission of opinion testimony regarding HGN testing was harmless in a jury trial where other evidence showed the defendant ran a red light, the officer noted that the defendant had alcohol on his breath and glassy eyes, the defendant failed three field sobriety tests, the defendant admitted having consumed two beers, and the defendant refused to take a breath test
- "Where . . . a driver scores four or more points on the HGN, there is substantial evidence that the driver is intoxicated."
- allowing evidence of HGN test results as circumstantial evidence of intoxication but not as evidence of a specific BAC level
Written by the judges who cited it.
The opinion
RONALD R. HOLLIGER, Judge,
dissenting.
I concur fully with all portions of the majority opinion except for the determination that the error in admitting Officer McConaha’s testimony concerning his personal equation of HGN scores and blood alcohol levels was not prejudicial error that requires reversal.
Although the majority correctly states the test from State v. Barriner, 34 S.W.3d 139, 150 (Mo. banc 2000) (whether the prejudice is “evidence specific or outcome determinative”), the majority incorrectly applies the test to the case at hand. Bar-riner did not extensively discuss the difference between these two types of prejudice but did cite to State v. Roberts, 948 S.W.2d 577 (Mo. banc 1997). Evidence specific prejudice is the “prejudice a trial court considers when it weighs the probative value of a piece of evidence against its potential for prejudice.” Id. at 592 . Outcome-determinative prejudice occurs “if the error more-likely-than-not prejudices the entire proceeding against the defendant.” Id. In Barriner , the specific issue was the erroneous evidence of uncharged misconduct or other crimes evidence; nevertheless, this writer submits that a number of factors that the court discussed are helpful in applying the evidence specific or outcome determinative prejudice test to this case. The factors included (1) the amount of evidence that was erroneously admitted and the extent to which the evi *113 dence was referred to in the trial, (2) whether the erroneously admitted evidence was highlighted during the trial, (3) whether the prosecutor’s introduction of the evidence was intentional and purposeful or inadvertent, and (4) does the improperly admitted evidence relate directly to the charged offense. Id. at 150-51 . These factors are not necessarily exhaustive and may vary depending upon the particular type of evidence at issue.
The majority considers some of these factors but ignores the fact that the improperly admitted evidence was not collateral in any respect but goes directly to the heart of the charged offense. In an otherwise circumstantial evidence case, the jury improperly heard evidence of a scientific basis (blood alcohol level) to convict the defendant. In fact the strength and persuasiveness of apparent scientific evidence is one of the reasons that the courts of many other states have strictly prohibited testimony equating HGN scores with blood alcohol levels. State v. Superior Court, 149 Ariz. 269 , 718 P.2d 171, 181 (1986).
The majority places strong emphasis on the fact that the officer did not testify that the HGN test was more rehable than the other field sobriety test. 1 But, in fact, the prosecutor told the jury in opening statement that the HGN test alone as interpreted by the officer was sufficient to convict. Thus, rather than this evidence being cumulative to other evidence, as the majority suggests, the prosecution’s avowed theory was that all of the other evidence was cumulative to the HGN test and the officer’s testimony that it indicated an alcohol blood level beyond the presumed limit. Although the majority is correct that opening statements and closing arguments are not evidence, a consideration of whether the prosecutor has highlighted improper evidence cannot be made merely by looking at the evidence itself and ignoring the use that the prosecutor puts to such evidence. Here, it is obviously apparent that the prosecutor’s theme and purpose was to admit the opinion testimony of the officer to show the jury an equivalent scientific basis for conviction (blood alcohol level) even though there was no breath or blood analysis.
The majority simply concludes that the other evidence of defendant’s guilt is overwhelming. However, the Court in Barri-ner, upon which the majority purports to rely, expressly rejected “so narrow a test. ” Id. at 150. The evidence, here, is nothing more than the usual evidence of observations and field tests seen by police officers and trial judges every day. There was nothing unusual about any of that evidence: an improper turn, strong odor of intoxicants, glassy eyes, failure of field sobriety tests. It is difficult to see how in virtually any circumstantial evidence DWI case the admission of HGN based blood alcohol level evidence could ever be prejudicial under the majority’s analysis. The majority has properly declared a class or type of evidence not competent but with no practical adverse consequences for its admission. The majority’s conclusion would permit and encourage prosecutorial abuse.
Because a perfect trial exists only in theory, both justice and necessity permit considerations of discretion, harmlessness and prejudice in determining the admissibility of evidence and the legal consequences of improper admission. Nevertheless, a prejudice (or more precisely the lack thereof) standard should not, in application, become a method by which a re *114 viewing court weighs the imperfections of trial against its own views of guilt (or innocence). Rather, we must attempt the admittedly difficult task of considering how a jury would have been affected or not affected by the improper evidence for it is the jury determinative outcome that is essential. This writer has no confidence that a jury would have ignored and found overwhelming the other evidence of defendant’s guilt without the improper opinion evidence relating the HGN test to a scientific test equivalent of blood alcohol. In fact it was so central to the prosecutor’s strategy and the essence of the crime charged that it is virtually impossible to conceive of such evidence being ignored, unimportant, superfluous or not dramatically persuasive as to the issue of guilt.
The majority cites one case from another state, State v. Garrett, 119 Idaho 878 , 811 P.2d 488 (1991), for the proposition that the admission of such testimony, although error, was not prejudicial. And although the court there enunciated a standard apparently similar to Bamner, there was no extended or considered discussion of any factors. Other states have clearly held, as our majority opinion now does, that opinion testimony equating HGN scores with levels of alcohol in the blood is inadmissible. At least one has also held that the improper admission was reversible error. Wilson v. State, 124 Md.App. 543 , 723 A.2d 494, 501-02 (1999).
With respect to the concurring opinion I respectfully disagree with the author’s conclusion that the error was not preserved by proper objection. The objective of the preservation requirement is, as the concurring opinion notes, to prevent sandbagging of the trial court. The objection made by defense counsel and cited by the concurring opinion also incorporated and referenced his earlier objection as to a lack of scientific basis foundationally for the officer to testify as to the specific meaning of the HGN test results. The trial court was of the opinion that under Hill the officer, if minimally qualified to administer the HGN, was qualified and scientific opinion testimony was admissible not only that a HGN score of six was an indicator of intoxication but also that there was a scientific correlation between that score and at least a minimum blood alcohol level. The concurring opinion ignores that distinction and mischaracterizes the majority’s explanation of Hill and the limitations of its holding.
Although the majority has done a commendable job of analyzing why the evidence should not have been admitted, I respectfully disagree with its conclusion that the error does not require reversal.
PATRICIA A. BRECKENRIDGE, Judge, JOSEPH M. ELLIS, Judge, and VICTOR C. HOWARD, Judge, concur with Dissent.
. Although in fact it is. It is the only one of the field sobriety tests that has any scientific basis for indicating the influence of alcohol. It requires more specialized training than most of the other field sobriety tests.